Scottish Sheriff Court Decisions

SHERIFFDOM OF NORTH STRATHCLYDE AT KILMARNOCK

 

A99/08

JUDGEMENT   Of   Sheriff Brian A Murphy, Part Time Sheriff of North Strathclyde at Kilmarnock   In causa   JOHN McMANUS, trading as Caledonian Driveways and Construction, 23 Braehead, Dalry, Ayrshire, KA24 5EY   PURSUER   Against   MR GRAHAM KELLY and MRS JANETTE KELLY, residing at 8 Aitken Drive, Beith, Ayrshire   DEFENDERS

 

 

KILMARNOCK : 20 August 2010

 

The Sheriff, having resumed consideration of the cause, Finds the following facts admitted or proved.

 

Findings in Fact

 

1.             The Pursuer is John McManus. He trades as Caledonian Driveways and Construction from 23 Braehead, Dalry, Ayrshire, KA23 5EY

 

2.             The Defenders are Graham Kelly and Mrs Janette Kelly. They are spouses and reside together at 8 Aitken Drive, Beith, Ayrshire. They have resided there for about 20 years. They are domiciled there and this Court has jurisdiction.

 

3.             At the beginning of April 2007 the Defenders decided to carry out landscaping work at the property at 8 Aitken Drive aforesaid. They invited quotations from contractors. On the evening of 4 April 2007 the Pursuer visited the Defenders where he spoke to both of them. The parties discussed the work which the Defenders wished carried out. The Defenders explained to the Pursuer that they were about to go on holiday.

 

4.             On Saturday 7 April 2007 the Pursuer again visited the Defenders at 8 Aitken Drive aforesaid. He said that the work which the Defenders had indicated that they wished to be carried out to the front of the property had been priced at £10000.00. Work which had been discussed in relation to the rear of the property he said would cost approximately £7000.00, but that he would have a definite written quotation awaiting them on their return from holiday. He indicated that he was in a position to start work immediately and that he would have the front of the property finished for the Defenders return from holiday.

 

5.             The work which the Pursuer undertook to carry out at the front of the property comprised the following : -

 

Mono blocking of driveway and repair of wall to include coping, removal of vegetation and weed control and chipping of area, aqua channel in front of garage.

 

6.              The Defenders instructed the Pursuer to proceed with the work to the front of the property. There was thus constituted a contract between the parties for the execution of the works to the front of the property only at a price of £10000.00

 

7.              The work which was in contemplation at the rear of the property comprised the following : -

 

The construction of two decks, a sunken patio, the removal of an aviary and of a barbecue, the removal and replacement of a fence at the rear of the garden, lifting and replacing a path at the side of the property to be finished in mono block, replacement of walls around the patio, the slabbing of a path along the line of the fence at the bottom of the garden, the removal and rebuilding of retaining walls, the construction of a further small patio at the garage and coping to go along the top of the front low level wall and the wall at the said of the vegetable garden and the removal of the old lawn and relaying of same.

 

8.              When the Defenders returned from holiday they found that the work at the front of the property was about two thirds complete. The Pursuer advised them that he had found it necessary to rebuild a second wall at the front of the property because the existing dwarf wall was not sufficiently high.

 

9.              By the time the Defenders returned from holiday the Pursuer, contrary to his instructions, had taken out the fence to the rear of the property, had lifted and disposed of the side slabs, and had formed holes in the lawn to the rear of the Defender's property to receive the framework of the decking. At this stage no contract had been entered into for the execution of the works to the rear of the property.

 

10.          The Defenders spoke to the Pursuer. They reminded him that there was no agreement for work in relation to the rear of the property and they asked for his quote. The Pursuer again said the price would be around £7000.00. He also said that he would have the area measured properly and provide a firm quote.

 

11.          Because the Pursuer had embarked on the work to the rear of the property the Defenders took the decision to allow him to continue. There was thus constituted a contract for the execution of the works at the rear of the property encompassed within paragraph 7. Over the next few weeks the Pursuer and those employed either directly or indirectly by him carried out said work. The Pursuer suggested to the Defenders that a slabbed back path at the fence to the rear of the Defenders' property should be changed to a mono block path. The Defenders agreed to this. The Defenders raised certain concerns with the Pursuer about the way in which the works were being executed, as is more particularly set forth below. The Defenders made payment to account of the price of the works which totalled £13000.00.

 

12.         The following additional works were instructed by the Defenders.

 

The erection of a new fence to the right hand side of the garage, the addition of fifteen metres of coping on the bottom retaining wall, and the laying of a mowing strip. In respect of the additional work claimed by the Pursuer, the patio to the back door garage, the replacement of the wooden sleeper with a brick retaining wall, the removal of the white cement coping and replacement with coloured bradstone stone (which did not take place) the removal of the aviary, the laying of the new lawn, the metal balustrade and newel post to the deck and the building of the double steps to the deck area were all included in the work originally discussed in respect of which a global sum of £7000.00 was estimated by the Pursuer.

 

13.         During the course of the execution of the works the male Defender enquired whether it was necessary for a drain or an aqua channel to be formed at the front of the house to allow water to shed away. The Pursuer replied that he would arrange for the blocks to be laid so that the water would shed away from the house. The Pursuer failed to do so. The male Defender asked the Pursuer to move the retention wall which was replacing the sleepers to the back of the property by one metre to allow access to the garden. The Pursuer failed to execute this instruction. The Pursuer, despite being asked not to do so used cut slabs to form the coping on the wall at the rear of the property. He said that he would construct a wooden step to improve matters but failed to do so. The male Defender asked the Pursuer to move a newall post on the larger area of decking to accommodate the balustrade but the Pursuer failed to do so resulting in the balustrade having to be cut.

 

14.         On 9 June 2007 the Pursuer delivered an account to the Defenders requesting payment of £13782.00 in addition to the £13000.00 already paid. The Defenders made some notes on the account indicating what they thought was properly due. The Defenders gave the account to the Pursuer's father who returned it to the Pursuer.

