Borneo Motors (S) Pte Ltd v William Jacks & Co (S) Pte Ltd

• Jurisdiction: Singapore
• Judge: Chao Hick Tin J
• Judgment Date: 24 July 1992
• Neutral Citation: [1992] SGCA 47
• Docket Number: Civil Appeal No 1 of 1990
• Date: 24 July 1992
• Year: 1992
• Published date: 19 September 2003
• Plaintiff Counsel: Harry Elias and Andrew Chow (Harry Elias & Partners)
• Citation: [1992] SGCA 47
• Defendant Counsel: Ng Kai Ming and Goh Soon Hock (PK Wong & Advani)
• Court: Court of Appeal (Singapore)
• Subject Matter: Excess payment made under mistake of fact,Contract,Effect of carelessness or negligence on right to recover,Claim by plaintiff to recover excess payment made under mistake,Restitution,Mistake,Effect of carelessness or negligence on plaintiff's part on right to recover,Mistake of fact

Cur Adv Vult

This is an appeal against the decision of LP Thean J who dismissed the plaintiffs` claim for the refund of a certain sum, being the excess payment made by the plaintiffs to the defendants on account of an alleged mistake of fact [see [1990] 2 MLJ 455 ].

The action arose out of a tenancy agreement entered into on 13 September 1979 between the parties whereby the plaintiffs agreed to lease from the defenthe ground floor of Building 1 at No 989, 11km, Bukit Timah Road (`the premises`) estimated to contain an area of 5056sq ft for a period of three years commencing on 1 October 1979. The plaintiffs, who were and are motor car agents, intended to and did use the premises as a showroom for the display and sale of motor cars. No 989 Bukit Timah Road then comprised many buildings, which we will hereinafter refer to as `the complex`.

Under cl 4 of the tenancy agreement, the plaintiffs convenanted with the defendants that:

(4) In the event that the Public Utilities Board installs a meter suitable for measuring the quantity of electricity supplied to the premises and that within seven days of the PUB making written demand for the same to pay to the PUB for all electricity supplied to the premises as measured by such meter.

(28) The tenant will during the whole of the term hereby created pay to the landlord free of all deductions an amount of fifty cents per square foot of the floor area as a contribution towards the cost of services supplied by the landlord in respect of the building to be paid monthly on the same day as fixed for payment of the monthly rent.

Under cl 6(1), the plaintiffs further covenanted with the defendants that they `shall also pay for electricity and water consumed on the premises as metered`.

As it turned out, the PUB never installed a separate meter to measure the electricity consumed on the premises. There were two PUB substation meters for the entire complex. However, in order to measure the electricity consumed on the premises, the plaintiffs, at their own cost and expense, but with the concurrence of the defendants, installed a Siemens D22, three-phase electricity KWAR meter for that purpose (`the Siemens meter`).

Thereafter, each month, the defendants` representative would read the Siemens meter and render a bill to the plaintiffs reflecting the charges for electricity consumed on the premises. The first reading of the meter commenced on or about 2 January 1980. The plaintiffs paid the monthly electricity bills accordingly. In or about July 1982, the defendants proposed to increase the general services charges. This triggered off an investigation by the plaintiffs into all the bills rendered by the defendants to the plaintiffs. As a result, the plaintiffs discovered that they had overpaid the defendants in respect of the electricity charges. Thus this action.

Each monthly electricity bill rendered by the defendants to the plaintiffs was computed in this manner: (i) the number of units recorded in the Siemens meter was multiplied five times; this new figure was taken by the defendants to be the number of units of electricity consumed in the premises; (ii) variable rates of charges on a descending scale were applied to the said units; (iii) a government tax of 10% was added to the sum arrived at under (ii). It was and is not disputed that this computation was clearly set out in each bill.

