Scottish Sheriff Court Decisions

A85/06

 

SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT CUPAR

JUDGEMENT OF

SHERIFF G J EVANS

in causa

MAGNET LIMITED

a Company incorporated under the Companies Acts and having a place of business at Royd Ings Avenue, Keighley, Bradford, BD1 4BY

PURSUERS

against

JOHN B CAPE

t/a BRIGGATE INVESTMENTS

residing at

14 Kilnburn, Newport-on-Tay, Fife

DEFENDER

 

CUPAR, 19 July 2007. The Sheriff, having resumed consideration of the cause, FINDS-IN-FACT:-

 

1.      The parties are as designed in the instance.

2.      The pursuers are in the business of supplying and fitting kitchens. The defender is the sole proprietor of a property rental business. In October 2005 the defender chose to have the pursuers' Kuta kitchen range fitted in his home on to a pre-tiled floor. This range is the second most expensive of those offered by the pursuers and it comprised a painted finish over ash doors, drawer fronts, and with a combination of white or speckled melamine facings used internally within the kitchen fitments ie backings and internal gables/shelving.

3.      The defender instructed the pursuers on 29 October 2005 to supply and fit all base units, wall units, the integral sink set within a polished granite worktop with matching upstand, to install an integral fridge/freezer unit and to supply and install décor panels to the rear of the island units formed around a spiral staircase leading down to the basement area. The décor panels were to be of the same material and finish as the gable panels used on the kitchen fitments to maintain a continuity of finish and style throughout the kitchen area.

4.      The impression given by the pursuers' brochure was that the work would be done by "our professional installers" or "our craftsmen" but, unbeknown to the defender, that did not refer to their own employees, as the pursuers do not themselves fit their own units but sub-contract the work to their usual sub-contractors. In November 2005 the pursuers duly supplied the material to the defender and the fitting work was carried out by two tradesmen employed by the pursuers' sub-contractors over a period of 3 days to 7 November 2005. Neither party has proved whether or not the two tradesmen employed were both qualified or only one was, the other being a trainee.

5.      The pursuers issued to the defender 5 separate invoices in respect of the work contracted for as per 5/1 to 5/5 of Process inclusive. The first invoice for £770.63 dated 6 October 2005 related to the fridge manufactured by Neff. The second invoice for £8,157.94 dated 1 November 2005 related to materials. The third invoice for £87.60 dated 9 November 2006 also related to materials. The fourth invoice for £3,287.83 dated 26 November 2005 related to the granite worktop and the fifth invoice for £1,996.33 dated 7 February 2006 related to the installation costs. None of these invoices have been paid by the defender.

6.      After the pursuer had had the work completed, the defender completed certain other works including the installation of a "Smeg" canopy hood over the cooker, the installation of a new cooker/range and the finishing of wall tiles above base units around the cooker and between base units and wall units to two wall surfaces.

7.      In the initial stages, the only complaint the pursuers had from the defender was in respect of the matters highlighted in their corrective action reports, No 5/7 of Process dated 7 November 2005 and No 5/8 of Process dated 7 November 2005 but signed on 9 May 2006.

8.      On 1 December 2005 the defender signed No 5/9 of Process, a post installation visit form in which it was stated on his behalf that Alan Jackson, the pursuers' design manager, "provided an excellent service. His time, patience and advice were invaluable. We are delighted with our new kitchen."

9.      By 22 February 2006 the defender had however let the pursuers know that he was so dissatisfied with the kitchen that he wanted the entire installation removed.

10.  The pursuers offered to arrange for a fitter to return "to complete the works" (vide 5/4 of Process) but there was no direct response from the defender. His solicitors had by then been instructed and by 17 March 2006 they had intimated to the pursuers that the defender had signed the post installation visit form only on the understanding that "the works would be sorted." The defender was not accepting the kitchen due to its condition.

11.  The pursuers sought to negotiate a settlement by stating that if the defender provided a list of all the works he required doing, permitted the pursuers to return and attend to the corrective works and paid his account, they would reduce what was due in terms of their invoices by £700.

12.  By then the defender had lost faith in the staff at the pursuers' Perth branch and did not want any communication with them and he wanted a site visit from someone outwith that branch. He refused to give the pursuers' fitters access meantime and did not respond to the pursuers' mobile calls or calls to his landline.

13.  Eventually the pursuers involved Mr Ian Marr, their Divisional Installations Manager in their dispute with the defender and he agreed to look at the kitchen and discuss with the defender what his concerns about it were to see if the matter could be resolved.

