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    Home » Judgments » High Court Judgments » Anthony Bramble Dba Tropical Construction v Angela Burns

    1
    EASTERN CARIBBEAN SUPREME COURT
    TERRITORY OF THE VIRGIN ISLANDS
    IN THE HIGH COURT OF JUSTICE
    (CIVIL)
    CLAIM NO. BVIHCV2011/042
    BETWEEN:
    ANTHONY BRAMBLE dba TROPICAL CONSTRUCTION
    Claimant
    And
    ANGELA BURNS
    Defendant
    Appearances:
    J.S. Archibald QC and Patricia Archibald-Bowers for the Claimant

    Me Menelick Miller of Farara Kerins for the Defendant

    2014: 25th September

    JUDGMENT
    [1] Ellis, J: By Further Amended Claim Form filed on 4th August 2011, the Claimant
    sought the following relief against the Defendant herein:
    i. Payment of the sum of $45,509.20 in respect of arrears owed by the
    Defendant to the Claimant;
    ii. The return of construction equipment and materials or $23,550.00
    being the value and damages;
    iii. The sum of $68,245.60 in respect of future losses owed by the
    Defendant to the Claimant;
    iv. Damages;
    v. Interest;
    vi. Costs; and
    2
    vii. Such further and other relief as this Honourable Court deems just.
    [2] This Further Amended Statement of Claim sets out the Claimant’s case. He
    contends that by fixed price construction contract dated 31 May 2010, he agreed
    to carry out construction on the property registered as Block 3440B Parcel 280,
    East End Registration Section of a basement level floor plan for a price of
    $233,111.50 which sum was payable in instalments (drawdowns) and in advance
    of each of the 4 phases of the project.
    [3] Pursuant to the contract, works commenced on or about 15th June 2010 and in
    accordance with the terms of the contract, the Claimant was to use all reasonable
    efforts to complete the works within 9 months of the signing of the Contract
    (barring the Defendant’s failure to make construction payments, acts of
    governmental authorities, force majeure or any similar causes not within the
    Claimant’s control). In furtherance of this, the Claimant carried onto the property
    construction materials and equipment owned by him which were required to carry
    out the said construction work.
    [4] On or about 16th September 2010, the Defendant sought to terminate the contract.
    The Claimant contends such termination was wrongful and in breach of the
    contract. He claims that he suffered loss and damage as a result of this breach
    including unpaid monies for the third drawdown as well as loss of future monies for
    deprivation of doing work stipulated in the contract.
    [5] The Claimant also contends that notwithstanding that the Parties agreed that he
    would be able to remove and recover his construction equipment and materials
    following this purported determination of the contract, he was unable to enter the
    property as it was chained off. He was subsequently informed by the Defendant
    that she had disposed of the said construction equipment and materials. He
    contends that the equipment and materials were not returned and that as a result
    3
    he has suffered loss and damage in the amount of $23,550.60. He also claims
    loss of use of the equipment and materials since 2nd November 2010.
    [6] In a Defence filed on 31st August 2011, the Defendant does not deny the details of
    the contract which was agreed between the Parties. She states that this
    agreement was made partly orally and partly in writing which is evidenced in the
    construction agreement dated 31st May 2010.
    [7] This Claim is opposed by the Defendant who contends that in breach of the
    express and/or implied terms of the agreement, the Claimant refused to
    communicate at all or in a timely manner; failed to keep her abreast of the
    progress of the works; failed to provide proof of costs; and failed to act as the
    principal in supervising the works. The Defendant asserts that the following terms
    must be implied into the contract:
    i. The works were to be carried out with reasonable skill and expertise
    and in the shortest possible time and/or at the lowest possible costs to
    the Defendant;
    ii. At all material times the term of 9 months was a long stop for
    completion;
    iii. She would be kept abreast of the progress of the works and be
    provided with proof of the costs arising therefrom;
    iv. That the Claimant would personally be responsible for carrying out or
    supervising the construction works.
    [8] The Defendant contended that the works actually began on 7th June 2010 when
    clearing and excavation commenced. She contended however that the Claimant
    failed to carry out the work within a reasonable time. In support of this contention,
    the Defendant posited that the work which was spread over approximately 4
    months could have been done in a much shorter time and that she was obliged to
    make repeated demands to the Claimant to carry out and complete the works.
    [9] On the 16th September 2010, the Defendant claims that she wrote to the Claimant
    terminating the contract on the basis that she considered the progress of the
    4
    works to be too slow and that completion could have been effected within 4
    months of the contract date.
    [10] Although she freely admitted that construction equipment was taken unto the site,
    she put the Claimant to strict proof as to the nature and the value of the said
    equipment. She contended that by letters dated 23rd November 2010 and 7th
    February 2011, she wrote to the Claimant requesting the removal of the equipment
    from her property. The Claimant having not complied by 11th February, the
    Defendant concluded that this constituted an unlawful use of her property and/or
    trespass on it and she took steps to remove the same.
    [11] The Defendant stated that due the breakdown of the contractual relationship, a
    meeting was convened between the Parties on 26th September 2010 in
    accordance with clause 8 of the Agreement. Mr Courtney De Castro purported to
    act as a Mediator and the Defendant contended that at that meeting, the Parties
    expressly agreed to bring their business relationship to a close at the end of the
    current phase of the project, i.e. the second phase.
    [12] The Defendant also contends that during that meeting, it was also agreed that the
    Claimant would continue the works falling within second phase of the agreement
    because he would have already been in receipt of monies paid to him in advance
    to complete that phase1. The Defendant contends that the Claimant continued to
    work until on or about 2nd November 2010 when the works under the second
    phase of the agreement were completed. The Defendant contends that this was
    contrary to the express representation by the Claimant that the second phase was
    projected to be completed on or about 30th September 2010.
    1 He had already been paid two instalments under Clauses 6 (a) and (b) of the contract and was owed the
    instalments in clauses 6 (c) and (d) in the amount of $45,409.20 and $68,245.60.
    5
    [13] Notwithstanding this earlier agreement, by letter dated 1st October 2012, the
    Claimant’s wife wrote to the Defendant indicating the Claimant’s intention to
    continue to work past the completion of the second stage of the agreement. The
    letter sets out the following terms: “We did indicate to you at said meeting that you
    will be receiving a letter from the company on the decision made then. We are
    informing you that contrary to our conversation, we will continue to construct said
    dwelling in accordance with contract signed and accepted by the National Bank of
    the Virgin Islands on 31st May 2010. It is the intention of the company to complete
    said project.”
    [14] The Defendant’s case is that by this time, the original agreement of 31st May 2010
    had come to an end and could no longer be relied upon by the Claimant. Following
    the completion of the second stage of the works, the Defendant contends that
    there was no agreement subsisting herself and the Claimant. The Defendant
    retained the services of a new contractor to complete the works and erected a
    barrier on the property on 7th December 2010 with the intention of protecting the
    property rather than specifically to restrict the Claimant’s access to the Property.
    [15] The Claimant responded in a Reply which was filed on 16th September 2011. He
    denied that the Agreement between the Parties was partially oral and written. His
    case is that the agreement is only memorialised in the written construction
    agreement dated 31st May 2010 which was prepared by him and duly executed by
    the Defendant. The Defendant concedes that it was an implied term of the contract
    that the works would be carried out with reasonable care and expertise, but he
    joins issue on all of the other alleged terms implied by the Defendant.
    [16] Moreover and in any event, he contends that at all times he kept the Defendant
    abreast of the progress of the works and provided proof of the costs arising
    therefrom. He also contends that he was in fact the principal responsible for
    supervising the works.
    6
    [17] The Claimant agrees that the agreed time for the completion of the entire project
    was 9 months and he contends that the works were being carried out in a timely
    manner (as evidence by a letter from the lender Bank). He attributed any delay in
    completing the second phase of the works by the projected date to inclement
    weather.
    [18] With regard to the meeting of 26th September 2010, the Claimant denies that there
    was any agreement for the Parties to go their separate ways after completion of
    the second phase of the contract. In fact, he contends that the letter of 1st October
    2010 clearly stated his position that the decision had been made to continue to
    complete the project. The Claimant’s position is that the contract was never
    terminated.
    [19] The Claimant does not deny that he received the Defendant’s letters in which she
    demanded the removal of his equipment from her property, but he contended that
    he was hampered in such removal by the chain erected by the Claimant which
    prevented his access to the equipment and materials. In these premises, he
    denies that there was any unlawful use or trespass of the Claimant’s property.
    [20] At the trial, the Claimant gave evidence on his own behalf and called two other
    witnesses. The Defendant also gave evidence and called two other witnesses in
    support of her case.
    CLAIMANT’S EVIDENCE
    [21] In his witness statement filed on 30th April 2012, the Claimant describes himself as
    one of the directors of the “Tropical Construction Company”. He stated that this
    Company entered into a contract with the Defendant for the construction of a
    basement at her residence in East End. The estimated time for completion of the
    project was 9 months. He stated however that at the time of execution of the
    agreement, he explained to the Defendant that although the completion time is
    7
    stipulated as 9 months, the project may be completed prior to this taking into
    account the weather and any unforeseen problems as the project was being
    carried out during the hurricane season.
