Hodge v Brooks et Al

• Jurisdiction: Anguilla
• Judge: George-Creme, J.
• Judgment Date: 16 September 2005
• Neutral Citation: AI 2005 HC 5
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Date: 16 September 2005
• Docket Number: AXAHCV 0005 of 2002

High Court

George-Creque, J.

AXAHCV 0005 of 2002

Hodge

and

Brooks et al

Appearances:

Mr. Gerhard Wallbank instructed by Webster Dyrud Mitchell, for the claimants.

Mr. Courtney Abel and Ms. Eustella Fontaine instructed by Caribbean Associated Attorneys, for the defendant.

Contract - Building contract — Breach — Negligence — Quantum meruit — Memorandum of agreement entered into between claimant and defendant for construction of main building and 2 guest villas with construction price stipulated — Dispute arising concerning quality of work and variation of designs — Whether defendant in breach of agreement — Whether pool, walkways and patios forming part of agreement or constituting separate agreement — Whether defendant entitled to quantum meruit — Finding that defendant failed to carry out work in accordance with agreement — Damages awarded to claimant — Quantum meruit refused.

George-Creme, J.

1 This action concerns a building contract entered into between the claimants and the defendant for the construction of a dwelling, in essence, comprising a main dwelling house and two detached guest villas (“the Buildings”) on the property of the claimants at Captain's Ridge, Island Harbour, in Anguilla, and registered as Parcel 72, Block 99519B, Registration Section East End (“the Property”). It highlights the typical problems which arise when building contracts lack specificity or contain vague or merely general terms. The claimant seeks damages against the defendant, their building contractor, for breach of contract and negligent construction of the Buildings. The defendant has counterclaimed for the sum of US $85,020.55 as monies due under the contract for work done, or alternatively, on a quantum meruit and the sum of US $10,000 as the value of construction materials left on the Property.

BACKGROUND

• (a) Sometime around August or September 1999 the claimants approached the defendant, a building contractor in Anguilla to construct the Buildings on the Property in respect of which the second claimant held a Non Belonger Land Holding Licence. The defendant was first provided with a first set of plans (which shall be referred to as the “Preliminary Plans”) on which he was to provide them with an estimate of the cost of construction. Whether the defendant gave one quote of US $200,000 based on the Preliminary Plans or gave one quote only of US $243,290.14 as stated in the written construction contract executed later is in dispute.

• (b) More detailed plans were given to the defendant a few weeks later and a Memorandum of Agreement (“MOA”) drawn up by the defendant in which the price for construction of the Buildings was stated as US $243,018.71 (‘The Contract Sum”) was executed between the claimants and the defendant sometime in October, 1999. The second set of detailed plans was initialled by the defendant on the same day that the MOA was signed. This second set of detailed plans shall be referred to as the “Initialled Plans”.

• (c) The first recital in the MOA stated as follows: “Whereas the Owner is desirous of completing a two storey main building and two single storey guest apartments …In accordance with the plans and specifications Notes thereon annexed hereto and signed by both parties.”

• (d) The MOA stated the date of possession as 10th November, 1999, and the date of completion as 9th April, 2000, and also set out in paragraph K, the payment stages in respect of the Contract Sum.

• (e) Difficulties arose between the claimants and the defendant in respect of the works being performed by the defendant under the MOA. Issues arose not only as to the quality of the work but also as to whether variations to the design and specifications were being done primarily by the second claimant, or whether changes and corrections where possible were being necessitated due to the defendant's failure to follow the plans and specifications in respect of the design and structure of the Buildings as per the Initialled Plans. An issue also arose as to what structures formed pad of the Plans, Notes and specifications for the purposes of the MOA and the Contract Sum.

• (f) By 9th April, 2000, the Buildings had not been completed and a further agreement was entered into between the claimants and the defendant in the form of a letter dated 22nd June, 2000, addressed to the defendant (“the Letter Agreement”) at which time the third stage payment under the MOA was being made by the claimants. In this letter the claimants stated in the second paragraph thereof as follows:

  “To date, the total amount paid, US $133,658.00 represents 55% of the overall cost of the completed project It should therefore be clearly understood that no further payment will be made until at least 55% of the entire project is completed. This would include the framing and casting, in concrete, of the patios, walkways, pool and retaining walls.”

