G. W. Martin Inc. v Little Dix Bay Hotel Corporation
| Jurisdiction | British Virgin Islands |
| Judge | MATTHEW J. Ag. |
| Judgment Date | 20 December 2001 |
| Neutral Citation | VG 2001 HC 22 |
| Docket Number | CIVIL SUIT NO. 16 OF 2000 |
| Court | High Court (British Virgin Islands) |
| Date | 20 December 2001 |
IN THE HIGH COURT OF JUSTICE
CIVIL SUIT NO. 16 OF 2000
Mr. S. Bennett for Claimant
Mr. J. Carrington for Defendant
On February 3, 2000 the Claimant filed a statement of claim seeking damages of $9,600 for arrears of service charge on a debt owed; an unpaid sum of $2,335.00 plus interest amounting to $908.00, and costs.
The Claimant carries on the business of marine construction in the BVI and the Defendant is the operator of a hotel and a marine complex in Virgin Gorda.
By an agreement in writing executed between the Parties on August 4, 1995 the Claimant agreed to carry out certain marine works, including the removal and replacement of four piers at a Marina, for the Defendant. The contract sum was US$1,165,000 inclusive of a final payment of US$80,000.
All payments were properly made and accepted save the last and this case turns only on the final payment.
The Claimant alleges that the work was properly done and completed on February 19, 1997 and therefore the final payment of US$80,000 was due thirty days after that date.
The contract stipulated that all payments fell due upon presentation of the Claimant's invoice and that a service charge calculated at the rate of 1.5 percent per month or any part of a month would be applied to any arrears of payments due to the Claimant.
The Claimant alleges that when the Defendant eventually paid, it did not pay US$80,000 but US$77,645.77 wrongly retaining a sum of US$2,354.23 which it said was for outstanding dockage charges. The Claimant alleged breach of contract.
The Defendant entered appearance on March 9, 2000 and filed a defence on April 3, 2000. In its defence the Defendant denied that a service charge was payable on arrears of payment or at all.
The Defendant also alleged that the final payment was due and payable under the contract when it was fully performed by the Claimant and a final certificate of payment had been issued by the Architect.
The Defendant alleged that the agreed works were never fully executed by the Claimant and a final certificate has not been issued by the Architect.
The Defendant denies being in breach of contract. The Defendant admitted that the retainage sum of US$80,000 less US$2,354.23 for outstanding dockage was paid under cover of a letter dated October 29, 1997.
The Defendant further alleged that the payment was made by virtue of an oral agreement between the Solicitors of the Parties in full and final settlement of the matter between the Claimant and the Defendant.
The Defendant states that the sum of US$2,354.23 was set off against the retainage in respect of dockage charges incurred by the Claimant at the Defendant's boat yard in 1997.
On April 5, 2000 the Claimant filed a Reply and Joinder of Issue, and on the same day filed Summons for Directions. Benjamin J. made an Order on the Summons for Directions on May 3, 2000 providing inter alia for list of documents by the Parties and Inspection of Documents.
A Request for Hearing was filed on May 17, 2000. On July 31, 2001 Benjamin J. made another Order in preparation for the trial.
The matter eventually came up for trial on November 29 and December 4. At the trial Eugene W. Martin and Geoffrey Cooke gave evidence for the Plaintiff; and Roger Downing and Terrence Neale gave evidence for the Defendant.
Eugene Martin said he was director, managing director and President of the Plaintiff company and that the company are marine designers and contractors for piers etc. working all through the Caribbean.
He recalled the agreement made in writing on August 4, 1995 for a contract sum of US$1,165,000.00 where interest was payable if payment was not made.
He said he never submitted any invoice to the Architect and what actually happened is that the he presented his invoice to the Accountant's Office and they paid.
He stated that the docks were being used by the company as early as February 19, 1997 even before he handed them over to the clients on February 24, 1997.
He said he sent his invoice for the final payment on February 19, 1997 and thirty days after completion or owner's acceptance payment was due. Inspection of the works took place on February 27, 1997.
He said there was no question that the works were completed. He said by August 2, 1997 the Company's tug barge and associated equipment had been removed from the Company's property.
