Yoram Amsalem (t/a MRE Building Contractors) v Raivid & Anor [2008] EWHC 3028 (TCC)

[2008] EWHC 3028 (TCC)

Case No HT-07-312

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

TECHNOLOGY AND CONSTRUCTION COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 9 December 2008

Before

MR JUSTICE AKENHEAD

Between

YORAM AMSALEM (trading as MRE building Contractors)Claimant

(1) HUGH MARK RAIVIDDefendants

(2) MARSHA RAIVIDDefendant

Anthony Higgins (instructed by Maxim) for Claimant

Andrew Butler (instructed by Kirkwoods) for Defendants

Hearing Hearing dates: 10-12, 17-20 November, 1 and 9 December 2008

Judgment

Introduction

[1]Yoram Amsalem, who is of Israeli extraction, has traded as a builder in North London for some years. He has experience of conversion, extension and refurbishment work. Hugh Raivid, a financial services adviser, and his wife Marsha Raivid were considering moving house in 2005 and were looking to move within Edgware. Mr Raivid knew Mr Amsalem, initially as a client assisting him to obtain mortgages for his house and later as a friend and approached him to advise them on his existing property and various other properties which Mr and Mrs Raivid were considering buying. Following the sale of their existing house, Mr Raivid contacted Mr Amsalem with regard to 23, The Rise, Edgware (“No 23”) which ultimately the Raivids bought in February 2006. The Raivids retained an architect, Mr Bolt, to draw up plans for the conversion, extension and refurbishment that house. Various planning permissions were obtained from Barnet Council

[2]The Raivids engaged Mr Amsalem to carry out extensive works, largely based on plans prepared by Mr Bolt. Work started in July 2006. Various additional works were ordered albeit there are substantial issues relating to some of them. By July 2007, the parties had fallen out in a major way and work ceased. Mr Amsalem commenced proceedings in September 2007 and, after three adjournments, there has been a trial over 8 days involving some 16 witnesses, including two experts.

[3]The main issues are, in summary, as follows:(i) What was the pricing basis of the initial contract between the parties? Was it, as Mr Amsalem asserts a lump sum contract for £200,000 plus VAT for specific works or, was it, as the Raivids claim, for an indeterminate sum but subject to an agreed cap or maximum, of £150,000 inclusive of VAT? Was the price agreed or the cap inclusive of a number of materials and fittings ultimately provided by the Raivids? What works were covered by the initial contract?

(ii) Was there a variation by which other additional works were agreed to be done, namely the demolition of the garage, the construction of a new two storey extension in its place and the construction of a new porch and staircase? If so, was there an agreed price of £47,000 plus VAT for this work or was it covered by any cap agreed beforehand?

(iii) What was the pricing basis agreed for the variation in respect of the addition of a substantial loft? Was it, as Mr Amsalem suggests £100,000 plus VAT or, as the Raivids say, a reasonable sum but not much more than the original £150,000?

(iv) What sums are due for other actual or alleged extras?

(v) How much has been paid by the Raivids? Was it £213,400 as claimed by the Raivids, or £146,400, as claimed by Mr Amsalem or some other figure in between?

(vi) Was the purchase by the Raivids of a large number of fittings and finishing materials (costing £64,196.49) induced by economic duress? Otherwise, how if at all should this be accounted for between the parties?

(vii) Who repudiated the contract(s) between the parties? (vii) What if any defects were present in the works and how should they be costed? (ix) What is the value of the works as completed by the Claimant? (x) Was there any culpable delay on the part of Mr Amsalem in carrying out the works? If so what if any damages are due to the Raivids therefor?

[4]One unfortunate feature of the case is the absence of any or any significant contemporaneous documentation evidencing the agreements (or variations thereto) said to have been reached between the parties, of contemporaneous written complaint by either party and of any receipts for the disputed cash said to have been received by Mr Amsalem. Another feature of the case which is sad, given the parties’ previous good relationship, is that they each complain that the other has lied in a number of respects; some allegations of criminal activity were made in witness statements, albeit not pursued. The Chronology

[5]Mr Amsalem is a reasonably experienced builder. Since 1991, he has worked in the building trade in one or other capacities, initially as a painter and decorator, then in the tiling, paving and stone-fitting. In 2002 he branched out into general building and formed a firm, MRE Building Contractors. Much of his work has come from the North London Jewish or Israeli community. Four witnesses, whose evidence was not challenged, gave him good references; for instance he was described as “easy and straightforward”, “honest and trustworthy”, “reliable” and “professional”.

[6]Mr Raivid is a financial adviser with some expertise and experience in mortgages. He works or worked with St James Place, a reputable financial services provider to private and corporate clients. His earnings were in the region of £90,000 per year. I have no information as to whether Mrs Raivid has paid employment. The Raivids have two children, a girl and a boy; the latter owns his own dwelling.

[7]In about 2002, Mr Amsalem and Mr Raivid met and became friends. Mr Raivid helped Mr Amsalem obtain a mortgage and later re-mortgages of his house; he also gave Mr Amsalem advice about insurance.

[8]In 2005, Mr and Mrs Raivid were thinking of moving house. They asked Mr Amsalem to look at their existing semi-detached house in Edgware to see if was worth modernising it, which he did. Having consulted with the Raivids’ engineer, Mr Amsalem advised them that the cost of fitting a new kitchen, installing an en-suite for the main bedroom and decorating throughout would be £50,000 to £60,000. Mr Raivid did not want to spend so much and so it was that they decided to buy another house in the Edgware area. Mr Amsalem’s firm did some work free of charge at the Raivids’ house.

[9]Over the next few months, the Raivids looked at a number of houses with a view to purchase. For at least four or five houses, three or four of which were in Edgwarebury Avenue, Edgware, Mr Amsalem was asked to accompany Mr Raivid or both the Raivids. He went along as a friend and not on a charging basis. I accept as probable that Mr Amsalem gave some informal advice to the Raivids both as to the feasibility of possible extension and other refurbishment works at these houses and also as to the cost. It is wholly likely that the Raivids would want to have some idea about the cost of possible works to enable them to decide whether it was sensible to proceed to purchase. I found their evidence unconvincing about this whilst Mr Amsalem’s oral and written evidence was persuasive. He told them that the costs of the various works at two houses in Edgwarebury Avenue and one in Broadfields Avenue would be in the region of £200,000 to £220,000. These were no more than informed guesses by Mr Amsalem. I am satisfied that at no time was there any hint or suggestion from the Raivids that they could not afford such a cost or that their budget was limited. That is not altogether surprising because they would not know what they could afford until they knew what price they obtained for their existing house, what price they paid for any new house and how large a mortgage they could secure.

[10]By about September 2005, the Raivids had put their house on the market. They began looking again for a new house and found that No 23 was on the market. On several occasions prior to their purchase of No 23, Mr Amsalem accompanied at least Mr Raivid to look at the house. The house was a detached house with a fairly small garden. It had, on the ground floor, a central entrance door, a hallway, a bay windowed front room, a relatively small kitchen apparently housed in a single storey extension, a dining or morning room and a lounge looking out to the back garden; there was an attached single storey garage at the right hand side (looking from the road). Upstairs there were four bedrooms, one bathroom and WC and a separate WC.

[11]It is clear that, by the stage of Mr Amsalem’s first visit to No 23, the Raivids had begun to settle on what they wanted doing to the house. Thus it was that Mr Raivid told Mr Amsalem what was required. I am satisfied that he asked Mr Amsalem for some idea of the costs likely to be involved for the various improvements (it would be extraordinary if he did not) and Mr Amsalem gave him “ballpark” figures as follows:(a) 2 storey extension: £70,000.

(b) En-suite bathrooms for 4 enlarged bedrooms: £40-50,000.

(d) Loft conversion: £100,000. Although these figures may not have been added up, they do total £230,000 to £245,000.

[12]There was a further visit by Mr Amsalem to No 23 before the Raivids purchased when Mr Raivid asked about other works and in addition to the above works Mr Amsalem was asked for and gave approximate costs of other works:(a) Gutting of existing house: £15,000.

(b) New porch: £9,800.

(d) New drive: £6-7,000.

(e) Patio at back: £2,000.

(f) New windows: £15,000.

(g) 2 additional toilets: £7,000.

(h) Full rewiring: £30,000.

(i) New plumbing: £30,000 He told Mr Raivid that the total for all the works would be around £300,000. On neither of these visits or otherwise did Mr Raivid indicate to Mr Amsalem that there was some financial limit.

[13]Thereafter, the Raivids retained Mr Bolt, following a visit to No 23, to survey, draw up plans and elevations of the existing house, to draw up proposals, prepare and develop sketch layouts and from those to develop them into proposed plans, elevations and sections. He undertook to take steps to secure planning permission and Building Regulations approval. Mr Bolt’s quotation for these services was accepted by the Raivids

[14]Thereafter, the Raivids sold their old house and bought No 23. Completion on No 23 occurred on the 7th February 2006 with exchange some short time before. They sold their old house for £431,500. No 23 cost £555,000 and the Raivids obtained a mortgage for £415,000. The net balance from the two transactions was £144,286. This was paid into Mrs Raivid’s ING Direct bank account which she called her “House Account”.

[15]Mr Bolt produced a number of drawings in February 2006 which in my judgment reflected the works which the Raivids wanted. Mr Bolt said, and I accept, that the Raivids imposed no financial limit or cap on the works which they required him to design. They did tell him that they did not have available all the money which they would require to pay for the work which they had in mind and that the project would be undertaken in phases. That corroborates my finding that Mr Amsalem had provided some costings by then. The drawings produced by him are all dated 9 or 15 February 2006 although some had later revisions made. The drawings were as follows:(a) TR/01 and TR/03: existing plans and elevations.

(b) TR/02 and TR/04: the plans produced at the trial were later revisions and it is not possible to discern with precision what the original plans showed. TR/02A, B, C and D and TR/04B were made available at some stage. I have formed the view that those that were available to Mr Amsalem initially showed the following: (i) A new porch at the front replacing the old one. (ii) A two storey extension at the back. The revisions to TR/02 made in February by Mr Bolt (2B and 2B) show an uncertainty that planning permission would be obtained for a full two storey extension at the rear right hand side. TR/02B showed a full two storey extension along the rear whilst TR/02A showed only a single storey extension at the rear right hand side and TR/02C (produced in March 2006) showed a partial two storey extension. Mr Bolt said that he was concerned that, by reason of the sight lines from and light interference to the neighbouring house adjacent to the rear right hand side, a full height extension would not secure planning permission; this was a concern which turned out to be justified. The plans showed an extended lounge stretching back from the front entrance. A large kitchen combined with a morning room was provided for off which came a utility room in the area of the old garage. A new single storey extension was provided for at the front right hand side (in place of the old garage) which was to house a study area accessed from the old front room which was to become a family room. Upstairs, there were to be four bedrooms, three with en-suite showers and WCs and a separate bathroom. The various revisions show some different suggestions as to the en-suite facilities, which demonstrates further uncertainty as to what was required.

(d) TR/13, TR/14 and TR/16: these were sections showing construction requirements for the floors and walls at the ground, first and loft floor levels. Concrete floors are shown for the rear right hand side going through to the front right side of the newly extended building. Stairs were shown going up to the new loft space.

(e) TR/15: this was a first floor plan which showed what existing walls were to be removed and replaced by steel beams. It also contained a second floor plan wrongly also marked “First Floor Plan” showing the position of windows in the loft area. It shows where the sections on TR/13 and TR/14 are.

[16]These drawings (not 2C) were presented on 15 February 2006 by Mr Bolt to the Raivids (as Mr Bolt’s handwritten covering note says) “for discussions with your builder”. It was on about the 20th March 2006 that Mr Bolt applied for planning permission probably based on Drawing 2C which was dated March 2006.

[17]At some time in late March 2006, Mr Raivid gave Mr Amsalem the drawings referred to at Paragraph 15 above. I am satisfied that they did not include any drawings showing the much larger loft conversion which was eventually built since those drawings did not emerge until much later that year. What he did say however to Mr Amsalem is that he did not want the loft conversion as shown on the drawings listed at Paragraph 15 above at that stage. That is consistent with what Mr Bolt said about Mr Raivid’s proposing to do the work in stages.

[18]Some relatively short time later again in late March 2006, Mr Amsalem met the Raivids at No 23 to talk about price. Mr Amsalem took with him some rough notes written in Hebrew with some approximate costings on, totalling £247,000. The one page of notes was not found until the second day of the trial although it is referred to in Mr Amsalem’s witness statement and on his disclosure list as having been in his possession in 2006/7. I accept his explanation as to having mislaid it. The notes put prices against various works as described in his witness statement:(a) Stripping out and demolition …. £15,000

(b) RSJs and lintols …. £10,500

(d) Excavation …. £6,000

(e) Concrete …. £5,500

(f) Brickwork and blockwork …. £17,500

(g) Carpentry …. £19,000

(h) Stairs … £4,200

(i) Joinery …. £22,000

(j) The porch.... £9,800

(k) The new extension in place of the garage …. £33,000

(l) Floor and wall coverings …. £1,900

(m) Plasterboard and wall covering …. £21,000

(n) Roof coverings …. £3,800

(o) Electrical works …. £29,000

(p) Plumbing work …. £27,000

(q) Decoration work …. £15,000 There has been a translation exercise carried out after the close of evidence which it has been agreed I can have regard to albeit that the translation is incomplete and I suspect literal. Thus for example there are items for “Catering and beverages” and “Cement for the diggings”. I have used the expression which Mr Amsalem uses in his witness statement. I will return to what was agreed at this meeting when addressing the issue as to what the initial contract was. That there was agreement to Mr Amsalem going ahead with various works is clear. The start of the work had to await planning permission

[19]Planning permission on the basis of drawings TR/02D and TR/04B was granted by the London Borough of Barnet (“Barnet”) on 15 May 2006. That showed a stepped two storey extension at the rear right hand side with the bulk of the extension in that corner being single storey and a full two storey extension at the rear left hand side. A full single storey flat roof extension was permitted at the front right hand side of the building. The porch was allowed. There was no permission for the loft.

[20]On 12 June 2006, Mr Bolt with Mr Raivid’s consent applied for two alternative planning consents, the first for a full two storey rear extension and the second for a two storey front extension in place of the single storey one and for a loft with dormer windows at the side and rear elevations (as per Drawings TR/9 and TR/10). The first was refused on 16 August 2006 whilst the second was granted on 31 August 2006.

[21]At some stage, Mr Bolt used the services of a structural engineer to provide calculations to justify the structural aspects of the design, generally and for the purposes of securing Building Regulations approval. The engineer, a Mr Bruce, provided calculations for various steel beams which were to be used and for the roof and dormer windows used when consideration had to be given for the loft.

