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Byrne v JS Hill & Associates Ltd [1993] FJHC 49; Hbc0228j.90s (11 June 1993)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 228 OF 1990

Between:

1. JOHN EDWARD BYRNE
2. JUNE KIM BYRNE
Plaintiffs

- and -

J.S. HILL & ASSOCIATES LTD.
Defendant

Mr. H. Nagin for the Plaintiffs
Mr. T. Fa for the Defendant

JUDGMENT

In or about June 1989 the plaintiffs purchased a house situated at Lot 1 Mika Dreu Place, Namadi Heights for $240,000. It is located on an elevated site and has been variously described as an "up-market property" in "very good condition" and "absolutely perfect in every way". The house had various levels to it with an inground swimming pool at the front and a very large carport at the rear.

Soon after moving into the house however the plaintiffs decided to make some modifications and additions to the house with a view to improving it so as to more suit their personal needs. In particular they decided to install a new bathroom near the pool and to convert a part of the carport into a study.

In order to effect the alterations they answered an advertisement of the defendant company (Ex.P2) which they saw in a local newspaper.

They spoke with a principal of the defendant company about their requirements and a site meeting was arranged. The meeting was attended by the second plaintiff and several representatives of the defendant company including Krishna Chand the manager of the Small Works Department, Mr. Richard Elder the General Manager of the defendant company and a draughtsman.

During the meeting the second plaintiff explained the nature and scope of the work they wanted carried out and sought a quotation which was submitted by the defendant company in the form of a letter dated 15th August 1989 (Ex.P4).

In the letter the defendant company offered for a sum of $13,377.03 to convert the garage into a study and construct a new pool-side bathroom. Allowance was also made for the cost of tiles and an airconditioner. The work was also to be completed in 4 weeks from acceptance of the quotation which in turn was valid for 30 days.

The plaintiffs accepted the quotation and work began sometime in the third week of August 1989.

I have not the slightest doubt and I so find that in the acceptance of the defendant's quotation there came into existence between the parties a partly oral/partly written contract.

It is convenient at this point to deal with a matter first raised in the defendant's amended Statement of Defence filed on the 1st of August 1991 in which the defendant claims "that the plaintiffs claim is illegal and unenforceable in law in that the necessary approval of the Suva City Council which should have been obtained by the plaintiffs under the Towns (Building) Regulations was never obtained."

No more detailed reference has been made to the particular 'Regulation' either in the evidence called by the defendant or in defence counsel's submissions but presumably it is Regulation 4 which provides (so far as relevant):

"Every person about to ... add to or alter ... an existing building shall before commencing to do so make application ... with the Council for its approval the plans, elevations, sections and specifications of such ... addition and alterations."

It is common ground in this case that a 'building permit' was required for the plaintiffs' 'building works' which was commenced without the necessary approval of the Suva City Council. Indeed no such approval was ever sought or obtained.

The parties in this case both deny responsibility for obtaining the necessary 'building permit'. In particular, the plaintiffs claim that the defendant company's representative(s) had "offered" to obtain the necessary permit. On the other hand, the defendant claims that the plaintiffs, although advised that a permit was required, were in such a hurry to complete the works before their guests arrived from overseas, that they ignored the requirement. In any event they were responsible for it.

In light of the view that I take of the meaning and effect of the 'Regulation' it is not necessary for me to decide this apparent conflict in the evidence.

Nevertheless I would refer to the judgment of Denning L.J. in Strongman [1945] Ltd. v. Sincock [ 1955] 2 Q.B. 525 where his Lordship observed at p.537:

"When a builder is doing work for a lay owner, if I may so describe him, the primary obligation is on the builder to see that there is a licence. He ought not simply to rely on the word of the lay owner. He ought to inspect the licence himself. If he does not do so it is his fault if he finds himself landed in an illegality."

My reading of the 'Regulation' however is that it does not preclude the conclusion without the approval of the Suva City Council, of a contract which by its nature requires additions and alterations to be made to an existing building. It is the actual commencement of the work or building that is prohibited by the 'Regulation' -that is to say, it is the performance of the contract by the defendant company that is rendered illegal and not the formation of the contract per se.

In other words if there is any "illegality" in the contract between the parties it arose not in its formation but rather in the illegal performance by the defendant company of its obligations under it. In such circumstances it is the defendant company that is precluded from recovering under the contract arising from its illegal performance of it.

In Anderson Ltd. v. Daniel [1924] 1 K.B. 138 Atkin L.J. described it thus when he said at p.149:

"The question of illegality in a contract generally arises in connection with its formation, but it may also arise, as it does here, in connection with its performance. In the former case where the parties have agreed to something which is prohibited by Act of Parliament, it is indisputable that the contract is unenforceable by either party. And I think it is equally unenforceable by the offending party where the illegality arises from the fact that the mode of performance adopted by the party offending is in violation of some statute ..."

Or as Tuivaga J. (as he then was) said in dealing with a similar issue in H.P. Kasabia Bros. Ltd. v. Reddy Construction Co. Ltd. Civil Action No. 192 of 1975 (unreported) at p.20:

"... a distinction must be drawn between a breach of law relating to the method of performance of the contract, and one affecting the terms of the contract. Any breach of law in regard to the terms of the contract will render the contract illegal and void. However a breach in regard to the method of performance (such as carrying on work without a permit) does not necessarily make the contract unenforceable. A party to a contract cannot be excused from performing its obligations there under if the illegality stems from a lack of a permit to build this relates to performance and not the terms of the contract."

In the circumstances I am satisfied that the plaintiffs claim is not based upon an illegal unenforceable contract and is properly brought.

The plaintiffs claim as disclosed in the Statement of Claim falls to be considered under 2 main 'heads of claim'. Under the first may be listed defective or unsatisfactory work on the part of the defendant company in its performance of the contract and under the second is a separate claim that the defendant company through its workmen caused substantial damage to the roof tiles at the plaintiffs' house.

I propose to begin with the second 'head of claim' as the evidence and issues relating to it covers a narrower compass.

It is common ground that the plaintiffs' house has 3 levels of roof constructed of what is known in the building industry as "decramastic roof tiles". These are described by Patrick Maybin as being "... a pressed metal tile with clay chips bonded to the surface and has the appearance of old tiles". He formed the view that the roof tiles he saw at the plaintiffs' house "... appear to have been damaged by people walking on them".

In similar vein Patrick Chang an importer and layer of roof tiles including those on the plaintiffs' roof who gave a quotation to replace and reinstate the damaged roof tiles at the plaintiffs' house said: "The tiles are certainly damaged. The tiles have been improperly walked upon. You can't walk all over the tiles any way you want."

I am more than satisfied from the evidence of the plaintiffs' witnesses and the photographs and video tape produced that numerous roof tiles on 2 roofs of the plaintiffs' house are damaged. Indeed it appears from the totality of the evidence that there can be no denying that a large number of tiles on at least 2 levels of roof at the plaintiffs' house are in fact damaged.