    [22] The Defendant also stated that in a subsequent meeting at which his wife, June
    Bramble and the Defendant were present, he introduced the Defendant to his
    employee, Mr Everton Henry and went over the construction plans in detail. Work
    commenced thereafter. However, problems commenced when the Defendant
    began to ask for all receipts generated in connection with the project. The
    Claimant refused to comply, explaining that the cheques were being made to
    Tropical Construction and not the Defendant. He also reminded her that she had
    been provided with an estimate for the project which provided a breakdown of the
    costs. The Claimant states that after several communications on this issue, the
    Defendant ceased direct contact with him and instead communicated with his wife
    and with Mr Everton Henry.
    [23] He stated that Mr Henry gave the Defendant daily up-to-date reports of the
    progress of the project and that all of her concerns were dealt with.
    Notwithstanding this, the Defendant began to complain that there were not
    sufficient workmen on the site and that they were not working fast enough. The
    Claimant stated that the Defendant based this assessment on the advice which
    she received from third parties who she brought on to the site after his workmen
    had departed.
    [24] The Claimant conceded that there were delays in the project, but he attributed this
    to the heavy rains which shut down the Government and disrupted access to the
    property (1 week delay) and the high winds which blew a projectile through the
    Defendant’s neighbour’s front door which had to be replaced (1 week delay) . He
    also indicated that there was a further delay of 1 week because of the local
    carnival celebrations.
    8
    [25] The Claimant’s evidence is that as a result of the difficulties in the contractual
    relationship, the Defendant insisted on a meeting with a mediator. This meeting
    was convened at the Digicel Corporate Office, but it soon became clear that the
    purported mediator, Mr De Castro was actually the Defendant’s project manager.
    The Claimant states that his wife refused to participate in the meeting because
    Mr De Castro was not a court appointed mediator.
    [26] The Claimant’s evidence is that the Defendant then indicated that unless they
    complied with her request regarding the provision of receipts and regular
    meetings, she would terminate the contract after the second drawdown. He stated
    that it was his wife who told the Defendant that if that was her intention then they
    would seek legal advice. He also stated that his wife asked the Defendant to put
    her request in writing which she later did. After seeking legal advice, the Claimant
    stated that his wife wrote to the Defendant informing her that they would continue
    to complete the works because there was a binding contract between them.
    [27] Following this, the Defendant told them that they would be off the job unless they
    met the terms which she dictated. After the second drawdown, the Defendant
    informed the Claimant that their services were no longer required and that she
    would not be requesting a third drawdown.
    [28] By this time, the Claimant stated that the project was ahead of schedule because
    they had put some of their own funds into the project and were working in good
    faith. The structure was in place and the major part of the plumbing and electrical
    work was done. What remained to be done were the plastering of the building,
    tiling, painting, and installation of fixtures, windows, doors and cupboards.
    [29] The Claimant stated he was informed by Mr. Henry that he could not access the
    site because it had been barred. No further work could be done because of this.
    Later, when he attempted to retrieve his equipment from the Defendant’s property
    it was chained off and she claimed to have no knowledge of the equipment.
    9
    However, during a subsequent mediation meeting when the subject was raised, he
    stated that the mediator asked them to leave the room and spoke to the Defendant
    and her attorney. The Claimant was later informed that the Defendant would make
    no further comment at that time but would get back to them. It was during another
    aborted mediation that the Defendant indicated that she knew where some of the
    equipment was.
    [30] The Claimant stated that there are outstanding bills from this project that have to
    be paid and that they were unable to take on other projects as they no longer had
    access to their equipment.
    [31] The Claimant also gave sworn oral evidence during which he was crossexamined
    on a number of material points. He testified that he was a contractor
    with 10 years’ experience and he described the project in question as being a
    straightforward one. He confirmed that the maximum completion time for the
    contract was 9 months. He indicated that this was term set out in the written
    contract and that he also confirmed this orally to the Defendant. Contrary to his
    witness statement, he denied that he ever told the Defendant that the project could
    be completed prior to the 9 months’ time frame. He denied that this was ever a
    term of the agreement but stated it was just something that he would try to do.
    [32] The Claimant testified that after work commenced, the Defendant was in frequent
    contact with him. By June 2010, the Claimant confirmed that the Defendant began
    to insist on being provided with receipts. He informed her that they had a signed
    contract with no overhead profit so that the receipts belonged to the “Company”.
    As a result, the Defendant began to communicate less with him and more with his
    wife who he described as a director of the “Company”. He denied however that
    this was because he became fed up with her and stopped answering his phone.
    [33] The Claimant agreed that there came a time when the relationship with the
    Defendant broke down because she was not getting receipts. He testified that he
    10
    was approached by the Defendant who suggested mediation. Counsel for the
    Defendant referred the Claimant to a copy of an emailed message between Mrs.
    June Bramble and the Defendant dated 21st September 2010 in which the
    Defendant indicated that she had contacted a court appointed mediator who was
    willing to hear the case. The message also indicated when “she” (the mediator)
    would be available. The Claimant testified that he could not recall this
    correspondence.
    [34] While he recalled attending a meeting on 26th September 2010, he stated that it
    was not mediation because there was no mediator present. According to him,
    Mr De Castro introduced himself as a project manager and at no point during the
    mediation did he describe himself as a mediator. He also denied that Mr De Castro
    informed him that any agreement reached in the meeting would be legally binding.
    The Claimant testified that although he was present throughout the
    meeting, Mr De Castro left before the meeting commenced because Mrs Bramble
    refused to continue to participate in the meeting in his presence.
    [35] He agreed that as at the date of that meeting, he had received the drawdown for
    the second phase and he said that he was in the process of completing the
    second phase and beyond. On re-examination, he clarified that he had in fact
    commenced the third phase of the project.
    [36] The Claimant also denied that he agreed to hand over the project to the Defendant
    after the completion of the second phase. Instead, his evidence is that he informed
    her that he would decide on a course after he had discussed the matter with his
    attorneys. He testified that the contract had not come to an end and based on
    what had occurred, he felt that there was no reason to change that position.
    [37] Counsel for the Defendant also put the letter dated 1st October 2010 to the
    Defendant. Although he acknowledged his wife’s signature on the letter, he
    claimed that he could not recall having seen it. Having read paragraph 3 of the
    11
    letter in which Mrs Bramble stated that: “We did indicate to you at said meeting
    that you will be receiving a letter from the company on the decision made then. We
    are hereby informing you that contrary to our conversation, we will continue to
    construct said dwelling in accordance with contract signed and accepted by the
    National Bank of the Virgin Islands on 31st May 2010. It is the intention of the
    company to complete the said project”, the Claimant denied that he had changed
    his mind or had reneged on his agreement that the contract would terminate after
    completion of the second phase of the project.
    [38] Notwithstanding his earlier want of recall, the Claimant later told the Court that it
    became necessary to write this letter because the Defendant wanted them off the
    site and they had to do something in writing. He reiterated that there was a written
    binding contract which could not be terminated in the way the Claimant proposed.
    [39] With regard to the missing equipment and materials, the Claimant conceded that
    between November 2010 and February 2011, the Defendant had repeatedly
    requested that he remove his equipment. These requests were made orally and in
    writing but were ignored by him. He agreed that he had received the letter of 21st
    November 2010 which made it clear that the Defendant wanted him to collect his
    property. He also acknowledged the correspondence from the Defendant dated 7th
    February 2011 which gave him until 11th February 2011 to remove his property
    from the site. He testified that he could not recall the exact time when the Claimant
    was contacted but he told the Court that some discussions were held after he
    received that letter.
    [40] The Claimant reiterated that because he was without his equipment, he was
    hampered in carrying out other jobs. However, he provided no specific details of
    these jobs and he told the Court that he made no effort to source or purchase
    replacement equipment. In respect of the materials left on the site, he conceded
    that these (including lumber which had been brought to the site before the
    commencement of the works) had been purchased for the project and that he had
    12
    received payments for their purchase in phases 1 and 2 of the project. He denied
    that he used the Defendant’s property as a dump site to store his equipment and
    other items not directly related to the construction.
    [41] He agreed that following the meeting of 26th September 2010 and the letter of 1st
    October 2010, his wife contacted the lender bank demanding the drawdown for the
    third phase of the project. He stated that this was done in to complete the project.
    He indicated that prior to doing this, he did not consult the Defendant although he
    was well aware of her position regarding the determination of the contract.
    [42] When he was re-examined, the Claimant stated that when they received the
    Defendant’s letter of 1st October 2010, he was still working on the site. He stated
    that they completed work around 3rd October 2010 and that he could not recall
    being on the site after November 26th 2010.
    [43] Mrs June Bramble, the Claimant’s wife then gave evidence in support of the
    Claimant. In her witness statement filed on 30th April 2010, she corroborated much
    of the Claimant’s evidence. She asserted that she is one of the directors of the
    “company”, Tropical Construction and the she prepared all correspondence on
    behalf of the Company. She averred that after work commenced on the project,
    they received numerous emails from the Defendant about her concerns and that
    these concerns were all dealt with accordingly.
    [44] She stated during the course of the project there were delays or setbacks due to
    public holidays and rainy weather. During that time, the Defendant complained that
    the work was progressing too slowly. As a result, she convened a meeting during
    which the Defendant indicated that she wished to have her property back at the
    end of the second phase. According to Mrs. Bramble, she indicated that they
    would provide their response in writing.
