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ROGER and Susan Stapleton

DEFENDANT

DECISION AND ORDER

Adjudicator:David T.R. Parker

                                             Decision: May 14, 2009

Counsel: Stephen Boyce represented the claimant

Roger and Susan Stapleton were self represented

Pleadings:

The claim:

This claim is for "nonpayment of materials and labor" in the amount of $10,937.68.

The defence:

The defendants stated the claimant has been paid more than it was entitled to receive under the contract. "The contractor/claimant did not complete the work as set out in the contract. The contractor/claimant is asking for extras to the contract which were part of the original contract and never agreed to by the defendants"

The Counterclaim:

The defendants counterclaimed for $25,000.00 "for remedying the deficiencies and unfinished work and for time spent by the defendants to complete the contractor's/claimant’s work and to arrange for subcontractors. Also for lost wages."

Prior to commencing the hearing of this matter, the procedure of the Small Claims Court was explained to the parties. The parties were asked if they wish to amend the pleadings and there was no request by either party for changes. The defendants were provided time to examine the claimant’s book of exhibits.

Facts:

The parties entered into a purchase sale agreement for the construction of a new home.

Part of the contract between the parties stated that any changes to the specifications in the original agreement were to be signed by both of the parties as to change and the costs.

There were a number of changes referred to as extras which were not signed by the parties.

There were a number of deficiencies that ranged in amount from $2500.00 plus a possible $342.00 as indicated in the defendants closing correspondence from their counsel at the time, to an amount of $45,012.35 contained in a quotation from Wee Will Contractor Limited.

Analysis:

The defendants argued that any extras were to be agreed to before proceeding and that they made this clear to the claimant and to the trades people hired by the claimant. The defendants suggested the contract is clear and any changes had to be agreed to between the parties. The defendants suggested that any costs they incurred was due to the claimants own neglect and lack of involvement and interaction with their trades people. Any additional and unwanted costs that they may have incurred are their responsibility alone.

The defendants did receive the extras as enumerated in exhibit C-2. In the invoice of the claimant many of the extras were requested by the defendant in discussion with the trade’s people who were hired by the claimant. These were not extras that the claimant took on himself to do to the home. The claimant argues that the defendants refused to sign the change orders with respect to these extras. Even if I accept this as correct, the defendants did receive the benefit and  requested these changes. The total amount on the final invoice was $12,183.09. In making up this total the claimant added a 15% markup and based on the evidence of the claimant that if it had been paid on these extras in the beginning the markup would not have been charged and based on the fact that there was no agreement to charge this markup at any time I would reduce the $12,183.09 by 15% or $1827.46 leaving an amount of $10,355.63 for extras plus HST of $1449.78 for a total of $11,805.42

With respect to the deficiencies as counterclaim by the defendants I accept the amount as described in the defendants’ solicitor's letter and not the amount of contained in the quotation of Wee Will Contractors. The amount is unsubstantiated as there was no testimony provided by Wee Will Contractors Limited and further it was challenged by the claimant. It also involved items beyond what would be considered a deficiency. The Atlantic New Home Warranty involvement was part of the evidence before this court as to what deficiencies were involved and it is my understanding that the defendants accepted a settlement of $3000.00 from Atlantic Home Warranty. As I accepted the amount for deficiencies as contained in correspondence of the defendants’ solicitor which amounted to less than $3000.00 the result would be that nothing is now owing to the defendants in terms of deficiencies.

The counterclaim for lost wages of the defendant to attend to his home during its construction has no merit or evidentiary support.

Decision:

The claimant will be awarded $11,805.42 plus it's costs and the counterclaim against the claimant will be dismissed

IT IS THEREFORE ORDERED that the defendants pay the claimant the following sums:

$11,805.42

$    174.13

$11,979.55 total

IT IS FURTHER ORDERED that the counterclaim against the claimant be dismissed with no order as the costs.

Dated at Halifax this 14th day of May 2009.

                                     ________________________

                                     David TR Parker