B A Dawson Blacktop Ltd. v. Top 40 Woodworks Ltd. Date:, 2012 BCPC 146

Citation: B A Dawson Blacktop Ltd. v. Top 40 Woodworks Ltd. Date: 20120515 2012 BCPC 0146 File No: 38611 Registry: Kamlooops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: B A DAWSON BLACKTOP LTD. CLAIMANT AND: TOP 40 WOODWORKS LTD. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Appearing on their own behalf: Mr. Mark Ballison Appearing on their own behalf: Mr. Jack Mendes Place of Hearing: Kamloops , B.C. Date of Hearing: May 4, 2012 Date of Judgment: May 15, 2012 [ 1 ] This is a claim by B A Dawson Blacktop Ltd. against Top 40 Woodworks Ltd. for judgment in the sum of $15,453.42

[ 1 ] This is a claim by B A Dawson Blacktop Ltd. against Top 40 Woodworks Ltd. for judgment in the sum of $15,453.42 comprised as follows:

a) Unpaid invoices in the sum of $11,715.06;

b) Interest at 2% per month or 28.82% per annum from December 31, 2010 in the sum of $2,360.85;

c) Collection fee at 10% in the sum of $1,171.51; and

d) Filing and Service fees in the sum of $174.00. [ 2 ] The Notice of Claim has some errors. The addition is incorrect, and the interest rate claimed does not match the contract. [ 3 ] Top 40 Woodworks Ltd. defends the claim on the basis that the quote and contract were for the sum of $59,953.00 plus taxes. That amount has been paid in full. [ 4 ] That is a difficult total to determine because the tax rates were not set out, they do not match between invoices of the same date, and no one gave evidence of the amount the Defendant actually paid.

I am left, then, with the amount set out in the Notice of Claim and accept it as accurate. [ 5 ] This is a relatively straight forward case about a contract to pave a parking lot. The dispute arises primarily out of the portion of the parking lot that was to be paved. There was a lack of communication between the parties which resulted in a misunderstanding of what work was to be completed. The issue before me is in part the degree of that misunderstanding or mistake and what must flow as a result of the mistake. [ 6 ] There are some documents between the parties which assist in that exercise.

In a credit application dated May 28, 2010, Mr. Mendes applied for a credit limit of $60,000.00 for the purposes of completing the project. In that credit application, the Defendant agreed to pay 2% past due interest compounded monthly (26.82% per annum) in the event that payments were not made according to the terms. The Defendant further agreed to pay a 10% collection fee in the event that collection process was required. [ 7 ] In the event that I find there is a past due amount, the appropriate amount of interest is 2% per month, compounded monthly, for a total of 26.82% per annum.

The 10% collection fee is a penalty which this court does not impose. I dismiss the claim for the 10% collection fee regardless of the outcome otherwise. [ 8 ] In preparation for making the credit application, and for having the work done, Mr. Mendes, on behalf of the Defendant, requested a quote from the Claimant. The quote is dated May 5, 2010 and provides for specific areas of paving at specific unit prices based upon the square metres of those areas and the amount of paving required. The quote is clear and plain on its face. No

interpretation is required. The quote is based on instructions and drawings received the day prior and provides measurements of each of the areas to be paved. [ 9 ] In the quote, the Claimant excludes certain allowances for other work. The quote also provides that final invoices is based on measurements upon completion, plus applicable taxes. [ 10 ] The court cannot read into a contract any other

interpretation than that which is plain on its face.

Interpretation only comes into play if there is an ambiguous term in the contract. There is no ambiguous term in this contract. The pricing is based upon units, measurements and final measurements. The Defendant cannot expect that the quote provides a final, firm figure. [ 11 ] Mr. Mendes said that the Defendant accepted the quote based upon an assumption that the Claimant had measured the space before providing the quote.

The Claimant said that it told the Defendant it was using the same parameters as a quote by Dawson Construction Ltd. to ensure that the Defendant was comparing both bids to the same thing. [ 12 ] When comparing the drawings, Google maps and otherwise, it is clear that all of the parties were talking about the same area for paving. From the Defendant’s point of view, the extra paving requested to the fence line and road allowances and otherwise were within the context of the instructions provided to the Claimant.

From the Claimant’s perspective, taking the paving out to the fence line, road allowances and otherwise was an extra. [ 13 ] In fact, because the area was so much bigger than the Claimant’s employees had anticipated, they went over the layout with the owner and advised him that it was larger than their instructions provided. At this point, both parties should have been on notice that there was a problem with the area to be paved.

Given that there was such a significant difference in the amount that would be charged to change that paving area, it was incumbent upon both parties to ensure that the instructions and the pricing were clarified before the work proceeded. Neither party took the steps they ought to have taken to do so. This resulted in a mistake that is not fatal to the contract but produces an untenable result. [ 14 ] The Defendant has a bill for paving that is far in excess of the tight budget it anticipated, and the Claimant has paved a lot in part without compensation. The paving cannot be undone.

The unjust enrichment has to be corrected. However, both parties must bear the brunt of this failure. I find that both parties are equally liable for the result and misunderstanding.

[ 15 ] I therefore allow the Claimant’s claim at 50%, for a total of $5,857.55 together with interest at 2% per month compounded monthly for a total of 26.82% per annum from December 31, 2010 to the date of judgment. The Claimant shall provide a

schedule of that calculation to the Registrar. Both parties shall bear their own costs unless Offers to Settle were exchanged. If that is the case, then the parties have liberty to apply to me to assess costs. _______________________ S.D. Frame Provincial Court Judge