TEN PER CENT BASIS

Evening Post, Volume CX, Issue 104, 29 October 1925, Page 9

TEN PER CENT BASIS

HOUSE AT NORTHLAND

QUESTION OF BUILDING COSTS

INTERIM JUDGMENT.

His Honour Mr. Justice Ostler has delivered judgment at the Supreme Court in the case Harris v. Barbev, relating to \ contract entered into by Harris to build a house for Barber at Northland on a 10 per cent, basis. The defendant alleged that plaintiff told him that the house would not cost more than £1250, nnd certainly not more than £1500; and tie estimated at £50 the cost of certain additions the defendant desired later, lv October, 1922, however, plaintiff issued a writ against defendant in which it was alleged that lie had already received payment of £1800 for his work and materials in building the house, and he claimed a further £i)6ii and interest. Tho action was defended, and a counter-claim for damages for negligence was filed. In May, 1923, the case was heard before his Honour Mr. Justice llosking and a jury. During the trial it was agreed that uniy one issue of fact should be left to tho jury, namely, whether the plaintiff undertook as part qf his contract with defendant that tho building should be' completed for a sum not exceeding £1500 exclusive of what defendant undertook to supply. The jury found as a fact that plaintiff did so undertake; but leave was given to plaintiff to move to set asido this verdict, and a motion .was filed for that purpose. That action was heard on tho 2nd August, 1923, and on the 6th August; 1923, Air. Justice llosking gave a considered judgment dismissing the motion.

Three interlocutory proceedings came before Mr. Justice Ostler for determination in this action: (1) A motion to dismiss the action; (2) a summons for an order that the questions still undetermined in the action be referred to arbitration, and (3) a summons for leave to' inspect the premises.

"Since these three proceedings were Sled neither party can bo charged with lny, greater delay than the oilier. The learned Judge who had heard the case was absent from "New Zealand at that time, and did not return until somo time later, when almost immediately he resigned on the ground of ill-health. There is no doubt, however,'that tho plaintiff was guilty of delay from the 6th August . 1923, until the 17th" March, 1924, the date when the leave to inspect was first applied for, From that date, however,. I think defendant was to blame for the delay." His refusal to allow plaintiff's witnesses to inspect the house was, I think, unreasonable. Defendant has not been prejudiced in any way by the dolay on the part of the plaintiff, and therefore I .think it would be too drastic altogether to dismiss the action, and thus deprive him altogether of the opportu-> nity. of litigating those matters which were expressly reserved. But at the same time plaintiff should be put upon terms. ' ,

"The course I propose to adopt is—(l) To make an order on plaintiff's sunv inons to inspect the building :-with £3 3» costs, on the summons to plaintiff in any event, such inspection to bo arranged for and to be" carried "out within four teen days. (2) To adjourn the motion for tha dismissal of tho action, with liberty to defendant to bring it on again upon three days' notice, unless within 14 days after the inspection a proper- statement of extras is delivered, and tliereaf* tcr the action is prosecuted with due'diligence. (3) To adjourn the summons for submission to .'arbitration. meaViwhilc. Upon this point I feel that it would be unfair to defendant to refer the. matter 1.0 arbitration at this "stage. This Court should first determine whether Uio'limit of £1500 has been set >at large, aud if not, it should determine what items were agreed to by, defendants as extras, and also all questions which defendant may desire to raise under his counter-claim. When these matters have been determined it may be that on the question of the fair value of the extras, if the parties cannot agree, .the convenient course will be to refer this question to arbitration. 1 .shall bo prepared meantime to hear argument on and determine all. the questions I have indicated, and the question of referring the matter can then be considered further."