 

15.         At about 5.00 pm on Saturday 9 June 2007 the Pursuer attended at the Defenders' property. He was angry. He was shouting and swearing. He demanded payment of further sums and stated that he had a cash flow problem and that he was unable to pay his workers' wages. The Defenders pointed out that the bill that they had been presented with was far in excess of what had been contemplated. The Pursuer stated that the job had been more labour intensive than he had expected and this was his revised price. The Defenders reminded the Pursuer that his initial price had been £17000.00 in total. In respect of the changes which were made the Defenders indicated that they might have expected to pay something in the order of £18500.00 or £19000.00. The Pursuer left, stating that no one would be coming back on the site until further money had been paid.

 

16.         On Monday 11 June 2007 the Pursuer attended at the Defenders' property. He removed his tools and materials. He returned to the Defenders' property that evening. He had a discussion with the Defenders while his sister, the witness Elizabeth McManus was present. He again swore and threatened the Defenders. The meeting ended without agreement. The Defenders made it clear that they were not prepared to pay any more money until the job was finished and the Pursuer indicated that he would not carry out any more work.

 

17.         The Pursuer failed to return to the site and did not carry out any more work.

 

 

18.         The Defenders reasonably interpreted the actions of the Pursuer as a repudiation of the contract. They accordingly instructed the witness Andrew Keith to carry out an evaluation of the work. They instructed the witness Jamie Dunn, through his company Laird Dunn Groundworks Ltd, to carry out remedial work.

 

19.         The report by Andrew Keith, number 6/1/1/ of process, represents the deficiencies in the work carried out by the Pursuer. The work done by the Pursuer was not substantially complete at the point when the Pursuer left the site. The work carried out by the Pursuer, in the respects identified in the report, is disconform to contract in that it is not of the standard to be expected of a reasonably competent tradesmen. In particular, at the front of the property, the mono blocking was left incomplete, the mono blocking did not follow the pattern of the driveway and shed water to the front of the house causing ponding. It was laid too high in relation to the fresh air inlets, the mono blocking had not been sanded or vibrated sufficiently and as a result there was a void allowing water to run under the house. An aqua channel was required as a result of the manner and direction in which water was shed. There was a poor finish at the point where the road met the driveway, vegetation had not been removed, nor had chipping been carried out. The foregoing constituted a material breach of contract so far as work carried out at the front of the property was concerned. In respect of the rear of the property, the side path had not been properly mono blocked across its entire width, but instead had been infilled with mortar, contrary to the parties' agreement, fences at the rear had not been joined together, fence timbers were stained with concrete, mono blocking was incomplete and in some instances levels were wrong, leading to ponding. It would be necessary for blocks to be lifted and relaid at the correct level. In respect of the lower deck this had not been constructed on a proper foundation, and was incomplete; cracked, knotted and discoloured timbers had been used which would require to be replaced. In respect of the upper deck, this had been formed without a geotext membrane, fascia boards were missing, cracked, knotted and discoloured boards had been used. Boards had been cut to the wrong size and filled, a handrail had been cut too short and filled. Certain timbers were bowed and bulged at the side of the decking. Newall posts were in the wrong place, having been set too far in to the deck surface, and were misaligned, as a result it had been necessary to cut sections of balustrade which made it more difficult to fix securely, and also more liable to rust. Overall the standard of workmanship in respect of the upper deck was so lacking that it would require to be taken down and rebuilt. Some of the timbers, including the frame, could be reused. Coping stones at the rear of the property had been left incomplete. At certain places cut slabs had been used instead of coping stones, which would be more susceptible to frost damage. Instead of pier caps mortar had been used which was unsightly. A new retaining wall had been built in the wrong place, and contrary to the Defenders' instructions. Steps which the Pursuer had offered to build to compensate had not been provided. Steps built by the Pursuer, and leading out of a sunken patio, were constructed of wire facing brick, an unsuitable material, and in any event were laid wrongly, leaving them susceptible to spalling. Mono blocking had been laid over drainage rodding and access points. It would require to be relifted and covers fitting and finished of new. All of the foregoing constituted a material breach of contract, so far as work carried out at the rear of the property was concerned.

 

20.         The Defenders instructed Jamie Dunn of Laird Dunn Groundworks Limited to carry out the work more particularly set forth in Laird Dunn Groundworks Ltd invoices which are numbers 5/2/2, 5/2/3 and 5/2/5 of process. The total paid by the Pursuers to Laird Dunn Groundworks Ltd to date is £4541.38. The work done by Laird Dunn Groundworks Ltd was necessary to remedy the Pursuer's breach of contract and was reasonably priced.

 

21.         The Defenders intend to have removed the upper decking area and have the same reconstructed. Laird Dunn Groundworks have quoted £3200.00 plus VAT for the carrying out of that work as per number 5/2/4 of process, their estimate dated Tuesday 17 June 2008. As a result of the breach of contract by the Pursuer it is necessary for this work to be done. The price quoted is reasonable, inclusive of VAT it will amount to £3760.00.

 

Finds in Fact and in Law

 

1.             This Court has jurisdiction.

 

2.             The parties entered into a contract constituted by their discussions on Saturday 7 April 2007, for execution of certain works to the front of the property, all as detailed in Finding 5 in the sum of £10000.00.

 

3.             There was also constituted a contract for the execution of certain works to the rear of the property, all as detailed in Finding 7, for which no agreement was ever reached on price prior to the commencement of works but in respect of which the Pursuer is entitled to payment, under deduction of the damages occasioned by his breach and by reference to the envisaged contract price of £7000.

 

4.             Substantial elements of work in both the front and rear of the property were not of a satisfactory quality, and in breach of the implied term that work would be of a satisfactory quality as that carried out by reasonably competent tradesmen.

 

5.             Certain additional works as detailed in Finding 12 were instructed by the Defenders, the cost of which is reasonably valued at £2000.

 

6.             The contract for execution of certain works to the rear of the property containing no provision at its outset for interim payments must be regarded as an entire contract for which payment was only due on completion, and accordingly, by removing his tools and materials on Monday 11 June 2007, and having indicated he would not return to site until he received payment, the Pursuer placed himself in breach of contract.

