Congratulations to Kornfeld LLP litigators, Dan Hepburn and Nils Preshaw, for their recent win defending a prominent Vancouver developer in the case of A.H.H. Construction v. Washington Properties, 2021 BCSC 1912.
Over a five-week trial held in Vancouver, BC Supreme Court, the Plaintiff sought over $825,000 for extra work, unpaid draws, and damages for breach of contract and delay. In its decision, the Court held that the Plaintiff’s filing of a lien for $542,288 had been an abuse of process and, on a net basis, ordered the Plaintiff to pay money to our clients who were the Defendants.
35 Park West is a development adjacent to Queen Elizabeth Park comprising three buildings and six stories of residential units, valued at approximately $150 million. Our client, Washington Properties, owned and developed the site.
The Plaintiff contracted to provide planter walls for outdoor gardens/trees at numerous locations in and around the three buildings. However, the nature of the agreement itself was disputed at trial with the Defendants arguing that the agreement involved considerably more work than the Plaintiff now claimed.
In the Reasons for Judgment, the Court viewed the parties’ conduct, “what they said and did,” at the time of contractual negotiations and formation, as the basis for understanding the parties’ intentions. The Court quoted Justice Blackburn in the historical case of Smith v Hughes (1871), L.R. 6 Q.B. 597:
If, whatever a man’s real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party, and that other party upon that belief enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party’s terms.
At trial, the Plaintiff presented an alternate agreement to the Court and argued that it should govern and in fact the Plaintiff had committed to complete less work than the Defendants alleged.
On the witness stand, the Plaintiff’s representative expressed shock and “protested vehemently” that the Plaintiff had not agreed to construct walls on, for example, condominium balconies.
After a mere six months the Plaintiff was terminated for, among other reasons, the belligerent behavior of its foreman onsite. The Plaintiff promptly filed a lien against the project in the amount of $542,288, which the Court regarded as an “aggressive step” (since the full contract amount was $546,350, and the Plaintiff had already been paid $329,238 by Washington Properties).
At trial, claims by the Plaintiff for extra wall contact footage, unpaid draws and damages for breach of contract were dismissed, however, limited claims for extras, changes and rework plus a small amount of damages were allowed.
Our client, Washington Properties was in turn awarded damages associated with the Plaintiff’s improper lien and the difference it had been forced to pay to a separate construction crew to complete the Plaintiff’s work in the amount of $85,000.
After five weeks of hard-fought trial, the end result was that the Plaintiff was ordered to pay money to our clients and its claim for over $825,000 fell flat.
Kornfeld LLP has some of BC’s leading construction litigators in a boutique real estate development law firm, all of whom have significant trial experience.”
