Geocon Piling & Engineering Pte Ltd v Multistar Holdings Ltd

• Jurisdiction: Singapore
• Judgment Date: 04 May 2015
• Date: 04 May 2015
• Docket Number: Suit No 65 of 2011 (Summons No 6292 of 2014) consolidated with Suit No 500 of 2011
• Court: High Court (Singapore)

Geocon Piling & Engineering Pte Ltd (in compulsory liquidation)

Plaintiff

and

Multistar Holdings Ltd (formerly known as Multi-Con Systems Ltd) and another suit

Defendant

[2015] SGHC 111

Vinodh Coomaraswamy J

Suit No 65 of 2011 (Summons No 6292 of 2014) consolidated with Suit No 500 of 2011

High Court

Civil Procedure—Pleadings—Amendment—Application after trial and written submissions but before oral submissions—Proposed amendments raising facts already canvassed at trial and in written submissions—Whether amendments causing prejudice which could not be compensated by costs

Civil Procedure—Pleadings—Amendment—Whether amendment introducing new cause of action outside limitation period—Whether amendment based on substantially same facts as existing cause of action—Order 20 rr 5 (2) and 5 (5) Rules of Court (Cap 322, R 5, 2014 Rev Ed)

The defendant was awarded a major public works contract. It subcontracted a section of it to the plaintiff which, in turn, subcontracted that entire section to a third party. The subcontract between the plaintiff and the defendant was a lump sum contract priced at $26 m.

The third party subsequently stopped work under the subcontract, alleging breach of contract. It stopped work in two stages: first, at a single location, and, several months later, at all other locations. The plaintiff took over and completed the third party's unfinished work. The third party brought suit against the plaintiff and secured judgment. The plaintiff failed to pay the judgment debt. The plaintiff was put into compulsory liquidation and a liquidator appointed. The liquidator formed the view that the defendant still owed the plaintiff money under the parties' subcontract. The plaintiff therefore commenced this action against the defendant.

The plaintiff's case was that it had taken over and completed the third party's unfinished work on the basis that the defendant would reimburse it for all costs it incurred thereby. The defendant's case was that the plaintiff's claims were time-barred. Alternatively, it pleaded that the plaintiff was not entitled to be reimbursed but was instead bound by the lump sum price of $26 m in their subcontract. On that premise, the defendant counterclaimed $0.66 m from the plaintiff as an overpayment. In its reply, the plaintiff pleaded that, even if the defendant were correct that the plaintiff was bound by the lump sum price, the plaintiff was nevertheless entitled to recover $6.8 m, alternatively at least $0.05 m, from the defendant. Both these figures were aspects of the defendant's counterclaim for $0.66 m.

After trial and after closing written submissions had been filed, the plaintiff filed the present summons seeking leave to amend its statement of claim. The proposed amendments fell into two categories. The first category clarified that the third party ceased work in two stages (ie,first, at a single location, and, several months later, at all other locations). The second category added, amongst other things, two additional counterclaims which rested on the alternative case, new to the statement of claim but already pleaded in the reply, that the subcontract was a lump sum contract under which the defendant owed the plaintiff $0.05 m or $6.8 m.

The defendant opposed the amendments on the ground that allowing them at this very late stage would cause it prejudice for which it could not be compensated by costs. The defendant also argued that the plaintiff's new alternative case ought not to be allowed because it was inconsistent with its original case that it was entitled to reimbursement rather than to a lump sum payment.

The plaintiff secured leave to make its proposed amendments. Dissatisfied, the defendant sought by letter an opportunity to present further arguments that the amendments ought not to have been allowed because they would add a new cause of action which was time-barred such that O 20 r 5 (2) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) was engaged. The defendant did not specify whether its arguments were that the proposed new cause of action was time-barred before the writ was issued or that it became time-barred after the writ had been issued.

Held, granting the plaintiff's application to amend and rejecting the defendant's request to present further arguments:

(1) A party would be allowed to amend its pleadings if the amendments enabled the real issues between the parties to be tried and would not cause any prejudice to the opposing party for which it could not be compensated by costs. This was so even if the application for amendment came at a late stage. The lateness of the application was not determinative in itself but was only one factor for the court to consider in exercising its wide discretion to allow amendment. The overarching consideration was whether, in all the circumstances, the amendment operated unfairly to the opposing party: at [45] and [49] .

