Empresswood Enterprise Pte Ltd v Kao Shin Ping

• Judge: Tan Boon Khai
• Judgment Date: 25 May 2005
• Neutral Citation: [2005] SGDC 120
• Citation: [2005] SGDC 120
• Court: District Court (Singapore)
• Published date: 03 June 2005
• Plaintiff Counsel: S Magintharan (Netto and Magin LLC)
• Defendant Counsel: Anthony Wee (Rajah and Tann)
• Subject Matter: Building and Construction Law,Building and construction contracts,Renovation contracts and contracts for minor works,Plaintiff contractor failing to carry out works on defendant's premises within specified time,Plaintiff carrying out works incompetently and failing to obtain approval from authorities for certain structural works,Whether time of essence under agreement,Whether cumulative effect of numerous breaches of agreement committed by plaintiff can be taken into consideration,Whether plaintiff in breach of contract,Whether defendant entitled to terminate agreement,Whether defendant entitled to counterclaim against plaintiff for cost of reinstating premises to condition satisfactory to Building Control Authority for approvals to be obtained for works, penalty imposed by Authority for unauthorised works, and cost of reapplying to Authority for approvals for works,Damages,Remoteness of damage,Defendant counterclaiming against plaintiff for loss of rent in respect of house owned by him that he might have received had he been able to move out of house into premises and rent it out, and for wasted charges paid to management corporation of the premises,Whether such losses within reasonable contemplation of parties,Whether defendant would have incurred such expenses if plaintiff had not breached agreement,Quantum meruit,Plaintiff contractor completing some works on defendant's premises,Defendant accepting this fact,Whether there was implied promise by defendant to pay for works done by plaintiff on the premises on a quantum meruit basis,Scope of works,Variations,Plaintiff issuing variation orders,Whether variation works agreed between parties,Whether plaintiff entitled to be paid on quantum meruit basis for variation works,Civil Procedure,Costs,Principles,Each party succeeding on some claims but failing on others,Whether costs should follow the event, or whether each party should bear own costs,Contract,Contractual terms,Entire contract,Plaintiff and defendant entering into agreement under which defendant agreeing to reimburse plaintiff's fees and expenses incurred by plaintiff in preparing and submitting applications to authorities for approval of structural works,Balance of agreement sum to be paid upon structural works being approved by the authorities,Plaintiff failing to obtain necessary approvals,Whether plaintiff entitled to any sums under agreement

25 May 2005

District Judge Tan Boon Khai:

Introduction

1 In these proceedings, the Plaintiffs claimed the sum of $214,632.82 from the Defendant, this sum being the amount due for the designing, renovation (“renovation works”) and addition and alteration works (“A&A works”) (collectively “the works”) at units #18-05 (“unit 18”), #19-05 (“unit 19”) and #20-05 (“unit 20”) at Katong Park Tower 114-A, Arthur Road, Singapore (collectively “the Premises”).

2 In the Defendant’s Amended Defence and Counterclaim, the Defendant denied the Plaintiffs’ claim. He further alleged breaches arising out of the works, and counterclaimed for damages from those breaches.

3 At the conclusion of the trial, and after considering parties’ respective Closing Submissions, I allowed the Plaintiffs’ claim in the amount of $92,626.02. This represented, inter alia, a reasonable remuneration to the Plaintiffs for the works and various variation and/or additional works. However, in view of the Plaintiffs’ breaches arising out of the works, which I also found, I gave judgment for the Defendant’s counterclaim in the amount of $26,400.00.

4 In the midst of the Plaintiffs undertaking the works, they had been advanced an amount of $100,000.00 by the Defendant. Following my judgment that I had stated briefly in the preceding paragraph, the Plaintiffs had clearly been overpaid. In that instance, I ordered that the Plaintiffs return a sum of $33,773.98 to the Defendant. This represented the difference between the Defendant’s advance payment, the remuneration to the Plaintiffs for the works, and the Defendant’s counterclaim. As far as costs were concerned, I ordered that each party bear their own respective costs.

5 The Plaintiffs, being dissatisfied with my decision, have appealed against my judgment. I now give my reasons for my decision.

Brief background facts

6 It is pertinent to have a quick overview of the background facts leading to the dispute between parties in these proceedings. Sometime in or around November or December 2000, the Defendant approached the Plaintiffs (“the first meeting”) to carry out the works on the Premises. As mentioned earlier, the Premises are a three storey penthouse. The 18^th floor space takes up approximately 65% of the total floor area of the Premises.

7 In his Affidavit of Evidence-in-Chief (“AEIC”), the Defendant explained his intention for carrying out the works (at paragraph 4):

4. I then decided that it may well by a good idea to split Katong Park into two with the first unit consisting of the 18^th floor and the second unit consisting of the 19^th and 20^th floor by demolishing the internal staircase between the 18^th and 19^th floor and sealing up the hole thereafter. This will enable my daughter to have her own separate apartment. At the same time, my wife and I could move into the 19^th floor to be near our daughter and yet give her enough privacy now that she is an adult. We would then be able to rent out 284 Dunearn Road, Singapore 299555 for extra income. 284 Dunearn Road, Singapore 299555 is a semi-detached house along Dunearn Road and therefore can fetch good rental returns.

8 284 Dunearn Road (“the Dunearn Road property”) is another property owned by the Defendant. Since 1997, the Defendant had been residing there.

9 Unfortunately, what transpired between the Plaintiffs, represented by one Cedric Chow Chuin Yee (“Chow”), and the Defendant at the first meeting was of some dispute. In fact, Chow claimed that there were a series of meetings with the Defendant, but these meetings were not confirmed by the Defendant.

