England and Wales High Court (Technology and Construction Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUENN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		25/09/2007

Judge Thornton QC:

1. Introduction

1. Mr Paul Massingham and Mrs Pamela Massingham bought a large detached bungalow in the Wickersley area of Rotherham in September 2004 with the intention of extending it. The Massingham family group consisted, at that time, of Mr and Mrs Massingham, Mrs Massingham's mother and step-father and the Massinghams' six children whose ages ranged from 18 to 3. Mrs Massingham also ran a licensed childminding business from home during the day that involved her looking after at least eight young children. The Massingham family therefore needed to extend the house as soon as possible after the family had moved in by adding a second floor and a smaller extension to the ground floor. The house also needed overall refurbishment. The Massinghams had had no previous experience in planning, design or construction matters. They decided that Mrs Massingham would be responsible for the project, using appropriate technical and professional advice as necessary, whilst Mr Massingham remained occupied by his demanding job as a services engineer.
2. The project was soon started. Mr and Mrs Massingham first arranged finance for the work which they had been advised would cost in the region of £100,000. They had paid about £225,000 for the house but, because they had sold their previous house for a larger sum, they were able to pay all but about £60,000 from the proceeds of sale and a mortgage in that sum was taken out when they bought the house. The Massinghams therefore had little difficulty arranging an extended mortgage facility to cover the anticipated refurbishment cost.
3. Mrs Massingham was introduced to an architectural assistant, Mr Mark Woodhead and he agreed with her that he would prepare plans showing the proposed refurbishment and extension work. This involved converting the house into a dormer bungalow and constructing an extension. The plans were completed by December 2004 and planning permission for the conversion work was obtained soon afterwards. Mrs Massingham then engaged a builder to undertake the work who planned to start work in early February 2005 and to take two months to carry out the part of the' work which required the Massingham family to vacate the house. In consequence, Mrs Massingham found a near-by house for the family to rent and the Massinghams signed a letting agreement for a six-month period starting on 26 February 2005.
4. The builder started work in February 2005 by digging trial holes to enable the strength and nature of the existing foundations to be investigated so that the engineer involved in the dormer roof design could ensure that the proposed extension to the foundations would be able to carry the additional loads created by the new roof. Unfortunately, it was discovered that the foundations were insufficient and that underpinning would be needed. This involved the work stopping whilst additional design work by the engineer was carried out which involved him liaising with the roof supplier. In the meantime, the builder informed the Massinghams that, as a result of the delay, he would not be able to guarantee completing the project in the proposed timescale due to his other commitments. Mrs Massingham began to look for other builders whilst the additional calculations and structural design work was being completed.
5. Mrs Massingham was introduced to Mr Alywn Dale who was the sole director and principal share holder of Safe Safe Homes Limited ("SSHL"). The purpose of the introduction was to enable Mr Dale to provide an estimate for the proposed conversion work and to see whether Mrs Massingham would like SSHL to carry out that work This company had been formed several years previously when Mr Dale had retired from a lengthy career in the construction field and it provided him with enough work to enable him to be semi-retired. The company had a modest turnover of about £500,000 and had already undertaken a number of projects including work on a 50-house housing estate, industrial unit construction and house refurbishment. Mr Dale certainly appeared to Mrs Massingham to be both experienced and knowledgeable in construction matters and to be well able to project manage and undertake the conversion work himself through his company. He informed Mrs Massingham that he would adopt a site-based hands-on role in managing the project.
6. SSHL started initial preparatory and planning work soon after Mr Dale first met Mrs Massingham in early May 2005. Mr Dale advised the Massinghams that they would do better to demolish the existing house and rebuild it using the drawings depicting the roof conversion and new extension work so that the finished house would be identical in appearance to the appearance that the house would have once the proposed conversion and extension work had been completed. Mr Dale based his advice on his view that the overall cost of a new build scheme would be about £30,000 more than the previously envisaged £100,000 for the conversion work. However, Mr Dale advised that the need for underpinning work to the foundations would add significantly to the cost of the conversion work and that this extra cost would not be incurred if the house was completely rebuilt. Thus, the difference in price would not be grate and, in any case, for that additional expenditure, he advised that the Massinghams would end up with a far more valuable house than would be achieved from a conversion. Moreover, the new house could be built within the same six-month timescale as would be applicable for the conversion work. Mr Dale arranged for a financial adviser to visit the Massinghams and he arranged a mortgage on the house for £200,000 to accommodate their existing mortgage and Mr Dale's estimate of the cost of building the new house. After much thought, the Massinghams accepted this advice and also accepted Mr Dale's estimate and entered into a contract with SSHL for the demolition of the existing house and its replacement with a new one to the design prepared for the originally intended conversion work.
7. Mr Dale, on inspecting the plans prepared for the proposed conversion work, assured Mrs Massingham that they were sufficient for use in his proposed construction of a completely new house. Mrs Massingham accepted that advice as well. In consequence, the Massinghams entered into a contract with SSHL to construct their new house for a lump sum of £130,000. The work would take a maximum period of seventeen weeks and would start as soon as the contract was entered into on 2 June 2005.
8. The work did not proceed smoothly and was subject to a number of changes which the Massinghams contend that they did not authorise. The Massinghams eventually gave Mr Dale a written warning in a letter dated 9 October 2005 that time was being made of the essence and that they required the house to be completed by 30 October 2005. The house was not completed by that date and, following further heated exchanges between the Massinghams and Mr Dale, the Massinghams terminated the contract by purporting to accept SSFL's repudiation, caused principally by SSHL not completing the work by the contractual date and also caused by it allegedly breaking the contract in other ways. This termination notice was served on 4 November 2005. SSHL maintained, and still maintains, that there were no grounds for contending that it had repudiated the contract and that, instead, the Massinghams repudiated the contract by their wrongful purported acceptance of SSFL's repudiation.
9. The present proceedings were started by SSFL on 20 April 2006. SSFL's claim was for £30,620, being the alleged outstanding sum due under the contract. Subsequently, SSFL added an alternative claim for the same sum based on a claim for damages for repudiation. This claim was denied in full and it was also met with a counterclaim by the Massinghams for approximately £69,000. This was based on their claim that SSFL had repudiated the contract at a time when the work was unfinished and suffered from a number defects. The claim was quantified by reference to the actual cost of completing and remedying the work save for a number of items of work which remain unremedied. For that unremedied work, the claim is based on an estimate of the current cost of carrying out the work.

2. Procedural Matters

10. Issues. The issues that must now be determined are as follows:

(1) What were the relevant terms of the contract concerning:

(i) The scope of SSFL's work;

(ii) The quality of workmanship and its fitness for purpose;

(iii) The contractual timescale for completion; and the provisions for payment?) Was SSFL in breach of contract by not completing the work by 30 October 2005?

(2) Was SSFL in breach of contract in any other way on 4 November 2005?

(3) Where the Massinghams entitled on 4 November 2005 to treat SSFL's breaches of contract as amounting to a repudiation of the contract by SSFL and thereby to bring the contract to an end or did they repudiate the contract by wrongfully treating SSFL has having repudiated it?

(4) What is the measure of damages by which both SSFL and the Massinghams' claims are to be quantified?

(5) What claims of each party may be quantified and what is the quantified recoverable sum for each of those claims?

