Sergio Perez v Romeo Rene Rosado
| Jurisdiction | Belize |
| Judge | Alexander, J. |
| Judgment Date | 30 April 2024 |
| Docket Number | CLAIM No. CV425 of 2020 |
| Court | Supreme Court (Belize) |
CLAIM No. CV425 of 2020
IN THE HIGH COURT OF BELIZE
Mr. Richard Bradley for the Claimant/Respondent
Mr. Jaraad Ysaguirre for the Defendants/Applicants
I order summary judgment on the claim and dismiss the counterclaim. The applicants filed their application to strike out the claim or, in the alternative, for summary judgment on the claim and counterclaim.
This is a simple claim that, unfortunately, has had a long sojourn in the court for various reasons. A trial was fixed for 23 rd and 24 th November 2021, but did not proceed. Parties were allowed time to pursue a settlement of the matter but were unable to resolve it. The present application was filed on 17 th February 2023.
By its application, the applicants argued that the claim is as an abuse of process and one which discloses no reasonable grounds for bringing it. On these bases, the claim ought to be struck out or, alternatively, summary judgment should be granted on the claim and counterclaim as the respondent has no real prospect of successfully defending against the claim and counterclaim.
In disposing of the applicants' notice of application summarily, I find that there was no substantive or weighty issues of law involved but it was a simple claim for damages for breach of an agreement in a specified sum, which simply was not substantiated.
I will refer to the respondent as “Mr. Perez” and the applicants as “Mr. Rosado and Ms. Triminius”.
Mr. Perez's claim is for damages for breach of an agreement in the sum of BZ$15,450. The matter involved a construction agreement, to be done in three phases i.e. (i) the foundation, (ii) the walls and (iii) the roof. The initial agreement was an oral agreement allegedly in the sum of BZ$149,758.70 for construction of the whole house. It commenced on 18 th March 2019.
When the agreement was in its third stage (the roof), Mr. Perez stated that the parties entered into a written agreement. The date and parties were unspecified. This agreement was not produced in court. There is no dispute though that the written agreement existed and was for labour cost to complete the roof i.e. the last stage of the project, although the roof cost was previously incorporated in the oral agreement. In effect, there was a variation in the terms of the oral agreement. The claim, therefore, related to the breach of the written agreement.
Mr. Perez pleaded that the written agreement was necessary because Mr. Rosado and Ms. Triminius had brought a new contractor, whom they wanted to ‘help out’ with some work, to complete “the already started septic tank in the yard.” The defence stated that it was because the completion of the roof was behind schedule. Unfortunately, neither one of the parties provided me with the written agreement.
In oral submissions, Mr. Richard Bradley, counsel for Mr. Perez, dismissed this failure to annex the written agreement by saying that the written contract is not with Ms. Triminius but is between Mr. Perez and Mr. Rosado (the first defendant). At this stage of the proceedings, Mr. Rosado was not participating in the proceedings as, allegedly, he and Ms. Triminius were estranged. The house belonged to Ms. Triminius and she was the one actively defending the matter.
Mr. Bradley also raised, in oral submissions, the issues of the absence of evidence that Ms. Triminius had paid Mr. Perez any money, and that there is no privity of contract between them. These issues were not fleshed out in his oral submissions save to say that a trial was necessary. Privity was not raised in his written submissions or affidavit in response. It was unclear as to why Mr. Bradley was pursuing these arguments since his claim was against both Mr. Rosado and Ms. Triminius for breach of the written agreement. I assume that he was not making the case upfront that as against Ms. Triminius he had no case. If she was not a party to the written agreement on which Mr. Perez had sued, then she could not be in breach of it. Given the state of the pleaded case, I think it necessary that I delve deeper into the claim before me.
The claim form was filed on 9 th July 2020. Mr. Perez pleaded that Mr. Rosado and Ms. Triminius had failed to pay the full amount of BZ$23,000 for labour cost for completion of the roof. He was paid the sum of BZ$7,550 only from the agreed sum of BZ$23,000, leaving a balance of BZ$15,450. This claim was specifically linked to the breached written agreement regarding the roof.
Notably, the statement of claim did not contain any prayer for reliefs, but the claim form did. Unfortunately, there were no dates provided in the claim, documenting when the sums were paid for labour or materials or when the different stages of the project were commenced or completed or who made the part payments. The claim was poorly drafted but did contain a discernible and valid cause of action.
