Cases - Bolton v Mahadeva

Record details

Name

Bolton v Mahadeva

Date

[1972]

Citation

2 AII E 1322

Keywords

Contract - lump sum contract - substantial performance - defects - payment - whether the contract had been substantially performed so that payment under the contract was due

Summary

The claimant was contracted to install a boiler system in the defendant's home at a cost of £560. The claimant brought a claim for the sum plus an additional amount for extras. The defendant asserted numerous defects in the work, and that the claimant had failed to perform the contract. It was alleged that the consideration for the contract had wholly failed. The claim succeeded at first instance, less the sum of £174 which was the cost to remedy the system. The Court of Appeal, however, held that in considering whether there was substantial performance, it is relevant to take into account both the nature of the defects and the proportion between the cost of rectifying them and the contract price. The appeal was allowed:

'The contract was a contract to install a central heating system. If a central heating system when installed is such that it does not heat the house adequately and is such, further, that fumes are given out, so as to make living rooms uncomfortable, and if the putting right of those defects is not something which can be done by some slight amendment of the system, then I think that the contract is not substantially performed.'

The Court of Appeal held that the costs of procuring an expert report would not be recoverable as damages:

'So far as the defendant's claim in respect of fees for the report which he obtained from his expert is concerned, it seems to me quite clear that that report was obtained in view of a dispute which had arisen and with a view to being used in evidence if proceedings did become necessary, and in the hope that it would assist in the settlement of the dispute without proceedings being started. In those circumstances, I think that the judge was right in reaching the conclusion that that report was something the fees for which, if recoverable at all, would be recoverable only under an order for costs.'

Per Cairns LJ.