11. Issue (5) arises in its present form because the parties agreed that the trial should be restricted to questions of liability and those parts of the defendants' quantum that can be determined without a further trial. The defendants contend that all parts of their claim may be determined at this trial but the claimant contends that the quantification of the defendants' claim should be determined at the same quantum trial that it is agreed its quantum meruit claim should be determined.
12. Initial adjournment. The trial was listed for hearing on 22 November 2006. The trial was adjourned by Judge Hawkesworth QC because SSFL had served on 20 November 2006 a draft amended particulars of claim raising for the first time a quantum meruit claim and, on 21 November 2006, a heavily redacted copy of the contemporaneous site diary kept by Mr Dale on 21 November 2006.
13. Applications to allow amendment and additional evidence. At the outset of closing submissions, the defendants applied to amend their defence and counterclaim and the claimants applied for permission to adduce further written evidence including a further answer provided at its request by the jointly instructed expert. I heard submissions on both applications and directed that I would rule on these applications in this judgment.
14. I have reflected on these applications and I will allow all of them. None of the new pleaded allegations have taken SSFL by surprise, none of the new evidence has taken the Massinghams by surprise and, in any case, given the volume of new evidence that was adduced without protest at the trial, it would be unfair and unduly technical now to exclude this additional material. None of it seriously prejudices the opposing party.
15. Single joint expert. The parties agreed to instruct jointly a single joint quantity surveyor expert to advise on matters of quantum. The joint expert's answers to the questions referred to him by the parties, including a supplementary question raised by SSFL, were adduced in evidence without his being required to attend for cross examination. There was a dispute as to whether or not I could apply this evidence to findings of liability without further evidence as to causation and I must resolve this dispute once I have made findings of liability.
16. Evidence adduced at trial. At the trial, I gave permission for SSFL to adduce a third witness statement from Mr Dale and the witness statements of ten witnesses were adduced in evidence. Eight of these witnesses supplemented their evidence in oral evidence at the trial. This oral evidence included extensive cross-examination of Mr Dale, Mr and Mrs Massingham and of Mr Woodhead, who prepared the architectural drawings used in the construction process, and Mr Keith, an estimator employed by Palgrave Brown (UK) Ltd ("PB") who designed the dormer roof structure and supplied the necessary roof trusses for that design. Mr Keith was called by consent although he had not produced a witness statement. He had been prepared to attend court at short notice at the request of SSFL and he brought to court a witness statement and a number of relevant documents from his estimator's file relating to the order for the Massinghams' house. Four further witnesses called by SSFL were briefly cross-examined. These witnesses were Mr Dale's brother Christopher, Ms Coley, Mr Charlton and Mr Browning and they had each been involved on site during construction.

