Pentium Holdings Ltd v Bryan Morris

• Jurisdiction: Jamaica
• Judge: Anderson, J.
• Judgment Date: 31 July 2019
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. C.L. 2002/P-016
• Date: 31 July 2019

[2019] JMSC Civ 160

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. C.L. 2002/P-016

Between

Pentium Holdings Limited

Claimant

and

Bryan Morris

1 ^st Defendant

and

Islandwide Construction Ltd.

2 ^nd Defendant

and

Plexus Limited

3 ^rd Defendant

Alexander Williams and Topazia Brown, instructed by Usim, Williams & Company for the claimant

Charles E. Piper, QC, Wayne Piper and Petal Brown, instructed by Piper & Samuda for the 1st and 3rd defendants

Lawrence Haynes, instructed by Tracey A. Hamilton for the 2nd defendant

Claim for damages for breach of contract and/or negligence — Whether claim under both heads can properly be pursued — Contract for architectural services regarding office renovation project — Separate contract for construction services regarding office renovation project — Implied terms- Whether 1 ^st defendant should be held personally liable for negligence — Scope of duty of care owed by architect to claimant — Whether 3 ^rd defendant owed duty of care to claimant to carry out any of the duties particularized in the claimant's second further amended particulars of claim — Ancillary Claims.

IN OPEN COURT

Anderson, J.

The Background

1 The claim is a claim against the 1 ^st and 3 ^rd defendants for damages for breach of contract and/or negligence and as against the 2 ^nd defendant, for damages for breach of contract only. Initially, the claimant's claim against the 2 ^nd defendant was for damages for breach of contract and negligence, but subsequently, the claimant's lead counsel informed the court that his client was no longer pursuing his claim against the 2 ^nd defendant, for damages for negligence.

Introduction

2 The claimant is claiming against the 1 ^st and 3 ^rd defendants for damages for breach of contract and/or negligence, arising out of their engagement as ‘an architect,' for the claimant, and against the 2 ^nd defendant, arising out of its engagement as a contractor for the claimant. The 2 ^nd defendant, allegedly in breach of contract, due to their negligence, failed to properly supervise or inspect the building works at the claimant's premises so as to ensure compliance with all necessary regulations and avoid encroachments, amongst other alleged negligent acts.

3 In summary, the claimant's claim against the 1 ^st and/or 3 ^rd defendant is that they failed to submit plans to the proper authorities, for approval, prior to construction and failed to inspect and/or properly supervise the building works at the premises, amongst other alleged negligent acts.

The claimant's case

4 The claimant's case is that: The claimant is and was at all material times, the owner and occupier of premises with address at No. 1 Worthington Avenue, Kingston 5, in the parish of St. Andrew and which is registered at Volume 1197 Folio 614 of the Register Book of Titles.

5 The 1 ^st defendant is a registered architect and a contract was entered into, on or about August 8, 2000, between the claimant and the 1 ^st and/or 3 ^rd defendants for those defendants to act as architect for reward, in connection with the said premises. Said contract was made in writing and is evidenced by the 1 ^st and/or 3 ^rd defendant's letter to the claimant, dated August 8, 2000, which has been signed by the claimant.

6 The 2 ^nd defendant was engaged by the claimant as the contractor to conduct building work on the said premises and a contractual agreement was entered into, between them, pursuant to that purpose.

7 According to the claimant, the 1 ^st and 3 ^rd defendants were negligent, in the following respects, in that, they/he:

• 1) ‘ Failed to submit plans to the proper authorities at or before the commencement of the building works.

• 2) Failed to ascertain and/or comply with the requirements of the necessary ‘statues’ (sic), regulations and development orders in the locality of the premises, at or before the commencement of the building works.

• 3) Failed to properly supervise the building works at the premises, particularly to avoid encroachments.

• 4) Failed to inspect the building works carried out by the 2 ^nd defendant, properly or at all.’ (Italicized for emphasis)

8 It is being alleged by the claimant against the 1 ^st and 3 ^rd defendants, that said negligence constitutes a breach of contract and that it was an implied term of the contract which was entered into between the claimant and the 1 ^st and/or 3 ^rd defendant, that, according to the claimant, those defendants were negligent, in that they failed to exercise; ‘ all due professional skill and care in the performance of his or its services thereunder:'

9 The acts of negligence alleged by the claimant against the 2 ^nd defendant, are as follows:

It is being alleged by the claimant as against the 2 ^nd defendant, that said negligence constitutes a breach of contract.

