Kift v. Ziegler

Kift v. Ziegler

Adjudicator found limited proven contractor breach confined primarily to defective concrete work warranting a measured special damages allowance; the majority of the claimant's asserted defects and future-cost claims were unproven or inadequately evidenced, or mitigated by the claimant's conduct and refusal to...

Source-derived case information.

Citation
2020 NSSM 9
Parties
Claimant: Thomas Bruce Kift; Defendant: Juergen Ziegler
Court
Nova Scotia Small Claims Court
Jurisdiction
Canada
Judgment Date
14 April 2020
Procedural Posture
Small Claims Court Construction Dispute / Post Trial, Decision and Order (written Reasons Issued)
Outcome
Claim and counter-claim allowed in part. Claimant awarded certain credits and limited special damages; Defendant awarded unpaid contract balance; set-off ordered resulting in Claimant owing Defendant a net sum. Remainder of claims dismissed. Court retains jurisdiction for interest and costs submissions.
Legal Topics
Foundation Insulation, Attic Insulation, Hvac/heat Pump Selection and Efficiency, Concrete Defects and Remediation, Special Vs General Damages, Set Off and Counter Claim, Mitigation and Opportunity to Rectify, Admissibility and Weight of Hearsay/expert Evidence
Source Language
english
Construction Law Contract Law Tort Negligence Remedies/damages Small Claims Procedure Evidence Foundation Insulation Attic Insulation +6 more

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Parties

Thomas Bruce Kift

Claimant

Juergen Ziegler

Defendant

Procedural Posture

Small Claims Court Construction Dispute / Post Trial, Decision and Order (written Reasons Issued)

Legal Issues

  1. 1 Breach of construction contract
  2. 2 Alleged negligent/shoddy workmanship
  3. 3 Measure and proof of special damages

Ratio Decidendi

Adjudicator found limited proven contractor breach confined primarily to defective concrete work warranting a measured special damages allowance; the majority of the claimant's asserted defects and future-cost claims were unproven or inadequately evidenced, or mitigated by the claimant's conduct and refusal to permit rectification; defendant established an outstanding contract balance which, after allowed credits to claimant, resulted in a net set-off so that claimant must pay defendant $8,455.03. Court retained jurisdiction to decide interest and costs.

Court Disposition

Claim and counter-claim allowed in part. Claimant awarded certain credits and limited special damages; Defendant awarded unpaid contract balance; set-off ordered resulting in Claimant owing Defendant a net sum. Remainder of claims dismissed. Court retains jurisdiction for interest and costs submissions.

Orders

  • Both the Claimant's Claim and the Defendant's Counter-Claim are allowed in part.
  • Claimant's Claim allowed as against Defendant in the sum of $8,778.00 and Defendant's Counter-Claim allowed as against Claimant in the sum of $17,233.03.