Chan Chee Kien v Performance Motors Ltd

• Jurisdiction: Singapore
• Judge: Chan Seng Onn J
• Judgment Date: 26 February 2015
• Neutral Citation: [2015] SGHC 54
• Court: High Court (Singapore)
• Hearing Date: 23 October 2014,26 September 2013,25 September 2013,19 January 2015,14 October 2014,15 October 2014,18 September 2013,19 September 2013,24 September 2013,20 September 2013,16 October 2014,17 September 2013
• Docket Number: Suit No 760 of 2011/L
• Plaintiff Counsel: Por Hock Sing Michael and Er Jing Xian Cindy (Michael Por Law Corporation)
• Defendant Counsel: Kirpalani Rakesh Gopal, Kwek Yuen Justin and Joanne He Xiuwen (Drew & Napier LLC)
• Subject Matter: Contract,misrepresentation,fraudulent,Misrepresentation Act,Commercial Transactions,sale of goods
• Published date: 02 March 2015

Chan Seng Onn J: Introduction

On 17 May 2010, the plaintiff, Mr Chan Chee Kien, purchased a new BMW 550i car (“the Car”) at an aggregate price of $378,100 from the defendant, Performance Motors Ltd, the authorised dealer and agent for sale of BMW cars in Singapore. The Car was duly registered and delivered to the plaintiff on 25 August 2010. It was the first model of its kind to be sold in Singapore although cars of such a model had been in production for more than six months and had been sold elsewhere. Numerous complaints of defects in the Car were subsequently made by the plaintiff. In the end, the plaintiff decided that he no longer wanted the Car and commenced this suit.

The plaintiff alleges that Ms Tan Hua Si (“Ms Tan”), the defendant’s sales consultant, had made several fraudulent misrepresentations about the quality and performance of the Car to induce him to purchase the Car and he had relied on them. Alternatively, if they were not made fraudulently, the plaintiff relies on s 2 of the Misrepresentation Act (Cap 390) to claim an award of damages in lieu of rescission of the contract of sale. The plaintiff further claims a breach of the contract of sale, including a breach of implied conditions on correspondence with description, quality and fitness of purpose under ss 13(1), 14(2) and 14(3) of the Sale of Goods Act (Cap 393) (“SOGA”) respectively.

In the statement of claim, the plaintiff claims the following remedies: a replacement of the Car with a new car; a declaration that the sale and purchase agreement (“the Agreement”) is rescinded by virtue of the defendant’s misrepresentation; a return of the purchase price; and alternatively, damages to be assessed on account of the misrepresentation and/or breach of the contract of sale and purchase. It is clearly wrong of the plaintiff to claim a new car in replacement and at the same time, demand a return of the purchase price paid.

Oral representations made

It is not disputed that Ms Tan showed the plaintiff the BMW 535i model and provided the plaintiff with the 2009 BMW “5 Series” catalogue (“BMW Catalogue”) and the standard equipment list of the BMW 550i model. The plaintiff was interested in the BMW 550i model even though at that time, the defendant had not brought in a BMW 550i car, did not have a BMW 550i car on display in the defendant’s showroom for the plaintiff to view or to test drive, and had not accepted any orders for such cars for its customers. Ms Tan said that she tried to promote the BMW 535i model instead, but the plaintiff was not interested and continued to express a keen interest in the BMW 550i model.

Ms Tan admitted that she had informed the plaintiff that the BMW “5 Series” range of cars was generally superior in terms of quality, comfort and performance to the BMW 330i that the plaintiff was driving then. She told the plaintiff that the BMW 550i was an exclusive top-of-the-line model in the BMW “5 Series” range and was superior to the other models in the BMW “5 Series” range, and that there were very few numbers of the BMW 550i. She accepted that she might have said that the plaintiff would stand out from other drivers in Singapore as she believed that not many drivers would pay for a BMW 550i.

