Modder v Worme (T/A B.M.W. Designs and Building Construction)
| Jurisdiction | Grenada |
| Judge | Cenac-Phulgence, M. |
| Judgment Date | 12 June 2014 |
| Neutral Citation | GD 2014 HC 28 |
| Docket Number | GDAHCV 296 of 2012 |
| Court | High Court (Grenada) |
| Date | 12 June 2014 |
High Court
Cenac-Phulgence, M. (Ag.)
GDAHCV 296 of 2012
Ms. Karina Johnson for the claimant
Mr. Ian Sandy for the defendant
Claimant and defendant present
Civil practice and procedure — Application for summary judgment — Whether defence discloses a real prospect of success — Whether summary judgment should be entered were agreement bad or ineffective — Whether the application for summary judgment filed should be dismissed by reason that the Notice of Application does not identify the issues which it proposes that the Court should deal with at the hearing — Application for summary judgment dismissed.
Cenac-Phulgence, M. [AG.]: This decision concerns an application by the claimant for summary judgment to be entered against the defendant. On the 22nd October 2013, when the matter came up for hearing, the Court made an order that the matter be adjourned to 17th December 2013 and the defendant was to retain counsel to represent him and if counsel or the defendant failed to appear on the adjourned date, the application for summary judgment would be determined. When the matter came on for hearing on 17th December 2013, the defendant had retained counsel and filed an affidavit in response to the application for summary judgment on 16th December 2014. The claimant objected to the filing of the affidavit; however the Court felt that since the defendant had retained counsel as ordered, that it would allow the affidavit and permit the claimant time to reply to the affidavit. The court ordered that the claimant file its reply by 31st December 2013 and the parties file and exchange submissions by 10th January 2014.
On 18th July 2012, the claimant filed a claim form in which she claimed special damages and general damages for breach of contract. The claimant's case is that she entered into a written contract with the defendant for the construction of a house (“the work”) for an agreed sum of EC$603,436.65 and that there was a subsequent agreement for extra works for the agreed price of EC$9,388.00. The claimant states that the defendant commenced work in October 2007 and that she paid certain sums of money to the defendant. It is the claimant's case that the defendant was to have completed the house by the end of June 2008.
The claimant says that there were implied terms and conditions of performance of the work and the defendant warranted that (a) he possessed and would exercise all reasonable skill, diligence and competence as contractor in regard to the work; (b) he would exercise all reasonable skill, diligence as a contractor in regards to ascertaining the scope of the work to be carried out; (c) he would exercise all reasonable skill, diligence and competence as contractor in regards to specifications and bills of quantities of materials for the work; (d) for the purpose of such preparations, he would make and carry out all the usual and necessary surveys, examinations and inquiries; (e) he would adequately supervise the carrying out of the work by its employees; (f) he would indicate design defects which would impact upon the contract and (g) he would execute the work with skill and competence in accordance with the Organization of Eastern Caribbean States-Grenada Building Guidelines.
The claimant further avers that the defendant at the completion date, wrongfully, and in breach of the written contract for the work and the said terms, conditions and warranties negligently performed the work and the claimant has particularized all the defects (a) to (p) of paragraph 8 of the statement of claim. Two reports on the work done by the defendant are exhibited to the statement of claim. The claimant says that the house was far from complete when she returned to Grenada in October 2008 and was not habitable. She claims that despite repeated requests both verbal and in writing, the defendant failed to complete and has refused to complete the work. The claimant further avers that she paid the defendant $12,000.00 being part of the retention monies to assist the defendant to complete the work.
The claimant further claims that the defendant reduced the number of workers and failed to supervise the workers who did appear at the work site as he rarely appeared to view the work. The claimant says she terminated the work in December 2008. The claimant says that the work done by the defendant is worth far less than the amount which the claimant paid to the defendant and the claimant has had to employ and pay other contractors to finish the work as well as remedy some of the defects created by the defendant. In addition, the claimant had to incur costs to prepare a report detailing the defects of the work and the work remaining to be completed.
The defendant filed a defence on 19th November 2013 in which he avers that the works described in the contract were significantly altered as a consequence of changes to the drawings and structure of the building requested by the claimant. The changes requested resulted in the building having to be set back from the cliff or sea edge which placed the structure on a different slope other than that envisaged in the contract, resulting in deeper excavations for foundation purposes.
The defendant states that the price quoted for the work was borderline for a project of this nature and was so settled upon based on the claims by the claimant that she was not able to pay more than the sum stipulated in the contract.
The defendant denies any negligence in the performance of the contract and replied to each of the particulars in (a) to (p) in the statement of claim. The defendant's defence consists in the main of admissions of some of the things complained of but says that failure to complete or do some of the work was due either to the claimant not making up her mind as to what she wanted or that the funds had been exhausted by then. In relation to the plastering of the front exterior of the house being incomplete, the defendant says that this was so because the claimant continuously deferred her decision as to what finish she wanted on that part of the building and that the funds had been exhausted by then. As to the tiling, the defendant says the contract provided for tiles on both floors and the claimant requested a different finish to the top floor which he says was done. The defendant denied that there was anything wrong with the main entrance door as alleged by the claimant. The failure to complete closets the defendant says was due to exhaustion of all funds for the project by that time.
The defendant denies the allegations of defective works reported in the report of the engineer which supports the claimant's claim. The defendant says that all structural works had been completed at the time of his departure from the project. The defendant says further that the total contract sum was not sufficient to complete the project and he admits to receiving part of the retention monies from the claimant. The defendant admits to reducing the workforce on project and avers that such a step was necessary when the funds for the project were no longer available and the claimant declined to advance further monies. He says however that his supervisory role on the project continued until the claimant declined to further communicate him.
The defendant admits that the kitchen was not complete at the time of his departure from the project. The defendant denies the loss and expenses pleaded by the claimant and says that the claimant will have to prove these losses. The defendant avers that the claimant is not entitled to the sums claimed nor is she entitled to a quantum meruit reimbursement on the performance of a contract.
The claimant filed a reply to the defence on 25th January 2013. The reply refers to two different designs; one which the claimant says was for a contract price of $499,827.73 dated 12th October 2006 which is not the subject of this action and which was discarded and the other the contract signed on 11th October 2007 for the contract sum of $603,426.65. The claimant says that the house was to have been built according to the October 2007 contract and that there was no re-design. Any alteration was subject to a separate costing and was signed for prior to commencement of the extras. The claimant says that the excavation required was provided for by a signed supplemental agreement. The columns for the deck are at least 18' away from the sea edge and there was therefore no necessity for the building to be setback or for deeper excavation for foundation purposes especially since the house was already built when the deck was added.
The claimant relies on the report of the engineer that the contract price was reasonable for the construction of such a project in 2007 and that at no time did the defendant either verbally or in writing even request further funds of the claimant.
The claimant in her reply responds to each of the answers of the defendant to the defects raised in the statement of claim and denies the averments of the defendant. The claimant says in response to the defendant's averment that the railings were finishing items and that there was no money to complete same, that this was not a finishing item but a safety requirement. In response to the defendant that the fencing was not a contract item and was not provided for, the claimant says it was a contract item and $7000.00 was provided for it.
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