14.  Mr Marr paid a visit to the defender at his home on 9 May 2006. They agreed that the whole requirements to be done were as specified in 5/8 of Process, the corrective action report signed by Mr Marr that day viz 1. Replace 500 door. 2. Replace end panel. 3. Replace pan drawers. 4. Replace (white) carcass with sandstone colour. 5. Replace end panel. 6. Organise site visit for Neff to attend tall fridge model number required.

15.  Mr Marr indicated that the pursuers were willing to attend to those matters and asked the defender if meantime he was willing to pay something to account of the outstanding invoices. The defender agreed to pay £10,000 to account of the price, but insisted that it be done through his solicitors.

16.  The defender made out a cheque for £10,000 in favour of the pursuers on 19 May 2006 and sent it to his solicitors and the pursuers received it the following day and presented it for payment on 22 May 2006.

17.  By 9 June 2006 the pursuers, having by then presented the cheque twice, were aware that the defender's cheque had not been and would not be honoured.

18.  When this was brought to the defender's attention, he faxed the pursuers' solicitors on 15 June 2006 as per No 5/12 of Process and stated that the cheque for £10,000 "was unfortunately not honoured due to funds that I was expecting being delayed." If pursued for payment by court action he would be likely to revert to his original decision that the entire kitchen be removed as it was "not fit for purpose".

19.  His own solicitors wrote to the pursuers' solicitors at this point on 16 June 2006 stating inter alia "subject to your clients not raising court proceedings meantime, our client will have payment of £10,000 direct to your clients by the middle of July, if not earlier." (vide 5/11 of Process).

20.  The defender changed his mind, however, and never arranged any such payment. He decided not to make any further payment once a second set of pan drawers collapsed.

21.  The defects in the kitchen installation carried out by the pursuers' sub-contractors were as follows:-

 

(a) Kitchen unit carcasses were installed in the wrong position and were of the wrong colour;

(b) End décor panels were poorly fitted and showing gaps;

(c) The two sets of pan drawers did not finish flush with the unit carcasses when closed, collapsed and their poor installation damaged the adjacent drawer unit;

(d) Facings detached near the floor;

(e) Kitchen units were marked on installation;

(f) Kitchen units did not sit flush with each other or with the floor;

(g) A kick plate was damaged and glued together;

(h) The cupboard handle on the integrated fridge became detached and was replaced with a 'dummy' handle leaving screw holes where the original handle had been previously located;

(i) The runner unit for the top drawer of the fridge became broken;

(j) The finish between the fridge and the closing carcass was poor with screw fittings being exposed, gaps apparent, the pvc sealing strip distorted and poorly fitted and the end panels projecting above the front rails;

(k) The doors of the kitchen units were poorly fitted with varying gaps being apparent between the doors and the unit carcasses;

(l) The drawers did not finish flush with the unit carcasses;

(m) The fitting of kick plates and adjacent base unit carcasses was poor with gaps being apparent and unhygienic;

(n) The timber cutlery drawer inset became fractured;

(o) Unit doors were affected by shrinkage and were ill-fitting;

(p) Unit Carcasses and granite worktops did not have a level finish;

(q) The fridge freezer supplied by Neff was defective and ceased to operate as a consequence of which the defender required to purchase a replacement fridge.

 

22.  The three reports in process, viz (i) 5/13 of Process, a report prepared by David Topping, Furniture Ombudsman Consultant dated 9 March 2007; (ii) 5/15 of Process, a report prepared by Gavin Ramsay of Ramsay McMichael Consulting Limited dated 12 June 2007 and (iii) 6/11 of Process, a report prepared by Richard S Chalmers of Hurd Rolland Partnership dated 23 January 2007 all contain opinions on the installation of the kitchen by the pursuers at the defender's home at 14 Kilnburn, Newport-on-Tay, Fife and all the opinions expressed therein are true and accurate.

23.  The defects listed in Finding-in-Fact 21 supra were all remediable by the pursuers and could have been carried out by two professional craftsmen over 3 full working days at a probable cost to the pursuers of £1200 for labour, they supplying any additional materials. The fridge would have been replaced by the pursuers through their manufacturers NEFF.

24.  The defender has prevented the pursuers from arranging and carrying out any such remedial works.

25.  The defender has continued to use said kitchen and its fitted units since November 2005 to date.

 

FINDS-IN-FACT-AND-IN-LAW:-

 

1.      It was an implied term of the parties' contract that the pursuers would achieve a standard of finish commensurate with a luxury kitchen and that the kitchen would be fitted with reasonable care and the standard to be expected of reasonably competent kitchen fitters.

