Knox v Nadan [2005] FJHC 118; HBC0025j.2002b (24 May 2005)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. 25 OF 2002

Between:

JOHN KNOX
Plaintiff

and

HARI NADAN
Defendant

Mr. V.P. Ram with Mr. A. Ram for Plaintiff
Mr. A. Sen for Defendant

JUDGMENT

The plaintiff claims against the defendant the sum of $21,000.00 pursuant to a contract dated 5 November 2001 entered into between the parties when the defendant agreed and undertook to erect a dwelling-house (hereinafter referred to as the “building”) for the plaintiff as per plans and specification at an agreed cost of $22,500.00.

Plaintiff’s evidence

Evidence was given by the plaintiff who testified that the defendant undertook to complete the building by 1 February 2002.

The plaintiff’s evidence is that the defendant was paid by him the following sums of money: $15,000.00 (31.10.2000), $4,000.00 (5.11.01) and $2,000.00 (24.11.01) - totalling $21,000.00 towards the construction of the building.

In the construction the defendant used defective materials; there was bad workmanship and non-compliance with the Plans and Specification.

The building remained incomplete and work had stopped and ‘abandoned’. It was in an ‘unfinished’ and ‘deplorable state’. The plaintiff says that he cannot occupy the building and says that it ‘requires demolishing and re-construction’.

He says, inter alia, that it was specifically agreed between them that “failure to complete the contract will constitute grounds for refund” (as stated in writing in the agreement).

The plaintiff demanded refund of the said sum of $21,000.00 but the defendant has failed to pay the same. Hence the present claim in the said sum.

The plaintiff further stated that because of the poor state of the building he obtained a ‘Report on Status of Building’ from Tomasi Kevu, a carpenter of Taveuni.

When the plaintiff contacted the defendant at Catholic Mission he said that he cannot do any more job and asked for more money. He could not get the defendant to complete the job so he obtained the services of said Kevu to finish the job and compile a Report.

To complete the job he said that he spent a lot of money and he specified the amount.

In cross-examination he said, inter alia, that he expected the defendant to read the Plan; he agreed that nowhere in the agreement is stated as to the quality of timber to be used or about workmanship but just expected it to be done.

The defendant left behind material valued at $1238.50.

Evidence of plaintiff’s witness

On behalf of the plaintiff his witness the said Tomasi Kevu testified that at the request of the plaintiff he worked on the building and made a Report on its condition.

At the plaintiff’s request he drew Plans and after getting it signed he lodged it with the Taveuni Rural Local Authority. He completed the buiilding and was paid.

Defendant’s evidence

The defendant testified that he constructed the building according to Plan. The contract price was $22,500.00 as agreed. He said that he bought building material totalling $14,000.00 and he paid $7,000.00 for labour. The defendant said that the plaintiff did not tell him what type of timber to use in the house; he said there is nothing wrong with the flooring.

While he was still constructing the building the Health Inspector told him to stop work as there was no Plan. He denied that he was to get approval from the Local Authority and he is only educated up to class 4.

The defendant said that when the plaintiff came back from overseas he told him to complete the building although he did not have the consent to build. He said that he left some material behind which was sufficient to complete the building.

The defendant said that he went to Labasa and bought material for about $9,000 to $10,000 and some in Taveuni for about $3,000 totalling about $14,000.00.

He said that he commenced construction in November and continued for three months.

The defendant said that he understood the Plan and what he could not understand the Plaintiff explained to him. He said that he used ‘all good material’ although he was not told what material to use. There was nothing wrong with the flooring; he used treated timber.

The defendant admitted that he ‘did not fully complete the works’ as he was stopped by the Health Inspector as there was no Plan. It was not his job to get approvals or consents.

When the plaintiff returned he wanted the defendant to complete the building but he could not as there was no consent.

The said Kevu waited for the defendant but his employment had to be terminated because he ‘took some building material’.

In cross-examination the defendant agreed that he should not have used ‘cracked’ timber. He agreed that some work was left like ‘weatherboard’ on walls; approval for work should have been obtained from the Local Authority.

