SHERIFFDOM OF GRAMPIAN, HIGHLAND
AND ISLANDS AT ABERDEN
|
CA12/07
|
DECISION IN COMMERCIAL
ACTION
By
SHERIFF J K TIERNEY
in the cause
MR ALAN ROSS and MRS PATRICIA ALISON
ROSS
Pursuers;
against
NIGEL JOHNSTON,
JOINER AND BUILDER LIMITED
Defenders;
__________
|
ABERDEEN, 8 August 2008.
[1] In this
commercial action the pursuers, who jointly own the dwelling house at 40 Jesmond
Road, Bridge of Don, Aberdeen sue the defenders, a company which carries out
building works, for damages which the pursuers claim arose out of the defective
workmanship of the defenders in carrying out building works for the erection of
an extension at the pursuers' home. The defenders counterclaim for payment in
respect of works carried out and damages which they claim arose out of the
pursuers' wrongful termination of the contract. All of the pre-contract
discussions and correspondence were carried out on behalf of the defenders by
Mr Nigel Johnston, who thereafter carried out work on the site for the
defenders and who was the proprietor of the defender company. The parties were
agreed that there should be a preliminary proof before answer on two issues
namely (1) what were the terms of the contract between the parties and (2) to
what extent if any were either of the parties in breach of their obligations
under the contract. Prior to the proof
the parties entered into a joint minute.
At the diet of proof both of the pursuers gave evidence. In addition they called as witnesses
Mr Keith Moir, a chartered building surveyor engaged in private practice
and Mr David Kidd, a chartered building surveyor employed by the building
standards department of Aberdeen City Council.
No evidence was led on behalf of the defenders.
[2] It is
convenient to deal with the disputed issues in separate chapter headings namely
(i) the express terms of the contract; (ii) the implied terms of the contract;
(iii) the quality of the defenders' work; (iv) whether the defenders were in
breach of contract and if so to what extent; (v) whether the pursuers were in
breach of contract and if so to what
extent.
In respect of those matters I make the following findings :-
(i) The express
terms of the contract
[3] In April 2006 the parties entered into a
contract for the construction by the defenders of an extension to the pursuers'
dwelling house at 40 Jesmond Road, Bridge of Don, Aberdeen.
The contract was constituted by (a) the pursuers' contract drawing
No 001/05 of April 2005 as approved by Aberdeen City Council for building
warrant purposes (No 5/3/1 of process);
(b) the written quotation from the defenders to the pursuers dated 18
April 2006 to carry out the works required by the drawing for the price of
£21,234, with an allowance for kitchenware (No 5/1/1), (c) a verbal acceptance
of the pursuer dated 20 April 2006;
(d) a variation of the contract price contained in a schedule of works
produced by the defender and issued to the pursuers in or around May 2006
reducing the cost of the works to £20,311.61 (No 5/1/2). This document set out in detail the work the
defenders envisaged they would require to carry out but did not detract from
the basic contractual obligations of the defenders in respect of (a) and (b)
above.
[4] The contract
drawing No. 001/05 set out in standard drawing form both in plan and
elevation the purported basic configuration of the building as it was before
the commencement of the works and the works that would be necessary to effect
the extension. The existing state of the
building as disclosed in the plan was inaccurate in that it failed to disclose
alterations to the building which had been carried out by the pursuers without
planning or building consents some years previously. The defenders were however aware of the true
existing layout of the building and the fact that the drawings of the existing
building were inaccurate. The proposed
works involved the demolition of substantial parts of the rear wall of the
premises, the demolition of part of the dividing wall between the house and the
garage, the building of a new single storey structure at the rear of the old
premises and of a wall in the garage, and the formation internally of a new
dining room, kitchen room and utility rooms in the newly created space. There was to be a sloping roof on the new
premises at the rear.
[5] The drawing
001/05 contained detailed notes relating to the materials to be used, the
building methods to be used and set out certain requirements as to the
standards of work in compliance with certain regulations. In particular the notes required all works to
be carried out in accordance with the relevant British Standard specifications,
codes of practice and engineers specifications, and that the works be in
accordance with the Building (Scotland) Regulations 1990 and amendments
thereto. These notes were express
contractual terms.