The issue however as posed in the submissions of learned defence counsel (at page 18) is: "Who damaged them?"

This is echoed in the cross-examination of Richard Elder the principal witness for the defence who on being questioned about the roof tiles said:

"I agree there is a roof with indentations most likely caused by foot traffic but who caused it is unknown. We didn't cause damage to roof, we used sheets of plywood ... I believe it could be many people in the history of the building who damaged the roof."

As to 'who caused the damage?' the second plaintiff said in her evidence in-chief:

"By 15.3.91 the tiles were badly damaged by J.S. Hill's workmen on the roof. They were the only people on the roof during that period. I saw them on the roof walking on the roof.

Sharma walked on the roof using a piece of phywood to measure up the roof. He caused no damage but the workmen after that walked on the roofs carrying very heavy cyclone shutters. Yes I saw them carrying tool box and metal pieces to fix the shutter brackets to the wall. It was 13.12.89. We had complained that the brackets were twisting loose. Maybin had ordered washers. Mr. Elder sent 6 men and Sharma. 4 men wearing workboots. I was in the main bedroom watching the men on the roof. I complained about 1 man with a tool box and he let go of the tool box which fell on the roof and caused a very great dent."

In cross-examination it was put to the witness that J.S. Hill were not responsible for the damage to the roof tiles and it was suggested that the damage had occurred before the workmen arrived at the house but the witness remained adamant that the only workmen there were J.S. Hill's and they damaged the tiles by walking over it. Only Sashi Sharma used plywood once on the roof while measuring up the windows.

The first plaintiff for his part distinctly recalled seeing the defendant's employees on the roof on the 9th of November 1989. This is what he says on being questioned about the defendant's denial of liability for the damage to the roof tiles:

"I saw the defendant's workmen on the roof on 9.11.89 when they erected shutters on the roof of the second storey and also on the roof in December then working on instructions of LHM. I usually saw between 2 or more putting up shutters and working on the shutters. There were also workmen painting brackets of shutters on the roof and others drilling holes in the wall for brackets. None of these workmen used timber or planks of plywood when walking on the roof. I never saw them use planks other than a piece we had in our yard but not used when I saw them.

Some wore boots, others ordinary shoes."

The plaintiffs however were apparently not alone in seeing the defendant company's workmen walking unsupported on the roof-tiles of the house. Albert Treadingham, who visited the plaintiffs' house and prepared a detailed report of the 'defects' he noticed on his several inspections said in his evidence in-chief:

"I inspected the roof tiles. They were red in colour, decramastic tiles, fixed to battens on the roof. They are expensive quality roofing. The tiles were very badly damaged from foot traffic."

Then on being cross-examined about a reported statement made in a report dated the 28th of November 1989 (Ex.P9) that: "We have no reason to doubt that roof tiles were damaged by workmen fitting shutters ...", he said:

"On one occasion when I was there I saw workmen walking on that lower roof to get to the bathroom ... On most visits I went up and men were working on the shutters. I saw them working and walking on the roof 5 or 6 times 27.11.89, 2.3.90; 29.3.90 and 14.3.91.

Finally in re-examination the witness said:

"I saw J.S. Hill's men walking all over the roof. I spoke to Krishna Chand the site supervisor when I first visited it. He said he would get plywood or planks to walk on as I had suggested. They did that later but by then a lot of damage had been done already ... the men walking on the roof were working with shutters. Except for top roof I saw J.S. Hill men walking on all roofs... Prior to my telling them I didn't see the workers using anything to protect the roof."

In its defence to this particular claim the defendant company called several of its workmen who uniformly denied causing any damage to the roof-tiles on the plaintiffs' roof. Their evidence is typified by the evidence of the Manager, Small Works Department Krishna Chand, who said:

"Can't recall date and day when we worked on plaintiffs' roof. At one time we did work on the plaintiffs' roof when we erected her shutters. We used protective 8' x 3/4" ply boards. About 5/6 pieces. They were placed on the roof to spread the weight of the workmen."

"My men have worked on 10 decramastic tile roofs in 14 years service and know what protective measures to use when working on such roofs. I never saw my workers working on the plaintiffs roof without protective planks. Other than the plaintiffs gardener I haven't seen anyone else on the roof not using protective planks."

Having carefully considered the evidence on this aspect of the plaintiffs' claim and bearing in mind that the defendant company fabricated the cyclone shutters for the plaintiffs' house and that in order to do this it was necessary to climb onto the various roofs to measure the windows and then later to fix the window brackets and shutters from the outside, I am of the firm view that the evidence of the second plaintiff represents the truth of the matter and I accept and prefer it to that of the defence witnesses.

I found the evidence of the plaintiffs and their witnesses on this aspect forthright and objective and in particular the second plaintiff was more accurate and reliable as to the dates, the events and their chronology. The defence witnesses on the other hand often spoke from hearsay, were vague and appeared evasive.

Accordingly I uphold the plaintiffs' claim and find that the person(s) who caused the damage to the roof-tiles of the plaintiffs' house were the workmen or employees of the defendant company.

Further having regard to the extent and nature of the damage to the roof-tiles and mindful that merely replacing some of the damaged tiles would result in an unsightly "patch-work", I am satisfied that the plaintiffs' are entitled to a complete replacement of all the tiles on the roofs that have damaged tiles (excluding the top most roof).

I am not unmindful that such an award will result in the plaintiffs' obtaining a completely new roof than if the damaged roof tiles were repaired (upon which the evidence is not at all certain as to its viability or economic feasibility) or if only the damaged tiles were replaced (which on one reliable estimate would account for over half of the existing tiles) but equally I cannot accept that the plaintiffs should be forced to accept a "patch-work" roof (which by all reliable accounts would be the inevitable result of any piece-meal replacement) or a repaired roof with no certainty as to its water-resistant qualities or future soundness or integrity.

I am content to rely on the principles enunciated in the speeches of the learned judges of the Court of Appeal (U.K.) in Harbutt's Plasticine Ltd. v. Wayne Tank & Pump [1970] 1 Lloyds Reps 15 in which an old factory wholly destroyed by fire was rebuilt with completely new materials and the Court rejected any allowance for "betterment". In particular, I find helpful the passage in the judgment of Widgery L.J. where he said at p.29:

"In my opinion each case depends on its own facts, it being remembered, first, that the purpose of the award of damages is to restore the plaintiff to his position before the loss occurred, and secondly that the plaintiff must act reasonably to mitigate his loss. If the article damaged is a motor car of popular make, the plaintiff cannot charge the defendant the cost of repair when it is cheaper to buy a similar car on the market. On the other hand if no substitute for the damaged article is available and no reasonable alternative can be provided the plaintiff should be entitled to the cost of repair. It was clear in the present case that it was reasonable for the plaintiffs to rebuild their factory ... Nor do I accept that the plaintiffs must give credit under the heading of "betterment" for the fact that their new factory is modern in design and materials. To do so would be the equivalent of forcing the plaintiffs to invest their money in the modernising of their plant which might be highly inconvenient for them."