2.      By finishing and fitting said kitchen with the defects in Finding-in-Fact 21 supra, the pursuers were in material breach of contract with the defender.

3.      Said breach was, by degree and circumstance, remediable by the pursuers.

4.      By failing to give the pursuers an opportunity to rectify said breach, the defender has disentitled himself from treating said contract as rescinded.

5.      The pursuers' said breach, while material, is not sufficiently material so as to disentitle the pursuers from payment of the contract price less the cost to them of reinstatement.

6.      The defender accordingly remains liable to pay the contract price to the pursuers under deduction of the cost of reinstatement.

 

Repels the pursuers' plea-in-law for want of insistence; Sustains the pursuers' second plea-in-law to the extent awarded; Repels the defender's second plea-in-law; Accordingly Grants Decree for payment by the defender to the pursuers of the sum of THIRTEEN THOUSAND ONE HUNDRED AND SEVEN POUNDS THIRTY THREE PENCE (£13,107.33) with interest thereon at 8 per centum per annum from the date of citation until payment; Finds the defender liable to the pursuers in the expenses of the action; and Allows an account thereof to be given in and Remits the same when lodged to the Auditor of Court to tax and to report; and Decerns.

 

 

 

 

Sheriff

 

NOTE:-

 

INTRODUCTION

 

This was a Proof Before Answer in respect of the amended second Record, No 14 of Process. The pursuers, who are a limited company based in Bradford but with branches throughout the UK and in particular in Perth, are in the business of supplying and installing kitchens. The defender, who is in business in property rentals as Briggate Investments, was treated by the pursuers as a trade customer when he contracted with them at their Perth branch for the supply and fit of a kitchen to his private residence in Newport-on-Tay. He was not therefore required, as an ordinary retail customer would have been, to produce the money up front. The kitchen was duly installed in November 2005 and the pursuers billed the defender a total of £14,307.33 as per the total of the five invoices lodged in process comprising numbers 5/1 to 5/5 inclusive. The defender has not paid any of these on the ground that the pursuers are in material breach of contract, in particular in respect of the items listed at paras (a) to (q) in Answer 2 of No 14 of Process. The pursuers' position on these items is that they amount to snagging work only and they have always accepted such work requires to be done and they are willing or would have been willing to have it carried out. It would take three working days to be done. There was an agreement that the defender pay £10,000 at one point towards on condition that certain remedial work was done but he changed his mind about that and would not allow the pursuers back into his home.

 

I heard evidence and submissions all in one day. This proved possible because of a Joint Minute of Admissions lodged at the outset of the Proof (vide No 17 of Process). The effect of that document was to dispense with the necessity of calling as witnesses any of the persons who compiled the various reports lodged in process (ie Nos 5/13 and 5/15 for the pursuers and 6/12 for the defender). The contents of the reports are to be taken as the evidence of the respective compiler of it and the opinions expressed in each one is to be taken as true and accurate. Thus the only witnesses called for the pursuers were Mr Brian McCormick, the general manager of their Perth Branch and Mr Ian Marr, their divisional installation manager. The only witness for the defender was the defender himself. Mr Murdoch, Solicitor, Glasgow appeared for the pursuers and Ms Buchanan, Solicitor, Dundee for the defender.

 

SUBMISSIONS

 

Mr Murdoch submitted that the real issue in the case was whether the extent of the remedial work required showed that the pursuers had been in material breach of contract. The best place to ascertain that was in the various reports, the two for the pursuers supporting a cost for the remedial work of £1200 over 3 days. The defender's report contained no estimate of the remedial cost or time but on the facts did not differ greatly from those other reports. Mr Murdoch saw the issue as being whether what required to be done showed that the pursuers had so far been in material breach or not. Having regard to the pursuers' reports and the evidence that the kitchen was usable at present, and that the pursuer was at one point prepared to pay £10,000 to account, the short- fallings in the fitting of the kitchen could not be said to amount to a material breach. The pursuers should be entitled to payment in full for the kitchen fitting and remained prepared to put things right. If that was not possible, it would be open to me to award the pursuers what was due under the invoices less the remedial cost of £1,200 - although, as Mr Murdoch pointed out, the defender had no pleadings to that effect.

