Amara Hotel Properties Pte Ltd v Sie Choon Poh (trading as Image Galaxy)

JurisdictionSingapore
JudgeChao Hick Tin JA
Judgment Date19 April 2004
Neutral Citation[2004] SGCA 19
Docket NumberCivil Appeal No 30 of 2003
Date19 April 2004
Published date24 April 2004
Year2004
Plaintiff CounselAdeline Chong (Harry Elias Partnership)
Citation[2004] SGCA 19
Defendant CounselNavinder Singh (Navin and Co)
CourtCourt of Appeal (Singapore)
Subject MatterPleadings,Tenant suing landlord for breach of covenant under lease agreement,Landlord seeking to rely on exclusion clause for negligence contained in tenancy agreement,Whether incumbent on landlord to plead particulars of own negligence.,Civil Procedure

19 April 2004

Judith Prakash J (delivering the judgment of the court):

1 This matter came before us on appeal from the decision of Lai Kew Chai J given on 7 March 2003 (reported at [2003] 3 SLR 703) whereby the learned judge allowed the respondent tenant’s claim for damages arising out of the appellant landlord’s breach of covenant to repair. We allowed the appeal and remitted the matter back to the learned judge for further consideration of the issue of whether on the facts, cl 8.1 of the lease applied so as to exempt the landlord from liability for the tenant’s losses. We now give our reasons.

Background

2 The appellant, Amara Hotel Properties Pte Ltd (“Amara”), was the owner of a shop unit in the shopping complex known as “The Amara” in Tanjong Pagar Road. The respondent, Sie Choon Poh (trading as Image Galaxy) (“Mr Sie”), took a lease of the unit for a period of three years from 9 September 1998 to 8 September 2001 under a lease agreement dated 28 July 1998. Mr Sie operated a printing business at the unit.

3 For the purposes of the action and this appeal, the material terms of the lease are as follows:

8.1 Negligence

The Lessees agree to occupy use and keep the demised premises at the risk of the Lessees and hereby release the Lessors and their contractors and invitees in the absence of any gross negligence on the part of the Lessors their servants or agents from all claims and demands of every kind in respect of or resulting from any accident damage or injury occurring in the Complex or the demised premises and the Lessees expressly agree that in the absence of any such negligence as aforesaid the Lessors shall have no responsibility or liability for any loss damage or injury suffered by the Lessees (whether to or in respect of the Lessees’ person property or business conducted by the Lessees) as a result of any breakage leakage accident or event in the Complex or the demised premises.

9.2 Quiet Enjoyment

To permit the Lessees … to have quiet enjoyment and exclusive possession of the demised premises during the said term without any interruption by the Lessors …

9.4 Maintenance of the Complex

The Lessors shall maintain and keep in repair the Common Area during the term of this Lease inclusive of the exterior walls (other than shop fronts) and all parking spaces roads pavements water drainage lighting and other common facilities and services Provided Always that the manner in which such areas and facilities shall be maintained and the expenditure thereon shall be at the absolute discretion of the Lessors.

[emphasis added]

4 On 19 April 2001, waste water from the food court located directly above the unit leaked into the unit through the ceiling. The unit and the printing machinery inside it were soiled and the carpeted area at the entrance was damaged. Subsequent investigation revealed that the waste pipeline system installed for the food court met in a T-junction above the unit. The pipe at the T-junction was found to be severely corroded and this had led to the leakage. Mr Sie then commenced this action claiming damages for the loss sustained by him as a result of the leakage.

5 In his statement of claim, Mr Sie first set out the covenants contained in cll 9.2, 9.3 (relating to management and operation of the shopping complex) and 9.4. He then set out the events of 19 April 2001 and the consequential damage. Mr Sie then averred that the water and/or waste material contained in the piping system had leaked into the premises as a result of the cast iron pipes “being faulty, wholly corroded and unmaintained”. In these premises, in breach of the specified covenants, Amara had failed to keep the waste water pipe in the common area of the premises in good and proper condition or in a state of proper repair, and in the process had deprived Mr Sie of the use of the premises and caused him to suffer damages.

6 In the defence filed by Amara, all breaches of covenant alleged by Mr Sie were denied. In para 7, Amara pleaded that the leakage on 19 April 2001 was not the result of its default. This paragraph went on:

The Defendants aver that the leak was caused whilst the Defendants’ independent contractors (Dyna-Jet Pte Ltd) were clearing a blockage in the waste pipeline located in the ceiling of unit #03-K2. The Defendants deny any breach of covenants of the Lease Agreement. The waste pipeline system was designed, constructed, installed and supplied by Chan Weng Wah Engineering Pte Ltd, whom the Defendants relied upon for their skill and expertise. The Defendants had also relied on the skills and expertise of independent contractors Dyna-Jet Pte Ltd to regularly service and maintain the waste pipeline system.

7 Amara further pleaded that it was entitled to rely on the operation of cl 8.1 of the lease to exempt it from liability. This pleading, contained in para 9 of the defence, formed the basis of the appeal. It reads:

Further or in the alternative, the Defendants aver that by Clause 8.1 of the Lease Agreement, the [plaintiff] agreed to occupy use and keep the Unit at his own risk and expressly agreed that in the absence of gross negligence, the Defendants shall have no responsibility or liability for any loss or damage suffered by the [plaintiff].

In the reply that he filed, Mr Sie joined issue with each and every allegation in the defence but did not otherwise make any reference to Amara’s reliance on cl 8.1.

8 On the first day of trial, Amara admitted that it was in breach of the covenant to repair but maintained its pleaded position on the covenant for quiet enjoyment. It also reiterated its reliance on cl 8.1 and contended that this clause operated to exempt it from liability for the leakage. During the course of the trial, Lai J observed that while Amara asserted it was exempted from liability under cl 8.1, it had not pleaded that it had been negligent in failing to maintain the waste pipeline system so as to support that clause. The judge stated (as recorded in the notes of evidence):

If so pleaded, plaintiff could have replied by asserting that there was in fact Gross Negligence, thereby taking the matter outside cl 8.1 … There could have been negligence or gross negligence; I don’t know. The party that relies on negligence has to prove it. No evidence on the nature or degree...

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1 books & journal articles
  • Contract Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2004, December 2004
    • 1 Diciembre 2004
    ...a party is seeking to rely on an exemption clause, see the Court of Appeal decision of Amara Hotel Properties Pte Ltd v Sie Choon Poh[2004] 3 SLR 157 (disagreeing with the High Court decision below, Sie Choon Poh v Amara Hotel Properties Pte Ltd[2003] 3 SLR 703, noted in the previous review......

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