Sean O'Marde v Glenroy Aska

JurisdictionAntigua and Barbuda
JudgeDrysdale, J.
Judgment Date22 April 2024
Judgment citation (vLex)[2024] ECSC J0422-1
Docket NumberClaim NO: ANUHCV2018/0159
CourtHigh Court (Antigua)
Between:
Sean O'Marde trading as O'Marde & Associates
Claimant
and
Glenroy Aska
Defendant

Claim NO: ANUHCV2018/0159

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Appearances:

Asheen Joseph for the Claimant

Charlesworth Tabor for the Defendant

Drysdale, J.
1

This matter concerns damages arising from a breach of a building contract.

BACKGROUND
2

The claimant's case is that he entered into an oral contract with the defendant to complete an unfinished foundation on his property. However, he was prevented from completing the works resulting in loss and damage. The defendant whilst agreeing that there was a contract for the construction of the foundation attributes blame to the claimant for the disintegration of the relationship and the inability to complete the contract. The defendant also disputed the claimant's entitlement to damages based on inter alia payment received and discrepancies in the receipts for materials purchased for the project.

3

During the trial of this matter the parties agreed that the issue was that of quantum and a judgment on liability was entered for the claimant. The matter thereafter proceeded on the issue of damages. The court is now solely concerned with determining the extent of damages.

THE PLEADINGS
The Claim
4

The claimant is a building contractor carrying on works in the island. He asserts that he was contracted by the defendant to complete the foundation on the defendant's premises in order to facilitate the construction of the defendant's home.

5

The claimant expressed that in pursuance of the agreement that he proceeded with the work and expended money on labour and materials. In a letter exhibited to the pleadings the claimant asserts that he worked for a period of 14 days before he was prevented by the defendant from completing the works.

6

The claimant also admits that he was paid the sum of $10,000.00 which he contends was used to purchase material and for the payment of associated labour costs. He contends however that the said sum was insufficient and the actions of the defendant in preventing him from completing the contract resulted in damages as the monies previously paid did not cover the sum already expended for materials and labour. The claimant computes this loss to be the sum of $27,340.00.

The Amended Defence
7

The defendant admits the existence of the contract and that he commenced work in pursuance of this agreement. However, the defendant contends that the contract came to an abrupt end as a result of threats made by the claimant wherein the claimant specifically states that ‘he was up to his throat and some head will roll.’ This threat the defendant contends, made him uncomfortable in continuing the works.

8

The defendant acknowledges making a payment to the claimant but disputes the amount, claiming it was $15,000.00 instead of the $10,000.00 stated by the claimant. The claimant asserts that the payment was divided into two instalments with the sum of $5,000.00 being paid on 14 th July 2017 and the sum of $10,000.00 paid on 16 th November 2017.

9

The defendant denies that the claimant purchased the materials he claimed to have purchased and instead counters that the only materials purchased by the claimant were some plumbing fixtures and marl which amounted to less than $6,000.00.

10

The defendant disputes the suggestion that the claimant purchased materials on his behalf with his own funds. He asserts that he purchased materials himself or any materials provided by the claimant were paid for by him. Additionally, he claims that he was never provided with receipts or invoices supposedly supplied by the claimant, and that the materials provided were not new.

11

The defendant disputes the claimant's assertion of working for a period of 14 days on the foundation preparation, stating that the work was completed in less than 10 days. He attributes the extended timeframe to adverse weather conditions an, particularly heavy rain and difficulty in accessing the property. Additionally, he states that the claimant's tasks were limited to ramming the foundation with marl and placing PVC fittings, along with installing decking for the cistern which he believes did not require a full ten days.

12

The defendant denies that the claimant sustained any loss and that he is owed monies as claimed or at all.

THE EVIDENCE
13

The parties each filed witness statements or summaries in these proceedings. For the purposes of brevity only the salient information will be explored below.

