Matthew Holder v Samuel Clarke Trading as JA's Construction

• Jurisdiction: Barbados
• Judge: Madam Justice Sonia L. Richards
• Judgment Date: 07 December 2021
• Neutral Citation: BB 2021 HC 043
• Docket Number: CIVIL SUIT NO. 2059 of 2013
• Court: High Court (Barbados)

IN THE SUPREME COURT OF JUDICATURE

HIGH COURT

CIVIL JURISDICTION

Before:

Dr. The Hon. Madam Justice Sonia L. Richards, Judge of the High Court.

CIVIL SUIT NO. 2059 of 2013

Between

Matthew Holder

First Claimant

Sheron Holder

Second Claimant

and

Samuel Clarke Trading as JA's Construction

Defendant

Appearances:

Ms. Alicia A. Archer, Attorney-at-Law for the Claimants.

Mr. Shane A. O. Thompson, Attorney-at-Law for the Defendant.

DECISION

Introduction

1 This case is an example of friends who enter into a construction agreement without the benefit of detailed written contract terms to address any variations. And the Court is now called upon to determine the rights and/or liabilities of the parties after the breakdown of their business relationship.

Background Facts

2 The Claimants are Husband and Wife. They were good friends of the Defendant who is a building contractor. The Husband is an experienced plumber, and he has worked for the Defendant on occasion in that capacity.

3 The Claimants own land at Lot 31 Blackmans, St. Joseph. Sometime in early 2009, they procured a plan for the construction of a house with two levels on that lot. The Defendant was invited to quote a price for constructing the house. He provided a quotation for approximately $425,212.00, and introduced the Claimants to Pamela King. Ms. King was a branch manager at RBC Royal Bank of Canada (“RBC”).

4 The Claimants were advised that they would not qualify for that level of financing. They returned to the Defendant for a revised quotation. The Defendant agreed to build Phase 1 on the plan for $307,254.00. Phase 1 was limited to one level which excluded the basement.

5 The Defendant provided the following breakdown of his estimate:

“GENERAL SUMMARY

1. Preliminaries (Provisional Sum)	5,000.00
2. Substructure & Basement Floor	37,452.00
3. Basement floor Walls & Partitions	27,790.00
4. Ground Floor Slab	16,318.00
5. Ground Floor & Ringbeam Superstructure	42,512.00
6. Roofing	45,518.00
7. Windows	5,400.00
8. Doors	12,682.00
9. Electrical	14,060.00
10. Plumbing	10,242.00
11. Drainage	9,060.00
12. Water Storage	-
13. Finish — Floors, Walls and Ceiling	53,860.00
14. Painting and Decoration	9,860.00
15. Fittings and Furnishings	7,500.00
16. Concrete Driveway	-
TOTAL COST OF STRUCTURE	279,254.00
Contingencies (Provisional Sum)	10,000.00
GRAND TOTAL (Including Contingencies)	307,254.00
GARAGE NOT INCLUDED IN COST
Ground Floor: 1951 sq. ft. (Phase 1).”

6 RBC offered the Claimants financing based on the revised quotation from the Defendant. By correspondence dated 19 January 2011, RBC informed the Claimants that:

“This serves to inform you that the legal documentation on your mortgage loan has been completed. We have disbursed the amount of $43,000 and paid this sum to Messrs. Yearwood & Boyce in settlement of legal fees made up as follows:-

Yearwood & Boyce	$41,601.29
	1,001.75
Total (See Attached)	$42,603.04

You may commence drawdown of the remaining $311,000.00 under the bridging facility which we provide. Funds will be disbursed to you as follows: -

($43,000.00)	Legal fees & Expenses/
	Balance to Credit Union
$90,000.00	To complete Structure of Basement
	Floor Slab
$51,772.00	Ground Floor/Superstructure
$68,000.00	Roof
$54,000.00	Windows/Doors/Plastering
$47,228.00	Tiling/Finishes
$354,000.00	Total

Please note that your Contractor/Builder has estimated $307,254 while our Quantity Surveyor has noted Construction Cost at $ 325,000. We have therefore made provision for $322,000 along with balance of purchase price of land to Credit Union ($29,000) for a total mortgage of $354,000. However, we have settled up front the legal costs and land loan. Therefore, any cost overruns will be for your account as identified by Savings with Credit union/RBC Savings account.

Interest on the advances will become due on the first of each month and will be deducted from your bank account on the due dates.

Periodic inspections will be made by our valuers during construction and fees associated with such visit will be for your account. On completion of construction, you are required to provide us with a Certificate of Compliance from Town and Country Planning Office and a Final Valuation from Messrs Cooper Kauffman Ltd.” (See Exhibit PK2).

