Lim Bio Hiong Roger v City Developments Ltd

• Judge: MPH Rubin J
• Judgment Date: 15 April 1999
• Neutral Citation: [1999] SGHC 93
• Citation: [1999] SGHC 93
• Defendant Counsel: K Shanmugam SC, K Muralidharan Pillai, Christine M Chan and Prakash Pillai (Allen & Gledhill)
• Published date: 19 September 2003
• Plaintiff Counsel: Tan Cheng Han, Tan Cheng Yew and Blossom Hing (Tan Cheng Yew & Pnrs)
• Date: 15 April 1999
• Docket Number: Suit No 1969 of 1997
• Court: High Court (Singapore)
• Subject Matter: Whether representation or warranty made by defendants to plaintiff that house had 873 sq m of walls enclosed and fully roofed area,'Built in area',Words and Phrases,Conveyance,Meaning of expression 'built-in' area,Whether excluded terraces, patios, verandas and car porch which were neither enclosed by four walls nor sheltered by roof,Contract,Alleged reach of warranty as to size of built in area,Sale and purchase of land,Whether 'built in area' could be used interchangeably with 'built up area',Meaning,Land,Warranties,Breach,Whether area built or constructed within four enclosed walls with a roof over it

: Introduction

The central issue in this case revolves around the phrase `built-in area` appearing in a sale brochure distributed by the defendants in the course of their marketing and in the event, the sale of a detached house at 28 Fifth Avenue, Avenue Villas, Singapore (`the house`) to the plaintiff sometime in late 1994. The plaintiff contends that the phrase `built-in area` of altogether 873 sq m appearing especially at pp 14 and 15 of the said brochure must necessarily mean an area built or constructed within four enclosed walls with a roof over it and urges the court not to include in the computation, areas pertaining to terraces, patios, verandas and the car porch which are neither enclosed by four walls nor sheltered by a roof above them.

He complains that the brochure given to him by the defendants warrants or represents that the house which was agreed to be constructed for him would have a total built-in area of 873 sq m, by his definition. However, to his dismay he was given possession of a house with a built-in area of only 570.3 sq m. In the circumstances, he claims against the defendants damages in the region of between $490,000 and $1,000,000.

The defendants` response in this regard is that the phrase `built-in area` does not bear the meaning which the plaintiff proffers. According to them the phrase `built-in area` appearing in the parts referred to by the plaintiff should not be construed in isolation but must be read together with the phrase built-up area of 873 sq m appearing contemporaneously in the price list pertaining to the said house inserted in the back-inside flap of the brochure received by the plaintiff. They say that the two phrases `built-in area` and `built-up area` had been used by them loosely and interchangeably in the brochure. They contend that both phrases refer to one and the same thing and inasmuch as the plaintiff had been given possession of a house with a built-up area of 873 sq m or thereabouts as contracted for, the plaintiff`s claim is ill-conceived.

Background facts and evidence

Before dealing with the expert evidence and the disputed aspects of the case, it would be useful to set out the primary facts of the case, which are by and large undisputed.

Sometime in early October 1994, the plaintiff, a computer engineer by occupation with a degree in Physics and owner of a number of houses, called at the marketing offices of the defendants. He was then accompanied by his wife, a licensed property agent and a businessman friend. There, they viewed the miniature models of a residential development of altogether eight detached houses known as Avenue Villas to be built along Fifth and Sixth Avenue, Singapore and were given a number of sales brochures pertaining to the development. The brochures given contained in their back inside flap a price list and the layout sketches of the houses to be built.

As the arguments and contentions in this case centre on the sale brochure as well as the price list, it would be useful to highlight four relevant segments therefrom:

Page 3 of the brochure which states, amongst other things, that house No 28 is `Type A` property.

The measurements of the basement, first storey and second storey of the `Type A` houses are set out at pp 14 and 15 of the brochure as follows:

Basement built-in area 157 sq m

First storey built-in area 414 sq m

Second storey built-in area 302 sq m

Total built-in area 873 sq m

The price list inserted in the back inside flap of the brochure, amongst other things, reads:

A specific layout of House No 28 inserted in the back inside flap of the brochure, where the following appears along the layout:

Avenue Villas
Price List
		Built-Up Area
	A, A1	873 sq m (9397 sqft)
	B, B1			727 sq m (7825 sq ft)
28	A	1400.0	15,070	9,200,000
30	A1	1400.0	15,070	9,200,000
32	A	1400.0	15,070	9,200,000
34	A1	1401.4	15,085	9,200,000
59	B	1453.0	15,640	8,100,000
61	B1	1453.2	15,642	8,100,000
63	B1	1413.3	15,213	8,050,000
65	B	1582.6	17,035	8,400,000

