Kenneth Harrigan (DBA Harrigan Development) Claimant v Robert Twaron Defendant [ECSC]

• Jurisdiction: Anguilla
• Judge: George-Creque, J.A.
• Judgment Date: 07 December 2009
• Judgment citation (vLex): [2009] ECSC J1207-4
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Docket Number: CLAIM NO. AXAHCV 1999/0113
• Date: 07 December 2009

[2009] ECSC J1207-4

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE (CIVIL)

(CIVIL)

CLAIM NO. AXAHCV 1999/0113

Between:

Kenneth Harrigan (DBA Harrigan Development)

Claimant

and

Robert Twaron

Defendant

Contract Law — written contract — building contract for labour only — entitlement to payment for extra works done — whether claimant prevented from completing work — whether there was an agreed time frame for completion of works — counter claim for damages for breach of contract — defective workmanship — remedial work -cost for remedying defective work loss of rental income or loss of amenity in respect of property — whether there was substantial completion — claims for interest on claim and counterclaim.

The claimant, a building contractor entered into a written contract to construct a four bedroom dwelling house for the defendant. The house was stated to be 5228 square feet and a sum of US$288,960.00 was agreed for the work and the terms of the contract being one of building and labour only with this note included, "Extra work will be at additional costs." Additional work was done as various open spaces were converted into bedrooms and baths as well as other changes made. The overall size of the building was increased to 6907 square feet. The claimant therefore claimed the sum of US$308,676.35 being the difference of the overall cost and the original agreed cost which tl1e claimant says he incurred on behalf of the defendant. The defendant contends that there was breach of contract with regards to failure to complete construction within the agreed time limit, defective work and loss of rental income from the property and generally inconvenience. The defendant also relies on the way in which the claimant pleaded his case, arguing that it is a claim in debt only and he cannot therefore seek remuneration with regards to the extra work or on quantum merit basis as they are two distinct causes of action in for which relief has not been sought.

Held:

• 1. That there be judgment for the claimant in the sum of $93,682.65. Based on the totality of the evidence, the contract was substantially performed by the claimant the repairs or omissions to be done being minor by comparison.

  Dakin &Co. Ltd. v Lee [1916]1 KB 566 and Hoenig v Isaacs [1952]2 All ER 176 followed.

• 2. That there be judgment for Mr. Twaron on a part of his counterclaim in the sum of $7,103.00 in respect of completion and remedial works.

• 3. Accordingly, the sum of $93,682.65 to be paid to the claimant shall be reduced by the sum of $7,103.00 payable to the defendant thereby arriving at a net sum of $86,579.65 to be paid to the claimant by the defendant.

• 4. The claims for interest on the claim and counterclaim are dismissed.

• 5. The remaining claims in the counterclaim are dismissed.

• 6. Prescribed costs pursuant to CPR 65.5(2) and calculated in accordance with Appendix Bon the sum of $86,579.65 shall be paid to the claimant. By calculating the costs on the reduced sum, in my view, takes into account that item on which the defendant was successful on his counterclaim.

• 7. "…there is no longer a need for extensive pleadings… because witness statements are intended to serve the requirement of providing detail or particulars of the pleader's case. It is settled law that witness statements may now be used to supply details or particulars that under the former practice, were required to be contained in pleadings."

  Eastern Caribbean Flour Mills v Boyea SVG No. 12 of 2007 unreported, followed.

George-Creque, J.A.

1 The Claimant, Kenneth Harrigan entered into a written contract on 12th August 1997, with the Defendant Robert Twaron, whereby Mr. Harrigan was to construct a four bedroom dwelling house for Mr. Twaron on landat the Sea Rocks, Island Harbour, Anguilla. The square footage of the house was stated as 5228 square feet at a cost of US$288,960.00. The building contract was a labour only contract and carried this note. "Extra work will be at additional costs." There is a dispute as to the time frame within which the construction of the dwelling house was to be completed. As it turned out, additional works were done in that various open spaces were converted into bedrooms and baths. Also, the overall size of the house increased from 5228 square feet to 6907 square feet. Mr. Harrigan claims the sum of US$308,676.35, being the difference between the original contract cost of $288,960.00 and the overall cost of $567,500.17 resulting from the changes he said were made by Mr. Twaron and which he says he advanced in the construction on behalf of Mr. Twaron1. It is no longer disputed that extra works were performed. Thus the claim centres around the extra works and payment therefor. Even though the contract was for labour only, the parties operated on an arrangement whereby Mr. Harrigan would on occasion purchase some materials on behalf of Mr. Twaron and obtain payment later. In my view, it is this very loose arrangement which set the stage for the dispute which erupted later and the muddle in which both parties eventually found themselves.

