JUDGMENT
1 Master: The plaintiff is a builder. The first three defendants may be conveniently described as the owners. A building contract came into being in 1999. It concerned the building of 13 townhouses. Only 12 of them were built.
2 The parties fell into dispute. The contract was terminated on 19 January 2001. When the parties came before the Consumer Trader & Tenancy Tribunal (the Tribunal) it had before it an application and what has been described as a cross-application.
3 For present purposes, the court is concerned with the reasons for decision dated 1 September 2003. The defendants were successful in recovering a monetary relief against the plaintiff. They were awarded a sum of $127,250.35 in respect of liquidated damages/delay costs. They were awarded damages for defective work in the sum of $77,704.35. They were awarded costs of completion of the works in the sum of $116,485.00.
4 In 2003, the plaintiff filed a summons in this court. What is now relied on is a further amended summons filed on 23 December 2003. The summons brings a challenge to the decision of the Tribunal. It contains numerous grounds of appeal.
5 In that challenge, the plaintiff initially relied on both ss65 and 67 of the Consumer Trader & Tenancy Tribunal Act 2001 (the Act).
6 The summons was heard on 29 November 2004. By that time, there had been a considerable narrowing of the grounds of appeal and the challenge had been restricted to that provided by s67. Section 67 provides an appeal where the Tribunal decides a question with respect to a matter of law.
7 The plaintiff bears the onus of satisfying the court that there has been error by the Tribunal in deciding such a question and that the error justifies the disturbing of the decision.
8 The precise ambit of such an appeal may be debatable. It is not a matter that can be said to have been fully settled. There are conflicting decision. On view, sees the ambit restricted to what has been described as pure law. However, it seems that it provides an appeal that is narrower in ambit than that which is available where an appeal may be brought by reason of error in point of law. The section will only operate where there has been a decision on a question and the question is one with respect to a matter of law. In my view, none of the grounds of appeal argued by the plaintiff fall within the ambit of this provision.
9 What was argued on behalf of the plaintiff at the hearing of the appeal is that which is set forth in the plaintiff's outline of argument. Broadly speaking, there is challenge to the allowing of each of the three sums earlier mentioned.
10 I first turn to the sum of $127,250.35. The awarding of the sum was challenged on three grounds. Firstly, it is said that no damages for delay should have been awarded because of clause 10.10 of the contract. Secondly, it is said that the Tribunal failed to take into account delays caused by the defendants. Thirdly, it is said that the Tribunal failed to take into account delay costs which had already been paid by the plaintiff.
11 The initial problem confronting the plaintiff in relation to certain of these matters, as well as other grounds, is that they were not raised before the Tribunal. If they had been so raised, the defendants may have conducted their case differently. In these circumstances, I do not consider that the plaintiff should now be allowed to agitate the matters in this court.
12 This is not the only problem confronting the plaintiff. There are other reasons why the matters cannot succeed.
13 The relevant provisions of clause 10.10 are as follows:-
10.10.1 The Architect may give notice in writing to the Builder and the Proprietor … that in the Architects opinion the Works ought reasonably to have been brought to Practical Completion on some earlier date stated in that notice …
10.10.2 If such notice is given the Builder shall pay or allow to the Proprietor a sum calculated and certified by the Architect at the rate stated … as Liquidated and Ascertained Damages for the period stated in the notice.
The proprietor shall have no right to damages for delay apart from that expressed in this clause.
14 The Tribunal dealt with the matter as follows:-
There is no evidence that any such notice was given, but this point has not been taken by either side in this dispute …
15 Whilst clause 10.10 may have been mentioned once at an early stage in the proceedings, it was not identified in the documentation relied on by the plaintiff in the Tribunal. It was not the subject of submissions and was presented as a defence to the monetary claim advanced by the defendants.
16 Leaving all other considerations aside, the appeal on this ground must fail because it does not fall within the ambit of s67. Save for what was done concerning the giving of notice, the Tribunal did not decide any question in relation to clause 10.10. It merely observed that "this point has not been taken by either side". At best, this observation can only throw up a decision with respect to a question of fact.
17 The question of whether or not a decision concerning the proper construction of clause 10.10 was not the subject of submissions does not need to be addressed in this case.
