Elmasry v Fada Construction Company Pty Ltd (CC65/2015) [2020] SCSC 411 (8 January 2020)

IN THE SUPREME COURT OF SEYCHELLES Reportable 1.2020] SCSC 3-S CC 65/2015 In the matter between ASHRAF ELMASRY (rep. by Frank Elizabeth) and FADA CONSTRUCTION COMPANY PTY LIMITED (rep. by Elvis Cherty) Plaintiff Defendant Neutral Citation: Before: Summary: Heard: Delivered: AshrafElmasry sesc (January Robinson v Fada Construction Company Pty Ltd ce 65/2015 1.2020] 2020) sitting as a Judge of the Supreme Court 9 January ORDER The Plaint is dismissed with costs in favour of the Defendant JUDGMENT ROBINSON sitting as a Judge of the Supreme Court J. It is undisputed by the Plaintiff and the Defendant that the Plaintiff is and was at all material times the proprietor or Sunshine Properties Limited, and that the Plaintiff and the Defendant entered into a contract, dated the 30 March 20 I0, to build a house at l.a Miscre. The contract entered into between the Plaintiff and the Defendant to build a house at l.a Miserc is hereinafter referred to as the "Contract". 2. The plaint averred that the express terms of the Contract were infer alia as follows - "i. the "HOUSE AT LA M!SERE" be built in accordance with the work and drawingsprovided by the Plaintiff II. the employer will pay the contractor the S1I1I1 a/SCR 3,488, 000.00 (Rupees three 171 ill ion four hundred eighty eigh: f housand onlv) iii. the work shall commerce 011 the lSII, April, 2010 and completed 0/1 the 181h August, 2010 IV. liquidated (//7(1ascertained damages ifwork is delayed due to contractorsfault, damages wil! be payable. where the, "mctximutn ofdelay damage shall he J 0% ofcontract price". V. the contractor shall P'')' (/11 fees Lind charges legalLy demandablefrom him in respect ofthe works and services." verbatim 3. Para 6 of the plaint averred that the Plaintiffpaid the Defendant a total sum of 5,692, I03.97 rupees, in accordance with the Contract. 4. In breach of the Contract, the Defendant failed, neglected andlor refused to complete the said building works within the specified date. Additionally, the Plaintiff averred that the building works carried out by the Defendant were defective and of poor quality as outlined below - "i. the Defendantfailed fa cony alit termite treatment he/ore commencing building; a term of which was implied within the contract. II. the foundation (!l the house was defective and in breach of both the express and implied terms outlined a/Jove. /11. the completion dale ofbuilding the house wos no/ adhered to. 11'. fixtures and fittings with regards /0 the house, 11'ere negligentlv, recklessly and/or wrongly completed. /I verbatim 5. Para 10 of the plaint averred that the Plaintiff suffered loss and damage as a result of tcrrnite infestation caused by the failure and/or negligence of the Defendant to carry out termite treatment before commencing the works. 6. Para I I of the plaint averred that the Plaintiff', on several occasions, through his company director. has informed the Defendant in writing about the delays and the defective works, but the Defendant has 1.0 dale refused, failed and or neglected to respond to the Plaintiff. 7. AS:1 result of the aforementioned, para 8 of the plaint averred that the Plaintiff had suffered loss and damage. The particulars of the damage are as f-'ollows- "i. Addit ional costsfor remedial SCR 2. 029. 094_90 works (USD ) 50, 303. 33) II. Cost of structural SCR 64.500.00 replacement. res lilted by termite activity iii. Mora! damages resulting .(rOIl1 the termite infestation and/or breach of contract (est imate) SCn 300. 000 00 iv. Cost of replacement of' SCi? 525, 000 00 fixtures and jilting 1'. Liquidated damages and SCN 348.800.00 ascertained damages for delays ill huilding works. with regards to both the house vi. Damages with regards to the SCi? 872. 000. 00 foundation ofthe house vii. PUC outstanding bill SCI? n. 43910 viii. Loss OJ'IISt' and enjoyment SCN. t. 000, (JOO00 ofthe swimming pool TOTAL sell 5,]50,834. 00" 8. The Plaintiff therefore. prays for a judgment condemning the Defendant to pay to it damages in the sum 015,159,834 rupees, together with interest and costs. 9. In a "REPLY TO REQU1~STFOR FURTHER AND BETTER PARTICULARS", the Plaintiff staled that the foundation constructed by The Defendant was defective as "if was cracked, unstable' and caused water leaks. 