[22]Meanwhile Mr Amsalem had begun work at No 23 in late July 2006 and, as the work involved substantial strip out and demolition works throughout the property, the Raivids and daughter had gone to stay for the duration of the work at Mr Raivid’s parents in Hendon whilst their son went to stay with Mrs Raivid’s parents in Edgware. I accept that there came a time when some friction and difficulty arose between Mr and Mrs Raivid and daughter on the one hand and Mr Raivid’s parents on the other at the formers’ continued stay. That was not surprising. Mr and Mrs Raivid visited Israel between 14 and 28 August 2006. Earlier in August 2006, Mr and Mrs Raivid at Mr Amsalem’s invitation visited other houses which his firm was working on to get some idea about cupboards, bathrooms and finishes for No 23. They told Mr Amsalem that they wanted to have at No 23 the same high doors which he had fitted at these other houses.

[23]At some stage in about September or October 2006, following the obtaining of the planning permission and the Raivids’ return from Israel, Mr Raivid asked Mr Amsalem to build the porch and the two story front extension. Mr Amsalem agreed to do this.

[24]Although the Raivids had secured a second planning permission for a loft conversion in late August 2006, they remained in two minds as to whether they wanted to go ahead at least on the approved basis. Indeed, Mr Raivid sent a fax to Barnet on 14 September 2006 to the effect that he would not be converting the loft space as per the latest plan. However, by November 2006, the Raivids had obtained at least one further drawing, TR/15A, from Mr Bolt showing a new roof and much larger loft conversion than had been previously drawn. I accept the evidence both of Mr Amsalem and Mr Ustinov that by this time it had been discovered that the existing roof was in poor condition: it leaked badly, rafters were distorting and some of the joists were rotten. Once Mr Raivid was aware that a new roof was required, he was amenable to Mr Amsalem’s suggestion that, if the wall at the right side was increased somewhat, a large amount of more useable space would be created in the loft.

[25]Mr Raivid went along with that suggestion and he and Mr Amsalem agreed that Mr Amsalem would provide a new roof and a new loft accordingly. I am satisfied that, although Drawing 15A showed only one room in the loft, Mr Raivid and Mr Amsalem agreed that there should be three rooms in the loft, an office for Mr Raivid, another bedroom and another general room and storage area. I accept Mr Amsalem’s evidence on this and reject Mr Raivid’s, which was unconvincing. Even on Mr and Mrs Raivid’s evidence, they accept that they knew by some time in February 2007 that there were three rooms in the newly built loft; they did not object and even specified what and where electrical points should go in the three loft rooms. The first mention of the allegation or of any complaint that three rooms should not have been built was only made in early October 2007 in their Solicitor’s Pre-Action Protocol response letter; that response followed a query from Barnet’s Building Control department of 30 July 2007 and Mr Bolt’s request for a fee for dealing with that query. I accept Mr Ustinov’s evidence that Mr Raivid looked up into the loft space on visits to the site whilst the loft spaces were being created; he must have known what was going on. Their conduct and lack of objection points strongly not only to them knowing all about it but also to them having agreed to it.

[26]In January or February 2007, Mr Raivid asked Mr Amsalem if he could have air conditioning throughout the house. Mr Amsalem came up with a price of £20,000 for this which was for some eight units. Mr Raivid agreed to Mr Amsalem going ahead on this basis, although there is an issue as to whether the price was VAT inclusive. Various other works were agreed to by Mr Raivid, including a burglar alarm, a video entry phone and new double glazed windows throughout the house.

[27]Extensive electrical works was agreed between the parties and executed by Mr Azulay, Mr Amsalem’s sub-contractor.

[28]There was no acrimony between the parties. The final dispute between the parties arose over money. There is mutual acceptance that Mr Amsalem was paid, at the very least, £146,400 inclusive of VAT by the time that the parties parted company. Only three payments were made by cheque with the rest being made by cash. There was no complaint by the Raivids before September 2007 about the quality of the work or as to anything done by Mr Amsalem. The fact that several payments were obviously inclusive of VAT (several were for £11,750) suggest strongly that the Raivids knew that Mr Amsalem was registered for VAT and would be charging VAT

[29]By July 2007, the Raivids, in addition to whatever they had paid to Mr Amsalem, had either paid or committed themselves to paying for a substantial amount of materials such as kitchen units, tiles, doors, granite tops for the kitchen and the like. Well over £64,000 was involved. Mr Raivid has listed in his witness statement payments of £64,196.49 to 6 different suppliers. It was more than that however which the Raivids paid out as a Mr Salmon gave evidence for the defendants relating to the provision of parquet flooring; the labour alone for that cost £4,718.74

[30]There is no doubt that as time went on Mr Amsalem became more demanding as to payments. On or by 30 March 2007, the Raivids had re-mortgaged their house; on that day, the additional funds of £50,000 arising from this exercise were credited to Mr Raivid’s Abbey bank account.

[31]There were no invoices to Mr Raivid as such from Mr Amsalem who simply asked for payments on account. There is an issue as to whether Mr Amsalem issued receipts in any form to the Raivids for any payments made. Mr Amsalem’s long standing friend, Moses David, prepared, as a favour, on his computer on a MRE Building Contractors template what are called “invoices” from time to time. These were sometimes properly so-called for other clients but often recorded receipt of payment. Mr David’s involvement arose because Mr Amsalem was not computer literate or good with paperwork. These documents were produced at least as back up support for Mr Amsalem’s quarterly VAT returns and were produced during the course of the trial by him; there was no objection to their late production and Mr Amsalem was recalled to be cross examined about them. I am satisfied that the documents so produced were genuine and contemporaneous. They do broadly support the VAT returns which had been produced as part of the standard disclosure earlier. The figures do not exactly match but I accept the explanation that the reason the support documentation does not exactly tally is because in addition to the income and expenditure from Mr Amsalem’s contracting business he ran a DIY shop which charged and was charged VAT; the supporting documentation was not included in the belatedly produced files.

[32]These files contain for the quarters in which work was done by Mr Amsalem the “invoices” which record payments received or on occasion invoiced for work done for the various clients. These records include the following payments: 16 September 2006: £11,750 21 September 2006: £40,000 20 December 2006: £11,750 22 January 2007: £40,000 7 March 2007: £32,900 4 July 2007; £10,000 I will return later to the issue of what was paid and when.

[33]By July 2007, Mr Amsalem was becoming concerned as to payment. He had asked for payments on account and had not received them. There is no evidence that the requests for payment were quantified by Mr Amsalem; I have formed the view that they were simply general requests for payments on account. He and Mr Raivid had a discussion and he asked Mr Raivid how the latter was going to pay; Mr Raivid replied with a question to the effect:

“How do I know that you are not overcharging me?”

They agreed that Mr Raivid would arrange for Mr Bolt who had not been to the site for a long time to visit No 23 to tell them what the value of the work was.

[34]A few days later, on 9 July 2007, this meeting with Mr Bolt, the Raivids and Mr Amsalem took place at No 23. Present but not participating was Mr Tooley, Mr Amsalem’s site manager. Mr Bolt had a good look around accompanied by Mr Amsalem and for part of the time by Mr Raivid. He formed the view at the time that there was about two weeks’ worth of work left to do. In evidence at the trial, after being shown photographs of the work done inside and outside, he revised that to four weeks’ worth. Mr Bolt told the Raivids and Mr Amsalem that the quality of the work was very good. He said that the cost of this sort of work would range between £90 and £120 per square foot; he though based on what he had seen that a fair price would be £115 per square foot. He rang a colleague for help as to what the square footage was, and, based on what he was told (3574 square feet), he said to the Raivids and Mr Amsalem that the value of the works was £410,000. Mr Raivid disagreed but Mr Bolt made it clear that he was not a quantity surveyor. Mr Raivid went on to say that he did not have the money to pay. Mr Amsalem’s reaction was to ask when he was going to be paid, to say to Mr Raivid to think about how he was going to pay and to tell him the following day. Mr Bolt left before Mr Amsalem. It is and was quite clear to all concerned that Mr Bolt’s assessment of the value was very broad brush, non-specific and approximate.

[35]The witnesses seem all to have agreed that the meeting was at least for most of it quite amicable. I am wholly satisfied that no complaints were made about defects or indeed about anything by the Raivids. Mr and Mrs Raivid said in evidence that immediately before leaving Mr Amsalem threatened them by saying “I know people who can deal with you”. This was not corroborated by Mr Tooley and Mr Amsalem vehemently denied saying anything of that sort. I found Mr and Mrs Raivid’s evidence on this matter unconvincing. This threat was not made at all although I do find that Mr Amsalem did ask emphatically when he was going to be paid what was due and he asked Mr Raivid to think about how he was going to pay and tell him the following day. The alleged threat is not mentioned in the Raivids’ letter of 12 July 2007 to Mr Amsalem or in their Solicitor’s Pre-Action Protocol letter of response. If the threat had been made and given that it is now relied upon as grounds of repudiation by Mr Amsalem, I would have expected it to feature in those letters, written at a time when the events were still fresh in their minds. Mr Amsalem left No 23 and was worried and upset. Mr Raivid told Mr Tooley to remove all equipment and tools from the site and to stop working at the site.

[36]The following day, Mr Raivid rang Mr Tooley and told him that the Claimant and his workmen could not come back to the site. The Raivids asked for and were given the keys to No 23 which various workmen had had. I find that as from the 9th July Mr Amsalem and his workmen and sub-contractors were denied access to No 23.

[37]Mr Amsalem sent to the Raivids a letter dated 11 July 2007. This letter was drafted by Mr Amsalem’s wife, Hannah Francis, based on what he told her and upon her very limited knowledge of the project at No 23. That letter stated as follows:

‘It is with regret that we have to write this letter to you. In July 2006, after many months of viewing potential houses with Hugh [Raivid], MRE Building Contractors (“MRE”) were instructed by you to carry out substantial building works at the above Property. The initial estimate for the works was in the region of £247,000.00. Initial plans involved refurbishment of the ground and first floors and construction of a new extension to the ground and first floors across the rear of the Property. The plans included the incorporation of the garage to the house. In September 2006, the works commenced. During the works, planning permission to convert the loft into a large four room area was granted and MRE was instructed to carry out this additional work. This additional work involved creating the loft conversion and the re-dash designing of the floor space area to include all of your special requests. Furthermore, MRE were then instructed to install an air conditioning system throughout the house, to extend the Property above the garage and to construct a new porch. The aforementioned additional works substantially increased the costs of the project. During the works, our Mr Yoram Amsalem (“Yoram”) had numerous discussions with Hugh regarding the additional cost and payment for the work. Hugh assured Yoram that he would re-mortgage the Property to cover the costs of the extra work. When payment was not forthcoming, Yoram made further requests for payment for the works that had been carried out when Hugh told Yoram that he did not have money to pay at the moment but that he had stocks and shares which he would sell in order to make payment. Last week, Yoram once again requested from Hugh to make payment when he was told that you are unable to do so. Throughout this period of non-payment, despite the numerous requests made by MRE, you continued to instruct MRE’s Project Manager to carry out even further works, such as laying a concrete base in the garden for a shed and also to increase the size of the patio. On 9th July, upon MRE’s request, your architect attended the site in order to carry out an assessment of the value of the work carried out by MRE to date. The work carried out by MRE was valued at £410,000.00 inclusive of fixtures. The architect further stated that the standard of the works was of a very high quality. We are very disappointed with your decision to ask MRE’s personnel who were on site in the evening of 9th July to hand over the keys to the Property and in the morning of 10th July to request MRE’s Project Manager to remove all of MRE’s equipment from the Property. We consider your non-payment and your request to hand over the keys and to remove the equipment as a unilateral decision to terminate our agreement to carry out the works to the Property, which is a serious breach of the aforesaid agreement. In the circumstances, we must ask you to make payment of £243,225.00 within 14 days of the date of this letter which represents the balance due to MRE. We enclose herewith an invoice for your attention. Please note that the difference between the aforementioned value of the works of £410,000.00 and the value of the works at £347,000.00 as stated on the enclosed invoice is the costs of the fixtures for which you paid direct. We look forward to receiving your payment and trust that no further action will be necessary.’

There was a somewhat arid dispute as to whether this letter was jointly drafted by husband and wife. The actual drafting was done by Ms Francis who is English by birth albeit that much of the input was necessarily from Mr Amsalem. In that sense, each witness can not be said to have been wrong in their evidence.

[38]Ms Francis accepted that there were or may have been errors in this letter, including, for instance, the date of commencement of works which was not September 2006 but July 2006. I am satisfied that there was an invoice enclosed with that letter which was sent to and received by the Raivids. That invoice, dated 10/07/2007, on the MRE template, was prepared by Ms Francis and stated as follows:

“With regard to refurbishment works carried out at the above address: Total value of works carried out to date: £347,000.00 Total amount received so far: £140,000.00. Please forward outstanding balance of: £207,000.00.”

To that was added VAT of £36,225.00 being 17.5% on that balance figure. Total value of works carried out to date: £347,000.00 Please forward outstanding balance of: £207,000.00.”

[39]Mr Raivid, upon receiving this letter, contacted his then solicitors, Drummonds, who were solicitors used by his employer. Based upon what he told them, they drafted a letter which was sent by the Raivids on or shortly after 12 July 2007. It is not clear whether this letter was actually received by Mr Amsalem. It matters not because its importance, as a contemporaneous document, arises from the fact that it spelt out what the Raivids’ reaction to the letter from Mr Amsalem of 11 July 2007 was:

“Further to your letter dated 11th July 2007, firstly we wish to formally advise you that we no longer wish you to carry out work at our above mentioned property and have removed your building materials and tools from inside the house. They are currently situated on the front and rear gardens and are considered no longer our responsibility. We have spoken to your project manager several times to request collection. With regards to the contents of your aforementioned letter, I would bring to your attention that when I presented you with architectural plans to carry out renovations to our above mentioned property I also advised you that we had limited funds and requested that if the costs of the works would be in excess of this amount we would not be able to pay for them to be completed. Since we started negotiations with yourself we have always made you aware of our financial situation and had you indeed presented us with an initial estimate of £247,000.00 we would never have employed your services as we had no way of paying that figure. We dispute the agreement of the price of £247,000.00 as we would not have agreed to this amount. Please provide a copy of the written agreement detailing the alleged agreed price of £247,000.00, if you are unable to provide a copy of the written proof then please confirm on what dates, at what times, what place and between who and what words were used to formulate the Oral Agreement. We continuously requested from you a written quotation for the works and were always presented with the same answer “I’m working it out, I’m working it out”

. And we continuously brought to your attention that if you could not complete the works within our budget then please do not start work as we will not be able to pay, and to this day no quotation has been given or received. During the last 12 months since you commenced work we have requested several meetings with yourself to discuss the monetary situation and each time no figures were mentioned just the comments “I need money, you’ll have to get some more money” but no indication of how much. If an alleged agreement had been reached about extra works and the costs of extra works please provide copies of this agreement or if you are unable to provide written proof then please confirm on what dates, at what time, what place and between who, and what words were used to formulate the Oral Agreement. In respect of fixtures and fittings we would advise you that the total costs of the Kitchen, Kitchen Appliances, Bathroom’s [sic], Toilets, Bathroom Accessories and Tiles amounts to £44,717.86 in addition to a payment of £32,900 handed over to MRE Building Contractors on 13th March 2007 to allow the purchase of windows and installation of air conditioning units. (Three units still remain to be installed.) Furthermore, we feel that it is wholly inappropriate to start asking for a further £243,225.00 once the work has been practically completed.”

