Atwal v Rochester
| Jurisdiction | England & Wales |
| Judge | Her Honour Judge Kirkham |
| Judgment Date | 09 July 2010 |
| Neutral Citation | [2010] EWHC 2338 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 09 July 2010 |
[2010] EWHC 2338 (TCC)
IN THE HIGH COURT OF JUSTICE
TECHNOLOGY AND CONSTRUCTION DIVISION
BIRMINGHAM DISTRICT REGISTRY
Priory Courts
33 Bull Street
Birmingham
B4 6DS
Her Honour Judge Kirkham
Sitting as a Judge of the High Court
Counsel for the Claimants: MR CONRAD RUMNEY
Counsel for the Defendant: MRS FRANCES PIGGOTT
This is a county court case. However, as it raises a point which appears not to have been considered before, I ordered that the case be transferred to the High Court for the sole purpose of giving judgment, the case remaining a county court case for all other purposes. Immediately after judgement was given the case was transferred back to the county court.
In July 2006 the claimants, Mr and Mrs Atwal, contracted with Mr Rochester, the defendant. Mr Rochester agreed to undertake extensive building work to White Lodge, Mr and Mrs Atwal's house in Wombourne. Work began in August 2006.
Mr Rochester had intended this to be his last job before his retirement. However, on 5 th April 2007 Mr Rochester suffered a heart attack and was taken to hospital. He subsequently underwent surgery in October 2007 for a heart bypass. He was advised not to return to work. Mr Rochester did not return to work at Mr and Mrs Atwal's house. He did not arrange for anyone else to do so. So the work came to an end in April 2007. At that stage the work was incomplete.
Mr and Mrs Atwal's case is that Mr Rochester was in repudiatory breach of contract. Mr Rochester's case is that the contract was discharged by frustration. Mr and Mrs Atwal claim damages by reason of the alleged repudiatory breach and Mr Rochester claims payment of a just sum pursuant to section 1(3) of the Law Reform (Frustrated Contracts) Act of 1943.
Background
Mr Rochester had been known to Mr and Mrs Atwal and their relatives for some time before the contract with which we are concerned. In his witness statement Mr Atwal sets out between paragraphs 2 and 7 inclusive the detail of that previous relationship. Briefly, Mr and Mrs Atwal first engaged Mr Rochester at their previous family home in about 1997. That was for the supply and fitting of a garden gate, a small task, but it was the beginning of a relationship which developed. Mr Atwal says that Mr Rochester came across as very pleasant, polite and friendly, someone you could grow to trust. Mr Rochester then undertook some kitchen tiling work for Mr Atwal's mother. He then undertook a major job for Mr Atwal's brother, Mr Avtar Atwal, who lived in Penn. That was construction of a single storey extension to Mr Avtar Atwal's house in Penn, which included a garage and a large rear living room. Mr Atwal was content to have been told in the year 2000, when he was considering the purchase of a property in Tettenhall, that Mr Rochester had undertaken the work which had been carried out to that property.
In 2000 Mr and Mrs Atwal considered purchasing a bungalow in Lower Penn. They intended to convert it to a dormer bungalow. Mr Rochester, at their request, looked at the property and discussed with them the likely cost of conversion. However, Mr and Mrs Atwal did not proceed with that purchase. Then, in 2001, they purchased their current property, White Lodge, the property with which we are concerned in these proceedings. They engaged Mr Rochester in 2002 to build a brick chimney in the hallway of that property.
Work at White Lodge
Mr and Mrs Atwal decided to extend White Lodge. They asked two contractors to quote for this. Dino's Building quoted a price of £186,590 and Walters Professional Services quoted the sum of £145,138. Mr and Mrs Atwal then approached Mr Rochester, who inspected the property and quoted a sum of £74,550. they decided to proceed with Mr Rochester.
The contemporaneous written record of the contract between the parties is very sparse. Mr Rochester provided a one-sheet document which summarised the work very briefly: work to building A: lounge and gym for the sum of £25,000; work to building B: kitchen and bedroom for £27,000, a canopy for £2,500, double garage for £10,800, retiling the old roof for £4,500 and work to outer walls for £4,750. (It is common ground between the parties that the proposed gym was omitted at an early stage.)
Mr Atwal wrote to Mr Rochester by letter dated 7 th July 2006. He began by saying:
"I know this sounds very formal, but given the size of the extension and the amount of money we are spending it is only right that I document some of the detail that was discussed and agreed on Thursday, 22 nd June, and list some further points for clarification."
