Court orders Ħal Tarxien music club, contractors to pay each other

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Photo: Miguela Xuereb

A court ordered a Ħal Tarxien music club to pay more than €41,000 for work carried out by C. & F. Building Contractors Limited while ordering the same contractors to pay more than €47,000 in damages to the same club of music.

The case was originally filed by the entrepreneurs, however, Għaqda Mużikali band club counter Maria Annunzjata AD 1862 sued for damages.

On October 25, 2010, the music club issued a public appeal to have its premises demolished and replaced with a new building consisting of a basement and two floors. The tender has been awarded to C & F Building Contractors Ltd.

Despite the works contract attached to the public tender, the agreement was never signed and C&F Building Contractors Ltd finally started work in the summer of 2011.

In May 2012, the basement was built and the ceiling was constructed of reinforced concrete instead of prestressed concrete planks as stated in the bill of quantities, after the parties reached an agreement. In the same month, the music club had hired an architect to oversee the work.

The architect suspected that substandard concrete had been used to construct the ceiling. He then ordered that samples be taken to establish the quality of the concrete used. A laboratory test confirmed the architect’s initial suspicions.

Work by C. & F. Building Contractors Ltd was halted after May 2012 when the company issued an invoice from which the music club paid only €80,000.

Between June 2012 and April 2013, the parties held various meetings in an attempt to reach an agreement, as the band club demanded that the ceiling be removed and rebuilt, while the contractors argued that the band club had to pay the outstanding amount.

An official letter was sent by the music club in April 2013, in which it asked the contractors to make a proposal to remedy the situation. Faced with the impasse, the music club had to ask a new contractor to take over the work, including the reconstruction of the ceiling.

In February 2014, C. & F. Building Contractors sent an official letter demanding that the band club pay the amounts owed. In August of the same year, the contractors sued the music club in an attempt to recover the amount owed to them.

C. & F. Building Contractors sued for £42,720, however, the music club meter argued the work did not conform to proper building industry standards and said damage had been caused both to the music club itself as well as to third parties. . She further alleged that C. & F. Building Contractors had used substandard materials to carry out the work. The music club claimed that due to these shortcomings, the work was delayed and that it also suffered a loss of revenue. The group’s club counter argued that the amount claimed by the contractors was not due and instead sued for damages.

For their part, the contractors refuted the claims, alleging that the music club had undertaken the work when it lacked the funds to carry it out. He denied the claim for damages and said they were executed diligently.

The First Chamber of the Civil Court ruled that any contractor entering into a works contract must discharge his obligation with the diligence of a father bonus because it has cited various case law which have interpreted this principle. He said that where the person undertaking the work performs inferior work, the person is liable for the damages.

Regarding the payment, the court said that in a works contract, case law shows that it depends on the method used in commissioning the works whether it was a fixed price for each unit and in this case , the contractor will be entitled to payment for the work carried out or if a lump sum is agreed on the agreed work and in the event of faulty workmanship he will not be entitled to any payment. However, this depends on the nature of the faults that occur.

If the defects are deemed to be serious, the person engaging the contractor may refuse to pay under the remedy which allows a party to suspend its own performance, together with a right to ward off a claim for such performance until that the other party has duly performed its obligation(s) under the contract.

In this case, C. & F. Building Contractors issued an invoice for €150,000 for the work carried out. The architect of the music club had written to the architect of the contractors to inform him of the problem with the concrete used in the construction of the ceiling. The contractors were asked to prepare a work schedule to remedy the problem. In October 2012, the contractors informed the band club that the cap would be removed without asking for additional payments.

The contractors then issued an invoice which amounted to €121,148.28 in total in November 2012. The amount was not disputed by the defendants. However, the plaintiffs did not continue the work undertaken and stopped at the basement.

Additionally, C. & F. Building Contractors never signed the works contract, with the music club president saying he had been threatened by the contractors that he would not start work immediately if forced. to sign the contract.

Judge Christian Falzon Scerri, who presided over the court, observed that it was not right for the entrepreneur to use his position of power to influence the situation in a way that benefited him.

“C. & F.’s behavior was akin to that of a bully when he refused to sign the contract if the terms were not according to his whims, this also shows that the company was unlikely to undertook the work in good faith,” the court noted.

The court added that although the contractor did not sign the agreement, in its opening paragraph the tender clearly stated that those participating “fully and without restriction accept the particular and general conditions governing this contract as the sole basis for the bidding process, regardless of its own corresponding conditions, which it waives”.

The contract stipulated that the payment was to be made according to the phase completed after the architect of the music club had certified the work. This meant that C. & F. Building Contractors was entitled to €41,148.28. The amount held also carried an interest rate of 8% from December 2012.

On the music club’s counterclaim, the court observed that the music club claimed to have suffered damages after C. & F. failed to carry out the demolition and rebuilding of the premises to the appropriate standards of the ‘industry. She also raised the issue of the poor quality of the concrete used, and although she agreed to replace the ceiling, she ultimately failed to do so.

The poor execution led to a delay in the work and the music club had to find a new contractor to complete the work. In addition, it caused damage to the property of third parties. The claims were rejected by the contractors.

The court found that the old premises had been demolished using an excavator instead of being demolished manually as stipulated in the contract. It also emerged that workers were not working in accordance with health and safety rules. Moreover, until at least five months after the start of the project, the contractor did not perform the work as required by the agreement.

The workers employed by C. & F. Building Contractors did not have the necessary tools to carry out the work and this concrete was prepared on the site instead of being brought in ready-made.

“All of this shows that C. & F. Building Contractors were negligent in their work and ignored the law, regulations and obligations owed to the music club,” the court observed.

The court found that the work performed by the contractor did not conform to appropriate industry standards. It then calculated the amount of damages caused to the music club and condemned C. & F. Building Contractors to pay the music club €47,504.87 in damages and interest together with an interest rate of 8% which began to run from the day the judgment is pronounced.

The parties were ordered to share the legal costs.

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