[6] It was an
express condition of the contract that the works would be completed within 16
weeks from the commencement of the works with a two week gap in these weeks for
the defenders' proprietor (Mr Johnston) to take a pre-arranged holiday. This time span was agreed between
Mrs Ross, the second pursuer, and Mr Johnston on or about 20th
April 2006. It was agreed between the parties that the
work would commence (and it did commence) on 23 June 2006.
Time was not formally made of the essence of the contract but the
defenders were aware through Mr Johnston that the 16 week period was important
to the pursuers.
[7] It was also
an express term of the contract that the works would be carried out in
accordance with drawings Nos. 002/05 and 2006/3.
(ii) Implied terms
[8] It was an implied terms of the contract
that the works would be carried out by the defenders with the skill and care
reasonably to be expected of a building contractor of ordinary competence.
[9] It was an implied
term of the contract that the pursuers would allow the defenders reasonable
access to the pursuers' premises to carry out the contract works.
(iii) The quality of
the defenders' work
[10] On 23 October 2006 before completion of the works the
defenders were ordered to remove from the site, and the contract was terminated
by the pursuers. By that date works had been ongoing for 15 weeks (17 weeks
less 2 for Mr Johnston's agreed two week holiday). It would have taken at least a further eight
weeks work to complete the works, and at least a further two weeks work to
remedy defects in the work which had been carried out prior to 23 October. As at 23 October 2006 the defenders would not have been
able to comply with the contractual obligation to complete the works in
16 weeks. They would have overrun
that time by more than 50%.
[11] In terms of
the notes to drawing 001/05 (right hand side) the defenders were required to
install cavity barriers at eaves level, around the head and jambs of windows
and doors, at all corners and at foundations.
These barriers were to be protected by a separate damp proof
course. The barriers are required to
reduce the risk of spread of flame and hot gases in the event of fire. No cavity barriers had been installed around
the rear window frames. The work in
respect of cavity barriers did not meet building standards.
[12] The new wall
running across the garage and to the rear of the kitchen/utility room extension
should have been built level with the existing rear wall of the original
kitchen. The defenders constructed this
wall approximately 75mm further back into the garage which will result in an
offset rear wall to the kitchen/utility room and will leave a slightly shorter
garage space.
[13] The rear
boundary wall of the extension has been erected out of alignment along its
entire length but particularly above the eaves level and will require
approximately 10 square metres of block work to be removed and rebuilt. A
reasonably competent contractor exercising reasonable care and skill would not
have done this.
[14] The defenders
did not fill in trenches which had been dug in the back garden, leaving the
garden unsafe. A reasonably competent contractor exercising reasonable care and
skill would have done this work.
[15] The existing
windows on the rear wall of the house have been removed and relocated to the
rear wall of the extension. They are
inadequately fixed and do not comply with the Code of Practice for the Survey
and Installation of Replacement Plastic Windows and Door Sets. All these should be fixed on all sides at no
more than 600mm centres and within 150mm of each corner. No fittings have been applied to the sill and
some side and head fixings have not been applied to two of the windows. It is reasonable to extrapolate that other
windows, now covered up by plasterboard, have similar defects. On these windows the plasterboard will
require to be removed and the windows inspected. The Code of Practice is a code of practice to
which the notes to drawing 001/05 refer.
[16] The walls that
have not been covered by plasterboard show that the Celotex rigid expanded foam
insulation has not been tightly fitted to the framing. There are gaps of up to
10mm between the foam and the framing.
To be an effective insulator the foam requires to be friction fitted
with no gaps. The side and rear walls of
the extension have been sheeted with plasterboard. They will require to be uncovered and inspected.
A reasonably competent contractor exercising reasonable care and skill would
have fitted the insulation to friction tightness.
[17] The window
aperture for the new kitchen window is incorrect. The concrete blocks forming the aperture are
approximately 40mm short. The section of block wall requires to be taken down
and rebuilt. A reasonably competent
contractor exercising reasonable care and skill would have constructed the
aperture to the proper dimensions.
[18] There has been
inadequate spacing of screws and nails in the plasterboard in the extension
giving rise to the possibility of deflection of the plasterboard. The application does not comply with the Code
of Practice for Dry Lining and Partitioning using Gypsum Plasterboard, being a
British Standard code of practice.