10 Be that as it may, the decisions reached as a result of the meeting(s) were not disputed. It was common ground that for the A&A works on the Premises to be carried out (this encompassed the works to separate the 18^th from the 19^th and 20^th floors of the Premises), approval from the relevant authorities, such as the Building Control Authority (“BCA”) and the Urban Redevelopment Authority (“URA”), had to be obtained. The reason was because such works were considered structural works. Essentially, the A&A works required the demolition of a staircase within an existing structure (i.e. the Premises) of the building. In doing so, the Strata Title of the Premises also had to be split. The Defendant was aware of the need to obtain such approvals, and gave instructions to the Plaintiffs to proceed with the necessary applications to the relevant authorities for the works to be carried out. He also claimed he informed Chow expressly that the Plaintiffs were not to commence the works until the relevant approvals had been obtained from the authorities.

11 Following the meeting(s), the Defendant requested that the Plaintiffs provide a quotation of their fees for the preparation of submission of the necessary applications to the relevant authorities. By an agreement dated 20 Dec 2000 (“the 20 Dec 2000 fee agreement”), the Defendant agreed to reimburse the Plaintiffs a sum of $9,785.00, being the payment of the Plaintiffs’ fees and necessary expenses in this respect, including preparing and drawing up the necessary plans and designs for the works, and submitting them to the relevant authorities for approval. As part of the same agreement, the Defendant paid to the Plaintiffs $2,850.00 as down-payment. The remaining amount was to be paid upon obtaining the approval from the said authorities.

12 From this point onwards, both parties gave diagrammatically different versions of the events which transpired. Suffice to say at this juncture, sometime on 18 April 2001, the Plaintiffs and the Defendant came to an agreement, evidenced by a Sales Confirmation, that the price of the works would be at a global sum of $140,000.00 (“the Agreement”).

13 Several months thereafter, the Defendant alleged that the Plaintiffs breached the Agreement. Because of displeasure at the Plaintiffs’ breach, the Defendant terminated the said agreement by way of a letter from his solicitors to the Plaintiffs on 14 September 2001.

14 By way of their solicitors’ letter dated 24 September 2001, the Plaintiffs accepted the Defendant’s termination of the Agreement. Sometime in November 2002, the Plaintiffs commenced the present legal proceedings to recover all outstanding amounts arising from the termination of the Agreement. At the same time, the Plaintiffs alleged that there remained several amounts outstanding pursuant to various variation works in respect of the Premises, and claimed for these amounts as well.

The Plaintiffs’ Statement Of Claim

15 The gist of the Plaintiffs’ claim was found at paragraphs 7 and 8 of their Amended Statement of Claim, which averred:

7. By reason of the foregoing the Plaintiffs have lost the benefit of the agreement and the additional and variation works and have lost the revenue they would otherwise have received under them and have thereby suffered loss and damage.

	Particulars	Amount
1.	Contract price of Agreement	$140,000.00
2.	Valuation of variation works
	Contracted (Variation 1 – 7)	$160,242.79
		__________
		$300,242.79
	Less amount paid by the Defendant for the above works	$100,000.00
	Sub-total	$200,242.79
3.	Material purchased on behalf of Defendant	$8,405.03
4.	Application for Separate Strata Title	$9,785.00
	Less amount paid by the Defendant	$3,800.00
		__________
	Total	$214,635.82

8. Alternative, the Plaintiffs claim for reasonable remuneration for all works done and services rendered, including additional and variation works, at the request of the Defendant for the project.

16 The particulars of the variation works claimed by the Plaintiffs were listed in paragraph 3 of the Amended Statement of Claim in the following manner:

	Particulars	Amount
1.	Variation 1 – Electrical Works at the Project	$140,000.00
2.	Variation 2 – Supply and install Timber Flooring at # 19-05 & #20-05	$19,238.00
3.	Variation 3 – Plumbing, Sanitary Works & Fitting at Project	$37,054.00
4.	Variation 4 – Painting Works at Project	$9,097.00
5.	Variation 5 – Supply labour & material to install lower box-up false ceiling	$41,332.50
6.	Variation 6 – Supply & install aluminium	$3,133.26
7.	Variation 7 – Supply & install time door frame	$5,665.00
8.	Application for Separate Strata Title	$9,785.00
9.	Material purchased on behalf of Defendant at his request	$8,405.03
		__________
	Total	$160,242.79

17 In the course of the proceedings, it was brought to my attention that there were several errors in the Amended Statement of Claim. These errors were either conceded by the Plaintiffs, or were not challenged by them. In that instance, I took cognizance of those errors in determining the Plaintiffs’ claim.

18 In a nutshell, the errors were as follows: (i) there was a double claim by the Plaintiffs for the amounts relating to the application of the “Separate Strata Title” of the Premises, as well as for “Materials purchased on behalf of the Defendant at his request”. Both these claims were pleaded twice as particulars to the Plaintiffs’ Amended Statement of Claim (see paragraphs 15 and 16 above); (ii) insofar as Variation Order 5 as particularized by the Plaintiffs in the Amended Statement of Claim (i.e. for the supply of labour and materials to install lower box-up false ceiling), there was no such variation order rendered for that amount, or for those works contained in that Variation Order. There was a Variation Order 5 issued by the Plaintiffs to the Defendant dated 12 July 2001. However, that particular variation order related to carpentry works in the sum of $52,010.00, and the Plaintiffs thereafter conceded that they were not claiming for that. It would seem that as far as Variation Order 5 was concerned, the Plaintiffs had therefore abandoned their claim in this respect; (iii) as far as Variation Orders 6 and 7 pleaded in the Plaintiff’s...