The plaintiffs averred in their amended statement of claim that the overpayment was made under a mistake of fact, namely, that:

(i) the defendants` rendering of the electricity bills were [sic] improper; and/or alternatively,

(ii) the readings of the meter recorded by the defendants had to be multiplied by five times [sic] to be converted to the Singapore PUB`s method of measurement ... .

The defendants denied that there was any excess payment or any mistake of fact. They alleged in their defence that:

... the amount paid by the plaintiffs to the defendants being the plaintiffs` share of the electricity charges is based on an arrangement reached between the plaintiffs and the defendants at the commencement of the tenancy, ie that the plaintiffs shall pay electricharges based on the meter reading of an electric meter installed by the plaintiffs at their premises multiplied by a factor of five.

The defendants had also averred, in the alternative, that the plaintiffs were estopped from alleging that the method of calculating the electricity charges was incorrect because the plaintiffs had accepted the bills, as a result of which the defendants did not do any checks on the meters at the complex. The learned judge found that there was no factual basis upon which the defence of estoppel could be raised. No notice under O 57 r 7 has been filed by the defendants against this finding of the learned judge. Further, at the hearing before us counsel said that the defendants were not pursuing that point. Therefore, what remains before us is simply the question whether the monthly payments made by the plaintiffs as electricity charges were effected under a mistake of fact. Of course, the burden was upon the plaintiffs to prove that the alleged payments, and thus the overpayments, were made under a mistake or mistakes of fact.

The evidence adduced by the plaintiffs shows that one John Ewing, the property director of Inchcape Bhd, the parent company of the plaintiffs, negotiated the terms of the lease with the defendants. The written tenancy agreement set out the entire agreement between them. As there was no separate PUB meter for measuring electricity consumed on the premises, it was agreed between the parties that the plaintiffs should, on their own, install a meter for that purpose. After the Siemens meter was installed, he had no further dealing in the matter until sometime in July 1982 when the general manager of the plaintiffs informed him that there had been some increase in service charges imposed by the defendants. John Ewing then caused an examination into the electricity bills of the defendants to be carried out. The multiplier of five on the electricity bills was noted.

The branch manager of the showroom, one David Tay Kheng Lock, told the court that each month he would receive an electricity bill from the defendants. He would indorse it and pass it to the accounts department for payment. He did approve each bill. But he said that he did not notice the multiplication factor of five. This, the learned judge found hard to believe. Without in any way detracting from this finding, it seems to us that it was highly likely that, as David Tay only became the branch manager in August 1981, he just accepted the bills as they were. Quite clearly, he was in no position to say whether the bills were right or wrong. The person who could have been of some help would be the person who was the showroom manager during the period October 1979 - January 1980; but for reasons not disclosed to the court, the person was not called.

The administration manager of the plaintiffs, one Shirley Leong Lai Chun, told the court that the electricity bills forwarded by the manager of the showroom was paid by her department. She signed the cheques in payment. She only checked the payment vouchers against the bills. She said she did not notice the multiplier of five. This fact the learned judge again could not accept. He felt that she must have noticed the multiplication by five as that was clearly stated on each bill. The learned judge held that in all probability she paid the bills because they had been approved by the branch manager. With this inference we entirely agree. We also agree that Shirley Leong`s evidence was of no assistance to the plaintiffs.

However, it seems to us that the evidence of the electrician, Wong Hin Wah (PW3), who installed the Siemens meter and did the electrical works for the premises and a physics lecturer at the National University of Singapore, Dr Hsu Tat Su (PW5), who had examined and conducted a test on the Siemens meter is most pertinent. Equally relevant and important is the evidence of the senior clerk of the PUB in charge of meter-reading, Nim Chong Seng (PW9).

The electrician, Wong Hin Wah, said that all the electrical works on the premises were done by him. He also installed the Siemens meter. All the electriconsumed on the premises went through that meter. He installed about 50 to 60 lights in the showroom which included fluorescent and five floodlights. There were neon lights outside the showroom. He provided the power points for the neon...