23-year-old land case ends

A 23-YEAR-OLD dispute over a house in Diego Martin ended yesterday in the Privy Council. Based on the four-page judgment, no one really won and the Law Lords have invited further submissions on the issue of costs. The appellants were Michael Joseph Deosaran and his company - Housing and Investments (Trinidad) Limited — while the respondents were Winston Barrow and his wife Judith.

The appeal was heard before Lords’ Hoffmann, Hope, Hutton, Brown and Sir Peter Gibson. In January 1979, Deosaran and his company agreed to build a house on a plot of land in Diego Martin for the Barrows for the sum of $225,000. Completion took place in June 1980, but in 1983, the engineer reported cracks in the walls and roof of the house. The house was built on a vegetable field which expanded when it became saturated with water and caused movement in the building. The Barrows did not stake a claim with Deosaran but claimed from the insurance company. They settled at $51,482 and repairs were carried out.

But in 1988, fresh cracks appeared and the state of the house deteriorated rapidly and in September 1989, the Barrows sold it for $130,000.

The Barrows sued Deosaran and his company and in April 2002, Justice Alan Mendonca held that the builder owed the owners a duty to take reasonable care to ensure that the land was not susceptible to foundation movement and that the house would be fit for human habitation. The judge awarded the Barrows $95,000 in damages.

Deosaran appealed against the finding of liability and the Barrows cross-appealed on quantum of damages. The Court of Appeal dismissed the appeal on liability, but upheld the appeal on quantum. Madame Justice Margot Warner, in her judgement, increased damages by $25,000.

Both sides appealed to the Privy Council, the builder against the finding of liability and the Barrows on the question of damages. The Law Lords found that both the judge and the Court of Appeal were handicapped by the lack of evidence relating to the worth of the house in 1988 and 1989, when the building was sold. The Law Lords considered that the burden was upon the Barrows to adduce evidence to prove their damages. According to Lord Hoffmann, however shaky the judge’s estimate might have been, there was no evidence to justify a higher figure and therefore no reason for the Court of Appeal to allow the owners of the house to get $25,000 more.

Deosaran did not argue for an award lower than $95,000. The Law Lords agreed and reduced the damages to $95,000. Both parties have six weeks in which to make written submissions on the issue of costs.