The First Hall Civil Court presided by Mr Justice Lawrence Mintoff on January 26 2018 in the case “Nadia Merten and Jost Merten vs Unique Turnkey Limited” held among other things that a person had several remedies against a contractor for poor quality work. He could request a cancellation of the contract or that the defects be repaired or both. He could also claim damages.
The facts in this case were as follows:
Nadia and Jost Merten engaged the company Unique Turnkey Limited to carry out works in their apartments, which included waterproofing of the terrace of a penthouse, internally numbered E9, which formed part of a block of apartments in Birbal Street, Balzan.
Merten paid Unique Turnkey €90,896.31 , but later complained that the waterproofing was not done properly.
Water leaked in fact into the underlying apartments, E7 and E8. Merten obtained a quotation for the repairs which amounted to €15,015.28 and spent €250 on technical reports. He notified the company of the water leak problem and asked them if they were prepared to carry out the repair job under the supervision of an architect or whether they preferred to pay him €19,317.41 which included the cost of the new tiles, €4,051.
The company did not reply and faced with this situation, Nadia and Jost Merten proceeded to file this lawsuit against the defendant company. They asked the Court to:
condemn the company to carry out the repairs, in order to have proper water-proofing in the terrace of the penthouse under the direction of an architect within a short time limit at their expense and
In case it failed to do anything, to authorize them to carry out the necessary repairs at their expense.
The company Unique Turnkey Ltd failed to reply and was contumacious.
The repairs consisted in re-doing the waterproofing of the terrace in the penthouse E9 and related works as well as changing and re-laying the terrace tiles.
Merten presented a report, by Architect Godwin Zammit dated 22nd December, 2016 which confirmed that water leaked from the terrace of the penthouse to the underlying apartments E7 and E8. It was stated in the report
‘’however the initial inspections suggests that ineffective roof waterproofing around and under the door frames to the terraces could be one probable cause.
The rood waterproofing could be defective in other places but it is not possible to make any conclusion about this at this stage.
The roof terraces are drained through gutters and drainpipes and waterproofing around these could also be a possible source of water seepage.’’
According to another report by David Muscat of Infrared Malta who was engaged by Merten, to make a thermal inspection, dated 23th January, 2017, on the water leakage. The report attributed the water leakage problem to the terrace of the penthouse, to the grouting of the tiles, to the inadequate unfinished sealing’s of the sliding doors and window apertures, to the drain collector; to the gaps between the tiles and sealing gaps, to the lack of installation of double drain and defective membrane on the roof of the apartment. In this report it was stated that:
‘’repair actions which have to be addressed are:
Proper water proofing of the terrace, terrace tiles or other types of floor finishing/Door & Window/Double Drain/Membrane’’
The court considered that contumacy was not an admission of the claims. It could be also be interpreted as an opposition. This Court said that it had still to establish their veracity. There was no doubt that the contract of works included the terrace of the penthouse No E9 of Block E, and all apertures which had to be permanently impermeable to water. The contractor had to carry out the works up to the standards expected in the trade. This was implicitly guaranteed in the contract of works.
Reference was made to Mario Vitalevi in Digesto Italiano Vol III pte. 2a, (Torino 1926). A contractor had to carry out works according to the terms of the contract or in a way which was acceptable. He guaranteed its quality. He had to complete the works in time as agreed and in the amount ordered and in the form and place indicated.
The contactor also had accessory obligations: ‘’ le obbligazioni accessorie riflettono l’obbligo di sopportare talune spese e prestazioni accessorie, di rispondere dei propri operai, di rispondere verso i terzi dannegiati nelle esecuzione, di rispondere infine perl’inosservanza dei regolamenti e delle leggi speciali, di fare e prestarsi a fare tutto cio che assicuri la migliore esecuzione delle opere, di subire in taluni casi le clausole penali, le ritenute, la esecuzione di ufficio, specialmente in tema di lavori pubblici.’’
The contractor was always obliged to execute the works up to the standards expected and when he provided the material, he was also responsible, for same according to law.
If a contractor did shoddy work, he was responsible for all damages arising because of his poor work, (re George Cutajar VS Edward Vincenti Kind pro et noe – Commercial Court dated 15th May, 1953).
A contractor remained responsible even if defects appeared , as a result of poor workermanship after payment was made.
A person had several remedies against a contractor. He could request a cancellation of the contract or that the defects be repaired or both. He could also claim damages.
The right for damages was based upon contract arising owing to non-performance or for defective work. Damages could also be claimed on the basis of Article 1125 Civil Code.
A person could request a contractor to repair the defects or to accept a reduction in the price (re Angelo Busuttil VS Pio Fedele et CA dated 9th April 1968 and John Bonnici pro et noe VS Anthony Sammut (App Kum dated 22nd June, 1994)
The Court noted that the defendant company carried out works in the terrace of the penthouse which were sub-standard and as a result, water leaked into the underlying apartments E7 and E8. The defendant company, pointed out the Court, was obliged to carry out the repair works at its own cost, amounting to €15,015. In addition the defendant company had to pay Merten for the new tiles which had to be re-laid, for the repairs to be completed (€4,051) and pay for the cost of the technical reports €250.
For these reasons on January 26th 2018, the First Hall Civil Court gave judgement by condemning the defendant company Unique Turnkey Ltd to carry out the necessary repairs, to waterproof the terrace of the penthouse E9, Il-Pjazza Birbal Street, Balzan according to trade standards, at its expense under the supervision of architect Godwin Zammit and this within three months. Defendant company was ordered to pay €250 for the technical reports.
In case the defendant company failed to do the works within the stipulated time, Merten was authorized to carry out the works under the direction of Architect Godwin Zammit at defendant company’s expense, €19317. Defendant Company was also ordered to pay the fees of the architect.
Dr Karl Grech Orr is a partner at Ganado Advocates