3. Contract Terms

3.1 Factual Background

17. Mrs Massingham's friend, Mrs Janet Waller, introduced her to both Mr Woodhead and Mr Dale. Mrs Waller is a family friend of the Massinghams. She met Mr Dale through another friend and that contact led to her husband servicing his car. This led to Mrs Waller introducing Mr Dale to Mrs Massingham in early May 2005 since she knew that the Massinghams were looking for a replacement builder following the hiatus created by the need to install underpinning and the consequent cessation of the conversion project.
18. The contact with Mr Woodhead was more ephemeral. Mrs Waller used to make door to door collections for a local newspaper and, at one such collection visit to Mr Woodhead's parents' house, where he was also living, Mrs Waller noticed that he was drawing up plans. She knew that Mrs Massingham was looking for someone to prepare plans for her proposed conversion and, in October 2004, she put the two in touch with each other.
19. Mr Woodhead carried out a measured survey of the bungalow and prepared eight drawings which were submitted to Rotherham MBC for planning and building control purposes soon afterwards. Mrs Massingham had decided on a dormer roof and this intention was shown on Mr Woodhead's plans with a note stating that all roof trusses and joists were to be supplied by a specialist to that specialist's design and detail and that all calculations were to be submitted to building control. The plans also stated that the foundations were to be strengthened using the proposed foundation detail shown on one of the plans. The plan also stated that their overall stability was to be confirmed by calculations prepared by an engineer that would have to be submitted for approval to the building control section of Rotherham MBC.
20. Mr Woodhead was paid £300 for this drafting work which he did using his CAD package. Once he had completed this work, he advised Mrs Massingham that he was unable to do anything more for the project due to his not being a qualified architect and because of his work commitments for his employer, an architect's practice based in Sheffield. This fitted in with Mrs Massingham's intentions because she had planned to leave everything to the builder once appointed.
21. Mrs Massingham first approached PB in January 2005 having been advised that that company was a good supplier of roof trusses. PB prepared a design and quotation to Mrs Massingham based on Mr Woodhead's plans and advised her to consult a structural engineer for confirmation. Mrs Massingham was recommended to approach Mr Andrew Russell, a structural engineer, and it was he who advised that the trial holes that had been dug showed that the bungalow's existing foundations required underpinning rather than the extended footings proposed by Mr Woodhead. Mr Russell also advised on the need for structural steelwork within the roof and his advice led to Mr Keith at PB producing a further costed design of the roof structure. Mr Russell then again contacted Mr Keith at PB to inform him that the position and layout of the stairwell had to be changed as a result of the earlier structural design changes and, on 9 May 2005, he forwarded to Mr Keith further information to enable a further costed design to be produced.
22. Mrs Massingham was only involved in these contacts between engineer and truss manufacturer as a go-between. She had no input as to the decisions as to the design or detail of the trusses, steelwork or foundations. She also had no input as to the co-ordination of the details shown on the plans, the engineer's calculations and the roof truss supplier's design and calculations. Responsibility for this overall coordination would fall to the builder once it had been appointed.
23. Mr Dale first met Mrs Massingham at a meeting at their house on 3 May 2005 at a time when Mr Keith at PB was still working on PB's third costed scheme for the roof trusses. At their first meeting, which Mr Massingham also attended, the Massinghams explained to Mr Dale that they had decided to put off the conversion and renovation work for a year and give notice to the landlord of their intention of quitting the rented house nearby where the Massingham grandparents and two eldest children had temporarily move to. When the project was restarted, the Massinghams would use the existing plans and details prepared by Mr Woodhead, Mr Russell and Mr Keith.
24. Mr Dale first assured the Massinghams that he had the necessary experience and expertise to complete the proposed conversion work. He also assured them that he could and should take over from Mrs Massingham the role of liaising with the engineer and PB. He was told that the Massinghams would not be using Mr Woodhead and he assured them that there was no need for them to use an architect or other professional because he was fully capable of doing everything necessary to complete the project. Mr Dale left taking with him copies of all plans and other documents held by Mrs Massingham.
25. At that meeting and at further meetings with Mrs Massingham over the next few days, Mr Dale advised her with some insistence, that the Massinghams should continue with their scheme immediately and without delay, should transform it from a conversion and refurbishment scheme into a new build scheme to the same designs and should consult with the financial adviser he introduced them to in order to borrow the £130,000 he would charge for his proposed new build scheme. He also assured them that the whole scheme could be completed in about four months by the end of August having been left in no doubt that the Massinghams would not proceed until the following year if the scheme could not be completed within that timescale. The Massinghams did not want to renew the lease of the rented property nearby nor to continue living out of their house for any longer period.
26. Mr Dale also offered, during the course of these discussions, to buy the whole site, which included a sizeable garden, for £500,000 or to buy the garden to enable him to build a further house there. The Massinghams rejected both offers. It was probably at this meeting that the three agreed on the cost of the work. Mr Dale put forward a figure of £130,000 which would cover, he assured them, the entire work needed to demolish the existing house and rebuild it in accordance with the drawings showing the proposed conversion and refurbishment. He stated that he would not ask "for another penny". The Massinghams accepted, assuming that there would be included within that lump sum the cost of supplying and fitting a new kitchen and a new conservatory. The existing house had a conservatory on the back leading out of the sitting room.
27. Due to Mr Dale's successful persuasion, and after much discussion amongst themselves after this meeting, the Massinghams wrote to Mr Dale on 22 May and informed him that they would be happy for him to carry out the proposed alterations to their house. The letter invited Mr Dale to draw up a contract to include a plan of events and payment details. This letter was immediately followed by all three signing a further document also dated 22 May 2005 which provided that the Massinghams confirmed Mr Dale's appointment as their chosen builder for the conversion/demolition and rebuild of their bungalow as per the plans/amendments as agreed.
28. Mr Dale, on the following day, submitted to Rotherham MBC a further planning application for the demolition of the bungalow and for its complete rebuilding using the plans previously prepared by Mr Woodhead and previously submitted for the more limited application for planning permission for the extension work to the existing bungalow. Mr Dale's evidence was that this application was submitted at the suggestion of the planning officer when he contacted him on 23 May 2005 in order to ascertain whether a new application was required and on learning that it was. I accept Mrs Massingham's evidence that Mr Dale never informed her that he had submitted this application or that planning permission was required or that, according to Mr Dale, it would take six weeks to obtain and that, pending its receipt, no demolition or reconstruction work should commence. I also accept Mrs Massingham's evidence that had she been informed that there would be a six-week delay in starting work on 23 May 2005, she would have decided there and then to put back the work until 2006.
29. Mr Dale also made contact with Mr Keith at PB by telephone on about 23 May 2006. According to Mr Keith, Mr Dale telephoned him at that time and advised him that he had taken responsibility for building the new house and that he would be dealing with the Massingham's truss order and would act as the point of contact with PB for that order from that point in time. He also informed Mr Keith that he would require a technical site visit from PB to site to carry out final dimensional measurements on the walls once they had been constructed. He finally asked Mr Keith to transfer the order for this job from the Massingham's name into the name of SSHL since that company would be ordering the trusses and making payment for them. Again, Mr Dale did not inform Mrs Massingham that he had made these arrangements with Mr Keith.
30. At some stage in late May 2005, Mr Dale had a meeting with Mrs Massingham at which he discussed his requirements for stage payments towards the overall quoted lump sum of £130,000. He produced a draft payment schedule which provided for an initial advance payment of £60,000 to be paid when the contract was entered into. This seemed an unduly large payment to the Massinghams and Mrs Massingham telephoned Mr Woodhead and asked him whether he could come round and give them advice on the subject. He gave evidence that he went round to the Massinghams' house and advised them that an up front payment was excessive, that they should, if possible, avoid advance payments altogether and that the schedule of payments should be rear-loaded with the higher sums of money being paid to the builder towards the end of the work. Based on this advice, the Massinghams drew up a rival schedule which provided for a smaller advance payment and loaded payments towards the end of the programme which Mrs Massingham agreed with Mr Dale in a discussion that took place on 1 June 2005. This discussion took place at the Massinghams' house and occurred because he arrived without prior notice at the house to enquire whether the Massinghams had agreed his payment schedule. Mrs Massingham gave him her schedule and, according to her, after a brief discussion, Mr Dale agreed to that revised schedule.
31. Mrs Waller was present in the house during that meeting and her written evidence suggests that she heard much of the conversation and her recollection of what was said, although she does not directly refer to Mr Dale's agreement to the payment schedule produced by Mrs Massingham, nonetheless supports Mrs Massinghanr's evidence on that matter.
32. Mr Dale produced two documents at this meeting which he went through with Mrs Massingham. The first document he produced was one entitled "Time Scale for Completion of Works" which showed the proposed work broken down into seven stages with a block of time allocated to each stage. The total period, if each stage's allocated period of time was added together, provided a period of 12 weeks. Mrs Massingham agreed this period and Mr Dale wrote "12 weeks" on the bottom of the document. Mr Dale agreed with Mrs Massingham that he would start straight away and that, in consequence, the first stage payment, described on the agreed schedule produced by the Massinghams as "Advance - £30,000", would be paid immediately. This was because, by necessary implication, the advance payment would be made immediately before work started as a condition precedent to the start of work and, as soon as it was paid, that payment triggered the contractual start of work from that moment.
33. Mr Dale assured Mrs Massingham that the work would be completed within 12 weeks. Mrs Massingham then queried again whether she could rely on that assurance since she had ten family members to consider and she needed to make arrangements to extend the let if the family could not move into the new house by the end of August. Mr Dale confirmed that the most that would be needed would be an extension of that let until the end of September. He did this by stating that "at the very least, you will be back in your property by the end of September", which is a period of 17 weeks and 1 day from 2 June. He did not provide any explanation as to why he was providing such an assurance when the 12-week period he had agreed to would provide for completion by 25 August but, in context, Mrs Massingham reasonably understood that to mean that she would be prudent to extend the let by one further month even though he intended to, and was offering to, complete within 12 weeks..
34. In answer to questions that Mrs Massingham then asked, Mr Dale then informed her that he would take care with any required planning application for the new build and that the planning application would not hold up completion of the work.
35. The second document produced by Mr Dale was one entitled "Description of new build materials". This set out a list of materials to be used and amounted to a rudimentary materials specification. Mr Dale also produced the plans that had been prepared by Mr Woodhead and stated that these plans would form part of the contract. Included on these plans was a detailed specification.
36. The meeting then discussed three particular items. The first was the fitted kitchen which had not been included in the list of new build materials. Mrs Massingham asked for confirmation that this would be supplied for the £130,000 but Mr Dale, to her surprise, stated that it was not and that Mrs Massingham could not expect a kitchen to be provided within an overall price of £130,000. However, he stated that if the Massinghams supplied the new kitchen, he would fit it as part of the agreed lump sum. This apparent retreat from the agreed lump sum was very disturbing for Mrs Massingham and she was very nearly tempted to withdraw from the proposed contract since she regarded this volte face, as she saw it, as an indication of Mr Dale's unreliability. However, she reluctantly agreed to the solution, which was written on the materials schedule by Mr Dale, that "kitchen provided by client, fitted by contractor".
37. The second further item discussed was the fitted cupboards shown on the plans. Mrs Massingham asked for confirmation that these were included in the lump sum and this was confirmed by Mr Dale who wrote "built in store cupboard/wardrobes by contractor" on the materials schedule.
38. The third further item discussed was the supply and fitting of a new conservatory. On Mr Dale's materials schedule, he had typed "reuse existing conservatory on site". Mrs Massingham asked Mr Dale what had happened to her new conservatory to which Mr Dale replied that it was being left on site so that the work would technically not be a new build job. However, when Mrs Massingham protested that she did not expect an old conservatory to be placed on a new house for the money that the Massinghams would be paying Mr Dale, he informed her that he would reuse the existing conservatory so long as it would come apart easily and could be satisfactorily reused but that, if it did not come apart or could not be satisfactorily reused, he would fit a new conservatory within the agreed price of £130,000. He then wrote on the materials schedule "conservator. ?" (sic). He explained to Mrs Massingham that what he meant by that shorthand was that he didn't know whether he could reuse the existing conservatory, as stated in the document, so that a new conservatory would be provided if the old one was not capable of satisfactory reuse.
39. Mrs Massingham then agreed to a contract with all these components included within it and stated that she would pay Mr Dale his advance payment the following day to enable work to start immediately.
40. On 2 June 2005, Mr Dale again visited the Massinghams' house and hand-delivered a letter which stated:

"Following liaison with local authority planning/building regulations, architect, calculations from roof truss manufacturers, water board and local neighbours for support to the above project, laying of new water supply.