 

Accordingly, Sustains the second and third pleas in law for the Defenders, and Repels the Pursuer's plea in law in the principal action, and Assoilzies the Defenders; Sustains the first and second pleas in law for the Defenders in respect of the Counterclaim, and Repels the pleas in law for the Pursuer; Grants Decree for payment by the Pursuer to the Defenders in the sum of TWO THOUSAND AND FORTY ONE POUNDS AND THIRTY EIGHT PENCE (£2041.38) STERLING, with interest thereon at 8% per annum from the date of Decree until payment, and Reserves expenses meantime; Appoints parties to be heard in respect of expenses on 6 October 2010 at 10.00 am.

 

Note

 

This matter proceeded to Proof over 6 days commencing in September 2009, with a final day for submissions being held on 29 June 2010.

 

The case proceeded on an oral contract between Pursuer and Defenders, with no productions being lodged by the Pursuer. The Defenders lodged various items of documentation, including a diary of works, photographs, quotations in respect of remedial work, and a report by Mr Andrew Keith.

 

Pursuer's Evidence

 

The Pursuer gave evidence of his 10 years experience as a self employed builder and landscaper. Whilst he explained he was not a time served tradesman, his was a family business employing various members of his family, including his father who had been in the building trade all his life.

 

In April 2007 he had been contacted by Mr and Mrs Kelly, who had obtained his name from a local building supplier. At their invitation he met with them a few days later to discuss proposed landscaping work to the front of their house, involving the construction of a driveway, and aqua channel, the building of walls, coping and associated works. It seems a price of £10000.00 was agreed, and instructions were given to commence this work over the next week or so whilst the Defenders were abroad on holiday.

 

He conceded that some discussion had also taken place with regards to proposed work at the rear of the property, involving 2 separate areas of decking, a path to the side of the property, and an area to be mono blocked. Whilst he claimed he gave an estimate on his second visit on a Saturday morning, he could give no definite price as no exact dimensions could be given by Mr and Mrs Kelly as to the area to be mono blocked. He gave an estimate, according to him, of between £10000.00 and £11000.00, and on this basis was given instructions to begin work to both the front and rear gardens.

 

He then claimed that it was necessary for health and safety reasons to make the rear garden safe, and began dismantling fences and walls and filling skips.

 

By the time the Defenders returned from holiday, the work at the front of the property was well advanced. Additionally, a great deal of debris had been removed from the rear garden.

 

It was his contention that as work progressed in the rear garden additional works were being instructed, for which he gave the Defenders an approximate cost orally. The Pursuer spoke of the work as phased, phase one being the front garden, phase 2 the rear garden, and phase 3 being certain additional works to the right hand side of the front garden. According to him relations were good, he saw Mrs Kelly every day, and no complaints were voiced about his performance, or the quality of his workmanship.

 

On the Kelly's return from holiday, a first payment to account was made of £5000.00, with a second payment of £5000.00 about a week later. In respect of the rear garden a further payment of £3000.00 was made about 3 weeks thereafter.

 

It was Mr McManus's contention that as work progressed in the rear garden, additional work was instructed by Mr and Mrs Kelly, in his words "they were redesigning the back garden as they went along". For example, he was asked to build a 22 metre fence at the back of the gardens, and then add a 10 metre section at right angles to it. He was asked to lay a path to, and construct a small patio area beside the garage. He was asked to lay a whole new lawn and mowing strip, he was later asked to construct 2 sets of steps linked to the decking. According to him dismantling of the aviary was never part of the original estimate. It was Mr McManus's contention that whenever asked to do such additional works he would measure it up and give an approximate cost orally to Mr and Mrs Kelly.

 

However, the atmosphere was to change one Saturday in early June. On 8 June he posted a bill through the Defenders' door in the sum of £13782.00. Later that day he was handed by one of his men, what was termed a revised bill, prepared by Mrs Kelly. This brought out a much lower total sum of around £5600.00. At this juncture it was Mr McManus's contention that additional works to the rear garden, totalled about £6000.00, thus taking his initial estimate of between £10000.00 and £11000.00 for the rear garden, and adding to this his £6000.00 for additional work's, but subtracting the payment to account of £3000.00, he had arrived at a figure of around £13800.00.

 

As a direct response to receiving this revised bill, the Pursuer decided to call personally that Saturday evening, about 5.00 pm, upon the Defenders. He was accompanied by his sister, Elizabeth McManus, who assisted him with secretarial work. Whilst there are competing accounts of what happened at that meeting, the Pursuer claimed that he told Mrs Kelly that in preparing her revised bill, she had missed out lots of additional work. It was his position that he had never previously mentioned any estimate for the rear garden of £7000.00, although he had some recollection at that meeting that Mrs Kelly mentioned that figure. He also accepted that he had said that if the bill was too high he would take away a section of decking or length of fence which he could have sold on as second hand.

 

This meeting appears to have lasted about an hour, and eventually it was agreed the parties would meet again on Monday evening. The Pursuer denied there had been any aggression on his part.

 

At any rate, at the meeting on the Monday evening he was again accompanied by his sister, Mrs Elizabeth McManus. The meeting was much shorter, and by then he had, earlier that day, removed, according to him, most of his tools from the site. He had, however, he said, left materials. An impasse was soon reached, according to the Pursuer, and he ended that meeting as he saw no further point in talking. He estimated that only some 5% of work remained to be completed, and that he would have been willing to complete such, but that he was never given the opportunity to do so. In response to the various criticisms of his work, he maintained that his recommendation to fit an aqua channel in the front driveway had been rejected by Mr Kelly. He was questioned at length by reference to the Defenders' photographs, and maintained that any apparent defects would have been remedied in normal course as part of minor snagging works. He accepted that drainage rodding points had been covered by mono block, but that he explained was to prevent damage during construction work. It was his assertion that he had plans showing their location and at the end of the contract he would have lifted the mono blocking and remedied the situation by fitting the appropriate cover plate to allow access. He further accepted that the support batons for the lower deck sat on bricks, but that this was only temporary, and his intention would have been to return to this aspect and "place in breeze blocks and a little concrete wherever required". Again, he insisted, any apparent defects to both deckings could be easily rectified during final snagging.