• a) ‘Failed to ascertain and/or comply with the regulations of necessary statues (sic), regulations and development orders in the locality of the premises, at or before the commencement of the building works.

• b) Failed to properly supervise the building works at the premises, particularly to avoid encroachments.

• c) Failed to inspect the building works properly or at all.’ (Italicized for emphasis)

The case of the 1 ^st and 3 ^rd defendants

10 The 1 ^st and 3 ^rd defendants have filed a joint defence. In that regard, it is their joint contention, that it was the 3 ^rd defendant that was hired to perform architectural services for the claimant.

11 The proposed work to be done at the said premises was a modification to the claimant's offices, which are located at the said premises.

12 The 1 ^st defendant who is a registered architect and also, a shareholder and director of the 3 ^rd defendant, met with the claimant to discuss the scope of work to be done and to reach an agreement as to the bases on which such work would be done. The letter which was delivered to the claimant and which is dated August 8, 2000, was a letter of the 3 ^rd defendant.

13 There was the payment of United States eight thousand nine hundred dollars (US$8,900.00) by the claimant's servant or agent - Lee Hartley, to the 1 ^st defendant, on behalf of the 3 ^rd defendant, on September 9, 2000, as an advance payment for architectural work in connection with the said proposed modification.

14 The 3rd defendant agreed to do architectural work pertaining to the following:

• a) Convert the existing office on the ground floor building of the said premises into rentable units; and

• b) Add a first floor to accommodate 3–4 rentable units; and

• c) Convert both floors of the annex, to house executive offices for the claimant; and

• d) Ensure that the upgrading had adequate parking; and

• e) Facilitate the connection of the said premises into the sewer main on Worthington Avenue aforesaid.

15 The architectural work which the 3 ^rd defendant agreed with the claimant, to specifically perform, was as follows:

• a) Prepare a measured survey; and

• b) Prepare and present a design layout of the proposed changes to the said building; and

• c) Prepare a schematic design development drawing for the project; and

• d) Prepare detailed working drawings for the said project including a revised electrical and plumbing layout.

16 The 1 ^st and 3 ^rd defendants contend also, that on or about September 7, 2000, the claimant paid to the 2 ^nd defendant, the sum of approximately United States twentyseven thousand six hundred and forty-two dollars and eighty-six cents (U.S. $27,642.86) (the equivalent of Jamaican one million, one hundred and sixty-one thousand dollars (J$1,161,000.00), as a mobilization fee, for the commencement of the construction work pertaining to the modification of the claimant's said offices.

17 The 1 ^st and 3 ^rd defendants have alleged that the claimant demanded of the 2 ^nd defendant, that it commence the requisite work and upon construction work having commenced, the claimant demanded of the 3 ^rd defendant, through the 1 ^st defendant, that it ensures that the work was pursued in accordance with the design thereof, which demand was complied with, by those defendants.

18 Prior to said engagement of the 3 ^rd defendant's architectural services and while the defendants and the claimant were initially meeting with each other, collectively, and then discussing the nature of the project to be undertaken, it was represented to the 1 ^st defendant, by the claimant's servants or agents, or by one or the other of them, that the user of the claimant's said premises for commercial purposes, had been approved by the Kingston and St. Andrew Corporation (K.S.A.C) (as it was then known), in February 1996, and that plans for a two-story office building at the said premises, had been approved by the K.S.A.C. on July 31, 1995.

19 The defendants are relying on a letter dated February 28, 1996, from the K.S.A.C. to Jamaica Property Development Ltd. and a notification of building approval dated August 4, 1995, which were delivered by the claimant, to the 1 ^st defendant during those initial meetings.

20 Nonetheless, it is the contention of the 1 ^st and 3 ^rd defendants that even though ‘they’ (the claimant) knew that detailed working drawings for the proposed modification of its said offices, had not yet been prepared and submitted to the K.S.A.C. and that modification of the buildings on the said premises could not properly have been commenced before building approval had been obtained from the K.S.A.C. and other relevant authorities, on September 7, 2000, the claimant paid to the 2 ^nd defendant, the sum of twenty-seven thousand, six hundred and forty-two United States dollars and eighty-six cents (U.S.$27,642.86) (J$1,161,000.00)(equivalent), as mobilization fee for the commencement of the construction work for the modification of its said offices.

21 What is clear, therefore, is that the defendant commenced working on the intended office modifications for the claimant - that undoubtedly being...