SCHEDULE OF WORK

We will use the plans supplied by your architect, Mark Woodhead, as the basis of our joint contract.

Following the grubbing out of trees in preparation for the boundary fencing, to be supplied by others, on a date imminent and convenient for both parties we will start the demolition process and new build."

41. The letter had attached to it a retyped version of the Description of new build materials document without the manuscript amendments agreed the previous day and the Time Scale for Completion of Works document which was the same as the previous version agreed on the previous day with the following words added:

"Allow four weeks for possible late deliveries of materials and inclement weather conditions".

42. This caused Mrs Massingham yet further consternation. She again reminded Mr Dale that during the work that part of the family would be living in rented accommodation, where the rental period ran out at the end of September, and the rest of the family would be living in a caravan which had been bought specially for that purpose and would be located on the site. Mr Dale persuaded Mrs Massingham to agree to this further additional provision to the contract on the strict understanding that work would start straight away and would be completed within an absolute maximum period of 17 weeks.
43. Mrs Massingham accepted the contract on that basis. It followed that the contract documents were the letter of 2 June 2005, the ten drawings prepared by Mr Woodhead, the Engineer's drawings, the PB drawing and calculations, the payment schedule agreed the previous day, the description of new build materials document and the Time Scale for Completion of Works document. The description of new build materials document annexed to the letter was to be read as if the manuscript amendments agreed the previous day were applicable to it because these amendments amounted to an agreed statement as to how the document was to be interpreted which the parties clearly intended to apply to the document when retyped in the same words and added to the contractual letter of confirmation. However, the amended version of the Time Scale document agreed on 2 June 2005 was to be regarded as the applicable document since Mrs Massingham and Mr Dale specifically agreed to this late addition to the document becoming a contractual provision.
44. Mrs Massingham then went to the bank and drew out £30,000 and gave this sum to Mr Dale. Given the agreement that work would start as soon as the advance payment was made and would take no more than 17 weeks, that meant that the first day of the contract was 3 June 2005 and the date for completion was 17 weeks later, the 29 September 2005. In fact, Mr Dale had made a start of work on 27 May 2005 when he arrived on site with two men and a JCB and started to take down all the trees and the fencing to the front and side elevations of the bungalow. They also cleared the stone retaining wall to the drive and moved pebbles off the drive. A trench was also excavated so that the gas mains could be located. This work involved removing debris and excavations sufficient to fill two ten ton lorry loads of material.
45. It is necessary to make a finding as to whether a further document formed part of the contract since the document in question was a payment schedule which was different from that agreed on 1 June 2005 and was put forward by Mr Dale in evidence as the payment schedule which was agreed to govern the contract. This payment schedule had not been seen by Mrs Massingham, according to her evidence, until it was disclosed by Mr Dale during the course of these proceedings. The relevance of this schedule is that it provided for a less end -weighted series of payments for the fourth, fifth, sixth and final payments. It is clear from the documentary, written and oral evidence, particularly that of Mrs Massingham, that this schedule was never shown to her or agreed to by her. Mrs Massingham's evidence was, throughout, clear, honest, accurate, consistent and invariably corroborated by other reliable evidence whereas Mr Dale's evidence was often confused, frequently trimmed to seek to accommodate difficulties in his case and often contradictory. In those circumstances, I reject his evidence that this alternative payment schedule was a contract document and, instead, make a finding that it was never shown to Mrs Massingham at any time prior to discovery in this action.

3.2 Scope of SSHL's Work

46. Overall scope of work. The overall scope of the work required SSHL to demolish the existing bungalow and foundations and rebuild the house shown on the various documents referred to in the contract letter or incorporated by agreement into the contract. All this work had to be constructed so that it conformed to the relevant building regulations and other statutory requirements and subject to the overriding requirement that the finished product resembled the planned converted and renovated house so far as was reasonably possible. This last requirement arose from the agreed purpose of the contract and by necessary implication derived from the circumstances leading to the agreement that SSHL would demolish and rebuild rather than convert and renovate using the identical plans to those originally prepared for the conversion scheme.
47. There were two possible areas of difficulty concerned with the identification of the full scope of work that SSHL had to undertake as part of its obligation to complete the contract for a lump sum payment of £130,000 payable in defined instalments as work proceeded. These were as follows.
48. Provisional or inadequately defined work. Some of the work, such as the foundations, the structure of the roof and the conservatory, was inadequately defined in the contract documents. For example, the foundations were to be constructed "to suit the ground conditions" and so as to "comply with approved document A part 2E of Building regulations 2004" and the roof structure was to be constructed with "prefabricated trusses to specialist design and detail, at max 600 mm centres designed in accordance with BS5268 part 3 1991". The contract made no provision for provisional or inadequately defined work in the form of provisional sums or items but merely, and unusually, provided an overall lump sum for all work.
49. Necessary but ill-defined work. A construction contract is subject to two overriding principles which are applicable unless varied or excluded by express terms of the contract. These are that a builder, as part of its overriding obligation to complete the work, must carry out without additional payment all work necessary to enable the overall scope of work to be completed even if that work has not been defined in the contract documents and must undertake all work needed to overcome any obstruction or unforeseen eventuality that must be overcome in order to complete the work. Thus, additional trusses or trusses of an unusual construction that might be required by the manufacturer's design or work needed to erect a conservatory similar in design to the existing conservatory and the cost of such a conservatory would have to be provided for without additional payment if the existing conservatory could not satisfactorily be reused.
50. Building regulations. The building regulations provide that the builder must, in constructing a new dwelling, comply with the building regulations. Since the original plans were prepared for a conversion and refurbishment contract, they did not need to detail various items of work that would be required in a new building but not required as part of refurbishment work. An example of such an item was a ramp allowing for wheelchair access into the house, a requirement for newly built houses imposed by the provisions of the building regulations relating to disabled access. Such work was necessarily to be implied, formed part of SSHL's overriding obligation to complete and did not qualify for additional payment as a result of the unqualified lump sum nature of the work. This work was required of SSHL although not detailed on any drawing nor expressly specified in any contract document.

3.3 Quality of Workmanship and Fitness for Purpose

51. SSHL had an obligation to use reasonable skill and care in constructing the house so as that the house when completed was habitable. It also had an obligation to use all reasonable standards of workmanship. Finally, it had an obligation to carry out the work so that it was fit for its purpose, namely so that it reasonably resembled the original house in its proposed converted state. These obligations arose as a result of the provisions of the Defective Premises Act and by necessary implication.
52. The particular relevance of the implied term of fitness, applied in the context of this contract, was highlighted by Mr Woodhead's evidence. He explained that the original drawings had been prepared for a conversion project and not for the purposes of a new build contract. Furthermore, the drawings were outline drawings and did not depict the elevations of the existing ground floor. Ordinarily, for a new build contract, a further set of working drawings to a larger scale would be prepared which would coordinate the architectural features shown on the plans with any structural or other details produced by the engineer or specialist roof truss supplier. These drawings would also show the necessary elevations which would have entailed, on this contract, a fully survey of the dimensions of every feature of the original building so that those precise dimensions could be incorporated into the working drawings.
53. SSHL should have provided such additional drawings or have commissioned them since they were necessary to enable the finished product resemble the original building. If SSHL had not intended to shoulder this obligation, being part of its obligation to construct a house that was fit for its purpose and its overall completion obligations, it should have qualified the contract so as to exclude this obligation or so as to provide for additional payment incurred by its commissioning such drawings and details from someone else. The Massinghams had no obligation to instruct an architect to undertake this work unless this obligation had been agreed and incorporated into the contract. This is because Mr Dale had agreed to undertake all co-ordination work, to manage the project and to fulfil the overriding obligation to complete the house so that it was fit for its purpose without any additional payment in excess of the agreed lump sum.
54. In a number of respects, the house as constructed was not fit for its purpose. For example, the support beam between the lounge and the conservatory is too low so that there is less than 2100 mm clearance between the underside of the beam and the floor. This is unsightly, impracticable and produces a detail which was not found in the original lounge. The detail arose because the relevant drawing had been prepared for a conversion project whereas a revised working detail to accommodate the wall plate for the new building in a way that allowed a greater clearance was needed.