2 Mr. Twaron has counterclaimed for damages for breach of contract for:

• (a) failure to complete construction within the agreed time scale or at all;

• (b) defective work; and

• (c) loss of rental income from the property and generally for inconvenience.

3 Mr. Carrington, counsel for Mr. Twaron, takes issue witl1 the manner in which Mr. Harrigan has pleaded his case and contends that it is a claim in debt only and that Mr. Harrigan cannot now seek at trial to advance his claim on a quantum merit basis or for reasonable remuneration in respect of the extra works, as they amount to two distinct causes of action which have not been pleaded, nor such relief sought. He says that to do so now would be prejudicial to Mr. Twaron as he would be denied the ability to raise and explore a limitation defence where some of thefacts may show that the breach occurred more than six (6) years ago. That part of the Pleading with which issue is taken is Mr. Harrigan's Statement of Claim in which he pleaded at Paragraph 8thus:

"A balance of US$308,676.35 remains outstanding to the Plaintiff, who advanced payment of the costs for the extra work for and on behalf of the Plaintiff

AND THE PLAINTIFF CLAIMS:

The payment of US$308,676.35"

4 Counsel relies on the dictum of Barrow JA in the case ofEastern Caribbean Flour Mills v Boyea2 where at paragraph 43 he said thus:

'""The pleadings should make clear the general nature of the case." … To let the other side know the case it has to meet and therefore to prevent surprise at the trial, the pleadings must contain the particulars necessary to serve that purpose."

5 I think it also useful to cite from the conclusion of the said Judgment where Barrow JA repeated the dictum of Saville J inBritish Airways Pension Trustees Ltd. Sir Robert McAlpine &Sons Ltd3… and echoed by Lord Hope of Craighead in Three Rivers (No. 3):4

"The basic purpose of pleadings is to enable the opposing party to know what case is being made in sufficient detail to enable that party properly to prepare to answer it. To my mind it seems that in recent years there has been a tendency to forget this basic purpose and to seek particularization even when it is not really required. This is not only costly in itself, but is calculated to lead to delay and interlocutory battles in which the parties and the court pore over endless pages of pleadings to see whether or not a particular point has or has not been raised or answered when in truth each party knows perfectly well what case is being made by the other and is able properly to prepare to deal with if"

6 Barrow JA in the saidEast Caribbean Flour Mills case, under the general heading "witness statements", had this to say:

"…there is no longer a need for extensive pleadings ….because witness statements are intended to serve the requirement of providing detail or particulars of the pleader's case. It is settled law that witness statementsmay now be used to supply details or particulars that under the former practice, were required to be contained in pleadings."

7 It is clear throughout the pleadings and witness statement of Mr. Harrigan that what he asserts is that changes were made to the building from the original plans which involved additional work, enlarged the overall size of the building, resulted in delays and which increased the overall costs of the construction over and above the original cost. The Defendant in his amended defence admitted that additional works were done but says this was at an agreed additional cost of US$11, 300.00 in materials and labour.

8 It is clear to me that the real issue in dispute has always been the costs of the additional works. I am quite satisfied that this is the claim that the Defendant knew he came to meet and prepared for and not one of mere indebtedness in which he now seeks to cast the claim. Of note is the fact that the parties jointly appointed an expert to carry out an inspection of the building. The expert's report was seen by both sides and submitted to the court. In carrying out the task assigned the expert compared the actual building on the ground with the original plans and reported not only on whether the building was larger than as set out in the plans but generally reported as to whether works were completed as per the plans. One could hardly see the necessity for such a course if all that was being asserted was the collection of a debt. In my view, the real question in issue for the court's determination, on Mr. Harrigan's case is the costs of such additional works as proved to have been undertaken at the Defendant's request over and above the works set out and covered in the original contract price. Mr. Twaron himself belatedly, in his amended defence, admitted that additional works were undertaken albeit that...