Contractor awarded $63,000 in multi-million Palm Cay fight


Tribune Business Editor


A major eastern New Providence development has been ordered to pay a former contractor $63,047 after an acrimonious battle involving competing claims over breaches of two multi-million building contracts.

Sir Ian Winder, the chief justice, in a February 6, 2024, ruling found that both Palm Cay, the gated community located between Treasure Cove and Port New Providence, and HNR Company were at fault when the “relationship between the parties soured” prior to the COVID-19 pandemic.

HNR, founded by Sean Wright, was hired in September 2018 to take over construction of three condominium blocks, each featuring six units, in Palm Cay’s Anchorage section. The contract price was set at $1.535m, with a substantial completion date one year later on September 18, 2019. A building permit was secured from the Ministry of Works.

Subsequently, HNR obtained a contract to build “a more substantial project” in Palm Cay’s One Marina section, which involved 10 condo units for which approval had also been obtained from the Ministry of Works. The contract price was fixed at $5.993m, and “the date for substantial completion” was stipulated as November 22, 2019.

Sir Ian found that “it is undisputed that work on the projects proceeded after the execution of the contracts until shortly after the submission by HNR on October 21, 2019” of its ninth and seventh applications for stage payments for work done on the Anchorage and One Marina projects respectively.

While “both projects were behind schedule at this point in time”, the HNR payment requests were approved by Winston Jones & Associates Architects in it capacity as the architect of record, certifying that the Anchorage and One Marina projects were 90 percent and 30 percent complete, respectively.

However, acting on the advice of Dean Hapgood, a quantity surveyor that it consulted, Palm Cay disputed “certain figures... based on the progress observed on site” and other queries.

After failing to obtain payment, Sir Ian wrote: “HNR advised Palm Cay that, if payment of the architect of record’s certificates was not made, work would be stopped on both projects on November 15, 2019, until payment of the amounts owed was received.”

Palm Cay responded by initially asking HNR when it would be completed before subsequently arguing that the contractor had not provided sufficient documentation to support its payment applications. The developer ultimately requested that HNR terminate its works and exit the project site as of November 18, 2019, so it could bring in other contractors to complete the works.

The breach of contract trial took place over three days, with Sir Ian describing Mr Wright as “a combative witness who gave inconsistent evidence on more than one occasion”. He also described one of Palm Cay’s witnesses as being unimpressive, with some testimony that contradicted the documentary evidence and “appeared self-serving”.

Sir Ian, in his ruling, found that Palm Cay had failed to provide HNR with plans and drawings for the Anchorage project that were fully stamped and approved by the Ministry of Works prior to the start of construction. While he found that the developer had breached the construction contract in this area, the chief justice also ruled that HNR had failed to achieve substantial completion by the target date.

However, he also found that HNR had been placed in such a position by Palm Cay’s failure to perform its side of the bargain which included installing the kitchens and vanities and obtaining Ministry of Works approval for the revised electrical drawings.

Sir Ian also described as “compelling” Palm Cay’s evidence of “alleged defective work” by HNR on the Anchorage project meaning that the contractor, too, was in breach of contract. However, he also found that the contractor should be compensate for termination of its contract.

As for the One Marina contract, the chief justice again found that Palm Cay had breached the contract by failing to provide the contractor with fully stamped and approved drawings. And, in common with the Anchorage project, he also found that HNR had “carried out work that was not free from defects”.

Ultimately, after finding that HNR had proven its claim for $310,284, and Palm Cay likewise had proven sufficient evidence to justify the award of $247.237, Sir Ian ordered that the developer pay the contractor the difference representing just over $63,000.


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