3.4 Timescale for Completion

55. The contract, as entered into, required the work to be completed by 30 September 2005. There was no provision for an extension of time to accommodate factors outside the control of the Massinghams that arose to delay the work. Thus, delays caused by the need to await planning approval or by inclement weather or additional work not planned for but necessitated by the instructions of the building inspector or so as to enable compliance with SSFL's overriding obligation to complete the works had to be accommodated within the 17 weeks allowed for or, if they took the contract over 17 weeks, would constitute a breach of contract. If delay was caused because the work was varied or altered at the request of the Massinghams, that delay could not amount to a breach of contract and, indeed, would result in the contractual obligation to complete by 30 September being replaced by one to complete within a reasonable time. This would have been the consequence of the absence of extension of time provisions in the contract.
56. It is noteworthy that the programme or timescale of work set out in the timescale document, such as "roof construction two weeks", did not impose additional contractual obligations on SSFL. These timescales were illustrative and related to phases of the work which would, in practice, overlap. SSFL's obligation was to complete within 17 weeks. Built into that period, SSFL had provided for some delay on site arsing from the late delivery of materials and inclement weather. However, the effect of that was that SSFL had to complete within 17 weeks and that that obligation included any delay of up to 4 weeks that was caused by the late delivery of materials or inclement weather, If that allowance proved to be insufficient, the additional delay that resulted was at the risk of SSFL since there was no extension of time machinery and that delay would not have been caused by the Massinghams. Any delay for which the Massinghams were not responsible which arose from extraneous causes, such as inclement weather or delays caused by the planning application process, were at SSFL's risk, albeit that up to 4 weeks' delay from such causes was provided for in the agreed 17-week contract period..

3.5 Payment Provisions

57. The contract was an entire contract which provided for payment of a lump sum in seven defined instalments each payable as soon as a particular section or part of the work was completed. An entire contract is one where the contractor is not entitled to any payment until it has achieved substantial completion of the work. The instalment provisions of this contract had the effect of turning the contract into, in effect, a contract with seven separate entire stages. Payment for any stage would only be required when that stage was substantially complete and, if any stage was never substantially completed, no payment towards the relevant stage payment would become due.

4. Was SSFL in breach of contract by not completing the work by 30 October 2005?

4.1 Introduction

58. SSFL made no effective start on site, following the one day of activity in site clearance on 27 May 2005, until Wednesday 13 July 2005. That was, according to SSFL the first day of work on the contract. According to SSFL, the parties agreed that the contract period would not start until 5 July 2005 and that the Massinghams then prevented the start taking place for another 7 days as a result of their failure to clear the old house of all their belongings. The Massinghams contend that the first day of work was, or was contractually to be taken to be, 3 June 2005, the day after the contract was entered into and the advance payment was made. SSFL then contend that there were a number of delaying events which entitled them to extend the date for reasonable completion of the work so that the contractual date for completion was sometime after 30 October 2005. Because there was no extension of time provision in the contract, these delays, which were not at SSFL's risk and were at the Massinghams' risk, were ones that set time at large. SSFL's obligation was, when that occurred, to complete within a reasonable time and a reasonable date for completion was some time after 30 October 2005.

4.2 Contract Start Date

59. It is clear from the evidence that Mrs Massingham agreed with Mr Dale on 1 and 2 June 2005 that SSFL would start work as soon as the advance payment was made and the contract had been entered into. This would in any case be implied from the wording of the contract. This provided for an advance payment and for a 17-week contract period. No specific words identified the start date but, given the surrounding circumstances, this was clearly intended to be forthwith after the contract had been entered into. Moreover, it is to be inferred from the fact that £30,000 was to be paid as an advance payment, that that payment would immediately precede the start of work and no further event or agreement was necessary. An indication that work was to start at that time was provided by the site clearance work undertaken by SSFL on 27 May 2005. SSFL would only have undertaken this work if the contract start date was imminent.
60. Mr Dale contended in evidence that it had been agreed that the start of work would be postponed until after planning permission was obtained, or at least provisionally notified by Rotherham MBC. I cannot accept this evidence. Firstly, Mrs Massingham disputes that there was any such agreement and also contends that Mr Dale informed her that she need not worry about obtaining planning permission, any application for a second planning permission would not delay the start or completion of the work. I unhesitatingly accept Mrs Massingham's evidence. Secondly, any agreement to postpone the start of work until 5 July 2005 could not have been reached with the obtaining of planning permission in mind. Planning permission would not be expected until much later in July and, in any case, Mr Dale only learnt that planning permission would be forthcoming in a telephone call to the Planning Officer on 8 July 2005.
61. Thirdly, the contract is silent about a delay in starting work until after planning permission had been obtained or even intimated. This delay is not to be implied since any delay caused by a delay in obtaining planning permission can readily be taken to have been built into the 17-week period. Indeed, the reason for Mr Dale's change of mind between the 1 and 2 June, when he increased the agreed 12-week period to the contentious 17-week period, is probably explained by his wish to accommodate the delay he knew, but Mrs Massingham did not know, would occur as a result of the absence of planning permission which he did not expect until late July. The suggested reason for this enhancement of the contract period that it was to accommodate inclement weather and materials' delays, was probably a cover for the real reason for this change. Thus, the 17-week period was to be taken as having started on 3 June 2005.