18 For completeness, I should mention another matter raised by the defendants. They say that if there had been a need to comply with this provision, such need was satisfied by a statement provided by the architect (Antony Brown). It is unnecessary to dwell on this matter. There was a finding of fact to the contrary and perhaps the court should not do so as there was some doubt as to whether or not the statement was before the Tribunal.
19 As to the matter of the delays caused by the defendants, this matter was briefly argued by the plaintiff. It throws up questions of fact only. It is lacking in support from the findings made by the Tribunal. All that was found by the Tribunal was "that some of the delay in completing the works was attributable to delay in decision making by the homeowner". It is dependant on the application of the concept of prevention. The authorities demonstrate that such concept has no application in the circumstances of the present case (it has no application where the contract contains extension of time provisions).
20 It was said that the Tribunal ignored a deduction in the sum of $72,879.00 (reference has been made to Progress Certificates 25 and 27) which had been allowed as a deduction for the money certified by the architect as having been payable. This was another of the matters that had not been raised before the Tribunal.
21 It also throws up questions of fact only. It has its own factual problems (inter alia, the plaintiff has not demonstrated that the deducted sum correlated with what was allowed by the Tribunal for delay).
22 I now turn to the sum that was allowed for defective work. This has been referred to as the "no loss" ground of appeal. The first argument was founded on a contention that to maintain the claim, it was necessary for the defendants to be the owners of all of the units. At the relevant time, eight of the units had been sold. It is said that a proportion of the sum allowed concerned defects in the sold units.
23 I am not satisfied that the lack of ownership has the effect contended for by the plaintiff. There is authority which supports the view that a claim for damages for rectification can be maintained after the sale of the subject property.
24 In addition to the contention that there was no evidence of loss, the plaintiff complains that the Tribunal did not address the question of whether or not the defendants had in fact suffered loss. I am not satisfied that either is the case. In any event, I am not satisfied that these matters fall within the ambit of s67 (inter alia, a ground founded on an allegation of no evidence would not fall within the section).
25 The second argument was that the defendants have received $47,000.00 by way of deductions made from moneys certified by the architect as having been payable and that these moneys were not taken into account by the Tribunal. In effect, the plaintiff is seeking a set-off in the sum. In my view, the plaintiff has failed to demonstrate that what was deducted correlates with what was allowed in respect to defects. The contention raises matters of fact only and was not argued before the Tribunal.
26 Another problem confronting the plaintiff was the fact that at the time of the making of the contract, the plaintiff was not a licensed builder. Under s10 of the Home Building Act 1989 it is prevented from recovering damages or enforcing any other remedy in respect of breach of the contract. The defendants have adduced a number of arguments on this question. Whilst there is force in these arguments, it is unnecessary to proceed to a further consideration of them.
27 Lastly, I turn to the sum of $116,458.00. It is said that the Tribunal fell into error by not having proper regard to all of the evidence. In the alternative, it was said that there were deductions in the sum of $97,326.00 which were not taken into account.
28 On this matter, the Tribunal observed as follows:-
The evidence before the Tribunal from Mr Makin, quantity surveyor, was that his opinion of the outcome of a conclave was that the cost to complete was $116,458.00. Mr Makin was called by the homeowners, and his evidence on this point was not challenged or contradicted. In the builder's submissions the claim was made that the preferred figure was an unspecified amount to be found in a report in one of the volumes that had been provided to the Tribunal. That report, it is said, refers to some letters from expert O'Mara. The letters and the report do not appear to be in evidence. I accept the evidence of Mr Makin and I will make orders accordingly.
29 The first contention advanced by the plaintiff concerns matters of fact. Further, when regard is had to the evidence before the Tribunal, it seems to me that what is said by the plaintiff is misconceived.
30 Mr O'Mara gave oral evidence before the Tribunal. The Tribunal also had before it his report of 29 May 2001. It did not have a statement that he had made on 28 February 2002. It seems that a forensic decision was made not to tender the February 2002 document. What was said in his oral evidence and his report was of no materiality to the findings made on this matter. Any error in the expression of reasoning process is of no consequence.
31 The alternative contention also raises matters of fact only and was little argued. Like the first contention, it does not fall within the ambit of s67.
32 In my view, none of the grounds argued has been made out. Accordingly, the appeal fails.
33 The summons is dismissed. The plaintiff is to pay the costs of the summons. The exhibits may be returned.
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