I am satisfied on the evidence in this case that the roof of the plaintiffs' house was maintained in a good and undamaged state prior to the defendant's workmen walking and working on it. I am also satisfied that the tiles used on the roof are unique in appearance and design.

I am satisfied that the quotation of Architectural Aluminium Ltd. dated the 2nd of May 1991 (Ex.51) is the most accurate and the cheapest available. I am also mindful that the cost of materials have increased since May 1991 not the least by the implementation of VAT in the interim.

Accordingly in all the circumstances I award the plaintiffs under this 'head of claim' the sum of: $(18,918 + 3,782) = $22,700.

I turn next to the plaintiffs' claim for damages for defective or unsatisfactory work which is based primarily on several reports of Larsen Holtom and Maybin (hereafter referred to as "LHM").

It is necessary however to consider a preliminary issue raised by defence counsel in his submissions as to the question of termination of the contract. Counsel submits that the plaintiffs' terminated the contract in preventing the defendant company access to the building site as clearly stated in the 1st plaintiffs' letter of 30th January 1990 (Ex.P21) where he writes: (at p.2)

"I do not wish your company to carry out any other work at my home, other than to honour the conditions of the 'hurricane shutter erection contract'."

In highlighting the above paragraph counsel appears to have overlooked an earlier assertion by the author of the letter when he wrote inter alia: (at p.1 para 3)

"When I phoned Mr. Chand at his home later I was told by him that "the bathroom is finished. We are not going to do any more to it."

In similar vein the 2nd plaintiff had earlier written in a letter dated 23rd November 1989 (Ex.P8) addressed to Mr. K. Chand in the following terms:

"You stated to me on the telephone on twenty second of November (yesterday) that the bathroom built by your Firm is 'Finished'. Since the bathroom is still in the disgraceful state as before, I can only presume that you have no intention of doing further work on it, and that the glaring mistakes made by your workmen are beyond their capabilities to rectify."

The receipt of this latter letter however is the subject matter of some dispute. In so far as it may be necessary for me to decide the conflict in the evidence I accept the evidence of the plaintiffs recorded recollections of the date, nature and contents of the conversation they had with Krishna Chand regarding the bathroom.

Needless to say at the date the conversation is alleged to have occurred, work on the bathroom had for all intents and purposes been substantially completed. The shower had been made, and the hand-basin, toilet pan and cistern had been installed. The tiling to the walls had also been completed and the electric hot water system had been connected. Whatsmore 3 months had expired on a contract that was estimated would take 4 weeks. The defendant's own Reconciliation of Account annexed to its reply to Ex.P21 i.e. Ex.P23 dated 22nd February 1990 discloses a deduction of $500 for "work to complete". On the defendant's own account the work on the plaintiffs' contract was in percentage terms 97% complete.

Leaving aside the growing frustrations between the parties in those circumstances it is not at all surprising that Krishna Chand would have said what he is alleged to have said and I so find.

Further by that statement, Krishna Chand as the representative of the defendant company clearly evinced an intention on the part of his employer of repudiating its obligation under the contract to exercise care and skill and to do the contracted building works in a 'good and workmanlike manner'.

In my view in a claim for breach of contract on the basis that the party performing it has failed to do the work with care and skill or in a 'good and workmanlike manner' the question when? the contract was completed or who? terminated it is not an entirely helpful one.

In any event I cannot accept the proposition that an employer of a building contractor on seeing what he believes to be defective workmanship being performed by a building contractor on the job is nevertheless obliged to stand quietly by and watch and wait until the contractor abandons the job or says it is complete before he can take any action.

In my view an employer in such circumstances is entitled to point out the defective workmanship and ask that it be rectified immediately before the contractor may continue with the work and failing that to terminate the contract for breach by the contractor even before work has been completed.

I am fortified in my view by the decision in Harmer v. Cornelius (1858) 116 RR 654 in which an employee sued his master for wrongful dismissal. Willes J. in delivering the judgment of the Court dismissing the action said at p.660:

"When a skilled labourer ... is employed, there is on his part an implied warranty that he is of skill reasonably competent to the task he undertakes ... The public profession of an art is a representation to all the world that the professor possesses the requisite ability and skill. An express promise or express representation in the particular case is not necessary ...

The next question is - supposing that, when the skill and competency of the party employed are tested by the employment and he is found to be utterly incompetent, is the employer bound nevertheless to go on employing him to the end of the term for which he is engaged, notwithstanding his incompetency? This is a question upon which we have been furnished with no authority. But it seems very unreasonable that an employer should be compelled to go on employing a man who, having represented himself competent, turns out to be incompetent.

... The failure to afford the requisite skill which had been expressly or impliedly promised, is a breach of legal duty, and therefore misconduct...

And it appears to us that there is no material difference between a servant who will not, and a servant who cannot, perform the duty for which he is hired."

It must be remembered that building a house is different from drawing plans on paper and that rectification of defective building work can often only be effected with great difficulty and considerably more expense than constructing a completely new building.

In this case the plaintiffs' claim that it was the very basis or essence of their contract with the defendant that the defendant would build the study and bathroom in a 'good and workmanlike manner' consistent with the finishes in the existing structure. This standard of workmanship was not provided by the defendant as promised and in that failure the plaintiffs were entitled to treat the contract as having been repudiated by the defendant.

The defendant company for its part whilst not condoning poor workmanship began by denying that its workmanship was defective then later without necessarily admitting any defective workmanship claimed that the work was incomplete and that it should be allowed to complete it and alternatively, that it was entitled to exercise a right to remedy any defects during what is commonly termed in the industry as the 'maintenance period'. In this latter stance presumably the defendant accepted that there were some 'defects' in the work.

On all accounts I disagree. There appears to be a fundamental misconception by the defendant of its rights in the matter. The law as to the right of a party to determine a contract for breach is succinctly and clearly stated in Vol. 4 of Halsbury's Laws of England (4th edtn) at paragraph 1237 which reads:

"Where there is a breach of a term of contract which is a condition of the contract, or where the consequences of the breach of some other terms are such as to go to the root of the contract or frustrate it, the innocent party may elect to accept such breach as a repudiation of the contract by the party in breach. If he does so elect, the contract is at an end in the sense that the contract is no longer to be performed, but the rights of the parties are still assessed according to the terms of the contract. Whether the breach or breaches of contract amount to a repudiation of the contract and so entitle the innocent party to treat the contract as being at an end will depend on the terms of the contract and on all the circumstances of the breach."

In this case it is clear that the plaintiffs' rather than affirming the contract as they were entitled to, elected to treat the defendant's defective workmanship as a repudiation of the contract and having so-elected and notified their decision to the defendant company their election became final and could not be retracted.

