Jersey Unreported Judgments

[2009]JRC160

royal court

(Samedi Division)

17^th August 2009

Before     :

J. A. Clyde-Smith, Esq., Commissioner and Jurats Clapham and Fisher.

 

Mr Stuart Meldrum appeared as a Director of the Plaintiff.

Mr Paul de la Haye appeared as a Director of the Defendant.

judgment

the commissioner:

1.        On 16^th June, 2009, following a two day hearing, the Court gave judgment in relation to a dispute arising out of a house constructed by the defendant known as the Haven development and we now set out our reasons.  Behind the private companies lie individuals for whom this has been a distressing experience.

2.        The plaintiff is beneficially owned by Stuart Meldrum.  Although he has no formal qualifications, he has been involved in civil engineering and building contracting for some fifty years.  The plaintiff company had been in existence since 1969 but now simply retained Mr Meldrum as its only principal.  He is effectively retired. 

3.        The defendant is beneficially owned by Paul and Jane de la Haye.  They have no experience in the building industry.  Paul de la Haye is a hairdresser and Jane de la Haye had worked for a local bank.  She was pregnant at the material time, had a five year old child to look after and two other unrelated businesses to run.  They had acquired the shares in the defendant company which owned the plot and which had the benefit of a planning permission for the construction of the house designed by J Design Limited.  The development of the house was financed with money left to Jane de la Haye by her father who was a friend of Stuart Meldrum.

4.        Paul and Jane de la Haye decided against the more conventional route of engaging a building contractor to construct the house under the supervision of an architect and decided to undertake the construction themselves.  They had seen an advert in the Jersey Evening Post for a foreman.  This transpired to be Stuart Meldrum's son, Simon Meldrum, who had no connection with the plaintiff and who the defendant then employed as the site manager.

5.        Subsequently, the defendant engaged Stuart Meldrum through his company to advise as a consultant.  It is its case that the plaintiff through Stuart Meldrum took over as foreman of the site with complete responsibility for it.  The period we are concerned with is from November 2007 to June 2008 but before going further into the facts, it is helpful at this stage to set out the procedural history.

Procedural history

6.        Initially, the plaintiff issued a summons in the Petty Debts Court of the Island of Jersey seeking the sum of £4,500 in respect of its unpaid account rendered for May and June 2008.  Through a misunderstanding, judgment was obtained on 10^th September, 2008, which was subsequently set aside.  The defendant filed an answer and counterclaim seeking special damages of approximately £44,054, following which the matter was transferred up to the Royal Court.

7.        On 2^nd December, 2008, the Master set the case down for hearing, ordered a stay until 2^nd February, 2009, for the purposes of mediation and gave directions in the event that the case was not settled (which it was not).  Those directions included a requirement that the parties exchange statements within twenty-eight days of discovery and that the defendant shall serve a final schedule of loss and damage.

8.        At the hearing before us, we heard evidence from Stuart Meldrum, Paul and Jane de la Haye and the defendant's expert, David Rothband BSc.

The Defendant's case

9.        The plaintiff produced on discovery copies of Stuart Meldrum's diary entries showing the hours he had recorded and the defendant did not therefore ultimately contest the amount of the outstanding account in the sum of £4,780 which formed the subject matter of the plaintiff's claim.  The issue before the Court at the hearing therefore was the defendant's counter-claim. 

10.      Paul and Jane de la Haye divided the responsibility for this development between them with Paul de la Haye being responsible for the building and Jane de la Haye for the finances.  She rarely went on site.  Neither kept notes of any meetings and no letters were written.  It would appear that no contracts were drawn up when staff or labour were engaged; certainly there was no contract for the engagement of the plaintiff.  They relied entirely on their own memories and as a result, their case was confused and disjointed, as their own expert acknowledged. 

11.      They alleged that Stuart Meldrum had set out to undermine the position of his son, as the site manager, and to create a job for himself.  As a result, they lost confidence in his son and on 4^th February, 2008, the plaintiff acting through Stuart Meldrum took on the role of foreman, with full responsibility for the site.  It was a term of its employment that it would ensure that the house adhered to the contract drawings. 

