The installation was completed in December 2009, but there was a catalogue of defects. The main window was out of alignment, safety glass had not been installed in the downstairs window contrary to the Building Regulations. The downstairs left hand window's top sash frame was split due to misaligned ironmongery. On all three windows the ironmongery had been misaligned causing impact damage to the frames and the right hand window ran off level with a 6mm gap from left to right. Attempts to rectify the defects had led to the wood being patched so that there were variations in colour. Some of the windows were very stiff in operation whilst another appeared to float. A lot of the joinery work was rough and needed sanding, and the windows leaked.
Angus’ tradesmen had been messy workers, and had badly stained a carpet. Their use of dust sheets had been minimal and they had used excessive amounts of mastic which had to be cleaned from the upstairs gutter. Window panes were left covered in it. The McKays were unimpressed.
They complained but to little avail. The attempts to remedy the defects made matters worse rather than better. The parties’ relationship deteriorated. When a painter came, they told him to leave. Things came to a head when Mr. McKay allegedly said on hearing that Angus’ Mr. Squire was to pay a visit that evening that: "he'd better not come or there'll be fisticuffs." Angus relied upon this as a breach of contract which entitled them to treat the contract as repudiated. Angus refused to send its workers back to the house until the McKays gave an assurance that there would be no further “threats”.
The McKays denied that this threat had been made or that the contract works had been completed. Whilst denying the threats, the McKays they gave an undertaking that there would be no communication with any workers that came to the house, and that they would pay 50% of the contract price immediately if the pursuer returned to site to complete the works. Angus responded by issuing a summons for payment.
The first defender might have sworn at the pursuer’s workmen from time to time, but nothing which he had done could have caused any material upset or distress to a normal person. He had not threatened “fisticuffs” should Mr. Squire turn up. There had been nothing about the first defender’s conduct which had amounted to either a repudiation or breach of contract. The judge found it “laughable” that the two workers were so frightened of Mr. Kelly, who was of no more than medium stature and in his early sixties, that they would not return to the property. When Angus had refused to return to site to complete the contract had had served the writ, it had been in breach of contract.
The defenders had suffered considerable distress and inconvenience as a consequence of the pursuer’s breach of contract. The windows had been a 40th wedding anniversary present from Mr. McKay to his wife. The court awarded damages for this of £3,000.
The court held that the defects in the windows had been caused by poor installation and not poor manufacture. It was an implied term of the contract that the windows as manufactured would be satisfactory. It were also implied terms that the installation of the windows would be carried out by competent tradesmen acting with reasonable skill and care, and that the measurement of the windows would be carried out by a competent tradesman with reasonable skill and care so that the windows would fit into the openings into which they were intended to go.
These defects could not be rectified by repairs because that would add to the patched appearance of the woodwork. The only viable solution was the complete replacement of the windows. A reasonable estimate for the replacement of the existing windows would be £8,750.
The windows supplied were not reasonably fit for the express purpose for which they were supplied, and, as this was a consumer contract, given that the pursuer contracted in the course of their business of manufacturing and installing windows whereas the defenders contracted for the replacement of windows in their home and not in the course of any business, Angus was in material breach of contract.
(Angus Joinery Ltd. v James and Valerie McKay; 4 November 2010)
Also in this week's Subscription Bulletin:
- The recovery of economic loss for defective buildings and privity of contract
- Incorporation of an arbitration agreement;
- Offers and CPR 36;
- Liquidated Damages and Specific Performance.
Guide to Good Practice in the Management of Time in Complex Projects
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