 

Whilst evidence was then led from 3 of the Pursuer's employers, Ian Smiles, George Gibson and Drew Goldie, this was in general terms as none of them had any involvement in pricing any aspect of the work, nor were they a party to any discussions with Mr and Mrs Kelly concerning any dispute. They mainly spoke to the work carried out by them under instruction from Mr McManus.

 

Similarly, the Court heard from the Pursuer's father, Mr John Geddes McManus, a retired bricklayer. He spoke in general terms to work carried out by him in respect of coping, mono blocking and building steps. He, too, mentioned it was his practice to mono block over drains etc, but to return later, near completion, and cut out blocks and fit the necessary drain covers. So far as the terms of the contract were concerned, the instruction of any additional works, the cost quoted or any dispute with the Kelly's, he could provide no assistance, having had no involvement in such matters.

 

The Pursuer's final witness was his sister, Elizabeth McManus, who did a little secretarial work for the business, preparing and typing invoices. She accepted, however, that she had little knowledge of the building trade, and did not process payments received, the work being restricted to typing the occasional estimate from a hand written draft prepared by her brother, the Pursuer.

 

She did, however, accompany her brother to both meetings with Mr and Mrs Kelly held on Saturday 8 June and 2 days later on Monday 10 June.

 

She had some cursory knowledge that the bill she had typed was in the sum of £13782.00, and that this had been "reduced" by Mrs Kelly, and arising from this had been asked by her brother to accompany him around tea time and take notes, if required.

 

She freely admitted that she had waited at the edge of Mr and Mrs Kelly's house and may not have been visible so far as the Kelly's were concerned. She, however, could see them sitting on a wall through a fence, she estimated she was about 8 feet from them and overheard discussions between them and the Pursuer. She insisted her brother was business like, and that there was no friction. She did not in fact take any written notes and had a limited recollection of what was said. She contended that Mr and Mrs Kelly expressed their satisfaction with the quality of the work, but were clearly unhappy about the total cost. Repeatedly she overheard Mrs Kelly state "but you told us, John, you told us . . . ." but could not recollect Mrs Kelly finishing her sentence. She estimated that Mrs Kelly, in a discussion lasting about an hour, repeated this phrase about 9 or 10 times. She accepted that Mrs Kelly seemed to be referring to something in the past that now caused her concern. However, she did not hear Mr and Mrs Kelly mention any figures. She claimed her brother was not agitated, and was constructive at all times, and talked about removing materials from the site with a view to reducing the bill.

 

At the second meeting on Monday evening she again accompanied her brother, but on this occasion introduced herself. She accepted there was an initial reluctance by Mr and Mrs Kelly to her being a party to the discussions, in any event the meeting was very brief, lasting only about 5 minutes. According to her, the Pursuer wished to discuss his bill, but Mr and Mrs Kelly expressed annoyance that tools had been removed from the site earlier that day. When Mrs Kelly stated they had no further monies in the bank the meeting broke up without further discussion, with both saying they would take legal advice.

 

Defenders' Evidence

 

Both Mr and Mrs Kelly spoke to having resided at that address for about 20 years, and that in early 2007 they decided to upgrade both the front and rear garden. They approached various companies for a quotation and, indeed, obtained one quotation in respect of both the rear and front garden in the sum of £17000.00 approximately plus VAT. A local building supplies company had mentioned the Pursuer, and in early April 2007 they also approached him for a quotation.

 

The Pursuer then called at their home on Wednesday 4 April and inspected both the front and rear garden, he asked the Defenders if they had any other quotes which they duly disclosed, to which he commented that price was probably about right.

 

The Pursuer then returned on the morning of Saturday 7 April when the Defenders' daughter, Susanne, was also present. By then the Pursuer stated he had priced various materials and gave them a firm quote for the front garden, for work and materials in the sum of £10000.00. He explained that because of his turnover, he did not require to charge VAT. The Defenders' had a recollection of being shown his note book containing his working and notes in respect of the front garden, and that because of the gradient running towards the house an aqua channel would be required.

 

The Defenders insisted that they made it clear to the Pursuer that they wished the front and rear gardens to be treated separately. Accordingly, they were happy for him to commence work on the front garden whilst they were on holiday, but asked for a written quotation in respect of the rear garden. According to the Defenders the Pursuer had indicated the rear garden would cost less than the front garden, probably about £7000.00, but that he would have a definitive quote awaiting their return.

 

The work at the front consisted of the removal of all of the materials, mono blocking, wall repairs, removal of vegetation and weed control and chipping, and the laying of an aqua channel.

 

In the rear garden they wished to remove an old aviary, a brick barbecue, and a fence at the rear of the property. A replacement fence was to be erected, mono blocking paths, replacement of walls around the patio. Also, 2 decks were to be constructed and a sunken patio. A further small patio was to be constructed near the garage. Various retaining walls were to be removed and rebuilt, and finally the existing lawn was to be removed and relayed.

 

It was, therefore, according to the Defenders, something of a shock to return from holiday, having learned from their daughter by way of a text message that substantial works had already commenced in the rear garden. They stated that on their return they sought an explanation from the Pursuer why he had begun without instructions in the rear garden, to be told by him that he had skips available and it was an opportunity to remove the old fence and debris. By then other preparatory work had also begun in the rear garden and they estimated that the front garden was two thirds complete.

 

Whilst the Defenders maintained they thereafter pressed the Pursuer on several occasions to provide a quotation for the rear garden, they allowed him to continue, given that he was well under way. At this point, also, soon after the Defenders' return from holiday, the Pursuer requested payment to account for materials. At the Pursuer's request these payments were to be made in cash. In total 3 such payments were made over the next few weeks, 2 payments, each of £5000.00, and a further payment of £3000.00.

 

The Defenders further accepted that they had instructed some additional work, and in particular had asked for an additional section of about 35 feet of fencing.

