Frank Arnold Bento v John Carreiro
| Jurisdiction | Bermuda |
| Judgment Date | 07 February 1997 |
| Date | 07 February 1997 |
| Docket Number | Civil Jurisdiction 1994 No. 318 |
| Court | Supreme Court (Bermuda) |
In the Supreme Court of Bermuda
Richard W. Ground
Civil Jurisdiction 1994 No. 318
-and-
Mr. J. Barritt for the plaintiff; and
Mr. D. Duncan for the defendant
This matter is a building dispute. It arises out of works carried out to the plaintiff's residence by the defendant between January and June 1993.
The background is that the plaintiff wanted certain works doing to his residence. He had some plans drawn, and in September 1992 obtained approval from the Department of Planning (‘Planning’). In evidence he said that he decided to tender the work, and that he approached the defendant on a recommendation and obtained a quotation from him dated 28th October 1992 in the sum of $197,250 (see Exh. P.2).
The plaintiff says that he considered that quotation too high, and he then considered breaking the work down into two components, being—
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(i) the alterations to the house itself; and
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(ii) the construction of a pool and its surrounds.
In the meantime the defendant, in order to persuade the plaintiff of the fairness of his quotation, had the works to the house (omitting the pool) priced by an independent quantity surveyor, who came back with an estimate of $155,133 (Exh. 3), that being ‘… the most competitive price you should consider submitting for carrying out the works …’.
The plaintiff then decided to proceed on the work to the house alone. Following discussions, the defendant confirmed his bid of $130,000 by letter of 8th January 1993 (see Exh. P8). This expressly omitted the pool, and certain other works which had also been excluded from the previous bid and so do not effect the overall picture. The plaintiff accepted that bid.
I find that that acceptance constituted the initial contract. The works were to be done in accordance with the drawings (Exh. P1), and there were no other technical specifications other than what is contained on the four drawings. However, the terms of the original quotations were, in my view, also embodied in the contract and these included—
(i) the price was to include ‘… all materials, labour, supervision to complete the job’; and
(ii) ‘All electrical and plumbing fixtures, windows, doors and hardware to be of average quality, unless agreed otherwise at extra cost.’ [See Exh. P2]
It is apparent from the later quotation for the pool (Exh. P19) that the initial quotation of 28th October contained an element of $67,250 for the pool, which by necessary deduction leaves a price of $130,000 for the other works from the outset. I therefore find that the defendant's original quotation for that part of the work was $130,000, and I further find that the contract price of $130,000 did not represent a reduction on the original quotation.
In view of that, and in view of the correspondence at the time, I reject the defendant's pleaded contention that the agreement for the works to the house was subject to the terms pleaded in paragraphs 2(a)–(c) of the Amended Defence. The further term at paragraph 2(d), which relates to the quality of bathroom fixtures, was a term of the original quotation of 28th October 1992. There would, therefore, have been no sense in making it a condition of reducing the price, and that is another reason for rejecting the agreement alleged in paragraph 2 of the Defence, which in any event does not represent the defendant's case as it emerged in evidence.
The plaintiff says that it was agreed that, because of the defendant's experience and expertise, it was not necessary for him to hire a surveyor or supervisor to review the defendant's work. He says the defendant assured him he could do the work according to the plans. In this context I note that the original quotation was expressed as including supervision (see above). On the evidence I find that the decision to go ahead without a supervising architect was taken because the plaintiff felt that it was not necessary because of the defendant's representations as to his ability, and not (as appeared to be suggested in cross-examination) because the plaintiff intended to fulfill that function himself.
It was agreed that the plaintiff would pay for the works as they progressed. The defendant therefore billed every two weeks for items then completed, and the plaintiff paid. These bills are produced as Exhibits P6 through P14.