[19] Part of the
floor for the new kitchen has been excavated for the purposes of building a
foundation for the block partition between the new kitchen and the garage. The excavated area has not been backfilled, leaving
a hole in the floor up to 750mm deep which is unprotected and which constitutes
a serious health and safety hazard. The
excavation should as a matter of good practice been backfilled as soon as
possible after it had been dug. The area
remained in use by the pursuers during the works. A reasonably competent
contractor exercising reasonable care and skill would not have left the floor
in this dangerous condition. He would have filled in the excavated area.
[20] The sequence
of works had been inappropriate.
Internal finishes have been applied to the dining room walls and ceiling
before the roof has been rendered watertight.
Water ingress is occurring beneath the lean-to roof to the extension
which may damage the plasterboard ceilings in the extension. A reasonably competent contractor exercising
reasonable care and skill would have sequenced the works so as to render the
roof watertight before applying internal finishes.
[21] The works were
inadequately programmed. The programme
should have ensured the removal of windows and doors and the original rear wall
and the relocation in the extension wall to minimise discomfort to the
occupants in terms of weatherproofing and draught proofing. A gap has been left between the original rear
wall and the extension. The French doors
intended for this gap should have been fitted or the gap sheeted to maintain draught
proofing and prevent heat loss. A reasonably competent contractor exercising
reasonable care and skill would have programmed the works to avoid this.
[22] The roof truss
arrangement in the new roof does not comply with the arrangement on drawing
001/05 for which building control approval was granted. The plan required a truss configuration
involving 2 vertical members with a diagonal strut running between them. The defenders had constructed the roof
trusses with a single diagonal member. This was not incomplete work. For it to
be rectified the defenders would have to remove the diagonal trusses and build
the proper trusses from scratch. A building control completion certificate will
not be issued in respect of the current works and the current plan.
[23] The rear
garden was throughout most of the course of the works unavailable for use by
the pursuers either as a drying green or as a garden due to extensive amounts
of building materials, rubbish and excavated materials which were littering the
entire rear garden area. There was no
reason why the rubbish and excavated material should not have been
removed. They were not capable of being
used as base material for the concrete floor which requires clean and inert
materials. Many of the items of rubbish
were off cuts which would not be expected to be retained. The debris and rubbish covered 75-80% of the
garden. A reasonably competent
contractor exercising reasonable care and skill would have kept the garden
clear of debris and tidy and available for use..
(iv) Whether the
defenders are in breach of contract
[24] The matters set out in paragraphs [10],
[11], [12], [15], [17], [18] and [22] above constitute breaches by the
defenders of express conditions of the contract.
[25] The matters in
paragraphs [13], [14], [16], [19], [20], [21] and [23] above constitute breaches of the admitted
implied term of the contract that the defenders would carry out the work with
the skill and competence reasonably expected of a building contractor of
ordinary competence.
[26] The matters
referred to in paragraphs [10], [14], [19], [20], [21] were known to the
pursuers at the time they terminated the contract on 26 October
2006. The other matters referred to in the
remaining paragraphs from [10] to [23] above were not known to the pursuers at
the time they rescinded the contract but were in existence at that time.
[27] The cumulative
effect of the defenders' breaches of various aspects of the implied term of the
contract relating to the standard of work is that the defenders were in
material breach of that implied term to such an extent as to entitle the
pursuers to rescind the contract. The
defenders carried out the work to a standard far below that of a building
contractor of ordinary competence.
[28] The cumulative
effect of the defenders' breaches of the express conditions of the contract and
of the implied condition of the contract was to render the defenders in
material breach of their contractual obligations to the pursuers to such an extent
as to entitle the pursuers to rescind the contract.
[29] The pursuers
in fact rescinded the contract on 26 October 2006 when they ordered the defenders from
the site. Their decision was reaffirmed
when they refused the defenders' trade organisation's request that the
defenders be allowed to return to the site to remedy the work.
(v) Were the
pursuers in breach of contract?
[30] The pursuers did not unreasonably refuse
or fail to allow the defenders access to the site to complete the works.
