People's Parkway Development Pte Ltd v Akitek Tenggara

• Jurisdiction: Singapore
• Judge: L P Thean J
• Judgment Date: 04 August 1992
• Neutral Citation: [1992] SGHC 213
• Docket Number: Suit No 635 of 1991
• Date: 04 August 1992
• Published date: 19 September 2003
• Year: 1992
• Plaintiff Counsel: Ruby Lee and Bernie Neo (Lee & Partners)
• Citation: [1992] SGHC 213
• Defendant Counsel: Foo Soon Yien (Bernard Rada & Lee)
• Court: High Court (Singapore)
• Subject Matter: s 6(1)(a) Limitation Act (Cap 163),When actual damage occurred,When cause of action accrued,Limitation of Actions,Whether action statute-barred,When time begins to run,Negligence

The plaintiffs were at all material times the developers of a parcel of land known as Lot 5474 of Mukim XXVI and Parcel 121 at Marine Parade Road/East Coast Parkway (`the site`) pursuant to a building agreement made between the plaintiffs and the President of the Republic of Singapore dated 16 December 1981, whereby the plaintiffs were granted a lease of the site for a term of 99 years for the purpose of developing a thirteen-storey building for offices and shops. The defendants were and are, at all material times, a firm of architects and were appointed on 27 May 1981 by the plaintiffs as architects for the development. In the same month, a firm of surveyors called Wang Yu Yung Associates were appointed to prepare a survey of the site showing all topographical features, including the boundary thereof. The surveyors conducted a survey of the site, and in June 1981 prepared a drawing setting out the boundary lines. On the basis of that drawing, the defendants prepared a site plan setting out the layout of the proposed thirteen-storey building. Subsequently, building approval was obtained, and piling works commenced sometime in December 1981 and were carried out. Building works commenced in June 1982 or thereabout.

On 7 June 1982, the plaintiffs received a letter from the Housing and Development Board (`HDB`) informing them that a survey of the site carried out on 19 May 1982 showed that `the site which was under piling had shifted towards the emporium (Block 87)`. It was then found that on the basis of the site plan drawn by the defendants (which in turn was based on the topographical survey drawing prepared by the surveyors) the building line was set beyond the true boundary of the site and encroached on HDB`s land. The defendants on behalf of the plaintiffs then wrote to HDB and the Urban Redevelopment Authority (`URA`) in an attempt to remedy the error. In that letter, the defendants requested, among other things, that the shifting of the building site to the encroached area be allowed to remain and that permission be given to the plaintiffs to carry on the works at the site. In response, URA wrote to the defendants on 6 July 1982 agreeing to the carrying on of the works but on condition that the plaintiffs were prepared to accept `any consequences that may arise from the course of action to be taken by the Land Office/HDB or the Authority`. Subsequently, by their letter of 30 April 1983 URA rejected the plaintiffs` request for a revised location of the boundary to accommodate the encroachment and required the plaintiffs to absorb the cost of the additional strip of land arising from the shift in boundary of the proposed building. If the plaintiffs did not agree to acquire the additional strip of land, the plaintiffs would unavoidably have to remove all construction works, including the pilings, on the encroached area. It was the plaintiffs` case that they had no choice but to agree to acquire the additional area. On 15 November 1984, URA forwarded to the plaintiffs a second supplemental agreement for the acquisition of the additional strip of land at the total price of $1,038,496.96. However, the supplemental agreement was executed much later, namely, on 6 December 1985. As a result of the additional area acquired or to be acquired, the plaintiffs decided to add a 14th storey to the thirteen-storey building. Accordingly, planning permission for this additional floor was applied for and obtained, but completion of the building was very much delayed. Eventually the building was completed, and the certificate of fitness for occupation was issued on 21 June 1990.

On 28 March 1991, the plaintiffs instituted this action against the defendants claiming damages for breach of contract and/or for negligence. The defendants on 23 May 1991 applied to strike out the plaintiffs` statement of claim under O 18 r 19 of the Rules of the Supreme Court 1970 and/or under the inherent jurisdiction of the court on the ground that (i) it is frivolous and vexatious, and/or (ii) it is an abuse of the process of the court. The application was heard before the senior assistant registrar and he struck out only that part of the claim relating to breach of contract. Against the decision of the learned senior assistant registrar, the defendant appealed, and at the conclusion of the hearing I varied the order of the learned senior assistant registrar by striking out the entire statement of claim on the ground that it was statute-barred. I now give my reasons.

The only issue before me was whether the cause of action in negligence was barred by the Limitation Act (Cap 163)(`the Act`). Section 6(1)(a) of the Act provides that an action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrues. The question, therefore, is when the cause of action in negligence accrued in this case. It is accepted that the cause of action in negligence accrues when the damage caused by the negligent act or omission occurs. In this case, the negligent act - for the purpose of this appeal, I assume that the defendants were negligent in preparing the site layout plan as averred in the statement of claim - occurred during the period between June and December 1981 when the defendants prepared the site layout plan for the building. On the basis of the site layout plan the defendants approved the piling works which commenced in December 1981 and the building works which commenced in June 1982 or thereabouts. In the same month, June 1982, the error was discovered. The plaintiffs requested URA to permit the shifting of the building site to the encroached area to remain, which, in effect, involved a readjustment of the boundary to accommodate the encroachment; that, however, was not successful. The plaintiffs were then confronted with two options: first, to stop all building works on site and remove the building works, including the pilings, on the encroached strip of land, or, secondly, to proceed with the works and accept the consequences. They chose the latter. Discussions or negotiations then followed but did not yield any fruitful results to the plaintiffs. On this point, I should perhaps add that there was no direct evidence before me of any discussion or negotiation between the plaintiffs and URA after the discovery of the error. There was a complete absence of evidence as to what happened during the period between 6 July 1982, when URA gave permission to the plaintiffs to carry on with the building works, and 30 April 1983, when URA wrote to the defendants stating in no uncertain terms that whatever additional area arising from the shift in boundary would have to be absorbed by the plaintiffs. It is my inference that discussions and negotiations must have been conducted between the plaintiffs and URA exploring various possible options but no solution was found acceptable to URA; hence came the letter of 30 April from URA. Again, what precisely happened thereafter was not clear. However, it seems to me that at that time or soon thereafter, the plaintiffs agreed to acquire the additional strip of land and the additional cost involved was $1,038,496.96. On 15 November 1984, the supplemental agreement was sent to them by URA.

On these facts, the question is: when did the plaintiffs suffer actual damage as a result of the defendants` negligent act? This material date could be either (i) the date when acting on the erroneous layout plan drawn by the defendants the piling works were carried out and encroached on HDB`s land, ie sometime in early 1982, as on that date the plaintiffs had incurred a contingent liability which was capable...