Colin Walters Appellant v [1] Peter Crane [2] Eugenie Crane Respondents [ECSC]

• Jurisdiction: Saint Kitts and Nevis
• Court: Court of Appeal (Saint Kitts and Nevis)
• Judge: SAUNDERS, J.A. [AG.],Chief Justice,Justice of Appeal [Ag.],Sir Dennis Byron,Ephraim Georges
• Judgment Date: 22 September 2004
• Judgment citation (vLex): [2004] ECSC J0122-1
• Docket Number: CIVIL APPEAL NO.11 OF 2001
• Date: 22 September 2004

[2004] ECSC J0122-1

IN THE COURT OF APPEAL

Before:

The Hon. Sir Dennis Byron Chief Justice

The Hon. Mr. Ephraim Georges Justice of Appeal [Ag.]

The Hon. Mr. Adrian Saunders Justice of Appeal [Ag.]

CIVIL APPEAL NO.11 OF 2001

Between:

Colin Walters

Appellant

and

[1] Peter Crane

[2] Eugenie Crane

Respondents

Appearances:

Mrs. J. Sutton-Daniel for the Appellant

Ms. A. Jarrett and Mrs. M. Walwyn for the Respondent

SAUNDERS, J.A. [AG.]

1 The respondents in this matter, Mr. and Mrs. Crane, desired to build their retirement home in Nevis. They had previously lived in England. In 1994, in Nevis, they met Mr. Walters, the appellant, and engaged his services to produce architectural designs for the proposed house. The drawings were done by Mr. Walters and posted to the Cranes in England early in 1995. They liked them but they wanted some modifications made to the original plans. They made a list of these modifications and later that year, armed with that list, Mr. Crane returned to Nevis and held discussions with Mr. Walters. During the course of those discussions, the matter of the changes or alterations contained in the list was discussed.

2 In April, 1997 the Cranes retained Mr. Walters to build their house. The agreed price for labour and materials was $585,000.00, a price which Mr. Walters says he gave to the Cranes in February (the record of appeal states 1999 but I believe it should be) 1997. It was also agreed that construction would take approximately eight months. By letter dated 13^th April, 1997 Mr. Crane confirmed the price and authorised Mr. Walters to start work as soon as possible.

3 While in England, Mr. Crane, an academic professor, kept in constant communication with Mr. Walters. At their request Mr. Walters sent the Cranes photographs of the progress of the works and the parties appeared to have had a relatively smooth working relationship.

4 On 22^nd June, 1997, Mr. Walters faxed the Cranes a Payment Schedule. In this document the construction was divided into various segments. Each segment was briefly described and the date and amount of funds to be remitted by the Cranes in respect of each segment was set out. The last payment of the total of $585,000.00, was supposed to have been remitted on 24^th November, 1997 in respect of finishing work on the doors, windows, tiles, painting, electrical and plumbing fixtures etc. At the bottom of the Payment Schedule was a note stating, "All other extras will be treated as a retention fee, and must be under EC$58,000.00 and will become due three months after the completion date — 24^th November, 1997". In his evidence in chief at the trial, Mr. Walters testified that "the note pertained to the extras, if any". He said that he sent the note because he was concerned at the rate of extras being requested by the Cranes. At this point he alleged that a rough estimate of extras already done amounted to over $20,000.00.

5 Upon receiving the Payment Schedule, Mr. Crane replied by return fax of 10^th July, 1997. Among other things, he queried the note concerning "extras" and demanded to know what extras he was already committed to apart from expenses pertaining to a Jacuzzi. Mr. Walters did not immediately respond to this query in writing. Mr. Crane said that the builder responded by telephone indicating that the extras then due related to $7,100.00 for the Jacuzzi and monies for supplying electricity and water and for any planting that Mr. Walters was asked to do.

6 The Cranes came to Nevis to reside permanently in September, 1997. They regularly visited the site. Mr. Crane claims that, despite conversations on site, Mr. Walters said nothing further to them about "extras". The parties continued to have a good relationship for a time. In November, 1997 Mr. Crane handed to Mr. Walters a long "list of errors, omissions and defects". A few days later Mr. Walters indicated that he was going to dismiss the crew. In a goodwill gesture, Mr. Crane bought drinks for the departing crew.

7 The works were not yet complete at this time but the arrival of the Cranes' personal effects in Nevis was imminent. They wanted to store their belongings and move in as soon as possible. Mr. Crane expressed his concern to Mr. Walters about the state of the house moreso as the crew were being dismissed. After a week or two, work re-commenced on the house. The Cranes moved into the house on 9^th December, 1997. It was in an unfinished state and both sides agree that the Cranes lived in great inconvenience. It is equally clear however that they chose to occupy the house in that condition so that their furniture, which had arrived, would not be left unattended.

