OCWS Logistics Pte Ltd v Soon Meng Construction Pte Ltd

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judge: Chao Hick Tin J
• Judgment Date: 21 November 1998
• Neutral Citation: [1998] SGHC 382
• Citation: [1998] SGHC 382
• Subject Matter: Legal set-off,Civil Procedure,Whether there can be set-off if sum is unliquidated and from different contract,Defences,Closely connected with subject matter,Pleadings,Equity,Liquidated sum to be ascertained at time of pleading,Same transaction,Equitable set-off,Unliquidated damages
• Defendant Counsel: Stephen Soh (Bernard Rada & Lee)
• Date: 21 November 1998
• Plaintiff Counsel: Tan Joo Seng (Chan Tan & Partners)
• Docket Number: DC Suit No 50715 of 1998
• Published date: 19 September 2003

Judgment:

CHAO HICK TIN J

Pursuant to an agreement in July/August 1994 (`the 1994 contract`) the plaintiffs engaged the defendants as sub-contractors for the general repainting of certain buildings of the Ministry of Defence at Changi for a lump sum of $300,000. Under that contract the defendants were to obtain the supplies of materials from the plaintiffs and the latter were entitled to deduct the cost thereof from the contract sum. During the progress of the works, payments were made by the plaintiffs to the defendants. Upon completion of the contract, and on final computation, an amount of $144.458.65 was found to be owing from the defendants to the plaintiffs. This is not disputed by the defendants.

2.What the defendants claimed is that they have a defence of set-off which exceeds the $144,458.65 owed by them to the plaintiffs. This set-off arose under an agreement between the parties signed on 9 January 1995 (`1995 contract`) whereby the parties agreed to `work together and/or share resources for the purposes of carrying out sub-contracting works involving repainting and/or upgrading works.` Pursuant to the 1995 contract, works were undertaken and completed at three locations, namely, HDB Tampines site, HDB Bukit Panjang site and HDB Choa Chu Kang site. The defendants claimed that there is a sum of $397,969.95 due from the plaintiffs in respect of the works done in those three sites and sought to set it off against the sum of $144,458.65 due from them to the plaintiffs. In the alternative, the defendants counterclaimed for that sum.

3.However, the plaintiffs contended that under that 1995 contract not only is there nothing owed by them to the defendants, it is the defendants who are liable to pay to the plaintiffs to the tune of $925,772.25.

4.The plaintiffs applied for summary judgment in respect of their claim for $144,458.65 under the 1994 contract. The deputy registrar of the subordinate courts granted the application with no stay of execution pending the trial of the defendants` counterclaim. The defendants appealed. I dismissed the appeal and now give my reasons.

5.The defendants have not filed an affidavit to substantitate their defence of set-off. They relied wholly upon the defence filed. Of course O 14 r 4(1) provides that a defendant may show cause against an O 14 application by `affidavit or otherwise`. The burden is on the defendant. A bald assertion in a defence filed may not be sufficient. It would have to depend on the nature of the defence. As stated in para 14/4/4 of the Supreme Court Practice :

The use of the term `or otherwise` is not intended to open wide

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