Supreme Court Judgment Reserved In House Dispute

Press, Volume XCIX, Issue 29324, 1 October 1960, Page 11

Supreme Court Judgment Reserved In House Dispute

Judgment was reserved by Mr Justice Macarthur id the Supreme 9° 1 ? — y estorday in a claim by John Francis Wadman for £306 pursuant to an arbitration award * rl ™“ a dis Pute over the buildirm of a house,'against John McPherson Middleton and Weronika Middleton.

Wadman also sought to have the contract to build , rescinded ® n the ground the Middletons ha .d r< S u *?d to be bound by it M Mr ivr P 'ir l 'tXo.u lpers- him Mr M.-F. Hobbs, apoeared for Wadman. Mr J. G. Leggat appeared for the Public Trustee. T S u- St w“)2S administrator of John Middletons affairs. Weronika Middleton conducted her own case. .

His Honour said he hoped to give his judgment before the end of next week.

When Mb Alpers continued his cross-examination of Weronika Middleton yesterday, she told the Court that in April and May. 1959, when Wadman was asking for progress payments, she and her husband already considered themselves freed from the contract.

Middleton said she considered the contract had already been rescinded by Wadman. She and her hurfland did not know that Wadman was claiming by arbitration. They knew arbitration was provided for in the contract. His Honour: Why did you not take your complaints to arbitration?

Witness: We did not think we were Obliged to carry out any more of the contract. Plaintiff Recalled

Recalled to give evidence in rebuttal, Wadman said the supervisor of building, R. E. Smith, bad ordered all the outside joinery for the building, including th» window frames to which the Middletons objected as not according to specifications.

No complaints were made to him, witness said, about cracked tiles. No sap timber was used in the building. Wadman said he accepted £l9BB 3s 2d as a reasonable value of the work and materials -he had put into the house and for which he had been paid £632 by the Middletons,

The valuation, bv C. ft. Gee, master builder, nut in bv Mr Leggat. deducted £3O for deterioration but Wadman said he would not agree to that sum being deducted as he did not admit any liahiiitv for deterioration. Mr I-egg’t called no evidence for the first defendant. John M’ddleton. He said his election to call no evidence was concurred in by the second defendant Weronika Middleton.

In her own defence. Weronika Middleton submitted that her evidence showed clearly that Wadman had broken the contract before the notice of arbitration was sent out. The contract was to build the whole house. Wadman had broken the contract, therefore if she and her husband wanted to buy the incomplete house they could buy it at their price. They would not pav £2022. or £l9BB. Therefore, if Wadman wanted that money for it he should remove it from their section and sell it for that sum if he could. Judge Interposes

His Honour interposed, lest Weronika ■ Middleton should misunderstand the law in the case. “Getting right down to essentials. the evidence appears to show £ 1988 worth of work and materials have been put in the house on your section.” he said. “W«|dman has been paid £832 of tha<t amount by you. Even assuming that I were to be satisfied with all your evidence that there were defects, has it not crossed your mind that you have had several hundreds of pounds worth of material and work more than you have paid Wadman for?”

His Honour said the question was whether she had a valid defence to the claim for the balance of the money owing on the house.

Weronika Middleton submitted that Wadman had not done the work that entitled him to the third progress payment. Mr Leggat submitted that the arbitration was void, under the Arbitration Act. because the nomination procedure of arbitrators had not been carried out properly. Wadman and his legal ad-visers-had failed to inform the Middletons what was the exact nature of the dispute which was to be arbitrated. Counsel further submitted that, although Wadman had suffered particularly frustrating experiences with the Middletons, who insisted with complete and unusual rigidity that the contract be adhered to, tha contract had not in fact been broken or repudiated by the Middletons. The Middletons’ minds were obviously obsessed of the wish for perfection. They were not altogether familiar with the New Zealand form of contract.

His Honour said, assuming if counsel were right In both his main submissions, judgment would go to the Middletons. Where would that lead as a practical conclusion of the “whole unhappy business?" Mr Leggat replied that if judgment went to* the Middletons, it would be a matter of rearbitration. Submissions For Plaintiff

Mr Alpers submitted that trivial defects in any building contract did not lead to a release of the building owner: nor were they such breaches of a contract which would enable a Court to pronounce a rescission of contract before arbitration. Counsel further submitted that the evidence showed the Middletons were, in fact, well aware that the dispute they were called on to arbitrate was payngent of progress payments, and that they had ignored the notice of arbitration. They stuck to the letter of the contract and specifications, but when arbitration was arranged, as the contract provided, the Middletons refused to attend. This refusal to abide by the contract clause of arbitration was a repudiation’ of contract, and the Court should order rescission of contract, counsel submitted. If the Court held the arbitration award was excluded, counsel submitted the Middletons had repudiated the contract by their insistence on returning to their own supervision: they had taken possession of the house by occupying in spite of the clause in the contract which stipulated possession of the house only after

completion of it and repeated refusala in regard to progress p*yreterrtog , Honour said that if he coneluded in Wadman’s favour, what judgment would counael for? Mr Alpers said he would ask frn , arbitration award, of “ “? w agreed, to be "““te valid. Therefore he would want £l6BB 3s 2d, as quantum meruit for work done and materials, lees £9OO for the t£ id ar£w£ ShS Jud * m « u oi