7 Construction commenced in early March 2011. Very soon thereafter the layout of the house was changed. A new plan was subsequently drawn up and approved by the Town and Country Planning Office. The reason for this alteration is disputed, and will be addressed by the Court later in this judgment. (See paras. [18] —[20], [60] -[61] and [87] —[89] infra). Suffice it to say that the Defendant did not produce a revised quotation based on the new plan. Neither did the Claimants approach RBC for additional financing. RBC was made aware of the changes by its quantity surveyor Cooper Kauffman.

8 Over the course of construction, the Defendant received five drawdowns, totalling $301,000, as follows:

• (1) $90,000.00 on 31 March 2011 (Exhibits PK 14 and 16);

• (2) $51,772.00 on 10 August 2011 (Exhibit PK 20);

• (3) $68,000.00 on 10 October 2011 (Exhibit PK 21);

• (4) $54,000.00 on 01 February 2012 (Exhibit PK 22); and

• (5) $37,228.00 on 02 April 2012 (Exhibit PK 23A).

  Prior to the fifth and final drawdown, the parties held a meeting with Ms. King at her office on 21 March 2012. As a result of the meeting the following memorandum was signed by the parties in the presence of Ms. King:

  Final drawdown	$47,228
  Well	$3,000
  Kitchen	10,000 — Minus Countertop
  Doors	1,600
  Electrical	7,000
  Bill	11,000
  Purchase Tiles	10,000
  Misc	4,628
  Total	$47,228

  [The Defendant] to provide estimate for tiles.

  [The First Claimant] to complete the plumbing $10,000

  [The Claimants] have on hand all materials to complete

  plumbing $10,000

  [The Claimants] to show savings of $ 24,000.”

  (See Exhibits SH 7 and PK 23C).

10 The following day, the Defendant provided an estimate for tiling 1800 sq. ft. on the first floor and two bathrooms in the sum of $9,300.00. The Claimants opted to purchase and install the titles. Therefore, RBC advance $10,000.00 from the final drawdown to the Claimants for that purpose. As a result, the Defendant received a final drawdown of $47,228.00, less $10,000.00, or $37,228.00. (See Exhibit PK 23A). The Claimants also produced evidence of credit union savings in the amount of $26,057.30. (Exhibit PK 23F).

11 The Chief Town Planner issued an interim certificate of compliance to the Claimants dated 08 May 2012. And sometime between May to June 2012, the Defendant discontinued work at the site.

The Pleadings

12 The Claimants filed their Claim Form on 28 November 2012. They seek damages for negligence and/or breach of contract, and an account of the monies received by the Defendant to build the house. The Claimants listed a number of defects in the building. They claimed that the Defendant abandoned work on the house and left it not completed and unfit for human habitation. The Defendant is said to have received the full contract price, and that the Claimants paid for some labour and materials.

13 The relief craved by the Claimants is:

• 1. $ 96,191.00 made up of $ 87,619.00 as the estimated cost of remedial work, and $ 9,300.00 for their payments for labour and materials;

• 2. damages for breach of contract;

• 3. damages for negligence;

• 4. interest;

• 5 court fees;

• 6. Attorney's costs; and

• 7. any other relief that the Court deems fit.

14 The Defendant filed his Defence on 26 March 2013. He laid the responsibility for any construction failings fully at the feet of the Claimants. According to him, the Second Claimant was not satisfied with the first plan, and the Claimants procured a revised plan. The second plan required several changes to the original plan and, as a result, was more expensive to build. The Claimants were warned about the increased costs, but failed to return to RBC to procure additional funding. The First Claimant allegedly agreed “to do whatever it takes to build the house”. (Para. 5 of Defence).

15 The Defendant contends that there was no contract for the work that was “finally performed”; and that there was no money to complete the work. (Para. 12 of Defence). The Defendant denied any breach of contract or negligence on his part. There is no counterclaim.

16 The Claimants filed a reply on 06 May 2013. They stated that the plans were revised on the advice of the Defendant. The reason for the revisions was to save costs.

The Evidence

17 The evidence before the Court consists of witness statements and oral testimony. The evidence from the Claimants was supplemented by Sherman Rayside and Colbert Ashby. Ms. Pamela King was summoned by the Claimants to give evidence and produce documents pertaining to the bank loan. In addition to the Defendant, Troy Gill and Michael Alleyne offered evidence on behalf of the Defendant. The Court also heard from two expert witnesses, Matthew Mayers and Henry Taylor.

(1) The First Claimant

18 This witness accepted that the house was not constructed according to the original plan. However, he informed the Court that it was the Defendant who suggested revisions to the original plan.

“The first suggestion was for the land with the excavations, when it was being excavated. We had a site meeting and the Defendant told me about the material in the foundation. There was rock and pockets of mud. He told me it would be better to dig down the whole thing and build from ground; because of what he was seeing he wouldn't want to build on it. The change then was that the other side that was lower would be the same level as the side dug out.”

19 When...