Global Development Corporation Ltd v Beverly McNaughton

• Jurisdiction: Jamaica
• Judge: PANTON P , HARRIS JA , DUKHARAN JA
• Judgment Date: 29 July 2011
• Neutral Citation: JM 2011 CA 79
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CIVIL APPEAL NO 32/2006
• Date: 29 July 2011

[2011] JMCA Civ 26

JAMAICA

IN THE COURT OF APPEAL

BEFORE:

THE HON MR JUSTICE PANTON P

THE HON MRS JUSTICE HARRIS JA

THE HON MR JUSTICE DUKHARAN JA

SUPREME COURT CIVIL APPEAL NO 32/2006

BETWEEN

GLOBAL DEVELOPMENT CORPORATION LTD

APPELLANT

AND

BEVERLY McNAUGHTON

RESPONDENT

AND

KEITH LUMSDEN

3 ^RD PARTY/RESPONDENT

AND

LOUIS DOUET

4 ^TH PARTY/RESPONDENT

AND

CONSTRUCTION DEVELOPERS ASSOCIATES LTD

5 ^TH PARTY/RESPONDENT

Christopher Dunkley and Miss Daicia Welds instructed by Phillipson Partners for the appellant

Maurice Frankson instructed by Gaynair & Fraser for the respondent

Keith Brooks for the 4 ^th party/respondent

Miss Hilary Phillips, QC and Miss Sherise Gayle instructed by Grant, Stewart, Phillips & Co for the 5 ^th party/respondent

CONTRACT - Breach of contract - Negligence - Res ipsa loquitor - Damages

PANTON P

1 [1] I agree with the excellent reasoning and conclusion of my learned sister, Harris JA, and there is nothing that I can usefully add.

HARRIS JA

2 [2] This is an appeal by Global Development Corporation from the judgment of Reid J delivered on 30 March 2006 in favour of the respondent (‘McNaughton’), the fifth party/respondent and the fourth party/respondent against the appellant and in favour of the fifth party/respondent against the fourth party/respondent.

3 The background

4 [3] In or about March 1987 McNaughton entered into a written agreement with the appellant to purchase a shop, situate at the upper level part of a development complex, then under construction, known as Princeville Commercial Centre (PCC) situate at 95-97 Constant Spring Road in the parish of Saint Andrew.

5 [4] On completion of the building in March 1989, the appellant's managing director Donald Glanville invited McNaughton to take possession of her shop. She declined, pointing to extensive cracks in one of the walls. The appellant deferred the date of possession in order to remedy the defects. The repairs were carried out. Relying on an assurance that the defects had been remedied, McNaughton went into possession on 18 July 1989, only to discover, at a later date that cracks in the wall had reappeared. By January 1990, water had begun seeping into the shop through the roof of the building.

6 [5] McNaughton stated that she was advised by the appellant that the defects about which she complained related to an ‘expansion joint’. Thereafter, she vacated the shop for the necessary work to be undertaken but no such work was done. She related that the necessary repairs were not carried out for the reason that there was a disagreement between the appellant and the third party/respondent (‘the architect’) as to who was responsible for the costs of the repairs.

7 [6] Dissatisfied with the situation, McNaughton, on 16 September 1992, commenced an action against the appellant claiming damages for breach of contract or alternatively, for negligence in respect of the construction of the building. In her statement of claim filed on 17 September 1992, paragraphs (3) to (10) of the claim read:

• ‘3. The agreed selling price of the property was $247,500.00 which the Plaintiff has paid together with the one-half (½) costs of transfer.

• 4. It was an express term of the contract that: -

  ‘The purchaser shall be deemed to take possession of the shop on the fourteenth day after notice by the Vendor that:-

  • (i) The shop is completed; and

  • (ii) A certificate of Title for the shop under the Registration (Strata Titles) Act has been issued by the Registrar of Titles.

8 which notice the Defendant gave on or about the 22 ^nd day of March 1989.

5

On the day of March, 1989 the Plaintiff attempted to take possession of the property and the Plaintiff notified the Defendant architect Mr Keith Lumsden and its Attorneys-at-Law that she could not take possession of the property as one of the walls thereof was extensively cracked, and that the building was defective. 6. The Defendant deferred the date of possession in order to remedy the said defects, as a consequence whereof the Plaintiff did not get possession of the said shop until 18 th July, 1989. 7. By reason of the foregoing the Defendant unlawfully and wrong-fully charged the Plaintiff an escalation fee of $30,000.00 which the Plaintiff paid, the repayment of which sum the Plaintiff claims with interest. 8. It was an express and/or implied condition of the agreement between the Plaintiff and the Defendant that the shop would be built in a workmanlike manner and the Defendant warranted that the building would have been fit for its purposes. 9. Further and/or in the alternative the Plaintiff will say that the Defendant, its servants, and/or agents were negligent in the construction of the said shop.

