Theophilus Tyrell v Sunset Beach Resort & Spa Hotel Ltd
| Jurisdiction | Jamaica |
| Judge | Evan Brown J |
| Judgment Date | 08 May 2015 |
| Neutral Citation | [2015] JMSC Civ 84 |
| Docket Number | CLAIM NO. 2010 HCV 04621 |
| Court | Supreme Court (Jamaica) |
| Date | 08 May 2015 |
[2015] JMSC Civ 84
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
CLAIM NO. 2010 HCV 04621
Mr. Garland Waugh instructed by Green and Moodie for the claimant
Mr. Brian Moodie and Miss Danielle Chai instructed by Samuda and Johnson for the defendant
Contract — Pavement contract — Contract price discounted — Whether withdrawal of discount allowed by custom — Misrepresentation of the area paved — Whether project completed in a satisfactory manner — Award of interest — No claim made for interest — Law Reform (Miscellaneous Provisions) Act.
The claimant was a Works Supervisor employed to Surrey Paving & Aggregate Co. Ltd. (Surrey Paving). The company permitted him to contract in his own behalf for jobs not requiring the deployment of full resources. It appears that in the performance of those contracts he would use material supplied by his company. That material was supplied on the basis of credit extended to the claimant. It appears also that the defendant had an existing arrangement with Surrey Paving.
In or around December, 2007 the claimant entered into an oral contract with the defendant, in his own name, to perform paving work on the defendant's property. The total area to be paved under the contract was 4966 square metres at the rate of $950.00 per square metres. The total cost was therefore $4,717,700.00. The claimant duly completed the project in February 2008, supplying all the materials and labour as the contract required.
Before and subsequent to the completion of the project, payments totalling $2,745,930.00 were made in liquidation of the contract price. A payment of $1,500,000.00 was made to the claimant as a deposit. Subsequently, a further $1,000,000.00 was paid under the contract in August, 2008. A further $245,930.00 was paid to the claimant in December, 2008. The claimant claimed $2,467,700.00 for work done and material supplied.
The defendant counterclaimed in the sum of $2,625,871.50. The counterclaim arose in two ways. First, the defendant alleged an overpayment to the claimant as a result of the claimant's misrepresentation of the square metres of the paved area. Secondly, the defendant said that it will have to undertake remedial work in the paved areas because of defects in the work performed by the claimant.
Having considered the evidence, I give judgment for the claimant on both the claim and counterclaim. My reasons for doing so appear below. Preceding the discussion of my findings is a brief statement of the respective cases for the parties followed by a statement of the issues for determination.
This was how he said his claim came about. In December, 2007 he and Mr. Ian Kerr, Managing Director of the defendant, discussed the possibility of paving the parking lot, main and back road areas of the defendant's property. In due course he provided Mr. Kerr with an estimate to pave all three areas. However, they agreed that only the main and back areas would be paved. The reason Mr. Kerr gave him for that was the defendant's cash flow problems. Under cross-examination the claimant denied that he was advised at the outset of the defendant's cash flow problems.
The claimant completed the work and submitted his invoice for payment. At the time of that submission he indicated an allowance of a 10% discount. Because of the length of time in making payments the claimant decided that the 10% discount would no longer apply. Cross-examined about this, the claimant said the 10% discount came up when discussing the job, provided payment came within three months. This was the tradition. However, he did not put this condition on the estimate. Neither did he advise Mr. Kerr that the 10% discount was revocable.
The claimant was questioned about the area paved and the quality of the work carried out. He maintained that the area paved was 4,966 square metres. He acknowledged the importance of not having water settle where guests are supposed to walk. Accordingly, the claimant agreed that Mr. Kerr told him there should be no ponding when it rained. He insisted that he completed the job without ponding. He employed a state of the art paver equipped with a sensor which gave the level of the surface as it was paved. Consequently, there was no need to do anything more after using that machine, the claimant asserted.
The claimant denied that Mr. Kerr expressed his dissatisfaction with the job upon completion. If Mr. Kerr had done so, it would have been nothing for the claimant to go and finish it up as at that point there was no dispute between them, the claimant said. The claimant said also that he never made any unfulfilled promises to Mr. Kerr to remedy any defects.
