District Judge Loo Ngan Chor:
Introduction:
The dispute in the present case had concerned a range of issues arising out of renovation works done by the plaintiff at the defendant’s penthouse. The defendant has appealed against my decision dismissing his counter-claim and ordering indemnity costs fixed at $50,000, to be paid by him to the plaintiff, along with reasonable disbursements to be fixed by me, if not agreed.
I now set out the full reasons for my decision.
Two witnesses testified for the plaintiff: Mr Toh Wei Chong Shaw (“Mr Toh”), the plaintiff’s director, and his expert, Mr Ong Chin Hoe Steven (“Mr Ong”), a building surveyor and quantity surveyor. The defendant testified for himself and called an expert witness, Mr Bruce Jamieson Loggie (“Mr Loggie”), a building surveyor.
The trial took place over two tranches of four days in August 2016 and a third tranche over three days in November 2016.
My brief reasons to parties:
In order to provide a vignette of the dispute and why my decision went the way it did, I set out the brief reasons that I gave to parties on 5th April 2017. I provide my brief reasons for the decision I make today. The rendering of this decision has taken me rather longer than I like owing to my having to check a host of details raised. This is a claim by the plaintiff, an interior design and renovation business, against the defendant for the balance unpaid monies for renovation works done at the premises No. 15 Minbu Road #14-15 Singapore. The premises is owned by the defendant and his wife. The contract of the parties is dated 27th September 2012. This was the product of parties’ discussions on the evolving scope of the works and had undergone earlier versions in the form of quotations. The value for the contract as at that date was $198,643.00. After the contract, there were further and substantial variations and a number of omissions required by the defendant. Towards the then on-going work, the defendant paid $160,000 in all. The works were completed in August 2013 after which the defendant’s family moved into the premises. The plaintiff sent the defendant his tax invoice dated 5th August 2013 (1AB110-116) for a total sum of $281,470.00, which after deducting the defendant’s payments prior, amounted to a balance of $121,470.00. In the plaintiff’s letter dated 18th September 2013, the second paragraph says that “Our final invoice dated 5th August 2013 was issued to you accordingly after practical renovation works was (sic) duly completed. We have also complied to finish the rectification works under our scope in accordance with the defects list that was given by you.” It went on to say that the plaintiff expected to complete rectification works by 20th September 2013 and to seek prompt payment. Although the parties’ relationship was initially cordial, the plaintiff’s director being a friend of the defendant’s brother-in-law, it became quite bad at some point. This was perhaps in late August 2013 over costs (2AB376), after the plaintiff’s August invoice. After the final invoice, when the plaintiff knew that the defendant was not going to make any further payment and the relationship had turned sour, the plaintiff sent a final claim dated 30th December 2013 (1AB241) to the defendant. The balance for works claimed was now $174,415.18. Broadly, I understood the plaintiff to have ballooned this claim balance because there had been goodwill between the parties as a result of which he had given goodwill discounts to the defendant in the August invoice. When the goodwill evaporated, he wanted to impose what he considered the correct amounts. In sum, the defendant raised a number of defences. As pleaded, it was said that the plaintiff had agreed to limit his charges to the defendant’s budget of $200,000. At the start of the trial, learned defendant’s counsel confirmed that this defence was being dropped although the defendant later in cross-examination vacillated over this. The defendant also alleged that the plaintiff had deceitfully misrepresented his qualifications and experience and wanted refund of $160,000 that he paid. I note that the upshot of this defence would have been that the defendant would have had the premises renovated gratis and that this issue was not pressed as the proceedings unfolded. The defendant, in his counter-claim, complained of a litany of defects and rental allegedly incurred by him for late handover. In regard to the defects, the defendant called an expert whom he had wanted to change at a late stage of the proceedings pre-trial, owing to the expert being too generous in his estimation of the cost of the defects. I note that the expert’s valuation of the defects in fact amounted to $84,525.87. I shall now give you my findings. In respect of the plaintiff’s claim, after I reviewed parts of the transcript, I have found that the plaintiff’s enlargement of his claim from the August 2013 invoice to