WASA ordered to pay contractor $13.9m for pipelaying

THE Court of Appeal has ordered the Water and Sewerage Authority to pay $13.9 million to a St Augustine-based contractor for installing water pipelines in the Rio Claro-Mayaro area in 2007.

In addition to the judgment sum of $13,915,215.46, the authority also has to pay three per cent interest from December 1, 2010, and $505,950 in costs to Uniform Building Contractors Ltd.

In a recent ruling, Justices of Appeal Nolan Bereaux, Maria Wilson and Ronnie Boodoosingh said on the evidence presented by UBC, and in the absence of refutation by WASA, the judge who dismissed the company’s claim in 2017 was wrong to conclude that damages were not proved.

“There was adequate and credible evidence to justify the sums claimed before the judge. The judgment must accordingly be set aside.”

The company had sued over unpaid invoices for work done under a FIDIC contract entered into in May 2007.

In its claim, UBC said there were many variations to the project which fell outside the agreed contract price and led to its having to do additional work, resulting in additional costs.

The contractor also said on February 27, 2009, it was asked to submit a schedule and method statement for the passing of pipelines on the bridge crossing at the Mafeking River, and on March 5, 2009, it told WASA it could not meet the March 6, 2009, deadline because its main engineer was seeking medical attention.

On March 6, 2009, the authority terminated its contract with UBC.

On May 27, 2013, UBC filed its claim for $13.9 million for variation works it did before the contract was terminated.

In its defence, WASA said no money was due, since UBC had failed to comply with the conditions of the contract. It also said any delay was caused by UBC and the works done were not variations but were within the contract terms. The authority also filed a counterclaim which alleged UBC was indebted to it for payments made for work that was “unperformed.”

In 2017, Justice Nadia Kangaloo dismissed UBC’s claim. The contractor appealed.

In its ruling, the Court of Appeal said, “Regrettably, the judgment did not demonstrate that the judge undertook the analysis that the case required of each of the four claims submitted by UBC.”

Boodoosingh, who wrote the decision, said what was called for was an examination of each of the claims to consider if each was viable and whether damages were proved for each of them.

“The judge had to compare that evidence with the evidence of WASA’s witness…The judge had, earlier in the judgment, recounted the evidence essentially given by each witness.

“What was missing afterwards was the detailed analysis of that evidence, which was required. In this regard, the judge misunderstood the significance of relevant evidence and failed to consider relevant evidence.

“In doing so, the judge arrived at an unreasonable conclusion based on the totality of the evidence,” adding also the judge had given the evidence inadequate treatment.

“There was strong evidence that the changes made to the project as detailed by UBC’s witnesses were in fact variations...

“It would be fundamentally unfair in the circumstances after the engineer had approved the works being done and agreed they were variations for which additional payments were to be made later on, for WASA to seek, after the fact, to dispute that these additional payments did not arise.”

The Appeal Court also noted that UBC’s obligation was to prove its case on a balance of probabilities, not beyond a reasonable doubt or to a mathematical certainty.

The contractor was represented by Irshaad Ali, Adam Razack and Nalini Bansee. Kerwin Garcia, SC, and Christlyn Moore represented WASA at the appeal.