 

Ms Buchanan for the defender pointed out that Mr McCormack for the pursuers had little first hand knowledge of the contract and Mr Marr only came into it at a late stage in May 2006. Mr Marr did not even accept the line taken by the pursuers in their own pleadings and his views should be disregarded. His evidence that there was a trainee employed contradicted the position in the pursuers' pleadings. I was invited to accept the evidence of the defender about his complaints about the kitchen. Extensive remedial works were going to be required. To be effective they would take as much time if not more than the original contract. That must surely mean that there had been a material breach. The pursuers had denied on record the defender's averment about the standard of care required on the work but no contrary evidence about that had been led. I was referred to McBryde on The Law of Contract in Scotland (2^nd Edition) at para 9-37 as confirming that "A person carrying out services impliedly undertakes to exercise the ordinary standard of care and workmanship of a practitioner of that trade." It was a question of fact whether or not the breach had been material (vide Stair Encyclopedia Volume 15 'Obligations' at para 780). The reports tended to suggest that the various breaches were material in cumulo and I should find accordingly. When a party was in material breach he could not insist on his right of performance by the other party (Stair Encyclopedia ibid at para 779). I was invited to sustain the second plea-in-law for the defender and repel the second plea in law for the pursuers, thereby assoilzing the defender from the crave of the writ.

 

Both agents were agreed that in the absence of any speciality in my findings, expenses should follow success.

 

DECISION

 

(i) Factual Issues

 

The evidence I heard at the proof has allowed me to set out chronologically the sequence of events in this case but I consider that Ms Buchanan is correct to suggest that none of the witnesses called by the pursuers could speak directly to the quality of performance of the contract. The meat of the case in that regard lies in the views expressed in the various reports. Given the way that these have been dealt with at the proof, ie all agreed by Joint Minute, it must follow that evidentially they must be given equal value and read as being consistent with each other. There is fortunately a large measure of agreement between the reports as to the deficiencies in the work done and from that I satisfied that all the defects listed by the defender in his pleadings at pages 4 and 5 of Answer 2 (apart from the last one which was a manufacturer's fault but one for the which the pursuers as suppliers would nonetheless be liable) were caused by the lack of care and expertise employed by the pursuers' fitters. For the reasons set out by Mr Chalmers in his report (vide para 1.04 of No 6/11 of Process), there can be little doubt that the defender was entitled to expect the highest standard of excellence and finish on completion of the work and equally little doubt that there was a widespread failure to achieve that. In my opinion, the number and range of the various faults show that the pursuers were in material breach on completion. Mr Topping, instructed by the furniture ombudsman, in his report (5/13 of Process) stated:-

 

"The main problem affecting the whole installation is lack of alignment of fascias and their décor housings. This along with some carcass leveling, cutting of cables and lack of sealant of prevent ingress has let down aesthetically what should have been a professional fit."

 

So he has identified problems affecting "the whole installation". He goes on to recommend the removal of all fascias and their décor panels to allow an alignment and leveling of the carcasses which will then permit a refit of all fascias. That is a fairly comprehensive task, as though the whole installation had to be done again to put right the lack of aesthetic finish. Mr Ramsay's report (5/15 of Process) identifies slight gaps throughout the entire installation (vide paras 5.01, 5.02, 5.03, 5.04, 5.10, 5.13, 5.17, 5.18, 5.24, 5.25, 5.27, 5.28, 5.29, 5.34, 5.35, 5.37, 5.40), various surfaces were not level (5.41) and a number of other miscellaneous problems such as the broken freezer. His recommendations are similar to Mr Topping's, ie removal, re-setting and replacement, with a view to achieving "a proper flush finish with uniform gap around all edges" (6.02) and "a tight and neat finish reducing the varying gaps that are evident and which allow noticeable light to shine through from under pelmet lighting" (6.03). Units such as the polished granite surface should be "removed and re-laid to absolute level" (6.04). Mr Chalmer's report (6/11 of Process) also identified end panels which were not tight fitting and flush with the main door and drawer frames of the fridge unit. There were "variable gaps" through out instead of uniform one. There was also "large and varying gaps" in the places identified in his report. As he explained in this report:-

 

"... there are a number of departures from reasonable tolerances. Many of the door faces do not finish flush with the main carcass frames. End panels are not properly and tightly fitted to the main carcasses. There are many areas of tapering gaps. The wall units over the sink in particular display tapering gaps where the various sections of the cupboards have been poorly fitted together. The bottom rail of the doors in that position also reflect differential shrinkage. The fact that the granite sink top is off level from one end to the other to the extent of 5 millimeters is also outwith the limits of normal tolerance.