    [45] After a period of time, she received an email from the Defendant indicating that the
    Claimant must remove all materials and equipment from her property by a specific
    13
    deadline. She was later informed by Mr. Henry that they were unable to proceed to
    the property to carry out further work because the property was then fenced and
    barred. At that time, the second phase of the project was completed.
    [46] Mrs Bramble testified that she then contacted her attorneys who advised her to
    respond to the Defendant giving her a date and time when the equipment would
    be removed from the property. However, they later attempted to retrieve the
    property, they were prevented from doing so as there was a chain across the
    entrance to the property.
    [47] When she was cross-examined, she told the Court that the term of 9 months was
    the maximum time it would take to complete the project. She denied that she told
    to the Claimant that the project could be completed sooner. In fact, her evidence is
    that she continually reminded the Defendant that the contract was for 9 months.
    [48] She confirmed that after signing the contract, the Defendant began to contact her
    regarding receipts. When she was questioned about the breakdown in
    communication between the Defendant and Mr Bramble, Mrs Bramble’s evidence
    became quite cagey. She first indicated that she could not speak to this and later
    she stated that she could not recall when the breakdown occurred.
    [49] Mrs Bramble testified that sometime in September 2010, the Defendant contacted
    her about mediation and she responded by asking her to identify a court appointed
    mediator. The Defendant then told her that it was not a mediation but rather a
    meeting with a project manager. She denied that the Defendant made it clear that
    the purpose of the meeting was to mediate their dispute.
    [50] When Mrs Bramble was referred to Clause 8 of the contract, she explained that
    this clause was necessary because not all parties see eye to eye and it would be
    best to settle by mediation before going to court. Mrs Bramble agreed that when
    she was approached by the Defendant, court proceedings had not commenced.
    She could not explain how a mediator could be appointed by a court in the
    14
    absence of an extant legal proceeding. Despite protracted examination by
    Counsel for the Defendant, Mrs Bramble reiterated that when she read the
    Defendant’s emailed message of 21st September, she felt that she was attending a
    meeting rather than a mediation because she did not know the identity of the court
    appointed mediator.
    [51] Mrs Bramble also testified that during the meeting, her husband, Mr Henry, the
    Defendant and Mr De Castro were present. She denied that Mr De Castro was
    introduced as the mediator or that he informed them that any agreement which
    they reached would be binding. She stated that when she arrived at the meeting,
    she was puzzled by Mr. De Castro’s presence and when she enquired, the
    Defendant told her that he was a project manager hired by her. She denied
    Counsel’s suggestion that she had been told in no uncertain terms that Mr De
    Castro was a project manager by profession who had been retained as a mediator
    in the matter. She repeated that she was not aware that he was a mediator.
    [52] She denied that she agreed to terminate the contract after the completion of the
    second stage of the contract. When she was referred to the letter of 1st October
    2010, she acknowledged the same and agreed that she had signed it. However,
    she denied that the letter indicated that a decision had been made at the 26th
    September 2010 meeting to terminate the contract after the second phase. She
    testified that she never indicated to the Defendant that they would stop work on
    the project.
    [53] She testified that they continued to work on the project after that date and when
    Counsel enquired as to the date when they completed the second phase, Mrs
    Bramble responded that she thought it was 2nd November 2010. She also told the
    Court that the contract was divided into 4 stages. When work ceased on 2nd
    November 2010, they were at the second stage of the contract and they were on
    schedule to complete within the contracted time.
    15
    [54] She agreed that she had been contacted by the Defendant regarding the removal
    of the equipment and materials from the property. She also agreed that between
    December 2010 and 11th February 2011, no efforts were made to retrieve them.
    Rather, she testified that she passed the Defendant’s letters to her attorneys.
    However, she could not recall whether her attorneys responded to the Defendant.
    When she was questioned by the Court, Mrs Bramble indicated that she did not
    respond to the Defendant’s letters because she had been instructed by her
    attorneys to bring in the letters to them. She further stated that they did not collect
    the equipment and material on the advice of their attorneys who advised them that
    they must leave the equipment on the property.
    [55] The Claimant’s final witness was Mr Everton Henry who in his witness statement
    told the Court that he had been employed to assist in the construction of the
    Defendant’s home. He stated that he was the supervisor of the excavation and the
    employee who laid out the building and who carried out the construction.
    [56] He stated that the Defendant visited the site almost every day and that he
    explained the ground work and responded to her questions. He described their
    relationship as a good one and he indicated that when the Defendant requested
    receipts, he referred her to the Claimant. He also asserted that the Defendant
    never told him that she had any problems with the building, neither did she ever
    complain about the length of time for completion.
    [57] Mr Henry averred that after the second phase of the work had been completed, he
    was unable to continue working as the Defendant’s property had been fenced and
    barred. He recalled seeing the mixer, water container and other stuff inside the
    barrier but he did not remove the same.
    [58] He stated that sometime later, the Defendant asked him to remove their property;
    otherwise, she would put it on the road and would not be held responsible. He
    16
    informed her that she needed to speak to Mr Bramble. He related this
    conversation to the Claimant who told him that he would be seeking legal advice.
    [59] He also told the Court that when he finally went on the site to collect the
    equipment, there was a chain across the property preventing access to the site
    and all of the equipment and materials had been removed. He later had a
    conversation with one “Yellow” who informed him that he took some of the jacks
    while some of the other materials were taken by other workers. When he was reexamined,
    he confirmed that he never received the concrete mixer (valued at
    $6,000.00) which had been left on the property and which belonged to him.
    [60] During his oral testimony, Mr Henry testified that in September 2010, the project
    was on schedule and would have been completed by November 2010. He stated
    that for a house of that size only 4 – 5 months construction time was required. He
    agreed that there were delays cause by the Festival celebrations and a hurricane
    but despite this, he stated that the works would have been completed by
    November 2010.
    [61] Although Mr Henry recalled attending a meeting with Mr De Castro, he could not
    recall very much about it. He could not recall how long it lasted, whether he was
    present throughout or how the meeting concluded. But he could not recall whether
    Mr De Castro made any statements prior to leaving the meeting or whether the
    Parties had agreed to terminate the contract following the second phase.
    Nevertheless, he recalled that Mr De Castro left of the meeting at an early stage.
    [62] He testified that following that meeting, he returned to the site (no specific date
    mentioned) to carry out works but found that there was a barrier which prevented
    access to the property. When it was suggested to him that he continued to work on
    the project up until November 2010, he indicated that he could not do so because
    there was a barricade which prevented him from entering the property.
    17
    DEFENDANT’S EVIDENCE
    [63] In her witness statement filed on 24th April 2012, the Defendant averred that the
    term of completion had been mandated by her bankers who had indicated that
    they were willing to give a construction loan for up to a 9 month term.
    Notwithstanding this, she stated that it was a clear understanding between Mr
    Bramble and herself that the house would be completed by her birthday in
    November 2010.
    [64] She confirmed that at the start of the project, Mr Bramble arranged a meeting on
    site with Mr Everton Henry and his wife. According to the Defendant, she was
    informed that Mr Henry would be the builder but it was her expectation that her
    interaction would be with Mr Bramble who negotiated the contract with her.
    However, this was the first and only time that she ever saw either of the Brambles
    on the site.
    [65] Three months after the project commenced, she began to express some serious
    concerns. When seeking updates on the progress of the works, she was unable to
    reach Mr Bramble by phone. When she finally did reach him, his wife informed her
    that Mr Bramble does not talk much and that she should liaise with her instead.
    Although this was completely at variance with her pleadings, the Defendant’s
    evidence is that she had no problems with this because she simply wanted to have
    her house built.
    [66] The Defendant also stated that she did not receive the expected financial updates
    on the project. Her request for receipts (evidencing the money spent) was flatly
    refused. She stated that Mrs Bramble also flatly refused to provide an expected
    finish date for the project despite the fact that construction was not progressing to
    her satisfaction. In addition, her request to hire additional workmen in order to
    expedite the project was also rejected. The Defendant stated that this caused her
    great irritation because she had been consulting with several third parties and had
    developed an uneasy feeling that the project was on a “go slow”. She was forced
    18
    to communicate this concern to the Brambles via email because Mr Bramble was
    no longer answering her calls and messages.
    [67] After it became clear that they were at a stalemate, the Defendant stated that she
    wrote to Mrs Bramble on 16th September 2010 seeking a termination at the end of
    the second phase. She stated that the Claimant responded by threatening to sue.
    She reminded Mrs Bramble of the contractual terms which mandated mediation
    and they agreed that she would make the necessary arrangements.
    [68] Mr De Castro agreed to be a mediator and a meeting was convened on 26th
    September 2010 during which the Defendant expressed her concerns and
    reiterated her request that the contract be terminated after the second phase. The
    Defendant’s evidence is that both Mr and Mrs Bramble agreed to terminate after
    the second phase and Mrs Bramble promised to send a formal letter before the
    end of the week setting out the agreement reached to wit: that the Claimant would
    exit the site and hand over the project at the completion of phase 2 and that they
    would have no further obligations to each other.
