C.A. No. 02868
NOVA SCOTIA COURT OF APPEAL
Cite as: Joint Construction Ltd. v. Bishara, 1994 NSCA 111
Clarke,C.J.N.S., Jones and Freeman, JJ.A.
BETWEEN:
JOINT CONSTRUCTION LIMITED ) Andrew S. Nickerson
) for the Appellant
Appellant )
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- and - )
) S. Clifford Hood, Q.C.
) for the Respondent
CHRISTOPHER BISHARA )
)
Respondent ) Appeal Heard:
) June 10, 1994
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) Judgment Delivered:
) June 10, 1994
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THE COURT: Appeal dismissed with costs to the respondent in the amount of $1500.00 per oral reasons for judgment of Jones, J.A.; Clarke, C.J.N.S.; and Freeman, J.A. concurring.
The reasons for judgment of the Court were delivered orally by:
JONES, J.A.:
This is an appeal from a judgment in the Supreme Court arising out of a contract for the construction of a dwelling house by the appellant for the respondent. The action was commenced as a mechanics' lien action and was brought by the appellant for the balance of the contract price plus extras totalling in excess of $31,000.00. A defence and counterclaim was filed claiming numerous deficiencies and indeed serious structural problems in the construction of the roof. The building was of unusual design. It was necessary for the respondent to retain engineering expertise in order to determine whether the building was structurally sound and what action was necessary to repair the roof. The claim and counterclaim were tried before Mr. Justice Haliburton. He allowed both the claim and counterclaim. He allowed the respondent 75% of his costs including 75% of expert engineering fees which he calculated as $9,300.00. In the result the counterclaim and costs exceeded the claim by $2100.00 and he awarded the respondent judgment for that amount. The appeal is restricted to three grounds. The first ground is that the learned trial judge did not award interest on the plaintiff's claim. It should be noted that no interest was awarded on the counterclaim. The simple answer is that pre-judgment interest was not payable to the appellant as in the result it did not recover judgment. On the second ground of appeal the appellant argues that the trial judge erred in allowing costs for engineering fees as he did not allow the respondent's claim for structural instability. While it is true he did not allow this portion of the claim it is clear that he found there were structural deficiencies in the construction of the roof.
The roof in fact became depressed forcing the side walls out of alignment. This resulted in damage to the interior. It was necessary to retain engineering advice to determine the safety of the structure. Costs were in the discretion of the trial judge and we see no error in the exercise of that discretion.
The last ground relates to the allowance of the claim for squeaky floors. The appellant contends that there was no evidence to show the cause or extent of the problem. Be that as it may no one suggests that it was not a problem arising from the construction. Allowance was made to correct the problem and on the evidence there is no basis for interfering with the decision. The appeal is dismissed with costs to the respondent in the amount of $1500.00.
J.A.
Concurred in:
Clarke, C.J.N.S.
Freeman, J.A.
C.A. No. 02868
NOVA SCOTIA COURT OF APPEAL
BETWEEN:
JOINT CONSTRUCTION
LIMITED
)
Appellant )
- and - ) REASONS FOR
) JUDGMENT BY:
CHRISTOPHER BISHARA )
) JONES,
) J.A.
Respondent )
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