[31] The works were
to be carried out and the extension built whilst the pursuers remained resident
in the dwelling house. Delays in
emptying or moving cupboards in the existing kitchen were attributable to the
failure by the defenders to make sufficient progress with the works in the
extension to enable the pursuers to empty, remove and store the kitchen units
in the extension. No evidence to the
contrary was led. The implied condition of allowing the contractor access to
the site does not mean that a contractor can insist on carrying out only one
piece of work under the contract at a particular part of the site to the
exclusion of him carrying out other works which could reasonably be carried out
at other parts of the site. As can be seen from the findings there were many
other matters which on the face of it the contractor could have got on with,
including remedial work. There was no evidence that the defenders could not
have progressed with other aspects of the work while waiting for the kitchen
units to be emptied. During the week in October 2006 when the pursuers were on
holiday the defenders continued with the works.
[32] The pursuers
were not in breach of their contractual obligation to the defenders to allow
the defenders reasonable access to the site.
Findings in law
[33] The defenders being in material breach of
their contractual obligations to the pursuers, the pursuers were entitled to
rescind the contract, and did validly rescind the contract on 26 October
2006.
[34] In addition to
the circumstances known to them as at the time of the rescission the pursuers
are entitled to found on circumstances in existence at that date but not known
to them at that date as justifying their rescission of the contract.
[35] The pursuers
were not in breach of their contractual obligation to allow the defenders
reasonable access to the property to carry out the work.
NOTE:
[36] I found the
pursuers Mrs Patricia Ross and Mr Alan Ross both to be entirely honest, credible
and reliable witnesses. I found Mr Keith Moir the chartered building
surveyor to be an impressive and a credible and reliable witness with a clear
grasp of the issues in the contract and with a fair attitude towards
cross-examination by counsel for the defenders.
Similarly Mr Kidd from the Building Control Department of Aberdeen
City Council was a credible and reliable witness with a clear grasp of the
relevant building control requirements. His evidence was of use in establishing
that production 5/3/1, which is the copy of the plan which bears the building
warrant approval stamp was the copy in respect of which the building warrant
was issued. In particular the manuscript
notes on the production were present on the copy of the plan in respect of
which the building warrant was granted.
His evidence was also useful in respect of the department's attitude to
strict compliance with the terms of the building approval.
[37] So far as the
terms of the contract are concerned the principal document describing the works
to be carried out is production 5/3/1, namely the detailed plan
No 001/05 with the manuscript notes and bearing the stamp of the Building
Department. There are two parts to this
document namely the drawing and the detailed notes, predominantly type-written
but with one or two manuscript amendments.
Both parts are of importance. The
drawing shows clearly by section, elevation and plan what the extent of the
works was and where walls, windows and doors were to be erected in the
extension and removed from the existing building. They also show clearly the lean-to roof for
the extension and the design for the roof trusses in the lean-to roof. The type-written notes on the drawing are
very detailed as to the materials to be used and some of the methodology to be
followed. In addition the general notes
on the left hand side of the bottom half of the drawing clearly set out certain
standards which are to be followed in the execution of the works. These general notes provided:
"All works to be in accordance with
relevant British Standards specifications, codes of practice and engineers'
specifications. All works to be in
accordance with the Building (Scotland) Regulations 1990 and amendments."
On the right hand side of the drawing there is a provision
that the external walls should have a 50X50mm
cavity barrier.
[38] All of these
matters, and other matters referred to in the notes on the drawing are express
terms of the contract which the defenders required to comply with. Compliance with the British Standards
specifications, codes of practice and Buildings (Scotland) Regulations were not
in this contract implied conditions or part of the general implied condition
relating to the competence of the contractor of ordinary skill.
[39] So far as the
detailed schedule of works (production 5/1/2) is concerned, this is agreed to be
a contract document, but its exact effect is not specifically agreed. I do not consider that this document sets out
what was contractually agreed between the parties to be the detailed works to
be carried out. It is not a Bill of
Quantities in the normal sense, where such a Bill is produced on behalf of the
employer and provided to the contractor with a view to (a) defining exactly the
works which the employer requires to be carried out and (b) requesting prices
in accordance with the Bills. Production
5/1/2 was produced by the defenders some considerable time after the defenders
had submitted their written quotation of 18 April 2006 to the pursuers and the
pursuers' had accepted that offer on or about 20 April with a condition that
the works would take 16 weeks. The
schedule of works is what the defender has unilaterally produced after the
formation of the contract to show how he has made up his price, and was
doubtless useful for invoicing purposes.
