Supreme Court
Action No. 445 of 1996
19th April 2000
Shanks, J.

Mr. E. A. Marshalleck for the Plaintiff.
Mr. Wilfred Elrington, S.C. for the Defendant.

Building Contract - Breach of Building contract - Damages for breach of contract - Determination of appropriate quantum.

J U D G M E N T

1. This is an unfortunate building dispute between two members of the Taiwanese Community in Belize. It relates to a partially completed house which the Defendant agreed to buy from the Plaintiff in December 1995 for US $75,000.00. The US $75,000.00 was to include the completion of the house; and the Defendant also purchased two other lots at Mile 13 at the same time for $50,000.00 (total price of $125,000.00). The Plaintiff claims $57,482.00 as a reasonable sum for additional works he says were requested by the Defendant. The Defendant says that the "additional works" were all comprised within the US $75,000.00 and he counterclaims $22,000.00 for costs of rectification which are necessary and $36,000.00 for rent which he says he has spent since May, 1996 because he was unable to move into the house. I have heard evidence, through an interpreter, from both the Plaintiff and the Defendant (as well as others) but I am afraid I did not feel I could rely on the evidence of either of them totally. I will first set out the chronology as far as I can and then seek to address the contentious items.

2. The chronology is as follows:-
   
   

   October, 1994	Original plans drawn up; one storey house contemplated.
   29 December, 1995	Written contract in Chinese between Plaintiff and Defendant. The contract states that to the Defendant's house, which is not yet finished, there will be added one more storey, which is exactly like the living room." Payments of US $9,500.00 and $45,000.00 made by Defendant.
   30 December, 1995	Date of agreement between Plaintiff and Alexander Daniels, a contractor, "to complete unfinished building… at an estimated cost of $65,000.00." The Defendant says this and the later agreement with Daniels are manufactured.
   3 days later	Plaintiff says Defendant asked for additional works and alterations which are the subject of claim.
   9 January, 1996	Date of agreement with Daniels to "construct an extension … along with alterations … all at an estimated costs of $65,000.00.
   20 May, 1996	US $35,000.00 paid by Defendant.
   8 June, 1996	US $15,000.00 paid by Defendant.
   June, 1996	Revised plans produced for building as in fact constructed for Defendant.
   30 June, 1996	US $5,000.00 paid by Defendant.
   29 August, 1996	US $15,000.00 paid by Defendant (total $124,500.00).
   15 September, 1996	Home handed over to Defendant. Plaintiff asks for payment for extras which results in a major dispute.
   23 October, 1996	Proceedings issued.
   2 April, 1997	Statement of Claim.
   1 October, 1999	Default judgment.
   14 January, 2000	Judgment set aside.
   17 January, 2000	Defence and Counterclaim.

   
   

3. The Plaintiff's evidence was that three days after the written agreement of 29 December, 1995 the Defendant requested an extension of the upper floor beyond the agreed area of the living room and various other changes, and that he agreed to pay for the materials and labour for them. He then entered into the second contract with Mr. Daniels to carry out these works. He and the Defendant inspected the house together before handover and there were no complaints and no claim was made until January 2000. The Defendant said that the original agreement was that he would pay US $75,000.00 for a finished house done as he wanted it, and that he gave the Plaintiff the details of what he wanted verbally. He was unable to move into the house in September 1996 because of the defects so that he had been forced to rent ever since. As I have indicated, I had difficulty accepting either of those stories in its entirety. Further, there were real difficulties with the quantum of the Plaintiff's claim. In evidence, he said that he had paid for the extra items by paying Mr. Daniels a total of $22,601.00 for labour between January and July 1996, and by paying $35,989.00 for materials himself between January and September 1996 and he produced receipts for all these items. However, there was some doubt as to whether, in fact, Mr. Daniels had ever been contracted, and it was the evidence of Mr. Mario Magana that normally Mr. Liou paid him (Magana), and not Daniels, for labour and that he (Magana) paid Daniels a small commission for introducing the work. Perhaps more significantly in relation to quantum, there was no attempt in the course of Mr. Liou's evidence to break down the amounts paid, and the individual amounts claimed in the Statement of Claim appear to be based on some workings (which are pp 15-26 of the Plaintiff's bundle of documents) which did not feature in the evidence and were not explained to me.

4. I turn to the individual items claimed.

   (a) Extension to upper floor $41,355.00
   There is no doubt that the written agreement says that the upper floor would mirror the living room and that what was in fact constructed on the upper floor was considerably larger. I reject the Defendant's evidence that the Plaintiff agreed to do this for no additional payment. However, I cannot accept the figure quoted for the work by the Plaintiff. For one thing, the extension was 438 square feet and not 572 as the Plaintiff claimed: this is clear from the plans produced by the Plaintiff himself dated June 1996. For another, Mr. Marshalleck's submission that the cost of the extension (which worked out at about $80 per square foot for 572 square feet) was explained by the high cost of the roofing materials did not add up: the roof was simply moved up one storey but would have been required in any event. This is the major item of claim but unfortunately I have no further guidance as to what is a reasonable sum for the work. Doing my best with the material I have, I propose to award the Plaintiff $20,000.00 as quantum meruit.

