MES Engineering Pte Ltd v Sigma Cable Company (Pte) Ltd
| Jurisdiction | Singapore |
| Judge | James Leong Kiu Yiu |
| Judgment Date | 08 January 2007 |
| Neutral Citation | [2007] SGDC 4 |
| Published date | 29 January 2007 |
| Court | District Court (Singapore) |
| Plaintiff Counsel | Leslie Yeo (Leslie Yeo & Associates) |
| Defendant Counsel | Gan Kam Yuin (Bih Li & Lee) |
| 08 January 2007 |
|
District Judge James Leong:
Introduction
1 The Plaintiff was appointed as the subcontractor for the Additional and Alteration works at Ping Yi Secondary School (the project). They engaged the Defendant to supply cables for this project. The Plaintiff and the Defendant had previously dealt with one another. Unfortunately, this engagement relating to the project went sour.
2. In these proceedings, the Plaintiff claimed against the Defendant for damages for breach of the agreement to supply cables for the project. The agreement was evidenced by the Defendant’s quotations and confirmed by the Plaintiff’s purchase order No PY/108/03 dated 2 November 2003.
3. Initial orders pursuant to the agreement were delivered without problem until around end 2004 when the Defendant allegedly refused to deliver the remaining cables as the price of copper had risen by more than 50%. As a result of the Defendant’s alleged breach of the agreement in failing and / or refusing to deliver the cables, the Plaintiff’s claimed in their Statement of Claim from the Defendant $130 630 being the difference in price in the agreement and the price charged by their alternative supplier, $30 000 paid to an independent contractor to accelerate works, and $20 152.64 paid to their own workers for overtime as a result of the Defendant’s breach.
4. The Defendant denied that they were in breach of the agreement and counterclaimed for $27 240.69 for cables previously supplied and delivered to the Plaintiff. Pursuant to an Order of Court dated 3 April 2006, judgment was awarded to the Defendant on their counterclaim with a stay of execution pending the outcome of the Plaintiff’s claim.
5. At the conclusion of the trial, having considered the evidence and written submissions tendered, I dismissed the Plaintiff’s claim on the basis that they had not discharged their burden of proving their pleaded case for breach of contract on a balance of probabilities. I further held that if I were wrong in my finding that the Plaintiff had not established repudiation on the part of the Defendant, I would have awarded the Plaintiff damages assessed at $80,528.95. The Plaintiff’s claim was accordingly dismissed with costs of the action to the Defendant to be agreed or taxed.
6. The broad issues that fell for consideration were whether the Defendant was in breach of the agreement and if so, what was the quantum of damages and whether the Plaintiff had mitigated their loss.
7. The three day trial was heard in two tranches on 22 June 2006 and 14 and 15 August 2006. The Plaintiff filed three Affidavits of Evidence-in-Chief by the following:
Mr Arulsamy Raj, Plaintiff’s Purchasing and Logistics Officer.
Mr Doo Sing Naik, Independent Electrical Sub Contractor.
Mr Seow Chai Hing, Plaintiff’s General Manager.
8. The Defendant filed one Affidavit of Evidence-in-Chief by Mr Chen Wen-Ching, their Public Sector and Trading and Marketing Manager.
9. Mr Seow Chai Hong (PW1) and Mr Doo Sing Naik (PW2) were called to give evidence on the Plaintiff’s behalf. Mr Arulsamy Raj apparently had to return to India and the Plaintiff elected not to call him as a witness. Consequently his Affidavit of Evidence-in-Chief pertaining to the transfer of cables from the Plaintiff’s other projects to the project as a result of the Defendant’s alleged breach was disregarded. Mr Chen Wen-Ching (DW1) was the Defendant’s sole witness at the trial.
10. Considering Mr Arulsamy Raj’s unavailability, the Court asked parties on the first day of trial if they would prefer to bifurcate the trial and proceed first on the issue of liability with damages to be assessed only if liability was found. Counsel for the Defendant had no objections either way but Plaintiff Counsel indicated they preferred to proceed with both the trial on quantum and liability. Given Plaintiff’s position in this regard, the trial proceeded on both liability and quantum.