[40]Following this exchange, the Raivids employed various contractors, including Pioneer Developments (London) Ltd, to complete sufficient work to enable them to move in. The Raivids moved in in August 2008.

[41]By the end of July 2007, Mr Amsalem had retained Solicitors who began to communicate with the Raivids’ then Solicitors, Drummonds, as from 26 July 2007. Mr Amsalem’s Solicitors demanded payment and set out some detail of what their client’s claim was. It is fair to say that there was no substantive reaction from Drummonds, who indicated that they were taking instructions. Drummonds on 21 August 2007 raised the possibility of a conflict of interest but indicated that they intended to continue acting for Mr Raivid unless there was objection. Mr Amsalem’s Solicitors responded several days later indicating that there was no objection.

[42]Having had no substantive response, Mr Amsalem’s Solicitors sent on 31 August 2007 a Letter of Claim pursuant to the Pre-Action Protocol for Construction Engineering Disputes. Mr Amsalem’s Solicitors in this letter in broad terms set out the basis of the claim which has been advanced in this litigation. The gross sum claimed was £292,706 made up as follows: Original contract: £247,000 Later contract (new porch/two storey extension): £47,000 New loft and roof: £100,000 Air conditioning/windows: 34,000 Fitting kitchen: £1,800 Shed base: £506 Total: £383,306. Less still to be done: £9,600 Total: £373,706 Less received: £124,594 Plus VAT: £43,594 Final total: £292,706. In addition Mr Amsalem claimed for loss of profit on the work he was prevented from doing calculated at 20% of £9,600.

[43]By 10 September 2007, the Raivids had replaced Drummonds with Darlingtons. They sent in their response to Mr Amsalem’s Solicitors’ Letter of Claim on 2 October 2007. They made the following points:(a) Mr and Mrs Raivid had a strict limit of £150,000 to cover any works including the costs of materials and fixtures. It was clearly denied that there was any quotation for £247,000 or indeed any other agreement as to £200,000 or £47,000.

(b) The Raivids asserted that they had paid a total of £213,000 between mid-August 2006 and June 2007. It was accepted that some payments were made in cash.

(c) As for the loft, it was denied that there was any agreement as to £100,000. The Raivids were told that the cost of the loft conversion would not be “much more” than hitherto agreed. Mr Amsalem had built three floor rooms in the loft contrary to what the Raivids had asked for. No modifications were agreed.

(d) There was no agreement to pay Mr Amsalem £1,800 to fit the kitchen because Elite Tiles had offered to do it for £1,200.

(e) It was accepted that the costs of air conditioning and installation of windows were to be charged in excess of the £150,000 but the clients agreed a total of £32,900 for that. It was said that the air conditioning units were incorrectly installed.

(f) As to the meeting of 9 July 2007, it was denied that the respective clients met to discuss money because it was stated “there was never any issue with money”. The following was stated:

“Our clients gained possession of the Property on 9th July 2007. Our clients had become concerned about the length of time the project was taking and could no longer reside elsewhere.” (g) A counterclaim was raised relating to the cost of completing the works and to defects. For instance, it was suggested that: (i) Mr Amsalem had failed to fit CAT 5 electricity cables and had put every appliance on to one circuit contrary to instructions. (ii) Underfloor heating in bathrooms did not work. (iii) Hot and cold pipes were installed the wrong way around. (iv) Foul and surface water drainage work had resulted in clean and dirty water being mixed with the result that the drains had to be redone and the entire front garden had to be dug up. (v) Gutters had not been fitted properly at the front of the house. (h) So far as time for completion was concerned, the following was said: “Upon your client initially being instructed to carry out the works, he notified our clients that the works would take in the region of six - nine months. When it was agreed that your client would build a loft conversion, this time was extended by a further two months … Your client was working with our clients’ properties for approximately 14 months and the works were left substantially uncompleted.”

[44]Proceedings were issued by Mr Amsalem at the end of September 2007. The witnesses

[45]Since much of the case depends upon the views which I formed about the witnesses who were called, I set them out as follows:(a) Mr Amsalem: I formed the view that he was essentially honest. He was a good builder and he was enthusiastic about his work; he had firm views about what could and should and could not and should not be done. He was keen to ensure that the clients received work with which they and he would be happy. He sounds somewhat severe to listen to but that arises from his strong Israeli accent. He was not good at paperwork and that is why he used the free services of Mr David and employed accountants. He did give other clients written quotations such as that to Mr Tricot. He was not a bully, as has been hinted at by the Defendants. He does suffer from bipolar mood disorder and up to the end of 2005 had suffered two psychotic episodes, the last being between the 13th and 25th September 2005 and the earlier episode being some years before. He was prescribed lithium which he has taken regularly. His doctor, Dr Sills, said in his unchallenged witness statement that the outpatient letters following the last episode show that there were no concerns about his mental state. I am satisfied that he was not at any material time during the course of the history of this case suffering any loss of facilities as a result of this condition. His memory is not exceptionally good; his dating of events is not good and without paperwork he has done the best that he can to recall events.

(b) Hannah Francis: her involvement was limited. Although she draws a relatively small salary for various administrative functions connected with her husband’s business, she was not involved with the clients, the procurement of materials or running the jobs. I found her to be honest but her recollection of what her husband may have told her about what if any prices had been agreed between him and the Raivids to be unreliable. It is suggested that she “forged” her husband’s signature on the letter of 11 July 2007; I am satisfied that she did not in any sense criminally forge his initials; she copied it assuming that he would agree.

(c) Moses David: a longstanding friend of Mr Amsalem, he gave his evidence in a straightforward and convincing way. I thought that he was honest and he had frequent informal meetings with Mr Amsalem. It is likely that they discussed what had or had not been received from the Raivids because one of the main reasons for their meetings was to prepare the paperwork to support Mr Amsalem’s accounts for VAT. I am less convinced as to whether they discussed in other than general terms the precise basis of pricing for the various works to be done at the Raivids’ house.

(d) Mark Laforet: a senior kitchen designer at Elite Tiles UK who designed the Raivids’ new kitchen at No 23, he was patently honest with a good recollection of events relating to what Elite did for the Raivids.

(e) Valentin Ustinov: a general builder who worked as a sub-contractor to Mr Amsalem, I found him to be honest. English is not his mother tongue but his recollection of events appeared reasonable.

(f) Yaacov Aculay: he was the electrical sub-contractor engaged by Mr Amsalem. He was honest with a reasonable recollection of events. He was called in after the termination of the parties’ relationship by the National Inspection Council for Electrical Installations Contracting (“NICEIC”) to take part in a mediation to determine what needed to be done to the electrical installation.

(g) Dariush Hekmatpanah: He was a manager at Securebase which, as a sub-contractor to Mr Amsalem provided all or parts of a burglar system and video entry phone to No.27. He was straightforward and honest.

(h) Ian Bolt: he is an architect employed by the Raivids. He seemed competent and had no “axe to grind” for or against either party, although he was called by MrAmsalem as a witness. He was independent and patently honest. He had a reasonably good recollection of events and gave his evidence with confidence.

(i) Hugh Raivid: I did not find much of his evidence convincing. He is a shrewd and astute man who would not be earning £90,000 per annum if he was not. Through experience, he has a good working knowledge of how to secure good mortgage and remortgage “deals”. He knew what he wanted for No 23; his ability to brief Mr Bolt in January and February 2006 and his later efforts to secure planning permission for a full height two storey extension at the back demonstrate that. He was not unduly influenced by Mr Amsalem. I did not find it credible that Mr Raivid was in effect “putty in the hands of” Mr Amsalem or found it difficult to stand up to Mr Amsalem. Similarly, it was not credible that he did not know what was going on so far as the loft was concerned; he visited No 23 virtually every day and would have seen exactly what was going on; the fact that, as he accepted, he knew in about February 2007 that three rooms had been built and made no objection suggests that he did know. His evidence about the £150,000 and the allegedly duress induced agreement that he should pay for the costs of finishing type materials and fittings was seriously undermined by the evidence of Mr Salmon who he approached directly in September 2006 for the provision of parquet flooring before that “agreement”

(j) Marsha Raivid: she had fewer dealings with Mr Amsalem than her husband. Although I did not find her unconvincing, I am unconvinced that she adds very much to the issues in this case. Her oral evidence that she was personally involved in handing over cash was undermined by her failure to mention this important fact in her witness statement

(k) Anthimos Tooley: the “Site Manager” of Mr Amsalem, I found him to be very unconvincing. Although he insisted in the witness box that he was “the most impartial witness” the Court was likely to hear from, he unrealistically would not accept that he had fallen out with Mr Amsalem in about February 2008 when he left his employment, when he obviously had. Notwithstanding a 4 years plus prison sentence for what was clearly a very serious offence of dishonesty in the 90s (conspiracy to handle stolen cars for export), he was taken on by Mr Amsalem; he was kept on in spite of a 9 month period in prison for assault in about 2002-3. He was eventually dismissed for spending time at work on three other businesses (two leasehold properties, the mortgages for which were secured by Mr Raivid) and selling fake (if not counterfeit) perfumes and handbags. It is unnecessary for me to find whether each of these allegations is true; there is no doubt, and I find that Mr Amsalem honestly believed that he had good grounds for dismissing Mr Tooley, who admitted in evidence that he carried whilst at work for Mr Amsalem two mobiles with which to conduct his leasehold businesses and did sell fake (but not counterfeit) perfumes and handbags He gave every impression of being a partial witness in favour of the Raivids by whom he was called and against Mr Amsalem. His written evidence about attempts by Mr Amsalem and another to pervert the course were not put to Mr Amsalem and I attach no weight to them at all. His evidence that Mr Amsalem doesn’t charge VAT is obviously wrong and underlies the essential unreliability of his evidence.

(l) Nissim Tricot: he gave what might be described in some ways as “similar fact” type evidence. He employed Mr Amsalem to do some works at his house in North London. There clearly was a lump sum price agreed for the works but they parted company in some acrimony in July 2007. There were some misunderstandings between them which I am wholly unable to resolve. I therefore found his evidence unhelpful in assisting the Court to resolve the issues between Mr Amsalem and the Raivids.

(m) Godfrey Raivid: Mr Hugh Raivid’s father, I formed the view that he was honest and that his recollection was not obviously faulty.

(n) Wayne Salmon: although his evidence was of limited direct relevance, he was straightforward. He carried out parquet flooring directly for the Raivids.

[46]As for the experts, Mr Evans and Mr Harrison, they suffered from the disadvantage of not having the relevant expertise with regard to the defects said to exist in the work done by Mr Amsalem. As quantity surveyors however, they achieved a measure of agreement on rates and prices in the determination of the reasonable price basis of valuation which would apply if and to the extent that no lump sum prices or caps were agreed. On balance I preferred the evidence of Mr Evans who was more willing to concede and was less argumentative than Mr Harrison. There was one aspect of Mr Harrison’s approach which I found unhelpful, which was the fact that he had not disclosed a large amount of relevant information with his report but nonetheless brought it to the hearing: this comprised a lever arch full of workings and calculations to support his rates, prices and measurements and a list of projects in which he had been involved prepared to support his view on the percentage to be applied for preliminaries. He also said (and I accept) that he had not seen Mr Evans’ calculation for preliminaries which was disclosed and put in the agreed bundles. He produced a calculation overnight which sought to demonstrate that his preliminary percentage of just over 14 % should be reduced by about half. Some of his figures were contradictory such as his figures for scaffolding costs. Whilst both experts to some extent fell into the trap of allying themselves with their clients, Mr Harrison did so to a significantly greater extent. They both were polite and tried to assist. The Initial Contract

[47]I have formed the view that neither party’s primary case is established on the facts. Thus I am satisfied on the balance of probabilities that no agreement was reached between Mr Amsalem and the Raivids about a lump sum price or that there was any agreement between the parties that all or a specified amount of works would be done subject to a cap or limitation of £150,000. My reasons for forming this view are as follows:(a) Mr Amsalem was perfectly capable of producing a quotation. For instance, he did it for Mr Tricot and was prepared to proceed in his relationship with that gentleman on that basis.

(b) The figures which made up the total of the sum of £247,000 which Mr Amsalem says that he put forward in March 2006 bear a marked resemblance to the figures which he says that he mentioned to Mr Raivid before the latter purchased No 23. If that is right, the earlier figures could have been no more than guessed figures; in those circumstances, the later figure of £247,000, if put forward by Mr Amsalem in March 2006, was based on figures which had not been calculated or assessed with any certainty. I accept that Mr Amsalem did take with him to his meeting with Mr Raivid in March 2006 the list of works written in Hebrew referred to above. However, what is most likely is that these were approximate figures which Mr Amsalem used to produce an approximate overall total to give Mr Raivid some idea again what the works requested would cost at a time when planning permission had not been obtained. It is most unlikely that the figures were put forward as a lump sum price capable of acceptance or that they were accepted.

(c) Mr Amsalem’s letter of 11 July 2007 is wholly consistent with that figure having been put forward as a figure “in the region of” £247,000. It is also not likely to have been the case that lump sum prices were agreed given the way that letter was written. That letter was written upon the basis in effect of Mr Bolt’s approximate valuation, which was obviously not based on a lump sum price basis but upon a reasonable price basis. Because Mr Bolt valued the works as he did, the net resulting figure was an appropriate figure as the letter indicated.

(d) The list in Hebrew which Mr Amsalem took to his meeting with Mr Raivid is in itself somewhat general and non-specific. There is no back up for the figures in the Hebrew list and there was no evidence from Mr Amsalem as to how he calculated any of the figures.

(e) I find it difficult to accept that a £200,000 fixed price lump sum quotation (if that is what it was and if it was made or accepted) was not in some way confirmed in writing in effect before September 2007.

(f) I do not by this series of findings intend to suggest that Mr Amsalem was dishonest or deliberately seeking to mislead the Court with his evidence about this. Undoubtedly he had a priced breakdown with him. His honest ex post facto reconstruction has led him to convince himself that the “in the region of” price which he mentioned to Mr Raivid in March 2006 was accepted. The price was mentioned as being a figure in the region of £247,000, later reduced to £200,000, but it was not put forward as a lump sum fixed price quotation capable of acceptance as such. It was not as such accepted on that basis by Mr Raivid.

