Brani Readymixed Pte Ltd v Yee Hong Pte Ltd and Another Appeal

• Jurisdiction: Singapore
• Judgment Date: 01 December 1994
• Date: 01 December 1994
• Docket Number: Civil Appeals Nos 52 of 1994
• Court: Court of Appeal (Singapore)

Brani Readymixed Pte Ltd

Plaintiff

and

Yee Hong Pte Ltd and another appeal

Defendant

[1994] SGCA 138

M Karthigesu JA

,

LP Thean JA

and

Chao Hick Tin J

Civil Appeals Nos 52 of 1994 and 53 of 1994

Court of Appeal

Building and Construction Law–Termination–Repudiation of contract–Whether defendant's failure to give schedule for supply of concrete would amount to repudiation–Whether defendant's mere failure or delay in making payment per se would amount to repudiation–Contract–Discharge–Breach–Whether defendant's conduct amounted to repudiation of contract–Contract–Remedies–Damages–Computation of quantum of damages

The defendant was a building contractor and it entered into a contract with the plaintiff who was a supplier of ready-mixed concrete for the supply of ready-mixed concrete. It was a term of the contract that the defendant was required to provide casting schedule for the whole project. However, the defendant had always placed orders of concrete by way of memoranda. In particular, the defendant sent various memorandums for orders of concrete to the plaintiff on 6 and 7 May 1991 but the plaintiff did not deliver any ready-mixed concrete in fulfilment of any of these orders. From 11 May 1991, no further orders were placed. On 7 June 1991, the plaintiff wrote to the defendant demanding payment of the sum of $278,969.00 which the defendant did not pay. The defendant claimed that the plaintiff had failed to fulfil its contractual obligation in supplying the ready-mixed concrete diligently and proceeded to source for concrete from alternative suppliers. The plaintiff in turn claimed that the defendant had failed to give it a proper advance casting schedule and failed to make payment thereby repudiating the contract. The plaintiff sued for damages for breach of contract and the defendant counterclaimed for damages for breach of contract. The trial judge found that the defendant had intended to terminate the contract, but the plaintiff had affirmed the contract and subsequently wrongly repudiated the contract although the damages suffered by the defendant did not flow from the repudiation. Accordingly, he dismissed both the claim and the counterclaim. Both parties appealed.

Held, allowing the plaintiff's appeal and dismissing the defendant's:

(1) As the plaintiff was able to supply concrete for nine months without a casting schedule, the failure by the defendant to provide this schedule did not amount to repudiation of the contract: at [17].

(2) The mere failure or delay in making payment by the defendant per se would not amount to repudiation: at [17].

(3) The evidence clearly supported the conclusion that by 7 June 1991, the defendant had clearly evinced an intention not to be bound by the contract: at [14], [15] and [16].

(4) The defendant was not merely stalling for time to make payment to the plaintiff, it did not intend to pay the plaintiff at all and perform the contract. It had not placed any order for supply of concrete with the plaintiff since 11 May 1991 and had been obtaining its supplies from Rite-mix. It was clearly in breach of contract, and by its conduct it had by then repudiated the contract, and the plaintiff accepted the repudiation by the letter of 7 June 1991. Accordingly, the plaintiff's appeal was allowed: at [16] and [18].

(5) As the trial judge was not in error when computing the quantum of damages, the Court of Appeal was not disposed to disturb the assessment: at [20].

(6) As the defendant was in breach of contract, it followed that the counterclaim against the plaintiff must fail and the defendant's appeal dismissed: at [21].

George Lim (Wee Tay & Lim) for the appellant in Civil Appeal No 52 of 1994 and for the respondent in Civil Appeal No 53 of 1994

Lee Mun Hooi and Tan Li Cheng (Lee Bon Leong & Co) for the respondent in CA 52/1994 and for the appellant in CA 53/1994.

L P Thean JA

(delivering the grounds of judgment of the court):

1 These were two appeals from the decision of the High Court in which both the claim of the plaintiffs for damages for breach of contract and the counterclaim of the defendants also for damages for breach of contract were dismissed. The first appeal, CA 52/94, was initiated by the plaintiffs and the second appeal, CA 53/94 by the defendants. We allowed the plaintiffs' appeal and gave judgment to them in the sum of $50,000 with interest at 6% per annum from the date of the writ and also with costs, and dismissed the defendants' appeal with costs. We now give our reasons.

The facts

2 The material facts that gave rise to the appeals were these. The defendants were building contractors, and were engaged by the Port of Singapore Authority (“PSA”) to build a service complex at Brani Terminal, Pulau Brani, in July 1990. The plaintiffs were suppliers of ready-mixed concrete. By an agreement in writing dated 27 September 1990 (“the contract”), the plaintiffs agreed to supply and deliver to the defendants a quantity of ready-mixed concrete over a specified period. Several amendments to the terms of the contract were subsequently made and agreed to by the parties. The final terms, in so far as material, were as follows:

cl 4:	Total quantity of concrete 16,000m3 with an allowance of 1000m3
cl 5:	Duration of supply September 1990 till December 1991.
cl 11:	Terms of payment 45 days prompt from date of invoice.
cl 12:	The supplier reserve the right of not supplying in the event payment was not received.
cl 13:	The contractor is required to provide casting schedule for the whole project and daily orders exceeding 50m3 [.] 24 hours advance notice must be given [.] [I]n the event that the...