In Scarf v. Jardine [1882] 7 A.C. 345 Lord Blackburn described the principle in the following terms at p.360 when he said:

"When once there has been an election to do one of the two things you cannot retract it and do the other thing; the election once made is finally made."

In other words despite the defendant's request to be allowed to 'complete the job', after the letter of 30th January 1990 (Ex.P21) it was no longer open to the plaintiffs had they been so-minded (which they were not) to permit the defendant back onto the site and treat the contract as though it still remained in force. The 1st plaintiffs' letter of 7th March 1990 (Ex.P28) merely reconfirmed the plaintiffs' earlier election.

This brings me to the question of the "maintenance period" which the defendant claims is a conventional term or practice in any contract in the building industry.

The nature of such a term is described by the author of Hudson's Building and Engineering Contracts (10th edtn) at p.388 as being:

"... a clause which requires the contractor, on being called on to do so, to rectify all defects which may appear during a fixed period after completion of the work and entry into occupation by the employer."

Two important 'features' are immediately discernible from the above, firstly, the 'maintenance period' begins to run from 'completion of the work' and secondly, rectification is intended to cover only defects that 'appear' during the 'maintenance period'.

This latter characteristic is succinctly described by. Patrick Maybin when he said in cross-examination:

"(The) defects (liability) period is meant to rectify latent defects that arise after completion and not to rectify defective construction which is evident at completion."

Even assuming that such a term could be implied into the building contract between the plaintiffs and the defendant (upon which the witnesses differ) the evidence is clear that neither of the above mentioned 'features' is present in this case.

As to the first the evidence of Richard Elder is to the effect that work on the plaintiffs' site had not been completed. If I accept that then the question of a 'maintenance period' does not begin to arise so as to entitle the defendant to return to the site.

If I reject that evidence however and hold that a 'maintenance period' ought to be implied into the contract then in that event I am more than satisfied and I so find from the evidence of the plaintiffs', the photographs and in particular the evidence of Patrick Maybin, that the numerous defects noted by him in his report of 28th November 1989 (Ex.P9) did not "appear" during the 'maintenance period', rather, they were defects apparent during the course of construction and directly attributable to the defective workmanship of the defendant's employees.

In any event a "defects liability clause" does not preclude an action for damages for breach of contract nor does it apply where the contract has been prematurely determined. At best it is a factor to be considered by the Court on the question of the reasonableness of the employer's actions in seeking to mitigate his loss.

In the circumstances I am satisfied that there is no merit in the defendant's claim to a term importing a 'maintenance period' into the contract between the plaintiffs and the defendant.

Learned counsel for the defendant has also raised as a defence the 'doctrine of frustration' based upon the interference of the second plaintiff in the orderly progress of the building works. The interference it is claimed took various forms from shouting and scolding to directing the defendant's workmen on how to lay the tiles in the new bathroom and insisting that the walls of the Staff Room be painted.

Richard Elder described the defendant's difficulties when he said:

"... the employees did what she wanted to the frustration of management."

This is confirmed by Krishna Chand the defendant's supervisor who said:

"My problem with Mrs. Byrne was she was giving instructions to the workmen. She changed my instructions on the tiling in the new bathroom."

Or as more colourfully described by Malcolm Brain a principal of the defendant company who observed the second plaintiffs' behaviour on one occasion:

"(a) typical display of colonial arrogance against our people equated with the tantrums of a 'spoilt child'."

In somewhat similar vein Raymond Paris the author of Ex.D4, a civil engineer commissioned by an insurance company to inspect the plaintiffs' house described his first telephone conversation with the second plaintiff as: "... an uncomfortable experience (in which) things were said that sounded unreasonably superior" and where "the manner of Mrs. Byrne was generally derogatory" albeit that it "ended politely".

In cross-examination this witness expressed his "alarm" that he should be treated in a manner which was inappropriate to his request to inspect the plaintiffs' house. That was his impression of what happened as founded on his experience.

As much as I may sympathise with the unenviable predicament that the defendant's workmen may have been placed under and the inevitable frustrations they may have experienced in working at the plaintiffs house that falls well short of constituting "frustration" for the purposes of the law of contract for the simple reason that if I accept the defendant's evidence of the "frustrating events" then clearly they were the actions or fault of one of the parties to the contract.

This important 'limitation' to the application of the 'doctrine of frustration' is well illustrated in the remarks of Salmon L.J. in Denmark Productions Ltd. v. Boscobel Productions Ltd. (1969) 1 Q.B. 699 when he said at p.725:

"This was a doctrine evolved by the Courts to meet the case in which a contract became impossible through some supervening event, not reasonably forseeable when the contract was made and for which neither contracting party was in any way responsible."

In the same case Harman L.J. stated the same principle more trenchantly at p.736 when he said:

"The frustrating event is something altogether outside the control of the parties - a war, a famine, a flood or some event of that sort - so that if the parties had thought to provide for it they would at once have agreed that on its happening the contract must come to an end. I have never heard of the doctrine applied to an event ... which depends on the action of one of the parties in connection with the contractual duty of the other of them ..."

The 'limitation' is even made clear in the passage cited by learned counsel for the defendant in his written submissions from the judgment of Lord Radcliffe in Davis
Contractors v. Fareham UDC [1956] UKHL 3; (1956) A.C. 696 when his lordship said at p.729:

"Frustration occurs whenever the law recognises that without default of either party controlled obligations has become incapable of being performed ..."

(my underlining)

In my view the plaintiffs' interference with the orderly progress of the works (if any) at worst constitutes a breach of the implied condition recognised in Hudsons Building and Engineering Contracts (10th ed) at p.318:

"... that the site will be handed over to the contractor within a reasonable time of signing the contract and ... a sufficient degree of uninterrupted and exclusive possession given to permit the contractor to carry out his work unimpeded and in the manner of choice."

As such the second plaintiffs' actions may found a claim for breach of contract but cannot support the 'defence of frustration'. Needless to say it is trite that difficulty of working conditions, hardship or inconvenience and even financial loss are insufficient in themselves to bring about frustration in a contract, much more is needed before the principle may be successfully invoked.

I am satisfied that the 'doctrine of frustration' has no application to the circumstances of this case.

Having thus disposed of those preliminary matters I now turn to the plaintiffs' substantive claim under the first 'head of claim', namely, "for defective or unsatisfactory work on the part of the defendant company in its performance of the contract".

A great deal of evidence has been placed before the Court regarding the defendant's defective workmanship on the plaintiffs' job. The evidence included the oral testimony of witnesses (including the plaintiffs), photographs, a video tape and several written reports from the firm of LHM who were requested by the plaintiffs to inspect and report on the work carried out by the defendant.

