Dyna-Jet Pte Ltd v Hyundai Engineering & Construction Co Ltd

• Jurisdiction: Singapore
• Judge: Foo Tuat Yien
• Judgment Date: 27 January 2001
• Neutral Citation: [2001] SGDC 26
• Published date: 19 September 2003
• Year: 2001
• Citation: [2001] SGDC 26
• Court: District Court (Singapore)

JUDGMENT:

Grounds of Decision

Introduction

1. This is an appeal by the defendants, Hyundai Engineering and Construction Co Ltd ( hereinafter called "Hyundai ) against my decision on 18^th December 2000 to allow an appeal by the plaintiffs, Dyna-Jet Pte Ltd ( hereinafter called Dyna-Jet ) to the extent of granting leave to Hyundai to defend the action subject to Hyundai providing a bankers guarantee for the amount of Dyna-Jets claim, being $150,586 to the lattersatisfaction within 14 days. In default thereof, Dyna-Jet were to be at libery to enter judgement with interest at the rate of 6% from the date of writ to date of judgement. Ms Irene Wu, the Deputy Registrar had earlier granted Hyundai unconditional leave to defend.

Background

2. This is a claim by the Dyna-Jet against Hyundai for $150, 586 being a claim for the cost of services rendered by Dyna-Jet. Dyna-Jet were engaged by Hyundai to carry out clearance of grout blockages ( ie hardened concrete) in sewer lines for a project known as the Seletar Treatment Works Phase III pursuant to the terms of an agreement as set out in Dyna-Jets letter dated 12 April 2000 and Hyundais purchase order dated 15 April 2000. It was specified in the letter that Dyna-Jet would use a 150 HP truck mounted jetting unit with a pressure of 12,500 PSI. and that they would be paid based on the number of hours they worked.

Dyna-Jets case

3. Dyna-Jet states that they carried out the works from 22 May 2000 until 10 August 2000, when they stopped further work because Hyundai refused to pay them on invoices rendered for work already done. 60 worksheets dated from 22 May 2000 to 10 August 2000 signed by Hyundais representative confirming the number of hours worked and stating " I agree that the above described work has been carried out to my satisfaction " have been produced by Dyna-Jet in support of their case.

Hyundais case

4. Hyundais case, as stated in their 1st affidavit filed on 2 November 2000 is that Dyna-Jet in operating their jetting unit, failed to apply a pressure of 12500 PSI. The jetting machine was mostly worked at only 3000 to 4000 PSI. Only at times, was the jetting unit worked at a maximum of 8500 PSI. The concrete blockages were not properly cleared and Hyundai had to employ another contractor, Rentokil to re-do the works. A preliminary test of the works carried out by their consultants Brown and Root on 27 July 2000 yielded unsatifactory results and showed that the water flow in most lines was very slow, which could only mean that the blockages were not properly cleared. By not working the jetting unit at the required PSI pressure, Dyna-Jet had failed to complete the expected length of the grout blockages within their hours worked, thereby causing delay to Hyundais works, for which liquidated damages could be levied by the Ministry of the Environment at the rate of $70 000 per day. In their letter of 10 August 2000, Hyundai offered to pay Dyna-Jet, 68% of the rendered bill, calculated by dividing the PSI pressure of 8 500 by 12 500. Hyundai claims that they have a set off and counterclaim for the delay and the defective works.

5. At the hearing before the Deputy Registrar, Hyundai objected to the introduction of the correspondence exhibited at "SM-5" of Dyna-Jets 2^nd affidavit on the ground that they were part of "without prejudice negotiations". This objection was withdrawn by Hyundais counsel, Ms Yap on appeal.

Issue

6. The issue is : Was Dyna-Jet in default of their contractual obligations by failing to use their jetting unit at 12500 PSI to clear the grout blockages in the sewer lines, thereby resulting in them failing to clear the blockages and also taking a longer time to complete the project and thereby also causing delay to Hyundai, rendering Hyundai liable to liquidated damages being imposed by the Ministry of the Environment ?

7. This required an examination of the worksheets signed by Hyundais representative, the report of Hyundais consultant Brown and Root, the quotation by Rentokil, the correspondence between the parties as exhibited in Dyna-Jets 2^nd affidavit and the contract dated 28 June 1995 between Hyundai and the Ministry of the Enviroment to determine if Hyundai had raised triable issues entitling them to unconditional leave to defend.

8. Dyna-Jet states that they carried out the work between 22 May to 10 August 2000. At no time did Hyundai complain about the capacity of the jetting unit. Hyundais representative had signed all 60 worksheets vouching for the number of hours worked and had certified that the works had been carried out to their satisfaction. Hyundais representative had signed each worksheet after careful scrutiny as they had bothered to alter the number of hours worked on each and every worksheet. On 5 out of the 60 worksheets, Hyundais representative had cancelled the...