In February-March 2002 he was told to stop work by the Authority and after that he did not go there. Then the plaintiff came to him and wanted him to come back to which he agreed but told him that he needed more money.

Consideration of the issues

On the evidence which has been fully stated hereabove by me, the determination of the issues depends upon my findings of fact. Certain documents and photographs tendered to Court as exhibits at the hearing have also been relied upon.

I find as fact as hereafter appearing.

The plaintiff who is a land surveyor lives half the time in Taveuni and half in California. He found the defendant a carpenter to construct the building (dwelling) for him. The plaintiff drew the contract and the Plans himself. He said that the only change he made to the Plan was to change the roof from ‘lean to’ to ‘gavel roof’. The contract price was $22,500 for the purchase of material $18,000 and $4500 for labour. The sum of $21,000 had already been paid by 24 November 2001.

The plaintiff testified, and there is no dispute, that the agreement was made on 5 November 2001. After paying $21,000.00 to the defendant he left Taveuni for overseas. On his return on 28 January 2002 he went to the site of work and was annoyed when he saw the building partially constructed with poor workmanship using shoddy material and rotten timber. There were no doors and windows and no guttering and the bathroom was like a ‘pit’. He said that he could not live in that partly constructed building.

A Report on the status of the building was tendered to Court and this shows many defects in the construction.

No approval was obtained from the Taveuni Local Authority to construct the building. Although the plaintiff says that it was for the defendant to obtain the necessary approval but I doubt if it should have been his responsibility. The agreement is silent on this.

The plaintiff said that he had to spend a lot of money to have the building completed although this is not in the pleadings.

In cross-examination he said that he did not know the procedure that the building Plan goes to Town and Country Planning and that he did not go to the Taveuni Local Authority to get approval to build the house but he caused the building to be completed after obtaining consent from the Local Authority. He told the Court that the total value of the material left behind would be valued at $1238.50.

Findings on the issues

I find that the defendant did not complete the building in accordance with the agreement and that was so as at 1 February 2002 as is quite evident from the said Report on the status of the building obtained by the plaintiff. There are no windows and doors (vide photographs). Other things were still not done as stated by the plaintiff.

Additional work was agreed to be done but it was not fully done although the Plan was altered to the extent that ‘lean to’ roof was to be changed to ‘gavel roof’ as shown in one of the photographs tendered to Court. I have no doubt whatsoever that in the construction of the building there was poor workmanship. The defendant used defective material and this is borne out from the photographs; there are a lot of ‘knots’ (photos 16 & 18:53) in the timber used. In carrying out the work the defendant did not comply with plans and specification.

The defendant did abandon the work.

I do not find that the work already done required full demolition and reconstruction. No doubt some of the ‘knotted’ timber used would have had to be replaced together with some of the inferior quality timber and ‘posts’ used in the construction.

As far as the claim for refund of money paid by the plaintiff to the defendant is concerned the agreement states that ‘failure to complete this contract will constitute grounds for refund’. This does not mean that the whole of the sum already paid is to be refunded.

In view of my findings on the workmanship and the defective material used, the plaintiff would be entitled to some refund which I will endeavour to assess on the evidence and the facts and circumstances of this case.

The amount which the plaintiff is entitled to be paid/refunded by the defendant has been calculated along the following lines:

I assess as follows: $

(A) Agreement

The contract price for labour 4500.00

Agreed price for material 18000.00

Total 22500.00

Less paid by plaintiff 21000.00

Balance payable to defendant 1500.00

(B) WORK DONE

$

In my estimation two thirds of the work

was completed (2/3 of contract price of

($18,000) 12000.00

Add labour (2/3 of $4500 agreed

Labour) 3000.00

15000.00

Less for bad workmanship and

replacement with good timber 2000.00

13000.00

Add building material -

material left on site (agreed) 1238.50

14238.50

Paid to defendant in advance

for material and labour 21000.00

21000.00

Less 14238.50 14238,50

Amount to be refunded

to plaintiff 6761.50

There will therefore be judgment for the plaintiff against the defendant in the sum of $6761.50 with costs in the sum of $500.00.

D. Pathik
Judge

At Labasa
24 May 2005