In all there are 3 main reports from LHM dated the 28th November 1989 (Ex.P9); 29th March 1990 (Ex.P31) and 15th March 1991 (Ex.P41). They all follow the same format in that 'defects' are noted under a title or heading corresponding to a room in which the defendant had done some work or to an item of work performed by the defendant. I note that an identical format was adopted by the plaintiffs in the particulars furnished to the defendant and for ease of reference I shall adopt the same headings namely, Cyclone Shutters; New Bathroom; Staff Room (a.k.a. Visitors Room); and Study Room.

At the outset I note that LHM's first report (Ex.P9) sets out the standard against which the defendant's work has been assessed by them in their report as follows:

"As there is no contract or specification to define performance and quality of finished product we have assessed the situation on the assumption that you are entitled to what we consider to be normally acceptable standards of construction in Suva by a builder with a reputation for good quality."

This assumption is not disputed by the defendant and is entirely consistent with the normal implied condition in all building contracts that the work will be carried out 'with care and skill and in a good and workmanlike manner'.

(1) CYCLONE SHUTTERS

These are the subject matter of a separate written quotation by the defendant dated the 15th of September 1989 (Ex.P5). No dimensions, drawings or specifications were provided other than those contained in the letter. Certainly none was produced to the Court.

The plaintiffs claim that the cyclone shutters were not done properly - they were made too big and bulky and the red paint applied to the shutters ran and stained the walls. The wall brackets were also loose.

The 'size defects' were first noted in LHM's report of 28th November 1989 and after their observations were brought to the defendant's attention (vide the first plaintiffs' letter of 4th December 1989 - Ex.P11) they were "made good in accordance with instructions given" (See: LHM report dated 29th March 1990 - Ex.P31).

Almost a year later however the paint on the plywood shutters was still "soft" and the wall brackets to hold the cyclone shutters in place "(were) not fixed securely and become loose when fixing shutters ..." (See: LHM report - Ex.P.41).

The first plaintiff in the course of his re-examination confirmed that there were '7 plywood shutters' which were meant to cover the large sliding glass doors of the house. Presumably these are the shutters referred to in LHM's last report as having paint which is "still soft".

I am satisfied from the evidence that the cyclone shutters are now of an acceptable size and standard of construction and need not be replaced. The paint work on the plywood shutters however are unacceptable and needs to be redone to prevent it coming off. Similarly with some of the wall brackets and in particular those meant for the cyclone shutter to the Study window (See: Ex.P54 and 4 photos in Ex.49'H') which had to be wired into its supporting brackets in order to keep it in place.

In regard to the repairs to the cyclone shutters and brackets there is only one quotation from Tassinari Enterprises (Ex.P42). Using those figures as the best available, I award the plaintiffs the following sums:

(1) For the repainting of 7 plywood shutters at an average cost of $120 per shutter, a round sum of $1,000;

(2) For the replacement of 67 defective wall brackets a sum of $670.00.

I turn next to a related contract entitled "An Agreement made for the Erection and Removal of Hurricane Shutters" dated on or about the 1st of December 1989 (Ex.P10) and which the plaintiffs' claim was breached by the defendant.

The 'Agreement' makes reference to an earlier 'limited' quotation of the defendant dated 14th November 1989 (Ex.P6) in which the defendant offered for a fee to erect and remove the hurricane shutters at the plaintiffs' residence in the event of a hurricane during the hurricane season from 'November 1989 to April 1990'.

Pursuant to Clause 4 of the 'Agreement' the plaintiffs issued to the defendant a key to the maingate to their premises as confirmed in a letter of the second plaintiff dated 29th January 1990 (Ex.P20) and signed by K. Chand the defendant's representative.

The key was subsequently returned to the plaintiffs under cover of the defendant's letter dated the 8th of November 1990 (Ex.P35). No reason is given for the return of the key nor has a previous letter referred to in the exhibit been produced.

It is noteworthy that this particular 'Agreement' is nowhere mentioned in the plaintiffs' Statement of Claim nor in the 'particulars' provided to the defendant and only became apparent in the course of the second plaintiffs' evidence when she said at the tail-end of her evidence in chief:

"J.S. Hill have decided now not to put the cyclone shutters up which breaks this on-going perpetual contract we had with them for the erection of the shutters. They did not do it in Cyclone Sina and I got Tassinari to do it."

This is confirmed by the first plaintiff in his evidence when he said in cross-examination:

"Tassinari's men were hired to erect the shutters in November 1990 just before Cyclone Sina. 2 men attended. I was present for some of the time they erected the shutters. It took about 1 1/2 - 2 hours to erect. They were under pressure to work fast there had been a cyclone alert and it was approaching."

and later when cross-examined about the claim of $2,000 for the alleged breach of contract as set out in the plaintiffs' summary of their financial claims (Ex.P51) he said:

"Q: How did you arrive at this figure?

A: Yes the defendant broke their contract to erect and remove the shutters. Loss is that we had to engage somebody else Tassinari and in any event we had wanted an on-going contract. I can't recall what we paid to Tassinari on that occasion."

It is clear from the plaintiffs evidence that the 'Shutter Erection Agreement' was an important factor in their granting the 'shutter fabrication contract' to the defendant albeit that the latter pre-dates the former. This is confirmed in the recital to Ex.P10 which also appears in the defendant's copy of the 'Agreement' Ex.D12.

Equally clear is the plaintiffs intention that the 'Agreement' should be a "perpetual on-going one" but whether the wording of Clause 5 would achieve that is doubtful in my view.

In any event the real difficulty arises as to which of the three (3) above-mentioned documents formed the basis of the contract (if any) between the parties. The plaintiffs' copy (Ex.P10) contains very material undated alterations to Clause 6 which do not appear in the defendant's copy.

Furthermore a month after the 'Agreement' the defendant wrote to the plaintiffs to clarify a matter and to suggest an amendment to Clause 1.

In this latter regard the plaintiffs' copy bears an appropriate undated amendment to Clause 1 which presumably was made after receipt of the defendant's letter (Ex.P18) but again the amendment does not appear on the defendant's copy. And, although the amendment to Clause 1 is initialled by the plaintiffs on their copy the same does not bear the defendant's initials.

Whatsmore no evidence has been led as to whether any payment has been made by the plaintiffs under the 'Agreement' or pursuant to their acceptance of the defendant's letter of 14th November 1989 (Ex.P6).

In these circumstances the evidence remains inconclusive and unsatisfactory and accordingly I am not satisfied that the plaintiffs have properly established the terms of a concluded contract between them or indeed any breach on the defendant's part of a 'Shutter Erection Agreement' as claimed. The claim for $2,000 for breach of this contract is therefore dismissed.

2. NEW BATHROOM

Under this heading LHM's last report (Ex.P41) lists 22 "defects". These include defective tiling, defective plumbing and a defective hotwater service.

In so far as the 'defective plumbing' in the new bathroom is concerned the 'defect' was dramatically brought to the attention of the plaintiffs when raw sewerage began flowing out into the shower area. The plaintiffs on seeing this called Brijs Plumbing Works and representatives of LHM.