9 PARTICULARS OF NEGLIGENCE

• (a) Failing to provide a proper foundation for the building and to prevent subsidence.

• (b) Failing to construct walls which were suitable for the purpose for which they were intended.

• (c) Failing to erect a roof that was watertight.

• (d) Failing to construct walls and eaves beams and cantilevers which remained intact and did not crumble.

• (e) Failing to provide any or any adequate support for concrete beam.

• (f) Failing to utilize and apply accepted and tested techniques of construction.

• (g) Construction walls which separated from the building.

10 NOTE: The Plaintiff will at the Trial rely on the doctrine of RES IPSA LOQUITUR.

10

By reason of the Defendant's negligence the Plaintiff has been unable to continue to utilize the shop as a ladies clothing boutique, has been forced to give up occupancy of the building and to utilize it for any purpose. As a consequence whereof the Plaintiff has sustained loss and damage.

PARTICULARS OF SPECIAL DAMAGE	$
(i) Loss of income from business for a period of two weeks in August and one week in September, 1991 when shop was closed at request of Defendant and its agent to effect repairs at $5,000.00 per week	15,000.00
(ii) Loss of income from the business from/May 1992 and continuing @/8 th $5,000.00 per week (x 15 weeks)	75,000.00
(iii) Cost of Engineers Report
(iv) Amount paid by Plaintiff for escalation fees wrongly claimed by Defendant	30,000.00
(v) Maintenance fees paid during above period @ $591.00 per month from October, 1989	20,094.00
(vi) Air Fresheners purchased	589.00
(vii) 3 Buckets purchased	260.00
(viii) 3 Mops @ $35.00 each	105.00
(ix) Estimated costs of replacing internal partition	2,000.00
(x) Clothes damaged by water (2 Suits @ 2,500.00 each) (4 pairs Jeans $700.00 each)	7,800.00
(xi) Replacing broken glass shelf	1,000.00
(xiii) Business closed 1991 34 days (in addition to Item 1) $51,850.00
1992 $67,300.00	119,150.00
TOTAL $295,998.00 ’

11 [7] The appellant filed an amended defence denying liability. Paragraphs (2) to (4) and (7) state:

• ‘2 As to paragraph 5 of the Statement of Claim, the Defendant does not admit that any notice was given by the plaintiff as is alleged and denies that the walls were extensively cracked or that the building was defective.

• 3. Further the Defendant will say that Clause 13 of the Agreement for sale required all notices to be given in writing and this was not done and that the walls were not cracked but were in fact two separate walls placed closely together and further it was the cladding on the wall that appeared unattractive due to the negligence of the contractors. By reason of Clause 14(iii) of the said Agreement for Sale, the Certificate of Practical Completion is conclusive evidence that the shops were properly built and completed in accordance with the Agreement for Sale. In the premises, the Plaintiff is not entitled to recover damages as alleged for breach of contract or negligence .

• 4. Save and except that the Plaintiff took possession of the shop on the 18 ^th day of July 1989 paragraph 6 of the Statement of Claim is not admitted.

7

It is denied that the Defendant its servant and/or agent were negligent in the construction of the said Shop as alleged in paragraph 9 of the Statement of Claim or at all and the Particulars of Negligence therein contained are denied. The Defendant will say that any negligence in the construction of the said Shop were due to negligence of the contractor and/or Architect and/or Engineer whom the Defendant employed as independent contractors to construct the said Shop.’

12 [8] On the 15 June 1994, the appellant sought and obtained leave of the court to join Keith Lumsden (‘the architect’), Louis Douet (‘the engineer’) and, Construction Developers Associates Limited (‘the contractor’) as third parties to the suit, claiming from each of them a contribution or an indemnity. Paragraphs (3) to (6) of its statement of claim against the engineer and the contractor were couched in the following terms:

• ‘(3) By virtue of a contract in writing dated the 14 ^th day of May, 1988 between the Defendant and CONSTRUCTION DEVELOPERS ASSOCIATES LIMITED as contractors, CONSTRUCTION DEVELOPERS ASSOCIATES LIMITED agreed to erect a shopping and commercial complex known as ‘Princeville Commercial Centre’ at No. 95-97 Constant Spring Road in the parish of Saint Andrew.

• (4) The Defendant appointed KEITH LUMSDEN as Architect and LOUIS DOUET as Structural Engineer for reward as Independent Contractors to prepare plans, drawings, specifications, Bills of Quantities etc., for the erection and the supervision of construction of the said Princeville Commercial Centre.

• (5) It was an expressed and/or implied term and condition of the agreement between the Defendant and CONSTRUCTION DEVELOPERS ASSOCIATES LIMITED, KEITH LUMSDEN and LOUIS DOUET that the aforesaid shopping and commercial complex would be built in a workmanlike manner in...