    [69] However a few days later, the Defendant received a letter which purported to
    recant on their agreement. This letter was rejected by the Defendant who had by
    then hired an alternative contractor (Mr. Garraway) to complete the contract.
    [70] She later stated that prior to contracting Mr Garraway, there was no activity taking
    place on the site, as a result she sought to secure the property by erecting a chain
    fence across the entrance in an effort to deter interlopers. She was aware that
    some equipment including a wheelbarrow, saw, concrete mixer, a few jacks and a
    generator were left on the property along with a few pieces of plywood. On 23rd
    November 2010, she wrote the Claimants requesting their removal which was
    followed by another letter of 7th February 2011. In the letter, she indicated that if
    the property was not removed by 11th February 2011 at 4:00 p.m. then she would
    19
    dispose of the same. She received no response until well after the 11th February
    deadline.
    [71] When she gave oral testimony, the Defendant’s evidence was largely consistent
    with that of her witness statement. In examination in chief, she indicated that the
    agreement to mediate was set out in the email exchanges between Mrs Bramble
    and herself. In the email of 21st September 2010, Mrs Bramble agreed that the
    Defendant’s would contact an arbitrator/mediator, and in her emailed response,
    Mrs Bramble indicated that she had contacted a “court appointed mediator”. She
    later clarified to the Court that her intention was to contact someone who had
    merely been sanctioned by the court. She could not however, confirm that Mr De
    Castro was a court appointed mediator. She testified that she had never employed
    Mr De Castro to act as a project manager and she denied that she ever informed
    the Claimant or Mrs Bramble that Mr De Castro was the project manager on the
    project.
    [72] She told the Court that she made it clear to the Brambles that they were attending
    a mediation. She also testified that the session lasted for about 1 hour and that
    Mr De Castro left about 45 minutes into the meeting prior to its conclusion. She
    could not say what documents he had in his possession, whether he took notes
    during the session or if he was paid for attending the meeting.
    [73] When she was cross-examined, the Defendant agreed that there was no provision
    in the contract which required the Claimant to provide her with receipts or bills.
    She also agreed that the written contract provided a term of 9 months for
    completion and she conceded that this term was not preceded by the phrase “on
    or before”. Although she insisted that there was an implied term that the project
    would be completed in the soonest possible time and at the lowest possible costs,
    she indicated that she expected the construction would be completed no later than
    28th February 2011. She also conceded that she did not expect that the project
    would cost less than the contracted sum of $233,111.50.
    20
    [74] Notwithstanding these concessions, the Defendant testified that one of the
    reasons that she wanted to terminate the contract was because she had
    concluded that the project should have be completed within 4 months. She stated
    that she arrived at this conclusion after she conducted her own research and after
    speaking to third parties. She also stated that at some point, Mr Bramble told her
    that she could very well have the house completed by her birthday in November
    2010. The Defendant told the Court that the Claimant failed to carry out the works
    within a reasonable time. It was her view that the Claimant should have carried out
    a lot more work by the time the contract came to an end. She stated that the
    Claimant did not use all reasonable efforts to carry out the works.
    [75] The Defendant denied that she invented these concerns because she simply did
    not want to pay for the third and fourth phase under the contract. Instead, when
    she was questioned further, she listed the reasons why she terminated the
    contract. She stated that the main reasons were:
    (i) the lack of accountability in terms of how her money was being
    spent (her request for receipts was categorically refused on the
    basis of company policy); and
    (ii) the slow pace of the work (by the third month the project should
    have been in the third phase). In addition, she was concerned
    about
    (iii) the fact that the workers employed on the project had not been
    vetted to determine their skill level or whether they were otherwise
    fit and proper employees;
    (iv) her inability to properly discuss her concerns with the Claimant
    who stopped taking her calls and refused to schedule regular
    meetings; and
    (v) the fact that both the Claimant and Mr Everton would refer her to
    each other when she expressed her concerns.
    [76] She said that there was no resolution of these concerns. Out of desperation, she
    turned to Mrs Bramble who told her “if that is how you feel, we will just give you
    back your project at the end of phase 2”. After this, the meeting ended when she
    21
    promised to write a letter crystallising what had been agreed. The Defendant
    stated that at no time did the Claimant indicate that he would need to seek legal
    advice.
    [77] She also testified that although to a great extent she was satisfied with Mr Everton
    Henry, she had indicated to him that she was not pleased with the calibre of
    particular workmen on the job. She stated that Mr Henry was introduced as a
    partner in the business and the person who would be responsible for building the
    house. She could not recall that he was to act as supervisor on the project. In fact,
    she stated that she expected Mr Bramble to supervise because he represented
    himself to her as a contractor and in any event, he was the one with whom she
    contracted.
    [78] She further testified that one month after the construction had ceased (November
    – December 2010), she regarded the equipment as having been abandoned.
    Initially, she denied that she agreed that Mr Garraway could take the equipment in
    lieu of payment or as partial payment. She explained that after taking legal advice,
    when the project came to an end and work was finished in March 2011, she asked
    Mr Garraway to clear the property. She indicated that she was not aware of how
    Mr Garraway disposed of the equipment and materials. By the time she received
    the correspondence from Mrs Bramble indicating that they would be coming to
    collect the equipment, it was too late. The equipment had already been removed in
    late February. However, when she was question further, the Defendant finally told
    the Court that Mr Garraway had informed her that there was some remedial work
    which needed to be done and which would increase the costs. When he inquired
    about the mixer, she recognised that the equipment would have some value and
    since she did not have the extra money to pay for those remedial works, she told
    him that he could have the equipment.
    [79] The Defence’s next witness was Mr Richard Courtney De Castro. He stated that
    he is an architect/ project manager of 25 years’ experience. He provided 2 witness
    22
    statements. He averred that in late September 2010 he was contacted by the
    Defendant in connection with a dispute which she had with her contractor and he
    indicated that he was willing to act as a mediator between the Parties.
    [80] When the meeting was eventually convened, the Brambles, Mr Everton Henry and
    the Defendant were present. He stated that before and during the mediation, he
    explained to all parties that any agreement reached at the mediation would be
    binding on the parties.
    [81] He soon recognised that the mediation was somewhat hostile and that the Parties
    had arrived at an impasse. He noted that the Defendant was disgruntled about the
    pace of the work and insisted on getting a definite date for the completion of the
    project. The Defendant felt that there was not a substantial amount of work
    completed to show for the funds which had been disbursed to date. She felt that
    she was not getting value for money and she insisted on seeing receipts for the
    materials purchased for the project. Mr Bramble was unwilling to provide copies of
    those bills in order to justify the amount sought on the drawdown and he was also
    unwilling to provide a date for completion. Instead, he was firm that he would finish
    within the time set out in the construction agreement.
    [82] He further stated that at the time of the mediation, the Claimant had made a
    request for drawdown for phase 3 of the project. His understanding was that the
    drawdown was sought in advance and that in fact the Claimant was then working
    on completing phase 2. He stated that prior to the meeting, he visited the site with
    the Defendant where he found the state of the works were as follows: (1) exterior
    and interior walls were up; (2) main floor slab completed; (3) steel in place for the
    columns; (4) the building was up to the ring beam stage; (5) there were insufficient
    materials to complete the next phase of construction although materials could
    have been off site.
    23
    [83] Mr De Castro’s evidence is that when the Defendant asked to have her project
    back, Mrs Bramble eventually expressed her agreement to hand over the project
    upon completion of the second phase and she stated that she would put this in
    writing. He stated that when he left the meeting, it was his understanding that the
    Parties had agreed that the Claimant would complete the second stage and would
    hand over the project thereafter and that each side would walk away from each
    other. There was no discussion about payment of any further money.
    [84] In his oral testimony, Mr De Castro stated that he is not a court appointed mediator
    but that he has acted as a mediator before. He denied that he was engaged on the
    construction contract or that he informed anyone at the meeting that he was a
    project manager or that anyone referred to him as such. When he was reexamined,
    he testified that at the beginning of the meeting, he clearly indicated
    what his role would be and referred to the mediation clause in the Agreement.
    [85] He stated that as the meeting continued the Parties were eventually able to agree
    that the contract would be terminated and the project handed over to the
    Defendant.. Counsel for the Defendant questioned Mr De Castro at some length
    about the fact that there was no document signed by both Parties setting out any
    agreement reached during the meeting. He agreed that with his experience and in
    the hostile context any agreement reached should have been reduced into writing.
    [86] Mr. De Castro also testified he was present for about 1 hour, during which time the
    Defendant and Mrs Bramble did most of the talking. Initially, he stated that he
    could not recall Mr Bramble saying anything during the meeting but he later stated
    that he might have heard Mr Bramble saying that he would be able to finish the
    project within the time set out in the agreement.
    [87] He disagreed that he said nothing during the meeting, but he confirmed that he
    was the first person to leave and that he left before the meeting was finished. He
    could not recall being asked to leave the meeting but he agreed that the
    24
    commencement of the meeting there were discussions about his role. He
    described the Parties as neutral by the time the meeting ended.
