Anti-Corrosion Pte Ltd v Berger Paints Singapore Pte Ltd

• Jurisdiction: Singapore
• Judge: Philip Pillai J
• Judgment Date: 08 May 2012
• Neutral Citation: [2012] SGHC 101
• Court: High Court (Singapore)
• Docket Number: Suit No 989 of 2009
• Published date: 14 May 2012
• Year: 2012
• Hearing Date: 06 July 2010,28 June 2010,05 July 2010,02 July 2010
• Plaintiff Counsel: Jonathan Yuen and Joana Teo (Harry Elias Partnership LLP)
• Defendant Counsel: Sathiaseelan s/o Jagateesan, Kenneth Lim and Ramesh Kumar (Allen & Gledhill LLP
• Subject Matter: Contract
• Citation: [2012] SGHC 101

Philip Pillai J: Introduction

The plaintiff is a painting contractor and the defendant is a manufacturer and supplier of paint. The full account of the background to the dispute arising between the parties is set out in Anti-Corrosion Pte Ltd v Berger Paints Singapore Pte Ltd and another appeal [2011] 1 SLR 427 (“the CA decision”).

Background

For the purpose of this judgment, which deals solely with the assessment of damages, it suffices to set out the following salient facts. The plaintiff was subcontracted to paint the surfaces of a building project at Bukit Batok Street 23 (‘the Bukit Batok project”) which included: a 9-storey ramp up building (“Building A”); and a 30-storey building (“Building B”). It bought the defendant’s paint for that purpose. The plaintiff applied the paint to the surfaces of the building project based on the defendant’s proposed paint system. However, there was extensive discolouration. The plaintiff bought replacement paint from a third party, Haruna (S) Pte Ltd, and repainted both the discoloured and adjacent areas in the buildings. Although the original painting works took 7.5 month to complete, the repainting works took 16 months. Subsequently, the plaintiff brought the present action claiming damages for the expense of repainting. It claimed that the defendant had given a warranty for the paint so long as the use of the paint was based on the defendant’s proposed paint system. The defendant denied that the paint was defective and brought a counterclaim against the plaintiff for the contract price of the goods supplied. It also denied that it had given any enforceable warranty covering the paint supplied.

In Anti-Corrosion Pte Ltd v Berger Paints Singapore Pte Ltd [2010] SGHC 351, I found that the plaintiff had not proven its case (namely that the defects in the paint had caused the discolouration) on a balance of probabilities. I also observed obiter that if I had decided on the issue of the warranty, I would have found that the defendant had warranted all its products used in any of the plaintiff’s projects for a period of five years, provided that the use was based on a proposed paint system by the defendant. The plaintiff appealed. The defendant cross-appealed on the question of the warranty.

The Court of Appeal dismissed the defendant’s cross-appeal on the warranty at [27]:

... Joseph Yong made his statements to Vincent Lim intending the latter to rely on them. We therefore find the following assurances given by Joseph Yong were express terms of the contract: (a) the Respondent's Decora Emulsion paint would be fit for application on the internal surfaces of the Bukit Batok project, without the need for a sealer coat; and (b) the provision of a five-year warranty for the paints used in the Bukit Batok project, provided the use of paint was based on a proposed paint system by the Respondent: see [9] and [10] above as well as [42]-[45] below.

The Court of Appeal allowed the plaintiff’s appeal and made the following findings: 38 Accordingly, we find that the paint discolouration was more likely than not caused by defects in the Decora Emulsion paint supplied by the Respondent. There has therefore been a breach of the express term of the contract that the Respondent's paint would be free from defects and fit for application on the internal surfaces of the Bukit Batok project, without the need for a sealer coat (see [27(a)] above). This finding obviates the need to consider whether there is a breach of the implied terms of the SGA.

This assessment of damages follows the Court of Appeal’s findings.

My decision

The plaintiff’s claim of $1,185,545.60 for special damages is as follows:¹

No.	Description	Amount
1.	Worker’s Salary for rectification works	$631,685.09
2.	Dinner for Workers (OT)	$34,668.00
3.	Foreign Worker Levy	$63,115.00
4.	Consumable Tools	$11,428.35
5.	Upkeep for Vehicle GQ 859L	$11,613.78
6.	Accommodation for workers by AC Creative Pte Ltd and Cheer Keong Contractor & Construction	$29,393.20
7.	Administrative Charge	$16,000.00
8.	Rental of Portable Scaffolding, Scissors Lift and Boom Lift from Hup Seng Aluminium Construction Pte Ltd	$81,579.95
9.	Purchase paint from Haruna (S) Pte Ltd for repainting	$52,242.75
10.	Paint Investigation by Setsco Services Pte Ltd	$10,700.00
11.	Sub-Contractor for repainting works by Swiss Plan Construction Pte Ltd	$224,000.00
12.	Repainting works for project at No. 2 Toh Tuck Link	$9,482.50
13.	7% GST	$82,313.60
14.	Set-off for Defendants’ invoice for paint materials	[less] $72,676.62
TOTAL	$1,185,545.60

