Harris v Gerald

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: Gordon, J.A.
• Judgment Date: 01 November 2004
• Neutral Citation: MS 2004 CA 4
• Docket Number: Civil Appeal No. 3 of 2003
• Date: 01 November 2004

Harris

and

Gerald

Alleyne, J.A.; Gordon, J.A.; d'Auvergne, J.A. (Ag.)

Civil Appeal No. 3 of 2003

Court of Appeal

Contract - Oral agreement for construction of house — Abandonment of project by appellant who was the contractor — Damages for misappropriation of materials by appellant — General damages including cost of mitigating loss awarded to respondent by High Court upheld.

Appearances:

Mr. Jean Kelsick for the appellant

Mr. Hogarth Sergeant for the respondent

Gordon, J.A.

1 In December 1999 or January 2000 (nothing turns on the date) the Respondent entered into an oral agreement for the construction of a house for the Respondent by the Appellant. The Respondent had lost her house as a result of the activities of the Montserrat volcano and was being assisted in the financing of the house by a grant of some $47,390.00 by the Montserrat Government's Material Assistance Scheme. The Respondent had caused plans of a two bed—roomed bungalow to be drawn by one Mr. Shiels in accordance with instructions she had given to him. The Respondent informed the Appellant that in addition to the $47,390.00 worth of material available to her she had some $41,000.00 in cash for the labour. The learned trial Judge found that it was probable that the Appellant did tell the Respondent that the sum of $82,000.00 would almost finish the house.

2 The Appellant commenced construction in early January 2000. The evidence of the Respondent is that she took ill in late December 1999 and did not see the works being carried out by the Appellant until the foundations had been dug and had been ‘paved’ and steel had been erected thereon. Further, the Respondent alleged that the building was sited in a substantially different position from that shown on the plan. It is common ground that what the Appellant commenced building was a far departure from what was drawn on the plans.

3 The Respondent complained to the Appellant and, sometime towards the end of February 2000, ceased to pay the Appellant. The Appellant abandoned the works. The Respondent brought an action against the Appellant in which she claimed general damages for breach of contract and special damages in the sum of $4,826.31 being the cost of materials had and received by the Appellant for the construction of the house and $3,840.00 for rental she was forced to pay due to the unavailability of the house for her occupation. The Defence was both a general denial save that a labour only contract to build a house was admitted and a plea of variation of contract. The Defence further alleged that construction was stopped because the Respondent refused to pay the Appellant at the end of February for work done. The Appellant further counter-claimed for the sum of $3,900.00 which he alleged was owed by the Respondent under the contract and for general damages for breach of contract by virtue of the Respondent failing to pay him. The Respondent's defence to the Counterclaim was a denial that she owed $3,900.00 or any other sum.

4 At the trial of the action the learned trial Judge identified seven issues for determination. I quote from the judgment at paragraph 7:

“The Court must determine the following issues arising from the pleadings, the evidence and the submissions of Counsel for both parties:-

• A. Whether or not Mr. Harris' [the Appellant] departure from the plan was commissioned by Ms Gerald [the Respondent]

• B. If not, then can Mr. Harris rely on the defence of acquiescence?

• C. Did Mr. Harris discharge his obligations under the agreement?

• D. Does Ms Gerald owe Mr. Harris any money for work done?

• E. Did Mr. Harris misappropriate building materials?

• F. If Mr. Harris breached the agreement, then has Ms Gerald mitigated her loss

• G. What remedies are applicable for any breach found?”

5 The learned trial Judge found as a fact that the Respondent “did not commission a departure from the plan”. The learned trial Judge found that the Respondent had proved breach of contract and loss, and so awarded damages as follows: special damages of $4,826.311 for misappropriation of material and $3,840.00 for rent paid by the Respondent up to January 2001, and for general damages, including the cost of mitigating her loss, the sum of $32,078.96.

6 The Appellant has appealed against this decision and argued three grounds of appeal before us which he distilled from the 18 grounds of appeal set forth in his Notice of Appeal. The grounds argued were firstly, that the learned trial Judge was wrong in law when she rejected the defence of acquiescence; secondly, that the learned trial Judge used the wrong test in determining whether the Respondent had acted reasonably in mitigating (or not mitigating) her loss; and, thirdly, that the learned trial Judge used the wrong measure of damages.

Estoppel by Acquiesence

7 Learned Counsel for the Appellant argued that although this case had been filed under the regime of the old Rules of the Supreme Court (hereafter RSC), it was caught by the “Transitional Provisions” at Part 73 of the Civil Procedure Rules 2000 (hereafter CPR) and that as such the strict rules regarding pleading contained in RSC had been relaxed in the context of the “Overriding Objective”. By this argument Counsel raises the comparison between the rules of pleading under RSC and under CPR.

8 Order 18 rule 8 of RSC reads as follows:

“8 (1) A party must in any pleading subsequent to a statement of claim plead specifically any matter, for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality –

• (a) which he alleges makes any claim or defence of...