Moore et Al v Smith

• Jurisdiction: Barbados
• Judge: Johnson, J
• Judgment Date: 23 May 1972
• Neutral Citation: BB 1972 HC 4
• Docket Number: No. 43 of 1971
• Date: 23 May 1972
• Court: High Court (Barbados)

High Court

Johnson, J. (Ag.)

No. 43 of 1971

Moore et al

and

Smith

Appearances:

H. Forde for the plaintiffs.

J.S.B. Dear, Q.C., for the defendant.

Contract - Building — Remuneration —

Facts: The plaintiffs, who were chartered architects brought an action to recover an amount due for services rendered to the defendant in connection with a hotel — There was no express agreement as to the amount of remuneration — The issue was whether the sum could be recovered —

Held: That all the relevant facts had to be taken into consideration in determining what remuneration should be paid and the sum claimed by the plaintiffs was reasonable.

1 Johnson, J (Ag.): The plaintiffs, chartered architects, undertook certain work at the request of the defendant in connection with the Blue Waters Beach Hotel and the Rockley Beach Hotel.

2 The following statement of facts is taken substantially from the particulars of the statement of claim:

• (a) the plaintiffs were approached in February 1965, and their appointment as architects was by oral instructions given by the defendant to Mr. Patrick Barnes, a member of the plaintiffs' firm, between February and May, 1965. These instructions were subsequently confirmed and extended by conduct of the defendant at meetings and in correspondence and orally after February 24, 1965;

• (b) At the meeting on February 24, 1965, and subsequently at a later meeting on May 7, 1965, the defendant requested Mr. Barnes to advise him upon:

  • (i) the feasibility of constructing a third floor on the premises known as the Blue Waters Hotel;

  • (ii) the construction of a swimming pool;

  • (ii) the acquisition of an empty lot adjacent to the Blue Waters Hotel and the construction of a block of rooms on it; and

  • (iv) a new wing for the Rockley Beach Hotel.

3 The manner of charging for this work was indicated by Mr. Barnes to the defendant by “Conditions of Engagement” (Exhibit P.B.S) enclosed in a letter dated June 17, 1965 (Exhibit P.B.4) ;

• (c) On February 3, 1969, the defendant orally requested Mr. Barnes, on behalf of the plaintiffs, to advise upon a new project consisting of the extension of the Blue Waters Hotel, and on March 5, 1969, Mr. Barnes submitted the basis for charging the fees for such work. This is set out in Exhibit P.B.17.

4 It is to be observed that these two exhibits (P.B.5 and 17) show that from the outset the plaintiffs made it crystal clear that their charges would be 6 per cent of the total estimated or actual cost of the project and that the charges for the structural engineer and quantity surveyor to be employed by the plaintiffs would be additional and would have to be borne by the defendant.

5 The following is a short list of services rendered and work done by the plaintiffs for the defendant:

• (a) survey of the existing premises;

• (b) consultation with the structural engineer concerning the existing structures;

• (c) estimation of costs through the services of a quantity surveyor;

• (d) preparation in November-December, 1965, of detailed sketch scheme for the third floor proposal and submission of same to the defendant;

• (e) presentation of the scheme to the Town and Country Planning Office and discussions with that office concerning the proposals;

• (f) preparation of drawings and details with respect to the 1969-1970 schemes (thirteen plans were put in evidence). During the course of preparation extensive variations from the original plan were required by the defendant;

• (g) instructing the quantity surveyor, Mr. Kauffman;

• (h) instructing the structural engineer, Mr. Rothwell;

• (i) preparation of detailed bills of quantities by the quantity surveyor;

• (j) preparation of a second bill of quantities.

• (k) negotiations with the Town and Country Planning Office to cover the variation to the facade, and preparation of a set of drawings. This called for particular skill, as the existing hotel was built before the advent of the Town and Country Planning Authority, and because of the rather congested area of the site;

• (l) discussions with Mitchell Construction.

6 After considerable correspondence and several meetings, the plaintiffs on February 2, 1971, issued a specially endorsed writ claiming the sum of $50,476.98 being money due and owing for services rendered.

7 The defendant was given leave to defend and by his statement of defence denied that he was indebted to the plaintiffs in any sum or at all.

8 Two questions arise for determination:

• (1) Did the defendant employ the plaintiffs on the defendant's own behalf or as agent for Barcan Holdings, Ltd., and/or West Indies Hotels Ltd.?

• (2) Was there an agreement for fees in case the work was not carried to completion, or should the plaintiffs only be paid on the basis of a quantum meruit?

9 Mr. Dear, in his closing address, formulated the same questions in the following manner:

• (1) Is the defendant the proper person to be sued; in other words (as Mr. Forde asked in his closing address) who should pay?

• (2) Is the sum claimed reasonable, having regard to the time involved?

• (1) are the plaintiffs to be paid on the basis of quantum meruit or on the basis of an agreement?

10 To determine these questions, it is necessary for the court not only to evaluate the oral evidence but also to examine over sixty exhibits consisting of correspondence, minutes of meetings, quantity surveyor's bills of quantities and several drawings of plans tendered in evidence during the hearing of this case. I would, however, only refer to those I think have a direct bearing on the issues involved.

11 [The learned judge at this stage reviewed the evidence and concluded that it was the defendant with whom the plaintiffs had entered the contract and that he was the proper person to be sued. He then turned to the other question:]

12 I now turn to the second question. It is clear from the evidence that the parties had agreed as I stated earlier that the plaintiffs would charge 6 per cent of the total estimated or actual cost of the project and that the fees of the structural engineer and quantity surveyor would be additional and be refunded to them by the defendant. The total estimated cost was revised from time to time at the request of the defendant. The minutes of the meeting of November 12, 1969 (Exhibit P.B.35) are very enlightening. Present at this meeting were (among others) the defendant and Mr. Pyzer. The addition agreed in principle at this meeting was $766,000. The final items read as follows:

“The clients instructed the architects, quantity surveyors and engineers to proceed immediately with detailed costings of the revised scheme and Mr. Pyzer emphasised the importance of having the work completed for submission to E.C.LC. before month's end. The architect noted again, for record purposes, that the professional fees are included in the package to facilitate the ‘Canadian Content’ factor. The fees, however, do not form part of the contract sum, as this would infer that the contractors were employing the consultants, and would therefore be liable for their fees”.

13 I find that the final estimated cost of the building works was $766,000. The charge of 6 per cent and 2 per cent in the case of the structural engineer and quantity surveyor was based on the assumption that the building works would have been carried out. They have not been. In those circumstances I am called on to decide what would be a reasonable fee for the work done and services provided. The considerations which I must take into account in arriving at a decision on this part of the case are set out at p. 134 of Hudson's Building and Engineering Contracts:

“Amount of reasonable remuneration: In the case of Brewer v. Chamberlain (1949) (which is unreported, Birkett, J., indicated the considerations to be applied in determining the reasonable remuneration to be paid to an architect for services which included the preparation of design and sketch drawings for a building project. Although he was considering the amount to be paid to the architect on a quantum meruit for partial services under clause 2 (e) of the R.I.B.A. Scale of Professional...