IN THE HIGH COURT OF JUSTICE Sub-Registry, Tobago BETWEEN AGATHA DAY THOMAS DAY AND ANTHONY HENRY AND ASSOCIATES CO. LTD REASONS

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO CV IN THE HIGH COURT OF JUSTICE Sub-Registry, Tobago BETWEEN AGATHA DAY THOMAS DAY AND ANTHONY HENRY AND ASSOCIATES CO. LTD Claimants Defendant Before The Hon. Madam Justice C. Gobin Appearances: Mr. M. George for the Claimants Mr. S. Ramthahal for the Defendant REASONS 1. The claimants were the owners, and the defendant a contractor, and were parties to a building contract entered into on the 3 rd November 2009, under the terms of which the defendant was to construct a dwelling house for the sum of $614, at Goodwood, Tobago. The completion date was fixed at 20 th April The claimant claimed damages for breach of contract and for defective work including special damages in the sum of $198, particularised as (1) $66, for cost of replacing the roof and ceiling. (2) $87, the cost of putting the building (cost of masonry and materials) in the condition it would have been if works had been properly done by the builder. (3) $7, the cost of the installation of wall stiffeners. Page 1 of 8

2 (4) Cost of remedial works according to the estimate of Frank Phillips - $25, In its defence the defendant denied the allegations of defective works, claimed that there were agreed deviations, that the claimants by their own conduct obstructed the works and that eventually the claimants refused to allow the contractor to complete the works. 4. The defendant included a substantial counterclaim which I dismissed at the close of the evidence because I was not impressed with the credibility of Mr. Anthony Henry, the company s principal and its sole witness. I subsequently went on to order judgment for the claimant and ordered damages in the sum of $122, The claimants case/evidence 5. The claimants filed two witness statements in support of their case, that of Mrs. Day and one of Mr. Michael Bynoe, a partner in the firm of Bynoe Rowe Wiltship. Mr. Bynoe is an architect, who had been asked at some stage to give the claimants advice as to how they should finish what was obviously an incomplete structure and to give an opinion on what he saw when he visited the site. Mr. Bynoe inspected the premises on the 6 th October, 2010 which was about three months after the defendant had left the project. He prepared a report which was tendered in evidence. Several photographs were included in the report. On the face of it they showed a building which was far from complete. He put it at 60% complete. Page 2 of 8

3 6. Mr. Bynoe s evidence was of very limited assistance. While he identified some defects, his evidence fell far short of establishing the case on damages. I did however attach some weight to his opinion that the project was 60% complete when he inspected it and this afforded some assistance on the issue of quantum although a strict mathematical formula would have been obviously inappropriate. The claimant was left to rely mainly on Mrs Day s evidence to establish the defective work as well as the quantum of the claims in damages. 7. On the evidence, I found that the defendant had in fact breached the agreement by failing to complete the works for the agreed price and by rendering defective works. The claimants hired a builder, Mr. Franklyn Phillips, to do the remedial works. Mr. Phillips was not called as a witness, indeed he never gave a witness statement. 8. At the close of the claimants case I indicated that there was an obvious difficulty with the claimants evidence in relation to damages. Indeed I had ruled in the course of the evidence that certain exhibits were inadmissible as to the truth of the contents though their authenticity was not in dispute. 9. These exhibits were attached to the witness statement of Mrs. Day and marked AD 11, AD12, AD13. Mrs. Day annexed them to his witness statement as follows: AD11- copies of receipts for the labour cost and roofing material in the sum of $43, and $23, AD12- true copies of receipts for material and labour evidencing payment of the sum of $87, for repairing the defendant s defective work. Page 3 of 8

4 AD13- Invoice of Mr. Franklyn Phillips as well as receipt made out by Mr. Phillips for $25, for completion of the house. 10. While I ruled these exhibits inadmissible as to the truth of the contents, that did not in my view mean that I could simply ignore them as documents which had been produced by Mrs. Day as real evidence of her having paid or having been invoiced and of her receiving these exhibits from persons. I indicated that I accepted Mrs. Day s evidence that she had indeed paid the sums as reflected on the documents. In the case of the roof works, Mrs. Day produced her returned cheque (AD11) which again established cogent evidence of her payment. In other words, the documents did not stand on their own, their existence and production by Mrs. Day together with her evidence of her having made the payments in the relevant amounts, were sufficient to discharge the burden of proof. The real documents corroborated her viva voce evidence. 11. On the issue of the quantum of damages, at the outset counsel agreed that the completion costs claimed by the claimants would necessarily have to be reduced by the sum that was outstanding to the defendant on the contract with it. At the date of termination the defendant had been paid the full contract price less $50, If the claimant claimed $87, to complete, then the $50, they would have paid to the defendant would have been payable in any case for a completed structure. Parties agreed that on the authority of Mertens v Home Freeholds Co [1921] 2 K.B. p. 526 this was the correct approach. I was therefore prepared to allow $37, to complete the Page 4 of 8

