Liu Shu Ming v Koh Chew Chee

JurisdictionSingapore
JudgeBelinda Ang Saw Ean JCA,Woo Bih Li JAD,Hoo Sheau Peng J
Judgment Date28 April 2023
Docket NumberCivil Appeal No 23 of 2022 and Summons No 28 of 2022
CourtHigh Court Appellate Division (Singapore)
Liu Shu Ming and another
and
Koh Chew Chee and another matter

[2023] SGHC(A) 15

Belinda Ang Saw Ean JCA, Woo Bih Li JAD and Hoo Sheau Peng J

Civil Appeal No 23 of 2022 and Summons No 28 of 2022

Appellate Division of the High Court

Contract — Breach — Appellants failing to transfer legal title of property to respondent — Whether there was breach of contract by failure to transfer title to property within reasonable time

Contract — Remedies — Damages — Whether impossibility of proving expectation damages was requirement that had to be met in claim for reliance damages

Contract — Termination — Respondent terminating contracts after appellants breached contracts — Whether contracts had been validly terminated

Damages — Assessment — Failure to prove expectation loss — Whether permissible for court to award reliance damages in situation where claimant failed to prove expectation loss

Held, dismissing SUM 28 but allowing the appeal in AD/CA 23/2022:

(1) The Appellants' application for leave to adduce further evidence for the appeal was dismissed. First, it was clear that the further evidence which the Appellants were trying to adduce could have been obtained in time for the trial. Second, and more importantly, the further evidence which the Appellants sought to adduce was irrelevant to the determination of the present dispute. This was because the Appellants themselves had conceded, in their pleaded defence, that they were obliged to transfer title to Ms Koh once she had informed them of her choice of nominee. The question was whether Ms Koh had informed the Appellants of her choice of nominee such that the Appellants were obliged to effect the transfer of title: at [35], [36] and [40].

(2) Apart from the Appellants' formal application in SUM 28 to adduce further evidence, the Appellants had also sought to introduce some more new evidence by letter, some eight days before the hearing of the appeal. This attempt to adduce new evidence was also rejected. The credibility of the new evidence and its significance was unclear. In any case, the new evidence was immaterial to the determination of the issues in the suit. In particular, the new evidence did not shed light on whether the Appellants had all the necessary details from Ms Koh in order to effect the transfer of title to the Units: at [53] to [56].

(3) The Appellants were obliged to transfer title of the Units within a reasonable time. This meant that the transfer had to be done, at the very latest, by 24 August 2019 which was 12 months after Ms Koh had informed Mr Liu of the nominee to whom the title of the Units was to be transferred. There was no reason as to why the Appellants could not effect the transfer of title. It was not the case that Ms Koh had failed to provide the required documents, specifically a board resolution from her nominee and a business information sheet, in order to effect the transfer. The Appellants did not plead that Ms Koh's failure to provide the required documents was a reason for the non-transfer of title. There was also no evidence to support such an argument. Finally, there was no merit to the Appellants' argument that there was a shortfall in payment by Ms Koh of the purchase price for the Victoria Units, and that this shortfall had to be paid before they were obliged to transfer the title. The Appellants could not show that there was a shortfall in the payment of the purchase price of the Victoria Units and could not use this as a reason for not transferring the Units or as a counterclaim or set-off against Ms Koh's claim for damages: at [70] to [79] and [84].

(4) The Appellants were thus in breach of the Contracts. By the time Ms Koh had allegedly terminated the Contracts on 27 December 2019, the Appellants still had not transferred title. This was more than a year after 24 August 2019, which was the latest date by which the Appellants were obliged to effect transfer of the title: at [80] to [85].

(5) While the Appellants were in breach of the Contracts, Ms Koh had failed to plead that there was a breach of a condition which entitled her to terminate the Contracts. Leaving aside the pleading issue, Ms Koh did not validly terminate the Contracts. Here, the Judge had erred in finding that the Contracts were validly terminated on 27 December 2019 by way of a letter sent by Ms Koh's lawyers at the time. Ms Koh was therefore not entitled to claim either expectation or reliance damages on the basis of termination. However, Ms Koh was still entitled to seek performance of the Contracts which the Appellants alleged that they were willing and able to perform. Accordingly, and in light of the Appellants' continuing breach of the Contracts, the Appellants were ordered to transfer, free of encumbrance, title of the Units, and to give possession thereof, to the nominee of Ms Koh: at [86] to [113].

(6) The Judge had erred in awarding Ms Koh reliance damages. It was not open to the Judge to award reliance damages to Ms Koh after she had failed to prove expectation damages. The starting point was the underlying principle governing the award of contract damages. That principle stipulated that the innocent party was to be placed in the position that he would be in had the contract been performed and he was therefore entitled to expectation damages. Reliance damages were not awarded on a different basis from expectation damages. It was not open to a plaintiff to claim reliance damages simply because he chose not to adduce evidence of expectation damages. Such a plaintiff did not have an unfettered option to switch to a claim for reliance damages and the court did not have a wide discretion to grant such damages in every case even when such damages are not pleaded. As to when reliance damages could be claimed, the impossibility of proving expectation damages was not a prerequisite which a plaintiff had to always meet before they were entitled to such a claim. Reliance damages were usually available if it was impossible or at least extremely difficult for a plaintiff to prove his expectation damages in the usual way or if his contract was not for profit. Here, Ms Koh's case was not one where it was impossible, or at least extremely difficult, to prove expectation damages. Ms Koh had failed to prove expectation damages and was therefore not entitled to an award of reliance damages: at [123] to [127], [132], [134], [217] and [218].