• (g) After the Letter Agreement, little or no progress was made in respect of works on the project. The defendant did not return to the project site after the Letter Agreement and the claimants informed the defendant of their displeasure in respect of missed meetings to discuss the project and also with regard to the job as a whole. The defendant issued two letters dated 4th September, 2000 — one seeking from the claimants the 0 stage payment of US $29,162.24 and the other, the 5th stage payment of US $36,452.81. The claimants refused payment relying on the Letter Agreement. The defendant having not returned to work on the project the claimants engaged other persons who eventually completed the project at additional cost to the claimants.

THE ISSUES

3 The claimants contend that the defendant failed to complete the works in accordance with the terms of the MOA and the Letter Agreement in respect of:

• (a) time agreed for completion;

• (b) the stage of completion reached vis a vis, the total payments made;

• (c) defective workmanship;

• (d) failure to construct structures forming part of the MOA;

• (e) failure to carry out the said works in accordance with the plans and specifications particulars of which are set out in paragraph 12 of their Statement of Claim. At an early stage in the trial the claimants indicated that no claim was being made in respect of late completion under the terms of the Alien Land Holding Licence granted to the 2nd claimant.

4 The defendant contends, in essence, that certain structures such as the pool, patios and walkways did not form part of the MOA and formed the basis of a separate oral agreement. Further, he contends that the delay on the project was due to the substantial changes made primarily by the 2nd claimant and that at the time he ceased working on the project it was 85% complete and claims the sum of approximately US $85,000.00 for work done, or the value of the work done plus the sum of US $10,000.00 being the value of materials left on site.

5 The issues for the Court's determination then may be stated thus:

• (a) Whether the parties entered into a separate oral contract in respect of the pool, walkways and patios and retaining walls for which an additional sum was to be paid or whether they formed part of the works to be performed under the MOA;

• (b) Whether the Letter Agreement is extraneous to the MOA and the legal effect thereof;

• (c) Whether the defendant breached the terms express and or implied of the MOA, and the Letter Agreement in effect amounted to a repudiation of the same by the defendant;

• (d) If the defendant is in breach, the measure of damages to which the claimants are entitled; and in respect of the counterclaim:

• (e) Whether the defendant is owed monies by the claimant for work done on the Buildings, whether under the MOA or alternatively, on a quantum meruit and

• (f) Whether the defendant is entitled to the payment of the cost of materials left on the Property.

THE CLAIMANTS' EVIDENCE

6 In addition to the claimants, Stephen Kennedy Duncan, and Noel Rogers, an expert appointed by the claimants testified. Donnalee Richardson, a police officer, who gave a witness statement, was also called. Save for placing the date when she accompanied two men onto the Property at the request of the defendant for removing materials therefrom as sometime in 2001, I do not consider her evidence as germane to the issues in dispute.

7 Four sets of plans were introduced into evidence viz: The first set referred to as the Preliminary Plans, the second set referred to as the Initialled Plans, the third set referred to by the 1st claimant as the Site Paving or Working Plans given to the contractor for carrying out the works and a fourth set, which I shall refer to as the Marked up Plans, marked up by Mr. Rogers, the claimants' expert witness showing the defects or faults and deviations from the plans and forming part of his report dated 20th January, 2001, and on which the claimants rely.

8 The first claimant, in his witness statement, spoke of approaching the defendant firstly with the Preliminary Plans in order to obtain a quote for constructing a dwelling house on the Property and the defendant gave an estimate of US $200,000. About two weeks later a more detailed set of plans, (the Initialled Plans) were delivered to the defendant for his review and prior to him drawing up a MOA. These plans were initialled by the parties. After review of the Initialled Plans, the defendant raised the contract price to US $243,280.14. A set of estimates were provided with the MOA which gave the total contract price of US $243,017.83. At this meeting, he says, he raised concern about the vagueness of the MOA in that it made no mention of installation of doors, windows, louvres, kitchen cabinets, walkways, terraces and pool in relation to the payment schedules outlined in the MOA to which the defendant responded that this was the way in which he did all his jobs and assured them that even though these things were not...