Christopher Wheatley First Claimant Hazel Wheatley Second Claimant v Waterpoint Caribbean Homes Ltd Defendant [ECSC]
| Jurisdiction | Antigua and Barbuda |
| Judge | Remy J. |
| Judgment Date | 09 March 2011 |
| Judgment citation (vLex) | [2011] ECSC J0309-1 |
| Court | High Court (Antigua) |
| Date | 09 March 2011 |
| Docket Number | CLAIM NO: ANUHCV 2010/0029 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
CLAIM NO: ANUHCV 2010/0029
This is an action for damages for an alleged breach and repudiation of a building contract. The Claimants Mr. and Mrs. Wheatley and the Defendant Waterpoint Caribbean Homes Limited entered into a written contract on June 20th 2008 whereby the Defendant agreed to construct a dwelling house for the Claimants for the agreed price of $805,112.82. Pursuant to the contract, the Claimant made a downpayment of 50% on the date of the execution of the contract. The parties agreed to an extended completion date of August 28th 2009. On or around August 10th 2009, and prior to the agreed extended completion date, the Claimants, by way of letter from their Lawyer, terminated the contract, claiming that the Defendant had repudiated the contract by virtue of its repeated delays in completing the construction. The Claimants further contend that the Defendant also failed to carry out the building works with due care, skill and diligence and in a good and workmanlike manner. The Defendant counterclaimed for damages for breach of contract.
By Claim form and Statement of Claim filed on the 11th January 2010, the Claimants averred that by a contract in writing dated the 20th June 2008 the Defendant company, building contractors, agreed with the Claimants to build a 3 bedroom, 2 bathroom house (the dwelling house) for the Claimants on the Claimants' land at Buckleys Estate at a cost of $805,112.82. The dwelling house was to be built in accordance with the terms of the contract. The contract also provided that the construction of the dwelling house was to be completed within 32 weeks of receipt of DCA planning permission and a 50% down payment on the contract sum.
The Claimants pleaded that in accordance with the contract, the Claimants paid to the Defendant the sum of $394,827.50 on June 21st 2008 and the remainder of the down payment on or about October 10th 2008. That the Defendant received DCA approval for the dwelling house on July 29th 2008 and commenced work by clearing the site on or about July 30th 2008. That the Defendant cleared the site but stopped work for approximately three weeks at the beginning of August 2008 and failed to lay out the dwelling house or proceed with any preparatory work, claiming that the delay was due to a shipment of building supplies being stuck at the port.
The Claimants further stated that the Defendant resumed work towards the end of August 2008 but again stopped work without cause on or about the 2nd September 2008 until about November 2008 when the Defendant began digging trenches for the foundations to be laid down. Further, that, having proceeded with work on the building "in fits and starts", the Defendant put frequent halts on the work throughout November and December 2008 and again during the period January to March 2009.
The Claimants state that the work done by the Defendant included digging out the foundations for the house, building the cistern and constructing portions of the concrete beams specified in the plan. That all of this amounted to approximately 15% of the work required to complete construction. They add that, on or about the 4th August 2009, in breach of the contract, the Defendant ceased any further work, and has wholly failed to build or complete the house, thereby repudiating the contract which they "accepted by letter dated 10th August from their solicitor, or alternatively by the issue and service of the claim herein."
The Claimants alleged that by reason of the Defendant's breach and repudiation of contract, the Claimants had to employ another builder to build the dwelling house at a price of $765,000.00 The Claimants further allege that they have lost the use of the land and the use and enjoyment of the dwelling house. Further, that they (the Claimants) have been put to "considerable inconvenience, trouble and expense" and have suffered loss and damage.
The Claimants further pleaded that it was an implied term of the contract or alternatively, the Defendant warranted that it (the Defendant) would carry out the said work in a "good and workmanlike manner and with proper and sufficient materials." That the Defendant failed to build the dwelling house according to the contract and the specifications, as a result of which the Claimants had to employ an engineer to evaluate the work and also had to employ another builder to repair the defects. As a result, that they have suffered loss and damage.