Mr. Maybin of LHM described the "defective plumbing" in the following terms:

"Main problem is trap under a floor when Health Regulations required it to be outside and accessible for cleaning. Trap connected to waste for WC pan under the floor somewhere without means of clearing blockage. What I saw was a health hazard. Recommended it be fixed immediately. I would not expect J.S. Hill to build an installation like that nor would a registered plumber build anything like that."

Brij Subhaydas the registered plumber who fixed the problem said:

"As an experienced plumber I cannot say that the work done on the site would be done by a registered plumber but it was not properly done."

Mr. Richard Elder when asked about the "plumbing problem" in the new bathroom merely expressed disbelief that it should arise a year and a half after the defendant's workmen had left the site. He opined that the blockage was in a main line further down and the sewerage backed-up and showed in the lowest point which was the shower.

Indeed under cross-examination the witness suggested that it was not necessary to provide an inspection chamber as they were connecting to an existing pipe. Furthermore there was a gulley trap under the shower.

I am satisfied from the evidence that in installing the plumbing for the new bathroom the defendant's workmen did not exercise proper care and skill. The fact that the problem did not surface until 18 months after the plumbing had been fitted does not persuade me that the plumbing was not improperly constructed at the outset.

The plaintiffs are entitled to be reimbursed the cost of the repairs to correct the 'defective plumbing' in the new bathroom which I fix at $942.00 (See: Exs. P38, 39 and 44).

As for the 'defective hot water service' this does not appear to have been included in the original quotation of the defendant (Ex.P4) but in any event was procured and installed by its workmen. The plaintiffs' complain that the hotwater unit as installed on the outside wall of the new bathroom is unprotected from the elements, is leaking and so-wired as to be perpetually "on" or alive even when not in use.

The defendant whilst not denying responsibility for installing the 'hot water service' in the new bathroom claimed in its amended Statement of Defence [See: Paras. 2(p) and (r)] that it was not part of the original contract. It was an additional item provided and installed on the instructions of the second plaintiff. Furthermore this additional work had not been charged or paid for.

The evidence however is that the platform on which the hot water unit was mounted has been replaced and photo Ex.49 D(8) shows the unit behind what appears to be a protective board erected at the roof edge presumably to protect it from direct exposure to the elements as it was previously.

As for the power-switch of the unit being continuously in the "on" position this could be attributed to the physical location of the switch which appears to be mounted on the eaves. (See: Photo in Ex.49F) of the roof to the new bathroom and presumably at that height inaccessible to the plaintiffs to manipulate as they required.

In all the circumstances I am not satisfied that either the unit or the nature of the 'defects' complained of by the plaintiffs regarding the 'hot water service' are in fact "defects" that are solely attributable to a want of 'good workmanship' on the part of the defendant's employees. This particular claim is dismissed.

I turn next to the 'defective tiling' in the new bathroom. This was first noted in LHM's report (Ex.P9) in the following terms:

"Floor Tiles

Workmanship in placing and grouting is far from acceptable. Complete removal and replacement is required including chipping back painted door sill and tiling same to meet vinyl tiles.

Wall Tiles

Grouting is not acceptable. Removal of grout and regrouting is required by a competent tiler together with replacement of tiles at window sill."

Both Patrick Maybin and Albert Treadingham the LHM representatives who saw the "tiling defects" were united in their condemnation of the tiling. In particular Albert Treadingham said in chief:

"The tiling in the bathroom had a lot of things wrong with it. It was not acceptable to a normal standard and finish. Complete removal and replacement of tiles is required. In one section there was mix and match not done - all feature tiles were placed in one wall ... most were behind the toilet. They should have been sown into all walls at various places." (See: Photo in Ex.49F)

Sugrim Prasad the owner of Ambe Construction and a former Manager of the defendant company's Small Works Department who inspected and tendered to remedy the defective work in the plaintiffs' house (Ex.P43), described what he saw as follows:

"As a builder I'd say the workmanship was really poor. I didn't believe that it was done by J.S. Hill Associates. I say it was like work done 30 years ago and certainly not that quality of work when I managed Small Works. I went through new bathroom and saw all the items required to be done. The whole thing was very poorly done even tiling was very bad especially big holes at fittings filled with grout."

In cross-examination he said:

"Been a builder/carpenter best part of my life 40 years or so. When I learnt J.S. Hill the builder I was surprised because of the poor quality of the work."

The second plaintiff expressed her dissatisfaction with the new bathroom in the following terms:

"I am not happy with the bathroom. There are so many defects in the bathroom that the only way to fix it is to gut it out and re-do it even then the walls are made of rubble. The bathroom is a mess. The (shower) doors fall off the hinges regularly, windows can't be cleaned. The bath pan is cracked. I dare not switch the hotwater system on. The floor tiles are cloudy, badly laid and cracked. Wash basin is an ugly factory type with the plug too small. Grouting is disgraceful. I can do better. It is absolutely amateur work."

She accepted that on receiving the assurances of Sunil Sharma the defendant's foreman on the job that more flower tiles were available, she gave instructions to alternate the flower tiles with the plain tiles on the new bathroom walls. She had also instructed the tilers to raise the level of tiles beyond the 1200 mm height allowed in the defendant's drawings (Ex.D-1C) as confirmed in the evidence of the tile-layers Joseph Ashok and Kanhaiya Lal.

In their evidence both tile-layers testified that in laying the wall tiles in the new bathroom and in the absence of the flower tiles, empty spaces were left between every two plain tiles in readiness to take a flower tile when it arrived. Both witnesses testified that they had done this on the instructions of Krishna Chand and both stated that the flower tiles were slightly larger than the plain tiles. Both maintained that they had done a 'good job' in tiling the new bathroom. I cannot accept that.

Krishna Chand himself on being shown photographs of the tiling (Ex.49F and 49C) was able to identify various 'defects' in the tiling although he said the work appeared 'incomplete'. In particular he said he would not have painted the door threshold between tiles in his own house nor would he when laying tiles have left empty spaces between tiles because pointing lines would not be straight thereafter. Needless to say he denied instructing the tile-layers to leave nor could he recall empty spaces being left on the new bathroom walls.

In its amended Statement of Defence and in its evidence the defendant has sought generally to attribute the various 'defects' in the new bathroom to the second plaintiffs' interference with the orderly progress of the work through her direct instructions to the defendant's workmen.

In considering however the evidence as to the nature and quality of the "tiling defects" in the new bathroom and bearing in mind the observation of Richard Elder that "a lot of the defects in the LHM report could be considered in the eye of the beholder", I am nevertheless satisfied that the "tiling defects" in the new bathroom are more than a matter of aesthetics.

