Carty et Al v Fleming

• Jurisdiction: Anguilla
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Judge: Saunders, J.
• Judgment Date: 12 October 1999
• Neutral Citation: AI 1999 HC 8
• Docket Number: Civil Suit No. 83 of 1998
• Date: 12 October 1999

High Court

Saunders, J.

Civil Suit No. 83 of 1998

Carty et al

and

Fleming

Appearances:

Mr. E. Gaskin for the plaintiffs

Mr. J. Wigley and Mr. R. Bahardursingh for the defendants.

Contract - Building — Breach

Facts: The parties contracted to build an apartment. A dispute arose and the claimed for unpaid work done. The defendant counterclaimed for defective workmanship.

Held: The work by the plaintiffs could not be considered poor or defective. The counterclaim was dismissed. The plaintiffs were justified in refusing to continue the contract until paid for work done. Plaintiffs entitled to US$9,913.44. Costs to be agreed or taxed.

Saunders, J.

1 The plaintiffs are building contractors. They are, or at all material times were partners. They were retained by the defendant to build an apartment building at Rey Hill. The building was to contain four bedrooms on two floors. Each floor would support two bedrooms. A written entered into. The contract is dated the 10 ^th October 1996. The contract price is US$154,134.00. The contract sets out a Schedule of Payments to be made to the builders. This Schedule corresponds to the phased progress of the works. Work on the first floor was to be done in eleven phases.

2 Before the builders could complete the first floor, a dispute arose between them and the owner. The builders have brought this suit against the owner claiming monies due for unpaid work done by them on the building. The owner, Mr. Fleming, maintains that the builders have been fully paid for the work performed by them. He counterclaims that the workmanship was defective and that the builders are liable to him for expenses incurred by him in remedial work.

3 This case turns entirely on the facts. Having seen and heard the witnesses, I have to say that the plaintiffs impressed me more than the defendant. On more than one occasion, the defendant contradicted himself while being cross-examined. In a few instances, the testimony of independent witnesses (including those called by the defendant himself) ran counter to Mr. Fleming's evidence. His version of many of the factual events appeared to me to be less plausible than that provided by the plaintiffs. Having said that, I do not propose to set out in this judgment all of the facts that I have culled from the evidence. I merely state here the essential facts that I find.

4 The defendant first approached Hilton Connor with the plans for his building. Mr. Connor gave the defendant a full estimate for erecting the building. Mr. Connor's estimate was US$164,000.00. Mr. Fleming was unable to finance the project at that time. While he sought funding, Mr. Fleming requested Mr. Connor to lay out the building and to complete the excavation for the cistern and the foundation. Mr. Connor did this and charged a fee of US$3,400.00.

5 Some time in September, 1996 Mr. Fleming contacted Mr. Carty. He wanted from him an estimate for constructing the building. Mr. Carty declined to provide an estimate until he had possession of the plans and he and his partner had made a site visit. Eventually, after the plans were provided and a visit to the site had been arranged, the agreement referred to earlier was executed.

6 I do not believe that at or before the signing of this contract there was any agreement or arrangement between the parties to set off the money paid to Hilton Connor against the contract figure. Accordingly, in my judgment, the defendant's payment to Hilton Connor is entirely irrelevant to the contract between these parties. I find as a fact that the plaintiffs...