 

Likewise, the Pursuer had suggested several modifications to which they had agreed, (1) an extension of the area to be mono blocked from the end of the patio along the back fence, (2) the building of a brick retaining wall, and the removal of sleepers, (3) the construction of a mowing strip.

 

They also raised complaints with the Pursuer concerning the quality of some of the timber used in the decking, which the Pursuer said he would return to the suppliers. Additionally the newall posts to the decking were not fitted as expected. Their positioning had compounded other difficulties, particularly with regard to metal balustrades, which, as a result, were unsatisfactory.

 

By the first week of June the Pursuer had been on site for about 5 weeks. Matters came to a head on Saturday 9 June, when the Pursuer put a bill through the Defenders' letterbox in the sum of £13782.00. By then the Defenders had paid to account £13000.00. They accepted that some extras had been instructed, they maintained they had never been given any approximate cost for these, but anticipated they would be no more than £2000.00.

 

They explained that they were quite shocked by the figure of £13782.00. Mrs Kelly had kept a diary of events in the form of a computer record of man hours spent on site, and activities carried out (6/3/1-3 of process), and using this she did some calculations of what she thought the bill should properly be. In doing so she amended the Pursuer's bill and passed it back to the Pursuer via his father who was working nearby for a neighbour that day. Whilst this "counterbill" was never lodged by the Pursuer, it was the Defenders' recollection that it probably brought out a total figure for both front and rear gardens, including extras, before payments to account, of around £18500.00.

 

Early on Saturday evening, the same day, the Defenders' recalled the Pursuer appeared at their home unannounced. He was angry and argumentative. According to them he engaged in what can best be described as robust industrial language, saying at one point he was having difficulty in keeping his hands in his pockets. Mrs Kelly was fearful he would assault her husband. He appeared to be alone. Repeatedly Mrs Kelly referred to his earlier indication that the total cost of the front and rear gardens would be approximately £17000.00, ie the rear garden would cost approximately £7000.00, and that indications had been that the additional work would be no more than £2000.00. At one point he paced about and stated that to reduce the bill he would take down a fence, or take one of the decks away. Both Mr and Mrs Kelly regarded this as a threat, and not as a sincere attempt at negotiation.

 

The situation was not conducive to any reasonable discussion, and Mr Kelly suggested further discussion be postponed until Monday evening. According to the Defenders the Pursuer left stating there would be no one on site until he got his money.

 

The Pursuer returned on Monday evening around 7.00 pm, accompanied by his sister, Elizabeth McManus. By then the Defenders had learned from a neighbour that "a lady had been hiding at the front corner of their house on Saturday evening" whilst they were at the rear involved in discussion with the Pursuer. The Defenders challenged Elizabeth McManus in this respect, whereupon she admitted she had been so present with a Dictaphone taking notes.

 

A further development on Monday evening was that the Defenders had discovered on their return from work that all tools, bricks, mono blocks, cobbles, sand, cement and wood had been removed in the course of that day.

 

The Defenders claimed that the Pursuer immediately demanded his money. The Defenders said that they had made no such commitment, but were willing to discuss matters. At this, according to them, the Pursuer began shouting and swearing, saying he didn't trust the Defenders and hence he had removed his tools and material. He made it clear that he would not be returning to site until he got his money. Again, according to the Defenders he began cursing and swearing, at which point his sister tried to calm him down, saying "leave it there John, we'll proceed to the next stage".

 

The meeting ended at this stage, having lasted only about 5 minutes, and thereafter, both sides appeared to have sought legal advice.

 

Shortly thereafter, the Defenders took a series of photographs, 48 in number, showing different aspects of both the front and rear gardens in their unfinished state. They then sought a report from Mr A Keith, a building consultant, who thereafter provided a report, based at that stage only on the photographic evidence (only much later he was to make a site visit).

 

Subsequently, the Defenders instructed certain remedial work to be carried out by Laird Dunn Groundworks Ltd, totalling £4541.38 (6/2/2, 6/2/3 and 6/2/5 of process). There remains, however, according to them, remedial work necessary to the upper deck at a cost of £3200.00 plus VAT.

 

There was also some fairly brief evidence from the Defenders' daughter, Susanne Kelly, who happened to be at home at 8 Aitken Drive, Beith, on the morning of Saturday 7 April, when the Pursuer called. She was present during some discussions when she overheard mention of a price of £17000.00. Her recollection of events was limited. However, she was aware that in her parents' absence on holiday, work would commence in the front garden, as arrangements had been made to park the family cars elsewhere. She recalled texting her parents on her return, that the front garden looked good, but the back garden had become a disaster area. She was clear she had not expected any work to start in the rear garden at that stage.

 

The Court then heard from Andrew Keith, who was a self employed civil engineering contractor. Prior to that he had been a managing surveyor with several leading companies in the construction industry. He held an HNC in Civil Engineering, and had spent more than 30 years in the construction industry. He had first met Mr Kelly through his employment, and had been asked to proffer an opinion, based upon a set of 48 photographs provided by Mr Kelly. His report (5/1/1 of process) sequentially considered the various photographs, and in his evidence he confirmed that opinion, elaborating when necessary. He confirmed that earlier this year he had visited the site long after preparing his report. He had no reason to change his views as previously stated. As he put it "timber cut to the wrong size will remain at the wrong size".

 

He insisted that the same principles in respect of good workmanship applied whether it was a major or minor contract in terms of value.

 

His report included his professional opinion of what he considered certain aspects of the work was worth, having regard to the materials used, and the likely labour expended.

 

In general terms, he formed a view from the photographs, and further confirmed by his site visit of numerous instances of bad workmanship, some of which might be capable of remedial work. Some simply demonstrated a lack of attention to details, others were more significant, and might cause an ingress of water, for example, at the solum of the house, with serious consequences. Other examples showed decking without any proper foundations affecting its structural integrity. He was especially critical of the contractor paving over the drainage rodding and access points.

