Amarnath Thakral Enterprises Pte Ltd (formerly known as Amarnath Enterprises (Pte) Ltd v Man Fai Tai Invesetment Pte Ltd

• Jurisdiction: Singapore
• Judge: Lai Kew Chai J
• Judgment Date: 07 August 1998
• Neutral Citation: [1998] SGHC 271
• Court: High Court (Singapore)
• Published date: 26 February 2013
• Year: 1998
• Plaintiff Counsel: N K Pillai and Liew Teck Huat [Niru & Co]
• Defendant Counsel: Andre Yeap and Damien Yeo [Allen & Gledhill]
• Citation: [1998] SGHC 271

Judgment :

Cur Adv Vult

Introduction

At all material times, the plaintiffs were sub-tenants in possession of three partitioned sections in the warehouse complex of the defendants known as No. 10 Jalan Penjuru, Singapore. They claim that some of their textile in bales, which were stored in the three portions of the warehouse, were damaged as a result of two floods which occurred on 21 June 1990 ("the first flood") and on 20 December 1990 ("the second flood"). They claim the sums of $296,183.63 and S$144,077.28 as damages which they say they suffered as a result of the two floods respectively, and alternatively, damages, together with interest and costs.

The 3 sublet units

2.1 The warehouse was sub-divided into many sections and were let out by the defendants, whose head lessors were the Jurong Town Corporation, to many sub-tenants, including the plaintiffs. The layout of the three partitioned sections and those of other sections in the immediate neighbourhood appears in a plan in the bundle of documents marked 3BD252. The plan is not easy to read. The three sections in the warehouse, which were not adjacent to each other, were held under three leases. The lease relating to section A with an area of 240 sq m and situated between sections B and C took effect from 6 June 1989 and the rent was $9,360.00 per month or $0.65 per sq ft. Section B, to the left of section A, was held under a lease commencing 1 December 1989 with an area of 3,010 sq m at a monthly rent of $21,297.60 or $0.65 per sq foot. The lease in respect of section C began on 15 April 1990 and it covered an area of 1,672 sq m and the monthly rent was $11,160 and the rate per sq foot was lower at $0.60.

2.2 At all material times, the plaintiffs employed Mr Saminathan (PW2) as their Administration Manager. He worked in the head office of the plaintiffs and drafted some of the plaintiffs' letters following the floods. He was not stationed at the 3 sublet units, though he visited them after the floods. One Mr Gurcharan Singh kept watch of the 3 sublet units where a number of workmen either stacked bales of textiles or load them on lorries for deliveries or exports. Though Mr Gurcharan Singh had left the services of the plaintiffs, he was available in Singapore to give evidence. No effort was made to call him. Mr Saminathan confirmed that usually 4 to 5 workers usually worked until 10 pm.

The warehouse complex

3.1 The warehouse complex was previously used as a plywood factory which was built in the 1960s and which was later converted into a warehouse complex. The building is constructed on a 2-bay steel portal frame which has a jack-up roof. Its huge external roof, which was covered with asbestos sheets, was served by an external roof gutter and an enormous valley gutter from which rain water was drained off the roof via the roof guttering to drain. As was explained at the trial, the external roof gutter had a secondary or complementary high level internal piping system to discharge the rain water to drain via a number of sumps and a network of subterranean drains. That network of underground pipes lies below the floor of the warehouse. The pipes are connected to sumps from which rainwater is drained by the pipes to the perimeter drains. From thence, rainwater was drained off to the sea nearby. I will have to return to the technical details in view of two disputes, inter alia: (1) whether part of the roof and internal drainage system, including the sumps, which were structurally and physically accessible within the sublet units were within the possession and control of the plaintiffs as the sub-tenant?; and (2) from where did the rain water enter sections A, B and C on those two occasions?

3.2 For the letting business and general maintenance of the warehouse, the defendants employed Mr Pang Heng Cheong, DW3 ("Mr Pang") as the General Manager. Under him was Mr Ng Kian Hua, DW1 ("Mr Ng"), a maintenance officer, who reported to him. They both gave evidence. The defendants employed as their term contractors, Degree Engineering Pte Limited, who carried out minor repairs or maintenance works in the huge complex. Degree Engineering stationed one Mr Ng Swee Bin (DW2), who gave evidence of the background and of what he observed of the aftermath of the two incidents, and one Mr Sim Kim Soo who did not give evidence.

