District Judge Lim Mei Yee Elaine:
Introduction
The plaintiff brought the present claim on six unpaid invoices totalling S$53,902.59 in respect of equipment it had supplied to the defendant (the “Invoices”). The defendant counterclaimed for the sum of S$1,169,244 on the ground that the customised food processing automatic system supplied by the plaintiff to the defendant did not conform to the agreed specifications and was defective and non-functional.
After considering the evidence and the parties’ submissions, I allow the plaintiff’s claim in part in the sum of S$2,726.36 and the defendant’s counterclaim in part in the sum of S$1,156,147.20. These are the reasons for my decision.
Undisputed facts
The parties are local companies. The defendant is in the business of manufacturing and selling popiah and spring roll sheets, filings and sauces.
Between 10 July 2018 and 21 January 2019, the plaintiff issued the Invoices to the defendant for the supply of various equipment:
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| S/N | Date | Invoice no. | Description of goods in invoice | Invoice amount (S$) |
| 1. | 10/07/2018 | INV18176 | 1 mini cylinder capacity 10L 1 pure nitrogen for food grade 1 Gentec proweld nitrogen regulator (collectively, the “Nitrogen Equipment”) | 351.23 |
| 2. | 12/07/2018 | INV18178 | 1 trishaw trolley for 7-11 showroom (the “7-11 Trolley”) 2 sets of trolley for NTUC showroom (the “NTUC Trolley”) 3 sets of acrylic company logos 2 bicycle wheels with logo 1 set nyoga cloth and sewing table top 1 set lighting system 2 3m power sockets (collectively, the “Showroom Equipment”) | 9,681.36 |
| 3. | 03/09/2018 | INV18214 | 1 Toyota electric forklift 1.8ton (the “Forklift”) | 2,140.00 |
| 4. | 14/09/2018 | INV18226 | 3 sets of preparation table for cooking equipment (the “Preparation Tables”) 1 SS partition plate for kitchen wall (the “Partition Plate”) (collectively, the “Kitchen Equipment”) | 14,445.00 |
| 5. | 11/11/2018 | INV18277 | 1 mixing machine for dry flour 1 vacuum and surface machine for dough (collectively, the “Flour Machines”) | 24,075.00 |
| 6. | 21/01/2019 | INV19009 | 1 compress air pipeline | 3,210.00 |
Despite the plaintiff’s numerous demands for payment, the defendant has not paid any of the Invoices. The defendant’s case, in gist, is that there was no agreement between the parties for the supply of the equipment mentioned in INV18176, INV18214 and INV19009, and that the equipment delivered pursuant to the rest of the Invoices did not conform to the agreed specifications.
In or around June or July 2018, the parties entered into an agreement under which the plaintiff would develop and customise for the defendant a food processing automatic system for the processing of turnips (the “Food Processor”) for the price of S$976,054.00 (the “Turnip System Agreement”). The following documents form part of the Turnip System Agreement: the proposal for the project titled “Development and customizing for Food Processing Automatic System for Turnip and Sauce”, which the plaintiff’s director and shareholder, Mr Loo Yeow Teck (“Mr Loo”), handed to the defendant’s director, Ms Li Li Hong (“Ms Li”) in or around June or July 2018 (the “Proposal”); the Equipment List for Blanching and Cooking (the “Equipment List”); the defendant’s quotation to the plaintiff for the Food Processor dated 21 July 2018 (the “Quotation”); and the document titled “Clients’ Requirement”, which set out the agreed specifications for the retort system (the “Retort Specifications”).
The parties agreed that payment for the Food Processor would be made in three instalments of 40%, 40% and 20% of the price. The first instalment was to be paid upon the defendant entering into the Turnip System Agreement. The second instalment was to be paid when all the components of the Food Processor were delivered to the defendant. The final instalment was to be paid after installation and commissioning of the Food Processor had been completed.
While the defendant has made full payment for the Food Processor, it claims that the Food Processor was defective and non-functional.