 

His conclusions were that the blocked paving work and joinery work to the decking were of a very poor standard. He recommended that the contractor "be not allowed back on site to remedy his defective work "because, in his view", it was obvious from the standard of work carried out first time, he was unlikely to do any better". When cross examined, and when it was suggested that the Pursuer would have remedied any problems with the foundations at a later date, he commented that such was "a ridiculous scenario", that what he saw was poor practice and workmanship, and to remedy that situation would require lifting the decking with a crane. He emphasised that resting the decking on the edges of bricks was wholly unacceptable, and that every batten on the underside of the decking required to be supported along its entire length. He added that no contractor he knew would come back and seek to remedy the situation after having completed the decking.

 

He maintained, similarly, that no contractor he knew would cover rodding points with mono block and return later to remove mono blocking. He insisted modern covers and guards were strong enough to withstand traffic from cars and even lorries.

 

He was similarly critical of areas where there was evidence of ponding, caused by levels not being worked out properly in the first place. Whilst he did not criticise the standard of brickwork, he was critical of the use of wire cut facing bricks and their being laid horizontally as steps. He explained such was not good practice as water would become trapped in the serrated face of the brick and with the effect of frost this would lead to "spalling".

 

In conclusion he stated that the number of items, and the extent of the problems they threw up, were very substantial. In his opinion they went far beyond a snagging list, and represented a major failure to complete work to a satisfactory standard, and simply would not have occurred with a reasonably competent tradesman.

 

He considered that certain substantial elements of the work carried out, for example, the copings and the decking, were worthless, and would have to be redone. He valued the remainder of the works at a figure of £5315.00 plus VAT.

 

Finally, evidence was heard from Jamie Dunn, of Laird Dunn Groundworks Ltd. He had traded on his own account for 5 years, but before this had worked in ground works as a plant operator. He had carried out certain remedial works initially at the front of the house, which involved the completion of mono blocking and the insertion of an aqua channel to prevent water entering the solum through air vents. Later he provided a quotation in respect of work to the rear garden. He confirmed payment of 3 invoices (6/2/2/, 6/2/3 and 6/2/5) all being remedial work. He had in fact located rodding points at a side entrance, then removed mono blocking and fitted appropriate covers. He was puzzled and had never met the practice of mono blocking over rodding points and returning later to rectify it. He had carried out remedial work to one of the decks and had submitted a quotation in respect of the upper deck which would require to be dismantled and rebuilt at a cost of £3200.00 plus VAT (6/2/4 of process). He envisaged that it might be possible to reuse the frame which might lead to a saving, but the remainder of the timber used would require to be scrapped. He was generally critical of the workmanship throughout.

 

Submissions for the Pursuer

 

Counsel for the Pursuer, Mr Robertson, fully accepted that the absence of any written contract led to difficulties of an evidential nature for the Pursuer. Nevertheless, he asked me to find that the Pursuer's case had been established.

 

He then took the Court through the evidence led by the Pursuer and his witnesses, which I have already summarised elsewhere in this judgement.

 

He suggested that whilst Mr Keith had spoken to various alleged defects, some clearly would have been rectified if the Pursuer had been given an opportunity to finish the contract as part of his snagging list. He conceded that on the evidence of Mr Keith, some of the issues raised were more substantial, and alleged a basic failure to comply with generally accepted building practice. He cautioned against whole hearted acceptance of Mr Keith's views, suggesting different tradesmen have different methods of working. Some tradesmen might construct something temporarily, intending to return and modify near completion of the contract. In this respect, he pointed to a line of mortar/concrete along the edge of a mono block path, and to the mono blocking over drainage rodding and access points, and to supporting decking structures on bricks. It was, he said, a matter of judgement for the builder whether to attend to these matters at the time, or return and remedy them nearer completion.

 

He suggested that Mr Keith's experience since Miller Contracts was not as extensive as that of the Pursuer's. Additionally, Mr Keith's independence should be assessed carefully, he having met Mr Kelly through Mr Kelly's employment. As for Mr Dunn, he submitted, he had a limited knowledge of the original contract, and much less experience of the building industry.

 

In referring to the Defenders' Counterclaim, he made similar criticisms, suggesting that the Pursuer had been given no opportunity of putting matters right.

 

Submissions for the Defender

 

Mr Lynch opened his submissions by questioning why the Pursuer who had been in business for at least 10 years, had no basic written agreement by way of a contract. He suggested it was remarkable he had produced no written documentation. He submitted that the Pursuer must have some working notes, measurements, sketches or plans, time sheets, suppliers' invoices etc. It was, he said, inexplicable that he had produced nothing.

 

Furthermore, he submitted, that the Pursuer was well aware that the quality of his workmanship, and his charging, was the central issue in the dispute between the parties, but he had led no expert evidence in support of his position.

 

He submitted that credibility was a key issue, and that the Court should prefer the Defenders in this respect, who gave a clear and credible account of the whole history of the contract and its aftermath.

 

In contrast, he suggested, the Pursuer was neither credible nor reliable. The Pursuer refused to accept even obvious defects in his work, and was dismissive of anything adverse to his case. The Pursuer changed his position at one stage, saying Mrs Kelly had definitely never mentioned a figure of £7000.00 at the meeting on 9 June, and on the following day stated he vaguely remembered it.

 

In addressing the Court further on the legal issues arising, he submitted that the contract was "an entire contract", and that there had to be completion before payment fell due.

 

He accepted that most forms of construction contracts provide for periodic or staged payments. However, in the absence of any express provision for interim payments, the presumption is that the contract is an entire one. Completion of the works is a condition precedent to payment.

 

In this context he referred to Sumpter v Hedges, 1898, 1QB, 673 and Ibmac v Marshall Homes, 1968, 208, EG851. Here, he submitted, there was no entitlement to staged payments, nor had stages been identified which would trigger payments.

 

Plainly the works were not substantially complete at the point where the bill was tendered, and so if the Court was persuaded that the Pursuer said he would not do any more work until monies were paid, and at that time there was no legal entitlement to payment, then the Pursuer was in breach of contract, and since he was not prepared to carry out more work, was plainly in material breach.

