Lisa Andrew Claimant v Matthew Nelson Defendant [ECSC]
| Jurisdiction | St Lucia |
| Judge | Wilkinson J |
| Judgment Date | 02 May 2013 |
| Judgment citation (vLex) | [2013] ECSC J0502-5 |
| Court | High Court (Saint Lucia) |
| Docket Number | SLUHCV2009/0814 |
| Date | 02 May 2013 |
IN THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
SLUHCV2009/0814
Wilkinson J.: Ms. Andrew filed her claim form and statement of claim on September 25th 2009. Therein she alleged breach of a building contract to build a two (2) storey three (3) bedroom greenheart wooden house for the sum of $158,000.00 and entered into in or about May 2007, with Mr. Nelson, a building contractor. Mr. Nelson has admitted to the contract as described but alleges that the contract was amended and that by that amendment Ms. Andrew committed to provide materials over and above his list of materials which formed the basis of the original contract. She having failed to provide the additional materials he was unable able to complete construction of her house. He filed a counterclaim alleging that he lent Ms. Andrew $1,000.00 and that he paid $1,900.00 on her behalf for clearing of the building site; she has failed to repay him both sums. The relief sought by Ms. Andrew was:
Wilkinson J-
i.$73,600.00 the cost of completion and remedying the defects to date.
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ii.$2,150.00 the cost of valuations (this sum was amended to $4,500.00 in her witness statement).
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iii. a refund of rent paid to date being the sum of $12,350.00 and continuing at the monthly rate of $650.00.
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iv. general damages.
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v. the costs hereof.
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vi. further or other relief as to this Court seems fit.
The relief sought by Mr. Nelson in his counterclaim was:
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i. damages
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ii. interest thereon.
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1 Whether there was a breach of the building contract by either or both Parties.
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2 Whether Ms. Andrew owes Mr. Nelson the sums of $1,000.00 for a loan and $1,900.00 being money expended to clear the building site.
Ms. Andrew an employee of Cable & Wireless St. Lucia Limited at the material time said that she had no building experience whatsoever and wholly depended on the expertise of Mr. Nelson. Mr. Nelson described himself as a building contractor with approximately twenty (20) years experience.
At February 2002, Ms. Andrew decided to build a three (3) bedroom house and in pursuance of this she had house plans drawn at that time by a coworker. Her plans did not come to fruition. At 2005, she visited Tortola in the British Virgin Islands and there on seeing acertain house which she loved, she decided to change her house plans somewhat.
At 2007, once more she decided to build her house but needed financial assistance to do so and after inquiring about interest rates at the various commercial banks she found that RBTT Bank Caribbean Limited, though not her banker, offered her the best rate. She approached that Bank for financing, met and spoke with aloan officer, Mr. John Hercules in this connection. During the course of discussions, Mr. Hercules recommended Mr. Nelson as building contractor. Ms. Andrew relying on that information approached Mr. Nelson about building her house.
Ms. Andrew and Mr. Nelson met and discussed her proposed three (3) bedroom house with reference to her plans. According to Ms. Andrew, she required the plans to be revised to the extent that the three (3) bedroom house was to be made smaller on the first floor by removal of the master bedroom and bathroom and they being elevated and relocated above the first floor for a two (2)-storey house — loft style. Mr. Nelson under cross-examination agreed that the original house plans were for a three (3) bedroom house and that elevation of the master bedroom and bathroom would make the building a two (2) storey building.
Mr. Nelson prepared an estimate on a letterhead bearing the name "Total Furnishing, and Construction". The estimate broke down the construction into sub-headings; materials and labour costs were set out under these subheadings. The sub-headings and costs were (a) "Foundation costs up to beams" — materials cost $13. 082.00, labour cost - $14.120.00,(b) "Greenheart material list" for a house measuring 43 feet by 33 feet 7 inches $31,689.00,l abour - $36,644.00,(c) "Other materials list for house interior use only" (set out were various materials of plywood and other wood, galvanise sheets) - $20,890.00,windows - $4,365.00,doors - $3,520.00,electrical $8,000.00, and plumbing - $7,600.00 and (d) "Enclosing finishings" (septic tank, soak away, materials) and labour - $3,090.00,cupboards - $8,000.00 and painting - $7,000.00.The total estimated cost for building the house measuring 43 feet by 33 feet 7 inches was $158,000.00. Mr. Nelson in his witness statement said that it would take six (6) months to build the house.