Type Land Area House No Type Sq M Sq Ft Price ($)

Avenue Villas

Type A

House No 28

Plot Area 1400 sq m

Fifth Avenue

It could be seen from the foregoing that the words `built-in area` appear four times only at pp 14 and 15 of the brochure in relation to `Type A` properties. Consequently, one would have to cross-refer to either the price list or p 4 of the brochure to connect that house No 28 which is the plaintiff`s and house No 32 which was bought by someone else, were the only two Type A properties, available for sale. It is also significant that neither the price list nor the specific layout referred to in the fourth segment relating to house No 28 mentions the term `built-in.`

The house was in the event purchased by the plaintiff for $8,648,000 after he was allowed a discount of 5% on the list price of $9,200,000. The option to purchase the house given on or about 11 November 1994 (AB-162) describes the house in the following terms:

Detached house marked in the sales brochure as House No 28 to be erected on freehold land, comprising government resurvey lots 24-121, 24-122 and 24-116 mukim 4 at Fifth and Sixth Avenue, Singapore.

The sale and purchase agreement between the parties was signed on 6 December 1994. In the agreement itself, there is no mention of either built-in or built-up area.

The plaintiff`s alleged grievance as appears from his affidavit of evidence-in-chief is that when he purchased the house, the following aspects weighed substantially in his mind:

(a) that the land area on which the house was to be built is 1,400 sq m;

(b) the design as contained in the brochure is attractive;

(c) the location of the house; and that

(d) the built-in area of the house is 873 sq m.

He also averred in para 9 of his affidavit of evidence-in-chief that when he took possession of the house on 25 January 1997, he was surprised to find the interior of the house not as spacious as he had expected it to be. Consequently, he engaged Messrs Wang Surveyors to conduct a survey of the built-in area of the house and was informed that the built-in area of the house was only about 571.56 sq m. Noting that the built-in area given in the brochure was inaccurate and in the circumstances the price he had paid for the house, was excessive, the plaintiff instituted this action against the defendants for damages.

The plaintiff`s pleaded claim, succinctly recapitulated by his counsel in his closing submission reads:

(1) The term `built-in area: 873 sq m` (`the term`) in the sales brochure refers to an area enclosed within four walls and covered with a roof.

(2) In the circumstances, the defendants are liable to the plaintiff for damages because:

(a) the defendants are in breach of contract in failing to provide a house with a `built-in` area of 873 sq m;

(b) the defendants had misrepresented to the plaintiff the area, which is enclosed within four walls and under a roof;

(c) the defendants are in breach of warranty in failing to construct and build a house with an enclosed (within four walls and under a roof) area that is 873 sq m.

Insofar as the defence filed by the defendants is concerned, para 5 thereof appears significant. The material parts thereof read as follows:

The defendants ... deny ... and say that the express terms of the contract for the sale and purchase of the said property are inconsistent with the alleged representation and/or warranty. In particular the defendants rely on cl 8(1) of the said contract which stipulates that `The Vendor shall forthwith erect in a good and workmanlike manner the building in accordance with the specifications described in the Third Schedule and in accordance with the plans approved by the Building Authority or other authorities which specifications and plans have been accepted and approved by the Purchaser as the Purchaser hereby acknowledges.

... The plaintiff is further estopped by reason of the said clause from alleging that the building was not built in accordance with the specifications and plans. Further or in the alternative, the defendants say that:

(a) while the defendants did give the following information in their brochure as follows:

(i) `Basement Built-in Area: 157 sq m`

(ii) `First Storey Built-in Area: 414 sq m`

(iii) `Second Storey Built-in Area: 302 sq m`

(iv) `Total Built-in Area: 873 sq m`

the said information was given by side with plan drawings of the basement, first storey and the second storey and the plaintiff could not therefore have been led to believe that the area referred to was a reference to the area enclosed within the four walls of the building ...

(b) the phrase `built-in area` means the same as `built-up area` and both these phrases mean the area of a building built for exclusive usage and enjoyment of the owner;

(c) the phrase `built-in area` and `built-up area` are used interchangeably by registered surveyors, architects, developers of land and generally in the real estate industry to mean the same thing;

...

(e) `built-up area` does not mean only an area enclosed within four walls;

(f) alternatively, the phrase `built-in area` means an area forming an integral part of the building and/or forming part and parcel of the building; and

(g) alternatively, there was no one clear and accepted definition of the phrase `built-in area`.

...

(b) from the price list which was issued as part of and/or together with the brochure, the plaintiff would have seen the same area of 873 sq m described as the `built-up` area and the definition of `built-up` area is not an area enclosed within four walls.

I should perhaps mention one incidental detail before I deal with the evidence of the numerous experts called by the...