(g) It is inconceivable that someone of Mr Raivid’s work background and intelligence would fail to ask the obvious question: how much is this work likely to cost? It is likely that he would need to know before he applied for planning permission. That said, it would be unlikely that lump sum fixed prices would or could sensibly be agreed before both the Raivids and Mr Amsalem knew what planning permission would be obtained

(h) Mr Raivid’s behaviour after March 2006 is, in my judgment, substantially inconsistent with there being any fixed cap of £150,000 agreed. Whilst it is undoubtedly the case that a sum of just less than £150,000 represented the proceeds of the sale of his old property and the purchase and mortgaging of No 23, it is most unlikely that that was considered by him as a constraint. When addressing the duress issue relating to materials and fittings, he expressed some doubt as to whether there was a cap: he gave Mr Amsalem, he said at Paragraph 20 of his statement the “benefit of the doubt” as to whether there was an all inclusive cap.

(i) By about March or April 2007, the Raivids had on their case gone well beyond the £150,000 cap. They had committed themselves to purchasing in the region of £70,000’s worth of fittings and equipment. They had committed themselves to paying for what they knew to be a number of extras, such as the loft, new windows and the air conditioning, which they must have suspected would have cost them an additional sizeable six figure sum (at least). On their case by the end of April 2007, they had paid some £180,000 to Mr Amsalem. There is not a hint of any complaint by the Raivids about this state of affairs.

(j) Mr Raivid indicated that in about September 2006 he had acquired a leasehold investment property as well. That suggests that there were other funds available.

(k) Mr Raivid would have had no insuperable difficulty in securing some additional funds. He obtained £50,000 in about March 2007 without any apparent difficulty, by way of some further mortgaging or remortgaging of his property. He told me that he in effect additionally took out a mortgage on his son’s property to provide funds. It is not clear how the purchase of the son’s property was made. Whatever view is taken as to what the Raivids paid Mr Amsalem, they had access to a sum which substantially exceeded the £150,000 “cap”: they paid out £203,000 to Mr Amsalem or for other purposes plus the £70,000 for materials and fittings. That suggests that a cap was never agreed. They did not challenge on 12 July 2007 the assertion made in the letter of 11 July 2007 from Mr Amsalem that Mr Raivid had assured Mr Amsalem that he would re-mortgage the Property to cover the costs of the extra work and that he had stocks and shares which he would sell in order to make payment. Mr Raivid had a substantial income.

(l) The amount of work involved in doing everything which Mr Amsalem did would obviously have led to Mr Amsalem, by 2006 an experienced and profitable builder, knowing that all the works would likely cost very substantially more than £150,000. It is therefore unlikely that he would have agreed to carry out a total gutting and refurbishment of No 23, the addition of two substantial extensions and the provision of kitchen, bathroom and WC fittings together with a large and possibly expensive quantity of electrical and other plumbing items for as little as £150,000.

(m) It is simply not credible that the Raivids would not have raised in writing the £150,000 limit during the course of a project in which their expenditure on their own count had increased well beyond the cap which they assert was agreed at an early stage.

(n) The Raivids’ evidence about the new roof was at odds with the existence of a cap. Their suggestion that the removal of the old roof and the provision of a total new roof was, they believed, within the budget of £150,000 is not credible. Whilst they may have not known what the cost would be precisely, they must have known that a substantial five figure sum was involved. Using Mr Evans figures the roof work alone cost well over £30,000.

(o) There was some very real confusion in Mr Raivid’s oral evidence as to whether or not he mentioned the figure of £150,000 before the purchase of No 23.

[48]On a balance of probabilities, I find that what happened was this:(a) By the end of March 2006, Mr and Mrs Raivid had not finally decided what works they were going to require Mr Amsalem to carry out. They had been told by Mr Bolt that there was a substantial question mark over whether or not they would secure planning permission for a full two storey height extension at the rear rather than the extension for which they ultimately got planning permission. They had not made their mind up about the extent and quality of finishings and fittings, such as how to fit out the new large kitchen. The drawings reveal a lack of certainty and precision about the bathroom and shower arrangements on the first floor. They contain little or no detail as to what was required internally. Based on the approximate cost information given by Mr Amsalem about a loft, they had decided not to go ahead immediately with the loft but it remained as a real option for a later stage.

(b) Mr Amsalem must have been aware upon looking at the various drawings produced by Mr Bolt in the February 2006 period that there was uncertainty. It would have been difficult for him therefore to have produced a precise price for the execution of the works shown on drawings which themselves were clearly not final and contain the requisite detail to enable a contractor sensibly to put in a precise price.

(c) Although Mr and Mrs Raivid had immediately available about £150,000 by early February 2006, Mr Raivid did not consider in his own mind that that was a finite limit which was not to or could not be exceeded.

(d) Mr Amsalem did the best that he could in trying to estimate what the cost could be. He produced his document in Hebrew, but the prices, which are mostly rounded figures, could have been no more than intelligent guesses. They were “of the order” or “in the region of” prices rather than lump sum fixed prices capable of or intended to be accepted. Given the coincidence of many of the figures on the Hebrew document and the figures put up by Amsalem before the Raivids purchased No 23, it is likely that the figures were largely produced before Mr Amsalem received the plans.

(e) Mr Raivid and Mr Amsalem went round the house in March 2006 with Mr Amsalem giving indicative costs and informing Mr Raivid that the works which he indicated that he wanted would cost in the region of £247,000, the total of the items on the Hebrew list. I am prepared to accept that Mr Amsalem showed it to Mr Raivid. Mr Raivid’s reaction was, as Mr Amsalem says, that he could only afford about £200,000 at that stage. They then discussed what could be done for that sort of figure.

(f) It was thus initially agreed that all the works on Mr Amsalem’s informal list would be done save for the garage extension and the porch, together with the first floor staircase leading to the attic. In addition there would be no new WC on the ground floor. Coincidentally, although there was no specific evidence about it, all the items on the Hebrew list were ticked except the three items totalling £47,000 which Mr Amsalem said were agreed not to be done.

(g) Mr Raivid and Mr Amsalem agreed that Mr Amsalem would proceed with that scope of works, but nothing was expressly or by implication agreed about any precise price because they were of the order or “in the region of” figures. They trusted each other that Mr Amsalem would not over charge or charge more than a reasonable price for these works. There was no agreement that no more than £200,000 or £150,000 would be paid or payable. Nothing was expressly agreed about instalments other than payments on account would be payable. The Garage Extension, New Porch and Staircase Variation

[49]I am satisfied that following the obtaining by Mr Raivid of the planning permission for the new two storey front extension, he asked Mr Amsalem to construct that extension in place of the existing garage and to construct the new porch, previously omitted from Mr Amsalem’s scope of works. I am not satisfied on a balance of probabilities that there was any agreement about the price. On Mr Amsalem’s evidence, £47,000 had been deducted from his (Hebrew) list, comprising £33,000 for the garage extension, £4,200 for stairs and £9,800 for the porch. However, these figures were approximate costings, as I have found, and were not intended to be definite. It is therefore unlikely that the figure of £47,000 was put forward by Mr Amsalem to Mr Raivid with regard to these further works in effect as a fixed price lump sum quotation to be accepted. There would have been nothing to prevent Mr Amsalem submitting a quotation or confirmation of a quotation for this sum as he did for other clients. I have formed the view that Mr Amsalem has confused in his own mind the figures totalling £47,000 for this work contained in his original list as being a figure which was accepted on a lump sum fixed price basis by Mr Raivid. That said, Mr Raivid was aware, in my judgment, that the substantial additional works would probably cost a significant amount more. He cannot, reasonably, have expected that these works, planning permission for which had just been obtained, would be done for nothing. I have already found that no cap or limit had been agreed in relation to the main body of the works agreed to in March 2006.

[50]It is essentially unlikely that Mr Raivid could sensibly or reasonably have thought that the addition of these substantial further works was covered by the approximate cost revealed to him in March 2006. He had sought planning permission on 20 March 2006 only for a single storey front extension including conversion of the garage into a habitable room at a time when he must have been uncertain as to whether he would obtain permission for a full two storey extension at the rear at the rear back right hand corner of the house. It was only on 12 June 2006 that he applied for a planning permission for a full two storey front extension in place of the single storey arrangement for which he had obtained permission on 15 May 2006. By the time that the works were commenced by Mr Amsalem in late July 2006, the planning permission for this had not yet been obtained.

[51]Accordingly, I find that there was an agreed variation by which the demolition of the garage, the construction of a new two storey extension in its place and the construction of a new porch and staircase was agreed. There was no agreed price of £47,000 plus VAT for this work and it was not covered by any cap of any sort. By necessary implication, Mr Amsalem is entitled to a reasonable price for such additional works. The Loft

[52]There is no dispute that Mr Amsalem was asked to and agreed to construct a new loft. There is no dispute that in principle the Defendants should pay for such additional work. The issues which arise are whether or not there was agreement that a fixed price lump sum of £100,000 plus VAT should be payable in respect of the loft and, if not, whether a reasonable price for such works should be evaluated on any basis other than a commercially reasonable price.

[53]In my judgment, there was no agreement between the parties for any fixed price lump sum. Mr Amsalem has become confused as to whether any such price was agreed. This was a sum which he mentioned in broad terms as an approximate cost prior to the Raivids’ purchase of No 23. He may well have made the assumption in his own mind that there was some acceptance by the Raivids of such a figure given that some months later he was asked to proceed to construct the loft. However, I am satisfied that there was no agreement about this figure.

[54]It is likely that Mr Raivid, having secured a planning permission for a smaller loft conversion on 31 August 2006, formed the view that he did not want such a small conversion as had been indicated on the plans for which he had got planning permission. That is why he sent his memo by fax to Barnet on 14 September 2006. That fax, interestingly, does not say that he would not be creating a loft: what he says is he would not be converting his loft space into a room “as per the calculations and breakdown recently sent to you”. That suggests, as was the case, that he was considering a larger loft. That is why he instructed Mr Bolt to produce TR/15A which showed a new roof and much larger loft conversion than had been previously drawn. He was probably influenced by the fact that Mr Amsalem and Mr Ustinov had found that the existing roof was inadequate in that it was leaking substantially and that a number of the timbers supporting the roof were, apparently, irreparably damaged by water ingress. It made obvious sense that, if the roof had to be replaced in any event (which had not previously been part of his thinking), it would also be sensible to create a substantial new loft space. Mr Amsalem was clearly keen and willing to construct such a new loft. Thus it was that Mr Bolt came to be instructed to produce a plan or plans for a much larger loft. TR/15A was drafted in November 2006 and it is likely that Mr Amsalem was shown it. I accept that he suggested what he considered an improvement, which was to build the walls up somewhat higher than was planned by Mr Bolt so that more of the loft space was usable.

[55]I am satisfied that there was some discussion between Mr Raivid and Mr Amsalem about cost. Given the absence of drawings and the lack of any contemporaneous costing notes or documents, I am however wholly satisfied on a balance of probabilities that there was no and no specific agreement between Mr Raivid and Mr Amsalem as to a lump sum fixed price for the addition of the loft. One of the reasons why it is unlikely is that the drawing prepared by Mr Bolt did not show very much information. However, Mr Raivid must have been aware that, with a totally new roof, which had never been contemplated before, and a large new habitable space being created on the second floor which had not been part of the earlier agreements, there would be a substantial increase in price. I do not consider that the fact that the Raivids were finding that living “cheek by jowl” with Mr Raivid’s parents was irksome assists my consideration of this issue because the Raivids clearly knew on their own case that the new loft would add at least two months to the building programme which was even without the loft 6-9 months. I address this matter in dealing with the delay case below.

[56]I am also satisfied that the parties did not agree upon any basis for limiting what would be payable in respect of the cost. Mr Amsalem would be entitled by necessary implication to a reasonable price for this substantial additional work. Since I have found that no cap had been agreed and since the original basis for commencing the works had not involved either the removal of the old and the substitution of a new roof or the provision of any loft space, it is most unlikely that Mr Amsalem agreed to limit any reasonable entitlement he might have for payment for these additional works. At most, there might have been some discussion between Mr Amsalem and Mr Raivid that the cost of increasing the height of the outside walls would not cause a significant increase in costs over what was shown in Drawing 15A or that the cost of constructing a new loft over and above the cost of removing the old and providing a new roof would not be an enormous amount. Mr Raivid may have misunderstood what he was told in this regard. However, I am not able to make any findings on a balance of probabilities as to what was said or understood in this regard.

[57]It follows that the parties agreed that the works should be varied by the addition of the substantial loft which was ultimately provided. There was no price agreed between the parties. By necessary implication, a reasonable sum or price is due to Mr Amsalem for the execution of this variation. Such a reasonable price is not to be limited in any way. Other extras

[58]So far as air conditioning is concerned, it is accepted by both parties that this was agreed to be extra work for which Mr Amsalem was entitled to be paid. The issue is whether or not Mr Amsalem quoted a sum of £20,000 plus VAT to provide air conditioning for the entire house or whether the quoted price of £20,000 was inclusive of VAT. The point is also taken on the pleadings (Paragraph 22 of Amended Defence and Counterclaim) that the need for the Defendants to pay this sum only arose in effect as a result of economic duress. For the reasons considered below, however, I do not consider that there is any conceivable case on the facts which would support a defence of economic duress. This was not pressed during the trial.

[59]Mr Raivid’s written evidence on this issue is very “thin” whilst Mr Amsalem’s is thorough. Mr Raivid’s witness statement does not address the issue as to whether there was any quotation at all. All that he says on this topic at Paragraph 19 is:

“When requesting money, the Claimant would not specifically state what the money was for. The only exception was when he requested a cheque for £32,900 to pay for the air conditioning units and the windows from Wembley Windows and I assumed I was paying the sums to cover the building works.”

[60]I prefer the evidence of Mr Amsalem. There is, comparing his witness statement with the Amended Defence, no issue that the sum of £20,000 was quoted for the air conditioning works. Mr Amsalem was undoubtedly registered for VAT and made the requisite quarterly returns. I consider that it is more likely than not that he clearly mentioned the requirement for VAT and that Mr Raivid accepted that quotation. Thus there was agreement that Mr Amsalem would supply and install air conditioning, as he says at Paragraph 120 of his witness statement, for the entire house. That was to comprise four units on the first floor, one unit on the second floor and three units on the ground floor.

[61]So far as the supply and installation of windows is concerned, the pleadings acknowledge that an additional fee was agreed between the parties for the supply and installation of windows. Mr Amsalem’s case in evidence is that he quoted to Mr Raivid the sum of £14,000 plus VAT for the supply and installation of windows from Wembley Windows, but to include builders’ attendance work in relation thereto whilst Mr Raivid says (through the Amended Defence) that the fee agreed was £12,900 inclusive of VAT.