It takes into account certain modifications relating to the use of
existing windows to bring about a reduction of the price, but it is not truly
in my opinion a contractual document in the sense of setting out the detailed
work which the employers wanted carried out.
The work which the employers wanted carried out remained broadly the
work which was set out in the plan 001/05.
[40] So far as the
time for execution of the works is concerned I am satisfied that from the
evidence of Mr and Mrs Ross and in particular the evidence of Mrs Ross
that she had a specific requirement that the works be completed within
16 weeks. She said that she had
asked Mr Johnston how long the works would take, that he had told her
16 weeks and she had then made that period of time the period of time
within which she wanted the contract to be carried out, and that
Mr Johnston had accepted this.
There was no contrary evidence from Mr Johnston. Mr Ross did talk about the time for the
contract being "around 16 weeks" but I am satisfied that Mrs Ross's
recollection is to be preferred. She had
good reasons for wanting to fix the length of time of the works so that the
house could thereafter be decorated and got ready for a family Christmas. The
defenders were aware of this.
[41] When
Mrs Ross required the defenders to leave the site, 15 of the 16 weeks had
been used and at least a further ten would be required to finish the work which
would have taken it to 31st December. Accordingly by 26 October there was no
prospect of the building works being finished in time for Mrs Ross to have
the house decorated and ready for the family coming for Christmas. In these circumstances, while normally an
ultimatum might be required, as counsel for the defenders suggested, to justify
rescission on the basis of time alone, I do not consider that an ultimatum is
necessary in circumstances where the works simply could not be concluded
anywhere close to the contractually permitted period, and could not be
realistically completed in time for the event which had caused the pursuer to
set the contractual period. Accordingly,
had this been the only breach of contract on the part of the defenders I might
well have been satisfied on the evidence which I heard that the defenders were
entitled to terminate the contract by reason of this breach alone.
[42] The remaining
breaches which I have found to be established by the evidence are either
breaches of express terms of the contract and breaches of implied terms. Some of them clearly are more serious than
others. For example, the erection of
roof trusses which were not in accordance with the drawings would have meant
that, without rectification a completion certificate would not have been
issued. This represents a material
breach of the contractual obligation and, on the face of it, a simple disregard
of the requirement contained in the drawing.
Similarly the problem with cavity barriers represents a clear and
material deviation from the contract drawing.
[43] It was a
matter of admission by the defenders that it was an implied term of the
contract that in providing building services the defenders would use the skill
and care reasonably to be expected of building contractors of ordinary
competence. I consider that work in conformity with a code
of practice specified on drawing 001/05 is an express term of the contract in
accordance with the notes to which I have referred. Either way failure to
comply with the code is a breach of contract and in the circumstances narrated
by Mr Moir a material breach of conduct.
The loose fitting of the Celotex insulation is an example of work not
being carried out with the skill and competence reasonably to be expected of a
building contractor of ordinary competence.
It would not be a difficult matter to cut and friction fit a panel of
rigid expanded foam to a timber frame. Failure to so amounts to a material
breach of the implied condition. The failure to protect those cavity barriers
which were fitted with a separate dry proof course is either a breach of
building standards, and therefore breach of an express term covered by the
general notes, or it is a failure to carry out work to the implied standard of
skill and competence. The building of a
window aperture in such a way that the block or brickwork is narrower than the
window frame is a clear example of a lack of ordinary skill and competence, as
is the failure to use appropriately spaced screws or nails in the fixing of the
plasterboard. This, it seems to me would
be a very simple matter and the failure to comply with it must be seen, in the
absence of an explanation from the defenders, to be down to a simple lack of
care or ability.
[44] I do not
consider that the Schedule of Works contained in No 5/1/2 of process this
contains a prescriptive statement of the number of visits to be made to the
site to remove debris, but rather that it is a simple estimate of the number of
skips which the defenders thought would be needed to remove an estimated
quantity of rubble etc. My own interpretation of what it means, in the
absence of evidence from the person who produced it, is that a total of 28
cubic metres of debris etc. would need to be removed at a price of £ 24.92 per
cubic metre, giving a total price of £697.76.