The general rule is that special damages have to be strictly proven and are otherwise not recoverable (Wee Sia Tian v Long Thik Boon [1996] 2 SLR(R) 420 at [15]). Where oral evidence is inconsistent with documentary evidence, and no adequate explanation has been provided, the court may well be justified in relying solely on what can be proven through documentation and not the oral testimony, as was the case in Bocatra Construction Pte Ltd v Thorkildsen [1994] 2 SLR(R) 387 at [31]. I bear these principles in mind as I turn to consider each item claimed by the plaintiff.

The plaintiff claims that the entire area that required repainting were as follows: 176,882 m² being the equivalent of about 6 out of 9 storeys of Building A; and 100,883 m² being the equivalent of about 19 out of 30 storeys of Building B. This means that three storeys of Building A and 11 storeys of Building B did not require repainting by reason of discolouration or had not been originally painted with the Berger paint. The plaintiff had originally issued a letter of demand for repainting, of $443,243.20 (excluding the cost of paint). The plaintiff also claims the costs of a sub-contractor who repainted Building B.

Purchase Paint from Haruna (S) Pte Ltd for repainting

The plaintiff claims $52,242.75 for its purchase of 43,400 litres of replacement paint from Haruna (S) Pte Ltd.

In its closing statement, the defendant acknowledged that:²

… the Plaintiff is entitled to recover this head of claim should the Defendant be found liable for the discoloration and if the Defendant is permitted to recover damages beyond what the parties had contractually agreed.

The defendant has since been found by the Court of Appeal to be liable for the discolouration and damages. Accordingly, the plaintiff is entitled to claim for $52,242.75 under this head.

Sub-Contractor for repainting works by Swiss Plan Construction Pte Ltd

The plaintiff claims the sum of $224,000.00 as the cost of hiring Swiss Plan Construction Pte Ltd (“Swiss Plan”) to carry out the repainting works of the 2nd storey to the 19th storey of the 30-storey building (Building B), comprising the units’ ceiling and wall and basement-corridor ceiling. This was completed by March 2009. As this is fully documented in Swiss Plan’s statement of final account dated 23 March 2009, and is not disputed, I allow this head of claim.

Other heads of claims

What remain to be assessed are the plaintiff’s other heads of claim arising out of the plaintiff’s repainting works for 6 of the 9 storeys of Building A, comprising 176,882 m2. It is in evidence from the on-site supervisor, that the units were repainted for handover by February 2009 and the corridors and external areas were completed between March and September 2009. The plaintiff submits invoices and pay slips for these other heads of claim. The defendant has a common objection to these claims, that the plaintiff has not provided any evidence to show that these were for costs incurred exclusively for the repainting of six storeys of Building A. These costs cannot be proved with complete certainty and I shall accordingly attempt to make an assessment based on the available evidence. Tai Hing Cotton Mill Ltd v Kamsing Knitting Factory (A Firm) [1979] AC 91 at 106.

I note that the number of workers originally deployed in the paintworks was a monthly average of about 20 whilst it was claimed that a monthly average of 23 workers for the repainting. From the invoice submitted by the subcontractor, Building B was completed by the sub-contractor by March 2009. Taking into account that the repainting of Building B had been subcontracted out, and that the plaintiff only repainted 6 storeys of Building A, it would be safer to adopt a measure of the work done by reference to the 7.5 months taken to repaint both Building A and Building B which was 7.5 months and to take into account the respective paint surfaces.

Based on the constant of the surface area, Building A comprised around 63.7% of the total surface area originally painted (ie, 176,882 ÷ 277,765 x 100%), all things else being equal, I would apportion the time taken to repaint Building A (subject to adjustments below) to be around 4.78 months (ie, 63.7% x 7.5= 4.78 months).

Workers’ Salary for Rectification Works

The bulk of the plaintiff’s damage claim is for $631,685.09 allegedly being the cost of paying its workers to carry out its repainting works. To support its claim, the plaintiff produced monthly payslips acknowledged by its workers. Based on the payslips, the plaintiff allegedly took 16,142 man days, or 16 months, to repaint the affected area.³

As the plaintiff had already sub-contracted the repainting works of Building B to Swiss Plan, the plaintiff is only entitled to recover the workers’ salary for repainting 6 storeys of Building A.

The additional time required for repainting

However, I was mindful that the...