Ho Pak Kim Realty Co Pte Ltd v Revitech Pte Ltd

• Jurisdiction: Singapore
• Judge: Lai Siu Chiu J
• Judgment Date: 19 February 2013
• Neutral Citation: [2013] SGHC 41
• Court: High Court (Singapore)
• Hearing Date: 25 June 2012,26 April 2012
• Docket Number: Suit No 36 of 2006 (Registrar’s Appeals Nos 69 and 70 of 2012)
• Plaintiff Counsel: See Chern Yang (Premier Law LLC)
• Defendant Counsel: Tito Isaac, Justin Chan and Denyse Yeo (Tito Isaac & Co LLP)
• Subject Matter: Contract
• Published date: 27 February 2013

Lai Siu Chiu J:

This was yet another chapter in the long-running battle between Ho Pak Kim Realty Co Pte Ltd (“the plaintiff”) and Revitech Pte Ltd (“the defendant”) over the construction by the plaintiff of the defendant’s condominium located at No 89 Kovan Road (“the project”) called Kovan Primera. Previous disputes between the parties are encapsulated in my judgments in Ho Pak Kim Realty Co Pte Ltd v Revitech Pte Ltd [2007] SGHC 194 (“the 2007 judgment”) and Ho Pak Kim Realty Co Pte Ltd v Revitech Pte Ltd [2010] SGHC 106 (“the 2010 judgment”).

The 2007 judgment determined the scope of works of the plaintiff for the project. The plaintiff appealed against the 2007 judgment (in Civil Appeal No 149 of 2007), but did not file the record of appeal/the appellant’s case within the timelines stipulated under Order 57 rule 9 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed). The appeal was deemed to be withdrawn as a result. The 2010 judgment dealt with the merits of the plaintiff’s claim and the defendant’s counterclaim. There, I made the following orders in my judgment (at [135]) delivered on 8 April 2010: final judgment for the plaintiff in the sum of $771,630.97; dismissal of the plaintiff’s claim for undervalued works amounting to $239,337.50; dismissal of the plaintiff’s claim for wrongful termination of contract; final judgment for the defendant in the sums of $5,166.04 and $4,044.35; final judgment for the defendant in the sum of $414,000 for liquidated damages for 276 days of delay in completion by the plaintiff; interlocutory judgment for the defendant against the plaintiff with damages to be assessed and costs reserved to the Registrar for: the cost of rectification works already incurred; defective construction of but not limited to: (1) the roof and parapet wall; (2) the basement car park; (3) windows, sliding doors, glass balustrades and aluminium trellis; (4) defective marble flooring; (5) external walls; (6) staircases; (7) outdoor shower; and (8) exit signages; the plaintiff’s breach of contract in failing to provide warranties and not honouring the defects liability period (“DLP”) of twelve months subsequent to completion; and the back-charges incurred on the plaintiff’s behalf; and the defendant was entitled to set off against the plaintiff’s claims (totalling $771,630.97) its claims of $4,044.35, $5,166.04 and $414,000 as well as its overpayments (set out at [14] of the 2010 judgment), if proven, together with the damages when assessed.

The plaintiff appealed (in Civil Appeal No 74 of 2010) against the 2010 judgment. On 30 September 2010, the plaintiff’s appeal was dismissed, but the Court of Appeal made one variation to the order at [135(g)(ii)] of the 2010 judgment. The variation (as underlined below) reads as follows:

The defendant was awarded interlocutory judgment against the plaintiff for defective construction limited to (1) the roof and parapet wall; (2) the basement car park; (3) windows, sliding doors, glass balustrades and aluminium trellis; (4) defective marble flooring; (5) external walls; (6) staircases; (7) outdoor shower and (8) exit signages and in respect of all these items, only if the defendant established that it was subject to any legal obligation to complete the said rectifications. [underlining added]

The defendant filed its notice of assessment, and the assessment of damages for the items set out in [2(f)(i) to 2(f)(iv)] above was conducted by an Assistant Registrar (“the AR”) on 12 October 2011. Four witnesses testified for the defendant, including a quantity surveyor, Martin Anthony Riddett (“Riddett”), who had also testified at the main trial. The plaintiff called no witnesses, although it filed an affidavit of evidence-in-chief (“AEIC”) by its director, Benson Ho Soo Fong (“Ho”). On 10 February 2012, the AR delivered his judgment and awarded the following sums to the defendant: (a) $16,801.15 for back-charges incurred on behalf of the plaintiff; (b) $111,191.04 for the cost of rectification works already incurred (c) $30,000 for the plaintiff’s omission to provide warranties; and (d) $27,768.67 for the plaintiff’s failure to honour the DLP of one year from completion. The AR adjourned to a later date the assessment for the 8 items of defective construction by the plaintiff set out in [2(f)(ii)] above (“the 8 defective items”), directing that it should be undertaken in two stages, viz: first, to determine if there was a legal obligation on the plaintiff’s part to complete the rectification; and if the defendant established there was such a legal obligation, only then would the cost of rectifying the 8 defective items be assessed.

