Nambu PVD Pte Ltd v UBTS Pte Ltd and another appeal

• Jurisdiction: Singapore
• Judge: Andrew Phang Boon Leong JCA
• Judgment Date: 20 October 2021
• Neutral Citation: [2021] SGCA 98
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeals Nos 2 and 16 of 2021
• Published date: 23 October 2021
• Year: 2021
• Hearing Date: 06 September 2021
• Plaintiff Counsel: S Magintharan and Liew Boon Kwee James (Essex LLC)
• Defendant Counsel: Yee Mun Howe Gerald and Jonathan Lim Shi Cao (Premier Law LLC)
• Subject Matter: Contract,Contractual terms,Exclusion clauses
• Citation: [2021] SGCA 98

Andrew Phang Boon Leong JCA (delivering the judgment of the court): Introduction

Nambu PVD Pte Ltd (“Nambu”) and UBTS Pte Ltd (“UBTS”) entered into a contract (“the Contract”) for UBTS to transport a Prefabricated Vertical Drain machine (“the Machine”). The vehicle from UBTS which carried the Machine caught fire during the course of the carriage, and the Machine was damaged.

Nambu then sued UBTS for fire damage to the Machine. The High Court judge (“the Judge”) found, inter alia, that the fire was due to negligence on UBTS’s part (see Nambu PVD Pte Ltd v UBTS Pte Ltd [2021] SGHC 20 (“the GD”)). He held further that UBTS could not rely on its own standard terms and conditions (“UBTS T&Cs”) or the Singapore Logistics Association’s standard terms and conditions (“SLA T&Cs”) to limit its liability, since neither set of terms was, in his view, incorporated into the Contract. Further, while Nambu had made claims totalling $1,226,807.20 on the basis of replacing the Machine and alternatively, $1,279,537.20 on the basis of repairing it, the Judge only awarded Nambu $248,240.00, together with interest and costs of $160,000.00 (excluding disbursements).

CA/CA 2/2021 (“CA 2”) is Nambu’s appeal in respect of the quantum of damages and costs awarded to it. CA 16/2021 (“CA 16”) is UBTS’s appeal in respect of the Judge’s finding that the SLA T&Cs were not incorporated into the Contract. There was no appeal, though, against the finding that the UBTS T&Cs were not incorporated into the Contract.

We heard both appeals on 6 September 2021. Having considered the parties’ written as well as oral arguments, we dismiss both appeals. In summary, and beginning with Nambu’s appeal in CA 2, Nambu’s arguments constituted essentially a rehash of what had been argued before the Judge in the court below. They turned essentially on factual issues which the Judge dealt with in meticulous detail. We thus see nothing which warrants the intervention of this court. As we elaborate upon below, we agree wholly with the Judge’s reasoning and findings in relation to quantum, and therefore dismiss Nambu’s appeal.

Turning to UBTS’s appeal in CA 16, UBTS makes the argument that the SLA T&Cs had been incorporated in the subject contract by virtue of a previous course of dealing, based on the invoices and delivery orders issued by UBTS for past contracts. The central, albeit simple, point is that a course of dealing generally assumes that the terms concerned have contractual effect. In this regard, the Judge’s finding that the invoices and delivery orders were not intended to have contractual effect for the past contracts for which they were issued, suffices, in our view, to dispose of UBTS’s appeal in CA 16. That being said, UBTS’s arguments present an appropriate occasion to provide a few clarifications with regard to the law on the incorporation of terms.

We now turn to consider both appeals in more detail.

Nambu’s appeal

We begin with Nambu’s appeal in CA 2. To recap, in respect of Nambu’s claims totalling $1,226,807.20 on the basis of replacement costs, and alternatively, $1,279,537.20 on the basis of repair costs, the Judge only awarded Nambu $248,240.00. The Judge decided that the Machine could have been repaired for less than its replacement cost, and that this ought to have been done within six months of the accident, ie, by March 2017. Accordingly, the Judge allowed Nambu’s claims for loss of use, and for storage and relocation charges, for only that six-month period (between September 2016 and March 2017). The Judge also reduced the amount of repair costs claimed, relying on the opinion of UBTS’s expert witness, Mr Melvin Lum (“Mr Lum”). The Judge further declined to award Nambu loss of profits from a contract which Nambu had given up in March 2017 because the Machine was not operational.

On appeal, Nambu raises a whole host of arguments against the Judge’s findings of fact in relation to UBTS’s liability in conversion and detinue, as well as in relation to the quantum of damages and costs awarded. Over the course of the oral hearing, we noted that all the arguments raised by UBTS on appeal had already been considered by the Judge, and this was (correctly, in our view) accepted by counsel for UBTS, Mr S Magintharan (“Mr Magintharan”). This court observed in Tat Seng Machine Movers Pte Ltd v Orix Leasing Singapore Ltd [2009] 4 SLR(R) 1101 at [41] that appellate intervention in relation to a trial judge’s findings of fact is generally only warranted when the trial judge’s assessment is plainly wrong or manifestly against the weight of the evidence. In this regard, we do not agree with Nambu that the Judge’s assessment was either plainly wrong or manifestly against the weight of the evidence. The Judge considered Nambu’s arguments in detail and closely examined the evidence before arriving at his decision.