The plaintiff however alleges that Ms Tan induced him to purchase the Car by making the following additional specific oral representations to him: The BMW 550i had enhanced driving stability and comfort and there was ease of and/or accuracy in steering, without any undue noise, due to the installation of the Integral Active Steering. The BMW 550i had enhanced the performance of the suspension system with the installation of the Adaptive Drive, and consequently, the ride comfort for the car passengers was maximised, with the choice of, amongst other things, a “Comfort” mode which was made for a softer ride, without unusual intrusive noises in the cabin. The BMW 550i would be quieter within the cabin, without undue noises intruding into the cabin while the car was being driven. The BMW 550i had a satellite navigation system (“GPS”) as a premium standard equipment, containing the latest updated maps pre-installed and would be extremely user-friendly. The BMW 550i was easier and/or more comfortable to drive in view of the Integral Active Steering, which was installed also as standard equipment similar to BMW’s top-of-the-line luxury range, the BMW “7 Series”. The BMW 550i gave a more comfortable ride in view of the Adaptive Drive, due to an enhanced suspension system similar to that installed for BMW’s top-of-the-line luxury range, the BMW “7 Series”, which feature the defendant had included as an optional item as recommended. The Integral Active Steering and the Adaptive Drive installed in the BMW 550i were both fully tested technology and highly reliable, having been installed and used already in BMW’s top-of-the-line luxury range, the BMW “7 Series”, without any complaints about their performance respectively. The plaintiff could enjoy the prestige and enhanced social status that came from driving the BMW “5 Series” in particular the BMW 550i in Singapore daily or regularly, which would be specially indented from Germany where it would be manufactured and fully fitted-out. The BMW 550i was more reliable and of superior quality in performance in that it would be less prone to breakdowns, and would have fewer problems with its performance such as to require lengthy stays in the workshop for repair, since it would be specially indented from Germany, where the quality of workmanship in manufacture would invariably be expected to be higher than if any fitting-out was done locally, and which would have helped to preserve the original factory warranty on the parts fitted in Germany. The BMW 550i, although a relatively new model then, was free of any unknown defects as it had already been rigorously tested for electronic and/or mechanical defects prior to its launch for sale. Features such as the Integral Active Steering and the Adaptive Drive, also to be installed for use with the BMW 550i, were already installed in the BMW luxury range, the BMW “7 Series”, without any complaint. The BMW 550i would transport the plaintiff and/or his other passengers from one place to another with the appropriate degree of comfort, ease of handling and reliability one could expect from the BMW “5 Series”, which represented the “epitome of a sporty executive saloon”, and even more so for the BMW 550i, being the top-of-the-line premium model in the BMW “5 Series”, this being a premium car and not an average mass market model. The BMW 550i was a car which would provide a better driving experience than the BMW 535i and in particular, the steering system, the suspension system, as well as the cabin ambience in terms of quietness, would all be superior in the BMW 550i. The defendant, being the leading distributor of BMW cars in Singapore for years, even if no longer an exclusive distributor, charged a premium for the BMW cars it sold compared to local parallel importers because they were very familiar with the specifications, features and performance of all the BMW cars they sold. The defendant would be able to promptly and satisfactorily identify and repair any problem with the BMW 550i if necessary since it was the leading service centre for BMW cars in Singapore, where even BMW cars sold by local parallel importers would be sent to the defendant for complicated repairs where necessary, for a price. The defendant’s ability to satisfactorily carry out any repairs required on the BMW 550i would not be compromised by the fact that the BMW 550i was specially indented from Germany and fully fitted-out thereat, in view of the defendant’s close working relationship with the manufacturers of BMW cars in Germany as well as the fact that the original factory warranty for parts fitted in Germany would still apply during that warranty period. In carrying out any repairs required on the BMW 550i as might be identified by them in Singapore, the defendant would not compromise on the fact that the BMW 550i was a specially indented car from Germany, being fully fitted-out thereat as required by the plaintiff, and thus would not remove and/or change any parts in the BMW 550i which had been installed or fitted in Germany since this could compromise the original factory warranty on parts fitted in Germany, unless this was required to ensure prompt, satisfactory and effective repairs to be effected on the BMW 550i.

Ms Tan firmly denied making these additional specific oral representations (a) to (p) at [6] above. I am inclined to believe her evidence and disbelieve the plaintiff’s. I am surprised that the plaintiff can recall these specific representations with such incredible detail when he has no written contemporaneous notes taken of what Ms Tan had said orally. Looking at the overall nature and content of these alleged representations, it seems to me that the plaintiff is tailoring them in order to substantiate a misrepresentation claim based on the events that subsequently transpired (see [19] to [86]). An example would be the specific representation that the Car “would be less prone to breakdowns, and would have fewer problems with its performance such as to require lengthy stays in the workshop for repair”, which corresponds with the subsequent fact that the Car was in the workshop for lengthy stays. Another example would be the particularisation that “the steering system, the suspension system, as well as the cabin ambience in terms of quietness would be all superior in the BMW 550i” which fits the subsequent complaints of the plaintiff, inter alia, of noise from the steering and the suspension system as well as other pulsating, whining, squeaking, humming, hissing, knocking, ticking, propeller, air conditioner and metallic sounds which could be heard in the cabin. As there was a subsequent...