Patu v Rarere [1986] CKHC 1; PLAINT No 26.1985 (26 February 1986)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CIVIL DIVISION)
PLAINT. NO. 26/85

BETWEEN:

TAI PATU
Plaintiff

AND:

HUATA RARERE
Defendant

Counsel: Mrs T Browne for Plaintiff
Mr Sceats for Defendant

Dates of Hearing: 21 and 25 February 1986
Date of Judgment: 26 February 1986

RESERVED DECISION OF ROPER J

This case concerns a contract between the parties whereby the Defendant was engaged by the Plaintiff to remove the wooden flooring of his house, jack up the frame work of the house to level, and lay a concrete floor. The first matter to decide is what in fact the parties agreed to. According to the Plaintiff (whom I did not have the advantage of hearing and seeing give evidence for he has gone to New Zealand, his evidence having been taken before a Justice) the Defendant's price for doing the work was $4,500-$5,000, to include both labour and materials. The Defendant's evidence was to the effect that on or about the 4^th July 1985 he gave the plaintiff "a rough estimate" of $5,000-$6,000 for labour only, and o the 12^th July gave a firm quote of $5,000 on a "labour only" basis. On that day the Plaintiff paid the Defendant $3,000 as a deposit which, he said, was his own idea. Work commenced on the house on Saturday the 13^th July and on the 17^th the Defendant le this document at the house, it apparently being received by the Plaintiff on the 18^th:-

"H & M RARERE COMBINED CONSTRUCTION LTD
ARORANGI - Ph. 20-594

Tai Patu

We contract to renovate the house of Tai Patu's family, e.g. All clinker, aggregate, cement supplied by Mr Patu.

1. Labour involved in stripping and removing old wooden floor.

2. Helping to bring and supply rocks for fill.

3. Supply timber to shore up roof during concreting.

4. Pour concrete supplied by Tai Patu, also to level a trowel finish on all finishing of concrete floors.

5. Replace all rotten timber in walls (timber supplied by Tai Patu).

6. Make good and leave Contract Price.

Contract Price:	$5,000.00
Payment as follows: One-half before commencement of contract Progress payment, 25% at contractor's discretion Reminder at end of concrete pour	$3,000.00 $1,000.00 $1,000.00"

There is no evidence that the Plaintiff ever challenged that document and furthermore, during the week commencing the 15^th July the Plaintiff paid for loads of sand delivered as fill. There is no evidence that he went to the Defendant and complained that payment was the Defendant's responsibility. I am satisfied on balance that the quote given by the Defendant was for labour only. Work continued until Thursday the 18^th (according to the Plaintiff) or Saturday the 20^th (according to the Defendant) and came to a halt because of the unavailability of materials, primarily cement and builders mix, there being none on the island. The Defendant saw the Plaintiff from time to time enquiring when he could get on with the job and was met with the answer, as the Plaintiff accepted, that nothing could be done as the materials were not available which is another indication that the Plaintiff was to obtain and pay for the materials. The truth of the matter is that over this period of inactivity the Plaintiff obtained quotes from other builders, and an Architect, Mr Mills, in the end decided that he would finish the job himself with the help of friends. It was not until sometime in August that he told the Defendant that his services were no longer required. He made no demand then for a return of part of the $3,000 paid in advance but in these proceedings he seeks to recover $2,190 of the deposit on the basis that the work done by the Defendant and his three men was worth $810.00. That figure is based on Mr Mill's assessment of the value of the whole job including labour and materials and it is apparent that the Plaintiff's advisers have misinterpreted the Mills' figures. Mr Mill's assessment of the Defendant's labour content is more to the order of $520 for the $810 includes the labour involved in concreting which the Defendant did not do. My view is that the Defendant's quote was well out of line but that is the quote the plaintiff accepted. Mr Sceats relied on this passage from Cheshire and Fifoot, Law of Contract 4^th Ed. at page 497 as a complete bar to the Plaintiff's claim:-

"Is property transferred by guilty party recoverable?

Since the discharge of a contract as no retrospective effect, it follows in principle that the party in default cannot recover property which, in fulfillment of his contractual obligations, he may have transferred to the innocent party prior to the discharge."

In Stockloser v Johnson (1954) 1 All ER 630 Denning LJ dealt with the matter in this way:-

"But when there is a forfeiture clause or the money is expressly paid as a deposit (which is equivalent to a forfeiture clause), then the buyer who is in default cannot recover the money at law at all."

He then went on to consider a defaulters remedy in equity expressing the view that relief may be permitted where the sum forfeited is out of all proportion to any damage suffered, and where the circumstances would make it unconscionable for the full sum to be retained.

I am satisfied that the plaintiff is entitled to equitable relief in this case for the sum of $3,000 is grossly disproportionate to the damage suffered by the Defendant and the value of the actual work performed. On the Defendant's own evidence he and his three men each worked for 60 hours and his charge out rates for his men are $4, $5 and $6 and for himself $15. On that basis the actual labour cost was $1,800. He was put to some inconvenience by the Plaintiff's lack of frankness concerning the future of the job and is entitled to something on that account.

There will be judgment for the Plaintiff for $1,000 with costs, disbursements and witnesses expenses as fixed by the Registrar.

ROPER J

26 February 1986