COLIN MCKENDRICK AGAINST MR STEPHEN CUMMING AND MRS HEATHER CUMMING [2016] ScotSC 61 (21 September 2016)

COLIN MCKENDRICK AGAINST MR STEPHEN CUMMING AND MRS HEATHER CUMMING [2016] ScotSC 61 (21 September 2016)

The pursuer was in material breach of contract due to substandard workmanship resulting in an unstable and unlevel decking structure. The defenders gave the pursuer reasonable opportunity to remedy the defects, which he failed to do. The defenders were therefore entitled to treat the contract as rescinded and refuse further payment for labour. However, the defenders' counterclaim was refused as it failed to precisely quantify the remedial work attributable solely to the pursuer's breach and risked unjust enrichment.

Citation
[2016] ScotSC 61
Parties
Pursuer: Colin McKendrick; Defender: Stephen Cumming; Defender: Heather Cumming
Jurisdiction
Scotland
Judgment Date
21 September 2016
Procedural Posture
Civil (contract/dispute) / Judgment After Proof (trial)
Outcome
Pursuer awarded uncontested sum for timber; claim for labour refused; defenders' counterclaim refused; defenders awarded limited expenses.
Legal Topics
Breach of Contract, Defective Workmanship, Remedies for Breach, Quantification of Counterclaim, Mutuality of Contract
Contract Law Consumer Law Breach of Contract Defective Workmanship Remedies for Breach Quantification of Counterclaim Mutuality of Contract

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 2 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Colin McKendrick

Pursuer

Stephen Cumming

Defender

Heather Cumming

Defender

Procedural Posture

Civil (contract/dispute) / Judgment After Proof (trial)

Legal Issues

  1. 1 Whether the pursuer was entitled to payment for labour under the contract for decking installation
  2. 2 Whether the defenders were entitled to treat the contract as rescinded due to material breach
  3. 3 Whether the defenders' counterclaim for remedial costs was properly quantified and recoverable

Ratio Decidendi

The pursuer was in material breach of contract due to substandard workmanship resulting in an unstable and unlevel decking structure. The defenders gave the pursuer reasonable opportunity to remedy the defects, which he failed to do. The defenders were therefore entitled to treat the contract as rescinded and refuse further payment for labour. However, the defenders' counterclaim was refused as it failed to precisely quantify the remedial work attributable solely to the pursuer's breach and risked unjust enrichment.

Court Disposition

Pursuer awarded uncontested sum for timber; claim for labour refused; defenders' counterclaim refused; defenders awarded limited expenses.

Orders

  • Defenders to pay pursuer £866 for timber cost.
  • Pursuer's claim for £800 labour cost refused.