Bruce Lafleur & Associates Ltd v Rtkl Associates Inc.

• Jurisdiction: Bahamas
• Judge: Barnett, C.J.
• Judgment Date: 14 August 2013
• Court: Supreme Court (Bahamas)
• Docket Number: CLE/GEN 669 of 2011
• Date: 14 August 2013

Supreme Court

Barnett, C.J.

CLE/GEN 669 of 2011

Bruce Lafleur & Associates Ltd

and

Rtkl Associates Inc

Appearances:

Ms. Debra Rose and Mr. Bandele LaFleur for plaintiff.

Mr. Keod Smith for the defendant

Contract Law - Breach — Whether the plaintiff had an agreement with the defendant — Whether the exchange correspondences contains an enforceable agreement — Offer — Counteroffer — Whether there was a contract between the plaintiff and defendant — Principles in considering whether a legally binding contract has been entered into — Intention to create legal relations — Importance of reviewing the correspondence as a whole — Contractual terms — Conduct of the parties — Damages — Quantum.

Barnett, C.J.

1 This is an action by the plaintiffs to recover from the defendant the sum of $219, 361.18 as damages for breach of contract.

2 This action was commenced 20th May, 2011. The Statement of Claim was filed on the 27th April 2012 and a Defence served on the 19th June, 2012.

3 A Case Management Conference was held on the 13th November, 2012 and directions were given for the serving of witness statements by the 31st January, 2013 and a trial was fixed for the 17th June, 2013. A pre Trial conference was also scheduled for the 15th February, 2013.

4 At the pre trial conference on 15th February, 2013, counsel for the plaintiff appeared but counsel for the defendant did not appear because he was not well. The matter was adjourned to the 4th March, 2013 at which time only counsel for the defendant appeared and the matter adjourned to the 15th April, 2013. At the hearing on the 15th April, 2013 counsel for both parties appeared and the trial date was confirmed and the 30th May, 2013 was fixed for another pre trial conference as witness statements had not yet been filed by either parties. At the hearing on the 30th May, 2013 only counsel for the plaintiff appeared and the court directed that the trial would proceed as scheduled.

5 At the commencement of the trial on the 17th June, 2013 no witness statement had yet been filed on behalf of the defendant. However, at the beginning of the proceedings counsel for the defendant for the first time made an application to join Hutchinson Development Company Limited (“Hutchinson”) as a Third Party. No Notice of Motion had been filed. The court refused the application and directed that the trial would proceed as scheduled.

6 The statement of claim was in the following terms:

PARTICULARS OF CLAIM

1

The plaintiff is and was at all material times the Design Architect for the Silver Point Project Freeport, Grand Bahama. 2. On or about the 19th day of March, 2007 the defendant engaged the services of the plaintiff by entering into an oral contract for the plaintiff to serve as the Architect of Record for the aforementioned project, to monitor that project for twenty-four (24) months, to do the Construction Documents for said project and for a re-use fee with regard to the Construction Documents 3. By terms of the oral contract the defendant would pay the plaintiff for all work performed, monitoring the project, for serving as the Architect of Record and for any and all reimbursables. 4. The plaintiff employed this skill and labour and completed all the work that it was contracted to do except for the 24 months monitoring the project. However, the monitoring of the project was only not completed because the project was suspended prior the 24 months elapsing. 5. While the plaintiff did receive one payment in respect to the contract, the defendant on or about September 2009 breached the oral contract between the parties when the plaintiff had completed all the work that was possible for it complete and the defendant failed to pay the outstanding balance owed or work completed. 6. The plaintiff made numerous demands for payment for the work completed and reimbursables, via invoice, to the defendant and upon request of the defendant sent the identical invoices to the defendant's employer on this project. 7. To this date the defendant has failed to pay the plaintiff the outstanding sum of $200, 000, which remained to be paid from the agreed fee plus $19, 361.18 for reimbursables for a total still owed of $219, 361.18. This despite repeated conversations via email and telephone in regard to assuring that the plaintiff finally getting paid. Thus the defendant has breached the terms of the oral contract entered into. 8. Further, at the request of the defendant, the plaintiff contacted the Employer of the defendant on the aforementioned project with regard to the monies owed to the plaintiff. The said employer indicated to the plaintiff by letter dated October 7, 2009 that the defendant was the party with whom the plaintiff contracted to work on said project and thus the defendant and not the employer is solely responsible for payment of the fees owed to the plaintiff. Also, the defendant's employer expressed in said letter that it never agreed to pay the defendant any service fee charged by the plaintiff.