1O. The Defendant has, in its plea, denied any breach of the Contract. The defence denied para 6 of the plaint and put the Plaintiffto the strict proof thereof. Further, the Defendant averred ihat. at the request ofthe Plaintiff. the Defendant effected extra works, in addition to those mentioned in the Con tract and, lor wh ich the Pia ini iITeffected payment to the Defendant. The defence averred that the works were not completed on time because the Defendant effected extra works at the request of' the Plainti IT I I. Para 6 of the defence denied each and every singular averment contained in para 8 of the plaint. Ry way of further answer to para 8 of the plaint, the defence averred that- "(I) (ii) the Defendant carried out termite treatment prior to commencing the building: the foundation 0/ the building llias not defective and was constructed in a workman-like "I(lJ1I1er: (iii) paragraph .5 ofthe defence is repeated: and (iv) thefixtures andfittings in a workman-like mariner. " in respect ofthe building were completed '12. As regards the allegations contained in the report by [Vir. Angelin Confait, the defence denied each and every allegation. ~~. The Defendant has moved this court to dismiss the plaint with costs. The case for the Plaintiff 14. The Plaintiff's brother, Mr Nabil Elmasry, testified on behalf of the Plaintiff by virtue of a power ofattorney, exhibit P I. The Contract is before this court as exhibit P2. In accordance with the Contract, a quotation of 3,488,000 rupees was agreed upon for the works. 15. The first payment of thirty percent of the Contract sum was to be made upon signing of the Contract. Number 2 interim payment was to be made upon written application by the contractor/the Defendant according to the following; thirty percent or the Contract sum paid as an advance payment amount of 1,046,400 rupees. Twenty-five percent of the Contract sum paid when the foundation is completed which carne to 872,000 rupees. Retention of five percent of the Contract shall be made on the period of six months as defects liability. According to Mr. Elrnasry, these payments were made to the Defendant. 16. The vast of Mr. Elmasrys testimony was based on giving evidence 011 the amounts asked far by the Defendant (request for payment) at various times and stages of the construction of the house at La Misere. The relevant exhibits were produced for this purpose. He testified that the total amount of money paid to the Defendant was 5,692, I03 rupees, which amount included the amount l'l:lid to the Defendant far extra works undertaken by the Defendant. 17. This court interjects to state that most of the relevant documents with respect to payments emanated hom Sunshine Properties (Ptv) Ltd. The plaint contained no averment to the effect that payments were made by Sunshine Properties (Ptv) Ltd on behalf of the Phi111if'f. Moreover, exhibit P17, ~1n '~4CCOU1\'T RECONCILIATJON [ ...j CON,(''TRUCT!O}'i WORK AT DR's RESIDENCE - LA M1S'ERE - VM2 AS OF S/~P TEMBER ]8. 2U 15" referred to Sl1llsh inc Properties Lim ited. 18. T:;iscollrl returns to the evidence of' Mr. 1-::1111asry. He testified that the commencement date orthe Contract was the 18 April 20 I0, and that the completion date was meant to be the 18 August 2010, plus fifteen days extra. The works were not completed by the date stipulated, and that the works that had been done were defective and of poor quality. 19. There was no termite treatment done to the house. He referred this court to the report made by a pest control company. 20. The house foundation was not built in accordance with the specifications. The report of Mr. /vngelin Confait dated the 4 August 2015, dealt with the defects. 2 J. He also testified about a written notice of "mise en demeure" sent to Mrs. Margaret Sun of the Defendant pertaining to this case. This court interjects to Slate that the written notice or "mise ell demeure" referred to "S{{fIslril1eProperties (PIp) Ltd herein legally represented hy Mr. Nabil Elmasrv'' as being the client of Counsel, Mr. Frank Elizabeth. The plaint contained no averment with respect to Sunshine Properties (Pt,,) Ltd and llO in formation WGb' laid before this court with respect to this company. This court recalls that the plaint averred that the Plaintiff is the proprietor of Sunshine Properties Limited, and that the Plaintiffon several occasions, through his company director, had informed the Defendant in wriling that it had acted in breach of the Contract, but the Defendant has to date refused: failed and or neglected to respond to the Plaintiff 22. This court returns to the evidence of Mr. Elmasry. The Plaintiff is also claiming the sum 01'2.029,094.90 rupees for "additional costsfor remedial works"; the sum 01'64.500 rupees repre: enting the costs of "structural replacement resulted by termite activity"; the SUll1 or 300,000 rupees for moral damage