Ascent Projects (Pty) Limited v Mona Rose (CS 93 of 2020) [2024] SCSC 184 (17 October 2024)

Ascent Projects (Pty) Limited v Mona Rose (CS 93 of 2020) [2024] SCSC 184 (17 October 2024)

IN THE SUPREME COURT OF SEYCHELLES


 

Reportable

 

CS93/2020

 

 

ASCENT PROJECTS (PTY) LIMITED Plaintiff

(rep. by Guy Ferley)

 

and

 

MONA ROSE Defendant

(rep. by Joshua Revera)

 

 

Neutral Citation: Ascent Projects (Pty) Limited Mona Rose CS 93/2020) [2023] (18 September 2023).

Before: Vidot J

Summary: Breach of Construction Contract; non-payment of fees for work executed; rescission of contract

Heard: 28-03-2023, 03-05-2023, 28-09-2023,07-02-2024, 03-04,2024,05-06-2024

Delivered: 17 October 2024

ORDER

 

Judgment entered for of the Plaintiff against the Defendant in the sum of SR1,585,634.77 with interest and cost and Court makes an Order of rescission of the construction agreement

 

RULING

 


 

VIDOT J

 

 

Background

 

[1] On 15th June 2017, the parties entered into a construction agreement whereby the Plaintiff agreed to build a house for the Defendant. In fact the house consisted of 2 apartments consisting of three bedrooms on the ground floor and another of two bedrooms on the first floor. The contract price was SR2,329,666.00 consisting of both labour and materials. It was a term of the contract that the Plaintiff would complete the works within 12 months of the commencement of the contract.

[2] It was a further term of the agreement that the parties needed to give notice in writing for any modifications to the works.

[3] Clause 9b of the contract places an obligation the contractor to issue to the Defendant invoices in accordance with the Bill of Quantity. Such invoices was to be issued a minimum period of once a month. The Defendant thereafter has 14 days within which to honour the invoice.

[4] The Plaintiff started works and concluded that additional works had to be undertaken such as breaking of rocks and building retaining walls. The same was done. The Defendants paid the first invoice but thereafter despite repeated requests, failed and refused to make further payments, thus giving rise to this matter.

The Plaint

[5] The Plaint avers that the building was to be constructed on parcel J1540, situated at Bel Ombre, Mahe. The Defendant is the owner of the land parcel. The Plaint further identifies the contract price as quoted above. The Plaintiff alleges that they started construction and in fact completed in excess of half of the construction works. On 08th February 2020, the Plaintiff issued a certificate for the sum of SR1,585,634.77. Since payment was not forthcoming, the Plaintiff issued several reminders demanding that the Defendant settles the invoice. The Defendant has still refused to make payment. Therefore, the Plaintiff declares that it is desirous to have the contract rescinded for the breach on the part of the Defendant and that the latter pays the sum of SR1,586,634.17 with interest and cost.

The Defence

[6] Initially, despite service being effected the Defendant did not put up appearance in court nor did she elect Counsel to represent her. Therefore, the case was fixed ex-parte. After the evidence was recorded, on 03rd May 2023, the Court conducted a locus in quo at Bel Ombre to appraise itself of the works done. The case was called on for filing of submission by Counsel for the Plaintiff. After that, the Defendant appeared and asked for Court to allow her the possibility of negotiating a settlement with the Plaintiff. Counsel for the Plaintiff agreed to that but despite many months of negotiations, no settlement was reached.

The Evidence

[7] The Plaintiff called Mr. Rajesh Pandya as witness. He is the Managing Director of Ascent Projects (Pty) Limited. He testified about the building agreement between the parties and produced the same as exhibit (Exhibit P1) for the construction of the said building. The construction price was SR2,329,666.04 for both material and labour. The Plaintiff testified to some delays that was encountered at the Seychelles Planning Authority (SPA). The Plaintiff needed to revalidate the building application as the terrain had a lot of rocks. The necessary blasting of rocks and construction of a retaining wall were additional works for which an invoice (exhibit P3) was raised for payment. The Defendant settled payment for such work.

[8] Work on the building started in November 2017. Thereafter, the Defendant made changes to the architectural drawings. These had to be resubmitted to the SPA for approval. The amendments were made in 2018. The Plaintiff carried on with the work and it is alleged that at the time they ceased construction works, the building was seventy percent complete. On the 08th February 2020, the Plaintiff issued to the Defendant a “Payment Application” (exhibit P6). On 01st May 2020, the Defendant issued an email to the Plaintiff requesting that they proceed with the construction on the house and will settle the invoice when situation in Italy permitted. During that period the Defendant was residing in Italy. By an earlier email of 18 March 2020 (exhibit P8) she had explained that she had intended to fly to Seychelles in March 2020, but due to the Covid 19 restriction she could not travel as there were no flights between Italy and Seychelles. That email was in response to an email issued by the Plaintiff to the Defendant reminding her of several reminders sent regarding payment and stating that they were to stop all works on the project.