   (b) Repair cess pool $2,760.00
   Mr. Liou told me that Mr. Yen requested that the cess pool which had already been constructed on site, partially above ground, should be re-constructed below ground. Mr. Yen gave no evidence on this topic but Mr. Lennox Myles, a builder called on his behalf, gave evidence that a septic tank below ground would not function in the area where the house is. It seems to me that since the Plaintiff took it upon himself to build for the Defendant he cannot claim for the cost of building a useless item unless the Defendant had been expressly warned of this, and indeed, he accepted that he had an obligation to provide "a good cess pool".

   (c) Construct water tank $2,141.00
   Mr. Liou told me that Mr. Yen asked for the existing water tank to be moved from the north side of the building to the east side, which was undoubtedly done. Mr. Yen told me that the tank was moved because the northern boundary of the lot after sub-division cut through the water tank. Mr. Kent Morris, the former owner of the land gave evidence that the original tank had been 12' by 12' and that he had measured the distance from the building to the northern boundary as 9' 5", which served to confirm the Defendant's version of events. Given that evidence and that the onus must be on the Plaintiff, I reject this claim.

   (d) Water trough $1,264.00
   This goes with (c).

   (e) Construct wall $3,520.00
   There is no doubt that a wall was constructed between the kitchen and the dining room on the ground floor, and that this wall is not shown in the original October 1994 plans. Again, I cannot accept that Mr. Liou agreed to construct this for no extra sum. Mr. Elrington says that the cost of the wall is exorbitant, but no evidence was led from Mr. Myles or anyone else as to the correct sum. I propose to discount the claim slightly to $3,000.00.

   (f) Extend stairway $2,772.00
   The Plaintiff's case was that the original work requested by the Defendant envisaged an inside staircase but that he later designed and asked for an outside staircase to be built. Since the ground floor was actually above ground this meant that five extra steps had to be constructed to allow for the outdoor staircase. I was not convinced by the Plaintiff's evidence that the specification in relation to the position of the steps would have changed within three days, and I am not sure this was put to the Defendant in clear terms. I therefore reject this claim on the basis that the agreement to build on the upper floor necessarily involved some steps up, and it is not clear that it was ever agreed they would be internal steps.

   (g) Extend roof $2,182.00
   It seemed to be common ground that the roof was extended so as to create a 6-foot overhang. Both Mr. Liou and Mr. Yen stated that the other had decided to extend the roof for reasons which neither could explain. On this occasion I prefer the Plaintiff's evidence; I can see no reason why he would voluntarily have incurred extra expenditure on the building. But I propose to reduce the claim by ? because Mr. Liou stated in cross-examination that there was to be a 2-foot overhang in any event, which leaves about $1,400.00.

   (h) Construct kitchen $1,538.00
   There is no doubt that the kitchen constructed for Mr. Yen was not as shown in the original plans or that the original version would have been more expensive than Mr. Yen's Kitchen. It was the Plaintiff's case that the original kitchen had to be demolished before the new kitchen could be installed. But Mr. Morris gave evidence, which I accept, that when he sold the house no kitchen had been installed and the Plaintiff did not tell me of any work being done before the contract with Mr. Daniels dated 30 December 1995. I therefore reject the Plaintiff's claim on this item.

5. The sum of items (a), (e) and (g) is $24,400.00 which the Defendant ought to have paid for extras. I turn to his counterclaim as explained by Mr. Myles by reference to an estimate he had produced following a recent visit to the property. Mr. Marshalleck did not challenge any of the figures in this estimate as figures. Nevertheless, bearing in mind that the Defendant must satisfy me that the claimed expenses arise from defects or omissions present when the building was handed over 3 ½ years ago, and ignoring the claims which were abandoned (nos. 8, 11, 12, 13, 14 and 20), I accept items 2, 3, 4, 6, 9, 15, 16, 17, 18 and 21 which total $8,350.00. I reject the claim in relation to the plumbing and heaters (no.1), which was rather unclear and, after three years, speculative. The evidence about the missing doors (no.5) was inconclusive. The need for re-painting (no.7) after 3½ years does not seem surprising. I do not know what molding trim (no.10) is supposed to relate to. The evidence was that the steps and landing (no.19) were actually designed by the Defendant, so that I do not think he can complain about them unless they were completely unsuitable as stairs, which I do not believe they were. The counterclaim for $36,000.00 for rent I have no hesitation in rejecting in its entirety. Whatever problems there may have been with the house cannot possibly justify not moving in for a period of 3½ years at such a cost. The claim for expenditure of $35,000.00 was also abandoned.

6. The net figure due to the Plaintiff after taking account of the counterclaim, which I propose to set off against the claim, is $16,050.00. There shall be judgment for the Plaintiff for that sum with interest at 12%.

----------OO----------