Quentin Loh J:
Introduction
The Defendants have appealed against my oral judgment with brief reasons delivered on 31 October 2011. I now set out my reasons for my decision.
The 2nd Defendant, Kamigumi Co Ltd, is a company incorporated in Japan with one of its divisions engaged in the building and construction industry. It has a separately incorporated entity in Singapore, the 1st Defendant, (collectively, “the Defendants”). Sometime in early June 2008, the Defendants heard of and decided to try and secure the theme park contract for the Universal Studios Singapore’s (“USS”) show and ride attractions (“the USS contract”). They were successful. USS awarded the Defendants the contract to erect and install the theme park’s eight show and ride attractions at USS (“the eight attractions”): Water World (“WW”); Jurassic Park River Adventure (“JPR”); Revenge of the Mummy (“ROM”); New York Special FX Spectacular (“SFX”); Journey to Madagascar (“JTM”); Dragon Junior Coaster (“DJC”); Canopy Tour (“C Flyer”); and Pteranodon Flyer (“P Flyer”) – also called the Kiddy Jeep Ride.
The Plaintiff is a company incorporated in Singapore carrying on the business of building and construction. It is owned by Mr Ito Fumiyuki (“Mr Ito”). In this case, the Plaintiff became the labour subcontractor, supplying labour to the Defendants in the circumstances set out below (“the USS labour subcontract”). Which Defendant it contracted with is one of the disputes in this case. The Plaintiff’s first quotation was addressed to and accepted by the 2nd Defendant (“the 1st Agreement”), and subsequently there was a second, identical quotation, backdated to the date of the first quotation, addressed to and accepted by the 1st Defendant (“the 2nd Agreement”) (collectively, “the Agreements”). The other issue is, broadly speaking, the amounts, if any, owed by the parties to each other in respect of various claims.
The parties have resolved two issues: The Plaintiff has admitted to the 1st Defendant’s Counterclaim of $125,149.87 (inclusive of GST) being paid by the 1st Defendant to K2 Specialist Services Pte Ltd for the bolt torque works. The Defendants, as they informed me on 25 April 2011, have decided not to pursue their Counterclaim in respect of the sums paid to one Mr Oshita.
Issues
The parties have also helpfully agreed on the remaining six issues: Whether the 1st Agreement between the Plaintiff and 2nd Defendant remains valid and enforceable, or the 2nd Defendant has been discharged of all its obligations under the 1st Agreement following the execution of the 2nd Agreement between the Plaintiff and 1st Defendant. Whether, under the 1st Agreement and/or the 2nd Agreement, the Plaintiff is entitled to claim the total value of man hours incurred less the sums paid to the Plaintiff by the 1st Defendant in the light of Note (1) of the terms and conditions, which reads as follows: “During work progress, if there are changes which are more than your original BOQ, we will charge you accordingly based on our rate first quote to you.” Whether the Plaintiff is estopped by convention from relying on the Agreements to claim the total value of man hours incurred less the sums paid to the Plaintiff by the 1st Defendant Whether the Plaintiff has discharged the burden of proving, on a balance of probabilities, that it has supplied additional manpower valued at $3,134,965.50 (excluding GST). Whether the 1st Defendant is liable to pay the Plaintiff for its use of the lorry, and if so, the rate to be paid, having regard to the fact that there was no discussion on the rate to be charged Whether Mr Hideaki Iwaki (“Mr Iwaki”) was in breach of his duties as the Attraction Manager for the JPR attraction, and, if so, whether the Plaintiff is liable for the sum of $74,900 incurred by the 1st Defendant in engaging CUL M&E Pte Ltd to provide an assistant for Mr Iwaki.
Facts
The following facts are not really in dispute. Insofar as they are, the following paragraphs constitute my findings of fact. In early to mid-June 2008, the 2nd Defendant’s Mr Terayama, who eventually became the Defendants’ project manager for the USS project, heard about USS’s plans for a Universal Studio attraction on Sentosa Island and alerted his colleague in Singapore, Mr Kamimura, a director of the 1st Defendant. Mr Kamimura, an economics graduate, had no actual construction site experience whether in Singapore or elsewhere. The Defendants decided to bid for the USS contract.
The 2nd Defendant had successfully worked with the Plaintiff’s Mr Ito before, especially in Dubai, and turned to him for its labour supply. Mr Kiyohara was a director in the 2nd Defendant’s building and construction division and was in charge of the 2nd Defendant’s Tsurusaki Branch in Japan. Mr Terayama was actually employed by Hoei Sangyo Co Ltd and was seconded at the material time to the 2nd Defendant’s Tsuruki Branch. He reported to Mr Kiyohara. Since he started work at the age of 18, Mr Terayama has worked and been involved in installation work of entertainment facilities in Japan. However, he has never worked in Singapore.
