Talking yourself out of a job

The judge described the builder on this project as intemperate. He was rude, aggressive, even threatening towards his client. That by itself is a serious breach of contract; serious enough for the client to describe the contract as brought to an end. Lawyers call that a repudiatory breach; this builder did not intend to co-operate with his client.

Let me tell you the story. And let me say at once that the builder sounds to me to be a competent construction man with many years experience. His name is Mr Dale and he is the owner and sole director of Safe Safe Homes. His customer was Mrs Pamela Massingham. She and her husband had bought a large detached bungalow in Rotherham and they wanted to extend it. Mr Dale gave Mrs Massingham some advice. Don’t embark on the £100,000 extension and refurb work. Instead, knock the lot down and rebuild completely. He gave her a lump-sum price of £130k and said the work would be completed in 17 weeks. Oh, and there was no need for Mrs Massingham to use an architect or any other professional because he was fully capable of doing everything himself. Mrs Massingham said “done”. They drew up a contract. There was no sign of a standard form, by the way.

Are you already beginning to draw breath, suck teeth? A payment schedule had seven milestone payments, starting with £60k upfront. Mrs Massingham said £30k. Mr Dale said okay. Then there was a hiccup with the kitchen. Mrs Massingham thought she would get a new one, and when Mr Dale said it wasn’t included in the £130k she nearly withdrew from the negotiation table.

"Well you can't expect me to work in this weather!"

Mrs Massingham got to the end of the 17 weeks but the work was far from complete. She gave a new deadline of one month beyond the 17 weeks. It was still incomplete then. The grand order of the boot arrived and out went Mr Dale’s company.

As for the Defective Premises Act, I bet the builder said, 'Never heard of it'. And as for the odd flash of temper, well, that’s life – look at Big Brother...

I bet he was furious. I bet he had seen contracts galore unfold like this one had. There were all sorts of delaying events and variations … and most builders they let them trundle on and finish in a reasonable time rather than when they said they would. And as for some of the work not being up to snuff, I bet the builder simply said it would all be OK in the end. And as for claiming more cash than might be right, I bet the builder said, it would all sort itself out. As for fitness for purpose, I bet the builder said, “What’s that?” As for the Defective Premises Act, I bet the builder said, “Never heard of it”. And as for the odd flash of temper … well, that’s life; look at Big Brother.

In his judgment, Judge Thornton took time to explain one or two things. First: are these extras really extras? A construction contract is subject to two overriding principles. These are that a builder must carry out, without additional payment, all work necessary to enable the job to be completed, even if that work has not been defined in the contract; and he must undertake all work needed to overcome any obstruction or unforeseen eventuality in order to complete the job. So, many of the “extras” were not extras at all.

Second, this contract had no extension of time clause. So, all delays apart from those caused by the client were to be accommodated in the 17 weeks deal. Bad weather is just tough luck. Third, a lump sum contract does not entitle the builder to payment until he achieves substantial completion of the work. Demanding money earlier than that is a serious breach.

The client was in truth entitled to see off the builder on the last day of the 17th week. She gave him one month extra but didn’t have to. Defective work, meaning work not to a “reasonable standard”, is also a serious breach. Repeated demands to be paid in excess of what is due is again a serious breach. All that amounted to unequivocal evidence that the builder did not intend to comply with the contract. Mrs Massingham was entitled to send him away. She claimed the additional costs of having the work completed by others. It cost Safe Safe Homes £47,000. Bet he said few more rude words.