L.T.D. Surveying and Engineering Ltd v Francis et Al
| Jurisdiction | Saint Kitts and Nevis |
| Judge | Mitchell, J. |
| Judgment Date | 09 December 1980 |
| Neutral Citation | KN 1980 HC 3 |
| Docket Number | No 18 of 1977 |
| Court | High Court (Saint Kitts and Nevis) |
| Date | 09 December 1980 |
High Court.
Mitchell, J.
No 18 of 1977
C.F. Henville for the plaintiff.
Miss C. Mitcham for the defendant.
Contract - Architectural services — The plaintiff claimed the sum of $38,597.92 for work and labour performed at the request of the defendants. Whether the services rendered by the plaintiffs were legal. Finding that there was an implied agreement that the plaintiffs would do the work for the defendants. That the services were not legally rendered since the plaintiffs who were not registered under the Architects U.K. Registration Act 1931, were not legally competent to render architectural services. That the contract between the parties was void for illegality. That no payment would be made under the contract.
The plaintiffs claim was against the defendants jointly and severally in the sum of $38,597.92 (Thirty-eight thousand, five hundred and ninety-seven dollars and ninety-two cents) for work and labour performed at the request of the defendants and interest thereon at 61/2 per cent per month from March, 1977 to November, 1978, together with interest on $29,489.00 at 11/2 per cent per month from 1st December, 1978 until payment or judgment.
The defendants denied the plaintiffs allegations which formed the basis of the plaintiffs' claim and also counterclaimed.
The defendants in their counterclaim alleged that the plaintiffs failed to advise and or properly advise them in relation to the Paragon Heights Development Scheme and thereby caused the defendants unnecessary expense. In particular the plaintiffs purported to layout lots in accordance with a development plan for which the plaintiffs well knew or ought to have known that prior Government approval was not obtained.
The defendants further alleged that they paid the plaintiffs various sums on account totaling $7,132.00 and that upwards of three (3) years the plaintiffs failed to prepare a Development Plan acceptable to the various Government Departments and that as a result no approval was obtained and the said Development Scheme collapsed.
The defendants, also, alleged that the plaintiffs submitted a breakdown of fees to the defendants which was dated 10th January, 1978 and from that breakdown of fees from the plaintiffs were only entitled to fees of $240.00 for initial time charge shown at 1.1; $280.00 for Development Plans time charge shown at 1.4 and $120.00 for negotiations shown at 1.5 making a total of $640.00.
The defendants, therefore, counterclaimed against the plaintiffs for the refund of the sum of $6,492.00 as monies received by the plaintiffs on account, interest on the said sum and damages.
In their defense to the counterclaim the plaintiffs inter alia stated that as to paragraph 12 (twelve) of the counterclaim in which the defendants had stated that they had paid the plaintiffs various sums totaling $7,132.00 the plaintiffs admitted that they received payments totaling $4,359.00 from the defendants in respect of Paragon Heights Development. The plaintiffs, also, admitted that they received payments of $2,773.00 from the defendants but not in respect of the Paragon Heights Development.
The case for the plaintiffs was presented in the evidence of David Ensell Brazier alone, while that for the defendants was presented in the evidence of Benjamin Francis, Telca Francis and Eldon Jones.
David Ensell Brazier testified that in September, 1975, the defendants approached him to make what he described as “a submission to Government” in order to develop the lands at Bird Rock owned by the defendants as a “Housing sub-division”.
When the defendants approached him they gave him two plans which were prepared by a Mr. Rawlins. He did not make those plans himself nor did the plaintiffs' company.
David Ensell Brazier went on to state that the discussion of fees was subsequent during the same meeting and that before he discussion of fees he drew up an amended draft of a proposed development.
This course of action in drawing up an amended draft of a proposed development before the discussion of fees may be an indication as to the manner in which the plaintiffs through David Brazier proceeded in the arrangements with the defendants and the initiative which they took.
That is significant.