resulting from breach of the Contract and/or termite infestation; the sum of 525 ..000 rupees representing the "cost of replacetnent of "fixtures andfittings"; the sum of 3LJ8..800 rupees for liquidated damages due-to the delays in the completion of the works by the Defendant; the sum of 872,000 rupees with respect to the "damages with regards (0 the foundation oj the house"; the sum of I 1,439.10 rupees reprc·;.':liing monev owed to the Public Utilities Corporation with respect bills (exhibit PIe; collectively), and the SUIll of 1,000,000 rupees enjoyment ofthe s\vimming pool. With respect to the swimming 10 outstanding for the loss or L1SC and it had pool. he stated that a rev, crac ks, that it leaked, and that it could not be made use of for qui te some ti me. ?"c ». With reference to a quotation for the construction of the house and the swimming pool, dated the 15 March 2010, emanating from the defendant, exhibit P20, he stated that the quoted amount was 3:488,000 rupees, and that the period for the works to be undertaken was four months. This court mentions that exhibit P20 was addressed to Sunshinc J'ropcrtics Ltq. 24. Mr. EI Masry also testified about a quotation for the "PROPOSED HOUSE FOR MR.. NABILELMASRY A7'MONT JOSEPHINE". dated the J Apri12011, emanating from Mrs. Margaret Sun of the Defendant. exhibit P21. This court mentions that the Plaintiff is not mentioned on this quotation. 25. Ilc testified about an invoice with respect to extra construction works undertaken M iserc in the sum or 47,ROO rupees, exhibit pn. This invoice is made out at La in the name or the Plaintiff Exhibit P22 is about "demolish workfor cutting new windows at thefront 0/ the huilding according /0 the /IeII'drawing. " 26. The Plaintiff received a quotation from the Defendant: dated the 12 August 201 I, relating to extra works undertaken at "vM? at groundfloor", in the sum of 206.000 rupees. lie testified that this quotation was paid. 27. The Plaintiff also received an invoice relating to extra work "[or VM2" dated the 28 November 20 II, emanating from the Defendant, in the sum 01'355,000 rupees, exhibit P24. This invoice was approved lor payment. 28. The Plaintiffwas asking this court to enter judgment ill his favour in the sum of 5, 150,834 rupees: together with interest and costs. .:», ')C' Under cross-examination. Mr. Elmasry n.aintuined that he made u payment amounting to 5.692. i 03.97 to the Defendant for the sub-structure of the building along with the sub structure of the swimming pool. He maintained that the start of the Contract was the 18 April 2010, and that the completion date Vi8S the 18August 2010 plus 15 days extra. Tle did accept that slight delay can happen due to certain changes that could be made to the building during the building process. The initial works were completed after one year. He stated that the Plaintiff did not notify the Defendant in writing that it was late in the completion of the project. He added that: "at that time [they] had afew projects going with Fada Construction apartfrom thisproject. So this is 11'h)' [they] didn 'tpress on/he delay". 30. With respect to the sum claimed for the loss of use and enjoyment of the swimming pool in the sum of 1,000,000 rupees, Mr. Elmasry explained why the Plaintiff was claiming this amount, as follows: "[tJhe house is rented (If )(),OOO dollars a 111011/17. /Is (he swimming pool is notfunctional 11'C could 170/ rent/he housefortwo years. SO Y01l con imagine the amount ofloss 11'(' lost. /I Moreover, Counsel made the point that the report referred to '.'finishes /0 swimming pool" and did not refer to any defects. IVIr. Elmasry reiterated that the swimming pool leaked. s 31. Under re-examination, Mr. Elmasry maintained his testimony. He also testified that he had to pay Mahc Design and 13uild 1.2 million United States Dollars to remedy the dejects of the Defendant and altogether spent 3.2 million United States Dollars. 32. Mr. I\ngelin Confaii is [Ill architectural technician. He was the Managing Director ofMahe Design and Build until he left. the company in 20 IS. When asked whether or not Mahe Design and Build had a client by the name of Mr. Nabil CJ Masry at the time when he was the Managing Director of Mahc Design and Build, his response was that Mr. Nabil EI Masry was the representative of Sunshine Properties Limited. 