[62]Again Mr Raivid’s witness statement does not address the agreement other than in Paragraph 19 which contains only an oblique reference. Mr Amsalem deals with this in some detail at Paragraph 122 of his witness statement. He obtained a quote from Wembley Windows to reflect what Mr Raivid had indicated that he wanted and again that quotation was 9 February 2007; it was clearly accepted by Mr Amsalem who paid a deposit of £3,200.

[63]I accept Mr Amsalem’s evidence as being the most likely and credible version of events. It is extremely unlikely that Mr Amsalem would have agreed in effect to install the windows for less than it was going to cost him. There was bound to be some related building work which would have to be charged on top. I consider that it is probable (and I find) that Mr Amsalem quoted the sum of £14,000 plus VAT; that quote was accepted by Mr Raivid and Mr Amsalem and Wembley Windows proceeded to install the windows in about March 2007.

[64]Another matter in issue relates to the supply and installation of a burglar alarm system. Mr Amsalem’s case and evidence is essentially that he was asked by Mr Raivid to obtain a quote for a burglar alarm system. Mr Amsalem then obtained a quotation from Securebase, Mr Hekmatpanah’s firm, which contained three options, the first being an ordinary installation with a burglar alarm unconnected to the police, a burglar alarm installation which had police monitoring as an extra or what was called Red Care GSM (Grade 3 Monitoring). A quotation for the second of those was £1,345 plus VAT. I accept that Mr Amsalem showed this quotation to Mr Raivid who indicated in the first fortnight in February 2007 that he wished to have the option costing £1,345. He and Mr Amsalem agreed that the total charge would be £1,480 plus VAT which included the not unreasonable sum of £135 for associated work and supervision from Mr Amsalem and his workmen.

[65]Mr Raivid in effect by way of defence says two things. The first is that he thought that the burglar alarm was within the original cap or budget of £150,000. That is not a good defence because, as I have found, there was no set budget or cap (in actual terms) of £150,000 or at all. His second defence is that in effect Mr Amsalem provided this free and that he did not want it installed. I do not find that defence credible. He himself accepts that he told the Securebase representative that he wanted the option of connection to the police station. I consider that it is most unlikely that Mr Amsalem gratuitously provided something which a client, Mr Raivid, did not want.

[66]The next variation relates to the installation of a video entry phone system. I do not have to make any factual findings about this as no money claim is pursued because Securebase are not pressing any charge upon Mr Amsalem who is in turn not pressing his charge against the Raivids. However, if I had had to make any findings of fact, I would have found that Mr Raivid did ask the Claimant to obtain a quotation for the supply and installation of a video entry phone system and they agreed that the cost therefor should be £1,830 plus VAT. It is clear and Mr Raivid accepted that he agreed with Mr Amsalem and the Securebase representatives precisely where the entry phone wiring and equipment was to be placed in the house. The Defendants admit at Paragraph 25 of the Amended Defence that they did request a video entry phone. This would in any event have been an extra and is inconsistent with the Defendants being on a strict budget.

[67]The final extra relates to the fitting of the kitchen units. Mr Amsalem’s case in evidence is that he agreed with Mr Raivid that he would fit the kitchen units for the sum of £1,800 plus VAT. The Defendants’ case in evidence is that they never agreed such a fee and in effect that Mr Amsalem fitted the kitchen without being requested to do so by the Defendants. I prefer Mr Amsalem’s and Mr Laforet’s evidence on this. Mr Raivid’s evidence proceeds upon the basis that Mr Laforet had quoted for fitting the kitchen the sum of £1,200 plus VAT. Mr Laforet emphatically denied that upon the basis that there was a very substantial amount of kitchen units to be fitted. He was sure that “the fitting of kitchens were normally confirmed in writing” and no such written quote was provided to Mr Raivid by him or anyone else at his company. The actual quotes given and sent to Mr Raivid were only for the supply of the kitchen units. He said that given the number of units he would have quoted £1,800 plus VAT.

[68]I prefer the evidence of Mr Amsalem and Mr Laforet which is realistic and eminently believable. Whilst I do not by any means find that the Raivids were deliberately trying to mislead me, no firm figure of £1,200 was ever quoted to them as anything like a definite price for fitting all the kitchen units which they wished to have fitted. It may be that a figure of £1,200 was informally mentioned by Mr Laforet for the cost of fitting a lower number of kitchen units than were actually to be supplied. How much was paid by the Raivids?

[69]There is a stark difference on the evidence between the parties as to what was paid by the Raivids to Mr Amsalem. Mr Amsalem says that he was paid £146,400; that figure is supported by receipts (marked “invoices”) said to have been given to the Raivids and by contemporaneous documentation by way of backup to Mr Amsalem’s VAT returns for the relevant periods. Against that the Raivids say that £213,400 was paid. There is some support for this in that banking documentation for a number of accounts operated by the Raivids shows much of this being paid in cash to the Raivids at about the times when they say the money was handed over. There is no dispute that only three cheques were provided by the Raivids to Mr Amsalem; these cheques totalled £56,400. It is both parties’ case the balance of what they say was paid was paid in cash.

[70]The Raivids’ pleaded case is that payments were made in the following amounts on the following dates:(a) 17/8/06: £10,000 (cash)

(b) 19/9/96: £11,750 (cheque)

(d) 22/12/06: £11,750 (cheque)

(e) 18/1/07: £30,000 (cheque)

(f) 27/02/07: £15,000 (cash)

(g) 28/02/07: £15,000 (cash)

(h) 13/03/07: £32,900 (cheque)

(i) 23/03/07: £7,000 (cash)

(j) 18/04/07: £40,000 (cash)

(k) 18/05/07: £10,000 (cash)

(l) June 07: £10,000 (cash)

(m) June 07: £10,000 (cash) It is clear that the payments said to have been made by cheque for £30,000 on 18/01/07 was not paid by cheque. However Mrs Raivid drew a cheque for cash on her account in that sum on 19/01/07. It is said that this was also a cash payment made to Mr Amsalem at about this time.

[71]Mr Raivid accepted, frankly, that there was no corroboration for one of the two cash payments said to have been made in June 2007 and that it was likely that only one such payment was made.

[72]It is a very odd feature of the evidence that Mr Raivid, who was clearly highly experienced in money matters, says that he never secured a receipt for any of the amounts which he paid or his wife paid in cash to Mr Amsalem. Against that, Mr Amsalem says that he did provide receipts for all payments which he says that he received from the Raivids. There are documents entitled “Invoice” in the Core Bundle which record that fact. I am satisfied on the balance of probabilities that these receipts were handed over to the Raivids within a reasonably short time after payments were received from the Raivids. Records of all six payments which Mr Amsalem says were made were contained in his VAT files (kept and maintained by his accountant). I accept Mr David’s evidence that such receipts were typed out by him on the template which he had on his computer at his (relatively) regular meetings with Mr Amsalem. Thus it was, reasonably contemporaneously, Mr Amsalem recorded the sums which he had received from Mr and Mrs Raivid. Although there was a sustained attack by Counsel for the Raivids on the reliability of the invoices said to have been provided to the Raivids, I am not persuaded that the invoices were not given to the Raivids. Those records in Mr Amsalem’s VAT files are generally corroborative of the payments which he said that he received, albeit that there are some relatively minor discrepancies between such actual “invoices” as there are enclosed in each quarter’s documentation and those in the Core Bundle. The VAT files contain a summary of “Sales Receipts” which wholly support Mr Amsalem’s case of what he was paid by the Raivids. If Mr Amsalem was broadly honest, as I have found him to be, it is most unlikely that he would deliberately defraud the Revenue (or Customs and Excise) at the time. It is most unlikely that, if he is honest, in each quarter he would forget large payments made to him by the Raivids.

[73]However, I found the evidence of Mr Godfrey Raivid convincing and compelling. His evidence, corroborated by the Raivids themselves, was that because that Raivids were going to Israel to a holiday in August they made arrangements for a cash payment of £10,000 to be made by Mr Raivid senior to Mr Amsalem. Mr Godfrey Raivid said in evidence (producing his telephone records) that he telephoned Mr Amsalem on the Sunday before the Monday that the cash was handed over. He then went to his bank on the Monday morning and (supported by his own bank accounts) obtained in cash the money which had been transferred into his accounts by his son and daughter-in-law. He then telephoned Mr Amsalem who had not turned up at the agreed time and rendezvous at Mr Raivid’s senior bank. He said that Mr Amsalem then arrived and he handed over the cash to him in an envelope to Mr Amsalem. I accept that evidence. He said that Mr Amsalem simply took the envelope and did not even look inside at their meeting.

[74]It has not been suggested in cross-examination that Mr Amsalem has been dishonest or has perjured himself so far as the receipt of any moneys said to have been given to him by the Raivids or Mr Raivid senior. In my view, what has happened is that Mr Amsalem has simply overlooked and forgotten that he had received this money from Mr Raivid Senior. His paperwork is not good. His turnover in the quarter in question, July to September 2006, was just over one quarter of a million pounds and, although regrettable, I strongly suspect that he simply overlooked and forgot this particular payment possibly because it was one amongst many and because Mr Raivid Senior was not a client.

[75]As to the other payments said to have been made by the Raivids, I am satisfied that they were not made to Mr Amsalem at all. There are a number of reasons for this view:(a) I had a much more favourable view about the credibility of Mr Amsalem’s evidence than that of Mr and Mrs Raivid generally.

(b) So far as the payment of two tranches of £10,000 said to have been made in June 2007, it was only under cross-examination that he conceded that one of these sums probably had not been made. He had a sworn a statement of truth on his pleadings and had reported his written statement to that effect when giving his evidence-in-chief.

(c) I find it incredible that a man of Mr Raivid’s commercial background would not call for receipts, particularly where payments were being made in cash. Because I have found that the receipts supporting each payment made directly by the Raivids were provided, that overcomes the incredibility to this extent: Mr Raivid did obtain receipts for the payments which he received which doubtless satisfied him. If he did not receive receipts, I would have expected a note, a fax (Mr Amsalem had a fax number) or some even internal or personal record that additional unreceipted payments had been made. There are no such documents.

(d) I would have expected Mr Raivid to have picked up by way of simple inference from Mr Amsalem’s letter of 11 July 2007 and expressly from the accompanying invoice that the amount said to have been paid (£140,000) was well below what he had actually paid, if he had actually paid over £200,000 as he now says. I would have expected him to have gone back immediately and said that the £140,000 figure said to have been paid was obviously wrong, if it was.

(e) It is not credible that Mr Amsalem would have declared for VAT total receipts from the Raivids (on 16 and 21 September 06) of £51,750 if, as Mr Raivid asserts, Mr Raivid had only paid £21,750. There would be no advantage and some fiscal disadvantage for Mr Amsalem to declare VAT receipts on the higher figure if he had in fact received some £30,000 less. That then suggests that the Raivids (or Mr Raivid in particular) had access to other funds which are not shown up by the banking documentation which has been disclosed by them.

(f) It emerged, tangentially, in evidence that Mr Raivid had a number of other ventures going. He said that he had two investment leasehold properties, one of which he acquired in September or October 2006. It also emerged in evidence that there was another property in the name of the Raivids’ son, Joel, upon which property Mr Raivid said that he secured an additional mortgage to help pay for the works at No 23. Although this proves nothing directly, there were at least other areas of their lives in which the Raivids may well have had additional and substantial expenditure.

(g) I find Mr Raivid’s account of there being two cash withdrawals each of £15,000 on 27 and 28 February 2007 wholly unconvincing. He said that the bank did not have enough cash to provide a payment of £30,000 or that he had not been able to give the bank sufficient notice. There was no hint or suggestion that Mr Amsalem was being peculiarly or persistently insistent of a payment of £30,000 at that stage. Even if there was, it is wholly unclear why Mr Raivid simply could not have asked the bank to provide £30,000 in one tranche rather than in two, a day or two later.

(h) Mrs Raivid gave oral evidence that she had been involved in delivering some cash payments to Mr Amsalem personally. I found her evidence on this unconvincing. There was no suggestion in her written witness statement that she had in any way been involved with such payments, which is most surprising given that since October 2007 there has been a very clear issue as to what was or was not paid by the Raivids to Mr Amsalem. Her evidence was in effect contradicted by her husband who indicated that he made all the payments. Her evidence was somewhat vague on this. She said that she either handed money to Mr Amsalem or dropped it at his shop in Brent Street. She seemed to be unable to remember whether she went once or twice to the shop. Later she said she could not recall whether it was once or twice.

(i) The pattern of payments said to have been made by the Raivids does not seem realistic. He says that he paid only £31,750 was paid before December 2006 although he clearly had allocated sums for some £145,000 for the works and a very substantial amount of work had been done by then In making this finding, I bear in mind that there has not been an assertion by Mr Amsalem’s Counsel that the Raivids were dishonest; I certainly make no findings in that regard. What appears to have happened is that they clearly made a number of cash withdrawals from their banks only some of which appear to have been made to Mr Amsalem; they must have confused or convinced themselves that more were made to Mr Amsalem than were made.

[76]Accordingly I find that a total of £156,400 was paid by the Raivids to Mr Amsalem for and in connection with the works at No 23. The Raivids’ purchase of fittings and finishing materials

[77]The Raivids seek to argue that the doctrine of economic duress applies to them being required by Mr Amsalem, as they say, themselves to acquire and pay for a substantial amount of fittings and finishing items, such as kitchen units, tiles, baths and WCs.

[78]Dyson J (as he then was) in DSND Subsea Ltd v Petroleum Geo-Services ASA

[2000] BLR 530

said this:

“The ingredients of actionable duress are that there must be pressure, (a) whose practical effect is that there is compulsion on, or a lack of practical choice for, the victim, (b) which is illegitimate, and (c) which is a significant cause inducing the claimant to enter into the contract: see Universal Tankships of Monrovia v ITWF[1983] AC 336, 400B-E, and The Evia Luck[1992] 2 AC 152, 165G. In determining whether there has been illegitimate pressure, the court takes into account a range of factors. These include whether there has been an actual or threatened breach of contract; whether the person allegedly exerting the pressure has acted in good or bad faith; whether the victim had any realistic practical alternative but to submit to the pressure; whether the victim protested at the time; and whether he affirmed and sought to rely on the contract. These are all relevant factors. Illegitimate pressure must be distinguished from the rough and tumble of the pressures of normal commercial bargaining.”

He followed that approach in Carrillion Construction Ltd v Felix (UK) Ltd

[2001] BLR 1

[79]In no respect have the Raivids made out any case on economic duress. The facts are in every material respect against them on this:(a) I am satisfied on the balance of probabilities that from the start, that is March 2006, the Raivids and Mr Amsalem were agreed that all sanitary ware, kitchen units, windows, doors and associated fixtures, wood flooring and carpet and floor and wall tiles would be supplied by the Raivids.

