Icon Studio Pte Ltd v Kingsley Khoo Hoi Leng

• Jurisdiction: Singapore
• Judge: Loo Ngan Chor
• Judgment Date: 18 March 2020
• Neutral Citation: [2020] SGDC 60
• Citation: [2020] SGDC 60
• Court: District Court (Singapore)
• Published date: 01 April 2020
• Docket Number: DC Suit No. 1811 of 2015
• Plaintiff Counsel: Mr Mervyn Foo Yeung Chern, Ms Elyssa Tan Jing Ting and Ms Yik Shu Ying (Yi Shu Ying) (M/s Lee & Lee)
• Defendant Counsel: Ms Emily Su and Mr Kenneth Tan (M/s Donaldson & Burkinshaw LLP)
• Subject Matter: Building and Construction Law,Damages for defects,Delay in completion,Incomplete work,Quantum Meruit,Contract,Mitigation of damage,Civil Procedure,Pleadings,Experts
• Hearing Date: 18 March 2020

District Judge Loo Ngan Chor:

These grounds set out the decision which I make and my reasons therefor in a renovation dispute between the parties, heard by me.

Having carefully read the parties’ closing and reply submissions and examined the record, my decision is to substantially allow the Plaintiff’s claim and to allow a limited portion of the Defendant’s counter-claim.

This dispute concerns renovation works done by the Plaintiff for the Defendant at a condominium unit at “XX-XX Horizon Tower Condominium” (“the flat”).

The Plaintiff’s claim is for outstanding payment of $121,257.69 for the renovation works. The Defendant says that the Plaintiff failed to do the renovations with due care and competence so that they were not reasonably free from defects and fit for their purposes.¹ The Defendant says that owing to the alleged defects, whatever sum that may be due to the Plaintiff would be neutralised by the Plaintiff’s counter-claim and result in the Plaintiff having to pay the Defendant $32,019.15 “as rectification costs” and $21,000 “as compensation amount” for loss of use of the flat.²

The Defendant had bought the flat in early 2014. The flat was for the Defendant’s and his family’s occupation.³

In August 2014, the Defendant employed Kloud LLP to draw up a design for the flat.⁴

The Plaintiff’s claim for the outstanding payment is based on there being three agreements, one for the sum of $110,000 for original works first agreed (“original works”), a second in the sum of $150,000 for variation works (“variation works”) and a sum of $16,257.69 for additional items which the Plaintiff bought and installed at the flat based on several requests made by the Defendant (“additional variation works”). Including a payment of $50,000 which the Defendant made on 9th February 2015⁵, parties agree that the Defendant has paid to the Plaintiff a total sum of $155,000, leaving the balance which the Plaintiff claims.

The Defendant had initially disputed any agreement between the parties, at any rate, for the variation and additional variation works; the Plaintiff having pleaded that the parties agreed on each of the three components of the works⁶, the Defendant denied this but then pleaded that there was an agreement in respect of the original works⁷. This position was reiterated in the Defendant’s opening statement.⁸ In his AEIC, the Defendant admitted that he agreed to the variation works.⁹ However, he maintained that when the Plaintiff sought a second payment on 3rd February 2015, which led to his second payment of $50,000, he was “alarmed as [he] had not agreed to the installation/costing of the above items.”¹⁰, by which he referred to the additional variation works. The position thus is now that parties agree that there were two agreements, one for the original works and the other for the variation works. The Defendant’s position remains that he “did not agree to the installation and/or the cost of the additional variation works.”

The Defendant’s case is that there was a firm date for completion of the renovation works in that “the Plaintiff’s Roy represented to the Defendant that the renovation works would be completed by Christmas i.e. 25 December 2014.” ¹¹

The trial occupied three days. The first day was concerned with my hearing and ruling on a preliminary objection of the Defendant. The testimonial part of the trial took place during a later tranche of two days.

Each party called three witnesses.

The Plaintiff called Mr Teo Khoon Ling Roy (“Roy”), the Plaintiff’s director involved in the contractual negotiations with the Defendant¹², Mr Johnny Shang Chia Hui, the Plaintiff’s director who supervised the works¹³ and Mr See Choo Lip, a quantity surveyor who had featured as the parties’ single joint expert¹⁴ but whose report and addendum were disowned by the Defendant.

The Defendant himself testified.¹⁵ He also called two witnesses. Mr Neo Thiam Soon, a technical officer of Inspect First Singapore Pte Ltd (“Inspect First”), who provided evidence of fact concerning defects he observed at the flat during his site visit on 31st May 2015.¹⁶ Providing expert evidence for the Defendant was Mr Lem Shen Yeong, a quantity surveyor who said that he made a site visit to the flat on 17th March 2018.¹⁷

This case has had a troubled procedural history. As parties perhaps realised, the resolution of this dispute would turn much on expert evidence. As I shall explain, this has been so and my decision is informed by my assessment of the merits of the parties’ respective experts’ evidence. In particular, I accept Mr See’s evidence.