33. lk testified that Maile Design and Build had done some finishing jobs lor Sunshine Properties Ltd in La Misere Ma Josephine. It continued the works previously started by other contractors and undertook some jobs. All attempt was made to rely on a report done in the name of "Sunshine Prouerties", but this was objected to and sustained by this court. A:, no.cd by this court ::: the course of proceedings, the briefof the report stated, "[i]n.!lIlv lO j 2. Mahe Design (//1(/ Build ll'as con/meted by Sunshine Properties to undertake all the finishing works at Villa Masty 2, C/ 7\1"0Storey Residential House situated of A10 Josephine La Misere". Emphasis supplied. It is fundamental to note that the plaint did not contain any averment to the effect that "Sunshine Properties" had contracted Mahe Design and Build to undertake all the finishing works at Villa Masty 2, on behalf of the Plaintiff. 34. This court returns to the evidence of Mr. Confait. He testified that. Mahe Design and Bui lei did some structural replacement, but the termite treatment was done by others. Mahe Design and Build had to do excavation around the project, the building itself. He was unaware ofhow much this work costs. Maile Design and Build also repaired conduits. 35. With respect to the foundation or the house, when asked by Counsel whether or not any works were done to it, his response was, "Thefoundation not really 011 our par! because it is only) pari penetration. thor In' did, of I.... ]. There 1Fas wafer the huck of" the house because there lila.\" some water slipping through the [oundation coming inside the <) house and then that is where we have to do a new wall and waterproofbehind it so that )101f do not have the water slipping through," Verbatim 36, With respect to the swimming pool, he described the works done by Malic Design and Build as follows: "Swimming pool the structure was there bitt when the structure 11'(/S cast they did not cast the nozzle 0/' thefittings (hal goes/or the . IWil17l77il7gpool. There/ore we hove 10 pu! this and then re-plaster. " 37. When asked if he could confirm that the works done that he saw on site were defective. his response was and this court records the interaction - "well J (;0111101 SUI' it was defective. IFC went there, lind )ve did notjust go 017 site. We jl'ere contracted /01' this I,m/CCI and they hod consultant. Therefore we did work, / (/1/7 talking about Mahe Builder 110)11. )'I'edid work: and the 1!'(I/'kS I\'OS done Oil the request ofwhat fhe consultant and client wanted. , Q' But when YOII got on site .1'011 did not workfrom scratch. There 11'as work done already on site? A: No but like in the rep 01'/ sa)" the whole structure was already up. the roo/covering 11'0.\' in place and mostlv thefloor )liasdone and those things. Q: But you did work to complete what was not completed? 11, we did work which was no/ completed, at the same lime we did some worksjust to make sure that the type of finishing is what the client wanted. And we proposed somefinishes 10 the wall so that it comes acceptable /0 the client and Consultant. I" 38. He did confirm iha: Mahc Design and Build were paid for the works done; however. he could not remember how much it was paid, 1 See pages 14 and 15 of the COUI't proceeding dated 7'11 Januarv 2018 at gam !O 39. Under cross examination, when asked whether or not he had occasion to go over what was the responsibility of rhc Defendant vis-a-vis the swimming pool, Mr. Confait could not tell whether or not the Defendant was supposed to plaster or not to. He explained that he could not testify about wha: the parties had discussed and agreed to. 40. Mr. Harold Michaud, a pest controller for almost 30 years, dealing in termite control, insects control, these being structural pests and household pests, testified that he received a call from Mr. Butler Payer to fix a problem at Ma Josephine, La Misere. 41. He testified that he first went there on the 18 April 2013; he checked the premises and then stated that he went back a year later on the:?l March 2014. On that day he conducted an inspection of the whole place and wrote a report after which he was hired to do the treatment feY the: interior and exterior. He told this court that he infer alia sprayed sufficient chemical 10 deal with the termites as there was a termite infestation. The quotation of Michaud }\'st Services (PI\') Ltd was tendered ill evidence. The sum quoted by it was 64,500 rupees. 42. This court had questions and wanted to ascertain if Mr. Michaud knew where the infestation carne from and whether or not he could tell if the foundation was treated before. The response of Mr. Michaud was that he could not tell with certainty if it was treated or not, and that the infestation came from under the floor as he kept on stating. The case for the Defendant 43. The Defendant did not call any evidence or witnesses. Allalvsis and findings 44. This court has considered the evidence on record. No written submissions were offered on behalf of the Plaintiff and the Defendant. 