L & M Airconditioning & Refrigeration (Pte) Ltd v SA Shee & Co (Pte) Ltd

• Jurisdiction: Singapore
• Judge: L P Thean J
• Judgment Date: 30 June 1993
• Neutral Citation: [1993] SGHC 147
• Docket Number: Suit No 1417 of 1987
• Date: 30 June 1993
• Year: 1993
• Published date: 19 September 2003
• Plaintiff Counsel: Raja Singham with Phillip Lam (Drew & Napier)
• Citation: [1993] SGHC 147
• Defendant Counsel: G Murugaiyan with Gopal Perumal (G Murugaiyan)
• Court: High Court (Singapore)
• Subject Matter: Quantum of damages not established,Special facts of case,Civil Procedure,Main contractors liable to developers for 90-day delay,Damages,Counterclaim by main contractors for sub-contractors' breach of contract,Building sub-contract,Whether sub-contractors responsible for delay and unsatisfactory works/materials,Costs,Breach,Claim by sub-contractors for balance sum under sub-contract,Counterclaim,Loss suffered by main contractors but unquantifiable,Poor preparation of agreed bundles,Damages for defects,Plaintiffs' conduct unreasonable,Building and Construction Law,Costs not awarded for preparing and perusing and work done in respect of all bundles of documents,Sub-contract for the supply and installation of air-conditioning system,Delay and defects caused by sub-contractors,Nominal damages to be awarded,Delay caused by sub-contractors,Defect liability period,Main contract between developers and main contractors,Whether sub-contractors liable for breach of sub-contract,Liquidated damages clause

This was a dispute arising out of an air-conditioning sub-contract made between the plaintiffs as the sub-contractors and the defendants as the main contractors. The plaintiffs claimed the sum of $126,693.14 being the balance due under the sub-contract and the defendants counterclaimed various sums totalling $153,514.20 as damages for breach of the sub-contract.

The circumstances which gave rise to the dispute were briefly as follows. The defendants were the main contractors in the construction of a block of apartments called Fontana Heights (`the building`) at Mount Sinai Rise. The developers or building owners were International Greenland Enterprises Pte Ltd. The plaintiffs were nominated sub-contractors for the supply and installation of the entire air-conditioning system and equipment to the building. Under the main contract, the date of completion was 19 January 1984 and the date of expiry of the defect liability period was one year from the date of issue of the temporary occupation licence by the competent authority. Under the sub-contract, the date of completion was the same as that of the main contract but the defect liability period was expressed to be one year from the date of practical completion, which was different from that provided in the main contract. The completion of the building was delayed and the date of practical completion was 29 May 1985. The architect in charge of the project granted an extension of time to 28 February 1985, and by reason of this there was a delay of 90 days and liquidated damages in the sum of $540,000 at $6,000 per day were imposed and the amount was deducted from the sums payable to the defendants under the main contract.

The case of the plaintiffs was that the total amount due under the sub-contract was $1,708,996.54 of which the total amount paid was $1,582,303.40 leaving a balance of $126,693.14 due and payable. The defence was by way of a counterclaim, and the defendants counterclaimed damages for breach of contract, namely, that (i) the plaintiffs had failed or refused to make good various defects in the works carried out and materials supplied by them, and (ii) that there had been delay by the plaintiffs in completing their works and they thereby contributed to the delay in completing the building. These were the two major heads of the counterclaim. In addition, the defendants also claimed various minor sums due from the plaintiffs. At the conclusion of the hearing, I gave judgment to the plaintiffs in the sum of $126,693.14 but in exercise of my discretion I declined to award any interest on that sum. On the defendants` counterclaim, I found that the defendants had established liabilities on the part of the plaintiffs in respect of the two major heads of claim but had not been able to quantify their loss or damage. Accordingly, in respect of each head of the counterclaim, I awarded nominal damages in the sum of $200. I dismissed the defendants` counterclaim of the various minor sums, as there was no satisfactory or sufficient evidence in support.

On the question of costs, after hearing arguments I ordered the defendants to pay to the plaintiffs the costs of the action relating to the claim. But I directed that so far as attendance in court was concerned, only the costs of one day of hearing should be allowed and that no costs should be allowed for preparing and perusing or any work done in respect of all bundles of documents prepared by the plaintiffs or defendants including Agreed Bundles, I, II, III, IV and AMM 1-415 and the Bundle of Affidavits. In addition, I directed that no costs should be allowed for any of the authorities contained in the plaintiffs` bundle of authorities or referred to in the submission made on behalf of the plaintiffs. On the counterclaim I made no order as to costs.

I now give my reasons. On the evidence there was no dispute that the amount of $126,693.14 was due to the plaintiffs. The total amount of the sub-contract was $1,708,996.54 of which $1,582,303.40 was paid and the balance due was $126,693.14. The amount had been certified by the mechanical and electrical engineering company in charge of the works, Dactt Engineers Pte Ltd (`Dactt Engineers`) and was admitted by Chwee Meng Chong, the managing director of the defendant company. The plaintiffs therefore were entitled to judgment for this amount.

I now turn to the counterclaim of the defendants. There were two major heads of claim made by them, namely: (i) claim for loss or damage arising from the failure of the plaintiffs to make good and rectify the defects outstanding as at the date of expiry of the defect liability period under the sub-contract, and (ii) claim for loss or damage arising from the delay by the plaintiffs in completing their works which had contributed to the delay in completing the main contract work. With regard to (i), there was ample evidence, some of which was documented, that as at the date of expiry of the defect liability period there were outstanding numerous defects which the plaintiffs had failed or refused to make good and rectify. The evidence adduced by the defendants showed that the works carried out by the plaintiffs had been quite unsatisfactory and that there had been a series of complaints, almost continuously, from Dactt Engineers, and there had been further complaints from the architect and the owners; the plaintiffs did not appear to me to have rectified satisfactorily the defects at various material times. As at 28 May 1986, there was a long list of outstanding defects which had not been rectified: see pp 546-549 of AB II (Vol 2). On the evidence, I found that the defendants had established liability on the part of the plaintiffs.

As for the second major head of claim, there was also evidence which showed that the plaintiffs had been guilty of delay. For example, there were delays on their part in having various pieces of equipment and materials delivered to the site on time, and the evidence of...