En Frozen Pte Ltd v Singmah Steel Refrigeration Pte Ltd

• Jurisdiction: Singapore
• Judge: Andrew Ang J
• Judgment Date: 29 January 2014
• Neutral Citation: [2014] SGHC 21
• Court: High Court (Singapore)
• Docket Number: Suit No 1011 of 2012
• Published date: 04 February 2014
• Year: 2014
• Hearing Date: 17 September 2013,31 October 2013,10 September 2013,18 September 2013,13 September 2013
• Plaintiff Counsel: Subbiah Pillai (Cosmas LLP)
• Defendant Counsel: Lim Kian Wee Leonard (Lim Kian Wee Leonard)
• Subject Matter: Contract,Breach,Misrepresentation
• Citation: [2014] SGHC 21

Andrew Ang J:

This is an action brought by the plaintiff (“En Frozen”) against the defendant (“Singmah”) seeking various reliefs for alleged breach of contract, including breach of implied terms under the Sale of Goods Act (Cap 393, 1999 Rev Ed) (“SOGA”), and misrepresentation.

En Frozen is a retailer of frozen and chilled food. Singmah is a wholesaler and retailer of commercial kitchen equipment and commercial refrigerators. It was engaged by En Frozen in respect of the purchase and installation of the chiller and freezers at En Frozen’s shop unit at Block 1 Geylang Serai #01-198 (“the Shop”), which was intended to be fitted out as a “mini-supermarket”.

Singmah had agreed to supply: one Fukushima-brand chiller, two 8ft showcase freezers and two 6ft showcase freezers (collectively, “the First Order”) under Order Form 08802 dated 20 April 2011 (“the First Order Form”) for a sum of $127,116; and two Fukushima-brand self-contained “island” freezers (collectively, “the Second Order”) under Order Form 08977 dated 1 June 2011 (“the Second Order Form”) for a sum of $16,500.

For convenience, I shall refer to the chiller and various freezers collectively as “refrigerators”.

Singmah has a counterclaim against En Frozen for $63,558, being the balance of 50% outstanding under the First Order and interest thereon.

En Frozen’s claim for the refund of moneys paid under the Second Order is doomed to fail, as it is res judicata. The Second Order was the subject of Magistrate’s Court Suit No 23819 of 2011. In that case, Singmah sued En Frozen for $8,500 (being the unpaid balance of the price of goods sold and delivered yet unpaid) and interest.¹ Summary judgment was entered against En Frozen on 29 March 2012. En Frozen did not appeal and the judgment has been satisfied by En Frozen.²

Background

En Frozen’s and Singmah’s versions of the events surrounding the sale and installation of the refrigerators differ significantly in almost all crucial aspects. Indeed, the parties cannot even agree on when they first met to discuss the matter.

The first meetings

En Frozen originally conducted its business at two stalls in the wet market at Block 1 Geylang Serai. According to its director, Lee Chee Hoon (“Lee”), business was brisk and he was looking to expand. This opportunity came when he succeeded in bidding for the Shop on 10 December 2010.³ He had plans to turn it into a “mini-supermarket”.

According to Lee, he approached Singmah through its senior sales executive, Ms Ooi Siew Chen (“Siew Chen”) on the very day he succeeded in his bid. Together with En Frozen’s general manager, Ms Jenny Tan (“Jenny”), he asked Siew Chen whether Singmah could supply En Frozen with supermarket chillers and freezers. Siew Chen said it could.

Then in late December 2011, he provided Siew Chen with a simple layout plan of the Shop. They discussed how the refrigerators were to be laid out and Lee informed her that he wanted the refrigerators to be placed along the wall, like in a supermarket. Siew Chen subsequently drew a sample layout and also told Lee that customised U-shaped refrigerators could be arranged for.⁴

Siew Chen denied that these meetings took place. She averred that Lee first approached her sometime in January 2011 with a request that Singmah help him do some drawings in connection with the tender for the Shop. As Singmah did not provide such services, she recommended one Jackie Tan (“Jackie”) of Jia Studios to do the drawings. Lee, on the other hand, contended that he had asked for such a recommendation specifically for the purpose of finding someone who could draw up a 3D plan of the layout design that Siew Chen herself had drawn.⁵

I believe that the earlier meetings did take place. For example, Siew Chen would have us believe that she had little to do with the layout drawing made by Jia Studios,⁶ besides sending a few photos to Jia Studios.⁷ She said she told Lee to deal directly with them. But there were two e-mails from Jackie addressed to her that clearly asked for her “inventory list that show[ed] the dimensions”.⁸ To be precise, they were sent to Singmah’s general e-mail address, but that is unsurprising since it appeared that Siew Chen herself used Singmah’s general e-mail to send outgoing e-mail, as a subsequent e-mail by her to Jenny demonstrated.⁹ It is hard to believe that she did not receive the two e-mails.