    [88] The last witness for the Defence was Mr Roy Garraway, the professional
    contractor who was hired by the Defendant to complete the project after the
    second phase. His evidence was relevant only in regard to the disposal of the
    equipment and materials which were left on the Defendant’s property by the
    Claimant. In his witness statement, he stated that he commenced work on the site
    in January 2011 and at that time the building was incomplete. He confirmed that
    he had to do some remedial work to correct certain errors. This included adjusting
    the level of the porch to ensure that it was not flush with the invert level of the
    door. He also had to rectify some plumbing and electrical issues which included
    running new pipes.
    [89] He also stated that when he went on the site to commence work, there were a few
    pieces of equipment. He recalled a gas generator, cement mixer, around 50 jacks
    and some old materials which were of no use. There was also an old shed. His
    evidence is that the mixer and jacks were given to him by the Defendant as partial
    payment for the remedial works which had not been budgeted for in the bill of
    quantities. He stated that the mixer was not in working order but he eventually
    repaired it. He was not aware of what happened to the generator. Finally, he
    stated that the old materials were dumped during the clean-up process.
    [90] At some pains, Counsel for the Claimant examined Mr Garraway about the
    equipment and materials which he found on the property. Mr Garraway testified
    that the following items were found or seen on the property: (1) about 50 jacks; (2)
    concrete mixer; (3) less than 20 old plywood forms; (4) generator; (5) 50 (rather
    than 535) scattered flat shoes; (6) sledge/heavy hammer; (7) work shed which had
    to be broken down; (8) 600 gallon water tank; (9) broken shovel; (10) broken down
    wheelbarrow; and (11) igloo.
    25
    [91] He stated that the value of these items would be roughly $5000.00. He also
    testified that the Defendant had told him that she had been trying to get the
    Defendants to remove the equipment for some time. He stated that he used his
    own equipment to complete the projects but the equipment and materials found at
    the site were used to set off the cost of the remedial works.
    [92] Mr Garraway either denied or claimed to have no knowledge of the following
    items: (1) electric vibrator; (2) bundle of ½ inch steel; (3) pickaxes; (4) ripping bars;
    (5) large support ties/ single shoe; (6) galvanise; and (7) spare wheel for F150
    truck.
    [93] Finally, he stated that using a work force of at least 5 – 6 men on site he was able
    to complete the contract in about 1 ½ months at cost of $107,000.
    COURT’S ANALYSIS AND CONCLUSIONS
    [94] The starting point for Court in assessing the relative legal positions of the Parties
    is the Construction Agreement dated 31st May 2010 and signed by both the
    Claimant and the Defendant. That Agreement provides the legal context of the
    relationship between the Parties and ultimately, the resolution of this Claim will
    depend on the interpretation and construction of its terms.
    [95] In the absence of fraud or mistake, the Parties are bound by the terms of the
    written agreement which they have signed. By signing the document, each party
    has represented to the other that they have made themselves acquainted with its
    contents and assented to them.2 The agreed terms of the contract therefore
    evidence the intentions and expectations of the Parties and where a contract is
    made wholly in writing, evidence is not generally admissible to add to, vary or
    contradict the written terms3.
    2 Harris v Great Western Rly Co. (1896) 1 Q.B.D. 515 at 530, per Lord Blackburn
    3 Jacobs v Batavia and General Plantations Ltd [1924] 1 Ch. 287
    26
    [96] The justification of this rule of interpretation (now familiarly termed the Parole
    Evidence Rule) is the need to promote certainty. In Shore v Wilson4, Tindal CJ
    put it this way:
    “ If it were otherwise , no lawyer would be safe in advising upon the construction
    or a written instrument, nor any party in taking under it; for the ablest advice
    might be controlled, and the clearest title undermined, if at some future period,
    parole evidence of the particular meaning which the party affixed to his words or
    of his secret intention in making the instrument or of the objects he meant to take
    benefit under it might be set up to contradict or vary the plain language of the
    instrument itself.”
    [97] As with any rule however, there are exceptions5. The courts have expounded on
    such exceptions and it is now well settled that unless a contract contains an “entire
    agreement” clause, evidence is admissible to show that the writing was not
    intended to be the entire contract between the parties. This imposes a burden on
    the party alleging that the written document does not represent the full contract, to
    counter the presumption that it does.6 It is also an exception that unless a contract
    contains an “entire agreement” clause, evidence is admissible to prove a collateral
    agreement. However, a distinction must be drawn between an agreement which
    adds to the written agreement and one which contradicts it.7
    [98] In the case at bar however, Clause 9 of the Agreement provides as follows:
    “This Agreement constitutes the entire agreement between the parties with
    respect to the Property and the Owner hereby agrees that she is not entering into
    this agreement upon the reliance of any statement or other representation
    otherwise not contained herein.”
    4 (1842) 9 Cl. & F. 355
    5 There are some other exceptions which are less relevant. Evidence is admissible to identify the parties,
    subject matter and additional consideration of a contract. It is also admissible to prove custom and where it
    is sought to challenge the validity of the contract e.g. by claiming rectification or mistake or
    misrepresentation.
    6 Gillespie v Cheney Egar &Co. [1896] 2 Q.B. 59
    7 Lynsar v National Bank of New Zealand [1935] N. Z. L. R. 129
    27
    [99] In the Court’s view, this is critical contractual provision presents “an insuperable
    hurdle”8 to any allegation that the contract was partly contained in statements
    which were not recorded in the contract. In Inntrepreneur Pub Co v East Crown
    Ltd9, the learned Lightman J made the following observation:
    “The purpose of an entire agreement clause is to preclude a party to a written
    agreement from thrashing through the undergrowth and finding in the course of
    negotiations some (chance) remark or statement (often long forgotten or difficult
    to recall or explain) on which to found a claim such as the present to the
    existence of a collateral warranty. The entire agreement clause obviates the
    occasion for any such search and the peril to the contracting parties posed by
    the need which may arise in its absence to conduct such a search. For such a
    clause constitutes a binding agreement between the parties that the full
    contractual terms are to be found in the document containing the clause and not
    elsewhere, and that accordingly any promises or assurances made in the course
    of the negotiations (which in the absence of such a clause might have effect as a
    collateral warranty) shall have no contractual force, save insofar as they are
    reflected and given effect in that document. The operation of the clause is not to
    render evidence of the collateral warranty inadmissible in evidence as is
    suggested in Chitty on Contract 28th ed. Vol. 1 para 12–102: it is to denude what
    would otherwise constitute a collateral warranty of legal effect.”
    [100] In light of this established legal principle, the Court cannot accept the Defendant’s
    contention that the agreement between the Parties was made partly orally and
    partly in writing. This is especially so, where there are express terms which directly
    conflict with the oral agreement which is alleged to have been made.
    [101] Clause 2 of the Agreement expressly provides as follows:
    “The Contractor shall use all reasonable efforts to complete the
    construction works upon signing of this agreement and completion in 9
    8 McGrath v Shah (9187) 57 R. & C.R. 452
    9 [2000] 2 Lloyd’s Rep 611 at 614; and see Deepak Fertilizers and Petrochemical Corporation v Davy
    McKee [1998] 2 Lloyds Rep 140, 138, affirmed [1999] 1 Lloyds Rep 387
    28
    months’ time thereafter provided however, that the delays caused by the
    Owners’ failure to make construction payments in accordance with Appendix I of
    this Agreement, act of governmental authorities (including delays in any
    permitting process), force majeure, or any other similar causes not within the
    Contractor’s control which are sufficient to constitute an impossibility of
    performance or a frustration of purpose of delay outside the control of the
    Contractor shall be added to the period.”
    [102] Clause 4 of the Agreement expressly provides that;
    “The Contractor agrees that they will at all times ensure appropriate
    supervision of all construction works …”
    [103] The Defendant’s contention is that notwithstanding this unambiguous contractual
    provision, the actual agreement between the Parties is that (1) the subject matter
    of the contract would have been completed and handed within 4 – 5 rather than 9
    months, i.e. by November 2010 and (2) that Mr Bramble would personally
    supervise the project rather than merely ensure that there was appropriate
    supervision of all construction works.
    [104] In the Court’s view, the entire agreement clause precludes the Defendant from
    relying on the collateral representations or terms in order to underpin or justify her
    desire to terminate the Agreement. It is clear that the purported collateral terms
    are in direct conflict with the express provisions of the Agreement. Having carefully
    reviewed the evidence, the Court is not satisfied that there was any agreement –
    collateral or otherwise, that Mr Bramble would personally carry out or supervise
    the works. Although this may well have been the Defendant’s impression, this
    would not without more make it a legally enforceable or binding agreement.
    [105] Additionally, while there is some evidence that the Claimant’s and/or Mr Henry
    may have intimated that the project could be delivered earlier than the prescribed
    time, such representations would not in the Court’s view override what had been
    expressly agreed between the Parties.
    29
    [106] According to general principles of contractual interpretation, where a contract
    provided for the performance of an act within a certain number of months, the
    period expires on the day of the month bearing the same number as the date in
    which the period begins or, if there is no such day on the last day of the month.
    The court in Dodds v Walker 10 referred to this principle of interpretation as the
    “corresponding date rule”.