8 Although the payment schedule required the Cranes to make the last instalment of the $585,000.00 (a payment of $67,000.00) on 24^th November, 1997, the Cranes withheld that payment. On 17^th January, 1998, Mr. Walters presented a demand to the Cranes in the form of a "Statement of Extras" containing 22 items totaling $71,234.41. Mr. Crane paid neither that sum nor the $58,000.00 agreed ceiling. Nor did he pay the $67,000.00 still due on the contract.

9 Mr. Walters ceased work on the house on 31^st January, 1998 when, he said, the house was substantially finished. He acknowledges two failings, namely, not completing the hurricane shutters for the house and not doing some remedial work on the opening between the living and dining rooms. He places a value of $3,700.00 and $750.00 respectively on the work left undone. He says that with the authorisation of the Cranes, he opened a line of credit at S. L. Horsford & Co. Ltd. so that he could credit supplies for the house. In his Statement of Claim he alleged that the Cranes should be responsible for liquidating the outstanding balance on that account but at the trial he withdrew that claim. He therefore sought to recover the balance of the contract price owed plus the extras incurred up to a total of $58,000.00 less the value of the work left undone.

10 Mr. and Mrs. Crane took the view that on their contract with Mr. Walters, they owed the latter $67,000.00 plus $7,100.00 for the Jacuzzi and monies expended on the water connection, the approval of the plans, the improvement to the kitchen steps and the west terrace. The latter expenses are reflected in items 5, 8 and 9 of Mr. Walters' Statement of Extras.

11 The Cranes justify their withholding of the sums they admit to be due on the contract on the basis of a counterclaim that they have made against Mr. Walters. They allege that Mr. Walters is in breach of contract in several respects. First they point to the lateness of completion and/or the failure to complete. They also claim damages for the great inconvenience in which they lived when they first moved into the house. They have also recited a litany of errors, omissions and defects that they say they had to make good. They presented bills and receipts showing the expense they allegedly incurred in remedying these defects. The exhibited bills amount to a total of $78,585.73 but there is a complicating factor regarding these bills. Hurricane Georges struck Nevis in October, 1998. The house suffered some damage and the Cranes would have had to incur some expense as a result of the damage. The bills exhibited are for goods and materials purchased both before and after the hurricane struck. The Cranes also hired the services of MorbryConstruction Company Limited to assess the cost of completing the house. In a report prepared on 28^th December, 1998, that firm costed the remedial work at $43,988.98.

12 Apart from Mr. Walters himself, only Mr. Livingstone Williams, a good friend of Mr. Walters, testified for the claimant. The evidence of this witness was to the effect that he had been to the house in the latter part of November, 1997 and had met with the Cranes who had expressed their utter delight with the house. The Cranes and Mr. Kennedy Bryan, a Director of Morby Construction, testified for the defendants.

13 In a written judgment, the learned trial Judge dismissed the counterclaim of the Cranes and gave judgment for Mr. Walters in the full sum claimed of $125,000.00. The learned Judge seems to have been very favourably impressed with the evidence of the claimant and his witness and by contrast, the evidence of the Cranes and their witness was rejected. The Defendants have appealed the Judge's findings.

14 Counsel for Mr. and Mrs. Crane listed over 40 grounds of appeal, most of them on the trial Judge's findings of facts. Many of these grounds overlap and where they do I shall treat together those that do. Some others are, in my respectful view, of too little significance to warrant any attention. Rather than examine each Ground separately, I have classified them under various broad heads. But before I look at these heads I think it is useful to allude to the principles upon which an appellate Court would interfere with the findings of fact of a trial Judge. These principles received the attention of this Court recently inGrenada Electricity Services Ltd. v Isaac Peters, Civil Appeal No. 10 of 2002 (Grenada). Writing the decision of the Court, the learned Chief Justice, Sir Dennis Byron, stated:

"……..an appellate court will usually be reluctant to differ from the finding of a trial judge where his finding turned solely on the credibility of one or more of the witnesses. This however includes an important limitation and requires the court to draw a distinction between a finding of specific fact and finding of fact which in reality is an inference from facts speciallyfound. To use different words the court must distinguish between the perception and evaluation of facts. It is in the finding of specific fact, or the perception of facts that the court is called on to decide on the basis of the credibility of witnesses. When this is the position, an appellate court must exercise caution and have a rational basis for...