[Observation: There was a process by which parties could, if they so chose, adduce further evidence on appeal. A formal application to do so had to be made. It did not suffice to drip-feed materials to the court by way of letters or e-mails to the Registrar/Registry of the Supreme Court. Even when a formal application was made, it might not be successful: at [58].]

Case(s) referred to

123 259 932 Pty Ltd v Cessnock City Council [2023] NSWCA 21 (refd)

AC Daniels & Co Ltd v Jungwoo Logic [2000] Lexis Citation 1924 (refd)

ACB v Thomson Medical Pte Ltd [2017] 1 SLR 918 (refd)

Actavis UK Ltd v Eli Lilly and Co [2017] UKSC 48 (refd)

Aero-Gate Pte Ltd v Engen Marine Engineering Pte Ltd [2013] 4 SLR 409 (refd)

Alvin Nicholas Nathan v Raffles Assets (Singapore) Pte Ltd [2016] 2 SLR 1056 (refd)

Anan Group (Singapore) Pte Ltd v VTB Bank (Public Joint Stock Co) [2019] 2 SLR 341 (refd)

Anglia Television Ltd v Reed [1972] 1 QB 60 (refd)

Aquarius Corp v Haribo Asia Pacific Pte Ltd [2022] SGHC(A) 39 (refd)

Astrata (Singapore) Pte Ltd v Portcullis Escrow Pte Ltd [2011] 3 SLR 386 (refd)

Behzadi v Shaftesbury Hotels Ltd [1992] Ch 1 (refd)

BNX v BOE [2018] 2 SLR 215 (refd)

CCC Films (London) Ltd v Impact Quadrant Films Ltd [1985] QB 16 (refd)

Chan Ah Beng v Liang and Sons Holdings (S) Pte Ltd [2012] 3 SLR 1088 (refd)

Commonwealth of Australia v Amann Aviation Pty (1991) 174 CLR 64; (1991) 104 ALR 1 (refd)

Cullinane v British “Rema” Manufacturing Co Ld [1954] 1 QB 292 (refd)

Dextra Partners Pte Ltd v Lavrentiadis, Lavrentios [2021] SGCA 24 (refd)

Filobake Ltd v Rondo Ltd [2005] EWCA Civ 563 (refd)

Foo Khoon Chin v Gas Pantai Works Sdn Bhd [2011] 5 MLJ 438 (refd)

Heyman v Darwins Ltd [1942] AC 356 (refd)

iVenture Card Ltd v Big Bus Singapore City Sightseeing Pte Ltd [2022] 1 SLR 302 (refd)

Kashmire Merkaney v NCL Housing Pte Ltd [2022] SGHC(A) 23 (refd)

Koh Chew Chee v Liu Shu Ming [2022] SGHC 25 (refd)

L Albert & Son v Armstrong Rubber Co (1949) 178 F (2d) 182 (refd)

Ladd v Marshall [1954] 1 WLR 1489 (folld)

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Ma Binxiang v Hainan Hui Bang Construction Investment Group Ltd [2022] SGHC(A) 37 (refd)

McRae v Commonwealth Disposals Commission (1951) 84 CLR 377 (refd)

Max Master Holdings Ltd v Taufik Surya Dharma [2016] SGHC 147 (refd)

Meetfresh Franchising Pty Ltd v Ivanman Pty Ltd [2020] NSWCA 234 (refd)

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Ng Chee Chuan v Ng Ai Tee [2009] 2 SLR(R) 918; [2009] 2 SLR 918 (refd)

One Step (Support) Ltd v Morris-Garner [2019] AC 649 (refd)

Out of the Box Pte Ltd v Wanin Industries Pte Ltd [2012] 3 SLR 428 (refd)

Parabola Investments Ltd v Browallia Cal Ltd [2011] QB 477 (refd)

Phosagro Asia Pte Ltd v Piattchanine, Iouri [2016] 5 SLR 1052 (refd)

PT Bayan Resources TBK v BCBC Singapore Pte Ltd [2019] 1 SLR 30 (refd)

PT Panosonic Gobel Indonesia v Stratech Systems Ltd [2010] 3 SLR 1017 (refd)

PT Panasonic Gobel Indonesia v Stratech Systems Ltd [2009] 1 SLR(R) 470; [2009] 1 SLR 470 (refd)

RDC Concrete Pte Ltd v Sato Kogyo (S) Pte Ltd [2007] 4 SLR(R) 413; [2007] 4 SLR 413 (folld)

Robinson v Harman (1848) 1 Exch 850 (folld)

San International Pte Ltd v Keppel Engineering Pte Ltd [1998] 3 SLR(R) 447; [1998] 3 SLR 871 (refd)

Simran Bedi v Montgomery, Mark A [2022] SGHC 67 (refd)

Smile Inc Dental Surgeons...

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