Under cross-examination, the claimant described his relationship with Surrey Paving. That relationship was not one that allowed the company to collect money on his behalf. That notwithstanding, he asked Mr. Kerr to pay $1,000,000.00 to Surrey Paving. However, he did not have any agreement with Mr. Kerr for him to make payments directly to Surrey Paving for materials to be used by the claimant. The claimant said he was neither aware that the defendant had a credit with Surrey Paving nor that that credit should have been applied to purchase of paving materials used by him.
Mr. Marlon Symister, Quantity Surveyor employed to Surrey Paving, confirmed that he authorized the extension of credit to the claimant. The claimant told Mr. Symister that the defendant was being tardy in paying him and asked Mr. Symister to use his best efforts to expedite payment. According to Mr. Symister, he was assisting the claimant to collect so that he [Surrey Paving] could collect.
Mr. Symister made several contacts with the defendant's accounts department before eventually speaking with Mr. Kerr. He explained to Mr. Kerr Surrey Paving's involvement in the matter. In particular, Mr. Symister told Mr. Kerr that Surrey Paving had given the claimant material on credit and that the claimant was unable to pay because of the defendant's default.
Not long after those representations the defendant made the payment of $1,000,000.00 to Surrey Paving. Subsequent to that Mr. Symister made several other unsuccessful contacts with the defendant's accounts department for payment. On one of those occasions he spoke with Mr. Kerr and a meeting was arranged. That meeting never took place. In none of the contacts between Mr. Symister and the defendant was the outstanding balance disputed; neither was there a complaint that the work was defective.
According to Mr. Kerr, the defendant was refurbishing at the time the claimant was contracted. Reliance Consulting Group was hired as project manager. Mr. Ian McNally, a director of Reliance Consulting Group Ltd. was the supervisor of the project. Mr. Kerr confirmed that the agreement was to pave two of three areas although he described the areas paved as the parking lot and main area. However, the measurement is the same as the claimant's. After the claimant provided him with the estimate, they had further discussions and agreed that a 10% discount would apply. The contract price was therefore $4,245,980.00. The claimant was paid a deposit of $1,500,000.00.
It was also a part of their oral agreement that the claimant would be supplied with paving material by Surrey Paving. Further, they agreed that the defendant would make payment directly to Surrey Paving. To Mr. Kerr's certain knowledge Surrey Paving had a credit of $600,000.00 for the defendant from previous transactions. There was an arrangement with Surrey Paving to use this sum to defray a part of the cost of material used by the claimant. Of this arrangement the claimant was well aware.
Before the commencement of the work he instructed the claimant to complete the job without any ponding in the areas where guests were expected to walk. That was important as the guests could slip and fall, creating a major insurance risk. He received from the claimant an assurance that the job would be completed as instructed.
Assurance notwithstanding, in February, 2008 Mr. Ian McNally advised Mr. Kerr that his inspection of the paving work being done by the claimant revealed a number of depressions. Those depressions created unsightly and dangerous ponding. Mr. Kerr's subsequent inspection confirmed Mr. McNally's report. In addition, Mr. Kerr noticed that a section of the area contracted to be paved was undone. Under cross-examination Mr. Kerr said he observed the ponding days after the completion of the work.
Mr. Kerr brought these matters to the attention of the claimant who acknowledged them and promised to remedy the defects and complete the work. The work was then about 90% completed. Although the concerns were brought to the claimant's attention, Mr. Kerr had occasion to speak to the claimant several times about them.
In spite of those outstanding matters, Mr. Kerr caused a cheque in the amount of $245,930.00 to be paid to the claimant in December, 2008 upon the claimant's request for payment. Mr. Kerr, however, reminded the claimant of the unfinished and defective work. That reminder evinced a faithful promise from the claimant to make good on the outstanding matters. The payment was therefore made on the strength of that promise.
In the wake of the filing of the claim, Mr. Kerr had the area paved by the claimant measured by a firm of surveyors in 2013. The surveyors found that the paved area measured 3,132.7 square metres, not the 4966 square metres for which the claimant was paid. That meant the claimant had been overpaid $667,471.550. The...
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