In August 2008, the 1st Defendant’s Mr Kamimura met with Mr Sakaniwa of Resort World Sentosa (“RWS”, or “the Employer” in building parlance) to discuss the Defendants’ interest in the contract. Mr Kamimura brought along the Plaintiff’s Mr Ito and Mr Michinaka to this meeting. Thereafter there were more meetings between the Defendants and the Plaintiff. Mr Terayama was the person in the Defendants with the experience in building show and ride attractions, having been involved in a similar project in Universal Studios Japan. It was not disputed that the Plaintiff and Mr Ito had never done such work before. Mr Ito left the details of the USS labour subcontract to Mr Michinaka to work out. It was soon apparent that the Plaintiff and Mr Michinaka were having difficulty doing so as they had never done this kind of work before. This too was not disputed.
There was an important fax with attachments dated 31 October 2008 from Mr Kamimura to Mr Michinaka copied to Mr Ito, setting out in spreadsheet format the Plaintiff’s quote, with: a list of the numbers and type of worker required for each attraction (eg, lifting supervisor, foreman, mechanic electrician, welder, rigger, signalman, fitter and forklift driver); the number of days work for each attraction; the number of man hours required of each category of worker, (based on “10 working hour(s): 8.00 - 19:00, Lunch 12:00 – 13:00”); a request to multiply the man hours by 1.5 as the estimates were based on experienced Japanese workers as compared to Singapore workers without the experience; and the start and end dates for each attraction; It was not disputed that Mr Terayama prepared these attachments with the foregoing details and figures based on his experience. This is clearly illustrated from Mr Terayama’s initial inclusion of an electrician as part of the required workforce of the Plaintiff. Whilst it is common for a Japanese contractor to include electricians in their workforce, in the Singapore context and practice, electricians are from separate electrical subcontractors who have to be separately licensed by a statutory undertaker. Hence, no electrician was included in the Plaintiff’s quote.
Mr Michinaka worked on the quotation, no doubt discussing the final figure with Mr Ito. A meeting was held on 20 November 2008 between Mr Ito and Mr Michinaka from the Plaintiff and Mr Terayama and Mr Kamimura from the Defendants to discuss the Plaintiff’s pending quote. I find that Mr Michinaka had worked out the pricing on a Bill of Quantities (“BOQ”) which was based on and incorporated all the details and figures from the attachment referred to above at [9], and this was discussed at the meeting. The original BOQ can no longer be found, but the figures agreed upon are in the Plaintiff’s quotation, which I will discuss below.
On 25 November 2008, the Plaintiff sent the 2nd Defendant its quotation for its supply of labour and installation of equipment for the USS contract, marked to the attention of Mr Kiyohara. This was “Agreed and Accepted” and signed by Mr Kiyohara for and on behalf of the 2nd Defendant (this was the 1st Agreement). This formed the contract between the parties and consisted of a three-page letter form with terms and a detailed breakdown for each of the eight attractions, indicating the type of workers to be supplied, the sub-totals and totals of man-days per type of worker, the number of hours per category of worker (based on an eight-hour work day from 8 am to 5 pm), the unit rate and the amount to be charged therefor, a two-hour overtime provision per category of worker, the hours and unit rate and overtime amounts to be charged therefor, and three pages covering the scope of works items the Plaintiff would cover. It bears repeating that other than the pricing, these details and figures were based on those worked out by Mr Terayama and referred to above at [9]. It is important to note that the text included the following:
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Note (1)
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Our quotation to you is solely based on your BOQ for your man power schedule which received on 20th Nov. 2008. During work progress, if there are changes which are more than your original BOQ. We will charge you accordingly based on our rate first quoted to you.
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(2) Rate of Worker. (1) Straight Time (x 1.0) : 8:00 – 17:00, (2) Over Time (x 1.5) : 17:00 – 22:00,
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(3) Night Time (x 2.0) : 22:00 – 8:00, (4) Sunday / Public Holiday (x 2.0).[Note] (3) Working Hour Condition for Quotation. (1) Monday to Friday : 8:00 – 19:00, (2) Saturday : 8:00 – 17:00, (3) Sunday / Public Holiday : Off.”1.
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Scope of Work
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(1)
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Supervision and labours, tools and equipment,consumables for installation for equipment for Universal Studia as following 8 atractions…
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