Noel Joseph Claimant v Azariah Russell Defendant [ECSC]

• Jurisdiction: Antigua and Barbuda
• Court: High Court (Antigua)
• Judge: Blenman, J
• Judgment Date: 21 December 2005
• Judgment citation (vLex): [2005] ECSC J1221-2
• Docket Number: CLAIM NO: ANUHCV 2003/0108
• Date: 21 December 2005

[2005] ECSC J1221-2

IN THE HIGH COURT OF JUSTICE

CLAIM NO: ANUHCV 2003/0108

Between:

Noel Joseph

Claimant

and

Azariah Russell

Defendant

Appearances:

Ms E Ann Henry for the Claimant

Ms Stacey Ann Saunders for the Defendant

Blenman, J

1 This is a claim and a counterclaim based on a dispute over a building contract.

2 Mr Noel Joseph (Mr Joseph) is an Antiguan who lived and worked in Japan for several years. He desired to return home to Antigua, to live on his retirement, so he entered into an agreement with Mr Azariah Russell (Mr Russell), a contractor with vast experience to build a dwelling house on land he owned at Weirs Estate in St Georges, Antigua and Barbuda.

3 Mr Joseph required a single storey house, which consisted of three bedrooms. He made arrangements for the contract moneys to be disbursed to Mr Russell over a period of time by the local Barclays Bank PLC (Barclays Bank). They agreed that the contract price of the house would have been $350,000.00 (three hundred and fifty thousand dollars) and that Mr Joseph would have provided the building plans for the house.

4 Mr Joseph contends that Mr Russell breached the agreement they entered into when he failed to complete the house in a timely manner and built an additional floor. Mr Joseph seeks compensation from Mr Russell for the losses that he suffered. He maintains that he did not permit nor agree to Mr Russell's purported variation of the contract. He seeks to be compensated for the alleged breach of contract including hotel and storage costs he incurred for several months.

5 Mr Russell denies that he breached the contract as alleged or at all. He claims that it was Mr Joseph who was at fault and solely responsible for his non-completion of the construction since Mr Joseph failed to pay him the additional sum of $52,517.50, which represents the costs of additional works he did on the bottom floor. Mr Russell submits that the contract was varied with the express consent of Mr Joseph, the latter who reneged on the terms of varied contract, which included an agreement by Mr Joseph to pay Mr Russell an additional sum of $100,000.00. He asserts that the contract price was thereby increased to a new contract figure of $450,000.00. He alleges that he has suffered losses and counterclaims against Mr Joseph for damages in the sum of $52,517.50.

6 The issues that arise for my determination are as follows: -

• (a) Whether Mr Joseph agreed to or authorized the variation of the agreement;

• (b) Whether Mr Joseph breached the contract that he entered into with Mr Russell and is therefore liable to compensate Mr Russell;

• (c) Alternatively, whether Mr Russell is in breach of the contract that he entered with Mr Joseph and is as a consequence liable to him in damages.

Law

7 I find it convenient to deal with the legal principles at this juncture.

8 Ms E Ann Henry, learned counsel for Mr Joseph relied onNurse v. Campbell (1966) 10 WIR 139 together with Mc Gregor on Damages 15^th Ed. (1988) Chapter 25 in support of her contentions.

9 Learned Counsel Ms Stacey Saunders, relied onGilbert and Partners v Knight [1968] 2 ALL ER 248; Moore et al v. Knight [1972] 1 WIR 376 together with Halsbury's Laws of England Fourth Edition Reissue Volume 4.

10 It is the law that if a contractor carries out unauthorized work he is not entitled to be paid in the absence of special circumstances. SeeHalsbury's Laws of England Fourth Edition Reissue, Volume 4(2) paragraph 372. However, if a contractor does work outside of the contract he would be entitled to sue for such work, even though he has not completed the work for which he was contracted, in order to do so he must satisfy the Court that the work was ordered or authorized. Should a contractor or builder abandon the work due to frustrating circumstances occasioned by the fault on the part of the employer, the contractor has a right of action either under the contract or on the basis of quantum merit for work and materials supplied.

11 It is also the law that a contractor will be entitled to recover payment, and will not be liable in damages, if he can show that the non-completion of the work was due to some act or default of the employer.

12 This is a civil matter and the burden of proof is on the balance of probabilities.

13 Each party gave evidence on his own behalf. Mr Joseph and Mr Russell provided conflicting evidence as to terms of the agreement that existed between them. They called no other witness in support of their case but relied on the bundle of documents which they agreed would be utilized in the trial.