There were also additional works which were agreed as they went, and included in the bi-weekly requests for payment. The first of these was for the pool and surrounds, which the plaintiff agreed for a price of $67,250. He says he did this because the excavation equipment for the bay window was creating such a mess that he could not face going through it all again, and so he decided to have it all done at one. The price is confirmed by the defendant's letter of 8th March, in which he purports to ‘… confirm the original contract price that was given to you on 28th October 1992.’ There were then three further agreed extras, all confirmed by letter from the defendant, totalling $18,900, for an overall total of $216,150. Of that the plaintiff accepts that he only paid $213,950, so that (despite the pleadings) $2,200 remains owing. His position is that he was never billed for that. Apart from that there is no dispute but that he paid in full upon presentation all the 10 accounts submitted for a total of $221,563.37.
The amount actually paid is higher than the contract price plus the formally agreed extras, because there were also various additional items which were not confirmed in writing, but which the plaintiff acknowledges were agreed as the work progressed, and which were included in the bi-weekly payment requests. They total a further $7,613.37.
The works commenced on 26th January 1993. The plaintiff says that they were finished in early June, when all seemed well, but problems with the pool plaster soon developed, followed by cracking of the surrounding concrete decking. The plaintiff also says that before the works finished he drew up a list of things not done and requested a credit, and when he showed this to the defendant he became irate and would not talk to him and left. This document is produced as Exh. P21. At that time the total claimed was $3,700.50. From the document it appears that a major item—the pool buttresses—was added in a different ink at a later time, and was not included in that total.
Eventually Mr. Lowry, a quantity surveyor who gave evidence before me, reviewed the works against the plans and he came up with a comprehensive list of what was omitted, and also with some credits for the defendant for extra work done and not billed. The omissions, as pleaded, totalled $16,052.71. The credits were not pleaded, but on the initial report came to $3,780.66 (subsequently revised to $3,581.70). Shortly after the original Statement of Claim the plaintiff added yet more items of complaint (see paragraph 9A of the amended Statement of Claim), totalling a further $5,343.27 (and not the figure of $5,267.27 pleaded).
In the Statement of Claim the plaintiff has also claimed the cost of employing two surveyors to assess the defects and to estimate the costs of remedying them, the major item under this head is for Mr. Lowry, the expert called at trial. I take the view that those sums are not properly claimed as damages, but are part of the party and party costs, and are therefore a matter for taxation. I simply note, en passant, that the plaintiff did not add them into his overall totals in any event.
With that omission, the three heads of the plaintiff's claim total $53,011.76.
The defendant sought to counterclaim various specific items, totalling $10,466, on the basis that—
‘… during the contract he performed the following additional work at the request of the Plaintiff for which he has not been paid.’
However, at the hearing it also transpired that he was seeking further sums which he claimed were due to him in respect of alleged additional costs related to what was substituted for some of the omitted works for which the plaintiff claims. Moreover, in some of the cases where the plaintiff was content to allow him a credit for extra work done, he contended for a higher figure than that conceded. Nothing is pleaded in this respect, but I have nonetheless dealt with these items below.
With that general introduction I now turn to the specific matters raised by both sides. I have listed them in the order of the pleadings, using the paragraph numbers from the amended Statement of Claim and Counterclaim. I have to say that this matter was unduly complicated because the expert departed from that order, and assigned items his own reference numbers. These did not follow quite the same sequence as the pleadings, because of the credits he introduced. Moreover, the evidence was not always led in the pleaded sequence. I simply observe that the purpose of the pleading is to provide a convenient framework for the evidence, and it becomes very difficult to deal with a detailed case such as this if that framework is not strictly adhered to.
The amount claimed is $14,866.42. Mr. Lowry's evidence on this is essentially contained in his supplementary report of 26th February 1996, which is at Exhibit P30. He observed many shrinkage and movement cracks in the surface, which he attributed to a failure to adhere to the plans. According to Mr. Lowry, “slip-sleeve joints” were required in the sub-slab, and “duoflex” joints in the scrccd as shown on drawing # 4. He said that both drawings 1 and 2 call for eight divisions in the screed, but in fact fewer were built and were simply divided with half brick strips, and not the duoflex control joints called for by the plans. He could find...
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