The Claimant
14

The claimant accused the defendant of breached the contract by not paying for completed work and materials and for failing to allow him to complete the agreed scope of works. The claimant states that despite spending more on material that the defendant only paid the sum of $10,000.00.

15

The claimant deposed that as the defendant was a Driver with West Indies Oil that pursuant to industry standards, he purchased the materials for the job and expected reimbursement upon presenting the bills or receipts to the defendant.

16

The claimant further deposes that he initially retained to extend the columns on the cistern from 3ft to 10 ft deep and states that for this job he was paid the sum of $5,000.00.

17

The claimant denies making any direct threats and asserts that the defendant never reported him to the police for any such allegations.

18

The claimant also denied the assertion that he worked less than 10 days stating that he used his 4-wheel drive vehicle in which he transported all the workers to the job site for 14 days, for which period he compensated his employees.

19

During cross examination the claimant acknowledged that some receipts were not solely for the defendant's materials but included purchases for multiple clients. However, he claimed to have deducted irrelevant expenses when calculating the amount owed. He asserted that mixing receipts was acceptable based on their agreement.

20

He denied knowing about the defendant's need to produce receipts to the bank, and denied giving him only three receipts, stating that he provided all relevant receipts.

21

The claimant revealed that he approached the defendant, stating that he had a foundation problem and needed assistance to complete it. The defendant inquired on when he could start the project and was advised of an immediate start. The defendant then mentioned that he had some materials on site and agreed to purchase any additional materials needed. However, the defendant encountered difficulty purchasing materials and asked him to procure them and instructed him to secure the receipts for reimbursement.

22

During questioning the claimant maintained that despite rainfall during the month of October that the project was not affected as there was no full day of rain that caused them to halt work. He reiterated that rain did not impact the project. The claimant also disagreed with the suggestion that despite having a four-wheel drive that it would be difficult to navigate the area.

23

During re-examination, the claimant stated that he paid the sum of $150.00 for labourers and $250.00 for supervisors for an 8-hour working day. These payments were made in cash from previous jobs where he received payments and had cash on hand. He further admitted that his workers were regular employees and from the group that worked on the project two workers named Courtney and Clarke are both still employed with him.

24

The claimant stated that when he took over the project, the foundation as approximately 30% complete and needed correction for the beam to support the weight of the second floor. He retied approximately 50% of the steel with the correct size, cleaned out the cistern and decked it bringing the floor and the cistern to the same level. He stated further that whilst he did not cast the foundation which was approximately 4,000 sq. ft that he did cast the ring beams for it.

25

The claimant stated that to complete the project, he had to buy stell and hire a backhoe for compaction and marl. Regarding compaction, when he began there was about 8 inches of backfill and he added an additional 12 inches.

The Defendant
26

The defendant amplified his evidence and emphasized that the transaction was fraught with dishonesty by the claimant, stating that there was never an agreement for a start and or end date when they met on site. He stated that the claimant informed him that he was due to start on another project in the east of the island. Additionally, he claimed that the claimant was observed loosening the steel, on the premise that half inch steel was used whereas 5/8 steel was supposed to be used. However, upon consultation with other contractors he was advised that there was nothing wrong using half inch steel.

27

During cross examination the defendant recounted that he met the claimant at a job in the Mount Joy area and discussed hiring him to complete an incomplete foundation. He explained that the previous contractor failed to install four columns as agreed, which were meant to surround the cistern. Therefore, the agreement with the claimant was for him to install these four columns and complete the foundation.

28

The defendant denied that it took the claimant 7 days to install the columns and further denied that he paid the claim $5,000.00 after the columns were installed.

29

The defendant admitted to living a 5-minute walk away from the construction site but denied being aware when the claimant started work on the foundation, stating that he only became aware when his girlfriend called him. He claimed to have allowed the claimant to finish the beams he had loosened but disputed the claimant's assertion of working 14 days, saying that he only met him once on the property. However, he acknowledged that work was indeed being done on the property which he suggests was between 5 – 6 days and which is the reason why he...

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