Material Documents and Correspondence
11. The Defendant’s Quotation Ref 03-381 of 3 October 2003 prepared by one Mr Chong Chin Boo (“Chong”), their then sales representative, is found at IAB2-3 of Volume 2 of the Agreed Bundle of Documents. The terms and conditions stated therein are as follows:
1. Delivery : Ex-Stock Subject to Prior Sales
2. Validity : Good till 16/10/2003
3. Payment : 60 days
4. Brand/Country of origin – Sigma Cable / Singapore
5. After usaged of cables, empty drums to be returned to Sigma.
6. GST (if any) shall be borne to buyer’s account.
12. The Plaintiff’s Purchase Order PY/108/03 dated 2 November 2003 signed by PW1 for a total sum of $284 637.60, is found at IAB4-5 of Volume 2 of the Agreed Bundle of Documents. Under the Remarks column at the foot of the Purchase Order, the following is printed:
“Quotation Date: 03/10/2003
Quotation Ref: 03-381
Payment Terms: 60 days”
13. Pursuant to the agreement, the Plaintiff would issue specific advice on the quantity and dates for the cables to be delivered. The initial orders and deliveries were made, and problems only arose around the end of 2004. The Defendant admits that various request placed in December 2004 were not fulfilled. As a consequence, the Plaintiff wrote to the Defendant vide letter dated 5 January 2005 as follows:
“Refer to our delivery instructions and purchase orders (see attached summary list), since November 2004.
We are very disappointed on your supply of the cables and these have been caused delayed to the above-mentioned projects.
Therefore, we serve this as the final instruction to deliver the outstanding items by 7th January 2005. If you still failed to supply the materials to the respective projects by the stipulated date stated. We will not hesitate to proceed with legal action against your company on the delayed or/and any additional cost affected due to your poor supply and delivery.”
14. On 7 January 2005, the Plaintiff’s solicitors followed up with a further letter as follows:
“We act for MES Engineering Pte Ltd.
We are instructed by our clients that after having agreed on the price and quantity with you for the supply of cables for our clients’ project at Ping Yi Secondary School, you had requested our clients to issue a Purchase Order No. PY/108/03 dated 2 November 2003 (“the Purchase Order”) to confirm the order.
Pursuant to the Purchase Order, cables amounting to S$10,515.80 has been delivered by you, leaving a balance of S$274,121.80 under the Purchase Order still undelivered. By our clients’ subsequent delivery instruction dated 22nd December 2004, 23rd December 2004, 27th December 2004 and 4th January 2005, they had requested for the delivery of various quantities of cable under the Purchase Order but you have failed and/or refused to deliver them.
By a letter dated 5th January 2004, our clients have demanded for the delivery of the said items in the delivery instructions by 7 January 2005 and we are instructed that you have failed and/or refused to do so.
TAKE NOTICE that unless the items under the delivery instructions are delivered by 12 noon on 12 January 2005, our clients shall treat this contract as repudiated and shall accordingly order the balance goods under the Purchase Order from alternate suppliers. In such an event, our clients shall claim against you for all loss and damages suffered as a result of your breach.”
15. On 12 January 2005, the Defendant’s solicitors sent a holding reply which was followed by a further response of 13 January 2005 as follows:
We write further to our letter of 12 January 2005.
We note that your letter of 7 January 2005 refers to a Purchase Order No. PY/108/03 dated 2 November 2003 for the Ping Yi Secondary School project, as well as to your clients’ letter of 5 January 2004. However, your clients’ letter of 5 January 2005 had a summary list attached to it, an that summary list relates to three (3) projects, at Marine Crescent, Dover Road and Ping Yi Secondary School.
Our clients are in the process of sorting out the details of the various delivery orders and purchase orders. We should add that we are instructed that your clients owe our clients the sum of $27,240.69 as at 10 January 2005, of which a sum of $19,614.01 has been outstanding for more than 60 days.
We will take out clients’ full instructions and will write to you more substantively by (we target) the end of next week.
Kindly note that as we have not finished taking our clients’ instructions, we reserve our clients’ right to put forward their full case in due course. Also, all their rights against your clients are reserved and nothing herein is an admission of your clients’ position or claims.
16. In response to this, the Plaintiff’s solicitor’s wrote on 14 January 2005 as follows:
“We refer to your letter dated 13 January 2005.
As your clients have breached the agreement to deliver the balance goods under the Purchase Order No. PY/108/03 dated 2 November 2003, our clients shall be mitigating their losses by purchasing the balance undelivered goods from alternate suppliers.
As there has been a delay in the works as a result of your clients’ failure to deliver (and liquidated damages are chargeable by the owners), our clients are not agreeable to any further extension of time.
Kindly let us have of your alleged claim to enable our clients to verify. In the meantime, there is no admission to liability and all of our clients’ rights are reserved.”
17 On 25 January 2005, the Defendant’s solicitor’s responded as follows:
“1. We refer to your clients’ claim and our previous correspondence. Please note that our clients did not issue quotations for some of the orders which are listed in the...
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