Carlton Construction Ltd Plaintiff v Lennox Taylor Noelina Taylor Defendants [ECSC]

• Jurisdiction: St Vincent and the Grenadines
• Court: High Court (Saint Vincent)
• Judge: Mitchell, J
• Judgment Date: 31 May 2000
• Judgment citation (vLex): [2000] ECSC J0531-7
• Docket Number: CIVIL SUIT NO. 264 OF 1996
• Date: 31 May 2000

Between:

Carlton Construction Ltd

Plaintiff

and

Lennox Taylor Noelina Taylor

Defendants

[2000] ECSC J0531-7

CIVIL SUIT NO. 264 OF 1996

IN THE HIGH COURT OF JUSTICE

Mitchell, J

1 This is a building contract case. The dispute was over extras. By a Statement of Claim endorsed on a writ issued on 4 July 1996 the Plaintiff Company claimed under a contract of 5 February 1995 for agreed extras. It is alleged that the additional work that was requested by the Defendants was as follows:

1	Retaining walls	$13,247.90
2	Front yard slab	$4,927.50
3	Kitchen tiles	$17.80
4	Bathroom tiles	$2,019.60
5	Kitchen cupboards	$1,552.80
6	Extra water tank	$16,090.70
	Total:	$38,356.20

The Plaintiff Company also claims interest at the rate of 121/2 %. By a Defence filed on 9 October 1996 the Defendants claimed that the contract was for $359,100.00. The Defence further claimed that the Plaintiff Company, through one of its principal officers, Mr Glenford Stewart, had stated to the Defendants before the works commenced that the drawings encompassed everything that was necessary. The Defendants denied requesting any extra works. They claimed they did not agree to any extra works. The Defendants agreed that the water tank was an extra. However, they claim that they were never informed that they would have to pay extra for the tank other than the cost of the extra materials for the tank, which under the contract they were responsible for and had paid for and supplied. The Request for Hearing was filed on 21 January 1997.

2 Giving evidence for the Plaintiff Company was Carlton Stewart, a director of the company. He holds a certificate in building construction. He was supported by his brother, Hugh Stewart. Giving evidence for the Defendants were the two Defendants themselves. No other witnesses testified. During the course of the trial, a number of exhibits were put in. These were principally the Agreement, correspondence between the parties, the construction plans, and a number of payment certificates. The Plaintiff Company relied on a letter from Stewart Engineering to the Defendants of 30 November 1995 in which the Defendants were invited to discuss, inter alia, variations on the project. That meeting took place on 2 December and the Defendants rejected any notion of being liable for extras. The Plaintiff Company placed great reliance on the Final PaymentCertificate, No. 33 issued by Stewart Engineering to the Defendants and which Certificate authorised payment of the sum in dispute to cover the extras. The Plaintiff's position is that Stewart Engineering was the agent of the Defendants and not of the Plaintiff. This Certificate from the Defendants' engineer, the Plaintiff Company urges, is binding on the Defendants. The evidence is that the principal of Stewart Engineering is one Glenford Stewart, a qualified engineer, and the brother of the two witnesses for the Plaintiff company. He did not come to give evidence for either of the parties. I can see his difficulty. The Plaintiff's witnesses denied that Glenford Stewart is an officer in their company, and there is no reason to doubt them. I find that while he is their brother, he has his own separate engineering company, and he is not an officer of their construction company. Counsel for the Defendants asks the Court to place little reliance on this Certificate from Stewart Engineering because of Glenford Stewart's relationship with the two witnesses of the Plaintiff Company. Counsel for the Defendants pointed out that extras are mentioned nowhere in any of the earlier certificates, they appear for the first time in this final payment certificate after the Defendants had repudiated the notion of extra work having been done at their request. It is to be noted, however, that this is one of 33 certificates in this project, all the others of which have been accepted and paid by the Defendants.

3 The building contract was doubly unsatisfactory. First, it was a standard form contract, for labour and materials. The evidence was that this contract given to the Plaintiff Company by the Defendants was a labour-only contract. The standard form as used contained deletions in an attempt to make it a labour-only contract. Secondly, the contract contained 3 pages, one page of details of the parties, one page of text, and one page of signatures. From the reference in paragraph 1 of the contract to "the conditions annexed hereto" it is evident that there were conditions meant to be incorporated in the contract that were never shown to the parties. As paragraph 3 of the contract refers to "clause 35 of the said conditions" it is evident that these conditions were intended by the draughtsman of the standard form contract to be quite numerous. No doubt, one reason why theconditions were not produced to the parties and made a part of the contract was that these conditions would have applied to a labour and material contract. This being a labour-only contract, some of the conditions normally attached to this form would have been inappropriate. The form of contract was provided to the parties by Mr Glenford Stewart, the brother of the Plaintiff's witnesses and the engineer employed by the Defendants to be their architect and supervisor of the contract. It would have helped if he had selected the correct form in the first place, and attached the appropriate standard form of conditions to it. One or more of these conditions would have set out the procedure to be followed by the owner, the builder, and the supervisor of the contract, when any variation of the contract was required. If any of these variations amounted to an extra, one would expect to see in the conditions attached to the contract the appropriate procedure for valuing and certifying the extra. Mr Glenford Stewart provided engineering services for the project through his company Stewart Engineering Ltd. Stewart Engineering are not architects. However, they purported to prepare the architectural drawings, and obtained the necessary Building Board approval for the project. The drawings were completely inadequate for the purpose of setting out and encompassing all of the specifications for the project down to the final finishes. There were few specifications incorporated into the drawings, and no lists of specifications appear to have been annexed to the drawings. None of this is surprising given that Stewart Engineering are engineers and not architects. The consequence, however, is that an enormous burden is placed on an adjudicator attempting to sift through conflicting evidence to determine what the intentions of the parties at the time of the making of the contract was as regards extras.

4 The facts as I find them are as follows. This was a particularly large building project for these parties. It was a three story, six-apartment complex. The purpose of this project was to give the Defendants an income by participating in the tourist industry. It was built at La Pompe in the tourist island of Bequia in the Grenadines. The total cost of the building was to be between EC$800,000.00 and EC$900,000.00. The Defendants are not rich people. Most of the money for theproject came from an insurance payout from an accident. The balance of the financing was obtained from a bank. The project site is about 100 yards away from the home of the Defendants. Their windows overlook the site and they passed by it every day. The 1st Defendant is retired and does fishing now, while his wife, the 2nd Defendant, is a businesswoman in Port Elizabeth. The Plaintiff Company attempted to carry out the work set out on the plans to the best of its ability. This was a labour-only contract for the sum of EC$359,100.00. The Defendants were to supply building and other materials as and when ordered by the Plaintiff Company.

5 The first matter of dispute between the parties is a claim made by the Plaintiffs for payment for an Extra Water Tank. There is a difference of recollection between the parties as to how there came to be extra space in the...