be whimsical. Hence, I would not allow its claim based on the so-called final invoice of 30th December 2013. I would allow its claim based only on the 5th August 2013 invoice, ie, $121,470.00. I take this position on the basis of the plaintiff having proven only that the value of its work was that in the August 2013 invoice rather than that of December 2013. In respect of the defences, I note only that no evidence for rentals was in fact adduced. The complaint of late handover was in fact largely caused by spalling concrete which the MC was putting right. As for the alleged defects raised by the defendant, I am not able to uphold any of them. In part, this is because they were largely not canvassed in cross-examination. As for the several that were canvassed, I am in agreement with the plaintiff’s counsel, Mr Tay’s submissions. Hence, I would not allow anything for the alleged defects. As importantly, I note that the defendant’s expert’s figures, by reference to the plaintiff’s December invoice, would have wiped out the entire amount above $200,000, ie, it would have met the defendant’s object of not having had to pay more than $200,000 for his renovations. I also agree that too much time, a large proportion of days, was spent in cross-examination of PW1 on issues that did not help me, especially on how the parties’ pre-contractual discussions evolved into the work set out in the contract. I would order indemnity costs against the defendant. My decision is thus that the defendant shall pay the plaintiff the sum of $121,470.00 with interest at 5.33% pa from the date of the writ. I dismiss the defendant’s counter-claim. I propose to fix costs, and that on an indemnity basis, after I hear parties.
| |
|
| Court note: | Explained to parties the guide that we use for standard basis costs for this range and complexity of case: $16,000 for the first day and $4000 for the subsequent days. As for indemnity costs, we mark up costs by 20 to 30%. |
| Tay: | I will leave to the court. |
| Beh: | Ask for no indemnity costs. |
| Court: | Taking into account that the trial occupied seven days, costs on a standard basis would be $40,000. In order not to inflict too much pain on the defendant, I would mark up the costs by 25% for the purpose of fixing indemnity costs. Costs on an indemnity basis to be paid by the defendant to the plaintiff fixed at $50,000 along with reasonable disbursements to be fixed by me in the absence of agreement by parties. |
“Whimsical”- a clarification:
At [15] of my brief reasons just set out, I had used the word “whimsical” on the question of why Mr Toh issued his 30th December 2013 invoice (“the December invoice”) when his 5th August 2013 invoice (“the August invoice”) went unpaid. I chose this word on due consideration and meant to dispel any possible misconception that I thought that the plaintiff was not entitled to “profit and attendance” in regard to mark-ups Mr Toh made for attending on, or with the defendant on, third party suppliers or sub-contractors. The plaintiff was entitled to do so except that I was of the view that his reasons for not having consistently charged for profit and attendance and withdrawing his “goodwill discounts” were whimsical. The defendant had succeeded in persuading me that this was the right outcome but not for the reasons that he advanced; I thought that Mr Toh’s approach as to when to apply goodwill discounts and to his profits and attendances inconsistent.
These grounds will be limited to the issue of defects:
In the Defence and Counter-claim (Amendment No. 3), the defence had been (a) that the plaintiff was estopped from charging for anything above $200,000 and (b) that the plaintiff, having issued the August invoice, could not be allowed to improperly increase his claim in the December invoice even when the August invoice was unpaid. Further, the defendant counter-claimed (c) in large part for damages for unrectified defects, (d) delay in the renovation works resulting in his incurring rent of $17,500 over five months and (e) a refund of the $160,000 he had paid to the plaintiff towards the renovation works owing to certain alleged misrepresentations made by Mr Toh, which the defendant said, amount to the tort of deceit. At [12] and [17] of the brief reasons I gave parties, I adverted to the alleged incurred rent and refund of $160,000. I should note that these two just-mentioned points, ((d) and (e)), were not pursued in the defendant’s closing submissions. As for the claim in point (a), this was dropped at the start of the trial.
Hence, the points that remained were (b) and (c). As I found for the defendant in regard to point (b), my decision went against him only in regard to (c), ie, whether the defects were proved.
At [20] of the defendant’s closing submissions, the defendant stated that he accepted the August 2013 invoice in that “there were omissions and variations carried out and...
