Case Study

Residence in Voroclini - Witness Expert

This case study revolves around a dispute arising from the construction of a residence by the Plaintiffs on behalf of the Defendant. The Plaintiffs seek payment for their services, while the Defendant accuses them of deceit and violation of the contractual terms. Issues with the residence's insulation, bathroom installation, front door, septic tank, swimming pool tiles, and surrounding area are highlighted. A meeting between Defendant and Plaintiff's director resulted in a partial payment agreement. However, the agreed repairs were not carried out satisfactorily, leading to further problems. Biniapi was appointed as an expert witness to prepare a report which was stating that a significant amount is required to rectify the issues caused by the Plaintiffs' breach of contract. Defendant claims compensation for the repairs. The Plaintiffs deny the allegations, stating that the Defendant's claims were raised after the defect period and argue that no steps were taken to mitigate the damages. Following the delivery of the Residence by the Plaintiffs in October 2011, various issues with the property emerged, indicating a breach of the agreement dated 1/6/2010. In response, the plaintiff initiated legal proceedings against the defendant in 2014, seeking a resolution to the dispute. Subsequently, in October 2020, Biniapi Engineering Services was appointed as a Witness Expert, and an expert's report outlining the estimated cost of rectifying the identified defects was submitted and officially filed. The trial proceedings commenced in January 2022 and concluded in March 2022, with the expert providing testimony. This allowed both parties to present their arguments and evidence in court. Finally, in 10th of May 2022, the Final Court decision, which considered the evidence provided by the witnesses, was issued, made available to the court, and sent to both parties involved in the case.

Therefore, as it appears from the testimony presented to the Court by MY 6 (Biniapi Engineering Services – Mrs Kaoli), there are defects. These defects have been scientifically proven, and the Plaintiff is entitled to compensation for them. Regarding the calculation of damages, it has been established in the case of CYPRA LIMITED v. A. GIAPAS LIMITED, Civil Appeal No. 282/2010, 11/5/2015, that the principles governing the assessment of damages are as follows (quoting from Hudson's Building and Engineering Contracts - Eleventh edition, volume 1, paragraph 8-137): "Consideration of the cases illustrated above shows that, in the case of defective work (that is, work not in accordance with the contract) there are in fact three possible bases of assessing damages, namely: (a) the cost of reinstatement; (b) the difference in cost to the builder of the actual work done and the work specified; or (c) the diminution in value of the work due to the breach of contract." Referring to the same book, East Ham Corp v Bernard Sunley & Sons, [1966] A.C. 406, states the following: "Dealing with this subject, the learned editors of Hudson's Building and Engineering Contracts, 8th ed. (1959) say at page 319 that there are in fact three possible bases of assessing damages, namely, (a) the cost of reinstatement; (b) the difference in cost to the builder of the actual work done and work specified; or (c) the diminution in value of the work due to the breach of contract. They go on: "There is no doubt that wherever it is reasonable for the employer to insist upon reinstatement the courts will treat the cost of reinstatement as the measure of damage." In the present case, it could not be disputed that it was reasonable for the appellants to insist upon reinstatement and in these circumstances, it necessarily follows that on the question of damage the trial judge arrived at the right conclusion." A reference to Keating on Building Contracts, Fifth Edition, page 202, also states: "Where there has been substantial completion, the measure of damages is the amount which the work is worth less by reason of the defects and omissions and is normally calculated by the cost of making them good, i.e., the cost of reinstatement." It is clear from the Defense and Counterclaim that what is sought is the rectification of the defects, as also stated in detail in paragraph 24(A)(iii). It is a finding of the Court that the proven defects, which were clearly itemized in the documents and through testimony, include the decayed concrete in the columns and beams, the detachment of tiles in the pool, peeling of paint, and salts on the exterior wall of the parking area and balcony door. The cost estimation for these defects, according to the testimony of MY 6, is as follows: Repair of balcony columns and beams with suitable epoxy materials, balcony insulation with a membrane, crack repairs, installation of ceramics, and a new railing with proper support - €2,920. Repair of moisture on the balcony door and garage exterior walls. Removal of decayed mortar, impregnation of bricks with special materials, plastering and patching. Removal of ceramics and threshold inspection and insulation. If the threshold has not been properly installed, the aluminum door must be removed and correctly constructed, as well as if it has been caused by water leaks or sewage pipes in the garage. This cost is not included as further investigation is required - €800. Painting of the exterior ceiling, walls, balcony beams, and ceilings - €2,000. Removal of a pool tile measuring 10x3 meters, lights, fixtures, grilles, new epoxy insulation, installation of a new tile, repairs to concrete, new lighting fixtures, grilles, and fixtures - €8,040. It is worth mentioning that for specific damages regarding other defects mentioned, such as problems in common areas and the non-construction of a refuse chamber, no testimony was presented. As it is established, the parties are burdened with proving the damages they claim as specific damages through clear testimony (see Panagiotou Christodoulos v. Savvas Frangeskos and Another (1999) 1 AAAD 687 and Cypria, mentioned above). Therefore, in the absence of cost estimation for any other damages, no compensation can be awarded. Furthermore, no amounts can be awarded for the repairs already carried out by the Plaintiff in addition to the amounts awarded as compensation for the rectification of the defects. Such a scenario would result in double compensation for a single defect and would constitute clear injustice and abuse. For example, no amount could be awarded for the repair of the pool, as calculated by the expert witness (see paragraph 24(A)(iii) of the Defense and Counterclaim), and an amount for the repair that has already been paid. On the contrary, the Plaintiff's choice seeks compensation for the rectification of defects, as stated in their Counterclaim. This rectification and its associated costs have been proven through expert witness testimony, which is in line with the relevant documentation, as provided for by case law. Finally, no testimony was offered, and therefore the relevant request for general damages due to grief, pain, and suffering of the Plaintiff is dismissed. The application for illegal use of electrical power by the Defendants is also dismissed, as it was not proven. The position of the Plaintiff's Defense and Counterclaim regarding obstruction through the conduct of the Defendant, as advanced during the hearing, was not supported or promoted, and therefore the claims of the Defense and Counterclaim are rejected.

Considering the above, the lawsuit succeeds and an amount of €16,000 is awarded as the remaining balance of the contract, as evidenced in Exhibit 1, plus legal interest from the date of filing the lawsuit. The Counterclaim also partially succeeds and amounts of €2,400 for the non-compliance with the Technical Specifications as presented in Exhibit 1 and €13,760 as compensation for the rectification of defects are awarded. Since both the lawsuit and the Counterclaim have been partially successful, it is deemed appropriate for each party to bear their own costs.