Mr Justice Joseph R. Micallef in the case Steel Projects Limited – vs – Avantgarde Projects Limited, found on October 25, 2016, the defendant liable to pay the sum of €71,521.70 to the plaintiff. This was due to the latter for works sub-contracted to it by the defendant company.
Steel Projects Limited brought proceedings in that the defendant was to pay the balance of the price for works subcontracted by them and which had been carried out with the necessary skill and profession by the plaintiff company. The defendant company however, refused to make the payments, arguing that the structure built by the plaintiff company was not carried out properly.
This was because, according to them, the plaintiff company failed to take down the necessary measurements prior to a number of movements to be carried out on the building. Avantgarde Projects Limited claimed that this led to a number of defects being transmitted onto works of cladding which were consequently carried out by the defendant company on the structure, previously built by the plaintiff company. In fact, this resulted in some of the tiles already fixed to the structure’s facade to fall off.
When the technical expert was asked to give his opinion on the nature of the subcontracted works and the way in which these were carried out, he explained that despite the list of works carried out by SPL, the latter did not carry out any secondary structures on the original building.
On further analysis on 15 September, 2015, the technical expert concluded that the defects in the claddings occurred due to a number of factors: namely lack of movement joints in the cladding details and in the installation of boards, together with a lack of glue properly placed when the tiles were attached to the boards. However, he also concluded that SPL placed the iron structure in terms of the necessary skill and profession, according to the instructions of the architect employed for this project. Given that the original structure was built properly, it did not move because if it did move, then there would have been damage on the tiles and the walls inside.
The court explained that it was the defendant company’s responsibility to provide for any subsequent movement by placing sliding joints in the ferrings themselves or else between the ferrings and the cladding. Despite arguments raised by the defendant company in that the material used in the cladding did not allow the use of sliding joints, the court further upheld that since it was they who were placing the cladding, then it was their responsibility to verify that the structure made by the plaintiff company was good enough to allow cladding to be placed with them.
It is not an excuse for the defendant to say that he worked on what he found. Otherwise, this would go against the principle that the contractor is obliged to turn down works which prejudice the carrying out of further good works as required by the good rules of any given profession. Thus, the court concludes that SPL gave Avantgarde good works and that the arguments brought by the defendant company are unfounded.
Avantgarde also argued that they had paid the plaintiff company a sum of €85,000 and not simply €70,000 as was being claimed to be the case by SPL. However, from the evidence brought forward in this case it seems that the difference of €15,000 had been paid by Avantgarde Holdings and not by the defendant company. In fact, in an email exhibited before the court, it seems that Joseph Vella, in representation of Avantgarde Projects Limited, accepted to pay the remaining balance of €70,000.
Avantgarde also claimed that the works by SPL were not completely carried out and thus, they wanted to deduct €5,000 from the sum being claimed by SPL. This is because according to the defendants, although SPL had to put iron stairs into place, these were fixed a bit late and were not painted, with some plastic threads remaining unfixed and with the railings not being properly done. However, although it seems that SPL indeed did not carry out works on the stairs as ordered, it was not shown how Avantgarde arrived at the figure of €5,000. Thus, the court is not of the opinion that it should deduct the amount asked for by SPL.
A further €5,200 were however claimed by the defendants on the ground that they incurred damages due to SPL’s negligence, causing three huge pieces of triple-glazed glasses to break whilst the stairs was being put in place and which had to be replaced by other pieces, brought from abroad. The price of the glass amounted to €3,300, together with the expenses to rent the tower crane.
Whilst Godwin Vella, director of SPL, admitted that they were to blame in this case and accepted to make good for the damages incurred, he also claimed that only one glass was broken and not three, and he also brought proof as to where this was broken. However, no proof was brought forward that these amounted to €5,200 as claimed by Avantgarde.
Finally, Avantgarde also claimed that they were not bound to pay the plaintiffs as yet, due to a tacit agreement between the parties that the payment would be made after the contractor concludes that respective payment with Avantgarde. However, the court concluded that this claim was unfounded since it was discovered that the first payment was already made. This was paid even though the contractor instituted a case against Avantgarde for the works wrongly done.
Thus, the Court found for the plaintiff and ordered Avantgarde to pay SPL the sum of €71,521.70 due to them for works carried out in light of their sub-contract agreement.
Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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