Ms. Andrew's says that the sum of $158,000.00 for materials and labour was the only money stated as required to complete her house and denies that there was any further oral agreement that she would provide any materials over and above Mr. Nelson's list.
By letter dated July 6th 2007, the RBTI Bank Caribbean Limited informed Ms. Ms. Andrew that the Bank was prepared to grant her a loan of $234,000.00 for the purposes of debt consolidation, home construction, part purchase of vehicle and legal fees. The letter at the item "drawdown" said that the loan would be issued in installments per the builder's estimate for each drawdown and provided that the previous disbursements had been properly expended on the project in accordance with the terms and conditions of the approval. Ms. Andrew signed the letter accepting the Bank's terms.
To assure herself of with whom she was contracting, Ms. Andrew sought to view a house constructed by Mr. Nelson and he took her to see a greenheart wooden house that he had constructed. There is dispute between Ms. Andrew and Mr. Nelson as to whether this viewing was before Mr. Nelson started building Ms. Andrew's house or during the course of him building her house.
According to Mr. Nelson, at June 19th 2007, (this being prior to bank financing being received), Ms. Andrew paid $10,000.00 into his bank account. All subsequent payments from the bank loan were made in the same manner to Mr. Nelson.
Ms. Andrew visited the building site from time to time and according to her, she had some concerns about the building. In her inexperienced and layman's view the building was disorganized. She expressed her views to Mr. Nelson, he assured her that it would all come together after he had completed what needed to be done. Mr. Nelson admitted under cross-examination that while he was engaged with building Ms. Andrew's house he was also engaged in building other houses.
Ms. Andrew received the gifts of adoor and toilet bowl fixture, she delivered them to Mr. Nelson for use in her house.
Between July 2007, and the end of October 2007, Ms. Andrew said that on trust she paid Mr. Nelson the sum of $154,000.00.At the end of October 2007, the house was incomplete. All building ceased and at November 2007, Mr. Nelson delivered the key for the house to Ms. Andrew. There is dispute as to whether the key was voluntarily returned by Mr. Nelson or demanded by Ms. Andrew.
According to Ms. Andrew, Mr. Nelson told her at October 2007, that there was no money left to complete the house and asked her to "bear patience" withhim. He told her that several persons owed him money and that as soon as he got paid he would complete her house.
There followed several telephone calls over several months between Ms. Andrew and Mr. Nelson and at some paint he stopped answering his telephone when she called. Ms. Andrew's mother and brother became involved in the dispute on her behalf. Mr. Nelson said that he stopped answering Ms. Andrew's telephone calls because of threats made to him by Ms. Andrew and her mother. Ms. Andrew located another telephone number which she thought could lead to contact with Mr. Nelson, it was his mother's. She spoke with his mother.
Being very frustrated Ms. Andrew retained the services of an attorney-at-law to write to Mr. Nelson. At May 7th 2010, some 21/2 years after Mr. Nelson ceased building Ms. Andrew's house, and the suit filed, Mr. Nelson's attorneyat-law wrote via email to Ms. Andrew's attorney-at-law apparently attaching a list of materials needed to complete the house (list not disclosed to court), and stating that Mr. Nelson would cover all labour cost or in the alternative Mr. Nelson would complete the house for a payment of $15,000.00,which was to be paid in full before commencement of any work. There was a promise to complete the house within one (1) month.
Ms. Andrew up to the date of trial continues to pay mortgage for a house that she cannot live in as there is no useful plumbing, electricity, toilet and bathroom facilities and she continues to pay rent at the rate of $650.00 per month for aresidence to live in. Mr. Nelson's actions she said have caused her to suffer mentally, emotionally, financially and physically.
Mr. Nelson says that he was only paid $141,314.00 on his estimate of $158,000.00. He added that his estimate of $158,000.00 did not include the changes which Ms. Andrew sought to her original plans and which changes he set out in plans drawn by him. Ms. Andrew he said, had agreed to provide him with additional materials to facilitate building the changes that she was seeking to her original plans. It was also agreed that Ms. Andrew would be responsible for clearing the building site.
Ms. Andrew having failed to clear the building site Mr. Nelson said she agreed that if he cleared it, she would repay him the money spent to do so. He had it cleared on her behalf and claimed $1,900.00 from her, she refused pay him this money.
Mr. Nelson said that during the course of construction while he was going around purchasing materials for building the house, he discovered that BRAWO was selling manufactured board, a substitute he could use instead of drywall at a huge discount. This he...
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