Compact Metal Industries Ltd v PPG Industries (Singapore) Ltd

• Jurisdiction: Singapore
• Judge: Sundaresh Menon JC
• Judgment Date: 29 December 2006
• Neutral Citation: [2006] SGHC 242
• Court: High Court (Singapore)
• Year: 2006
• Published date: 08 February 2007
• Plaintiff Counsel: Michael Por Hock Sing and Siva Krishnasamy (Tan Lee & Partners)
• Defendant Counsel: Nicholas Jeyaraj Narayanan (Michael Hwang SC)
• Citation: [2006] SGHC 242

29 December 2006 Judgment reserved.

Sundaresh Menon JC

1 The parties to this action were both involved in the project to refurbish the Monetary Authority of Singapore Building (the “MAS Building”) and the material events took place in 2004. The main contractor for that project was Taisei Corporation (“Taisei”). A company known as Façade Master Pte Ltd (“Façade”) was appointed as the nominated sub-contractor for the supply and installation of the external cladding. Façade is a subsidiary of the plaintiff, Compact Metal Industries Ltd. Façade appointed the plaintiff to undertake the paint application work in respect of the aluminium panels to be used in the cladding. The plaintiff in turn engaged another of its subsidiaries, Compact Metal Industries Sdn Bhd (“Compact Malaysia”) to actually carry out this work. The paint was to be supplied by the defendant, PPG Industries (Singapore) Pte Ltd. However, this was not an ordinary paint. It was a customised paint that was not featured in the defendant’s standard colour charts. It emerged during the course of the trial that the composition of the paint that was initially supplied was unique and had not previously been used. The defendant would only sell paints such as this to those it had approved as applicators. Compact Malaysia had been such an approved applicator since 1999 although from 10 October 2002 to 30 October 2004 when most of the relevant events in this case took place, that status was in fact held by the plaintiff. However, nothing turned on this.

2 As it transpired, considerable difficulties were encountered in achieving an acceptably consistent finish with the paint that was initially supplied by the defendant. This resulted in the parties seeking the approval of the architect to change the formulation of the paint and this was secured later in 2004. Even then, it was only after some more months of trial, error and adjustment that a satisfactory quality was achieved. The central question in this case is who should bear the responsibility for the loss and damage that was sustained as a result of this. The answer to that question, depends first upon what the relevant terms of the contract are, and second upon what the cause of the problem was.

Preliminary observations

3 The matter was heard before me over 13 days with a total of seven witnesses giving evidence. Before analysing the evidence, I think it is appropriate here to make some observations about the length of time taken with the evidence in the case. The number and range of the factual issues in the case were not such as to inevitably require so many hearing dates. Unfortunately, it did and in my judgment, this was at least in part contributed to by the manner in which the affidavits of the evidence-in-chief were presented. This was applicable to both parties but perhaps especially so in relation to the affidavits filed on behalf of the defendant. In general, the affidavits included at least some of the following:

(a) arguments and submissions;

(b) inferences drawn by the witness, the difficulty this posed being compounded where the witness failed to make clear that he was straying from giving direct evidence of what he knew into drawing conclusions or inferences;

(c) statements that were based on belief or information rather than based on the witness’s own knowledge and often without identifying the sources of such information and belief; and

(d) statements or conclusions which were purportedly supported by the exhibits but which were not always so upon a closer examination.

4 There is much to commend the practice of having the evidence-in-chief of a witness adduced by way of affidavits as mandated by Order 38 r 2 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“the Rules”). However, it is vital to keep in mind that the affidavits of evidence-in-chief for use in a trial are quite different from affidavits that are filed for use in interlocutory proceedings. In respect of the latter, O 41 r 5(2) provides that an affidavit sworn for the purpose of being used in interlocutory proceedings may contain statements of information and belief. This is not the case in relation to affidavits of evidence-in-chief and O 38 r 2(5) sets out the important rule that nothing in O 38 r 2 is to render admissible, any evidence which if given orally would be inadmissible.