(b) Since no fixed price lump sums were agreed between the parties, save as indicated above, it follows that with regard to the large bulk of the works that Mr Amsalem was only entitled to a reasonable price for the work done and materials supplied by him. It was no part of his entitlement that he should be paid any sums in respect of materials and fittings to be supplied by the clients.

(c) There was no pressure of any sort put by Mr Amsalem on the Raivids with regard to the provision of the materials, fixtures and fittings to be supplied by them. That was the original agreement. There was no cap as I have already found. Mr and Mrs Raivid simply did what they were always intending to do which was to choose their own items for bathrooms, kitchen, doors and tiles. Those are matters primarily of personal taste and that is something which they wished to do.

(d) There was no compulsion on the Raivids so far as this was concerned. There was no actual or no threatened breach of contract by Mr Amsalem who had no obligation in the first place to provide these items. There was no bad faith on the part of Mr Amsalem. There was no protest (as Mr Raivid accepts) by him at any stage. Even in their letter of 12 July 2007, although they refer to the fact that they had spent money on these items, they do not protest that they were forced to pay for them themselves. It was not raised as an issue as such in the Defendants’ Pre-Action Protocol response letter. The Raivids continued with the contract for seven months after the time when Mr Raivid asserts that he was told that materials, fixtures and fittings would be extra. Effectively he affirmed the contract by continuing with it.

(e) Mr Raivid’s evidence on economic duress was particularly thin. He said at Paragraph 20 of his statement:

“I met with [Mr Amsalem} at the property. [He] stated that the £150,000 agreed was just for him and that all materials, fixtures and fittings etc would be extra. This was certainly not my understanding of the agreement. I felt that I had always made my position clear as to what my budget was. I initially became concerned about the payments at that point. I did not raise an objection at the time. Part of me wanted to give [Mr Amsalem] the benefit of the doubt. I did not want a confrontation with [Mr Amsalem]. I had no choice but to reluctantly agree to this revised agreement as my house was totally uninhabitable and the Claimant was not working in the house in a consistent basis so as to finish things off.”

A statement such as is attributed to Mr Amsalem is not and was not (if it was made) pressure, let alone illegitimate pressure within the terms of the DSND decision. It was, if made, simply a statement which, if right was not illegitimate pressure; if not right, it was just a statement which could have been refuted. There was no compulsion on Mr Raivid; he could simply have said “No” or had a rational discussion with a man who was and remained a friend for some months thereafter.

[80]There is no particular way in which the cost of the materials and fittings supplied at the cost of the Raivids needs to be accounted for. The Claimant is not entitled as such to the cost of the materials or to any mark up with regard to the materials. He is obviously entitled to a reasonable or as the case may be any agreed price for the reasonable cost of fitting the various items supplied by the Defendants.

[81]I find that there was no economic duress and the purchase by the Raivids of over £64,000’s worth of fittings and finishing materials arose as a result of the underlying agreement between the parties. Repudiation

[82]It follows from my findings above that it was the Raivids who repudiated the contract (or contracts) between them and Mr Amsalem. They did this in effect by indicating that they would pay him no more money and by preventing him and his workmen from completing the works. They denied them access to the site and made it clear that they did not wish them to continue working at No 23 after 9 July 2007. That repudiation was accepted by Mr Amsalem. I am wholly satisfied that no threat was made by Mr Amsalem. The Raivids have not established on the balance of probabilities that he said to them the words to the effect “I know people who can deal with you”. For reasons indicated below, I am not satisfied that Mr Amsalem was in culpable delay by 9 July 2007. I do not see that that would be capable of being repudiatory in circumstances where there had on any account been a substantial amount of extras which had extended the original scope of works and where time had not been made of the essence of the contract by notice or otherwise.

[83]I would in any event doubt that general requests for money from a builder could be said to be repudiatory at least in the circumstances of this case. I am satisfied that there were no unwarranted demands for money by Mr Amsalem. The value of the works

[84]Save in respect of those items where there was specific agreement as to lump sum fixed prices, the large bulk of the work falls to be valued on a reasonable price basis. On this alternative, the parties are agreed. To that end the expert quantity surveyors and parties produced a Scott Schedule with detailed responses thereto. The experts produced reports and, more importantly, an Agreed Schedule of Differences. There are some anomalies between that Agreed Schedule of Differences and the Scott Schedule. One needs to have regard to both.

[85]There was some discussion as to the legal basis for evaluating a reasonable price. A number of cases in restitution relating to non contractual quantum meruit were relied upon. I do not consider that they assist much in the light of the factual findings which I have made. However, the experts were broadly agreed that one can start with a market value price for this type of work in this part of North London and deduct for incomplete or defective work. That seems to be an appropriate way to address quantum in this case.

[86]I will deal with each of the items on the Scott Schedule where and to the extent they remained in dispute; this includes counterclaim items. I will do this numerically in order. Scaffolding/Preliminaries (item 2)

[87]The experts and ultimately the parties were agreed that 14½% was an appropriate addition. I prefer the evidence of Mr Evans on this. Mr Harrison’s oral evidence on this was not compelling when on the second day of the experts’ evidence (which was heard together) he produced a calculation which suggested that 7% to 8% was an appropriate figure. However, both Counsel confirmed to the Court in closing that 14.5% was the proper figure to adopt.

[88]However, Mr Evans says that scaffolding should not be considered as being part of the preliminaries that should be charged for and paid in addition. His evidence was that he has always considered the scaffolding as being an item to be priced as part of the basic building cost. Mr Harrison however says that the 14½% allowance is adequate to cover the cost of scaffolding and that scaffolding is often included within preliminaries. There can be no doubt that a substantial amount of scaffolding was required for this project for significant periods of time. It would have been required on all elevations to enable the extensions and the loft works to be carried out as well as to put in windows and carry out external works. Mr Evans allows for scaffolding a sum of £13,849.78 including preliminaries and overheads and profit added on. To that end Mr Evans produced a breakdown of what the preliminaries cost allowances might reasonably be expected to be. That shows a total including overheads and profit of £37,617.25. Mr Harrison challenges the build up of the preliminaries as excessive. For one reason or another he had not seen the preliminaries build up before the first day on which he gave evidence. Accordingly on the second day he came back with alternative figures. I accept Mr Evans’ figure for preliminaries which, exclusive of overheads and profit, is £34,117.50. It is arguable that elements which go to make up that total are excessive or under estimated. For instance there is an allowance for a WC for 43 weeks at £100 per week. It is likely, as proved to be the case, that the workmen could use the WCs in the house for a period of time and the allowance is therefore excessive. However the allowance for rubbish clearance which is £1,612.50 is substantially below what even Mr Harrison suggests. Accordingly overall I am satisfied that a reasonable allowance for preliminaries would be £34,197.50. However, that equates to some 12% of the base building cost put forward by Mr Evans. I have reduced his figures by some £30,000 in the exercise set out below

[89]It seems to me that the appropriate allowance for preliminaries remains 14.5% to allow for some scaffolding. However the net extra over cost for scaffolding and above the product of the net building cost should be allowed. I assess it at £2500. Entrance hall (item 4)

[90]Mr Evans said that the total value of Mr Amsalem’s work if properly completed would have been £4,761.16; however he allowed a figure of £4,417.11 allowing some £344 to represent the value of work not done or not done properly. In the Scott Schedule and the Joint Schedule, the experts appeared to be agreed that the value of work executed to date was £4,417.11. However Mr Harrison sought to argue in evidence that that value should be reduced to £4,056.04. However at the end of his evidence on this topic he reverted to accepting that the figure of £4,417.11 was appropriate. Kitchen extension (item 7)

[91]On analysis the only real difference between the parties relates to whether or not Mr Amsalem should be paid for the costs of tiling where it is alleged that all the tiling has been defectively laid. I will return to this when dealing with defects. Suffice it to say I am not satisfied that the tiling is significantly or seriously defective. However it is the case that over the last 16 months since Mr Amsalem carried out the tiling work that there has been some loss of grout and more recently some cracking to several tiles in the kitchen. I am satisfied that the contractor in the circumstances would in all probability have accepted the need to carry out snagging and minor remedial works to put right the problem. He would have done that at his own expense. Accordingly some allowance needs to be made for the cost of addressing the problem which has arisen. I consider that a reasonable allowance of the figure otherwise agreed of £22,303.62 would be an allowance of just over £300 to round the allowable figure for the value of work executed down to £22,000. WC under stairs (item 8)

[92]On analysis there are two matters in issue here. The first relates to the floor tiles which are said to suffer from the same defect as experienced in the kitchen. Again, I am not satisfied that there is a culpable defect but there is some work which would have been done by Mr Amsalem free of charge during the snagging period to put right grout which had become debonded between the tiles. In my view a reasonable allowance for this will involve a reduction of £100. The second matter relates to the fact that the wall tiling was not finished so as to abut against the door frames. In this regard Mr Evans has already made an allowance (taken into account in his value of work executed to date £3,265.60) for an architrave to be fitted around the door. There is no doubt that something remains to be done around the door frames. I have no reason to doubt that the fitting of an architrave would not conceal the fact that the tiling does not perfectly abut the door frames. I find that the allowance made already by Mr. Evans of £38 to be a reasonable one. Accordingly overall there will be a reduction of £100 against Mr Evans’ value for the floor tile problem. Bedroom 1 (item 11)

[93]A number of issues arise here which also arise on other first floor rooms. The first issue is whether or not Mr Amsalem should be paid anything for the provision of a steel beam. Mr Harrison says that it is superfluous and of the wrong size He accepts that the steel beam provided was shown on one of Mr Bolt’s drawings to which Mr Amsalem was working. However he says that regard should be had to the Engineer’s Drawings which he says are to be found in the Technical Drawings Bundle. However the so called Engineer’s Drawings appear to be architectural drawings with some handwriting on. They seem to indicate, however, that there is to be a beam in the floor. I do not see why Mr Amsalem should not be paid for providing the steel beam of the same size and in exactly the position that it was shown on the architect’s drawings to which he was and was being asked to work. It was also suggested that the steel beam at one end dipped slightly below the surrounding floor whilst at the other end stands proud of the surrounding flooring. At the lower end a filler piece has been provided. I have formed the view that in the ordinary course of events the Contractor would at his own expense carry out some levelling work to ensure that the steel beam did not protrude above the surrounding floor. A reasonable further allowance by way of reduction to allow for this would be £200.

[94]The next issue relates to whether an entirely new timber floor has been provided in this bedroom. Another issue is whether or not insulation has been provided. I am satisfied based on the evidence that insulation was provided between the joists. However the part of the floor was in an area where there was existing flooring. Whilst I accept that the floor was entirely replaced, it is likely that some of the old floor joists were used or at the very least could and should have been used. Mr Harrison referred to an allowance of £85 for this. I accept that figure.

[95]Another point is taken by Mr. Harrison which is that on top of the flooring sound insulating chipboard or acoustic board has been laid inappropriately. This is because, it is said, it has been screwed down which reduces its acoustic qualities. However, although the acoustic boarding has been screwed down, it is not necessary that acoustic wood was used at all because insulation was provided between the joists for noise attenuation purposes. Thus it was simply laid as a deck and not particularly as an acoustic deck. I will return to this however in addressing the Counterclaim.

[96]In addition the point is made (as was evident on the site visit) that there is cracking in the wall where the new walls meet the old. In the ordinary course of events and at his own expense, Mr Amsalem would have come back and made good that crack and redecorated in the area. Whilst an allowance of £45 has been given by Mr Evans and taking into account in his overall figure, I consider that a greater amount should be allowed, namely an additional £55 to put that right.

[97]It follows from the above that from Mr Evans’ valuation of £12,513.61 an additional £340 should be deducted, leaving a total of £12,173.61. Bedroom 2 (item 12)

[98]A number of points are taken. It is said that so far as steelwork used in this floor fire casing was not fitted. I am not satisfied that fire casing was required; I accept Mr Evans’ evidence in this regard. It is said that pad stones had been included in Mr Evans’ valuation (which they have) in circumstances where pad stones have not been provided. I am satisfied that pad stones had not been provided and accordingly a reasonable allowance should be £212.52.

[99]There is a similar argument that insulation was not provided and existing floor joists were probably retained. It turns out that insulation was provided but that some of the existing floor joists could or should have been used therefore an appropriate allowance to make for the reuse of floor joists is £100.

[100]There is a similar argument about acoustic chipboard having been fixed. For the same reasons as before that is not a good argument.

[101]Virtually the whole of the flooring cost was excluded because it was said by Mr Harrison and the Defendants that the flooring in this bedroom had an unacceptable slope. It is clear that there is in one small localised area a slope. In the ordinary course of events, Mr Amsalem would have made this good at his own expense. I am satisfied that a reasonable allowance to resolve this difference would be £100.

[102]From Mr Evans’ total of £14,151.17 and for the value of works executed to date, there should be deducted £412.52 leaving a balance due for this work of £13,738.65. Bedroom 1 en suite (item 13)

[103]Mr Evans’ valuation for this work is £3,563.85 which takes into account some £77’s worth of outstanding work. A number of points are taken. It is said that the underfloor heating does not work and therefore nothing should be allowed in respect of it. I accept that it does not work but it has not been established why. The onus is on the Defendants in this context. However I do accept that this is one of those snagging matters which the Contractor would put right at its own expense in time. An appropriate allowance for this is £100.

[104]There is a similar complaint about the limestone floor tiles; for similar reasons to those set out above, a reasonable allowance should be made in relation to this of £50. There is a complaint about the fact that the wall tiles were not left perfectly abutted against the doorframe. Again, this is something which could have been dealt with by way of the imposition of an architrave; an allowance for that should be made, in this case namely £40.

[105]There are complaints that the bath and basin taps do not provide both hot and cold water. I am not satisfied that the Defendants have established their case on this on a balance of probabilities. However this type of complaint would have been addressed by Mr Amsalem upon snagging and I am satisfied that an appropriate allowance to make against this would be £100 for a plumber’s time.

[106]It is hinted or suggested that no new floor was provided in this bathroom at all. I am satisfied that a new floor was provided, albeit that some of the old joists could and should have been reused. An allowance of £100 should be made for this.

[107]Allowing for the above reductions a sum of £390 should be deducted from Mr Evans’ evaluation. Master bathroom (item 14)

[108]It is said that the timber floor did not need to be replaced. I am satisfied that it was replaced and that it was reasonably necessary. There is a complaint again about the floor tiling and for similar reasons I am satisfied that an allowance should be made in addition to that which has already been made by Mr Evans of £50. As far as wall tiling is concerned, there is a similar complaint as before; I am satisfied that an adequate allowance has been made by Mr Evans for architrave work to address this.