    [107] Given the precise wording in Clause 2 of the Agreement, this rule must be applied
    with the rule of interpretation which prescribes that where a person is required to
    perform to act “within” a certain period, the act may be performed up to the last
    moment of the last day of that period. In Manorlike Ltd v Le Vitas Travel Agency
    and Consultancy Services Ltd. [1986] 1 All. E.R. 573, Kerr LJ stated the
    position thusly:
    “If a person is required to do something within a week, or in a week, he has the
    full week to do it, as it seems to me, including the last moment of that week, and
    he is not required to complete the task in less than a week. To construe this
    wording of this notice so that it connotes a period of less than three months,
    because permission must be given “within” three months with a consequent
    failure to allow a full period of three months, appears to me to strain the language
    in a hair-splitting and wholly artificial manner.”
    [108] It follows that (all things being equal), the Project which is the subject matter of the
    Agreement should have been completed in February 2011.
    [109] In written submissions, Counsel for the Claimant applied what he termed “an
    objective test” regarding the formation of the contract. He argued that it is apparent
    from the evidence that there was a meeting of the minds both orally and in written
    and it was the mutual intention of the Parties to be bound that way. In support, he
    cited the authority of Smith v Hughes (1871) 6 QB 597 where Blackburn J stated
    that:
    10 [1980] 1 W.L.R. 1061
    30
    “If, whatever a man’s real intention may be, he so conducts himself that a
    reasonable man would believe that he was assenting to the terms proposed by
    the other party, and that other party upon that belief enters into the contract with
    him, the man thus conducting himself would be equally bound as if he had
    intended to agree to the other party’s terms.”
    The Defendant then cited the Defendant’s consistent calls for the project to
    progress at an advance pace as demonstrating behaviour/conduct which would
    override the express term in the contract.
    [110] However in the Court’s view, the passage in Smith v Hughes merely shows that
    in a case where the formation of a contract is in issue, the actual intention and
    understanding of the recipient of the offer is relevant. Once it has been established
    that a contract has been formed however, the actual intentions of the parties as to
    the meaning or effect of the contract must be determined from the express terms
    of the contract and from established rules of contractual interpretation. Having
    regard to the totality of the evidence, the Court is unable to conclude it was the
    mutual intention of the Parties that either of these clauses was intended to be an
    enforceable warranty.
    Implied terms
    [111] The Defendant also contended that the Claimant breached several implied terms
    and that such breaches warranted an abridgment or termination of the Agreement.
    These terms included:
    i. The works were to be carried out with reasonable skill and
    expertise and in the shortest possible time and/or at the lowest
    possible costs to the Defendant.
    ii. At all material times the term of 9 months was a long stop for
    completion.
    iii. She would be kept abreast of the progress of the works and be
    provided with proof of the costs arising therefrom.
    31
    iv. That the Claimant would personally be responsible for carrying
    out or supervising the construction works.
    [112] Generally, there is a presumption against implying terms into written contracts.
    The more detailed and apparently complete the contract, the stronger the
    presumption.11 When called upon to imply a contractual term into a contract, the
    proper approach of a court is that described by Cockburn CJ in Churchward v
    R12 where he stated:
    “…where a contract is silent, the court or jury who are called upon to imply an
    obligation on the other side which does not appear in the terms of the contract
    must take great care that they do not make the contract speak where it was
    intentionally silent and above all that they do not make it speak entirely contrary
    to what, as may be gathered from the whole terms and tenor of the contract was
    the intention of the parties.”
    [113] The presumption against adding terms is stronger where the contract is a written
    contract which represents an apparently complete bargain between the parties13.
    The more detailed and comprehensive the contract, the less ground there is for
    supposing that the parties have failed to address their minds to a particular issue.
    Where, however, the bargain is obviously not complete, the court is less reluctant
    to supply the missing terms.
    [114] The implication of a term into a contract depends on the presumed rather than the
    actual intention of the parties. In some cases, the intention is collected merely from
    the express words of the contract and the surrounding circumstances; in others, it
    is collected from the nature of the legal relationship into which the parties have
    entered. However, in order for a term to be implied the following conditions must
    be fulfilled: (1) it must be reasonable and equitable; (2) it must be necessary to
    give business efficacy to the contract so that no term will be implied if the contract
    is effective without it; (3) it must be so obvious that it goes without saying; (4) it
    11 Aspdin v Austin (1844) 5 Q.B 671
    12 (1865) L.R. 1 Q. B. 173 at 195
    13 Duke of Westminster v Guild [1985] Q.B. 688 at 698
    32
    must be capable of clear expression; and (5) it must not contradict any express
    term of the contract.14
    [115] For the reasons which have already been indicated herein, the Court finds that
    purported implied terms at (ii) and (iv) are not collateral to the Agreement.
    Moreover, because the implication of a term rests upon the presumed rather than
    the actual intention of the parties, the Court finds that it is unlikely that they would
    have intended to incorporate by implication a term which is inconsistent with a
    term they incorporated expressly.
    [116] In Lynch v Thorne15, the Court held that where a building contract specified a
    particular method of building which turned out to be defective, there was no room
    for a general implied term requiring the building to be constructed so as to be fit for
    human habitation when completed. Other cases have since taken the principle
    further, holding that the court will not imply further terms in relation to the same
    subject matter, even if the implied term would not actually conflict with express
    terms.
    [117] It follows that the first step for a Court is to compare the term or condition which
    the Defendant seeks to imply, with the express provisions of the contract, and with
    the intention of the parties as gathered from those provisions in order to ascertain
    whether there is any inconsistency. Having conducted this comparison, this Court
    is satisfied that the purported implied terms at (ii) and (iv) are inconsistent with the
    express provisions of clause 2 and 4 of the Agreement and cannot be implied into
    the contract. It follows that the Defendant could not rely on a purported breach of
    the same to justify the termination of the contract.
    14 B.P. Refinery (Westernport) Pty Ltd. v Shore of Hastings (1978) 52 A.L.J.R. 20
    15 [1956] 1 W.L.R. 303
    33
    [118] With respect to purported implied term in the second half of (i) which contemplates
    that the contract be completed in the shortest possible time and/or at the lowest
    possible cost to the Defendant, the same principles apply.
    [119] Indeed, recent judicial authority now makes it clear that it is the contractor’s
    obligation to finish by the completion date and it is up to him to organise his work
    as he sees fit. If the contractor feels that he can leave all the work to the last
    month and complete on time then, despite the concern of the anxiously watching
    client, he may do so. If the client wishes to impose some other obligation then,
    there needs to be an express term to that effect. Multiplex Constructions UC Ltd
    v Cleveland Bridge UK Ltd [2006] EWHC 1341 (TCC)
    [120] Having entered into an agreement with express terms regulating the term of the
    agreement and the contract price, the Defendant has advanced no cogent legal or
    other basis upon these terms could be implied.
    [121] With respect to the first half of the purported term in (i) which contemplates that
    “the works were to be carried out with reasonable skill”, the Court is satisfied that
    this clause meets all of the criteria for implication. However, the evidence before
    the Court is that the Defendant’s dissatisfaction was not predicated on any lack of
    skill in the carrying out of the works. While there is some evidence from
    Mr Garraway and Defendant that remedial works were necessary (porch,
    electrical and plumbing), it is quite clear that these issues would have come to light
    after the Agreement between the Parties had essentially been terminated.
    [122] In respect of the remaining term (iii), in which the Defendant asks the Court to
    imply that she would be kept abreast of the progress of the works and be provided
    with proof of the costs arising therefrom, the position is not as clear. Given that this
    Agreement sets out what is essentially a fixed term contract, there would typically
    be no obligation on the part of Defendant to show his costs unless there is a
    contractual provision expressly requiring him to do so. In the circumstances, it
    34
    could not have been the presumed intention of the parties that this term should be
    implied. If the Parties had intended for this provision to govern their relationship,
    then a specific and express clause should have been included or alternatively, the
    Parties should have entered into a cost-plus or cost reimbursement arrangement.
    [123] In the same way, the Parties failed to expressly mandate the convening of regular
    meetings between the Claimant and the Defendant to update on progress and to
    discuss matters relating to the agreement. Industry practitioners have long
    recognised the benefits of such a clause to maintaining the relationship of mutual
    trust and confidence between contractor and client. Best practice dictates that it is
    a good practice to hold regular update meetings with the client so as to ensure that
    any issues, risks or problems are identified and fixed as early as possible in the
    project.
    [124] The Court has no doubt that the relationship between these Parties broke down as
    a direct result of lack of communication, trust and confidence between the Parties.
    By failing or refusing to communicate with the Defendant in a timely and effective
    manner, the Claimant did little to assist in the breakdown of the relationship. It is
    readily apparent to the Court that the Claimant does not comprehend the legal and
    personal capacity with which he entered into this agreement. He repeatedly
    referred to Tropical Construction as an incorporated entity with “directors” when
    there was no such evidence before the Court. Unfortunately, his advisors did not
    appear to have alleviated this difficulty.
    [125] Having heard the evidence and observed the Parties, the Court finds that the
    Claimant did in fact refuse to take the Defendant’s calls and refused to meet with
    her. Instead, he repeatedly passed her off to his agents who were not party to the
    Agreement with the Defendant. Having entered into a contract with the Claimant,
    an unincorporated entity, the Court finds that it is would not be unreasonable for
    her to expect that he would cooperate and communicate with her and would not
    35
    conduct himself in a manner likely to destroy or seriously damage the relationship
    between them.