The actions and pleadings

4 Both writs of summons were filed on 17 April 1995, nearly 5 years after the first flood. In the meantime, a fire destroyed a substantial portion of the warehouse, which included sections A and B which had been reconstructed as an open area. Section C survived the fire. The portion of the warehouse adjoining sections A and B, including the drainage system remained for inspection by the experts called on both sides to determine the cause(s) of the ingress of rainwater. The delay in the commencement of the actions, which were in fact driven by the insurers of the plaintiffs, India Insurance Pte Ltd., led, as will be explained later, to very poor quality evidence adduced by the plaintiffs. The fire, however, did not really hamper the rebuttal expert evidence led by the defendants against the questionable opinions of the expert of the plaintiffs.

5 The trials of the two actions were consolidated. The original claim as pleaded in Suit No 649 of 1995, in respect of the first flood, was framed on the basis that the flood took place in section B and in Section B alone. On top of that, only the lease in relation to lease B was referred to. The general overall assertion in para 7 of the amended statement of claim was that the rainwater entered the demised property (ie section B) "from cracks on the concrete floor", flooding the same up to 100 mm (ie 4 inches). The particulars alleged against the defendants invoked by the plaintiffs in support of the assertion in para 7 were as follows:

(a) failing to keep the demised property in a state of good repair and tenantable condition, inter alia, by ensuring that the natural elements like rainwater were kept out;

(b) failing to ensure that the water pipes and other channelling mechanisms and devices in the demised property were kept in a state of good repair and maintenance to properly direct water away from storage space;

(c) failing to maintain the compound drains and to keep them free from obstruction;

(d) failing to provide and maintain a waterproofed flooring in the demised property;

(e) failing to ensure that there were no cracks on the flooring in the demised property capable of allowing seepage of water; and

(f) failing to ensure and keep the common areas in a proper state of repair.

6 The case for the plaintiffs when it was opened was unhelpfully equivocal and was certainly not sufficiently focused. The opening statement of the plaintiffs expanded the sources of water ingress to leaking water pipes, gutters and the roof. Not unexpectedly, the defendants objected, having prepared their defence against the broad assertion that water had seeped from the floor at or near where the flooding had taken place. The plaintiffs obtained an adjournment to amend their statement of claim. When the application was heard on 26 May 1997, the amendment was allowed on the basis that it was without prejudice to the defendants' right to plead the time-bar defence.

7 In the amended statement of claim, filed on 16 June 1997, the plaintiffs alleged that there were six sources of rainwater ingress which led to the floods and that they were in breach of the defendants' covenant for quiet enjoyment of the demised premises. The six sources were:-

(a) water flowing from the external drain outlets into the premises;

(b) water overflowing from collection pits outside the demised premises;

(c) underground water emerging from beneath the concrete floor entering the demised property through cracks and/or exposed sections of the concrete floor as a result of saturation of underground water;

(d) water gushing out from joints and down pipe in the demised property;

(e) water overflowing from the sump in the demised property; (I pause to note that only one sump was referred here)

(f) water overflowed from overhead gutters in the demised property.

8 The amendments also expanded the area in which the breaches were committed to include sections A and C under the respective leases.

9 By para 9 the plaintiffs alleged that the defendants were under a duty to exercise reasonable care and skill to ensure that the plaintiffs was given quiet enjoyment. In particular, the defendants were under a duty to exercise reasonable care and skill (1) to maintain the drainage system for the defendants entire warehouse complex, including the 3 sublet units; and (2) to maintain the common areas that were not within the plaintiffs' possession, power or control in a reasonable state of repair and to ensure that they were free from leaks and/or obstruction. The plaintiffs confirmed that para 9 of the amended statement of claim was based on the covenant for quiet enjoyment as agreed in the three leases.

10 Alternatively, the plaintiffs allege that the defendants had been negligent as they failed to exercise any reasonable or adequate maintenance to keep the 3 sublet units in a fit and proper state of repair and to prevent leaks and/or obstructions. The particulars of negligence were precisely the same as those particular breaches of contractual duties in support of the averment that the defendants had breached their contract to give quiet enjoyment of the 3 sublet units to the plaintiffs.

11 In relation to the claims for damages arising from the second flood, the pleadings regarding liability were the same as those asserted in connection with the claims arising from the first flood. In addition, however, the plaintiffs relied on the occurrence of the first flood, which therefore enhanced the duties of the defendants.

12 In both actions, the plaintiffs rely on the doctrine of res ipsa loquitur.

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