4.3 Causes of Delay

62. Delayed vacation of house. Mr Dale suggested that the Massinghams should have cleared their house before 5 July 2005 to enable demolition work to start on that day but that he was unable to start for eight days due to the Massinghams delay in vacating their house.
63. This evidence is clearly erroneous. Firstly, there was no agreement that the start date would be 5 July 2005. The Massinghams were never told when work would start and, for most of June, were unable to find out since Mr Dale was on holiday in that period. On his return from holiday, he immediately turned up unannounced on site.
64. Secondly, the Massinghams were ready to vacate their house at very short notice and did so within hours of Mr Dale's arrival on site. The house had been all but emptied in anticipation of a start on site in June and it was very easy for the remaining belongings to be moved into the rented accommodation and the adjacent caravan. Thus, no delay was in fact caused by them.
65. Thirdly, the reason for the delay in undertaking demolition work was that Mr Dale was unable to hire the necessary plant until 13 July 2005. He had not, evidently, booked the plant before he went on holiday and it was not available on the day he rang up to order it and did not become available for over a week. As soon as it became available, demolition work started.
66. Removal of trees from the front and rear of the site. This work could have been done on 27 May 2005 or at any time thereafter. Moreover, it was not a variation of the scope of work. Finally, the time taken in undertaking this work did not delay or hinder progress of any other part of the work.
67. Rotation of the bungalow. Mr Dale contended that the Massinghams asked him to lay out the new bungalow so that its footprint was rotated anti-clockwise around its central point by a small amount in order to allow a wider access to the rear garage. This instruction occurred on 19 July 2005 on site. The consequence of this instruction was to increase significantly the excavation work and concrete foundations' work required, thereby causing a period of critical delay.
68. The background to this suggested variation was the previous foundation excavation work. This had started, on the footprint of the original bungalow, on 25 July 2005. This excavation was condemned by the building inspector during her two visits to site on 18 and 19 July 2005. Her site notes show that she condemned the excavation for four cumulative reasons: firstly because they had not been taken down deep enough; secondly because they were not extensive enough around the perimeter of the proposed new building; thirdly, they were not wide enough and, fourthly, in places they were fouled by the remains of the old foundations. The building inspector anticipated that the foundations would be re-excavated in their existing position so as to eliminate these problems.
69. It was at that point that the suggested instruction to rotate the building occurred. In fact, there was no discussion about rotating the building with the Massinghams and, to this day, there is only the word of Mr Dale that any rotation occurred as opposed to the foundations being dug on both the first and the second diggings in their current rotated position. I find that the Massinghams gave no such instruction and that the work carried out in the overall period needed to excavate and the concrete the foundations formed part of the work. Any delay was at SSFL's risk and it was not entitled to any extension of time.
70. Repositioning the kitchen wall. The original wall in the kitchen dividing it from the dining room was stepped with a small window located I the right hand corner formed with the external wall of the kitchen. Mr Dale unilaterally repositioned this wall, whose stepped feature was shown on the relevant contract drawing and omitted the window because he felt it would be easier for him to construct it in that way. He subsequently installed a smaller window than that that had been present in the old bungalow. Any delay caused by this act of bad workmanship and failure to comply with the terms of the contract was not the responsibility of the Massinghams. Indeed, the repositioning of the wall was not instructed and amounted to a breach of contract by SSFL.
71. Additional shuttering and rebuilding walls of the conservatory. SSFL had agreed to provide a new conservatory as part of the contractual lump sum unless the old conservatory was reasonably capable of re-use. The old conservatory disintegrated when taken down and was removed off site and stored in Mr Dale's garage. He disputed that it was not re-usable but he disposed of the old conservatory pieces not long before trial so that no-one could inspect them at the trial to see whether they could in fact be re-used. Mr Dale's failure to re-use the old conservatory necessitated his providing a new conservatory to a similar design to that originally in place in the old bungalow. Any work involved in shuttering and building the new conservatory formed part of the contracted for work and no additional time entitlement arose for SSFL.
72. Additional electrical work - sockets and TV points. This marginal additional work, in the sense of not being shown on the plans, had to be undertaken in order to enable SSFL to comply with the fitness for purpose term. In any case, it did not cause any delay or disruption.
73. Alteration of wiring and plastering up for the alarm system. This work caused no delay and little additional expense.
74. Wheelchair access to front entrance. This ramp was required by the disabled access provisions in the Building Regulations and, hence, required of SSHL by virtue of the implied obligations to produce a building that was fit for its purpose and which complied with the obligations imposed on SSHL by the Defective Premises Act. The necessary work was not, therefore, work to carry out a variation at all.
75. Roof trusses. The work involved in ordering, having delivered and installing the roof trusses took about from 13 August, when the construction of the walls had been completed ready for final measurement, until 6 October, when the roof tiler started work. This period was one of about 8 weeks. SSHL had programmed 2 weeks plus up to 4 weeks for delays caused by the late delivery of materials. Given that SSHL was able to carry out the other work activities that preceded the roof truss work much faster than programmed, the actual period on the critical path to completion taken up with the ordering of trusses and their subsequent installation was more like 12 weeks. It follows that SSHL are seeking to excuse about 8-10 weeks of the critical path by a series of allegations against the Massinghams relating to delays which it was contended had been caused by them or for which they had contractual responsibility.
76. Mr Dale's evidence was hopelessly confused on the topic of the roof trusses and was also unsupported by any of the other documentary or oral evidence. He went so far as to contend that the supply of the roof trusses and their installation did not fall within the scope of SSHL's contract at all. He also contended that the following factors caused the overrun from 2 to 10 - 12 weeks:
77. The Massinghams liaised with the supplier Palgrave Brown and instructed the necessary layout. Thus, all SSHL had to do was to await the delivery of the trusses and, once they arrived, to install them.
78. In any case, the delayed delivery to site was caused by a late change of mind by Mrs Massingham and the need to adapt the order accordingly.
79. The trusses arrived on site unmade up, thereby causing much delay in the erection sequence whilst they were made up on site.
80. The installation took much longer than necessary due to the more complex design than that that was required by the truss layout before it was varied by Mrs Massingham.
81. Mr Terry Keith gave detailed evidence about the roof truss order. He is a roof truss estimator for Palgrave, the company that Mrs Massingham first approached for an estimate in January 2005. Palgrave provide a planning, design, manufacture and delivery service of their proprietary brand of roof trusses. These trusses are large timber supporting members manufactured and constructed into sections which are triangular in shape. Each truss is provided with a detailed drawing and the layout of the trusses is also detailed by Palgrave. The final measurements needed for design and construction of the trusses are taken from the wall plates of the constructed brick walls by a surveyor instructed by Palgrave. The detailed layout is provided in a three-dimensional drawing with the trusses. These, having been delivered to site, must be assembled on the ground and then lifted into position. The installation is undertaken by skilled fitters who move from contract to contract supervising and installing the trusses. Mr Keith was the individual who carried out the design work and arranged for the manufacture and dispatch of the trusses.
82. Mr Dale first became involved with Palgrave in early May 2005. Mr Keith could not provide the exact date but it was probably the 23 May 2005, the day the Massinghams informed him that SSHL would get the job and the day he made initial contact with the Planning Officer at Rotherham MBC. Before that date, Mrs Massingham had not been involved in liaising with Palgrave save for an initial contact. Mr Keith had undertaken three separate design exercises in liaison with Mr David Thompson, the structural engineer to accommodate the changing requirements resulting from the discovery of inadequate foundations and the need to plan around that problem. However, by 23 May 2005, the design was complete. Mr Keith stated in evidence that Mr Dale introduced himself on the telephone and stated unequivocally that he would be ordering the trusses through his builder's merchant's account held by SSHL and would liaise with, and co-ordinate the measuring and ordering exercise himself, working with Mr Keith. It was simply not the case, as repeatedly asserted by Mr Dale in his evidence, that Mrs Massingham was liaising with Mr Keith and involved in the design process. In truth, she played no part in this process either before or after Mr Dale's involvement.
83. Mr Keith explained that normally, with notice, the surveyor could get to site as soon as the wall plates were in position, could measure up the walls and get the measurements to him very quickly and that he could then finalise the designs and get the order to the factory floor and then onto delivery lorries within about 1 -2 weeks from the receipt of the site dimensions from the surveyor. It ought to take a skilled installer, working in pairs, about 2-3 weeks to erect the trusses working with a gang of 3 workmen. Thus, with planning and co-ordination, a total of 3 - 5 weeks would have sufficed. He also explained that the period in August and September is prone to longer periods for design and manufacture due to the high volume of orders and the holiday period disruption with people on summer holidays.
84. Mr Dale did not plan ahead. He did not programme the brickwork so as to ensure the earliest completion date. Even if work did not start until early July, had the work been properly planned, the brickwork could have been measured in mid to late July and the trusses installed by the end of August at the latest. However, Mr Dale's lack of planning meant that the walls could not be measured until about 7 August 2005 and the design and manufacturing time took longer as a result. A further delay occurred because it emerged that the staircase was shown located the wrong way round. Had Mr Dale called for the layout drawings when he first contacted Palsgrave, as he should have done, he could have checked the layout and would have seen this mistake and had it rectified in the time prior to site measurements being taken.
85. Mr Dale caused two further periods of delay. In August and September he was working on another job and this diverted his attention and some of his resources away. As a result, he only had one skilled fitter on site working with a smaller gang. This caused a prolonged, and intermittent, period of working on installation. There were no other causes of delay. The result was that installation could have been completed by mid to late August but was not competed until early October and this delay was entirely caused by Mr Dale's inefficient planning of the work coupled with his failure to liaise fully with Mr Keith and his diverting resources away from the Massinghams' contract at a vital stage of the work.
86. Mr Dale's intemperate behaviour. The final cause of delay contended for by Mr Dale was, in truth, entirely caused by his intemperate, indeed outrageous, behaviour. This amounted to rude, aggressive and even threatening and violent behaviour directed towards Mrs Massingham and her daughter. There were at least three disgraceful incidents that occurred.
87. The first incident occurred on 6 October 2005. Mrs Massingham's daughter, then aged 16, went to the property to attend to the dogs who were in the caravan in the property. She went with her grandmother, Mrs Massingham's mother. Mr Dale had agreed to the Massinghams living in the caravan on site during the work and Miss Massingham's visit was one that fell within the agreed arrangements settled by Mr Dale with Mrs Massingham. When she was near the caravan, Mr Dale came up to her and told her to leave using aggressive and abusive language. It was clear that not only was Mr Dale abusive but he appeared threatening to both grandmother and daughter and there was no excuse for this behaviour. He appears to have become angry without any justification by merely seeing them attending to the dogs. Both grandmother and granddaughter left immediately in a frightened state. Mr Dale clearly immediately realised he had overstepped the mark because he went straight round to the Massinghams' rented accommodation and said that he was there to apologise. However, he is not a man who can restrain himself because, within about two minutes of his arrival, he started shouting and swearing at Mrs Massingham. The gist of his outburst was that the Massinghams did not appreciate his hard work and then threatened to stop work altogether unless he was fully paid up. His language was so angry and aggressive that two of the children, one of whom was six, were crying and all ten members of the family were frightened by him.
88. Having seen both Mr and Mrs Massingham and having visited their house in their presence, I am clear that they are respectable, caring and courteous people who would go out of their way to get on with others. When confronted by what must have been an angry man almost out of control, they and their family retained their composure and managed to get Mr Dale to leave and then calm down the more vulnerable family members. Mr Dale never sought to apologise and, in evidence, minimised his angry behaviour, seeking to justify what he made out to be a mild exchange of words by blaming the Massinghams for fulfilling an arrangement he had suggested and agreed to in seeking to look after their dogs.
89. The second incident occurred on 9 October 2005, three days later. Mrs Massingham, whose leg was at that time in a brace, was waiting in the caravan for her mother and son to arrive to assist her. Mr Dale arrived and she asked him why a large amount of debris had been buried by him on the site rather than being taken away. This led to Mr Dale to start to shout and swear at her. Mrs Massingham became frightened and tried to leave the property whereupon he started to push her. Mrs Massingham's 18-year old son had, by now, arrived and he intervened, quite understandably, to protect his mother. Mr Dale then tried to punch her son, who is a registered disabled man who was waiting for an operation at the time. Mr Massingham junior ducked and, remarkably, managed to restrain himself from any physical or verbal retaliation. Both mother and son then left the property and Mrs Massingham telephoned the police to ask them to arrange for Mr Dale to leave the site because they were so frightened by him. The police duly arrived soon afterwards and escorted Mr Dale and his workmen off site. Remarkably, Mr Dale stated in evidence that he could not understand why the police had been called nor what he had done to make Mrs Massingham and her son frightened.
90. Mrs Massingham immediately wrote to Mr Dale and informed him that he was to complete the work by 30 October 2005. Has she and her husband not been going on holiday soon afterwards, the Massinghams would have terminated SSHL's contract there and then. However, after their return from holiday on 31 October 2005, they discovered that Mr Dale still had not completed the work. Instead, he had put up a notice on the doors of the property stating "not to enter". He had also cut the electricity supply to the caravan and ordered another son to leave the caravan. There then followed two further angry scenes.
91. The first occurred on 2 November when Mr Massingham went to meet Mr Dale at the property. Mr Dale had, on the previous day, telephoned Mr Massingham and had demanded payment of a further £10,000 in cash forthwith although the last stage of the work had not been completed. When Mr Massingham arrived, Mr Dale immediately started to rant at Mr Massingham, demanding immediate payment. Mr Massingham left. This led to the second angry scene two days later when Mr Dale came round to the rented property and demanded £10,000 and stated that if he was not paid immediately, he would change the locks on the property and claim the property as his own.
92. This was the final straw, particularly as the work remained unfinished and Mr Dale was demanding payment towards the final instalment which was only due when the work was completed. Moreover, despite all assurances that SSHL would comply with the Massinghams' requirement that SSHL finish by 30 October 2005, the work remained far from complete. Thus, the Massinghams decided to terminate SSHL's contract, having received legal advice that SSFL had repudiated it. The letter was drafted by their solicitor and delivered to site by Mrs Massingham accompanied by a policeman for protection. Mr Dale did not immediately leave and Mrs Massingham returned with a policeman. When she arrived, she discovered that Mr Dale had packed up but had left with a number of windows that had already been installed so that property in them had passed to the Massinghams.

