BUILDING CONTRACT

Dominion, Volume 13, Issue 19, 17 October 1919, Page 2

BUILDING CONTRACT

COMPLICATED CASE

REFERRED TO ARBITRATION

The Pull Court'was engaged yesterday in-hearing the case of James Beagley and Hamilton, of Napier, building contractors, ' v.. the Arcadia Picture Company, Ltd., of Dannevirke. On the bench were His Honour the Chief Justice (Sir Kobert Stout) and Mr. Justice-Hosking. ■ • • Mr. 0. P. ' Skerrett. K.C., ( with . him Mr. T. H. G. Lloyd, of Dannevirke, and Mr. 11. Cooper, of Palmerston North, appeared for Beagley and Hamilton, and Sir John Findlay, JC.C.-, with-him-Mr. 11. Gifford.Moore., of Palmerston North, for Iho Arcadia Picture Co. , ■This- was an action brought by Beagley and Hamilton, building contractors, against the picture company ill- tho Supreme Court, and the case was heard by Mr. Justice Chapman. No judgment was delivered, and Mr. Skerrett moved according to arrangement on behalf of the plaintiffs for judgment. i The statement of .claim set out that nlaintiffs entered into a contract dated December 21, 1917, for the erection of a ; picture-theatre and shops, in Dannevirke at the price of X 10.517, the. plaintiffs supplying the material. _ Tho work was completed by the plaintiffs on. November 9,, 1018, with the exception of certain 'decorative' 'tiling,, and certain authorised extra work was done. Tho defendant's, architect, Mr. A. I!. Allen. gave plaintiffs a certificate of completion, on November 9, 1918, .which certificate incidentally authorised the immediate payment of ,£Gflo to tho plain-and-that the total amount of live valuo of all work done ; inclusive of .€231 19s. 3d. for- decorative tiling yet to be affixed and less . authorised deductions, was -(-10,061 17s. lOd. Plaintiffs had received by way of. pr,ogress'payments suni'a totalling, .£6900,- 'leaving a balance of *?761 175... lOd. The plaintiffs claimed a lien for the above sum of ,03761 17s. lOd. upon the land upon which the theatre had been built, subject to a mortgage to the-Bank of Australasia to secure.current .account, and' interest.' A notice of claim of lien Was served on..,defendants on November 27. 1918. It was claimed that. the. defendant company took no steps to see that the claim was' satisfied, but with a view.to defeat or delay the claim did, it was' alleged, wrongfully attempt to prevent the architect from issuing, a certificate of completion, and in consequence of such issue wrongfully purported to dismiss the architect, and purported to. have appointed, another architect. Plaintiffs prayed that a declaration miglit.be made that they were entitled to the lien on the land for ,£3701 i's. 10d., and thnt'iudgmelit he given for them for , jEfiOO'with. interest from November' 23, 1918, down to dato of judgment.. Also that they.were entitled to recover .£3OO retained as maintenance money and 75 per cent. of. .£2.11 193. 3d. on completion of defcorative tiling. The defendants in llioir statement denied that the plaintiffs wero- entitled to receive . JE3761 ,17s. lOd. The defendants also denied the claims of the nlaintiffs with respect to the issue; of the certificate of completion and the dismissal of.' the architect. As a. further dcfencs it' wag' claimed v tliat the architect was merely a servant of the company engaged to supervise the completion of tlie building, and had no authority to_ give any certificate of completion of the building, and that the was not completed by December 9, but was abandoned on that; date, and the company had been compelled to take over the contract arid hiivo same "completed. Tho-plaintiffs filed an amended statement in which it was declared that they were wrongfully, excluded from the-mum-ing at a'time when certain extru vlrk and maintenance work was in prog. Which put' it out of the pciwer of t>U ntiffs to-proceed any further, aj)« wr.mr,fully forfeiting' the contract, .ihe Dltiyitiffs asked to' be relieved of f maintenance of the works; they claimed that, the a''"hitects -.j ficnto of. November 9, 1918, was not completion: certificate, but onf r S bnlv;' that accounts' be tak the" parties'; 'Hint the-lien over u.e mm. be 1 granted; artd-that- judement be given for' tho'tbtal' vklue of all 'work, J a \ )Q . ur arid materials supplied and expended by plaintiffs up to December.9,' 1618. ori an implied contract, less any money paid an' amended statement of defence in -which it was claimed that, the architect 'was- merely a scrvantjf- the compnnv; it was further aUeßcd that the architect, had toll m J« llus » n " (he plaintiffs when he gave tho certificaK well knowing that the building and woil. Mid not been completed, and ing that the' accounts accompanjing tlio certificate were not correct. The, defendants counler-clnincd for i£lsGl 16s. >7d., amount alleged to nnto been expended by them on |^ e Hon of the' contract, and clairnwl to set off that sum against the ® c |®™ of .£3761 17s. 10(1., and that they were entitlctl to retain £300 for a space-of CO davs as a maintenance fund. The plaintiffs filod a defence to tho defendants' counter-claim, and denied that thev and tlio architect wero m col lusion, and declared that .the eiveji by the architect were honestex pressions of his opinion- on matters cerBfled br him. Thev claimed by way of value of the work, labour and materials £12,103' 165., less the amount paid on tt °Th U e"action was originally b | u Siinreme Court, Palmerston ind tho S hcavinKM i cupiS G 6iTclays'! when claims, amended claims, and claims of the parties, that the contract was wrongfully put an <na by tho defendants, and P lal^ ,ffs therefore entitletl to claim "P<™ v'V bin meruit. Tho defendants had liwt heir'Tm dy-fo'r damage* bT their wroii'' action. He sugges ed that this mate ought to be submitted to a ro--Sir John Findlay said he was prepaml to recommend his clients to accopt t, • b„t Kewould have to. «ih them. Tho ca6e wns adjouincd uiitl 3 o'clock in tlie afternoon, '« n f ing Mr. Skerrett announce<l that counsel ment according to tho terms of the settle ment.' . •