Indeed the totality of the evidence satisfies me and I so find that the "tiling defects" are more probably the result of a lack of skill and care on the part of the defendant's workmen than anything the second plaintiff may have said to them. The plaintiffs are entitled to damages for the remedial works necessary to correct the tiling defects in the new bathroom.

If I may say so it is a little difficult to understand how anything the second plaintiff may have said to the tile-layers would have given rise to the varying thicknesses in the grouting or the different shades of colour or the unacceptable trade practices they employed in the placement of the tiles and bathroom fittings.

(3) STUDY ROOM

Under this heading LHM's report (Ex.P41) has listed 15 "defects". Some of the 'defects' can be seen in the photographs (Ex.49E) of which perhaps the most glaring is the "picture-frame" effect visible on one wall.

I am satisfied from the evidence that the above-mentioned wall is within the scope of works undertaken by the defendant in terms of its contract "to convert (part of) the garage into a study" and although the wall does not appear to be detailed in the defendant's drawings Ex.D(1) it is not seriously disputed that the "defect" complained about was the work of the defendant's workmen.

The nature and cause of the "defect" is described by Richard Elder as being:

"a common defect where you have 2 different types of materials shrinking. Could wall- paper and paint. To get rid of it completely $300-400. Was not in our original quote. We worked on the other side of wall. Covered by 6 months maintenance period."

Albert Treadingham said the walled-over opening was inappropriately done and shows timber had been plastered over and although he agreed that it could be done, in this instance it was very noticeable on the study wall because it had not been done properly and showed up like a "picture frame".

Patrick Maybin was even more categorical. He said: "The window had been blocked off by a board instead of blocking it off. It is impossible to plaster board so as to make it match surrounding block work plaster."

Both witnesses like Sugrim Prasad of Ambe Construction considered the wall a "major defect" that would need to be reconstructed with block work, replastered and then repainted to make it acceptable. Richard Elder admitted as much in cross-examination when he said: "To reblock and plaster is the sensible way to do it."

The other "major defect" in the study was the new ceiling which had been put in by the defendant. It appears from the evidence that the ceiling itself was properly constructed but owing to a leak in the roof caused by the defendant's workmen, moisture has seeped into the study ceiling causing it not only to shrink but also to discolour. By LHM's last report (Ex.P41) "the ceiling finish had deteriorated to the extent that it is to be removed and replaced".

4. STAFF ROOM (a.k.a. Visitors Room and Maids Quarters)

This was originally not part of the work undertaken by the defendant under either of its written quotations but again there can be no doubting that some work was necessarily carried out in the Staff Room by the defendant as a result of its work in the Study. I mention specifically the common-wall between the two rooms which was "boarded in" and plastered over on both sides.

The plasterwork on this common wall not only shows up the "picture-frame" effect earlier mentioned in relation to the Study but also according to LHM's report (Ex.P4) "(has) ... deteriorated so badly that major reinstatement work is required. This wall common to wall in study ... now requires demolition and rebuilding".

The nature of the deterioration in the plasterwork has been described by Albert Treadingham as "crazing" which is a series of small cracks in a confined area giving the appearance of "crocodile skin". This is attributable to several possible factors such as too much moisture in the plaster mix; too much cement in the mix; rapid drying-out without the plaster being kept wet; premature painting before the plaster has had time to properly cure and impact damage caused by nailing on the wall.

Richard Elder's candid opinion was that the "(Staff Room) walls were painted too early".

In this latter regard the evidence of the defendant's painters Rup Lal and Joseph Ashok is unanimous in its effect that the second plaintiff had instructed and insisted that the walls of the Staff Room should be painted although they were not ready.

In particular Rup Lal said:

"In the visitors room I painted the 4 walls. Don't know if its the staff-room. The walls were old but newly plastered. J.S. Hill workmen had plastered the walls. A group of painters under my supervision painted the walls. Mrs. Byrne directed us to paint the walls because some visitors were arriving at their place. The walls were not in fact ready for painting because the walls were only newly plastered and we are supposed to wait for some time.

To my knowledge new plaster should be allowed to cure for 7 days or even 21 days before painting. This is to enable the plaster to dry properly. I told Mrs. Byrne that the surface was not yet ready for painting. She did not agree and said she was getting some visitors. I told my boss but she insisted.

The plaster was only 4 days old. If wall plaster is not allowed to fully dry and is painted the paint will not dry and the plaster will crack."

Joseph Ashok was more specific, he said:

"I plastered old walls that were already there in the house. After plastering it was my job to wet the plaster for the next 7 days to prevent cracking of the plaster. I couldn't wet the walls because of the disruptions by the owner who said I should be painting it because she had some urgency. Mrs. Byrne was the owner. She spoke to me ... The painting began 3 days after I had plastered it."

and in cross-examination:

"Plaster was painted on before it was cured. Painted because of Mrs. Byrne's insistence. At first I explained it to Mrs. Byrne and then I told S.D. Sharma my foreman."

Unfortunately this evidence was not specifically put to the second plaintiff and is justifiable the subject-matter of much adverse comment in the written submissions of counsel for the plaintiffs. Be that as it may the second plaintiff has consistently denied that she supervised, directed or interfered with the defendant's workmen whilst they were working at the house. She was too busy unpacking at the time and in any event most of the defendant's workmen on site understood very little English.

Then there was a suggestion that the defendant's witnesses could not have worked in the Staff Room either because work in the Staff Room had not begun or it was someone else who did the work (See: cross-examination of Joseph Ashok).

The first plaintiff in his evidence regarding the Staff Room (Visitors Room) said:

"The visitors room was not part of Ex.P4 quotation. It was agreed to be done about middle of September which was when the quoted work should be completed. I expected the visitor's room would be finished within about 2 weeks. The visitor's room was extra work to the quotation.

The visitor's room not complete before visitors arrived. They stayed approximately 10-12 days. During that time all work at the site was suspended. We wanted no workmen there and we wanted to use the pool.

At the time visitors arrived most of the work in the visitor's room remained to be done. I can't tell you what work was done in the visitor's room or remained at that time but it appeared to me that the J.S. Hill workmen were working conscientiously plastering walls."

Earlier in her evidence in chief the second plaintiff had said:

"In the beginning it was very important to complete the whole thing in 1 month to give friends a honeymoon in Fiji and we wanted to show off our house to them."

This is confirmed by the first plaintiff when he said: (speaking to Krishna Chand)

"I told him we wished to have friends staying with us from time to time and in particular a dear friend of my wife to have her honeymoon in Fiji. For that reason we wanted the work done as quickly as possible and we wanted the work completed by late September."

Unfortunately no more precise evidence is available as to when exactly the plaintiffs' visitors came and left or when and how far work on the visitor's room had begun and progressed by the time of the visitor's arrival.

Be that as it may it is abandonly clear that the plaintiffs were concerned to have the work on their house completed before the arrival of their visitors. Equally it would have been obvious to them that the work in the Staff Room would not be completed in time for their visitors' arrival.