    [126] It is within this context that Parties agreed to meet in September 2010 to discuss
    their devolving relationship. The Court having read and heard the evidence has no
    difficulty in concluding that this meeting was convened pursuant to Clause 8 of the
    Contract which provides that:
    “This Agreement shall be governed by the laws of the Virgin Islands and each of
    the parties hereby irrevocably submits to the exclusive jurisdiction of the Virgin
    Islands court. However, remediation by …..(Engineer/Project manager) shall be
    the first course of action in the case of any disagreement.”
    [127] Notwithstanding the apparent misnomer in the Clause, the Court is satisfied that
    both Parties were fully aware of the scope and intent of the meeting and were fully
    aware of the role to be played by Mr De Castro. Having reviewed the exchange of
    correspondence between the Parties, and having heard observed the witnesses,
    the Court is satisfied that the Claimant’s witnesses were less than truthful in
    relating their understanding of the purpose meeting and role of Mr De Castro.
    [128] In any event the importance of that meeting lies not in the role played by Mr De
    Castro or the designation/ label attached to the meeting but rather what agreement
    (if any) emerged therefrom and its impact on the existing contract between the
    Parties. In this regard, the Parties’ positions are diametrically opposed.
    [129] The Defendant contends that the Parties agreed to terminate the contract after
    completion of the second phase of the works with both sides mutually releasing
    any further obligation which they may have had to each other. On the other hand,
    the Claimant categorically denies this and contends that the Defendant wrongfully
    breached the contract, subsequently terminating the Agreement on 7th December
    2010 when she restricted the Claimant’s access to the site to carry out and
    complete the work.
    36
    Discharge by Agreement
    [130] It follows that the Court must consider not only the Parties’ evidence but also the
    legal principles governing the termination of a contract by mutual agreement. In
    that regard, the general legal principle is that an agreement by parties to an
    existing contract to extinguish the rights and obligations that have been created is
    itself a binding contract provided that it is either made under seal or supported by
    consideration. Consideration raises no difficulty if the contract to be extinguished is
    still executory, because in such a case each party agrees to release his rights
    under the contract in consideration of a similar release by the other. The discharge
    would therefore be bilateral because each party would surrender something of
    value.
    [131] Moreover, the courts have concluded that a written contract may be rescinded by
    parol either expressly or by the parties entering into a parol contract which is
    entirely inconsistent with the written one, or inconsistent to the extent that it goes
    to the very root of it. This legal principle was applied in British and Beningtons
    Ltd. V North West Cachar Tea Co16 which case considered the ratio in Hunt v.
    South Eastern Ry. Co.17, Thornhill v. Neats18 and Morris v. Baron & Co.19
    However, the position was perhaps best summarised by Lord Haldane in Morris v.
    Baron & Co. where he stated:
    “Accordingly while a parol variation of a contract required to be in writing cannot
    be given in evidence, the very authorities which lay down this principle also lay
    down not less clearly that parol evidence is admissible to prove a total
    abandonment or rescission. Now there is no reason why this should not be done
    through the instrumentality of a new agreement which does not comply with the
    16 [1923] AC 48 per Lord Sumner at page 68; applied in United Dominions Corporation (Jamaica) Ltd v
    Shoucair (1968) 12 WIR 510 and Jagdeo Sookraj v Buddhu v Samaroo (2004) 65 WIR 401
    17 (1875) 45 L. J. (Q. B.) 87
    18 141 E.R. 1392
    19 [1918] A.C. 1
    37
    statutory formalities, just as readily as by any other mode of mutual assent by
    parol. What is, of course essential is that there should have been made manifest
    the intention in any event of a complete extinction of the first and formal contract,
    and not merely the desire of an alteration, however sweeping, in terms which still
    leave it subsisting.”
    [132] In light of the defence advanced by the Defendant, it is clear that in order to
    succeed in his claim the Claimant must satisfy the Court on a balance of
    probabilities that there was no agreement reached between the Parties following
    the September 2010 meeting. In applying the balance of probability standard, the
    Court is guided by the dicta of Baroness Hale in the House of Lords decision Re B
    (Minors) 2008 EWCA Civ.282 and by Lord Nicholls in Re H (Minors) (Sexual
    Abuse: standard of proof)20.
    “The balance of probability standard means that a court is satisfied an event
    occurred if the court considers that, on the evidence, the occurrence of the event
    was more likely than not. When assessing the probabilities, the court will have in
    mind as a factor, to whatever extent is appropriate in the particular case, that the
    more serious the allegation the less likely it is that the event occurred and,
    hence, the stronger should be the evidence before the court concludes that the
    allegation is established on the balance of probability. Fraud is usually less likely
    than negligence. Deliberate physical injury is usually less likely than accidental
    physical injury. …Built into the preponderance of probability standard is a
    generous degree of flexibility in respect of the seriousness of the allegation.
    Although the result is much the same, this does not mean that where a serious
    allegation is in issue the standard of proof required is higher. It means only that
    the inherent probability or improbability of an event is itself a matter to be taken
    into account when weighing the probabilities and deciding whether, on balance,
    the event occurred. The more improbable the event, the stronger must be the
    evidence that it did occur before, on the balance of probability, its occurrence will
    be established.”
    20 1996 AC 563 at 586 D-H
    38
    [133] Having reviewed the witness statements of all the witnesses and after listening to
    their oral testimony and observing their demeanour in Court, the Court is satisfied
    on a balance of probabilities that the Parties did at the close of the meeting arrive
    at an agreement, the terms of which would have abrogated the Agreement at the
    completion of the second phase of the project. The Court has no doubt that the
    Defendant would have been a trying client for the Claimant and that mutual
    hostility and exasperation would have driven their agreement to bring an end to
    their relationship.
    [134] The Court finds that the contents of the letter dated 1st October, 2010 to be
    unambiguous. The letter points to an earlier agreement reached during the
    meeting of September 2010 to mutually abrogate the Agreement. The Court found
    that both Mr and Mrs Bramble’s evidence in this regard to be implausible and
    unreliable. The prevaricating evidence of Mr Bramble convinced the Court that he
    was not candid or truthful about his awareness of the letter and its contents.
    Further, it did not escape the Court’s notice that Mr Henry, an acknowledged
    participant at the meeting could give no decisive evidence consistent with that of
    the Brambles.
    [135] Further, given the letters clear intimation that “We did indicate to you at said
    meeting that you will be receiving a letter from the company on the decision made
    then. We are hereby informing you that contrary to our conversation, we will
    continue to construct said dwelling in accordance with contract signed.”,
    the Court was not persuaded by the improbable construal advanced by Mr
    Bramble or his witnesses. This view was further reinforced by the letter dated 1st
    October 2010, from the Claimant’s agent June Bramble to the Manager of the
    National Bank of the Virgin Islands in which she stated that “ The concerns raised
    by Ms Burns in relation to us turning over the project to her at the end of Phase II
    is very disconcerting. I did indicate that we would do such, however on further
    consultation we have decided not to accede to her wishes as we are still
    bound by the contract of 31st May 2010 …” (Emphasis mine)
    39
    [136] Conversely, having had an opportunity to observe the demeanour of the
    Defendant, the Court is satisfied that she was sufficiently truthful in her responses.
    The Court was also persuaded that Mr De Castro was also a credible witness.
    While there may well be legitimate concerns with how he chose to conduct the
    purported mediation, this would not in the Court’s view affect his credibility. His
    evidence as to the state of agreement at the time when he left the meeting is
    consistent with that of the Claimant and the Court has no doubt that is accurate.
    [137] In the premises and applying equitable principles, the Claimant cannot recant on
    his previous agreement and purport to enforce the original obligations under the
    Contract.21 The Court therefore concludes that the Contract was mutually
    terminated by agreement of the Parties on 26th September 2010. It follows that the
    Claimant cannot maintain that the Defendant wrongfully terminated and breached
    the contract. His claims for loss and damage as a result of this breach including
    unpaid monies for the third drawdown as well as loss of future monies for
    deprivation of doing work stipulated in the contract cannot be maintained and are
    accordingly dismissed.
    Disposal of the Equipment and Materials
    [138] In regard to the materials which the Claimant alleges were left on the property, the
    Defendant’s evidence is that they would have been purchased through previous
    disbursements under the loan facility secured to finance the project. This evidence
    was untraversed by the Claimant during the course of these proceedings. On a
    balance of probabilities, the Court therefore accepts the Defendant’s evidence and
    will dismiss the Claimant’s claim in relation to the unused materials.
    21 Birmingham and District Land Co v London and North Western Rly Co (1888) 40 Ch. 268; Charles
    Rickards Ltd v Oppenheim [1950] 1 KB 616
    40
    [139] In so far as the equipment is concerned, the position is not as simple. It is clear
    from the evidence that in contemplation of the project, the Claimant brought
    several pieces of equipment onto the Property. This general fact is not disputed by
    the Defendant although the parties are not completely ad idem on the detail of
    inventory. It is also clear that in the wake of the meeting of 26th September 2010,
    and after completion of the second phase of the project and the determination of
    the contract, the equipment remained on the property.
