Gordon Winter Company Ltd v NH International (Caribbean) Ltd

• Jurisdiction: Trinidad & Tobago
• Judge: P.A Rajkumar JA
• Judgment Date: 27 October 2023
• Neutral Citation: TT 2023 CA 68
• Court: Court of Appeal (Trinidad and Tobago)
• Year: 2023
• Docket Number: CIVIL APPEAL NO. P-002 OF 2018

Between

Gordon Winter Company Limited

Appellant/Claimant

and

NH International (Caribbean) Limited

Respondent/Defendant

PANEL:

N. Bereaux JA

M. Mohammed JA

P.A Rajkumar JA

CIVIL APPEAL NO. P-002 OF 2018

CLAIM NO. CV 2006-03875

IN THE COURT OF APPEAL

APPEARANCES:

Mr. Ian Benjamin S.C, Mr. Keston McQuilkin, Ms. Tamilee Budhu for the Appellant

Mr. Jason Mootoo, Mr. Byrne for the Respondent

Table of Contents

Background	4
Conclusion	5
Analysis/Summary	8
Whether a contract came into existence Contractual interpretation	10
The Contract Document	11
The Manuscript Insertions	12
Certainty of Terms	12
Whether a contract came into existence	13
Subject to Approval	14
NHs Domestic Sub Contract Terms	16
Whether 1999 FIDIC Terms applied	17
Formation of a contract — Law	18
Terms	21
Summary Factual Background on Site	24
Summary of the Witness Statement of Mr. Jardine	24
Detailed Chronology	26
Mr. Jardine's Witness Statement — Detailed Chronology	28
Settling of Pile Driving Criteria	30
Production Pile Commencement	31
Increased Costs	33
Alternative Source of 6500 psi piles	33
Manufacturing Plant	35
Standby onsite	35
Augering	36
Manufacture and Installation 6500 psi piles	37
Pile Storage	41
Summary of Mr. Williams' witness statement	42
Whether respondent was itself paid for extra works	45
The Expert Evidence — Soil conditions and foreseeability of need to increase pile strengths	46
Delay	47
Buildability	48
Difficulties in Construction and whether the design is buildable	49
Causes of Delay	58
Whether the appellant breached the contract by i) failing to proceed with the works with due expedition ii) failing to execute the works in a workmanlike manner to the respondent's satisfaction or iii) abandoning the works thereby repudiating the contract	58
Whether the appellant in breach of contract	59
The Respondent's Case	59
Breach of Contract — Abandoning the Works	59
Breach and Repudiation	60
Law — Unjust Enrichment and Quantum Meruit	62
The Appellant's claim — Quantum	66
Pile Manufacture	69
Manufacturing Standby Costs	69
The Pleading Point	70
Storage Piles and Materials	71
Pile Static Testing	74
Terminated Static Test	75
Standby Static Test	75
Law — Proof of Special Damages	76
Standby Piling Rig	79
Standby Augering Equipment	79
PDA testing	79
Production Piles	80
Augering	81
Late Payment interest	82
Counterclaim	82
i. Alleged Delays by the Appellant	83
ii. Claims for Additional Tests	84
iii. Additional Costs to Complete Works by Pres-T-Con	84
iv. Alleged Costs of Breakage to Piles	84
v. Alleged Overpayment	84
Conclusion	85

Delivered by P.A Rajkumar JA

Background

1 The appellant claims for sums allegedly due and owing as a result of work allegedly performed under an agreement with the respondent. That work involved the driving of piles into the ground as a prelude to the construction of a new office building for the Ministry of Education. The respondent was the main contractor for the construction of that building. The appellant was the respondent's sub-contractor. The appellant received four payments but ceased work on the site in early June after its claims for payment for some works were not agreed or met.

2 It claims that it had no contract with the respondent and as a result it was entitled to claim on the basis of a quantum meruit in respect of various matters considered in further detail hereinafter.

3 The appellant contends, inter alia, that:

• a) unexpected site conditions caused the specification for the piles required to be altered from 5000 pounds per square inch (PSI) (the initial specification) to at least 6500 PSI,

• b) it was entitled to payment for any altered specifications, scope and methodology as a result, and

• c) it was entitled to costs occasioned by delays that resulted from the numerous tests that had to be conducted on site during which its staff, plant and equipment were on standby.