I am satisfied that under those circumstances the plaintiffs but more especially the second plaintiff would have made every effort to try and get as much of the remaining work in the Staff Room completed as was possible even to the extent of insisting that the defendant's workmen paint the walls and I so find.

The plaintiffs claim in this regard is accordingly dismissed.

Complaint was also made regarding the curtain rods over the windows in the study room. In particular as depicted in the photographs (Ex.49G) the curtain rods have been so-positioned over the windows and in such close proximity to each other as to prevent decorative finials being attached to the respective rod-ends. Even assuming that the defendant was responsible for at least 1 of the curtain rods and ends this is a relatively 'minor defect' with an equally simple and inexpensive solution.

In so far as the window in the visitor's room is concerned I am satisfied it is of a design consistent with the design of an existing window. Equally I am satisfied that its "inadequate ventilation" was first drawn to the plaintiffs' attention in LHM's first inspection report (Ex.P9). In my view that does not make it "defective". Needless to say the window did not figure in the particulars of the plaintiffs claim and appears to have been raised in hindsight.

The defendant's position according to Richard Elder was that the window was independently commissioned by the second plaintiff and was fabricated and installed by an unrelated contractor Timber and Aluminium Fabricators Ltd. and for which the second plaintiff was separately invoiced by the contractor and directly paid by the second plaintiff.

The second plaintiffs' explanation however as recorded by her on the face of the relevant invoice (Ex.P7) and confirmed in her evidence does not persuade me that the defendant's position is untenable. Indeed I am satisfied that the defendant's explanation in this regard is more probably correct.

I turn next to consider the plaintiffs Summary of their financial claim against the defendant as set out in Ex.P51 and upon which I would make the following general observations:

Firstly the two quotations from the building contractors (Exs. P42 and 43) differ markedly. Further the Ambe Construction Ltd. quotation does not include a detailed breakdown. In this latter regard the evidence of Sugrim Prasad its Managing Director did not advance the matter any further.

Secondly, several of the items (Talat's Freelance Photography and Colormarket) were claimed under the wrong sub-heading and in one instance (Brij's Plumbing Works) was claimed twice.

Bearing those observations in mind and mindful that various awards have already been made earlier in this judgment and further that various claims of the plaintiffs have been disallowed I turn to deal with the specific items claimed in Ex.P51 for ease of reference.

(a) Aluminium & Timber Fabricator Ltd. - disallowed.

(b) Paid to LHM Ltd. - allowed to the extent of the receipts (Exs. P27 and P32) at $720.

(c) Brijs Plumbing Works - allowed in full.

(d) Talats Freelance Photography - disallowed as being an expense not necessarily arising out of the defendant's defective workmanship but rather to furnish evidence in support of the plaintiffs claim.

(e) Colormarket (Tamavua) - disallowed as being an expense incurred by the plaintiffs as a result of remedial work done by Brijs Plumbing Works. Further the evidence is unclear as to whether the entire pool surrounds was painted or just the area affected by the remedial works.

(f) Viti Carpets Ltd. - allowed to the extent of $200 (See: Ex.D12) as an expense reasonably arising out of the necessary repair works to be carried out in the Study to correct the defendant's defective workmanship.

(g) Wormald Security - disallowed as to the Visitor's Room (Ex.P36) but allowed as to the Study (Ex.P37) in the sum of $264.00.

(h) LHM & Co. Ltd. Consulting Services - disallowed in respect of both the roof and other items of defective workmanship detailed in the LHM report (Ex.P41). In my view this is an expenditure not necessarily or even reasonably arising out of the defendant's defective workmanship. It is not insignificant that the plaintiffs themselves did not see fit to incur such an expenditure at the outset and I am not satisfied that the defendant should "foot the bill" so-to-speak for any supervision and overseeing by LHM of remedial works to be carried out (for the plaintiffs sole benefit NOT the defendant's) by contractors other than the defendant.

Damages for defective workmanship

Under this head the plaintiffs have submitted 2 quotations earlier mentioned. In this regard the defendant has also submitted a quotation (Ex.D10) for a total sum of $60,310.00 from Associates Building Construction which closely mirrors the quotation given by Tassinari Enterprises (Ex.P42).

There has been some doubt expressed however as to the ability of either company to complete the remedial works but their quotations are more detailed and therefore more helpful in my assessment of damages under this head of claim.

In assessing damages under this head I am guided generally by the approach set out in the following passage in Hudson's Building and Engineering Contracts (10th ed.) at p.585 which reads:

"In those cases where, in breach of contract, the work has been left incomplete, whether by abandonment, termination, or otherwise, or containing defects, the direct measure of damage will be the difference between the reasonable cost to the employer of repairing the defects or completing the work, together with any sums paid by or due from him under the contract and the sums payable by him under the contract if it had been properly carried out."

Using the available quotations I award the plaintiffs $25,000 damages calculated on a re-instatement basis for the remedial works required to be undertaken in the Study and the new bathroom.

The plaintiffs have also claimed general damages of $10,000 for distress and inconvenience. This is a difficult head to assess bearing in mind that some inconvenience and even discomfort was inevitable in the carrying out of the building works at the plaintiffs house. I note also that most of the work areas are directly accessible from outside and involves what might be considered "non-essential" rooms.

The replacement of the roofs however and the possible exposure of the interior of the house to the elements is an "inconvenience" that is additional to that which the plaintiffs have had to or ought to bear and accordingly I award the plaintiffs the sum of $1,000 by way of general damages for inconvenience and disruption to their daily lives and their quiet enjoyment of their house. The plaintiffs claim for $4,000 compensation for the use and supply of inferior materials in the building works and for stolen items is also disallowed as not having been sufficiently proved.

SUMMARY

The result of my findings on the plaintiffs' total claim for damages is as follows:

(1) For replacement of the roof -$22,700.00

(2) For repainting and replacing defective shutters and brackets- $1,670.00

(3) For remedial work to the new bathroom and study -$25,000.00

(4) For distress and inconvenience - $1,000.00

(5) Miscellaneous expenditure:

(a) Brij's Plumbing Works - $942.00

(b) To uplift and relay Study carpet - $200.00

(c) To disconnect and reconnect security alarm - $264.00

(d) LHM's fees - $720.00 $2,126.00

TOTAL =$52,496.00

==========

less an amount of $10,027.25 (See: Ex.D8) which I allow of the defendant's counterclaim on the basis of the 'doctrine of substantial performance' as enunciated and applied in H. Daikin & Co. Ltd. v. Lee (1916) 1 KB 566.

There will be judgment for the plaintiffs in the sum of $(52,496.00 - 10,027.25) = $42,468.75 together with interest at the rate of 10% from the date of judgment until final settlement. The plaintiffs to have the costs of the action to be taxed if not agreed.

(D.V. Fatiaki)
JUDGE

At Suva,
11th June, 1993.

HBC0228J.90S