4.4. Conclusion

93. I conclude that SSHL had a contractual obligation to complete the works on or before 30 September 2005, that the work was nowhere near completion on that date and that SSHL had no contractual excuse for this non-completion. The Massinghams put time of the essence in a letter dated 9 October 2005 requiring completion by 30 October 2005. They could have treated the non-completion by 30 September 2005 as repudiatory and need not have put time of the essence but could have terminated the contract at that stage. However, although Mr Dale agreed that the work would be finished by 30 October 2005, the work was not complete and was nowhere near being completed by that second date. In consequence, SSHL was again in repudiatory breach and that breach was accepted by the Massinghams.

5. Was SSFL in breach of contract in any other way on 2 November 2005?

94. SSFL was in breach in two other ways on 2 November 2005. The first way that it was in breach arose out of Mr Dale's intemperate behaviour. The accumulated behaviour already described amounted to clear and unequivocal statements that SSFL did not intend to be bound to the contract and also amounted to breaches by SSFL of its implied obligations to carry out its work with reasonable standards of workmanship and to fully co-operate with the Massinghams. The second way that SSFL was in breach was in its repeated demands, culminating with the demand on 2 November 2005, to be paid sums in excess of what was due. SSFL was only entitled to be paid the last tranche or instalment of the contract price of £30,000 when the seventh and final stage was completed. That stage was that involving the remaining work following the completion of the second fix sixth stage. This stage, as with the other six stages, each amounted to a mini entire contract. The Massinghams had paid £105,000, although their obligation was to have paid £100,000, when Mr Dale began his campaign of intemperance and intimidation in an attempt to obtain further payment of the remainder of the seventh instalment prior to the completion of the work.
95. In both respects, SSFL was in repudiatory breach of contract on 2 November 2005 since both showed that Mr Dale was not intending to be bound by, or to honour, the terms of the contract.

