Figureido v Laws
| Jurisdiction | Bermuda |
| Judgment Date | 16 March 2015 |
| Neutral Citation | [2015] SC Bda 21 Civ |
| Date | 16 March 2015 |
| Docket Number | CIVIL JURISDICTION 2011: No 426 |
| Court | Supreme Court (Bermuda) |
[2015] SC (Bda) 21 Civ
In the Supreme Court of Bermuda
CIVIL JURISDICTION 2011: No 426
Ms Lovette Tannock, Christopher E Swan & Co, for the Plaintiff
The Defendant in person
(In Court)
The Plaintiff is a self-employed builder. On or about 29 th June 2009 the Defendant hired him to carry out building works on her property at 1 Tree Lane Drive, Paget (‘the Property’). I shall refer to this job as ‘the Project’. The Plaintiff carried out certain building and plumbing works at the Property. He employed his son to work on site with him. He charged for their work at an agreed rate of $45.00 per hour.
The Plaintiff did not hire anyone else. All the other workers on the site were hired by the Defendant, or by workers whom she had hired. Although the Plaintiff describes himself as a ‘ contractor’, the word is apt to mislead. Apart from his son, the other workers on the site were not sub-contracted to work for him or subject to his supervision. There was one partial exception, but I shall deal with that later in this judgment.
On 5 th October 2009 the Department of Planning (‘The Department’) issued a stop work notice (‘the first SWN’). The Plaintiff gave evidence, which the Defendant disputed, that he submitted a report from a structural engineer named CHB Crisson to address the Department's concerns, following which he understood that the first SWN had been lifted. However it was not in fact lifted at this time.
On 30 th October 2009 the Defendant suspended work on the site. The Plaintiff did not carry out any further work for her. So far as he was concerned, the Defendant had terminated his engagement. In due course the building work resumed under another builder.
On or about 12 th December 2009 the Plaintiff submitted a bill for labour and materials. The Defendant had been chasing him for one for several months. The bill came to $57,520.62. $41,075.00 was attributable to labour (masonry and plumbing labour $29,970.00; electrical labour $11,105.00) and $16,445.62 was attributable to materials (masonry materials $6,232.66; plumbing materials $2,813.73; and electrical materials $7,399.23). The masonry and plumbing work was carried out by the Plaintiff and his son: the electrical work was carried out by an electrician hired by the Defendant whose bills the Plaintiff had paid while the Defendant was off island.
On 10 th March 2010 the first SWN was finally lifted. This was following the submission by the Defendant of report from Jamie Pehkonen of Brunel Engineering Consultants (‘Brunel’).
A further SWN was issued on 12 th April 2010 (‘the second SWN’), in part because work subsequent to the first SWN had allegedly been carried out before that SWN was lifted. This included substantial excavation which had taken place mainly underneath the existing building. In fact the excavation work had been carried out before the first SWN was issued, but had apparently not been noticed by the inspector.
On 14 th April 2010, at the Defendant's request, Gordon Ness, who was the Building Control Officer for the Department, met her on site. Upon arrival, Mr Ness was concerned that the ceilings above the excavation work had not been underpinned, with the result that the building above the excavation was in danger of collapse. He varied the second SWN to allow for temporary supports to be put in place.
On 15 th September 2010 the Defendant emailed the Plaintiff to say:
‘ I will make a monthly commitment of $1,000 per month starting toward materials until such time as I can do better and until all other matters are concluded.’
On 25 th November 2011, in response to a letter before action from the Plaintiff's attorneys, the Defendant wrote back:
‘ When I made a payment to Mr Figureido, he seemed unappreciative of what I was able to afford at the time. During the course of his tenure, I kept asking him for a bill and he never gave me one until months after he had left the site. When I finally received it I had run out of money so I am doing the best I can.
I will resume payments to Mr Figureido to the best of my ability. I have enclosed a copy of my most recent cheque [for $500] sent to him by mail for your information.’