[109]It is said that the underfloor heating was not working. I adopt a similar reasoning to that in relation to the previous item and make an appropriate allowance of £100. There is complaint that the towel rail is not connected to electricity. That is clear from looking at it. This is something which the Contractor, I am sure, would have dealt with as a matter of practice sooner or later. A reasonable allowance for that is £50.

[110]There is a complaint that there was no access panel in the bath panel. I am not satisfied that this complaint has been made out. Mr Amsalem said in evidence that there was access but that he had grouted it up so that it would not look as if there was access.

[111]An additional £200 reduction should be made from Mr Evans’ evaluation. Bedroom 4(item 15)

[112]There is an issue as to whether a new floor was provided in this bedroom. Mr Evans accepted, and I find, that it is likely that the basic joists were not and need not have been redone. Mr Evans accepted that there should be a reduction of £798.40, which in my view is a fair reduction to make.

[113]Similar points are made about the use of acoustic deck. I do not consider that this is a good point.

[114]There will therefore be deducted from Mr Evans’ evaluation of £7,155.59 the sum of £798.40. Bedroom 4 en suite and dressing room (item 16)

[115]There is a complaint about the floor tiling not having been laid properly. For similar reasons to above, an allowance should be made. £20 has already been allowed by Mr Evans. I consider that an additional £30 should be allowed. There is an argument about the architrave around the door and the tiling. My views are similar and adequate allowance has already been made by Mr Evans. It is said that the underfloor heating does not work. For similar reasons to those set out above I think that an allowance should be made against this of £100. Some of the existing floor joists could and should have been reused; an allowance of £100 should be made.

[116]Against Mr Evans’ allowance a further reduction of £230 should be made. Bedroom 3 (item 17)

[117]It is suggested that there was no need to replace existing floor joints. I find that it is likely that the joists were replaced given the extensive gutting that the building had to undergo. There is, however, some evidence pointed out by Mr Harrison that part of the timber floor and its existing joists may not have been replaced. I accept that as a probability. I think that it is appropriate to reduce Mr Evans’ overall allowance of £6,714.20 by £900 which is just over half of his pricing of the new flooring part of the work. The net sum allowable is £5,814.20. Bedroom 3 en suite (item 18)

[118]There are arguments raised by the Defendants relating to whether a new floor was provided. I am satisfied that there was but some of the existing joists could and should have been used for which an allowance of £100 should be made. There was a complaint about the floor tiles but I am not satisfied that there was any problem in this regard. An allowance of £20 has been made by Mr Evans which in my view is sufficient. There is another complaint about the gap between the wall tiles and the doorframe. Adequate allowance has been made by Mr Evans for that. There is another complaint relating to the underfloor heating; in my view an allowance of £100 should be that for that.

[119]From Mr Evans’ evaluation an additional £200 should be deducted. WC off landing (item 19)

[120]There is no complaint made here which has not been made before. I am satisfied that a new timber floor was provided although some of the existing joists could and should have been used for which an allowance of £50 should be made. I understand as far as the floor tiling is concerned that Mr Evans has made an adequate allowance so far as floor tiling in this room is concerned and for an architrave around the door to accommodate the wall tiling problem. No further reduction should be made. Landing on first floor (item 20)

[121]There are no new points raised here. Some of the existing joists could and should have been used for which an allowance of £100 should be made. I do not consider that any further reductions could or should be made to Mr Evans’ evaluation. Materials not in measure (item 22)

[122]Mr Evans claims for materials for which he has made no allowance in his valuations elsewhere. Mr Harrison accepted in evidence that some allowance could or should be made here but he did not accept any particular figure. I accept that allowance should be made for these matters, given that much of Mr Evans’ evaluation has been accepted by me and to a somewhat lesser extent by Mr Harrison. Allowance must be made somewhere for these materials. However much of the invoicing in the bundles provided to the court does not particularly or peculiarly attribute or allocate some of these materials to the work at No 23. In all the circumstances I consider that a reasonable allowance to make against the total of £2,119.12 claimed for this is £1,500, even allowing for overheads and profit which have not been claimed. Plumbing costs

[123]Mr. Amsalem with Mr Evans’ endorsement claims the sum of £40,867.70 as being the plumbing costs shown from the disclosed documents relating to No 23.

[124]Essentially, the Defendants through their expert have proceeded upon a misconception (as it has turned out). Mr Harrison has assumed that the reasonable sum for all the plumbing works was £27,000 because this is the sum apparently quoted for by Mr Amsalem in March 2006. I have however already found that there was no fixed price lump sum accepted at that stage or ever with regard to work which included for plumbing. At best, the figure of £27,000 was very indicative and approximate and was put forward at a time when the drawings revealed virtually nothing so far as what plumbing was required and showed a substantial amount of confusion as to the extent of the en suite facilities, at least on the first floor. No weight can be attached to that figure given that by the time that Mr Amsalem had left the site final choices had been made with regard to heating, boilers, en suite facilities, kitchen sinks and the like.

[125]Since Mr Evans’ figure of costs incurred to date does not include various controls, the supply and fixing of radiators, the fixing of lavatory basins in all bathrooms and the fixing of kitchen sinks and appliances, there can and should be no reduction for the costs of those items.

[126]There are however two matters why there should be some reduction. It is clear that in the loft there is a problem with regard to the heating. Although the radiators were fixed by others, there may well be a problem in the circulation of water through the pipes. It is wholly unclear (and the Defendants have not established) what the problem is. It is suggested that all that is needed is some balancing. I consider that a reasonable allowance to be made by someone in Mr Amsalem’s position would be £200 to allow for balancing and finally getting it to work. This would be done as part of snagging and would not be charged for. There is a repeated complaint about the hot and cold water taps to the bathroom which is en suite to Bedroom 1 which I have dealt with above. There was some discussion in evidence between the experts as to what objectively would be a reasonable price for the value of the plumbing works executed to date. Mr Evans thought that his figure was towards the upper end of the range whilst Mr Harrison thought that £35,000 was “being generous, a fair price”. I have a strong suspicion that if one allowed in addition to the costs of £40,867 incurred by the Claimant to date, the value and cost of supplying and fitting boilers and controls, radiators, fixing lavatory basins and kitchen sinks this would total something approaching £50,000. That strikes me as an excessive price for what is not an extraordinarily luxurious plumbing installation in a house such as this. Doing the best that I can I assess that a reasonably fair allowance for plumbing work executed by the Claimant to date is £38,000. Electrical Costs

[127]Mr Amsalem (supported by Mr Evans) claimed by reference to the original value of £29,000 referred to for electrical works in Mr Amsalem’s Hebrew notes prepared for his meeting with Mr Raivid in March 2006.

[128]Mr Harrison has done a calculation (the details of which were not produced) which show that £21,202.42 is allowable based on physical measurement of light fittings, switches, etc. on the ground and first floor. He seems to accept that a basic sum of £29,000 if the works had been completed would be appropriate. It was most unhelpful that Mr Harrison had not provided the detail of his breakdown before giving evidence. He gave from the witness stand some evidence of allowances that he had made. For instance he said that he would allow £70 for a socket and £60 for low voltage lights. Mr Evans considered that the rates were too low. He considered that a reasonable allowance for a double socket would be £85 to £90 or for a single socket of £80 to £85. It is likely that most of the sockets were double sockets.

[129]Since both experts seem to accept that a sum of £29,000 would represent a reasonable or appropriate price if all the works had been completed, I should go on to determine doing the best that I can what the value of the works completed by the time that Mr Amsalem left the site was. Since I prefer the evidence generally of Mr Evans, I consider that Mr Harrison’s evaluation of £21,202 was too low. However his approach of seeking to measure and price all the works carried out was an appropriate one but his rates were likely to be low. Doing the best that I can I form the view that an appropriate figure is £25,000. I will return to the question of defects later. Roof extension (item 26)

[130]Mr Evans’ evaluation is £84,763.12. It is not wholly clear as to every basis upon which Mr Harrison challenges these figures. He deducted £452.68 plus overheads, profit and preliminaries for fire casing not installed. However Mr Evans in his figure for steelwork (£452.08) had already adjusted for fire casing not being installed. That was (and was accepted by Mr Harrison) a bad point. It is said that there was no insulation between the joists. However I am satisfied that there was insulation between the joists; I accept Mr Ustinov’s evidence on this. The point is taken by the Defendants that an acoustic deck was used and because it was screwed down it was not in accordance with the supplier’s recommendations. However for reasons indicated earlier, even if this was the case, that would not involve a reduction of the price.

[131]There is an assertion that the price should be reduced to reflect the fact that three rooms were built rather than one. Though the quantum for this is agreed by the experts (£2,956.77), I have found that it was agreed between Mr Raivid and Mr Amsalem that there should be three rooms. Accordingly there should be no reduction for this.

[132]Accordingly I am satisfied that there should be no reduction below the figure put forward by Mr Evans as the value of works executed up to July 2007. Air conditioning (item 27)

[133]I have found that there was an agreed price of £20,000 (plus VAT) for air conditioning throughout No 23. Mr Evans assesses the value of work executed by Mr Amsalem at £17,400 whilst Mr Harrison puts forward the figure of £10,210.

[134]In this instance I prefer the evidence of Mr Harrison. Whilst air conditioning units were provided to the first floor and the loft, the units had not yet been supplied to the ground floor. Given that a significant amount of commissioning work remained to be done as well as the supply and fitting of the ground floor units, I form the view that a reasonable allowance (subject to any question of defects) is £10,210. Intruder alarm (item 28)

[135]I find that there was an agreed price for the provision of the intruder alarm. Securebase has taken back the actual equipment but has spent time, money and effort in providing the requisite wiring and other related work that was carried out. Mr. Amsalem only seeks to claim the sum of £740 which he has paid to Securebase. That figure is wholly reasonable, given particularly that overheads, preliminaries and profit are not added to it. Fitted kitchen (item 31)

[136]For reasons indicated earlier in this judgment this sum will be allowed in full subject to minor reasonable allowances for finishing the work off. Mr Evans and Mr Amsalem have allowed a sum of £110 for such works. That is an appropriate allowance in my view to make.

[137]I now move on to the defects which are identified at items 36 to 52 of the Scott Schedule. It is an unfortunate state of affairs that there is very little evidence from the Defendants or their expert as to what was defective and, more importantly, why there is very little evidence of what has been paid to other contractors and where there is what those contractors have actually done. Removal of things, rubbish (item 36)

[138]There is no evidence that the Defendants have incurred any costs with regard to the removal of any rubbish of the Claimant. In the normal course of events, if there was rubbish, the Claimant would have been expected to remove it but the costs of cleaning up would have been recoverable as part of the reasonable price. There is no justifiable claim in this regard. Door frames intumescent strip (item 37)

[139]The sum of £850 is claimed by the Raivids. There is no evidence that this amount has actually been paid out to anyone. The doors were provided by and at the cost of the Raivids. Intumescent strip is usually provided either within the doorframe or on the door as part of the fire stopping requirement. There is nothing allowed in Mr Evans’ evaluation work done by Mr Amsalem for fitting doors let alone fitting intumescent strips. There is nothing therefore to be deducted. Attic floor heating remedial works (item 38)

[140]I have already made an allowance with regard to this. There is no and certainly no reliable evidence as to what is wrong with the attic heating. The radiators were fitted by workmen employed by Mr Raivid. The counterclaim in this respect is simply not proved. In any event I have made an appropriate allowance for balancing and other works not having been done (unsurprisingly) by Mr Amsalem which should compensate Mr Raivid at least to some extent. The quantum claimed was in any event excessive. It proceeded on the basis that the floor would be taken up albeit that Mr Harrison accepted that the pipes were to a very large extent at least not in the floor at all but behind plasterboard walls. Air conditioning (item 40)

[141]Again there is no expert or indeed other evidence to demonstrate what is wrong with such air conditioning equipment and insulation as has been provided. There is a report from a Mr Zion David of Polar Air Solutions brought in by Mr Raivid in September 2007. His report of 1st October 2007 indicated that the systems were Fujitsu manufactured and that there were five central systems and a single outdoor unit. He found that a pipe to the outdoor unit was leaking so he “braized in” a new section. He found that four of the five systems were operating but the fifth system (which I understood later to be in the attic) was “not cooling sufficiently”. He did not offer any opinion as to why the fifth system was not cooling sufficiently. He was not called as a witness. It is said that Polar Air were paid £1,800 but Mr Raivid gives no evidence that this is paid. Mr Harrison had asked for the invoice but it had not been supplied nor has any proof of payment. This counterclaim simply has not been proved. I do have some sympathy however for the Raivids but I consider that most of the problems which they have had stem from their repudiation of the contract at a time when the air conditioning was, as I have found, nowhere near complete. They have not been prepared to use the same plumber or workmen who Mr Amsalem used and they have not apparently approached the manufacturers Fujitsu. The allowance which I have made off the sum claimed for air conditioning by Mr Amsalem result in the Raivids not having to pay some 50% of what would have been due if Mr Amsalem had been allowed to complete the work Gutters (item 40)

[142]Mr Harrison described how when he had visited the premises water was “pouring off from the gutters”. It was clear to him that the water was not flowing away properly. Mr Evans has apparently not seen this. However I am satisfied that at least some of the gutters were not laid to proper falls. In the ordinary course of events this would have been dealt with towards the end of the job or by way of snagging. A reasonable allowance doing the best I can would be two days’ work for two workmen. I consider that a reasonable allowance by way of damages or abatement of the Claimant’s claim is £800 for four man days work. Underground drainage/front garden (item 41)

[143]This counterclaim is in two parts. The first relates to the cost of digging up the front drive and carrying out alterations to drainage as agreed with Barnet. This work was carried out by Pioneer Developments (London) Ltd employed by the Raivids. Though £3,600 is claimed, the invoice was for £4,230 including VAT. The second part relates to a claim for £11,000 for “making good front garden, side passage etc.” for which there is no invoice or receipt or indeed any record of payment at all. There is no evidence from the Raivids about this at all. I have no hesitation in finding that the claim for £11,000 has simply not been established. It is clear that at some stage after Mr Amsalem left in July 2007 a substantial amount of work was done to the front garden which has now been substantially covered with a drive. The photographs taken in July or August 2007 do show that the front garden was left in something of a mess in that drainage work was in progress at the time that Mr Amsalem’s contract was terminated.