By their defence filed on 12 th November 2020, Mr. Rosado and Ms. Triminius admitted that they had entered into the written agreement for the roof, which varied the terms of the oral agreement. They did not provide this alleged written agreement. However, they denied owing Mr. Perez the sum of BZ$15,450. They also denied only partially paying Mr. Perez for the roof and provided an alternative version of the facts. In their answer, they stated that it was agreed that they would purchase and supply the roof materials to Mr. Perez and would only pay him for labour. The labour cost was BZ$23,000.
Mr. Rosado and Ms. Triminius exhibited to their defence a receipt evidencing that on 6 th May 2019, Mr. Perez had received the full sum of BZ$23,000 for labour for the roof.
By their defence, they also gave an alternative version of the facts about the initial oral contract. Mr. Rosado and Ms. Triminius stated that the house was to be completed in five phases (not three). Payments were to be disbursed for works when done, and not in one lump sum. The final agreed price for the entire construction project was $137,658.70 (not BZ$149,758.70 as claimed) but Mr. Perez never completed the entire house. It seems that the unfinished portions of the work were the roof and the septic tank, both of which were behind schedule.
During the construction, Mr. Perez fell behind schedule, so a contractor was brought on to dig the septic tank while Mr. Perez worked on the roof. Despite monies already being disbursed, Mr. Perez who had fallen so far behind schedule stopped working for a ten-month period, without an explanation. He eventually abandoned the work site, without completing the work and taking away materials purchased by Ms. Triminius, which were never returned. Ms. Triminius then hired another contractor to complete the project, which involved rectifying faulty work and additional purchases of materials.
The counterclaim was for breach of both agreements in the sum of BZ$38,943.27. The counterclaim was that Mr. Perez had failed to complete the house despite being paid in advance. Ms Triminius incurred additional expenses to hire a new contractor to complete the house and deal with faulty work. For additional materials and labour to finish the house, she paid the new contractor (BZ$7867 + BZ$6,228.05 respectively).
The written agreement for the roof was for BZ$33,774.60 including materials and labour. She had purchased materials for the roof of BZ$8,446.38 from Koop Sheet Metal, which was paid via bank transfers dated 4 th and 5 th June 2019. These credit vouchers were provided. She gave the materials to the claimant. Despite this, Mr. Perez demanded and received the full sum of BZ$33,774.60. Ms. Triminius attached a series of receipts of payments made for labour and materials in 2019, some of which were indiscernible.
Her counterclaim seemed to be based on a double payment for the roof materials. I was unclear as to whether the materials purchased from Koop Sheet Metal and given to Mr. Perez were used on the roof or not and how much were utilized or removed from the premises by Mr. Perez. I note only that by paragraph 18 of the counterclaim, it was stated that “The Claimant now owes the 2 nd Defendant the cost of those constructions (sic) supplies that he was given and used on the 2nd Defendant's home. The payment for that was done by bank transfer to Koop Sheet Metal.” [My emphasis]. Despite this clear pleading, there is a counterclaim to recover this sum of BZ$8,446.38.
I now set out the counterclaim for damages:
Particulars of Damages for Counterclaim
| i. Cost of labour for new contractor | = $7867 |
| ii. Cost of material for new contractor | = $6,228.05 |
| iii. Cost of labour and materials paid to Mr. Perez where no work was done | = $16,401.81 |
| iv. Costs of supplies given to Mr. Perez | = $8,446.41 (sic) |
| v. TOTAL | = $38,943.27 |
In his reply to the defence and counterclaim, Mr. Perez did not deny receiving the sum of BZ$23,000. Instead, Mr. Perez stated that Mr. Rosado and Ms. Triminius actually owed him the sum of BZ$33,770 for materials and labour costs for the roof. It was the first time that the sum of BZ$33,770 was mentioned by Mr. Perez in his claim. He stated that from the BZ$33,770, he was only paid BZ$23,000. He used that sum to purchase roof materials. He did not exhibit any receipts. He maintained that the balance owing was, as claimed, BZ$15,450.
In his reply, he also denied that Ms. Triminius had purchased materials for the roof and put her to strict proof.
Interestingly, Mr. Perez did not deny receiving the sum of BZ$23,000 in his reply to defence and counterclaim. He simply advanced a different explanation for his claim for the sum of BZ$15,450. He had used the...
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