On 19 th January 2012 the Plaintiff issued a specially endorsed writ of summons. This alleged that the Defendant agreed to and did hire the Plaintiff to act as the contractor to provide supplies and perform works at the property; that it was inter alia an implied term of the contract that the Defendant pay the Plaintiff for goods supplied and services rendered by the Plaintiff to the Defendant; and that in breach of contract the Defendant has failed to pay monies due and owing to the Plaintiff. The Plaintiff (or his lawyer) had recalculated the amounts previously billed, and the principal sum claimed in the writ was only $55,041.01. It is common ground that the Defendant has already paid the Plaintiff $1,500.00.
With the leave of the Court, at trial the Plaintiff amended his claim for electrical labour and materials to include an alternative claim in restitution as the claim concerned monies paid to a third party by the Plaintiff on the Defendant's behalf. The claim could also be formulated as arising under a collateral contract.
The Defendant filed a defence dated 18 th May 2012 which was followed on or about 27 th July 2012 by a counterclaim. The precise amount claimed grew as the trial unfolded. Her final position was that she admitted that the Plaintiff was entitled to $26,232.96, of which $10,690.00 was attributable to labour and $15,542.96 to materials. However she claimed a set-off in the sum of $44,104.73. The set-off formed part of a counterclaim for $380,892.15 as the cost of curing the Plaintiff's allegedly defective work and for consequential loss of income, and $1,095,807.00 for what she described as ‘ investment losses’. The net result was that on the Defendant's case she did not owe the Plaintiff money: rather, he owed money to her.
The Plaintiff filed a defence to counterclaim dated 5 th September 2012 in which he denied any liability to the Defendant.
During the course of the trial I became concerned that the costs of the litigation were at risk of becoming disproportionate to the amount that either party was likely to recover. There were various reasons which made the length of the trial, which lasted seven days, unavoidable: the detailed factual inquiry to which the competing claim and counterclaim gave rise; the number of witnesses called; and the fact that the Defendant was unrepresented. Although the thrust of her questions when cross-examining witnesses was always relevant and focused, she took rather longer to ask each question than an attorney would have done.
When the Court adjourned part heard on 25 th November 2014, the Plaintiff's counsel was in the course of cross-examining the Defendant. The Defendant was the final witness. I indicated, pursuant to the Court's duty to manage cases under Order 1A/4 of the Rules of the Supreme Court 1985, that I would expect the hearing to be concluded on the next occasion. To this end, I set a timetable whereby the morning would be taken up with the conclusion of the cross examination of the Defendant and any re-examination; and the afternoon by closing submissions, for which each party was allocated equal time.
That timetable was duly implemented. After the final day of the hearing on 16 th January 2015, the Defendant filed written submissions with the Court in which she expressed concern that she had not the opportunity to make all the points which she had wanted to make in her closing submissions. She stated that she wished through her written submissions to remedy that. The Defendant included a small bundle of material with her submissions, most of which had previously been submitted in evidence but some of which had not.
I invited the Plaintiff, whom the Defendant had supplied with copies of her written submissions and material, to make any representations that he wished regarding that material and whether the Court should have regard to it. However the Plaintiff did not avail himself of this opportunity.
In the circumstances, I have taken into account (i) the Defendant's written submissions, which I have found of assistance; (ii) her revised figures in the Scott Schedule which the parties prepared, although I have declined to admit any new heads of claim; and (iii) material from the records kept by the Department, as these help to put the parties' respective cases into context. I have not taken any other fresh material into account. I am satisfied that in so doing neither party has been prejudiced or given an unfair advantage.
I am further satisfied that both parties have had ample opportunity to make their respective cases and to put all the evidence upon which they wished to rely before the court in a timely manner.
This case turns largely on its facts, so I need spend little time on the law. The Plaintiff's claim and the Defendant's counterclaim are both principally for breach of contract. The Plaintiff contracted to undertake certain building works for the Defendant at an agreed price on a ‘cost and charge' basis. The Defendant is liable to pay the Plaintiff for those works provided that they were carried out in accordance with the contract. The Plaintiff claims that in breach of contract the Defendant has failed to pay him for his work. The Defendant counterclaims for losses which she has allegedly sustained as a result of breaches of contract by the Plaintiff.
As the Plaintiff contracted to provide building services for the Defendant, the contract between them was governed by The Supply of Services (Implied Terms) Act 2003 (‘the 2003 Act’). This means...
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