By its Defence and Counterclaim filed on the 15th February 2010, the Defendant stated that construction activities commenced on or around August 11th 2008. Further, that during the course of digging the foundation for the dwelling house, it was discovered that the soil and terrain were extremely waterlogged. As a result, the Defendant made several failed attempts to pump out water from the foundation area. The Defendant contends that the Claimants were at all times fully aware of the water logged state of the foundation area since they had visited the site in or around October 2008. The Defendant stated that the Claimants were aware that it (the Defendant) was forced to suspend construction activities on or about 2nd September 2008 as, around that time, the effects of the passage of Hurricane Omar resulted in the "water—logged situation" becoming worse.
The Defendant pleaded that the Claimants, without any prior notice, breached the agreement by terminating it with effect from August 10th 2009, and that the Defendant was instructed not to return to the building site as new contractors were being engaged to complete the dwelling house.
The Defendant denied that it repudiated or is in breach of the contract. The Defendant contends that it carried out the building work in a good and workmanlike manner and with proper and sufficient materials.
The Defendant counterclaimed that by virtue of the Claimants' termination of the construction activities and the Claimants' breach of the contract, the Defendant has suffered loss and damage. The Defendant's counterclaim is for the sum of $480,000.00 special damages and for general damages to be assessed.
In their Reply and Defence to Counterclaim filed on the 11th day of March 2010, the Claimants admit that the soil and terrain at the construction site were discovered to be waterlogged sometime in August 2008 and they visited the site in or around October 2008.
The Claimants contend that they consistently expressed dissatisfaction with the progress of work on the building from as early as March 2009. They further contend that,on more than one occasion, they indicated to the Defendant that "they intended to take such legal action as was necessary to protect their rights."
In the Defence to Counterclaim, the Claimants admit that the contract with the Defendant was terminated by letter of Counsel dated August 10th 2009 but deny that this letter was in breach of the contract. They contend that the letter was in effect acceptance of the Defendant's repudiation of the contract. The Claimants further deny that they are indebted to the Defendant as alleged in its Counterclaim or at all.
The Claimants' case was presented through the evidence of the 1st named Claimant, Christopher Wheatley and his two witnesses namely Steven Belizaire and Lucine Hanley.
In his Witness Statement, Christopher Wheatley stated that in early 2007, his wife Hazel and himself purchased a parcel of land in the Buckleys area of Antigua. He had extensive dealings with Ms. Linda Gordon who was then employed as Executive Sales & Marketing Representative of G-90 Building Systems Limited (G-90), the Defendant's predecessor in title. G-90's business operations were eventually taken over by the Defendant, who eventually signed the contract with the Claimants.
Mr. Wheatley stated that they transferred £75,000 to the bank account of the Defendant on the 26th June 2008. That on receipt of the funds by the Defendant, that they received an email from Linda Gordon confirming that the amount converted to $394,827.50 E.C., leaving a shortfall of E.C. $7,728.91 for the required 50% down payment. However, stated Mr. Wheatley, Linda Gordon confirmed by email that this amount could be paid by them on their next visit to Antigua in October 2008.
Mr. Wheatley stated that on 29th July 2009, Linda Gordon "confirmed that DCA approval had been received and work would begin immediately." That in response to his email of 23rd August, Linda Gordon stated that the delay in marking out the ground had been due to a container of building supplies being stuck at the port. That she further stated that following the appointment of a new project manager "work would progress well."
Mr. Wheatley stated that in October 2008, during a return trip to Antigua by himself and his wife, the balance of the 50% down payment was paid to the Defendant. He stated further that his wife and himself visited the site and found that "apart from the land having been cleared of vegetation no other progress had been made." He added that it was during this trip that they first met with Steven Belizaire of Leisure 2000 Limited to discuss the construction of a pool at the rear of the property, and that following their meeting, it was decided that they would "ask Steven to construct other aspects of the property i.e. a retaining wall on the rear building etc."
Mr. Wheatley stated that they were advised by the Defendant that due to problems associated with water at the construction site, conventional methods could not be used and that it was going to be necessary to use...
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