I need to first advert to the procedural history because it has an impact on the quality of the experts’ evidence, directly in respect of Mr See’s, and indirectly in respect of Mr Lem’s.

In his preliminary objection, the Defendant claimed that Mr See’s evidence should be inadmissible because of without prejudice privilege.¹⁸ Parties had attended mediation sessions at the State Courts Centre for Dispute Resolution from 19th October 2015. At a CDR session on 17th June 2016, it was suggested that parties jointly appoint a third party expert surveyor. Over several weeks, parties exchanged proposals for such a single joint expert. The Defendant rejected the Plaintiff’s proposals. In the event, on 26th July 2016, the Plaintiff agreed to Mr See’s appointment based on the Defendant’s proposal.¹⁹

In the letter dated 28th November 2016, the Defendant’s solicitors, Donaldson & Burkinshaw, instructed Mr See on the terms of his appointment. An extract from Annex A to the letter reads:

[The Plaintiff] and [the Defendant] have agreed to jointly engage Mr See Choo Lip of PMC World Pte Ltd (“the Expert”) to investigate and provide his impartial findings on the following issues in dispute, such findings to be regarded as binding on both [the Plaintiff] and [the Defendant]:

…²⁰

(emphasis added)

In Part B of the Annex, it was stated that “[The Defendant] says that there were defects in the renovation works – please see Annex A to [the Defendant’s] Defence and Counterclaim dated 15 July 2015.” The “issue” for Mr See’s “determination” was to “determine which of the defects alleged by [the Defendant] are made out and which are not.” and “Insofar as any of the alleged defects are made out, to provide an estimate of the reasonable cost to make good these defects.”

It is noteworthy that the list of defects set out by the Defendant at Annex A of his pleading is taken from an inspection report dated 31st May 2015 prepared by Inspect First.

I heard submissions of counsel for the preliminary objection and rendered my oral decision in the afternoon of the first tranche of the trial on 26th December 2018.²¹ I dismissed the preliminary objection and upheld the admissibility of Mr See’s evidence including his report and his subsequent addendum dated 18th August 2017. The short reason for my decision was that Mr See’s appointment and terms thereof were the product of the parties’ negotiations, and thus was not privileged. I ordered the costs of the preliminary objection to be the plaintiff’s costs in the cause and reserved it for the conclusion of the matter.

It would be apparent that had the Defendant abided by his agreement, Mr See’s views concerning the defects listed in Annex A of his pleading, and rectification costs, would have been the end of the matter and it would have been amicably resolved. In the result, this did not happen.

Indeed, after the trial concluded, the Defendant filed an application to amend his Defence and Counterclaim to include supposedly “incomplete works”. Based on the record, the Defendant’s allegation of incomplete works is derived from Mr Lem’s report (although one cannot be sure about its provenance). The Plaintiff had duly objected to Mr Lem’s evidence including the allegations concerning allegedly incomplete works. Mr Lem had made references to such allegedly incomplete works. Two consequences arose out of these allegations.

On the basis of these allegations, Mr Lem derived “an assessment of the value of the renovation work performed by [the Plaintiff]. He arrived at an estimate of S$183,055.37…”²² (as opposed to the agreed price for the original works and the variation works). Using the alleged value of the work, deducting $68,120 (being the quotation of an entity that did not testify, Heavenly Homestead), adding GST to the difference, and last deducting sums paid to account by the Defendant, i.e. $155,000, the Defendant said that the Plaintiff owed him $32,019.15 as “rectification costs”.²³

Owing to the position that works remained “incomplete”, Mr Lem opined that the “contract completion date” was 1st February 2015 so that the “delay in completion as at 17 March 2018) was 1,140 days. This has extended to 1,251 days as at 6 July 2018 [the date of Mr Lem’s AEIC].”²⁴ I note, but only in passing, that 1st February 2015 differed from the Defendant’s position that the contracted completion date was 25th December 2014.

In turn, this led to the Defendant saying in opening, the following: As a result of [the Plaintiff’s] delay, [the Defendant] had suffered loss of use of the [flat] for which he should be compensated. Based on the rental rates for an equivalent 2,303 square foot property at Horizon Towers at approximately $7,000 per month, [the Defendant] had suffered loss of use at (approximately): S$21,000 (S$7,000 per month x 89 days: 25 December 2014 to 24 March 2015); Further or in the alternative, S$250,220 (approximately S$200 per day x 1,251 days: 1 February 2015 to 6 July 2018).²⁵

I pause to say that in closing the Defendant has implicitly resiled from that humongous claim for so-called loss of use and fallen back on his pleaded position of 89 days x $7,000, i.e. $21,000. ²⁶

The Defendant did not make any application to amend his Defence and Counterclaim at any time before or during the trial to...