14 Mr Joseph asserts that he entered into a lump sum contract (an entire contract) with Mr Russell for the fixed price of $350,000.00 and there was no variation. For his part, Mr Russell maintains that the original contract was varied (with the consent of Mr Joseph) and that the total construction costs are $450,000.00.

Evidence

15 Mr Joseph stated that he worked in Japan for several years. In 1999, he contacted Mr Russell to construct a house for him. They agreed that Mr Russell would construct a single storey three-bedrooms, two bathrooms dwelling house on land situate at Weir Estate owned by Mr Joseph. They discussed the time of completion of the house and agreed that it was to be finished within 6 (six) months. Mr Joseph undertook to send the drawings which he faithfully did. Mr Russell having received the drawings advised Mr Joseph that the drawings could not be used since the Development Control Authority of Antigua (the DCA) would not accept them in as mush as they were not drawn by Antiguan architects. Mr Russell recommended that Mr Butler, an Antiguan, architect prepare the drawings for submission to the DCA to which he (Mr Joseph) agreed.

16 The Butler's drawings having been prepared the parties agreed that the estimated cost of construction would be $350,000.00. Mr Joseph remained in Japan working for the duration of the contract and caused disbursements of moneys to be made through Barclays Bank to Mr Russell in the total sum of $350,000.00; he spoke to Mr Russell by telephone from time to time during the construction of the house.

17 Mr Joseph received certain information that was of concern to him. As a consequence, a series of discussion ensued between them, which concluded with Mr Joseph telling Mr Russell that "even though he was not happy with what he had done as he had so much money for him, he should go ahead and finish the house and that he would deal with the matter when he came down." Mr Joseph insists that he told Mr Russell that he would not be paying for any "extra costs" because the house was not built in accordance with the plan. His brother Mr Lionel Joseph, on his instruction, visited the construction site during the building of the house and communicated with him regularly. Mr Joseph says that, at no time did he agree to have Mr Russell landscape the land. However, around August 2000, Mr Russell told him that the job was coming to an end so he requested that Mr Russell enquire of the cost for back-filling the land and placing topsoil on the land. He later received a letter from Mr Russell in January 2001, which referred to the cost of the landfill and topsoil. During a subsequent telephone conversation with Mr Russell, he told him thathe would pay the invoice when he returned home and saw what he was doing but that he was not prepared to pay him until such time.

18 He advised Mr Russell that he was returning to Antigua and told him the date of his return. On his return home, to his surprise, Mr Russell advised him that the house was incomplete and uninhabitable, when they met at the airport. Mr Russell took him to the house and he observed that the house was not what he expected and was also unfinished. He could not occupy it. He was forced, as a consequence, to live at a hotel for several weeks thereby incurring costs. He obtained the services of other persons to complete the house and incurred additional costs.

19 Until receiving a letter dated 29^th June 2001 from Mr Russell's solicitor, Mr Joseph says that he was unaware that Mr Russell was claiming the additional sum of $50,000.00 for extra construction work that he did on the lower floor, together with the sum of $8,500.00 the latter being the cost of effecting remedial work to verandah, upon his (Mr Joseph's) instructions. Although he telephoned Mr Russell regularly and spoke to him during the construction of the house he never gave him permission to do additional work. Infact, Mr Russell told him that the extra work that he did to the house would be at no cost to him (Mr Joseph). He admits that he did not pay Mr Russell for some of the items he installed in the lower floor or for the construction of the lower floor since he never authorized Mr Russell to do so.

20 Until the filing of the Defence Mr Joseph was unaware of the document listing the "Extras" to which Mr Russell refers, Mr Joseph admits that he did not pay Mr Russell for them. He agrees that he has to pay for some of the items such as the costs of the Butter plan.

21 During cross-examination by learned counsel Ms Stacey Ann Saunders, Mr Joseph stated that he knew Mr Russell for approximately 50 years and had confidence in him. After they entered into the contract, they agreed that any communications in relation to the construction of the house would be by means of telephone or through his brother Mr Lionel Joseph. He maintained that Mr Russell provided the estimate for the cost of constructionbased on the building plans and was sure that Mr Russell had viewed the land at Weirs Estate before providing the estimate, and this is contrary to what Mr Russell was now asserting. He expected, as agreed, that the building would have been completed in 6 months while Mr Russell told him that he (Mr Russell) was going to London for 1 (one) month and he agreed for the work to stop and...