 

In that event, it was for the Court to determine if the Pursuer was entitled to any payment, and if so, on what basis.

 

Any payment, he submitted, would only arise on the basis of quantum meruit, and in support of such, he referred to Gloag Henderson, paragraph 5.05 and Avintair v Ryder Airline Services Limited, 1994, SLT at 613.

 

It was therefore for the Pursuer, upon whom the onus rested, to satisfy the Court as to the value of work actually done, but in essence, all that the Pursuer placed before the Court was his own evidence, and that of his workers.

 

Even if the Court accepted his evidence, he submitted, the Pursuer was a long way short of the figure he claimed was due. By way of example, the Pursuer said in respect of additional works, additional fencing would cost £400.00-£600.00, a mowing strip £345.00, and a new lawn, which he claimed was an extra £900.00, but he had led no evidence to satisfy the Court that these figures were reasonable remuneration for these items.

 

All of the foregoing would assume that work was done to a satisfactory standard, but if the Court was satisfied on the Defenders' evidence, that such work was shoddy and incomplete, the conclusion may be that the Pursuer had failed to provide anything of value.

 

Finally, he suggested, various calculations, the object of which should be to restore the Defenders to the position they would have been in had the Pursuer properly discharged his contractual duties.

 

Discussion

 

Given that the Pursuer had been in business for at least 10 years, it is perhaps surprising that he apparently ran his business without issuing any form of quotation or estimate or basic contractual terms. This, in my view, has certain consequences to which I shall return, and leaves the Court dealing entirely with an oral contract. It, however, goes further than that in that the Pursuer has produced no plans (albeit he said he had some plans showing drainage rodding points), no time sheets, no suppliers invoices, no working notes showing the basis for his request, for example for staged payments.

 

Indeed, given that the Defenders kept a diary as work progressed, showing the number of men on the job, and the activities being carried out, and in addition, have produced a building surveyor and a tradesman, both of whom were highly critical of his working practices, and the standard of workmanship, his case relies entirely on his credibility and reliability. It is perhaps noteworthy that he has produced no building surveyor or expert from the construction industry to pass comment on the standard of work carried out.

 

In respect of both credibility and reliability, I found him seriously lacking. I have no hesitation where any conflict arises in preferring the evidence of the Defenders, both in respect of credibility and reliability.

 

There were several key pointers in this respect, and none more evident than the account he and his sister gave of the first meeting they attended when difficulties arose, ie on Saturday 9 June.

 

It is clear to me that he was very angry when he attended the Defenders' home around tea time. He was outraged that his bill had been returned with amendments. He was determined to attempt to bully the Kellys into making payment. He paced about cursing and swearing, I believe he did comment that he was having difficulties keeping his hands in his pockets. It is clear, and I believe Mrs Kelly, that she was fearful that the confrontation might turn violent. His positioning of his sister, at the edge of the building and within earshot, but out of sight, was bizarre, and can only have been designed to provide him with the option of a witness, but only if convenient to him.

 

Both he and his sister spoke of his willingness to remove decking and fencing, if the price was too high. How this conversation arose he was unable to explain, but it is difficult to accept it arose out of a calm and amicable exchange of views. Rather, I believe, it was made in anger, as a threat to frighten the Kellys into submission.

 

Neither did I find Elizabeth McManus at all credible. In my view she had been rehearsed from the outset to provide the Pursuer with a favourable gloss, and his corroborative account of what happened at the meeting. However, in my view, it falls down badly. The core part of her evidence is that she heard Mrs Kelly say repeatedly "but you told us, John, you told us ....." indicating a concern by Mrs Kelly as to something said to her in the past. She was adamant Mrs Kelly never finished her sentence, despite saying this about 9 or 10 times, in a meeting lasting about an hour. This is simply not credible. It is clear to me that Mrs McManus simply doesn't wish to assist the Defenders by mentioning any figure that would give additional credence to the Defenders' account. However, in doing so she asks the Court to believe that Mrs Kelly didn't make her position entirely clear.

 

What she was unaware of, of course, is that eventually in re-examination, Mr McManus changed his position, and conceded that Mrs Kelly had taken a stance, and had mentioned £7000.00 at the Saturday meeting.

 

Neither do I accept the Pursuer's explanation of how he came to commence work in the rear garden whilst the Kellys were on holiday. It is clear from the arrangements made by Mr and Mrs Kelly, and the evidence of their daughter, Susanne, that the commencement of work in the rear garden genuinely came as a complete shock. No explanation was offered by the Pursuer, whose position remained that he had a concluded agreement to work at both the front and the rear. He then proceeded along, what in my mind, was a diversionary tactic, by suggesting it was necessary. as a matter of urgency, to make the rear garden safe for health and safety reasons. Both the Defenders and their daughter confirmed that the rear garden was neat and tidy and caused no danger to anyone.

 

His assertion that whenever he was asked to do additional works he would give the Defenders an approximate cost, often in the presence of his employees was not corroborated by a single one of his employees.

 

His assertion that he had no preference in what form staged payments were made is to be contrasted with that of the Defenders, who indicated the Pursuer demanded cash payments. Mr Kelly spoke to the inconvenience of having to draw parcels of £1500.00 on numerous occasions from separate bank accounts, and requiring to explain to the banks what such cash was required for. I have no hesitation in again preferring the Defenders' evidence.

 

A major thrust of the Pursuer's case was that no issue had been taken with the quality of his work until early June. However, neither front or rear gardens had been completed, and it might be seen as premature for a lay person to be critical before snagging works had been attended to. In any event, the Defenders had no technical knowledge of their own that would have allowed them to question the Pursuer's working practices. I am satisfied, however, that Mr Kelly did raise various matters by way of complaint as work progressed (1) that he had not been given a choice to select certain copings, despite being promised a catalogue to select the same, the Pursuer had proceeded with his own choice, (2) that the Pursuer had built a wall in the wrong place, (3) that Mr Kelly had complained that certain decking timbers were stained and knotted. The Pursuer had promised to return these to the suppliers, but ended up using them as side facings, (4) Mr Kelly complained concerning the newall posts in the high deck being in the wrong place, as a result of which steel balustrades had to be cut.