    [140] The Defendant argued that she considered that the property had been abandoned
    one month after the construction had ceased or between November – December
    2010. Unfortunately, the Defendant’s Counsel provided no legal authority
    expounding upon or justifying that conclusion or the subsequent actions taken by
    his client. This was indeed unfortunate given the potential legal exposure which
    she faced.
    [141] What is clear is that in the circumstances which were described, the common law
    dictates that an involuntary bailment22 would have been created. Although
    involuntary bailees do not voluntarily consent to holding, they still owe a duty of
    care to the owner of property. It is clear that a breach of the standard may result in
    liability under the tort of conversion.
    [142] The law on abandonment and the rights and duties of involuntary bailees are a
    matter of common law and the Court found that the learning on Palmer on
    Bailment to be particularly useful. At paragraph 26 0121 of that text,
    “abandonment” is analysed as follows:
    “The notion of abandonment may apply in two different senses to objects found
    by a non-owner: one colloquial and one juristic. In the first sense, a loser may
    abandon the search for a lost object, whether by reason of other claims on his
    22 An involuntary bailment arises where a person, without their consent, finds themselves in possession
    of goods belonging to another party (for instance, where an owner of goods sends these goods to
    another party who does not request that these goods are sent).
    41
    time, or a belief that the place where the object has been lost is one where
    others are likely to find it and return it. The loser in that position does not resign
    any proprietary or possessory claims to the chattel, and when the chattel is found
    the ordinary rules apply: the law recognises the paramount claim of the owner
    and, subject to that, normally awards the goods to the person first in possession.
    The second and more important is that of a divesting abandonment, where the
    finder comes upon a chattel that the owner has previously left or cast away with
    the intention of divesting himself not only of possession but also of ownership.”
    [143] Clearly, the Defendant’s case must fall within the second category. The learned
    authors then go on to state:
    “Despite some surviving doubt, the better opinion appears to be that divesting
    abandonment is a defence to conversion provided that a party entitled to do so
    has renounced possession and the immediate right to possession of the chattels
    in question. Clear evidence both of intention to abandon and of some physical
    act of relinquishment will be required and, given the element of strict liability in
    conversion as contrasted with the need for mens rea in crime, it would seem that
    a mere reasonable belief that abandonment had taken place would not suffice as
    a defence.
    [144] The Court must therefore consider whether there has been both an intention to
    abandon and some physical act of relinquishment demonstrated on the part of the
    Claimant. In so considering, the Court must take into account the whole of the
    circumstances of the case. In the case at bar, the Court has considered the
    circumstances under which the equipment came on to the Defendant’s property;
    as well as the devolving relationship between the Parties and the correspondence
    from the Claimant’s agent indicating that he considered the Agreement to be in
    force and legally binding and expressing his intention to complete the project. The
    Court has also considered the value of the items.
    [145] Bearing in mind that the ownership or right to possession of the equipment was
    never in doubt, the burden of proving abandonment as a defence to a claim in
    42
    conversion is on the Defendant and having considered all of the evidence, the
    Court concludes she has not discharged the burden of proving on a balance of
    probabilities that the Claimant abandoned whatever equipment remained on the
    property.
    [146] Having considered the totality of the circumstances of this case, the Court has
    some difficulty in discerning how the Defendant could reasonably have come to
    the conclusion that the Claimant intended to abandon the equipment. In the
    Court’s view, the context would have made it clear to the Defendant that the
    Claimant’s lack of response stemmed from his legal position which would have
    been communicated to her23. The equipment remained uncollected no doubt to
    leverage that position and the Defendant would have been well aware of this.
    [147] Having become an involuntary bailee24, the Defendant should have sought advice
    as to her duty of care in the circumstances and/or how her obligations could be
    lawfully determined. Her advisors would no doubt have indicated to her that
    although at common law, the duty arising is much lower than in either bailment for
    reward or gratuitous bailment, there is a duty to abstain from wilful or reckless
    damage.25 In this case, the Defendant would have been obliged to take proper
    care of the bailed property and surrender to the Claimant or dispose of the
    property in accordance with his instructions. They would have also advised her
    that the prohibition against the sale or disposal of the goods maintains as in the
    case of bailment for reward.
    [148] No doubt, the Defendant’s attorneys would have also advised her that the scope of
    the duty of the involuntary bailee to abstain from wilfully damaging the goods
    varies widely according to the circumstances of the bailment. There is some
    23 Letter from JS Archibald and Co to the Defendant dated 23rd November 2010.
    24 Palmer, Bailment (1991), p.677 defines it as “… a person whose possession of a chattel, although known
    to him and the result of circumstances of which he is aware, occurs through events over which he has no
    proper control and to which he has given no effective prior consent.” Also, at p.436:“A possessor who has not
    … consented, but is nevertheless actually or constructively aware of the presence in his possession of goods
    belonging to another, will fall to be treated as an involuntary bailee.”
    25 Elvin & Powell ltd v Plummer Roddis Ltd (1933) 50 TLR 158
    43
    authority for the proposition that there can be no legitimate complaint against a
    bailee who acts in a manner which is considered “reasonable and proper” in all the
    circumstances 26 including the destruction of the goods if they have become a
    nuisance. Similarly, a bailee who acts with the object of either returning the goods
    or mitigating responsibility for them (whether by delivering them to the police)
    would also incur no liability to their owner. Unfortunately, neither of these
    circumstances arises here.
    [149] Unlike other jurisdictions such as the United Kingdom, the remedies available to a
    involuntary bailee for uncollected goods remain ill-defined and without statutory
    foundation. In the United Kingdom, the Torts (Interference with Goods) Act
    1977 gives the bailees a statutory power of sale in relation to bailor’s goods
    provided the bailee gives the bailor notice in a prescribed form to collect the goods
    within a reasonable period of time. If the bailor does not collect, or give directions
    for delivery, then the bailee is entitled to sell the goods and must account to the
    owner for the sale of the proceeds after deducting the associated costs and sale
    expenses. From the evidence, it appears that the Defendant attempted to
    somewhat follow this framework. Unfortunately, this UK statute has no application
    in this Territory and cannot avail the Defendant.
    [150] To summarise therefore, while it can be said that the law of bailment will apply
    when people are in possession of goods that remain uncollected, the remedies
    available to such a bailee are limited. Generally, at common law they do not
    extend to the sale or disposal of the goods. There are however, two narrow
    exceptions: (1) the principle of agency of necessity excuses the bailee from liability
    when there is an actual commercial necessity to dispose of the goods. The
    principle also applies where goods are deteriorating or otherwise losing value, but
    only if the loss is serious enough to constitute an emergency; (2) it has also been
    26 Hiort v Bott (1874) LR Ex 86 at 91 per Cleasby B
    44
    suggested that a bailor who has abandoned all title and interest in the goods may
    permit the bailee to dispose of the goods at will.
    [151] The Defendant has only advanced the latter exception as a defence to the Claim,
    and for the reasons which have already been set out, the Court is of the view that
    this cannot be maintained. Having considered the nature and value of the goods,
    the circumstances in which they have been deposited, the facilities at the
    Defendant’s disposal, the readiness with which the goods could have been
    returned to the Claimant and the conduct of the Parties, in the Court’s view the
    equipment could only be classified as merely “uncollected” rather than
    “abandoned” as that term is legally defined.
    [152] In the premises and having advanced no other viable legal basis for her actions,
    the Court finds that the Defendant breached her common law obligations and
    converted the equipment by disposing of the same either in the setoff transaction
    with Mr Garraway or otherwise27. The Defendant is entitled to recover provable
    loss and damage.
    Damages
    [153] According the learned authors of Mac Gregor on Damages the normal measure
    of damages for conversion is the market value of the goods converted.28 In this
    case, the burden of proof lay with the Claimant to prove the value of the goods as
    at the date of conversion. In discharging this burden, the Claimant put before a
    court a list of material and equipment left at the property along with manuscript
    notations of their value. The evidence of Mr Henry discloses that he provided
    these figures and he acknowledged that they reflected the replacement cost of
    each item. In the Court’s view there is no basis to deviate from the normal
    measure of damages in this case. The Claimant having failed to establish the
    27 Anderson and Anderson v Earlanger [1980] C.L.Y. 133
    28 Hall v Barclay [1937] 3 All. E.R 620
    45
    value of the goods as at the date of conversion, the Court can only award a
    nominal sum of o $4500.00.29
    [154] The Further Amended Statement of Claim also sets out claim for loss of use.
    However, other than the bare allegation, the Claimant advanced no cogent proof in
    support of this claim. Indeed this claim as pursued with a decided lack of
    enthusiasm and the Court is not satisfied on a balance of probabilities that there
    was any loss incurred by reason of contracts made with third parties or any
    expenditure incurred in hiring substitute equipment or otherwise. In the premises,
    the Court therefore denies this aspect of the Claim.
    [155] It is therefore ordered as follows:
    i. Judgment is entered for the Claimant in the sum of $4500.00.
    ii. Interest on that said sum.
    iii. All other claims for relief are dismissed.
    iv. The Defendant shall pay the Claimant’s costs in the sum of $1500.00.
    Vicki Ann Ellis
    High Court Judge
    29 Da Rocha-Afodu & Anr v Mortgage Express Ltd & Anr [2014] EWCA Civ 454

    /anthony-bramble-dba-tropical-construction-v-angela-burns/
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