Each skipload would take 4.5 cubic metres, a total of over 6 loads, requiring
7 skips. Whether this is an express condition of the contract or whether it is
part of the general duty of ordinary care and competence in respect of leaving
the site safe and tidy, and clearing away debris from time to time, does not
really matter. The defenders only once
provided a skip and thereafter rejected both Mr and Mrs Ross's repeated requests to remove
the waste materials. There was a clear breach by the defenders, and their
attitude that this was a matter for the pursuers to arrange, pay for and
implement, indicates that it was a breach which they were not prepared to
remedy. In my view this was a material
breach, given that the pursuers were continuing to live on site, and it was a
breach which by itself might have justified recission on the part of the
pursuers. In addition to this there is
the excavation to the new kitchen floor where the wall was to be built in the
garage where no steps had been taken to render this area safe, and in addition
to the foregoing is the general lack of contract management skills being
applied to taking down the pre-existing rear wall and the erection of the
extension including the walls, windows etc, and the need to do this in a way to
protect the existing living space of the pursuers. These were all matters which were known to
the pursuers at the time of the rescission of the contract. In my opinion taken together these matters
constituted a material breach of contract by the defenders which justified
recission on the part of the pursuers. So
far as the clearance of the site outside was concerned, this was not something
which could be remedied as they had already declined to do anything about
it. So far as the dust and stoor and
general mess occasioned by the way in which the defenders took down the rear
wall and built the extension without protecting the pre-existing living space
it is possible that this could have been put right, but there is no evidence
that the defender ever intended to do that, other than through the final
completion of the works. Looked at together these matters are indicative of a
contractor who was falling far below the levels of skill and competence to be
expected.
[45] Many of the
matters I have referred to however were matters of which the pursuers were not
aware at the time when they rescinded the contract and the question arises as
to whether they are entitled to take account of those matters of which they
were aware at the time as justifying or supporting in retrospect their decision
to rescind the contract.
[46] Mr McNeil, counsel
for the defenders submitted that the pursuers could not take them into
account. He referred to the report of
the Scottish Law Commission on Remedies for Breach of Contract dated 6 December
1999 and in
particular Part 4 thereof. In
paragraph 4.6, dealing with the question of intimation of rescission to
the party in breach, the Commission invited views on the proposition that "it
should be made clear that rescission is effected by intimation to the party in
breach". In doing this they stressed that
the important point is that "the decision to respond to the repudiation or
breach by bringing the contract substantially to an end should be communicated
to the other party". He submitted that
rescission of a contract was effectively an acceptance of the repudiation or
breach of contract by the other party, and that one could only accept what one
was aware of. That is of course a
summary of a longer and deeper submission.
It has a logical attraction to it, but Mrs Hunter, the solicitor for the
pursuers, dealt with it by reference to authority. The first authority was the Opinion a first instance
of Devlin J in the case Universal
Cargo v Citati. [1957] 2QB 401. The opinions of Lord Devlin are always going
to attract great respect. What he said
at page 443 was:-
"In that event can the rescinder
having rescinded for the wrong reason, perhaps because he misinterpreted the
conduct of the other side, justify his action by relying on the facts which
come to his knowledge thereafter and with the aid of which he can prove
inability. It is now well settled that a
rescission or repudiation if given for a wrong reason or for no reason at all
can be supported if there were at the time [my emphasis] facts in
existence which would have provided a good reason".
In the Scottish case Lamarra
v Capital Bank Plc 2006 SLT 1053 the
Opinion of the Court was delivered by Lord Osborne. Having quoted the paragraph from
Devlin J the Opinion of the Court continues at para. [77]:-
"With that Opinion we would
respectfully agree. Thus it seems to us
that the absence of a reference in the letter of 30 March 2001 to some
particular defect upon which the respondent now seeks to found possesses no
particular significance other than, perhaps, affording to the appellants the
opportunity to comment on the absence of such reference in the context of any
consideration of the respondents' evidence.
