Arenburg v. Gough

Arenburg v. Gough

The Construction Agreement, its express clause requiring written change orders for extras and the objective interpretation of allowances governed the outcome; where the contract was ambiguous the ambiguity was resolved against the drafting builder (contra proferentum). Consequently most claimed extras lacking written change orders or proof were disallowed, certain extras and some defendant counterclaims were allowed, and the parties' settlement payment was credited resulting in a net judgment of CAD 4,541.67 in favour of the defendants (Goughs).

Citation
2018 NSSM 65
Parties
Claimant/defendant by Counterclaim: T. Joseph Arenburg; Defendant/claimant by Counterclaim: Joshua Gough; Defendant/claimant by Counterclaim: Shaina Gough
Court
Nova Scotia Small Claims Court
Jurisdiction
Canada
Judgment Date
13 July 2018
Procedural Posture
Small Claims Court / Decision (adjudicator's Judgment)
Outcome
Claim allowed in part; Counterclaim allowed in part; Net judgment for Defendants (Joshua and Shaina Gough) against Claimant (T. Joseph Arenburg) in the amount of CAD 4,541.67
Legal Topics
Contract Interpretation, Allowances and Extras, Construction Defects, Warranty/atlantic New Home Warranty, Set Off and Credits, Costs, Contra Proferentum
Source Language
English
Contract Law Construction Law Property Law Administrative/tax (hst) Contract Interpretation Allowances and Extras Construction Defects Warranty/atlantic New Home Warranty +3 more

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Parties

T. Joseph Arenburg

Claimant/defendant by Counterclaim

Joshua Gough

Defendant/claimant by Counterclaim

Shaina Gough

Defendant/claimant by Counterclaim

Procedural Posture

Small Claims Court / Decision (adjudicator's Judgment)

Legal Issues

  1. 1 What were the contractual terms governing scope, allowances and extras?
  2. 2 Whether the claimant proved entitlement to claimed extras absent written change orders
  3. 3 Whether the defendants proved counterclaim for defects, unpaid fixtures and labour

Ratio Decidendi

The Construction Agreement, its express clause requiring written change orders for extras and the objective interpretation of allowances governed the outcome; where the contract was ambiguous the ambiguity was resolved against the drafting builder (contra proferentum). Consequently most claimed extras lacking written change orders or proof were disallowed, certain extras and some defendant counterclaims were allowed, and the parties' settlement payment was credited resulting in a net judgment of CAD 4,541.67 in favour of the defendants (Goughs).

Court Disposition

Claim allowed in part; Counterclaim allowed in part; Net judgment for Defendants (Joshua and Shaina Gough) against Claimant (T. Joseph Arenburg) in the amount of CAD 4,541.67

Orders

  • Claimant's claim allowed in part: award to T. Joseph Arenburg of CAD 5,980.70
  • Counterclaim allowed in part: award to Joshua and Shaina Gough of CAD 3,437.78