He goes on to state that the defendants agreed to the draft plan of the proposed development.
David Brazier said further that he then indicated that the method of remuneration would be on the basic of a scale of fees used in Barbados and that he handed the defendants a copy of those scale of fees Ex. “C”, in his office and that they took that scale of fees away and it was later returned to him.
The proposition was that the scale of fees Ex. “C” would form the basis of the remuneration to the plaintiffs and the basis of the scope of work. He said, that they agreed that that was what they would do.
If one accepts what David Brazier has said, at that point in time the scale of fees used in Barbados and no other formed the basis of the contractual relationship which he asserted then and into which they purported to have entered.
It is also significant to note that he further said and I quote:–
“There was no written agreement but only statements of account and statements of projected project costs submitted to the defendants”.
One would normally expect that in a project of this scope and size involving 24.31 acres of land according to David Brazier that there would be a written agreement setting out what was agreed upon and the perimeters of the rights and obligations of the respective parties.
He was supposed to be a person who should have known this.
It must be considered also whether the omission of a written agreement did not place David Brazier and the plaintiffs in a position of advantage and confer disproportionate disadvantage on the defendants in that, according to David Brazier, “statements of account and statements of projected project costs were submitted to them”.
The corollory emerging from that is that the defendants were, from the plaintiffs point of view liable to pay as they were presented subsequently.
According to the learned author of Hudson's Building and Engineering Contracts tenth edition and I quote:
“This is a situation in which the lack of precision in defining the work is an invitation to contractors to make claims based upon alleged variations or delay in supplying information (notwithstanding — that in tendering they could have been under no illusions as to the position) and in which the apparent bulk and complication of the documents may conceal from the employer the facts not only that the work is virtually unplanned but also that the tender price bears little or no relation to the price he may ultimately have to pay even if no special claims are made”.
The words, “architect”, or “surveyor” or “engineer” may be substituted for the word contractor in the circumstances of this case.
This obviously give rise to possible exploitation of parsons placed in the position of the defendants by persons placed in the position of David Brazier and the plaintiffs.
David Brazier in his evidence further stated that he prepared a sketch layout. He wrote letters on behalf of the defendants to the Government of the State and received replies.
He gave the defendants a schedule of the lots from lot l (one) to lot forty-three (43).
David Brazier also stated further that he submitted an amended “fee scale” to the defendants.
This particular act on the part of the plaintiffs may be significant and is within the implications of the statement previously quoted from Hudson's Building and Engineering Contracts.
David Brazier went on to state that amended fee scale which he had submitted to the defendants was particularly for the surveying of the whole scheme and in relation to all the plans submitted. Was he a Surveyor? Were the plaintiffs lawful Surveyors?
He had discussions with surveyors in St. Kitts and on the basis of those discussions he said the quantum of fees was reduced. Apart from David Brazier's saying so, there is no evidence to support this assertion of fact.
This would tend to suggest that the plaintiffs, through David Brazier, were not fully aware as to the fees which they should have charged for their services in the first instance.
The basis of the remuneration was thus changing and changeable on his own words.
The purported contract was embarked upon without there being a mutually clear definition as to exactly what those fees would be and the basis on which those fees would be computed and thus paid.
According to David Brazier the defendants had looked at the amended scale of fees but did not take it away.
It is significant to note that in relation to the scale of fees which David Brazier said that he had given to the defendants at first, David Brazier had said that they had taken that scale of fees away and that it was later returned to him. But, in relation to the amended scale of fees they did not take it away.
As an explanation for not making a written agreement with the defendants David Brazier said and I quote:–
“I did not make out a written agreement with the defendants because at that time we were in St. Kitts for only two months and were trying to get organised”.
It is to be considered as to whether this “trying to get organised” was not also applicable to the basis of the relationship between David Brazier and the defendants and whether it did not result in uncertainty as to what fees should be charged for his work in the first place and if any fees were themselves charged what was actually charged.
David Brazier received payments from the defendants sometimes by cheque and sometimes...
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