So, in our view, the question arising is whether, on the evidence
available to him, the Sheriff Principal was entitled to take the view he did
regardless of the contents of the letter."
[47] Mrs Hunter
referred also to the case of Owen v Fotheringham 1997 SLT (Sh Ct) 28.
In that case the pursuers had contended that when the defenders stated a
specific ground for holding the contract to be at an end they could not, many
months later, advance other grounds, and that as in that case the entire
defence to the action was based on grounds for rescission other than those
initially stated by the defenders as their reason for holding the contract to
be at an end the defence and the merits should be dismissed. Sheriff Paterson held that the defenders are
not precluded by the position they took up initially from departing from that
position and founding on other relevant matters as grounds for rescilling from
the contract. He considered that the
important matter was that in the case the pursuer could not have been in any
doubt that as from 9 December 1993 the defenders considered that they
were no longer bound by the contract, and that that was all the notice that the
defenders had to give.
[48] In the case of
Glencore Grain Rotterdam v Lebanese Organisation for International
Commerce 1997 SLT 2 Lloyd's Reports 386 at 394-395 Lord Justice Evans said:
"It is a long established rule of law
that a contracting party who, after he has become entitled to refuse
performance of his contractual obligations gives a wrong reason for his refusal
does not thereby deprive himself of a justification which in fact existed,
whether he was aware of it or not. .... the rule is however subject to a proviso.
If the point not taken is one which if taken could have been put right,
the principle will not apply."
[49] In all of the
circumstances I am satisfied that the pursuers are entitled to rely on the
various defects which came to light after the date of the rescission, but
subject to the proviso as to whether
these defects could have been put right.
[50] This leads to
Mr McNeill's submission on the right to cure. Mrs Hunter did not dispute the exixtence
of such a right in appropriate circumstances, her point was, both in her first
written submissions and in her response to Mr McNeill's submissions, that
there was no evidence from the defenders that they would have done anything to
cure the defects, indeed it was no part of the defenders' case as pled that
they would have been willing to cure the defects in their workmanship. They do not accept in their pleadings that
there were such defects. They offered to
complete the works but were not permitted to do so. The remedial work which they refer to in
their pleadings refers to the need to correct works carried out by others
previously on the property. For example,
so far as cavity barriers were concerned the defenders say in their pleadings
that they intended to install the front door cavity barrier at a later stage,
but aver that all other cavity barriers had been installed. They aver that one of the three rear walls
was off plumb, but do not say that they intended to repair or fix that. They say, in respect of the materials in the
garden, that these would have been removed at the end of the contract, and had
left some of the material for use. The
evidence from Mr Moir was that it would be inappropriate to use the material
which had been left. Whatever the defenders position on record they led no
evidence in support of it.
[51] I accept the
pursuer's position that there is no basis on which it could be said that the
defenders intended to carry out remedial works in respect of any of the defects
which were found by Mr Moir.
[52] Mr Moir is a
highly experienced building surveyor. His conclusion in respect of the totality
of the work which he found when he visited the pursuer's home, and which
represented the state of the works when the pursuers instructed the defenders
not to return to the site, was that he did not think the defenders were capable
of completing the works to a satisfactory standard, on the basis of the
standard of work which he could see on the site at the time of his visit. He himself would, in his words "have had
difficulties continuing with them" i.e. the
defenders. This inability of the defenders to meet acceptable building
standards being inherent would not have been immediately capable of being put
right.
[53] Mr McNeill
referred to Macari v CelticFootball &
Athletic Club 1999 SC 628. He submitted that there were breaches of
contract and material breaches of contract, and within the concept of material
breaches of contract there were those which justified rescission, and those
which did not. He submitted that any
breaches which might be established in respect of the defenders' work fell
within the category of breaches which would not warrant rescission.
[54] Mrs Hunter for
her for part accepted that there were different levels of breach and of
materiality of breach but submitted that viewing the breaches collectively or
individually there were ample grounds for the pursuers to rescind the contract.