He went on to suggest payment by stages and set out a proposal for that. He then listed items of work discussed at their meeting, that is work to bedrooms and kitchen, laundry, lounge, canopy and porch, garage, windows, external wall and other exterior work. He said:
"I asked whether a discount would be given for cash payment. You declined to offer this but agreed that some minor additional work would be undertaken while on site if the money due to you was paid in cash. Some of the items discussed are included in the above list."
He set out a start date of Monday, 14 th August, and estimated completion end of November, that is, a period of three and a half months.
Mr Rochester substantially agreed Mr Atwal's letter, save that they agreed a different schedule of payments, including an up front payment of £20,000 and some changes to work to the electrics, gas supply in the garage and removal of trees.
Mr Rochester began work on 14 th August 2006. He worked with Kevin. I am told that Kevin worked on the foundations and undertook bricklaying and roofing. Mr Rochester also worked with Terry and Darren, who were both described as labourers.
During the course of the work Mr Rochester suggested to Mr and Mrs Atwal that they consider converting the loft space into a living area. Mr and Mrs Atwal did indeed consider this and decided to go ahead. Mr Rochester quoted a price of £15,000. His case is that that was the cost of a shell only. Mr and Mrs Atwal's case is that the sum of £15,000 was to include a complete fit out internally to include first and second fix electrics, plumbing and plastering.
I accept Mr Rochester's evidence that Mr and Mrs Atwal told him initially that they would wait two to three years before completing the loft conversion as it was a cost which would fall outside their budget. However, Mrs Atwal became pregnant and they decided to make the loft space habitable. Mr and Mrs Atwal took some time to decide on the internal layout of the loft space.
I prefer Mr Rochester's evidence about the scope of the work to be undertaken by him to the loft within the sum of £15,000. It seems to me unlikely that the parties could have agreed a price of only £15,000 for a full fit out given the extent of the work that would be needed, or indeed that they could have agreed a price for a full fit out at a time when Mr and Mrs Atwal were not intending to use the space for a couple of years until their budget would allow for it and when the layout had not yet been identified.
The overall contract sum, therefore, including the loft shell, was £89,550. It is common ground that when Mr Rochester ceased work in April 2007 he had completed work which fell within the agreed scope of work to the value of £53,450. Mr Rochester says that he had, by that date, also undertaken extra work to a total value of £36,000. That is disputed.
Mr and Mrs Atwal say that by 5 th April 2007, when Mr Rochester became ill, they had paid him £71,850 in cash. Mr Rochester says that the figure is £72,000. The difference is small. On balance I consider that Mr and Mrs Atwal's figure is correct, that is, a sum of £71,850.
In May 2007 Mr and Mrs Atwal engaged Mr Dewey, a chartered building surveyor, to survey the work. Based on his survey they sought quotations from other contractors to complete the work. They say that the quotations were high and that they were unable to afford to engage other builders. At the end of 2007, or in early 2008, they began to undertake some of the outstanding work on a piecemeal basis. They subsequently contracted with D S Builders to complete outstanding work and they say that they spent £70,805 doing so.
Mr Rochester engaged a consulting engineer, a Mr Kelly. Mr Kelly produced a report in July 2008 setting out his views on the scope of the original contract, the work which had been carried out as at April 2007 and the scope of the variations instructed by Mr and Mrs Atwal. I should say that Mr and Mrs Atwal accept that they instructed some variations but not to the extent contended for by Mr Rochester. There was little disagreement, in fact, between Mr Dewey and Mr Kelly.
It is noteworthy that there was no suggestion by Mr and Mrs Atwal, or indeed by Mr Kelly or Mr Dewey, that there had been defects in Mr Rochester's work. It was not until he was giving evidence at the trial of this matter that Mr Atwal sought to suggest that there were some defects for which remedial work was required, but there is no extrinsic evidence to support that suggestion.
Mr Jewel FRICS, a chartered quantity surveyor, was instructed jointly by the parties as an expert in October 2009. He was asked to express an opinion on the following. First, the description and value of the work completed by Mr Rochester, as at 7 th April 2007. Secondly, an assessment of the balance of the original scope of the work not carried out at 7 th April 2007. Thirdly, the reasonable cost of completing the original scope of work...
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Variations
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