On 21 February 2012, the AR awarded the defendant the costs of the assessment fixed at $35,000, and $9,000 for disbursements.

The plaintiff was dissatisfied with the AR’s decision and filed Registrar’s Appeal No 69 of 2012 (“the plaintiff’s appeal”) against the following orders: that there would be a second tranche of hearing to assess damages for the 8 defective items; the order as to the costs and disbursements awarded; and the refusal to order that the defendant refund the plaintiff a sum of $47,343.74 for overpayment by the plaintiff to the defendant.

The defendant on its part appealed in Registrar’s Appeal No 70 of 2012 (“the defendant’s appeal”) against the awards for all four items set out in [4] above. It prayed that the sums awarded by the AR for these four items be increased to: (a) $136,242.62 for back-charges; (b) $124,417.04 for the cost of rectification works already incurred; (c) $53,720 for the plaintiff’s omission to provide warranties; and (d) $45,742 for the plaintiff’s failure to honour the DLP. Both appeals came up for hearing before this court.

The plaintiff’s appeal

Counsel for the plaintiff was Mr See Chern Yang (“Mr See”). I should point out that neither Mr See nor his present or previous law firm acted for the plaintiff in the 2007 judgment. Indeed, for the 2010 judgment, the plaintiff changed counsel mid-stream when the case was part-heard. Mr See argued that based on the Court of Appeal’s ruling at [3] above, the defendant had not proved there was a legal obligation on the plaintiff’s part to carry out the rectification works, contrary to the AR’s ruling. Consequently, there should not be a second tranche of hearing to assess the damages for the 8 defective items. He submitted that the defendant’s contention that there was such a legal obligation was misconceived as it was based on the following premise: that there was an agreement between the defendant and the management corporation of the project (“the MCST”) that the defendant would do all it could for the MCST (“premise (a)”); and that there was a breach of the defendant’s duty to the MCST and/or the subsidiary proprietors to ensure that the project handed over to the latter was free from defects (“premise (b)”). Mr See submitted that as the defendant had not adduced any evidence over and above what was presented at the trial, the defendant’s promise to the MCST/the subsidiary proprietors apropos premise (a) above could not constitute a legal obligation to complete the rectification works. The defendant’s witness, Koh Chuan Soon (“KCS”), who was the chairman of the MCST, had testified that the defendant’s agreement with the MCST did not pertain to the 8 defective items. The defendant of its own volition had informed the MCST that it would do more for the MCST than what KCS/the MCST had requested. Further, the defendant’s agreement was conditional upon the defendant succeeding against and receiving a judgment sum from the plaintiff. Hence, there was no legal obligation on the part of the defendant to rectify the 8 defective items until after it had obtained judgment against and payment from the plaintiff.

As the defendant had not discharged the burden to prove it was legally obliged to rectify the 8 defective items, Mr See argued, the defendant was only entitled to nominal damages at law (see Mahtani v Kiaw Aik Hang Land Pte Ltd [1994] 2 SLR(R) 996). Indeed, nominal damages had been awarded by the court even where a loss was proved, but where there was no evidence to enable the court to determine or estimate the actual costs of rectification of defects (L&M Airconditioning & Refrigeration (Pte) Ltd v S A Shee & Co (Pte) Ltd [1993] 2 SLR(R) 346).

Consequently, Mr See submitted, there was no basis for the AR to order a second tranche of hearing to assess damages relating to the 8 defective items. Mr See alleged that the defendant had in fact claimed damages beyond the compensatory principle.

As for premise (b) in [8] above, the defendant had relied on the expert opinion of Hoe Ai Sien Mary (“HASM”) of Hoe-Tan (Co) Pte Ltd, who stated that a duty to rectify defects existed. Mr See contended that HASM’s expert testimony should, however, be disregarded as it did not come within the ambit of s 47 of the Evidence Act (Cap 97, 1997 Rev Ed) (“the Evidence Act”), which states:

Opinions of experts

47.—(1) Subject to subsection (4), when the court is likely to derive assistance from an opinion upon a point of scientific, technical or other specialised knowledge, the opinions of experts upon that point are relevant facts.

(2) An expert is a person with such scientific, technical or other specialised knowledge based on training, study or experience. (3) The opinion of an expert shall not be irrelevant merely because the opinion or part thereof relates to a matter of common knowledge. (4) An opinion which is otherwise relevant under subsection (1) shall not be relevant if the court is of the view that it would not be in the interests of justice to treat it as relevant. HASM had determined whether the 8 defective items were “common property” as defined under the Building Management and Strata Management Act (Cap 30C, 2008 Rev Ed) (“the...