[55] I accept that
there were a number of breaches of contract which could be considered material,
and sufficiently material to warrant rescission of the contract. These would include the refusal by the
defenders to carry out the works within the house in a clean and tidy manner in
the circumstances which pertained here namely that the works were to be carried
out while the pursuers continued to reside in the premises. I consider that the failure to erect the roof
trusses in accordance with the approved drawings was a material breach of
contract which would have resulted in the pursuers being unable to obtain a
completion certificate. I consider that
the failure to adequately fix the windows which had been relocated to the rear
wall of the new extension, and which inadequacy would not have been discovered
had the works not been interrupted and the defenders' contract terminated would
constitute such a breach. Similar considerations would apply in respect
of the cavity barriers and the block work round the window apertures. The unprotected trench which the defenders
excavated in order to place the foundations for the block partition between the
kitchen and the garage constituted a serious health and safety hazard and in
itself too might have amounted to a material breach of contract warranting
rescission of the contract.
[56] Some of the
works might have been capable of being remedied, and a decision to rescind may
have had to have been delayed if the defenders had offered to carry out
remedial works. Their position however,
on record, and there was no evidence to any different effect, was that they
considered their work to be acceptable.
[57] The defenders
were under an admitted duty to carry out the work using the skill and care
reasonably to be expected of building contractors of ordinary competence. Similarly it was an admitted term of the
contract that the defenders would carry out the works in accordance with the
principal contract drawing which required the works to be executed in
accordance with Building Regulations, Codes of Practice etc. In respect of both the express terms and the
implied terms of the pursuer say at the end of Condescendence 5 and 6:-
"Each and all of said failures to
carry out the work in accordance with the express (Condescendence 5) or implied
(Condescendence 5) terms of the contract between the parties amounted to a
material breach of contract by the defenders."
In my opinion the cumulative effect of the various breaches
of contract by the defenders amounted to a material breach of contract of such
magnitude that the pursuers could not reasonably be expected to allow the defenders
to carry out any further work on their property.
[58] So far as the defenders' counterclaim is
concerned the first crave, for £8,975.64, is founded upon an alleged breach of
contract by the pursuers in denying the defenders access to the premises to
undertake and complete the contract works.
The loss on this head amounting to £5,755.64, together with claims for
£1,820, £1,000 and £400 for being denied access to the works respectively
between 10 and 18 September, for one week from 25 September, and for 12
and 13 October, all 2006.
[59] The second sum
counterclaimed by the defenders is the sum of £3,383.65 which relates to works
carried out by the defenders on the contract before termination of the
contract, but which the pursuers say were defective works.
[60] So far as the
first of these matters is concerned, for the reasons which I have set out above
I do not consider that the pursuers were in material breach of contract in
respect of the access which the defenders were given to the site. In my opinion when works are being carried
out on a dwelling house by a building contractor in circumstances where the
occupiers of the dwelling house are to continue in residence throughout the
execution of the works, these works have to be both programmed and executed in
a way which reasonably takes into account the requirements of the occupiers to
live in the house with a degree of reasonable comfort. The only evidence I heard on this point was
the evidence of the pursuers who found that the scheduling of the works,
relating to the kitchen, and the quality of the work in terms of the dust and
stoor generally created by the works in the pursuers' living area were such
that it was not reasonable to expect them to accept. I prefer the evidence of
the pursuers as to the length of time that the defender was unable to work on
the kitchen. There was no evidence from
the defenders to the effect that there was no other work under the contract
which would have been carried out, and indeed it is clear from the evidence of
Mr Moir that there were significant areas of work where the defender could
either have been progressing the works or, if he had accepted that there were
defects, remedying or at least attempting to remedy some of these defects.
[61] So far as the
defenders' second crave is concerned, which refers to the defenders' invoices
Nos. 123 and 124, I accept that there
were defects in respect of at least some of this work, but the defenders may be
entitled to payment of the works which they have carried out to the extent that
they were not defective. So far as they
were defective and capable of being remedied, the defenders may be entitled to
payment for the value of the work they have carried out under deduction of the
cost of remedials. These matters will
require to be decided at proof.
[62] I will
accordingly put the case out for a procedural hearing in terms of Rule 40.14 to
determine the order which I should make having regard to the findings I have
made in this judgment, and also to discuss further procedure in respect of the
case.
[63] That hearing
will take place in Aberdeen Sheriff Court at 10 am on 29 August
2008.