12.      The defendant's counter-claim particularised the following departures from the specifications set out in the contract drawings:-

Flooring - The plaintiff had incorrectly ordered and laid flooring of the wrong thickness (i.e. not that specified in the contract drawings) which would cost some £35,000 - £40,000 to replace.

Fire doors - The plaintiff failed to install fire doors as specified in the contract drawings, the cost of the replacement of which was around £1,375.

Stairs - The plaintiff had incorrectly measured the stairs, which cost £680 to replace.

Bathroom floor - The plaintiff had failed to supervise the plumber to ensure that pipes were fitted below the line of the flooring.  The defendant had to place a further floor above the pipes at a cost of £1,400.

Plastering - The plaintiff incorrectly plastered the back of the showers of the property at a cost of £134.

Garage door - The plaintiff had failed to ensure that a screed was placed on the garage floor before fixing the garage door.  Once the flooring was laid, the garage door had to be raised at a cost of £465.

13.      When on 31^st May, 2009, the defendant, as directed, filed its schedule of loss and damage, its case had changed fundamentally.  The claim in respect of the flooring, fire doors and plastering had gone.  It transpired that the thickness of the floor supplied by Pentagon complied with the Building Bye Laws.  The references in the plan to what the de la Hayes thought were fire doors "FD" were in fact references to "First Floor Doors".  There was no failure to install fire doors.  The counter claim as set out in the schedule was now in the following terms:-

"For your information we confirm the following costing in relation the directions.

Lawyers fees                                                    GBP5000.00

Surveyors fees                                                 GBP2000.00

Carpentry work for kitchen skirting boards          GBP1000.00

Replacing stairs                                               GBP680.00

Re adjusting Garage door                                  GBP500.00

Although in the original claim we were claiming for all floor levels to be corrected but due to the advice from our surveyor, we have been advised this is not a pressing issue on all rooms.

However we would like to point out the floor levels were not followed to the drawings.

We have already incurred problems with the level of the kitchen floor.  Therefore we are aware this floor will need to be replaced in the future at an estimated cost of GBP5500.00.

Total estimated costing GBP14680.00 plus the figure on the surveyors report."

14.      The surveyor, Mr Rothband, had been given a very limited and specific brief, namely to identify areas where there was a clear deviation between the contract drawings and the house as built.  Discounting minor matters, he had identified two areas where such differences were evident, namely certain window installations and the layout of the en suite bathroom on the first floor, including in particular the raised floor which had created a 120mm high step about 1 metre from the bathroom door.  He suggested a budget of £10,000 to bring these matters back into conformity with the contract drawings, thus bringing the defendant's counter-claim to a total of some £24,680.

15.      Apart from the surveyor's report, the defendant's counter-claim was evidentially deficient in the following respects:-

Skirting board - Paul de la Haye could not remember who had carried out this work and produced no invoice justifying the claim of £1,000.

Stairs - The defendant produced an invoice from The Carpentry Workshop dated 17^th July 2008 in the sum of £680 for re-supplying 1-3 shaped treads/risers in oak.  However, Paul de la Haye informed us that this account had not been paid and was being disputed by the defendant in the Petty Debts Court.

Garage door - No invoice was produced supporting this claim, although Paul de la Haye informed us that one did exist. 

Kitchen floor - Paul de la Haye informed us that he had an estimate for this work, but had not produced it.   P & B Carpentry Workshop had advised that this work had to be carried out but there was no letter from that firm and no witness was called to support the assertion.

The Plaintiff's case

16.      In contrast, the evidence of Stuart Meldrum was clear and supported by extensive contemporaneous notes and diary entries. 

17.      Jane de la Haye had, through Stuart Meldrum's son, asked him to advise her on certain problems she had in relation to shares and designs for a property known as 9 Devon Avenue.  He met with her and assisted her on these matters and it was at that meeting that he was first asked to help in relation to this house, specifically to obtain quotations estimates and designs from specialist sub-contractors and installers for consideration by the defendant.  For this purpose, he asked for and was given by the defendant a letter dated 22^nd November, 2007, confirming his authority which is in the following terms:-

"This is to confirm the above company wishes Mr Stuart Meldrum (S & J Properties Ltd) to act on their behalf in relation to La Chasse, Falaise, known a (sic) "Haven" development."