4 In its pre action protocol letter 1 dated July 19, 2006 it claimed that the quantum of its claim was to be assessed or in the alternative the amount due was $2,734,023.04.

5 In the statement of case, it attached under cover of letter dated April 31, 2006 its claim summation totaling $5,357,580.77. That figure represented its “costs buildup for both

current and future activities to be incurred by the appellant 2. The full extent of its claims will be considered further

6 Despite the volume of documentation produced the issues can be identified as including the following:

• [i] whether there was a contract between the appellant and the respondent;

• [ii] if so what terms of the contract can be identified as relevant to the claims;

• [iii] whether the appellant was entitled to be compensated on a quantum meruit basis or any basis for work allegedly performed or expenses incurred for any matters not the subject of the piling contract;

• [iv] if the appellant was entitled to be compensated for work performed or expenses incurred by it what would be the quantum of such compensation;

• [v] if there was a contract, whether the appellant or respondent repudiated the contract.

• [vi] if the appellant repudiated the contract whether the respondent would be entitled to damages under any of the heads of damage in its counterclaim.

Conclusion

7 As to issues i. and ii. above a contract did come into existence between the appellant and respondent. The relevant terms of the contract were to be found in:

• [i] the invitation to tender dated November 8, 2005 and the tender specifications supplied therewith, (which indicated that the form of contract was FIDIC First Edition 1999 with amendments);

• [ii] the appellant's adjusted unit rates under cover of letter dated November 22, 2005 issued by the respondent;

• [iii] the respondent's letter of intent dated November 22, 2005 (the letter of intent); and,

• [iv] the appellant's acceptance thereof by its signed and returned letter of intent.

8 The appellant's own quoted terms in its revised quote submission dated November 22, 2005 3 specifically accepted and recognized under the rubric “Conditions of contract” that FIDIC (copy to be issued) was to apply. It was therefore understood by both parties that the 1999 FIDIC standard terms, (even though they were not amended), were incorporated by reference. By the letter of intent dated November 22, 2005, and its acceptance by the respondent the contract also incorporated the“ Main Contract specifications and drawings as they related to the Sub Contract works” 4 and “Sub Contract conditions” based upon the respondent's standard Domestic Sub contract terms which were to be amended to suit the agreement between the appellant and respondent 5 but apparently never were. However, i) it was stated therein that they did incorporate certain provisions of the Main Contract terms which were based on the 1999 FIDIC form of contract for building and engineering works designed by the employer, ii) they were specifically available for viewing at the respondent's head office whether or not the appellant chose to do so.

9 The works under that contract were varied for example by the instruction from Turner Alpha on February 13, 2006 to alter the specifications for the piles. In fact, the appellant itself understood that the respondent's agent's site instructions potentially constituted variations to the scope of works 6. Although no figures were agreed, in principle those variations, delays and extra works occasioned thereby, if under the piling contract, entitled the appellant to compensation for performing them, if not agreed, in a reasonable sum at market rates. Further, a mechanism existed under the contract identified above for the valuation of varied or extra works.

10 There is evidence that no payments had been made by the respondent after April 2006, despite its requiring work to be done under the contract to specifications that were different from those originally provided under the contract at inception. However, while the respondent may therefore arguably have been in breach of contract, the appellant did not utilize the specific procedures for termination under the contract. Accordingly,

when it demobilized from the site in June 2006 it did so in breach of contract. Its termination was therefore unlawful and constituted a repudiation of the contract

11 However, some of the appellant's claims for example, inter alia, for manufacturing standby and storage do not relate to works for matters under the piling contract. In relation to those, it needed to be established whether they were recoverable on the basis of unjust enrichment on quantum meruit.

12 With respect to issue (iii) relating to the appellant's claims for:

those claims are not maintainable a) either on a contractual basis (because they are not the subject of any contract) or b) on a quantum meruit basis (because no benefit or enrichment to the respondent has been demonstrated). On their face they are both solely claims for alleged loss by the appellant and therefore not in principle recoverable under a claim for unjust enrichment on a quantum meruit basis. They are therefore rejected in their entirety.

• i. manufacturing standby;

• ii. storage of piles and other materials;

13 With respect to issue (iv) relating to the appellant's claims for i. standby auguring, ii. standby piling and iii. standby static testing, those are claims that arose directly out of the piling contract and were incidental to its performance. Further, they were capable of measurement and valuation thereunder. Therefore, they were not capable of constituting separate claims for...