The Court of Appeal in its Inferior Jurisdiction on 29 July, 2016 overturned a decision of the Small Claims Tribunal in the case Baldacchino et noe vs Ellul. In the appeal judgement the latter was ordered to pay the sum due to Baldacchino Aluminium Works for works carried out in his place, despite claims that the works were not carried out in terms of the required skill, art and profession.
In this case, Ellul had employed Baldacchino to carry out works consisting of fixtures in his two residences – a flat in Qawra and a house in Birkirkara. This involved the delivery of windows, doors and aluminium nets by means of which he was to replace the windows and iron doors already in place. However, despite the agreement that Ellul was to pay Baldacchino an amount to be determined and paid after the completion of works, Ellul refused to pay the amount by claiming that Baldacchino did not carry out the works according to the required skill and profession and that he did not conclude the works in time, thus wasting his time and causing him damages.
The Tribunal on 11 November, 2014 upheld these claims, stating that Baldacchino was consequently not entitled to any payment due to his failure to abide by the contract. Baldacchino defended this claim by stating that Ellul never objected to the quality of the materials used and works carried out by him but rather employed him to carry out further works in his second residence. In the meantime, Ellul never removed the works already carried out at his residence but continued to make use of them.
Despite the fact that Ellul kept on chasing after Baldacchino to complete the works after damage caused by rainwater leaking into the premises, he never gave Baldacchino an ultimatum to stop the works even though they were to be completed within three months. He only took action after two years when he proceeded to employ someone else to finish them. Thus, this makes one question the true urgency of the matter. In fact, Baldacchino states that Ellul never stopped him from carrying out the works due to them being of a bad quality but rather due to Baldacchino’s failure to complete them.
Baldacchino also stated that whilst carrying out the works at Ellul’s residence, Ellul was continuously checking out his work and changing anything which was not to his liking. This behaviour may be due to Ellul’s extremely precise and meticulous nature, leading him to constantly observe his employees and double check their works himself, as testified by others. Whenever something was not to Ellul’s satisfaction, he promptly made Baldacchino aware of it and told him to fix it, however without any further complaints after this was done.
The Court said it could not understand how it was precisely at the moment of payment, that Ellul started claiming that the works were not carried out in terms of the necessary skill and profession. If Ellul was not satisfied with the quality of the work then he should have taken immediate action whilst the works were being carried out. He should not have instead accepted the works, remained silent and then complained about them when he was about to pay the sum due by him.
The Court explained that Baldacchino had a number of duties and responsibilities as acknowledged in previous jurisprudence. In fact in Proinvest Limited – vs – Giljan Agius delivered on 8 January, 2010, it was claimed that it was his duty to deliver good work independently of whether the owner approved of such works or otherwise, or of whether he abided with the specifications or instructions, albeit express, given by the other contractual party.
It has been claimed numerous times that should the contractor carry out bad work on the object forming part of the contract, he was responsible for all the damages which arose from such a bad execution. He was obliged and remained responsible to give satisfactory work to whoever employed him and he cannot allege that the work was not carried out well simply because the other party did not object to the way in which such work was delivered. In fact, it was also stated that the payment of the price does not necessarily imply approval of the work if this in fact proves to be defective.
The Court of Appeal in Muscat – vs – Cuschieri on 26 May, 2006 also stated that whoever enters into a contract is to account for the material used by him and ensure that such material is appropriate for the purpose for which it is going to be used. Furthermore, in Raphael Micallef – vs – Anthony Agius delivered on 9 June, 2004, the Court said that in terms of the general principles of law, one is to ensure that the works entrusted to him are carried out in a useful manner and not in such a way as to render it defective in time.
In Paul Tabone nomine – vs – Charles Grech et, delivered on 7 December, 2004, it was also stated that although the person commissioning the work is not to accept bad or inferior work, not even if he paid a lesser amount for it, it does not mean that payment is to be made solely if the works are perfectly carried out. This is because one would always be able to find something which could have been carried out in a better way. Yet this does not imply that a person is not to be paid for such work.
In this case, the court felt that Ellul failed to bring forward sufficient evidence to prove that the defects were of such a grievous nature as to be deemed not to have been concluded in terms of the required skill and profession. Although Ellul’s complaints were based on the premise that in his opinion the sealer and elastic on the door were not placed neatly, this was not enough to prove that such works were of an inferior quality, and carried out without the necessary skill and profession.
When taking into account the quantity of work carried out by Baldacchino, and given the fact that the works did not suffer from any substantial defects, depriving the object from carrying out its proper function, the court concluded that Baldacchino was to be paid the amount of money due to him. However, the latter remained obliged to repair any minor defects and accept any reductions in the price for any minor defects.
Av Malcolm Mifsud
Mifsud and Mifsud Advocates
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