[144]It is clear however that there was some defective drainage work. It appears, and I find, that what happened is that, wrongly, Mr Amsalem’s workmen had combined the foul and surface water drainage run-offs into one drainage run when it should have been into two. That was a failure to carry out the work in a proper workmanlike manner. However I am not satisfied that the whole sum invoiced by Pioneer necessarily reflects the true reasonable cost of simply putting right that defect. In the absence of any direct evidence about this I consider that a reasonable allowance is £1000 as representing some 6-8 man days work and some materials. Supply and fixing boiler/radiators/sinks and basins (item 42)

[145]This is essentially a cost claimed being the increased cost of supplying and fixing items for work which had not been fixed by the time of the repudiation. The claim cannot succeed once it has been established (as it has) that it was the Defendants who repudiated. The valuation of the plumbing work takes into account the fact that these items had not yet been supplied and/or fixed. Condition of wall tiling (item 43)

[146]This claim is for the costs of completing the wall tiling. Allowance has already been made in my evaluation of the Claimant’s work for the cost of providing architraves which I consider was the appropriate way to address this problem, if it was a problem at all. Adequate allowances have already been made for this in my valuation above and this counterclaim fails. Redecoration (item 45)

[147]Although no backup evidence or documentation supports this claim, essentially the Raivids claim £6,000 for redecoration which will have to be done when the works are completed. It is on analysis claimed as a consequence of the termination. As I have found that it was the Raivids who repudiated the contract the increased cost of redecoration is not recoverable. However an allowance (albeit not by way of counterclaim) should be made against the Claimant’s value of work to reflect what would have been done as a matter of snagging a few months after completion if Mr Amsalem had been allowed to complete. The sum of £370 is admitted on this basis and it is the amount that I would propose to allow. Floor tiling (item 44)

[148]This relates to what is said to be the defective work involved in limestone floor tiling throughout the house. This has been referred to elsewhere in this judgment in relation to the valuation of various works throughout the house. Essentially, I am not satisfied that the Defendants have proved their case. Whilst it is established (as was clear on the site visit) that some grout is coming out from between the tiles and that several tiles throughout the house are cracked there has been no reliable evidence as to why this is the case. Mr Harrison is a Quantity Surveyor and cannot be expected to provide an informed view as to why this is happening. It seems to be happening in some places but not in others. That suggests to me that there is not an all-pervading problem. It is suggested by Mr Harrison, tentatively in my view, that because the tiles had been laid on wooden floors no allowance has been made for the movement of the wooden floors. However, it is accepted that this type of tiling can be laid on wooden floors successfully. The fact that grout is coming up in some places and there is in places some cracking does not necessarily establish that there has been some all pervading breach of contract on the part of the Claimant.

[149]A very substantial amount of money (in relative terms), about £20,000, is being claimed for this. I have made some allowances for what would have been done (free) by Mr Amsalem upon completion or during the snagging period afterwards for putting right localised areas of cracking and grout extrusion. It seems to me that this is the most that can reasonably be allowed. The Defendants had not begun properly or effectively to prove their case. New underground telephone connection (item 46)

[150]This claim has simply not been proved. The sum of £842.65 is claimed but there was no evidence or invoice to support it. It does not appear to involve any allegation of defect. Barnet’s fees (item 47)

[151]This relates to fees payable to Barnet in connection with attic works. There was no breach of contract on the part of Mr Amsalem with regard to the attic work. If Mr Amsalem had paid these fees to Barnet they would have been recoverable by him as part of the reasonable price. They have not been so claimed as such. In any event, it seems to have been agreed between Mr Raivid and Mr Amsalem that the Barnet Building Control fees would be paid by Mr Raivid in any event.

[152]A sum of £1,000 is claimed for opening up and making good costs in connection with the attic works. As there is no valid counterclaim in respect of the attic and its possible non-approval by Barnet, there is no claim. I do not consider that it has been established that it was Mr Amsalem’s responsibility to secure building control approval. I accept the evidence that there was a substantial amount of inspection and approval in any event by Barnet’s Building Control Department as the loft work was being done. Nothing will be allowed against this claim. DPC bridging (item 48)

[153]I am satisfied on the evidence (including photographic evidence), that a substantial amount of rendering was done by Mr Amsalem and his workmen which bridged the DPC. There is little point having a DPC if it is bridged by rendering because the dampness can then bypass the damp proof course. I am satisfied that there was bad workmanship in this case which in the ordinary course of events would necessarily have been put right by Mr Amsalem sooner or later. In my view a reasonable allowance here is £1000 to represent what it would reasonably have cost Mr Amsalem to remove the bridging and restore what should have been provided in the first place. My site view suggested strongly that this was not a simple one day job as suggested by Mr Evans. MDF skirtings and architraves (item 49)

[154]It is wholly unclear from the pleading and from the written evidence what this claim relates to. As drafted in the Scott Schedule, it is:

“Costs of supplying and fixing simple MDF skirtings and architraves on GF in lieu moulded sections Less … completion cost EO costs of finishing stairs Less … completion cost adjust kitchen units as Pioneer invoice”

. So far as I can ascertain the claim is for a net sum of £220. It is not specifically referred to in the Amended Defence and Counterclaim. It is not specifically addressed by the Raivids or any of their other witnesses, including Mr Harrison in his expert report.

[155]If this item is an allegation that in breach of a contractual term or requirement Mr Amsalem supplied and fixed moulded section skirtings and architraves, it has not been established either that it was a contractual requirement or that there was any breach of it. The quantum seems to be extrapolated in some undefined way from an invoice from Pioneer. Even if there was an established breach (which I find that there was not), I accept Mr Evans’ evidence relating to the valuation of works in which he did not allow in any event for skirtings and architraves and that if Mr Amsalem had been permitted to complete the work there would in all probability have been no extra over cost in any event. This claim fails. Levelling floor in BR1 (item 50)

[156]I have addressed this complaint in dealing with the valuation of works in BR1 (see above). I have accepted that in effect Mr Amsalem was in breach of contract for failing to complete the surrounding flooring around the RSJ leaving the RSJ proud. That would need some work to put right. However, I have made an adequate allowance in effect for what it would have cost Mr Amsalem to put right this relatively minor problem. Accordingly, since it was the Defendants who repudiated the contract their damages would be limited to what it would have cost Mr Amsalem to complete the works. I have formed the view that the surrounding flooring would not have to be taken up. Levelling floor in BR4 (item 51)

[157]Exactly the same considerations apply to item 51 as apply to item 50. Acoustic chipboard (item 52)

[158]The claim for such remedial works is not as such quantified. The Scott Schedule says that these works “may not be an economic proposition”. It goes on to say however that the furniture and carpets should be removed and the screws used to hold the acoustic chipboard down removed. The cost is said to be £1,800.

[159]There is an acceptance by both experts that acoustic boards should not be screwed down because that reduces the sound attenuation qualities of the board. It is clear that Mr Evans’ valuation of these floors identifies a substantial amount per square metre for the provision of a sound deck. In the overall rate for providing a timber joisted floor, insulation, noggings, ply and sound deck (£75.57 per metre squared), £27.55 plus profit and preliminaries is attributed to the provision of the sound deck. If Mr Amsalem is in effect charging for expensive acoustic board, it should have been fixed properly. In those circumstances, I am satisfied that the acoustic board should not have been screwed down and that reasonable remedial works are as claimed by the Raivids, namely doing that which is necessary to remove the screws.

[160]Mr Harrison puts forward the figure of £1,800 whilst Mr Evans in evidence said that this should cost no more than £800 at the most. Mr Harrison’s reaction to that was £800 was “a bit light”. Accordingly doing the best that I can, I have formed the view that the likely reasonable cost is somewhere between the two and I allow the sum of £1,300.

[161]In summary the reasonable allowances for work carried out and the amount of damages on top allowable in respect of defects are set out in the two tables set out below. SCOTT SCHEDULE ITEM DESCRIPTION OF ITEM COMMENT BY JUDGE Amount allowed £ 1 Stripping out/ demolition Agreed by experts in evidence 10,031.84 2 Scaffolding and preliminaries 15% allowed plus extra over charge for scaffolding 2,500.00 3 G1 family room and study Agreed by experts on Scott Schedule and Joint Schedule 11,151.02 4 G2 Entrance Hall Agreed (finally) 4,417.11 5 G3 Porch Agreed 6,977.38 6 G4 Lounge Agreed 15,000.00 7 G5 Kitchen Reduction for snagging tiles 22,000.00 8 G6 WC under stairs Reduction for snagging tiles 3,205.60 9 G7 Utility Agreed by experts on Scott Schedule and Joint Schedule 2,989.89 10 G8 Boiler Room Agreed by experts on Scott Schedule and Joint Schedule 1,065.00 11 F1 Bedroom 1 Reductions for floor, re-used timber and cracking 12,173.61 12 F2 Bedroom 2 Reductions for floor, re-used timber and slope to floor 13,738.65 13 F3 Bedroom 1En-suite Reductions for floor tiling, joists, architrave, under floor heating and taps 3,173.85 14 F4 Master Bathroom Reductions for floor tiling, under floor heating and radiator 3,994.93 15 F5 Bedroom 4 Reduction for floor joist not replaced 6,357.19 16 F6 Bedroom 4 en-suite and dressing room Reductions for floor tiles, joists and under floor heating 6,003.66 17 F7 Bedroom 3 Reduction for old flooring used in part 5,814.20 18 F8 Bedroom 3 en-suite Reduction for under floor heating and joists 3,117.53 19 F9 WC on landing Floor joists 2,058.26 20 F10 Landing Floor joists 2,337.79 21 Repairs and paint Not claimed separately by Claimant nil 22 Materials not included by Mr Evans in measure Allowed in part 1,500 23 Plumbing costs Fair price reduction 38,000 24 Electrical costs Fair price reduction 25,000 25 Porch Included elsewhere nil 26 Roof extension No reduction 84,763.12 27 Air conditioning Reduction for ground floor not supplied or fitted 10,210 28 Intruder alarm Amount paid to Securebase 740 29 Windows Included elsewhere nil 30 Video entryphone Nothing now claimed nil 31 Fit kitchen Claim allowed 1,690 32 Doors No claim nil 33 Base for shed Agreed 500 34 Bathroom ducts Agreed 600 35 Rear patio base Agreed 1,500 TOTAL 302,610.03 SCOTT SCHEDULE ITEM DESCRIPTION OF ALLEGED DEFECT COMMENTS Amount allowed 36 Rubbish removal Disallowed nil 37 Intumescent strip to doors Disallowed nil 38 Attic heating Disallowed nil 39 Air conditioning Not proved nil 40 Gutters Allowed in part 800 41 Underground drainage Allowed in part 1,000 42 Supply fix radiators, boiler etc Disallowed nil 43 Wall tiling Disallowed nil 44 Floor tiling Disallowed nil 45 Redecoration Allowed in part 370 46 Underground telephone Disallowed nil 47 Barnet fees Disallowed nil 48 DPC bridging Allowed in part 1,000 49 MDF skirtings and architraves Disallowed nil 50 Levelling floor in BR 1 Breach but allowance already made nil 51 Levelling floor in BR 4 Breach but allowance already made nil 52 Acoustic chipboard Allowed in part 1,300 Damage to neighbour’s car Agreed 200 TOTAL 4,670 The balance due to Mr Amsalem is allowing for the Counterclaim items which can also be considered as abatement or set off items is £297,940.03 plus VAT which is 17.5% thereon, producing a total of £350,079.54. Allowing for the payments made of £156,400, there is a net balance due of £193,679.54. Progress and delay

[162]The Raivids’ claim for delay is predicated upon the assertion that there was a contractual term that all the works should have been completed within six months. The Claimant denied that there was any agreement that the work should be completed within six months but accepted there was an implied term to complete the works within reasonable time, and given all the works and additional works which he was required to do, he was proceeding with reasonable diligence and expedition by the time his contract(s) was determined.

[163]Mr Amsalem however said in evidence that he told Mr Raivid that he estimated the time for completion of the first tranche of works to be “about six months”. Mr Raivid in his written evidence accepted that that is what he was told. I accept and find that the parties agreed that the initial tranche of works should be completed within about six months. In any event the evidence for this would give rise to an implication that a reasonable time for completion was about six months for this work.

[164]However, as I have found, there were two other major additions to the original tranche of works (the garage extension/porch and the loft conversion) together with a number of other smaller variations.

[165]I accept Mr Amsalem’s evidence that with regard to the garage extension and porch, he and Mr Raivid agreed that the addition of these works would extend the timeframe by an additional two months. Accordingly the agreement between the parties was amended accordingly. I also accept Mr Amsalem’s evidence that when he agreed with Mr Raivid to add the loft conversion they agreed that this would add an additional four months to the building project. It is perhaps of interest to note that the Defendants’ solicitors in their Pre-Action Protocol Response of 2 October 2007 said this about completion:

“Upon your client initially being instructed to carry out the works, he notified our clients that the works would take in the region of 6-9 months. When it was agreed that your client would build a loft conversion, this time was extended by a further 2 months.”

That suggests an acceptance that the original six-month period had gone by the board by the time that Mr Amsalem’s employment was terminated.

[166]It was the case that, as I have found, the parties agreed that the first tranche of works, the garage extension/porch and the loft conversion between them would take 12 months to complete. By the time that the contract was terminated, only some 49 to 50 weeks had gone by since completion. Thus it was, that at the time of termination, Mr Amsalem was not in breach of any contractual term (as revised) to complete within 12 months or 52 weeks. It is for the Defendants to establish their case and it is more than distinctly possible that the various further additional works, particularly the wholesale replacement of windows throughout the house (accepted as an extra), the air conditioning work and the kitchen fitting works would have diverted Mr Amsalem’s resources from completing the unvaried work.

[167]I am satisfied that there was no breach of contract on the part of Mr Amsalem in failing to complete the works. There was some evidence however that Mr Amsalem and his workmen did not proceed as quickly as they could have done. But none of the loss claimed by the Defendants is attributable either as a matter of pleading or in logic to any such failure. Thus the Defendants’ claim for “loss of amenity” for having to live longer at Mr Raivid’s parents and the costs of taking a Passover holiday in Majorca and having to hire restaurants for their son’s birthday because they were not in No 23 before July 2007 fall to the ground. Damages for repudiation

[168]Mr Amsalem claims the reasonably modest sum of £434.74 for loss of profit on the outstanding work which he was prevented from completing by reason of the repudiation. I am not satisfied that this claim has been proved. Mr Amsalem does not address the subject in his evidence. It does not automatically follow that just because there is outstanding work which has a value that a builder will necessarily lose profit in these circumstances. He may have other work to take on; Mr Amsalem clearly had a number of other jobs on at the time to divert his workmen to. It may be that the outstanding work is unprofitable; here, the snagging and finishing work might well have been unprofitable. Conclusion

[169]There will be judgment for Mr Amsalem in the sum of £193,679.54. This is a sad case in which friends have fallen out when one began to carry out works for the others. Unfortunately, the clients committed themselves to an expenditure which, as soon as they realised that they had over extended themselves, in July 2007 led them to dismiss their former friend from the project.

[170]This judgment has gone to Counsel in draft as is usual practice. Counsel has pointed out some obvious or typographical errors. I have also addressed several requests from Mr Butler for the Raivids for additional reasoning.