 

The fitting of the end panels and the finishing of these against the floor have been poorly done. Some sections project the main frames. Sections of the kicking plates have been damaged. Other sections are not properly fitted and there are excessive gaps in some lengths which would provide a harbor for vermin. Gaps have been left between the base units and the underside of the marble. Such gaps will act as dirt harbors.

 

The main drawers in the units to each side of the fridge open and shut but in the process do not finish flush on the exterior and bind along the bottom rail. ...

 

It is evident from the examination of the fitting with the many tapering gaps, that straight forward professional standards of kitchen fitting have not been applied. This is particularly the case where the gaps vary between 5 and 2 millimetres. The fitting of the kicking plates has also been poorly done with large and excessive gaps." (vide para 1.14 at pages 9 and 10)

 

While a lot of the matters listed in these various reports may in isolation be minor matters that might fall within the term "snagging", I agree with Ms Buchanan that it is their cumulative effect that is of significance and, because they are so numerous and widespread throughout all of the different units that were fitted, they amount in my opinion to a material breach of the contract. I can quite appreciate why the defender, although aware of obvious things like a malfunctioning fridge without a proper handle, signed the pursuers' form after installation (5/9 of Process). To an untrained eye most of the small and slight gaps would probably not have registered and nor would have the lack of a true level have been apparent without use of a spirit level. In my view it does not detract from his case that he did sign such a form.

 

(ii) Legal Issues

 

That case, however, is not established merely by the defender demonstrating that the pursuers have been in material breach of contract, although this was the approach taken by both Mr Murdoch and Ms Buchanan in their submissions to me. To take that view is to ignore the obligation of the innocent party to give the guilty party an opportunity to remedy their performance to date should the circumstances still allow for that. This "right to cure" (vide McBryde ibid at para 20-124) has been recognised in a number of older cases (vide Whyte v McConochie 1761 M9173 - cited in Gloag on Contract (2^nd Edition) at page 607, McBryde ibid 20-125; McDonald v Mackie & Co (1830) 8S 686 - cited in McBryde ibid para 20-125; Morrison and Mason v Clarkston Bros (1898) 25R 427 - cited in Gloag ibid page 610 and Stair Encyclopedia ibid para 781) and re-asserted in more recent cases (vide Lindlay Catering Investments Ltd v Hiberian Football Club Ltd 1975 SLT (Notes) 56 and Strathclyde Regional Council v Border Engineering Contractors Ltd 1998 SLT 175 at 177). It has been said that the right to cure "may simply be another way of saying that the breach in question is not material, at any rate until the attempt had cure has also failed." (vide MacQueen and Thomson, Contract Law in Scotland at page 211). It has, however, also been stated in Stair Encyclopedia ibid at para 781 "where a material breach is remediable, the party in breach should be given a second chance to correct the breach." Obviously what at one point constitutes a material breach need not remain so if it can be cured but it will remain so if the cure fails. Some material breaches may be irretrievable but some may not. The point is that the opportunity to effect a cure should normally be allowed if that remains a realistic possibility at the time of the breach and such an opportunity is not barred merely by the materiality of otherwise of what is in breach. All three reports in the case support the view that all the deficiencies in the pursuers' performance via their sub-contractors were remediable. Mr Topping stated "... I do feel a professional installation could be obtained with some disassembly and re-installation etc" (vide page 5 of his report). Mr Ramsay stated "It is our opinion, two qualified and skilled joiners/kitchen installation fitters would require 3 if not 4 full working days to dismantle and change those elements referred to ... ." (vide page 12 of his report). Mr Chalmers stated that "... a range of remedial measures will be necessary to achieve a reasonable standard." (vide page 10 of his report), thus not ruling out the possibility of a cure. (The only caveat expressed was by Mr Topping who stated that "... the many remedial issues that are necessary to bring the installation to a professional standard would prove stressful to the consumer and costly for the retailer." (vide page 6 of his report). The cost, however, to the pursuers is not really relevant if they were at fault in the installation in the first place unless of course the work required was so great in proportion to the contract price as to render the prospect unreasonable and improvident (cf. Anderson v Dow (1907) 23 Sh.Ct. REP.51 at 57). That is not the position in the instant case. As to the stress caused to the defender, that could have been an element in a counterclaim for damages). All the work is therefore remediable but the defender ceased to be interested in allowing that to happen. In evidence he struck me as an abrasive and forceful character and it is not surprising that relationships between him and the Perth Branch deteriorated. He was however willing to discuss things with Mr Marr thereafter and it may well be, as is suggested in the pleadings and confirmed in his evidence, after he met with Mr Marr a second set of pan drawers collapsed and for him that was "the last straw". He would have been better advised thereafter to still give the pursuers a proper chance to remedy all matters. He has deprived them of their "right to cure" and thereby disentitled himself from rescinding the contract.