18.      At this point the basic structure of the house had been completed.  Stuart Meldrum obtained from the site and has only ever had three drawings, numbered A13, DO1 and DO2, which were produced for the purposes of building bye-laws and were not working drawings.  He made the point that he did not need to see any further plans because the building was in situ and for the purpose of ordering windows and fitting kitchens and bathrooms he could measure the actual apertures and rooms as constructed.

19.      A detailed meeting with the de la Hayes took place on 26^th November, 2007, to discuss windows, the appointment of sub-contractors and the floor finishes inter alia.  The meeting lasted three hours.

20.      A further meeting was held with them on 21^st January, 2008, when the various quotations and designs Stuart Meldrum had obtained from the proposed sub-contractors were considered and instructions given to him by the defendant as to which should be appointed.  That meeting took some two and a half hours.

21.      On 25^th January, 2008, Paul de la Haye asked Stuart Meldrum to complete the work he was undertaking with a view to handing over his files in early February 2008.  That hand over meeting took place on 4^th February, 2008, when Stuart Meldrum attended with his files containing the quotations, estimates, designs and acceptance copies.  These were discussed together with the further action required to bring to conclusion the scheduling of works.  Stuart Meldrum's note of that meeting made reference to issues that had arisen with his son Simon and it was clearly anticipated that he might leave the site.  Paul and Jane de la Haye asked Stuart Meldrum if he would take over responsibility for the site in that eventuality and his handwritten contemporaneous note of that conversation is in the following terms:-

"They asked me if I would be prepared to take over the site completely should Simon leave and I said NO.

Jane asked if in say a month's time if things had not worked out or improved would I take over the site I said NO.

It was at this point Jane & Paul left the room for a few minutes - they came back and requested I take back all the files and continue working for them as a consultant - I said Yes."

22.      Thus, rather than hand over the files and terminate its involvement, the plaintiff carried on as a consultant.

23.      On 5^th March, 2008, Stuart Meldrum received a phone call from Jane de la Haye stating that Simon Meldrum had left the site after a disagreement with Paul de la Haye and asking Stuart Meldrum to attend at the site with Paul de la Haye.  At that meeting, Paul de la Haye asked Stuart Meldrum if he would assist in the completion of the construction.  Stuart Meldrum said he would do so, but not as site manager.  Specifically, he agreed to organise the sequence of works to ensure continuity and that materials were available at the appropriate time and to advise on any issues that arose.  He met with Paul de la Haye thereafter every morning to go through his (Paul's) requirements.  Paul de la Haye continued to employ the labour at the site and to give direct instructions. 

24.      There appears to have been no discussion about the terms of the plaintiff's remuneration.  However the plaintiff submitted accounts monthly on the basis of time spent by Stuart Meldrum at the rate of £30 per hour.  The invoices from December 2007 through to February 2008 were at the rate of some £1,400 per month but that for March, following the departure of Simon Meldrum, increased substantially to £4,170.  These invoices were paid by the defendant without comment or reservation.  The account for May 2008, which was in the sum of £3,420, had been annotated by Jane de la Haye "Need hours and job description for the last three months."   It was the failure to pay that invoice that led to Mr Meldrum terminating the agreement on 16^th June, 2008.

Court's findings

25.      The burden was on the defendant to prove its counterclaim on the balance of probabilities.  Specifically, the defendant asserted that the plaintiff had been appointed "foreman" with complete responsibility for the site and that it was a term of that appointment that it was responsible for ensuring that the building would adhere to the contract drawings.  The defendant failed to discharge that burden. 

26.      In our view, the evidence showed that the plaintiff was appointed to act as a consultant only to advise the defendant, which through Paul de la Haye, retained control of the site, hiring and firing labour and giving direct instructions.  It was not a term of the plaintiff's appointment as consultant that it was responsible for ensuring that the building complied with the contract drawings.  That remained the position after the meeting on site on the 5^th March when Simon Meldrum had left the site.