5 structure. Given that Mr. Bynoe had described the building as 60% complete this seemed extremely reasonable. 12. On the 23 rd January 2013 I specifically asked the parties to address the issue of whether the evidence of Mrs. Day had established the extent of the defects and the cost of the remedial works. Even when I was prepared to find that Mrs. Day had indeed paid what was reflected on the documents, there was no admissible evidence as to what exactly she was paying for and whether indeed what was being repaired was what was reasonably required to remedy the defects. 13. On the 26 th April 2013 when the matter was called for decision I reiterated the difficulty I had had with the evidence and indeed my reluctance to simply rule on the matter. I invited the parties to try to speak with a view to arriving at some sort of compromise. It was very clear from the photographs in Mr. Bynoe s report that the claimants had gotten a very raw deal. I urged the parties to try to come up with something that was fair. 14. What ensued was a very open discussion with the attorneys and the Court. For well over one hour we together revisited the evidence, the pleadings. It was accepted that Mr. Henry (the defendant s manager) had himself agreed that in relation to the complaints about the roof, it was sagging. He had sub-contracted it out and was not happy with it. He would have done it over himself. Page 5 of 8

6 15. Since the contractor had agreed, the issue remained whether the sum paid by Mrs. Day was reasonable. She claimed she paid a total of $66, for material and labour. When the parties could not agree, I awarded $35, I did call it nominal and in the context of the amount of the claim and the receipts, I did not consider it to be less so. It was just over 50% of what it actually cost the claimant to replace it, when the defendant agreed it would have to be replaced. 16. I made an award of rental accommodation even in the absence of receipts. While receipts to support the statements might have provided the best evidence, having regard to my assessment of Mrs. Day as a very credible witness I was prepared to make a partial award on the figure she claimed. The sums claimed were not unreasonable nor did the claim arouse any suspicion of fabrication. 17. As to the ground of appeal that the defendant s evidence was rejected in similar circumstances, that is, in the absence of documentary proof, when I did so reject the defendants claims of $75, for clearing lands, $15, for demolition of rocks and benching of foundation, $12, for purchase of water, $54, for rental of equipment, $21, for equipment and plant replacement, it was only consistent with my general unfavourable assessment of his credibility. 18. I did not accept Mr. Henry s version because on the evidence, the parties had entered into a comprehensive agreement to build a house. Here was the contractor claiming outside of that agreement and in the absence of any credible evidence that in a Page 6 of 8

7 telephone conversation, the claimants had agreed to variations which were going to amount to almost 25% more of the construction costs. It was very easy to reject this account. The reason for doing so was not limited to the absence of documents to support his allegation (although there was that), it was, too, that having seen Mrs. Day, and her pattern of communicating via her s, her approach to keeping records, the defendants case of the parties agreeing orally to extensive and costly variations of their original written agreement seemed very unlikely. 19. At all times on the 26 th April 2013 when the final order was made, my approach and I believe that of the attorneys was that the obvious evidential gaps in the claimants case notwithstanding, that we should aim at arriving at a figure for damages which resulted in the justice of what was a hard case. The proceedings on the last date were very informally conducted. The matter was stood down for the parties to look back at their documents and to speak in my absence. Although counsel for the claimant did indicate at a later stage he could not agree to a figure for the roof replacement, he did ask me whether I had a figure in mind. I took this to mean that I could decide what was reasonable even outside of the strict rules and against the general backdrop of the defendant s failure to deliver the structure for which he had been paid. 20. I believed that the spirit in which we were proceeding allowed the Court some greater latitute, indeed I went on at the end to thank both sides for dealing with the assessment in a manner which allowed justice to be done, repeating that had I had to rule Page 7 of 8

8 strictly on the evidence, the claimant would not have had difficulty with recovering damages in that sum for the remedial works. 21. The approach taken by the Court was one which relied on the co-operation of attorney s and their clients, and one which was only adopted because the parties appeared to be consenting. At no time in the proceedings on that morning did counsel for the defendant indicate that he disagreed with the approach or that he would not participate in the attempt to resolve the matter in that way. Dated this 8 th day of October 2013 CAROL GOBIN JUDGE Page 8 of 8