Issues to be determined
The parties have helpfully agreed that the following are the issues to be determined: In relation to the plaintiff’s claim Issue 1: whether there was an agreement between the parties for the plaintiff to supply and for the defendant to purchase the Nitrogen Equipment from the plaintiff; Issue 2: whether the plaintiff manufactured and supplied the Showroom Equipment in accordance with the defendant’s specifications as agreed to by the plaintiff; Issue 3: whether there was an agreement between the parties for the defendant to rent the Forklift, and if so, for what purpose; Issue 4: whether the Kitchen Equipment installed by the plaintiff was in accordance with the defendant’s specifications as agreed to by the plaintiff; Issue 5: whether the Flour Machines supplied by the plaintiff were in accordance with the parties’ agreement; and Issue 6: whether there was an agreement between the parties for the plaintiff to install the compressed air pipeline for the sum of S$3,200.00. In relation to the defendant’s counterclaim Issue 7: whether the Food Processor supplied by the plaintiff conformed to the specifications agreed by both parties or was non-functional and defective; Issue 8: whether the plaintiff provided adequate site support to the defendant such that the defendant’s employees would be able to operate the Food Processor; Issue 9: whether the Food Processor was of satisfactory quality. Issue 10: whether the Food Processor was reasonably fit for the purposes stated in the Proposal, in particular the Project Objectives and Project Impact; Issue 11: whether the defendant is entitled to a refund of S$976,054.00 paid for the Food Processor and damages of S$193,190.00.
For Issue 7, the agreed sub-issues to be determined are as follows: whether the peeling machine is able to peel the raw turnips completely, and whether it has capacity to process up to 300 kg of turnips as stated at page 6 of the Quotation; whether the specifications agreed by the parties placed any restrictions on the size of the turnips that could be processed; whether the Food Processor is fully automated; whether turnips would become stuck, or spill out, in the course of being processed; whether the production output has increased by 500%, as set out at page 3 of the Proposal; whether the quality of the turnips processed by the Food Processor has improved, as set out at page 3 of the Proposal; whether the retort system conforms to pages 1 and 2 of the Retort Specifications; and whether there was any handover list delivered to and signed by the defendant.
In addition to the above list of agreed issues, the following issue arises from the defendant’s written closing submissions. That is, whether the plaintiff’s claim on the Invoices fails due to deficiencies in its pleadings. This is a preliminary issue to be addressed before I consider Issues 1 to 6.
The parties’ witnesses
A total of six witnesses testified at the trial of this Suit.
The plaintiff put forward three witnesses, all of whom were factual witnesses: Mr Loo, who was known to the defendant’s representatives as Paul; Ms Qiao Jiaojiao (“Ms Qiao”), an employee of Henan Union International Co. Ltd (“Henan International”), the company that manufactured the Food Processor; and Mr Xu Xiangwei (“Mr Xu”), an employee of Shandong Dingtaisheng Food Industry Equipment Co., Ltd (“DTS”).
The defendant’s witnesses were: Ms Li; Mr Aung Kyaw Pho (“Mr Aung”) who, at all material times, was and remains an employee of the defendant, and Mr Tan Teck Peng (“Mr Tan”), an expert witness who provided his opinion on whether the Food Processor was fully automated as well as the quality of the Food Processor. Mr Tan is the director and owner of Wing Teck Industry Pte. Ltd. (“Wing Teck”), which specialises in various material-handling and engineering systems.
Burden of proof
Before analysing the merits of the claim and the counterclaim, it is apposite to address on whom the legal burden of proof lies for each issue.
For Issues 1, 3 and 6, the burden clearly falls on the plaintiff to prove that there were agreements between the parties for the supply of the equipment mentioned in INV18176, INV18214 and INV19009, since that is the foundation of its claim on these invoices.
For Issues 2, 4 and 5, the plaintiff bears the burden of proving that the equipment mentioned in INV18178, INV18226 and INV18277 conformed to the agreed specifications. Pursuant to section 27 of the Sales of Goods Act (Cap. 393, Rev. Ed. 1999) (“SOGA”), it is the duty of the seller to deliver the goods, and of the buyer to accept and pay for them, in accordance with the terms of the contract of sale. The seller’s duty to deliver is: (a) in a contract for the sale of specific goods, to deliver the particular goods contracted for, and (b) in a contract for the sale of unascertained goods, to deliver goods which answer the contract description: see Benjamin’s Sale of Goods (Sweet & Maxwell, 11th Ed, 2020) (“Benjamin’s Sale of Goods”) at [8-003]. Thus, in either case, the goods must conform to the agreed specifications in order for the seller to have discharged his duty to deliver. Section 28 of the SOGA provides that unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions. As neither party pleaded, or adduced any evidence on, the contractually agreed time for payment for the equipment, section 28 applies such that payment was due when the equipment was delivered by the plaintiff to the defendant in accordance with the terms of the contract. This means that the plaintiff must prove that the equipment...