27.      We accepted Mr Meldrum's evidence that he only ever had three drawings which were not working drawings and which he obtained from the site.  In particular, he never had all of the contract drawings which were given to Mr Rothband, and which he had used for the purpose of advising on where the works deviated from those drawings.  Such drawings were to a large extent unnecessary in that as Mr Meldrum said, the actual structure was in place, and he could therefore measure for example the actual window apertures, and specialist sub-contractors could measure the actual rooms for the purpose of preparing quotations. 

28.      Paul de la Haye was on site regularly, if not daily, and he accepted in evidence that he never once complained to Stuart Meldrum that any of the works being done on site did not comply with the contract drawings.  He explained to us that he was under great pressure.  The works were being paid for by money inherited by his wife and he felt it was better to go along with what was being done on site rather than to stop the work. 

29.      Neither party was represented and the Court did not therefore have the benefit of legal submissions and in particular of being addressed on the duties that would have been owed by the plaintiff as a consultant.  Applying general principles we proceeded on the basis that the plaintiff owed a contractual duty to the defendant to exercise reasonable skill in the advice that it gave.  The level of skill that it would have to show is that of an ordinary competent builder of its type.  We received no evidence in this respect. 

30.      Stuart Meldrum addressed the specific claims against the plaintiff in the following manner:-

Kitchen floor and skirting - This was laid out of sequence on the direct instructions of Paul de la Haye by his own employee.  Mr Meldrum had not seen the floor but advised that a number of factors could make it uneven.  For example as a consequence of being laid out of sequence, hardboard had to be placed on it and wheelbarrows wheeled to and fro over it. 

Staircase - His measurements of the staircase taken at the time were accurate.  Subsequently, the floor level was raised on Paul de la Haye's instructions and the design of the stairs changed into a curved flight with three rather than four treads.  It was Paul de la Haye who dealt directly with the manufacturer.

Garage door - The drawing that Stuart Meldrum had showed no screed and he assumed that the concrete floor would be painted over.  He and Paul de la Haye stood together and watched the garage doors being fitted and no comment was made.  If a screed was subsequently put on the concrete floor then, in his view, it should have been feathered down to the door so as to prevent weathering.  In any event, he was not on the site to advise in this process.

Windows - His notes show that there was a full discussion in relation to the actual windows installed on site including his handwritten sketches.  His proposals had been accepted by both Paul and Jane de la Haye.

Bathroom floor and step - There were no drawings for the bathroom or for the piping within it.  Ordinarily, piping would have been placed below the floor or within boxed skirting.  Floor joists had been put down before the design had been approved and because Paul de la Haye did not like boxed skirting, he had specifically instructed a raised floor under which to put the pipes.

31.      We accepted Mr Meldrum's explanations in respect of each of these claims and were thus not persuaded that the plaintiff, through him, had not exercised reasonable skill in the advice that it gave. 

32.      The defendant further alleged that as a result of the plaintiff's negligence, planning had refused to pass the property as being in a habitable state and had requested that certain materials ordered by Stuart Meldrum on behalf of the plaintiff were replaced.  No evidence from the Planning Department was adduced in support of this allegation.  Stuart Meldrum informed us that he had spoken to the building inspector and had been informed that everything had been passed, the only outstanding point being the connection to the main drains and the testing of those drains.  Mr Rothband in his report raised a concern as to whether the windows actually installed required planning approval.  He had not however made any enquiry himself of the Planning Department and it would seem that the Building Inspector had passed them.  He also said that the step in the bathroom posed a health and safety risk and was therefore unacceptable.  He accepted however that it complied with the Building Bye Laws and had also been passed by the Building Inspector.  Thus there was no evidence before us that any advice given by the plaintiff and relied upon by the defendant had led to any breaches of the Planning and Building Bye Laws.

Conclusion

33.      Overall, we concluded that, unwisely and in a misguided attempt to save money, Paul and Jane de la Haye undertook the construction of this house when they had no experience or expertise as builders.  Employing direct labour they not surprisingly got into difficulties and had therefore sought the advice and guidance of Stuart Meldrum (through his company) a retired builder, who was a friend of Jane de la Haye's late father.  The priority was to complete the house and Stuart Meldrum assisted in that task to the best of his ability. 

34.      We therefore granted the plaintiff judgment in respect of its outstanding invoices with interest and dismissed the counter-claim.

No Authorities