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So I just got stumped in small claims court today.

Judge was lovely a very nice person so I can't even blame her kick around and pout as apparently I was unable to prove any damages.

So backstory, I had some water proofing work done where they tore out an old drain and installed a new drain except this water noticeably worse resulting in water coming up onto the floor. Months later after constantly asking them to fix it I took them to court just touting the contract price.

What exactly would be claimable or need to be proved in this instance if not the contract? Would I need to claim the basement as ruined?

  • What was the nature of the work described in the contract? Was it something like "we will waterproof xyz area" or was it more like "we will replace this drain". – brhans Oct 24 '18 at 20:52
  • It was replacing old drain with new perimeter drain, but this resulted in water coming up through the concrete – SCFi Oct 24 '18 at 20:55
  • Weeellll ... there's the thing. Can you show that the work they did was somehow substandard and resulted in the water coming up through the concrete, or do they have a plausible argument that the water would have come up anyway whether they'd done the work or not - maybe due to an unusually high amount of rainfall? – brhans Oct 24 '18 at 21:09
  • I can show the water is stagnant and not in motion which would cause the water in rain to rise through the concrete which could only be done from improper installation of piping. I can also show the previous setup had flowing water. Mind you this was supposed to be an improvement project – SCFi Oct 24 '18 at 21:23
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It seems that you are claiming that the work was either a) not performed in accordance with thee contract - including an implied term that the work should be 'fit for purpose' or b) that the work was performed negligently. It also seems that you asked for the price the contractor charged for the work to be returned to you i.e. you wanted a refund.

That's not how it works.

You are only entitled to a refund when there is a "complete and utter failure of consideration" (subject to local consumer protection law), for example, if you had paid a deposit but the contractor never did the work. Here the contractor has done (some) work and so you are not entitled to a refund.

What you are entitled to is for the contractor to come back and repair their faulty workmanship or, if the contractor is unwilling or unable to do this, to damages.

Damages in this case would include any damage that was caused by the water (cleaning and replacement of damaged stuff) and the cost of having the repairs carried out by someone else.

Of course, you are required to prove that the contractor has breached the contract or acted negligently before you are entitled to anything.

  • This might be a difficult to answer sub question, but since I dumbly took them to court and no damages were received does that free them from warranty liability (they had previously refused to come out to fix which led to this) or can I still make requests to have work fixed? I feel odd just typing that out to be honest. – SCFi Oct 26 '18 at 11:31
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    Generally, once a court has ruled on a cause of action, it’s over. – Dale M Oct 26 '18 at 11:34
  • Welp just going to write this little book on how to hit yourself with a fastball... but thank you for the information Dale. – SCFi Oct 26 '18 at 11:36
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    Tough luck. You are required to make ALL your arguments when you go to court - if you don’t make them then, you can’t make them at all. The technical legal term is issue estoppel. – Dale M Oct 26 '18 at 11:51
  • You can say that again, but of my own making and this has been really informative. Best not to try things for myself for now on at the very least on legal issues, which now typing it sounds like common sense – SCFi Oct 26 '18 at 12:07

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