The supermarket visits

According to Lee, he subsequently briefed Siew Chen on his various requirements for the refrigerators. In particular, he emphasised that he needed the showcase freezers and chiller to have a certain “depth”.¹⁰ He also sent Siew Chen photographs of the type of chiller and island freezers that he was looking for.¹¹

Then on or about 4 March 2011, Lee and Jenny brought Siew Chen to supermarkets in Toa Payoh to show her examples of refrigerators that he preferred and, for contrast, those that he did not. In particular, Lee pointed out a Carrier-branded showcase freezer at the Shop N Save Supermarket at Block 181 Toa Payoh Central as having the depth he needed in a freezer. He required the showcase freezers and chiller to have sufficient depth because the Shop was small and the rental was high, and Lee wanted the refrigerators to fulfil the dual roles of storage and display.

Siew Chen, on the other hand, disputed that Lee said anything about depth at all. She claimed that Lee had only emphasised that the upper compartment of the showcase freezer must not be “too low” to avoid obstructing the customer’s view of the lower compartment.

Sometime in March 2011 (the date being disputed),¹² Siew Chen informed Lee that Singmah would not be able to fabricate the showcase freezers. She would instead source for the refrigerators from other sources.

Events after visiting the Shop

Lee received the key to the Shop on or about 21 March 2011. On that day¹³ or the next¹⁴, Siew Chen visited the Shop. Siew Chen took measurements and sketched a layout drawing of the Shop. She also spoke with the electrician, Yeo Guan Chuan (“Yeo”). Lee and Yeo alleged in their respective affidavits that Siew Chen gave Yeo instructions in relation to the installation of electrical points in the Shop. Siew Chen denied this.

While in the Shop, Siew Chen also looked at the electricity distribution board (“DB board”) to find out the electrical capacity of the Shop and determined that the electrical capacity of the Shop was 126 amps/3 Phase. It is unclear how Siew Chen came to that conclusion. In her affidavit of evidence-in-chief, she said that she got the number from looking at the two DB boards in the Shop (there were two as the Shop was actually made up of two shop units) and adding up the total.¹⁵ However, under cross-examination, she said she did not know how to read the DB board and that it was Yeo, the electrician, who told her that the Shop had 126 amps capacity.¹⁶

Regardless of how she got her impression, it was wrong. A letter from the Housing & Development Board (“the HDB Letter”) dated 11 March 2011 to Lee stated that the Shop was provided with 60 amps/3 Phase electrical load.¹⁷

From 11 to 18 April 2011, a number of meetings and discussions took place between Lee, Jenny and Siew Chen. According to Siew Chen, the following occurred: Siew Chen drew up two proposals, “Proposal A” and “Proposal B”, using layout drawings of the positioning of the likely refrigerators to be installed in the Shop. “Proposal A” was premised on refrigerators of the “Hussmann Tempcool” brand while “Proposal B” was premised on Fukushima refrigerators. Lee decided on “Proposal B”.¹⁸ According to Siew Chen, she amended “Proposal B” to incorporate Lee’s instructions. There was also a series of discussions regarding where the Fukushima refrigerators were to be placed. Siew Chen alleged that she did advise Lee that there would be an issue of space if the refrigerators were placed as Lee wanted.¹⁹ Siew Chen also stated that, on or about 18 April 2011, she showed Lee and Jenny catalogue pictures of the Fukushima chiller and freezers. The catalogue pictures contained information regarding the temperature ranges the refrigerators were capable of and diagrams containing both the external and internal dimensions of the chiller and freezers.²⁰ This is disputed by En Frozen. Siew Chen also recommended that, instead of using one compressor to the four showcase freezers in the First Order, it was better to have one compressor to run each showcase freezer so that the breakdown of one compressor would not affect the other freezers. Lee said he followed her advice because he was a layman and left it to Siew Chen “to do what she deem[ed] fit and necessary”.²¹ (The various parties appear to use the words “compressor” and “condensing unit” interchangeably – for convenience, I will use the word compressor exclusively.)

According to Lee, he had intended to buy, in addition to the items in the First Order, two “remote” island freezers as distinct from “self-contained” island freezers. A “remote” island freezer has a remote condenser rather than one built in, and it has some advantages over the latter that Lee liked. However, on 18 April 2011, Siew Chen informed him that she had found out that the Shop did not have sufficient power for all the refrigerators. She advised him to use self-contained island freezers instead of remote island freezers because the electrical voltage for the former was lower. He accepted her advice.²²

Siew Chen, on the other hand, said that it was Lee who wanted the order for the “remote” island freezers to be put “on hold” because he had wanted four such island freezers, and she informed him they would take up too much space in the Shop.²³ Oddly enough, Siew Chen’s affidavit did not offer any explanation as to why Lee subsequently ordered self-contained island freezers rather than remote island freezers, as he had always wanted.

Concluding the agreement and...