Jaya Sarana Engineering Pte Ltd v GIB Automation Pte Ltd

• Jurisdiction: Singapore
• Judge: Sundaresh Menon JC
• Judgment Date: 02 April 2007
• Neutral Citation: [2007] SGHC 49
• Court: High Court (Singapore)
• Year: 2007
• Published date: 04 April 2007
• Plaintiff Counsel: Tan Teng Muan, Wong Khai Leng, Alia Mattar (Mallal & Namazie)
• Defendant Counsel: Kanagavijayan, S Rajan (Kana & Co)
• Citation: [2007] SGHC 49

2 April 2007 Judgment reserved.

Sundaresh Menon JC:

1 This is a case that is related to Suit 360 of 2005 which involved related though not identical parties. I also heard that matter and my judgment in GIB Automation Pte Ltd v Deluge Fire Protection (SEA) Pte Ltd [2007] SGHC 48 sets out some of the background to the deterioration in the commercial relationship between these parties. To that extent, it may usefully be referred to.

Background

2 The plaintiff, Jaya Sarana Engineering Pte Ltd and the defendant, GIB Automation Pte Ltd, entered into an agreement on 10 March 2004 (“the contract”) under which the plaintiff was engaged by the defendant to carry out certain works in relation to a fire alarm system at the Singapore Management University (“SMU”), hereinafter referred to as “the SMU project”, for the agreed lump sum price of $310,000. There were 2 sites involved in this project: the “Bras Basah (“BB”) site” and the “Victoria site”. The main contractors for the SMU project were Obayashi Corporation (“Obayashi”) and Koon Seng Contractors Pte Ltd (“Koon Seng”) for the BB site and the Victoria site respectively, hereinafter referred to collectively as “the main contractors”.

3 The plaintiff initiated this suit, bringing a claim for the sum of $186,000 in respect of the work that it had allegedly completed under the contract but for which it had not been paid (“the balance contract sum”). It is not in dispute that the plaintiff has already been paid a sum of $123,400. In addition, the plaintiff claimed payment for various other variation/additional works that it had allegedly carried out but for which it had not been paid. These works were said to be valued at a sum of $125,330.

4 The defendant responded to the suit by bringing a counterclaim for damages for various alleged breaches of the contract by the plaintiff. The defendant quantified its counterclaim for damages at a sum of $472,542.04 (which includes a 10% “administration charge”).

5 Prior to the commencement of the trial, it was agreed between the parties that the trial of this suit would be bifurcated, and that the first tranche of hearings would be devoted solely to determining the question of liability with the issues of quantum to be decided on another occasion, if necessary. This judgment therefore only deals with issues of liability.

Preliminary observations

6 Before analysing the various claims and the evidence, I think it is appropriate to make some observations about the manner in which the parties approached the conduct of this case. Some of the pleading points taken by the plaintiff struck me as being unduly technical to the point of being unhelpful. There is no gainsaying the fact that pleadings play a crucial aspect in defining a party’s case, and I do not advocate a lax approach in respect of the need for clear and proper pleadings. However, undue emphasis on technical arguments can result in distracting or delaying the parties and the court from the substantive issues in the case.

7 Purely to illustrate the point, I list a couple of the objections made by the plaintiff which I found to fall in this category. First, the plaintiff contended that the defendant had not specifically pleaded its denial of the plaintiff’s claim for the balance contract sum. However, a quick perusal of the Defence and Counterclaim showed that although the defendant had not pleaded specific particulars and arguably had not specifically denied that the balance contract sum was due, in paragraph 3 of the pleading, the defendant had denied all the particulars and figures claimed for by the plaintiff. In my view, this was more than sufficient in the circumstances. Moreover, there could have been no real doubt that this was the defendant’s essential position.

8 Further, the plaintiff at several points in its submissions raised an objection that the defendant’s pleadings did not specifically state the evidence for the assertions contained therein. However, O 18 r 7 of the Rules of Court (Cap 322, R5, 2006 Rev Ed) is explicit in directing that pleadings must contain only material facts and not the evidence by which those facts are to be proved.