He stated that Mr. W. R. Williams, writing on behalf of the Company in his letter dated August 2, 1997, used his wife's boat as an excuse for not paying the amount due.
He said that by the end of August 1997 nothing belonging to the Claimant was on the Defendant's premises. He said his claim was for late payment, money wrongly deducted and costs.
When he was cross-examined he admitted that clean up was part of his responsibilities under the contract. He admitted too that Mr. Downing was listed as the Architect on the project and he was not aware the Architect was dissatisfied with his performance.
He told Mr. Carrington that he thinks Mr. Carrington is wrong to say that he did not complete on February 19, 1997. He admitted that change orders were part of the contract.
He said he does not agree that his work was not satisfactory and he also said he did not agree to waive the service charge and Little Dix agreed not to press charges.
Mr. Geoffrey R. Cooke was the next witness. He manages a small business repairing boats and carries on marine engineering for the past thirty years.
Cooke said he was hired by the Defendant on January 23, 1996 to liaise between the Claimant and the Defendant. He said he was not advised that there would be an Architect on the project although he knew that Mr. Downing came over from time to time to keep an eye on progress and standard of workmanship.
He said he was present with Mr. Downing and others at the inspection on February 27, 1997. He said that he remembers there was like a punch list which addressed details.
He would say that at that time the contract was finished, he was sure that the docks were being used.
When he was cross-examined he said he never saw a copy of the contract. It was suggested to him that not knowing the details he could not say that Martin did what he had to do.
Roger Downing was the first witness for the Defendant. He is an Architect for the past forty years. He said he was asked to inspect the works as they proceeded.
He said in the course of the contract his firm never authorized payments. He stated that when the Contractor gave notice that he had completed he inspected the works on February 27, 1997.
He said, according to his inspection, the Contractor had not completed the contract and he noted certain items and made notes on a document dated February 27, 1997 headed ‘SITE MEETING’.
He said the barge was still at the Marina and there was debris on the West side of the Marina. He said subsequent to this neither the contractor nor Mr. Cooke, who represented the owner, ever came to say the construction had been completed.
He said finally, he would not have issued a final certificate prior to these things being done, and on February 27 he would not consider the contract to be completed.
When he was cross-examined he admitted that when he inspected the site there were boats moored to the docks and the docks were used in the normal way for commercial purposes.
He stated that after February 27 he had nothing else to do with the contract and the last thing he did was to write out the punch list. He said after February 27, 1997 Mr. Geoffrey Cooke would know.
Terrence Neale, an attorney at law, who was involved in the matter was the next and last witness for the Defendant. He said before the firm of J. S. Archibald & Co. got into the picture he was trying to negotiate a settlement between the Claimant and the Defendant.
Eugene Martin bears witness to that when he said in evidence:
‘I spoke to Mr. Neale on several occasions. He tried to get my money from the Defendant. He was very helpful and very kind’.
Mr. Neale stated that from 1995 to 1997 he worked for the Defendant. He was shown a letter from J. S. Archibald & Co. written on August 26, 1997 claiming breach of contract and his letters to J. S. Archibald in reply dated September 18, 1997 and October 29, 1997. He admitted writing the letters.
He said he had discussions with the Claimant's Solicitor and he and the Claimant's Solicitor found themselves in a stale mate with Complainant claiming retention money and Defendant being of the view that the work was not completed.
Mr. Neale stated that his understanding of their oral agreement was that upon the Defendant paying the full sum of US$80,000 his clients would not go on with their claim against the Claimant.
When he was cross-examined he stated that his instructions on June 18, 1997 were that the works were completed and what was preventing payment was the removal of the Complainant's vessels from the premises of the Defendant.
He said he wrote to the Claimant's Solicitors that the works were completed and they wrote back to him saying the same thing.
He agreed that by September 18, 1997 the things were removed from the contract site and he would say, based on his letters of June 18 and September 17, all that had to be done was to pay.
Learned Counsel for the Defendant submitted that evidence of an agreement by the Parties to pay and accept US$80,000 in October 1997 is undisputed and this amounts to an accord to discharge the agreement of August 4, 1995. Counsel submitted the following authorities: BRITISH RUSSIN GATES LTD. V ASSOCIATED NEWSPAPERS LTD. 1933 2 K B 626 of...
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