6. Where the Massinghams entitled on 2 November 2005 to treat SSFL's breaches of contract as amounting to a repudiation of the contract by SSFL and thereby to bring the contract to an end?

96. The Massinghams were entitled to treat SSFL's breaches of contract as a repudiation and to bring the contract to an end.

7. What is the measure of damages by which both SSFL and the Massinghams' claims are to be quantified?

97. Massinghams' claims. The Massinghams' claims consist of claims for the cost of remedying breaches of contract, namely the cost of completing the work, of remedying defects and of remedying items of work which did not comply with the building regulations or were not fit for purpose or did not comply with SSFL's overall obligation to provide a replica of the original house save for the addition of a new floor and roof. These claims may be valued by assessing the reasonable cost of carrying out the work, whether yet carried out or not.
98. SSFL's claims. SSFL may only claim for the unpaid part of the value of any additional or extra work which it may set against any claim by the Massinghams. It may not claim for the value of work completed but not paid for in the seventh stage of work since that stage is a mini entire contract for which no payment accrued due since that stage of work was not substantially complete at the time that the contract was brought to an end. However, SSFL may seek to set off against any claim by the Massinghams for completing the work the unpaid balance of the final contract sum since, otherwise, the Massinghams could recover damages plus get that stage of the work without having to pay or give credit for it.

8. What claims of each party may be quantified and what is the quantified recoverable sum for each of those claims?

8.1 Massinghams' Scott schedule claims.

99. Cost of completion. The Massinghams have put forward 10 items of unfinished work totalling £26,52.94. SSFL's response and my findings are as follows:

(1) Joinery. SSFL contended that some of the joinery had been carried out prior to the termination. However, I am satisfied by the video evidence and the photographs that the full extent of incomplete work alleged by the Massinghams had to be completed. SSFL also contended that it had no obligation to fit the kitchen supplied by the Massinghams. However, that is what Mr Dale agreed as I have already found in paragraph 36 above.

(2) Decorating and site cleaning. SSFL contended that some of this work had been completed so that it should not be responsible for all of it. However, it is clear from the visual evidence that such decorating and site cleaning as had been done required to be redone so that the Massinghams are entitled to claim for the entire work content of this item.

(3) Plumbing. SSFL seeks to reduce the sum claimed by £660 because it had provided an allowance in the final account for these items. However, the allowance claimed is insufficient and the Massinghams are entitled to claim the entire sum claimed.

(4) Electrician, Kitchen Fitting, Tiling, Windows and Conservatory fitting.

All the work to each of these items was required and the work all fell within the scope of SSFL's work. These items may be claimed.

(5) Project Management. The claim for the cost of engaging a project manager to supervise all the work for which claims are made is disputed on the grounds that SSHL did not have a project manager on the job. However, the nature and extent of the work does warrant a project manager which would be charged for as a separate item or within the preliminaries section of the schedule of rates of the remedial contract. Moreover, SSHL did have a project manager in the shape of Mr Dale and an on-site manager of the site office. These two were charged for within the contractual lump sum. This sum is recoverable.

Defective work claimed in items Dl - D3. SSFL accepts these items but disputes the quantification of them. The sums claimed were those identified by the jointly instructed surveyor and SSFL has not put forward any alternative costings or reasons for challenging the jointly instructed surveyor. These sums are recoverable.

100. Further work needed to comply with drawings. The eleven items of claim are as follows:

(1) Drains. Three combined drains, taking surface and foul water away in a combined drains, were constructed. This complied with the original construction but such drainage is not permitted by current building regulations for a new dwelling. SSFL had a contractual obligation to comply with the current building regulations and therefore the cost of digging up these drains and replacing them with separate drains is recoverable as damages.

(2) Disabled ramp. This work was required to be carried out by SSFL as explained in paragraph 72 above. The cost of installing the ramp is recoverable as damages.

(3) Windows to dormers. The windows in the dormers were placed too high and steps up to the bays were installed. The drawings showed the height of the windows but the roof layout prepared by Palgrave did not co-ordinate with these drawings. SSFL's obligation was to construct in accordance with the drawings save as was necessary by way of modification to allow for a similar construction as was originally constructed. SSFL should have checked that the dormer layout was compatible with the drawings and, if not, sought changes from Palgrave. The windows as constructed are unsightly and the cost of adaptation is recoverable.

(4) Conservatory roof. It is clear from the evidence of Mrs Massingham, which is accepted, that she did not choose the roof that was provided for the new conservatory. It is also clear that SSFL's obligation was to supply a replacement conservatory if the existing one could not be re-used. The conservatory, as installed, is unsightly and the cost of replacing it with a roof similar to that there originally is recoverable as damages.

(5) - (6) Store/wardrobe and wardrobes. The storeroom/wardrobe and

wardrobes installed on the first floor did not comply with the drawings in both their location and materials. Mrs Massingham did not, as alleged, agree to the changes provided and the cost of removal and reinstatement is recoverable as damages.

(7) Loose plasterboard. Only quantum is in issue. The joint surveyor's valuation is accepted, no rival basis of valuation has been provided.

(8) Insufficient insulation. A lesser and cheaper form of insulation was installed without permission from, or reference to, Mrs Massingham. I do not accept Mr Dale's evidence that the change was agreed. The installed insulation is of an unsatisfactory quality, even if it was passed by the building inspector. The cost of replacement with the specified insulation is recoverable.

(9) Dining room bay. This should be bricked up so as to comply with the drawing. Mrs Massingham did not, as asserted by Mr Dale, agree to the detail as constructed. The cost of this work is recoverable.

(10) Chimney breast. This detail was not constructed, despite being shown on the drawing. Mrs Massingham never agreed to its deletion. The cost of construction is recoverable.

(11) Support beam. The support beam in the lounge is constructed too low in the sense of being unsightly and inconvenient. A 2100 mm minimum height is required. SSFL should have ensured that the work was constructed to such a detail and the cost of constructing the amended detail is now recoverable.

100. Other claims. The following further claims are recoverable:

(1) Replacement windows. The Massinghams are entitled to the cost of replacing the windows removed unlawfully by Mr Dale when he repudiated the contract.

(2) Additional rental. Due to the delayed completion and the repudiation, the Massinghams had to renew the rental of their alternative accommodation and this additional rent is recoverable as damages for delayed completion.

(3) Boiler. SSFL failed to supply a boiler and the cost of obtaining a new boiler is recoverable as damages.

8.2 SSFL's claims.

101. SSFL is entitled to set off against the Massinghams' claims the sum of £25,000, being the remaining portion of the lump sum so far unpaid. However, the alleged additional work, for which £12,620 is claimed, represents work which was to be undertaken as part of the lump sum. It is work necessarily included in the lump sum work and did not arise from any variation to the contract.

9. Overall Conclusion

102. SSFL's claims are dismissed. The Massinghams' claims, as pleaded, are recoverable. The total of their claims in parts C - F of the Scott schedule is as follows:

Part C	26,522.94
PartD	2,325.00
PartE	39.695.00
PartF	3,744.85
Total	72,287.79
Less SSFL's unpaid balance	25,000
Net total:	£47,287.79

103. The Massinghams are entitled to a judgment for £47,287.79 plus interest.

HH Judge Anthony Thornton QC