5 I can do no better than to cite the following passage from the work of one of our leading commentators on matters of civil procedure, Prof Jeffrey Pinsler. In Singapore Court Practice 2006 (Jeffrey Pinsler gen. ed.) (Lexis Nexis 2006) at para 38/2/7, the learned commentator states as follows:

The rules of evidence are specifically preserved for the affidavit procedure (O 38 r 2(5)). The advocate should be satisfied that he has obtained all the necessary information from the witness concerning the case before he commences drafting. This information would usually be recorded in a statement signed by the witness. The statement may then be reviewed prior to drafting the affidavit to determine what evidence is relevant to the issues in the case. The advocate should only include relevant evidence, that is, evidence which concerns facts in issue and relevant facts (as provided for in ss 5-57 of the Evidence Act). All other information must be excluded from the affidavit as being outside the scope of the court’s concern. Any part of the affidavit which is irrelevant may be struck out (O 41 r 6). It is important that all the evidence sought to be relied upon is included in the affidavit, as a witness may not be examined in chief on evidence which could have been included in the affidavit but which was omitted, unless the court otherwise orders (O 38 r 2(3)). At the same time, the deponent must understand that he is not obliged to disclose certain facts. These include privileged communications between his advocate and himself (ss 128 and 131 of the Evidence Act) and between his wife and himself (s 124 of the Evidence Act). The advocate must also be aware of the exclusionary rules and their exceptions which govern the admissibility of hearsay, opinion, character evidence and evidence of previous judgments and orders (ss 14-57 of the Evidence Act). In particular, there is the general rule applicable to affidavits used in non-interlocutory proceedings that the deponent is only entitled to refer to facts of which he has personal knowledge (O 41 r 5). It may be tempting for the deponent, particular if he is a party, to state his conclusions on his evidence and to include arguments which express his point of view. Both courses would be improper. As a general rule, it is for the court to judge the effect of the evidence, not the witness himself, unless he is an expert who offers an opinion on his findings (s 47 of the Evidence Act). The deponent should not make assumptions as to what evidence will be given by the opposing witnesses and challenge it. As the purpose of the new process is to substitute the examination-in-chief of the witness, the affidavit should only contain matters which would ordinarily be raised at this stage. Consequently, it would not be appropriate to raise arguments on the facts and the law as these are matters which are traditionally left to the closing speech (see, for example, Alex Laurie Factors v Morgan The Times, 18 August 1999, in which it was said that that a witness statement is not intended to present a party’s legal arguments). As in the case of the ordinary examination of witnesses, the affidavit must be free of insulting remarks, offensive language and other scandalous or oppressive matter. If the affidavit fails to abide by this rule, the offending part or parts will be automatically struck out by the court (O 41 r 6).

6 In my judgment, those observations are entirely apposite. I commend them to all whose responsibility it is to prepare affidavits of evidence-in-chief for use in our courts. It is of course true that the Rules do provide for objections to be taken to the contents of such affidavits. However, leaving aside the fact that such a course inevitably results in time and costs being wasted, the availability of such recourse in any case does not displace the primary duty of the solicitor preparing the affidavit to ensure that he has done so in compliance with the requirements of the Rules to the best of his ability.

The facts and the evidence

The witnesses

7 I turn to consider the facts and the evidence in this case. I heard evidence from four witnesses on behalf of the plaintiff. These were:

(a) Mr Eric Lo (“Mr Lo”) who was a director of Façade. He was quite actively involved in the project and was one of the senior figures on the plaintiff’s side.

(b) Mr Ling King Hwa (“Mr Ling”) who was the factory manager of Compact Malaysia’s plant. Mr Ling was directly involved in the efforts to control the application of the paint once the problems surfaced.

(c) Mr Tan Hua Joo (“Mr Tan”) who was an executive director of the plaintiff. His evidence related primarily to quantum issues. I had earlier directed that matters of quantum and liability be bifurcated. Accordingly, in the proceedings before me, only issues of liability were addressed.

(d) Mr Philip Kwang (“Mr Kwang”) who was the chief executive officer of Façade. Mr Kwang dealt principally with the management of the problem when it emerged that a satisfactory finish was not being achieved.

8 I also heard evidence from three witnesses of fact and one witness who was tendered as an expert on behalf of the defendant. These were:

(a) Mr Timothy Choong (“Mr Choong”) who was the sales manager of the defendant’s Malaysian associate company, PPG Coatings (M) Sdn Bhd (“PPG Malaysia”) which was the entity that actually formulated and supplied the paint. Mr Choong’s evidence related primarily to recounting some of the efforts made by the defendant to assist in the management of the problem.

(b) Mr Tajoruddin bin Mohd Jalil (“Mr Tajoruddin”) who was a technical...