Clem v Kinikele Construction & Maintenance [1996] PGDC 6; DC7 (9 August 1996)

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[1997] PNGDC 9 - BERNADETTE CLEM V KINIKELE CONSTRUCTION & MAINTENANCE & ANOTHER

CONTRACT - Agreement for installation of septic tank and water supply connection system - Whether defendant performed his part of the contract - Incomplete performance by defendant a fundamental breach - Engagement of another contractor a direct result of the breach - Defendant liable for additional costs for substitute engagement.

KUBAK M: The complainant claims from the defendants the sum of K1,850.00. This is the amount that she had to incur additionally, when she had to engage a third person to complete work on her house which she claims she had already paid the defendants to perform. Initially she had claimed from the defendants the sum of K4,600.00. During the hearing Counsel submitted that this amount had been revised and the amount now being claimed was K1,850.00.

The complainant’s claim is that she entered into a part verbal and part written agreement with the Second Defendant, as representative of the First Defendant, and entity registered under the Business Names Act, Ch.145. That the agreement was for, among other things, the construction and installation of a Septic Tank and Water Supply connection system to the main National Capital District Commission water supply. The agreement involved the defendants providing a quotation to the complainant for the total cost of the work required to be done by the defendants at the complainant’s house at Taora, Hanuabada Village in the National Capital District. The complainant for her part of course was required to provide the money for the contract work.

The case is straight forward and does not involve too many issues. In fact the only issue, in my view, which this Court has to decide is as to whether, the defendants completed the work they were contracted to do. If not how much of the work was completed and how much work was not completed of the defendants.

What is the evidence? On or about 16th August 1995, the Second Defendant, Mr Friend Raka, provided under the letterhead of the First Defendant the following quotations:

With reference to our inspection of your new house at above location, we are please to lodge our quotation as follows:

This quotation covers the costs of the materials, labour and the overheads and its the lowest for the best quality service.

We hope, above quote does meet your commitment for the completion of your septic and water installation and would appreciate your endorsement and approval to commence working.

The above quotation letter annexed to the complainants affidavit, led to the complainant obtaining a housing loan from the Papua New Guinea Banking Corporation for the sum of K4,600.00. The relevant Cheque for this amount was made out in the name of the defendant Company Kinikela Construction and Maintenance. A copy of the Cheque has been produced in evidence.

As I have stated, the issue is not so much as to whether payment was made but rather as to the work that was done.

The defendants in defence asserted that as far as they were able to assess it, eighty percent (80%) of the work paid for by the complainant had been carried out by them and that if anything, it would only be a mere 20% of the Contracted work that was yet to be completed. The defendants have not filed affidavits but simply made submissions.

In support of her claim, the complainant relied on her own affidavit as well as that of one Charlie Boge, both of which were respectively introduced through the deponents during testimony from the witness stand.

N2>“5. On 18th of October 1995, I wrote to the defendants demanding them to start construction of Septic Tank and Water Installation to my aforesaid property. Annexed hereto and marked ‘D’ is a copy of that letter of demand.

N2>6. On the 19th of March 1996, a second letter was written to the defendants asking them to repay the complainant’s K4,600.00 for services owing the complainant by the defendants. Annexed hereto and marked ‘E’ is a copy of that letter of demand.

N2>7. The defendants have to date failed to construct or install the said items to the property aforesaid.”

Further, in testimony the complainant says because the defendants had failed to complete the work that she had contracted them to perform she was forced to look elsewhere for assistance to complete the work.

Her witness, Charlie Boge, is the person she eventually engaged to complete the job.

N2>“3. I made an inspection of the site of constructions and found that the defendants had not complete their job.

c) installing of 100mm x 4m above ground pipe without connecting it to the Septic Tank;

d) laying of 15mm x 25m poly water pipe line but stopping 15 metres short from the main water line;

N2>5. On the 22nd of March 1996 I drew up a quotation of what was needed to complete the job. Annexed here and marked “A” is a copy of the quotation.

N2>6. On the 26th of March 1996, I started plumbing work on the complainant’s house. Firstly, I finished the work required on the materials that had been installed by the defendants, as follows:

a) connected the shower tray to the waste pipe and the “P” trap, then fixed shower rose;

N2>7. I then completed the rest of the work by installing the following materials:

d) removed the small brick septic tank and replaced it with a bigger fibro glass septic tank;

N2>8. The construction and installation job I did to the complainants house was completed within six (6) weeks of the complainants request for me to start on the job.”

Both Ms Clem and Mr Boge were formally taken through affidavits on part from the witness stand.

Both witnesses were also subjected to cross-examination in respect of their affidavits and respective testimonies.

In my view the testimonies and affidavits of Mr Boge and Ms Clem withstood any attempt to destroy same by Mr Friend Raka on behalf of the defendants.

At the close of the complainant’s case the defendants indicated that they would not be calling any witnesses but would simply be making submissions. Hence having made and indicated this election, the Court proceeded with the case and entertained submissions from Mr Vere for the complainant and the Second Defendant Mr Friend Raka representing the defendants.

In submission, Mr Vere urged the Court to find that the defendants had actually done less than the 80% work that they claimed to have completed under the contracted arrangement that the parties entered into for the work on the complainant’s house. Mr Vere submitted that the additional costs incurred by the complainant in getting the work completed by a third party, Mr Charlie Boge, was the direct result of the defendant’s very neglect in carrying out through to completion the work they were contracted to do.

The defendants in reply argued that they had done 80% of the work they contracted to do. That Mr Boge’s amount of work was equal to what Mr Boge did. In other words, they argued that they had already done what was Mr Boge quoted and worked on. That in the circumstances, they submitted, they were not liable for the amount claimed against them.

As I have stated the defendants did not call any evidence and simply relied on the evidence from the complainants witnesses and the defendant’s cross-examination thereof in addition of course to their submissions.

Having considered the evidence in its totality in support of the claim, I feel that I can be satisfied on the Civil Balance of Proof, the Balance of Probabilities, that the complainant has made out her case against the defendants.

I find that, there being no dispute, there was at all material times a valid contract between the parties to these proceedings, part verbal and part written (quotation), for work to be alone on the complainant’s house.

I find the simple terms of the contract to be that the complainant was to pay the total quoted and agreed sum of K4,600.00 as consideration for work done and that the defendants were to do the contracted work.

I also find that the sum of K4,600.00 was paid but that the work was not completed. I am not satisfied that the defendants had any justification for not completing the work they were contracted to do. That having received payment the defendants’ failure to complete the work even after request from the complainant amounted to a fundamental breach of the contract. In the normal course such a breach would be remedied by damages and or specific performance.

In the present case, after having failed to comply with the complainant’s request to resume and complete the work, the complainant was left with very little choice except to engage a third party at additional costs to complete the work. So there is no need now for a specific performance remedy order.

The complainant had to expend an additional sum of K1,850 being for the labour costs of the Plumber engaged to complete the contract work. I am of the view that such additional expense was the direct result of the defendant’s breach of a valid agreement to perform such work. It was money that, in my view, she would not have had to expend so unnecessarily had the defendants not prematurely terminated the work they were contracted to perform.

In conclusion, I find on the balance of probabilities that the defendants are liable to the complainant in the sum of K1,850.00. They are ordered to pay forthwith the sum of K1,850.00 together with 8% interest plus costs of these proceedings to the complainant Bernadette Clem.

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Papua New Guinea District Court

Clem v Kinikele Construction & Maintenance [1996] PGDC 6; DC7 (9 August 1996)

Unreported District Court Decisions