PARTICULARS OF BREACH OF CONTRACT

Failing to fulfill the contractual agreements between the parties. 2. Failing to pay the plaintiff as agreed for work completed and for reimbursables. 3. Failing to pay the outstanding sum as agreed or at all. 4. By reason of the defendant's breach the plaintiff has been deprived the use of his own money and has suffered loss and damage thereby.

1 AND the plaintiff therefore claims from the defendant:

1

General damages 2. Interest 3. Costs 4. Such further or other relief as the Court deems fit.

7 The Defence was in the following terms:

DEFENCE

1

Paragraph 1 of the Statement of Claim is admitted. 2. Paragraph 2 of the Statement of Claim is not admitted. 3. The defendant, who provides architectural, design, planning and consultancy services, carried out early-stage design services for Hutchinson Development (Bahamas) Ltd. (“Hutchinson”) in relation to a development on a 13-acre plot of land at Silver Point, Grand Bahama. After those services had been completed discussions took place between the defendant and Hutchinson about the defendant becoming the Architect of Record for the next stage of the development. 4. One of the matters that formed part of the discussions was the provision of adequate insurance cover for the defendant. The defendant was concerned to secure cover in respect of three specific areas, namely (a) under a project policy; (b) under an indemnity from Hutchinson; and (c) by way of a limit to liability under possible law suits. The defendant made clear to Hutchinson that it would not accept appointment as the Architect of Record unless each of these concerns was satisfied. 5. As the defendant's concerns could not be satisfied, it did not accept the appointment as the Architect of Record. Instead, it assisted in the appointment of the plaintiff as Hutchinson's local Architect of Record. 6. Save that the defendant does not admit what is set out in paragraph 3 of the Statement of Claim and asseverate what is set out in paragraph 3- above, the defendant denies paragraphs 4 and 5 of the Statement of Claim. 7. Paragraph 6 of the Statement of Claim is not admitted. 8. Paragraphs 7 to 11 of the Statement of Claim is not admitted and the plaintiff is put to strict proof therefore. 9. The defendant denies each and every allegation as set out in the Statement of Claim as if the same is set out individually and transverse seriatim.

8 The plaintiff called two witnesses and the defendant elected not to call any witnesses. As I said it served no witness statement in the matter.

9 The principal witness for the plaintiff was Mr. Bruce LaFleur Sr. In his witness statement he said:

3

That I was contacted by Steve Galbreath of RTKL Associates Inc. via telephone on or about the last week of April 2007 with reference to working together again on a project. 4. That I was informed that Mr. Galbreath (hereinafter called Steve) was approached by Hutchinson Whampoa to provide Design and Construction Documents, etc for a new condominium project on Grand Bahama to be called The Silver Point Project (hereinafter called Silver Point). 5. That over the subsequent two weeks we discussed the project generally with regard to amount and the nature of the work that would be required and if my firm would be interested in being involved in the project as the local architects. 6. That I informed Steve that my firm would welcome the opportunity to work with them again under our usual condition, which is that, our involvement in the project would have to be a meaningful one. Thus we would not just stamp and sign the drawings that they produce, but that we have an active role in the design and production of the Construction Documents, as well as the monitoring process during construction. 7. That after weeks of conversation via email and the telephone both Steve and I decided that our firms would work together on this project. 8. That, after further discussion with regard to the fee for my firm for work on the aforementioned project, on March 15, 2007 I received from an email from Steve with a proposed fee agreement for my firm to do the work agreed upon. A copy of this email now produced and shown to me, exhibited and herewith marked “BL1”. 9. That the aforementioned fee proposal, after being received, was perused by myself and the two other senior members of my staff, namely Ian Fleming and Bruce LaFleur Jr.. We decided to accept the fee arrangement as we deemed it to be fair. 10. That Steve's proposed fee agreement that was forwarded to my firm also included a spread sheet showing the fee matrix. The fee matrix was dated March 13, 2007. This fee matrix clearly indicated all the consultants who were to work on Silver Point and their respective fees. RTKL's fees were also listed in the aforementioned fee matrix. According to the fee matrix RTKL's fee for CDs (Construction Documents) and CA (Construction...