 

The ratio for that approach of the law has been characterised thus by Professor McBryde:-

 

"Giving an option to rectify a breach could be viewed as consistent with an obligation to terminate in good faith and the law may develop." (vide page 19, Note 80 of "The Scots Law of Breach of Contract" in Volume 6 2002 Edinburgh Law Review)

 

I would respectfully agree with that and in indeed it is brought out in the circumstances of the instant case. There may well be a doubt as to whether the defender was acting in good faith when he withdrew his previous agreement with Mr Marr to pay the pursuers £10,000 to account pending remedial action by the pursuers. His pleadings maintain that it was due to the emergence of further defects in the kitchen that he chose not to honour his cheque. It is clear that the bulk of them were however already present. Nor does this square with what he stated in his later fax of 15 June 2006 (No 5/12 of Process) in which he stated that "I accept that the cheque issued for £10,000 was unfortunately not honoured due to funds that I was expecting being delayed." This inconsistency was not satisfactorily explained in his evidence. All such problems of interpretation of deeds and motives may be set to one side if the sole and continuing responsibility on the defender is in such circumstances to allow access to the pursuers to carry out the remedial work. The right to cure also deals with the problem that arises in this case from the fact that the defender has made use of the kitchen as fitted for a very long period, viz for almost 20 months since it was fitted. It may be, as he suggested in his evidence, that although the kitchen was used, it was not a £15,000 kitchen. For the pursuers to have to dismantle and remove units that have been subject to normal wear and tear over this period would mean that they were not getting back the units in the same condition as they were when fitted. The rule that the guilty party should be given an opportunity to put matters right before the innocent party becomes entitled to rescind would prevent such a situation from arising. As this rule was ignored by the defender, the pursuers are entitled to succeed.

 

(iii) Outcome

 

What then should be the outcome of the proof? As already mentioned, the defender has not brought a counterclaim for damages against the pursuers. He could perhaps have claimed for stress and inconvenience, the price of a replacement fridge and the fact that instead of getting a luxury fitted kitchen, he has ended up with something that resembles one of the cheaper priced kitchens (cf Mr Chalmers' report at page 10) and the measure of his damages should be the diminution in value of his kitchen (cf Stair Encyclopedia ibid at para 911) rather than the cost of curative measures. None of that arises, however, in the absence of any counterclaim. The issue is whether the pursuers should get the full price as per their various invoices or that price under deduction of the cost of curative measures. In terms of the report from Mr Ramsay (which is the only report quantifying cost) that curative cost is stated to be £1,200 as all the materials would be supplied by the pursuers and as this has been unchallenged (indeed the defender himself in cross-examination conceded that the £1,200 was a "fair figure for the labour"), I must accept it. The right to cure does not go on to state what the pursuers should be entitled to where they have sued for the full contract price for a contract in which they have been found to have been in material breach but have been denied the opportunity to remedy that breach. As a matter of fairness, it appears to me that the pursuers should be entitled to their price less the cost of repair, as expenditure of that amount would have ensured that the defender obtained the quality of kitchen that he was entitled to expect. The defender's solution, that he forego having to pay anything to the pursuers and they should come and dismantle what they have already put in, would result in the pursuers losing their entire purchase price in exchange for the return of materials that may now be practically valueless to them. That seems inequitable and I prefer to grant decree for the purchase price under deduction of the remedial cost. That, I would suggest, is in line with the approach in the Scottish case of Speirs Limited v Petersen 1924 SC 428, founding in part on the English case of Dakin v Lee (1916) 1 KB566 at 581:-

 

"What the plaintiffs have done is to perform the work which they had contracted to do, but they have done some part of it insufficiently and badly; and that does not disentitle them to be paid, but it does entitle the defendant to deduct such an amount as is sufficient to put that insufficiently done work into the condition which it ought to have been according to the contract." (cf the discussion in Gloag and Henderson (11^th Edition) at para 14.06 and McBryde supra, paras 9-25 to 9-35).

 

I have granted decree accordingly and as the pursuers have been successful I have awarded expenses against the defender as the same shall be taxed.