45. This court considers the following heads or claim together- "i. Addhiol1al Cost (or remedial lvorks (US]) 150,303.33) SCR 2.029,094.90j iv. Cast o[structurrri replacement affix/ures and fittings SCR 64.500.00j vi. D!lI17((ges wi/IT regards to the fO{lfld(ltial1 aUlle house SCR 872.0()0.00" 46. Having considered the evidence in this case, this court concludes that the Plaintiff has not established heads of claim "i", "iv" and lid' of para 12 of the plaint, on a balance or probabilities. As mentioned above the plaint did not aver that Mahc Design and Build had been contracted by Sunshine Properties to do a "REPORT ON ABORTlVl ..; & REMEDIAL WORKS Ul\,'DLR7~1KEN AT VM2" on behalf of the Plaintiff Therefore, there is no evidence ill support or any of these claims. 47. In [he (,2SC. of Marie-Ange Piratne V Armano Peri SeA ](; 0(2005 (unreported), the Court of Appeal a, pare l8] of the judgment: held, "this COLli! did state in (CA 8/97) inter alia thor evidence outside the pleadings .... cannot and does not have the effect 0/ translating although not objected /0 and the reliefnot pleaded for the said issues into the pleadings or evidence Indeed l·re should reiterate here that the above quoted views of this court still remain good law". "ii. Cost ofstructural replacement resulted by termite activity SCR 64,500" 48. This court finds that the PJainLiJT has not established this head of claim, "ii. Cost 0/ structural replacement resulted by termite activity SCR 64,500" on a balance probabilities. It appears that the quotation of Michaud Pest Services (Ply) Ltd, tendered of in evidence did "not include the COSf a/any replacement structural or otherwise necessitated CiS a result ofthe termite activity or 017)' damage occurring whilst the treatment is being carried out". "v. Liquidated damages SCR 348 ..800" i2 49. This court concludes that the Plaintiff has not established this head of claim "v. Liquidated damages and ascertained damagesfor delays in building works. with regards to both the house ,,)'CR 3-18,80() (JO" on a balance or probabilities. This court attaches no weight to exhibit P18, the letter captioned, RE: SUN.')'NINF, PROPER TIL'S (pry) IJD - VILLA MASRY 2IRETAJNII'v'G WALl/': see Maric-Angc Pira me supra. In any event there was no evidence to establish any delay on the part of the Defendant. "iii. Moral damages resulting [rom the termite infestation and/or breach of Contract (estimate) SCR 300,000.00" 50. This court has concluded not proven that the Defendant has acted in breach of the Contract Thus, the Plaintiff's claim for mora! that the Plaintiffhas on <1 balance or probabilities. damage for breach of the Contract does not arise for the consideration court <)SCTVCS that. !I: 2),Y event. no evidence W,,1S led to establish Moral dWih('?,CS ieslllr;ii,\~/j'()fll SCI? 300. 000. GO" the termite infestation and/or breach ofContract of' this court. This this head or claim "iii. (estimate) "viii. Loss of use and enjoyment of the swimming pool SCR 1,000,000.00" 51. This court concludes that the Plaintiff has not proven this head of claim "viii. Loss ofuse and enjoyment oj (he swimming pool SCI? I,OOO,OOO. O()" on a balance of probabilities. There is no tangible evidence 1'0 support the allegations made by Mr. Elmasry to the effect that "[t]he house is rented at JO,OOO dollars a month. As (he swimming pool is not functional we could not rent the housefor two years". This court holds the view that serious concerns can be raised as to the certainty and nature of the SUIl1 claimed, in the absence or docu mcntary evidence, wh ieh un fortunate! y has not been forihcom ing as well. "vii. PUC O[(tst(lnding bill SCR 11439. J 0" This court concludes that the Plaintiff has not proven this head of claim "vii. PUC Outstanding bill SCR 11435/ /0" on a balance of probabilities. It is not clear to this court why the invoices relating Properties (Pry) Ltd, and emanated to this head or claim are made out Properties from Sunshine in the name of Sunshine; (Pty) Ltd. As mentioned above, there arc no averments in the plaint concerning Sunshine Properties (Pty) Ltd. The Decision 53. In light of the above, this court is satisfied thai the Plaintiffhas not proven its claims against the Defendant on a balance of probabilities and consequently. dismisses the plaint with costs in favour or the Defendant. Signed; dated and delivered at llc du Pori. on 9 Janua ry 2020 1~()bil1son siuir-::,;,!:') 3 .!udge of the Supreme Court I -I "