[9] On the 14th May 2020, Counsel for the Plaintiff addressed a letter to the Defendant putting her on notice that unless payment was received within 14 days of that letter, the Plaintiff will initiate legal proceedings. On 25th May 2020, the then Counsel for the Defendant, Mrs. Amesbury, responded by a letter wherein she claims that the construction agreement has been frustrated by an act of God. That was the Covid 19 pandemic and that banks in Italy were not authorising making international monetary transfers. Therefore, the Defendant found herself in a difficulty that was not of her doing.

Discussions

[10] Counsel for the Defendant was allowed to make written submission. The Court did not receive submission from the Plaintiff. It is non-contentious that the parties entered into an agreement of construction of “a Three Bedroom House on ground floor and Two Bedroom House at first Floor and Retaining wall” as shown on architectural plan. For all intents and purposes the Court considers the agreement as a valid contract. Counsel for the Plaintiff produces as exhibit the original architectural drawing but took it back and promised Court to make a copy of the same available to Court. That promise was never carried out. The only dispute between the parties is the payment for work done and Mr. Revera, Counsel for the Defendant also disputes the quality and workmanship of the work and the percentage of work already performed.

[11] I feel that at this stage of proceedings the Defendant cannot challenge the quality of work. The Defendant never put up appearance nor brought any witness to give evidence in rebuttal in regards to the workmanship. I remind myself though that it is for the Plaintiff to satisfy Court on the balance of probabilities that the Plaintiff constructed 70% of the building work. However, the Court conducted a locus and was able to see the quality of workmanship. However, unless something was flagrantly wrong, the Court does not have the competence to evaluate construction works. Nonetheless, the Court noticed some works that could be considered as not being of an absolute high quality. However, the Court has to bear in mind that construction works were incomplete and had stopped some while before and the elements would have affected the quality of construction..

[12] The argument that due to Covid 19 the Defendant was unable to make payment as banks in Italy was not entertaining foreign currency transfers no longer has merit. The situation has changed. It is more than two years now that the world is no longer under lockdown. Therefore, the Defendant could have settled payment of the invoice. In fact, after the Defendant appeared in Court after the case was heard, she asked for time to work on a settlement whereby she would pay by instalment. The Plaintiff had shown good faith in acceding to the Defendant’s request. But such good faith was not reciprocated.

[13] The Defendant further submitted that the rooms of the house were too small. This argument has no merit. The construction needed to be in conformity with the architectural drawings and unless there is evidence adduced that there was deviation from the architectural drawings, the Court cannot entertain such argument.

Determination

[14] The Court notes that there was no agreement for the extra work that was performed. The Agreement of the 15th June 2017 was for the construction of the house and retaining wall. From exhibit 5B the sum of SR46,382.00 additional rock breaking was settled by the Defendant and as per exhibit 5D, an additional sum of SR177,773.20 was also settled. That was additional work for suspending slab. Since these invoices were settled despite no contract for such work, the Court can only conclude that the Defendant agreed that there was performance of such work. The Plaintiff further produced Exhibit P3 for the sum of SR281,649.20 which was for additional work (rock breaking) which too has been settled. It was within the Defendant’s prerogative to refuse payment of such sum since contrary to the agreement the Plaintiff did not reduced these additional or modification of works into writing. In the least, no document was produced to establish the same.

[15] The Plaintiff also produced an invoice for the sum of SR1,582,634.77 being the sum for the construction of the house and retaining wall as per architectural drawing. Such evidence remains uncontroverted.

[16] This Court further finds the agreement did not sufficiently detailed as to obligations of either party. This hinders the Court in making an assessment of the percentage of works done. Though, the agreement states that the Plaintiff had to provide materials it does state whether sanitary wear, tiling, cabinetry and wardrobes are included in this contract price. If that was the case, the Court would be hesitant to accept the quantum being claimed.

[17] In evaluating the agreement, I remind myself of Article 1134 of Seychelles Code of Civil Procedure which stipulates;

Agreements lawfully concluded shall have the force of law for those who have entered into them.

They shall not be revoked except by mutual consent or causes which the law authorises.

They shall be performed in good faith”

[18] The Court has no cause to decide that the agreement was not lawfully concluded. I further find that it was being performed in good faith.

Conclusion

[19] The Plaintiff has pleaded that they wish to have the contract rescinded and for damages for works already performed, but has not prayed for rescission in the prayer of the Plaint. However, the Court considers that as is, the Plaintiff cannot continue with the work since there has been no undertaking from the Defendant to settle payment for works already performed. However, the Plaintiff has prayed that the Court makes any order that it deems fit and reasonable in the circumstances.

[20] Therefore, in terms of Article 1184(4) of the Civil Code of Seychelles, this Court hereby makes an order of rescission of the agreement dated 15th June 2017.

[21] I enter judgment in favour of the Plaintiff against the Defendant in the sum of SR1,585,634.17 with interest from the date of judgment with cost


 

Signed, dated and delivered at Ile du Port on 17th day of October 2024


 

____________

Vidot J

 

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