9 I make one other observation. This is with regard to the nature and structure of the written closing submissions that would be appropriate, especially in a factually intensive case such as the present. These submissions are meant to assist the court in reaching its decision and it is imperative in my view, that the written closing submissions make specific reference to the evidence in the case. It does not assist the court when general and sweeping statements are made as to the effect of or the conclusions to be drawn from the evidence with not a single reference to where the relevant evidence may be found in the transcripts. This was especially surprising in the present case since I had made it clear that I expected counsel to include specific reference to the transcripts. The difficulties facing the court are compounded when the factual matrix is complex and a significant amount of time has elapsed between the hearing of the matter and the filing of the written submissions. In this regard, I found the defendant’s closing submissions to be quite unhelpful.

The plaintiff’s claims

10 I turn now to consider the various claims advanced by the plaintiff which may be categorised as follows:

(a) The claim for the balance contract sum;

(b) The claim for abortive works, ie, works which had to aborted or redone; and

(c) The claim for variation works, ie, works which were varied as required by the main contractors.

The claim for the balance contract sum

11 This portion of the plaintiff’s claim required the most analysis and a fairly detailed assessment of the witnesses and their evidence. As will be apparent below, a large part of this assessment and my findings thereon are to some degree related to the other claims in issue.

The sub-contract

12 The brief background facts have been mentioned above (see [2] and [3]). The plaintiff apparently sub-contracted the material portions of the works it was supposed to carry out under the contract to Wing Lee Electrical Service (“Wing Lee”) (“the sub-contract”). These portions are in relation to the supply and the installation of a fire alarm system. According to Mr Donald Cheo, the operations director of the plaintiff, the sub-contract was an oral one. It appeared that this sub-contract was for the sum of $170,000. However, no document which evidenced the sub-contract was ever produced in court despite the assertion by Mr Cheo that such a document did exist. The following extract from the cross-examination of Mr Cheo, by Mr Kanagavijayan, counsel for the defendant, reflects these points:

Q: Did you have a written subcontract between the plaintiffs and Wing Lee, as far as this subcontract is concerned?

A: We have a document. Not submitted it.

Q: Not submitted?

A: Isn’t submitted.

Q: Why didn’t you submit this subcontract?

A: I think we have missed out.

This may be contrasted with the evidence of Mr Tan Ching Guan, who also gave evidence for the plaintiff and who was the sole proprietor of Wing Lee. Mr Tan Ching Guan stated unequivocally that there was no documentation in relation to the contract.

13 Since no such document was produced in evidence and no reasonable explanation was given for its non-production, and in view of the directly contradictory evidence (of the plaintiff’s own witness) on this point, I find that the sub-contract between the plaintiff and Wing Lee was oral and that its terms were not reduced into writing. Thus, I approach this matter on the basis that there were no written terms of the sub-contract.

14 The plaintiff’s case is straightforward: it maintains that it has completed all the works required of it under the contract but has not been paid in full; thus, it is entitled to the balance contract sum. The plaintiff relies on the evidence of its sub-contractor, Wing Lee, through its representatives, Mr Tan Ching Guan and Krishnan Venugopal (“Mr Krishnan”). The latter was a supervisor in the employ of Wing Lee. They are collectively referred to in this judgment as “the sub-contractors”. Essentially, the evidence of the sub-contractors was that they completed all the works under the sub-contract. In order to prove that it had indeed carried out the works required of it, the plaintiff takes the position that the works that the sub-contractors carried out were exclusively those which were required of the plaintiff under the contract. In other words, the sub-contractors completed the work that was required of the plaintiff, and so fulfilled the plaintiff’s obligations under the contract.

15 The evidence of the sub-contractors was a crucial part of the plaintiff’s case. This was especially significant because the defendant alleged that some of the same works had in fact been done by the defendant’s workers, a point that is addressed below (see [32]-[35]). The real issue before the court is whether all the work had been done by the plaintiff?

16 As mentioned above at [13], there were no written terms of the sub-contract. If, as the plaintiff alleges, the sum agreed under the sub-contract was $170,000, that would have been more than half the value of the contract. One might have expected that the arrangements would have been set out in writing in detail. Yet, this was not done.

17 More significantly, Mr Tan Ching Guan said during cross-examination that he had not had sight of the contract between the plaintiff and the defendant until “discussions with the lawyer” before trial. It follows from this that at the time of carrying out the work, Wing Lee had no meaningful reference point with respect to the scope of what they were supposed to do under the sub-contract. This increases my doubt as to whether the sub-contractors actually knew enough to be in a position to say “Yes, we did all the work”. The following extract from Mr Kanagavijayan’s cross-examination...