 

None of this detracts from the Pursuer's obligations, there being an implied term within any such contract that the work would be of satisfactory quality.

 

Another pointer in terms of credibility was the Pursuer's assertion that on Monday 11 June he only removed his tools. This is in direct conflict with the Defender's evidence that everything was removed, including bricks and mono blocks, cobbles, sand, cement and wood for the decking. At this stage there was still significant areas to be paved and decking to be completed. According to the Defender's all that remained on site was a sledge hammer symbolically left standing on the decking.

 

The Pursuer's explanation was that they were no longer required, but it is difficult to accept that some of them would still not be needed, given the areas still to be mono blocked, and that the decking was far from complete.

 

That brings us neatly to the events of Monday evening of 11 June. I am satisfied that the Pursuer's opening remark to the Kellys was "where's my fucking money?". His plan, in my view, was to intimidate the Kellys into obtaining further cash from their bank by Monday evening, and when that had not worked he told them he would not be back. The meeting lasted a mere 5 minutes before he left with his sister among veiled threats that the matter would now be taken to the next stage.

 

There is thus no doubt in my mind that he did remove all his materials early on the Monday, and that he had no intention of returning to the site unless he received a substantial cash payment. It is thus quite clear that any working relationship had broken down irretrievably, entirely as a result of his actions.

 

I am satisfied that the Defenders gave an honest and sincere account of all that had happened, and that their daughter was genuinely surprised to find work underway in the rear garden on her return from holiday.

 

Similarly, I was impressed by Mr Keith's expertise, and his experience of the construction industry. In giving evidence it was clear he had a thorough knowledge of good building practice, and greatly assisted the Court by, for example, explaining the inappropriate use of wire facing bricks. He was objective throughout his evidence and made a very clear and logical distinction between basic unsatisfactory workmanship and minor items which it would be acceptable to remedy at the snagging stage.

 

Similarly, Mr Dunn gave his evidence in an honest and competent fashion. Whilst having much lesser experience in the building trade, he was generally aware of good building practice, and was of the view that much of what he saw when he came on site was unsatisfactory, and went far beyond what would be remedied at snagging stage.

 

1.             Was the Pursuer's workmanship of satisfactory quality? As a matter of general law, there is implied in any contract for services a term that a person carrying out work undertakes to exercise the ordinary standard of care and workmanship of a practitioner of that trade, McBryde, 9-37.

 

I accept that there will be minor defects which will be picked up near completion, and form part of a snagging list. However, a distinction arises between minor snagging on the one hand, and such a major failure, or departure from standards of workmanship, such as failing to install proper foundations. It is simply not credible to claim that a competent tradesman would come back and attend to this later, when by that stage, a crane would be necessary to lift the decking to get access to the foundations.

 

Nor is it credible, in my view, to mono block over drainage and rodding points, and claim that this would be remedied later, by lifting out blocks and providing access covers and mono blocking, of new, such areas.

 

All of the evidence led was to the effect that such a practice was unheard of in the building trade.

 

Another example arose when remedial work required to be carried to eliminate ponding. Mr Dunn was clear that this had been caused by insufficient attention being paid to levels. He was clear that this ought to have been remedied at the time, as by proceeding, knowing there was a difficulty only compounded the problem in laying further bricks or mono blocks.

 

I am thus satisfied, upon the evidence as a whole, and in particular by reference to Mr Keith's evidence, that the work fell far short of what might have been expected from a tradesman exercising the ordinary standard of care.

 

2.             Was the Pursuer entitled in law to an opportunity to remedy defects? In my view, such a duty does not arise if the defects are so grave as to show that the contractor is unable to perform the contract. In this respect I refer to Mr Keith's view that the work was so bad the contractor should not be allowed back on site. In my view, the breach was to such a degree that the Defenders were entitled to take the view that the Pursuer did not have the necessary competence to get it right second time around.

 

3.             Was this an entire contract? I said earlier in my judgement that the absence of a written contract had consequences for the Pursuer, and in my view, one of these was that by making no provision for interim or staged payments, either monthly or triggered by completion of certain stages of work, the Pursuer left himself vulnerable, and relied upon the Defenders being willing to voluntarily advance money to cover materials as the contract progressed.

 

I accept that Mr Lynch's submissions in this respect are well founded, and it follows that in these circumstances the Pursuer was required to complete his contract before payment fell due.

 

My conclusion is that he abandoned his contract over the weekend of 9-11 June, and that in deciding to remove his tools and materials on Monday 11 June, and intimating that he would not return, or at least not return until he had received substantial payment, he placed himself in fundamental breach of contract.

 

4.             On what basis, if any, is payment due to the Pursuer in respect of the contract to the rear of the property?

I accept the general ratio arising from Avintair that where one party performs his part, without agreement having been reached as to remuneration, the law would imply that a reasonable sum be paid. However, here I believe it would be erroneous to refer to the present situation under the heading of quantum meruit. True quantum meruit arises in a number of situations where for one reason or another no contract exists. see Hudson on Building and Engineering Contracts 10^th Edition at Page 62.

 

Here there was a second contract in respect of the rear of the property (albeit entered into reluctantly by the Defenders) and thus, in my view, what the Pursuer is entitled to is the envisaged contract price less the damages occasioned by his breach.

 

Calculations

 

My calculations are as follows, and are based upon my findings in fact and law, that the Defender's entered into 2 contracts in respect of the front and rear garden areas respectively.

	£	£
Total envisaged outlay		17000.00
During progress of works it is accepted that additional works were instructed - value		2000.00
	TOTAL	19000.00
Agreed payment to account		13000.00
	BALANCE	6000.00
To date the Defender's have paid for remedial work (deduction)		4541.38
	BALANCE	1458.62

 

Defender's will require to incur further expenditure on upper deck	3760.00
Less timber capable of being used	260.00	3500.00
Due by Pursuer to the Defenders		2041.38