That the high threshold before appellate intervention is warranted had not been satisfied here is, in our view, best exemplified by examining what, in our view, were Nambu’s two strongest arguments. These arguments were raised by Mr Magintharan on appeal and were: (a) first, that the Judge had erred in accepting the evidence of UBTS’s expert, Mr Lum, in making deductions from the repairs cost, and (b) second, that the Judge had erred in finding that Nambu could have retrieved the Machine from the custody of UBTS with effect from 3 January 2017. Let us elaborate.

Whether the Judge should have relied on Mr Lum’s evidence to make deductions from the repair costs

By way of background, the manufacturer of the Machine, FM Electro-Hydraulic (“FM”), provided a quotation for the repair of the Machine at $197,460 (“FM Quotation”). In assessing repair costs, the Judge used the FM Quotation as a starting point, before removing several of the items listed on the FM Quotation. The Judge accepted Mr Lum’s expert opinion that such items were not justified, as certain parts of the Machine were not so damaged as to warrant repair (see the GD at [101]).

On appeal, Mr Magintharan argued that the Judge was wrong to accept Mr Lum’s expert opinion, on the basis that Mr Lum did not cite any evidence to support his opinion. We queried Mr Magintharan as to whether any corroborative evidence was necessary to begin with. Mr Lum had physically inspected the Machine. To that extent, Mr Lum’s expertise would, in and of itself, have been a sufficient basis on which the Judge was entitled to accept his assessment of the Machine.

In light of our queries, Mr Magintharan argued that Mr Lum was not sufficiently qualified to make his own assessment of the Machine. In Mr Magintharan’s words, Mr Lum was only an “accident reconstructionist” with a degree in “mechatronics”. We note also that, before the Judge, Mr Magintharan relied on a brochure containing the syllabus of the mechatronics course from Nanyang Polytechnic, Mr Lum’s alma mater, to argue that the mechatronics degree would not have trained Mr Lum sufficiently to properly value equipment. Mr Magintharan also emphasised the point that Mr Lum had no diploma in valuation, nor was Mr Lum a member of any accredited professional body dealing with valuation. Further, Mr Lum’s specialty appeared to be not valuation, but rather accident reconstruction, which was a quite different domain.

In response to Mr Magintharan’s arguments, counsel for UBTS, Mr Jonathan Lim (“Mr Lim”), pointed out that expertise may be acquired either through study or through experience, relying on the High Court decision of Tan Mui Teck v Public Prosecutor [2003] 3 SLR(R) 139 at [11]. In this regard, while Mr Lum’s academic credentials may not have been ideal, he had gained the necessary expertise in assessing vehicular damage through his experience working with assessors, as he had stated during cross-examination.

In our view, Mr Magintharan’s misgivings about Mr Lum’s qualifications are, while not entirely baseless, somewhat overstated. While accident reconstruction appears to be Mr Lum’s bread-and-butter work, his curriculum vitae does indicate that he has in fact undertaken work relating to assessment of damage to vehicles. Further, Mr Lum had had over twenty years’ experience in the field. Given his long working experience, his explanation that he had worked “hand-in-hand” with assessors and had picked up the relevant experience in assessment is a reasonable one. On that basis, the Judge was, in our view, entitled not to take issue with Mr Lum’s qualifications.

Further, the assessment of expert evidence does not rest on the expert’s qualifications alone. It is also important to look at the reasons offered by the expert in giving his or her opinion. In this case, Mr Lum did explain why he took the view that some parts of the Machine were not completely destroyed and could be reused. In fairness to Nambu, Mr Lum’s opinion may be contrasted with that of Nambu’s expert, Mr Robert Khan (“Mr Khan”), in that Mr Khan opined that the Machine could not be repaired. Mr Lum’s opinion also differed from the FM Quotation, in that Mr Lum found several items listed in the FM Quotation to be unjustified. However, Mr Khan’s opinion (that the Machine was damaged beyond repair) was directly contradicted by the FM Quotation (and other quotations from another manufacturer, Dream Heavy, stating that the Machine could be repaired in Singapore). To that extent, we find that the Judge was entitled to prefer Mr Lum’s opinion over Mr Khan’s. In so far as the FM Quotation was concerned, we note that no one from FM was called to give evidence. Coupling this point with our discussion in the preceding paragraph on how Mr Lum’s qualifications cannot be said to be unacceptable, we see no reason to disturb the Judge’s findings in this regard.

For completeness, we note that Mr Magintharan also sought to undermine Mr Lum’s credibility as an expert in relation to two further and related questions, which were (a) whether the...