(2) The first category of amendments did not change the plaintiff's case, but merely provided additional factual background. The plaintiff's case, before and after the amendments, was that the defendant had agreed to reimburse it for all extra costs incurred in completing the work, whenever and wherever those extra costs were incurred. The defendant had understood and addressed this case through its expert. Pleading by amendment that the third party stopped work in two stages did not change this aspect of the plaintiff's case. The first category of amendments therefore did not give rise to any prejudice for which the defendant could not be compensated by costs: at [62] , [66] , [68] and [70] .

(3) In any event, the first category of amendments raised only additional issues of law, and not of fact. These issues could be resolved without reopening the evidential phase of the proceedings. It was a highly significant factor in the plaintiff's favour that it did not seek to adduce further evidence to support its amended case: at [76] and [78] .

(4) A plaintiff could legitimately plead inconsistent cases in the alternative so long as the inconsistency did not offend common sense. The plaintiff's alternative case did not offend common sense because the point of divergence between its original case and the alternative case was a question of law and not a question of fact within the plaintiff's knowledge: at [93] and [94] .

(5) As for the second category of amendments, the alternative claims on the lump sum basis did not take the defendant by surprise. The two figures of $0.05 m and $6.8 m were both aspects of the defendant's counterclaim for $0.66 m. All of the figures comprised in this counterclaim had been fully presented, attacked and defended at trial. There was, again, no prejudice for which the defendant could not be compensated by costs: at [96] to [98] , and [100] .

(6) The court declined to hear the defendant's further arguments on limitation because the arguments could not, on any view, have succeeded. If the defendant's argument were that the plaintiff's new alternative case was time-barred before the writ was issued, then O 20 r 5 (2) would not be engaged because permitting the amendments would not deprive the defendant of the benefit of an accrued limitation defence. If the defendant succeeded in its limitation argument, it would defeat the plaintiff's claims in their entirety (both the original claims and the claims inserted by amendment): at [111] and [113] .

(7) If the defendant's argument were that the plaintiff's new alternative case had become time-barred after the writ had been issued, then O 20 r 5 (2) would be engaged. The court then had to consider four questions: (a) whether the proposed amendment added or substituted a new cause of action; (b) whether the period of limitation applicable to that new cause of action had expired; (c) whether the new cause of action arose out of the same facts or substantially the same facts as a cause of action in respect of which the plaintiff had already claimed relief in the action; and (d) if so, whether it was just to grant the plaintiff leave to make the proposed amendment: at [115] .

(8) A new ‘cause of action’ within the meaning of O 20 r 5 (5) referred to the relief or remedy that the plaintiff sought. Even if the relief or remedy claimed by amendment carried the same label as an existing relief or remedy, however, it might nevertheless be a new cause of action if the plaintiff advanced a case which was substantially different from its existing case. The plaintiff's alternative case on the lump sum basis was not new in that it was an existing aspect of the plaintiff's case, although it appeared only in its reply. Thus, the proposed amendments did not seek to introduce any new cause of action and O 20 r 5 (5) was not engaged: at [120] and [129] .

[Observation: In considering whether a relevant period of limitation had expired, the court ought to limit itself to considering only whether the defendant had a reasonably arguable case on limitation. This low threshold caused no prejudice to the plaintiff: so long as it was reasonably arguable that the limitation period had expired, that question ought to be addressed separately and explicitly in a fresh suit rather than determined summarily in the amending party's favour on an interlocutory application: at [133] and [134] .

The question of whether a new cause of action arose out of ‘the same or substantially the same facts’ fell to be decided with regard to the purpose of O 20 r 5 (5). That purpose was to ensure that any new claim advanced by amendment under O 20 r 5 (5) did not have the effect of requiring the defendant to investigate, after the limitation period had expired, a substantially new set of underlying facts: [142] and [143] .]

Abdul Gaffer bin Fathil v Chua Kwang Yong [1994] 3 SLR (R) 1056; [1995] 1 SLR 484 (refd)

Ballinger v Mercer Ltd [2014] 1 WLR 3597 (refd)

BP plc v AON Ltd [2006] 1 Lloyds Rep 549 (refd)

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