Contractor is liable for its subcontractor's defective work

On 29 January 2026, the Court of Appeal upheld an award of €17,000 in damages against a contractor whose work on two tennis courts was not done to the standard of the trade. The court held that the contractor answers for concrete laid by its subcontractor. It also held that an employer may claim damages for bad work under the general law of obligations, without first asking the court to order the contractor to redo it.

The facts

Tennisline Malta Limited vs Intersteel & Fence Limited concerns a contract of works, or appalt, agreed in late 2017. Tennisline Malta Limited, which runs tennis courts on leased land, engaged Intersteel & Fence Limited to resurface two courts, install fencing and supply the materials for €47,849. The works ended in January 2018.

Within months, the paint began to peel and the surface to crumble. Tennisline had remedial works done at its own cost, first on the paint and later on the top layer of concrete. Laboratory tests found that the paint had very weak pull-off adhesion to the concrete, and no fibre mesh was found in the concrete, although the agreement included it.

The First Hall of the Civil Court found the works defective and awarded €17,000: €10,000, half the original cost of the concrete floor, and €7,000 for paint. It rejected the claims for rent and loss of profit for lack of proof. Intersteel & Fence Limited appealed, and Tennisline Malta Limited cross-appealed on costs.

Chief Justice Mark Chetcuti, Mr Justice Robert G. Mangion and Madam Justice Simone Grech decided the appeal on the papers under article 152(5) of the Code of Organization and Civil Procedure (Chapter 12 of the Laws of Malta).

What the court held

The court first rejected the argument that Tennisline had not proved its case. The sworn evidence on when the damage appeared was not contradicted, and the lack of early photographs did not strip the rest of the evidence of weight.

The laboratory report carried weight because its author explained it on oath. The contractor's own representative accepted in cross-examination that the report showed the concrete's pull-off strength was not what it should be. The contractor's laboratory reports, by contrast, were never confirmed on oath.

No court-appointed expert was needed. The appointment is in the court's discretion, and neither party asked for one. The court added that a contractor so confident in its subcontractor could have called it to testify.

The contractor argued that Tennisline was only a tenant and may not have borne the loss. The court held that Tennisline commissioned and paid for the works, and the landlord never took part, so the damage was Tennisline's. On quantum, it endorsed the First Hall's use of the original price, with only half the concrete cost allowed because only the surface was replaced.

The contractor's main legal argument was that the action was inadmissible, because the only remedies were those in articles 1640, 1069 and 1127 of the Civil Code (Chapter 16 of the Laws of Malta). The court first classified the contract. Where the contractor mainly gives labour and bears the risk, and the work is not a product from its ordinary range, the contract is one of works even if the contractor also supplies the material.

The remedies of a buyer under article 1390 therefore did not apply, and the First Hall had not granted them. The court held that the remedy under article 1640 “huwa biss wieħed mir-rimedji li għandu l-appaltant” (is only one of the remedies the employer has). The employer may also rely on articles 1069 and 1127, and may claim damages under article 1125 for work not done to the standard of the trade.

Relying on a First Hall judgment (9 June 2004), the court accepted that an employer whose contractor stays passive may remove the defects directly and claim the cost as damages. No prior order for specific performance is needed. That Tennisline no longer used the site did not make the action inadmissible.

The cross-appeal failed. The First Hall had not upheld the claims on the quality of materials or for remedial orders, which Tennisline had dropped, so Tennisline rightly bore those costs. The court dismissed both appeals, with each appellant paying the costs of its own appeal.

Why it matters

A contractor that undertakes the whole job cannot shift the blame to the subcontractor who laid the concrete. An employer faced with a contractor who will not fix defects can have the work redone by others and sue for the cost. Test reports explained on oath carry weight, while unsworn reports do not.

Where it sits

The case applies the rules on the contract of works in articles 1633 to 1643 of the Civil Code, read with the general rules on non-performance. The contractor must perform according to the rules of the trade and guarantees the soundness of its work.

The First Hall relied on the Court of Appeal (14 June 2001) for the rule that a contractor answers for its subcontractors under article 1642. On the contractor's duty to refuse work that will not give a sound result, it cited the Court of Appeal (9 January 2009 and 19 June 2006).

On telling a contract of works from a sale, the Court of Appeal relied on First Hall judgments of 9 November 2010 and 28 January 2004. On the employer's remedies, it cited the First Hall (30 June 2004, 20 March 2003 and 9 June 2004). On the burden of proof, it cited the Court of Appeal (Inferior Jurisdiction) (14 July 2004).

Source

Court of Appeal (Superior Jurisdiction), 49/2020/3, 29 January 2026.