Benoit v Drakes (T/A Samuel v Drakes & Associates)

• Jurisdiction: Grenada
• Judge: Pemberton, J.
• Judgment Date: 06 April 2004
• Neutral Citation: GD 2004 HC 11
• Docket Number: 0402 of 1998
• Court: High Court (Grenada)
• Date: 06 April 2004

High Court

Pemberton, J.

0402 of 1998

Benoit

and

Drakes (T/A Samuel v. Drakes & Associates)

Appearances:

Mr. A. John for the claimant.

Mr. A. Gill for the defendant.

Contract - Building contract — Whether works done were additional works — Whether builder discharged his responsibility to account to client for the down payment — Builder's responsibility to perform works in accordance with plans presented — Judgment entered for the claimant.

Pemberton, J.

1 This was one of more challenging cases that I have had to consider. Whilst the facts appear to be straight forward and the issues as identified fall into that category, the evidence took us on a skewered and slippery path.

2 Mr. Benoit and Mr. Drakes, on or about October 02 1997, entered into a construction contract, in which the two gentlemen agreed that Mr. Drakes construct a dwelling house on lands belonging to Mr. Benoit. These lands are situated in Westerhall, St. David's. The contract was reduced to paper containing words and figures and was both hand written and type written. A figure written on the paper was $380,707.00. Ms. June Greasley, drew the plans for the dwelling house and the gentlemen agreed that the construction was to be guided by those plans and drawings. As in all construction contracts the works started and continued for a period. Unfortunate developments in the relationship arose and this led to a stoppage of the works, but not before Mr. Benoit had parted with $78,200.00.

3 ISSUES

The parties narrowed the issues to be tried as follows:

1

Is it the builder's responsibility to perform works in accordance with plans presented? 2. Were the works done by the builder additional works and if so is the Client liable to pay for the works? 3. Has the Builder discharged his responsibility to account to the Client for the down payment of $78,200.00?

4 BUILDER'S RESPONSIBILITY

It cannot be argued that it is the Builder's responsibility to work with the plans as provided. However, if those plans are not workable, that is they do not fit the topography or layout of the land, it is incumbent on the Builder to draw those facts to the attention of the Client and have the plans and drawings adjusted. Mr. Drakes insisted both in his witness statement and in cross examination that he commenced building in accordance with the plans save where there were variations made by Benoit. I only make this observation. Mr. Benoit has not represented to be a man of any specialized skill and knowledge in this area. I should not therefore think it prudent to follow his lead. I therefore do not see how Mr. Drakes, a man of his knowledge and skill could have acted on his instructions. Such action I conclude was to his detriment.

5 WERE THE WORKS DONE ADDITIONAL WORKS?

There is no dispute that there were variations made to the contract, both by Mr. Drakes and Mr. Benoit. Mr. Benoit cannot deny that he called for an alteration of the foundation, when he said that “we agreed that the house should be a further from the road …I suggest that the foundation be lifted up about 3 ft and 2 ft on height of downstairs, However I will still like the rear of the house to be no less than 2 ft above ground (rear of House) without doing any digging…”. It appears that these instructions were confirmed as having been received by Mr. Drakes prior to the commencement of actual works but after he had received the down payment. The issue is whether these variations were effected. Mr. Drakes did indicate in a question posed to him by me that he did not put in the extra two feet of foundation as requested as that information came to him after the foundation had been cast. I believe that evidence.

6 In any event, Mr. Benoit suggests that the construction of the soak away pit and the water tank were additional works which were not commissioned for this phase of the project, that is that these costs were not to form part of the works to be completed using the $78,200.00. When the written document is examined, it appears as follows:

This explains the reason for the sum of $78,200.00 being paid by Mr. Benoit to Mr. Drakes.

TRANSPORTATION	LABOUR	MATERIAL
(1) PRELIMINARIES ….	1,000.00	$5,000.00
(2) SUBSTRUCTURE… SUPERSTRUCTURE	17,173.00	$27,761.00
(3) FLOOR…	10,258.00	$16,982.00
TOTAL		$78, 174.00

7 Mr. Drakes' counter claim detailed what he considered extra work as construction of additional sub structure and construction of water tank. No details were given as to what constituted “additional substructure”....