Sie Choon Poh (trading as Image Galaxy) v Amara Hotel Properties Pte Ltd

• Judge: Andrew Ang J
• Judgment Date: 15 February 2008
• Neutral Citation: [2008] SGHC 24
• Citation: [2008] SGHC 24
• Defendant Counsel: Adeline Chong (Rajah & Tann LLP)
• Published date: 19 February 2008
• Plaintiff Counsel: Navinder Singh (Navin & Co LLP)
• Date: 15 February 2008
• Docket Number: Suit No 914 of 2002 (Registrar's Appeal No 214 of 2007)
• Court: High Court (Singapore)
• Subject Matter: Appeal against assessment of damages by assistant registrar,Damages,Whether assessment should be altered in light of inadequate evidence of loss,Whether offer to settle can be taken into account even though not in prescribed form,Costs,Assessment,Civil Procedure

15 February 2008

Andrew Ang J:

1 This was an appeal (Registrar’s Appeal No 214 of 2007) against the Assistant Registrar’s (“AR”) assessment of damages payable to the plaintiff in Suit No 914 of 2002 arising from the spillage of waste water into the plaintiff’s shop premises from a burst waste water pipe in the defendant landlord’s building of which the premises let to the plaintiff formed part. At the conclusion of the hearing, I dismissed the appeal with costs. My grounds of decision follow.

The claim

2 The following principal heads of claim were set out in the Statement of Claim:

(a) Estimated loss resulting from damage to photocopying machines and other equipment – $333,200.

(b) Damages to be assessed for loss of earnings and/or profit then estimated at $500,000.

(c) Indemnity for all sums due and owing to Hitachi Leasing Pte Ltd (“Hitachi”) and Canon Singapore (“Canon”) as a result of the return of its machinery then estimated at $250,000.

(d) Damages to be assessed for loss of goodwill.

(e) Damages to be assessed for distress and disappointment.

3 At the assessment of damages before the AR, the plaintiff was awarded $5,000 for loss of goodwill and $11,046.76 for loss of profits. Notably, the AR declined to make any award of damages in respect of mental distress or damage to machines and equipment. Neither was an indemnity ordered. What came across very clearly from the AR’s Grounds of Decision (“GD”) was that the plaintiff had failed to discharge his burden of proof, there being “a glaring lack of documentary evidence and witness testimony to support the claims he was making” (see [22] of the GD). Moreover, the AR also formed the view that “the Plaintiff’s own responses during cross-examination were equivocal at best, evasive at worst”.

4 It is settled law that a judge in chambers hearing an appeal from a decision of the AR exercises a confirmatory jurisdiction. The judge deals with the matter as though it came before him for the first time and is entitled to exercise an unfettered discretion of his own: per Chan Sek Keong J (obiter) in Herbs and Spices Trading Post Pte Ltd v Deo Silver (Pte) Ltd [1990] SLR 1234 at 1238 affirmed by the Court of Appeal in Augustine v Goh Siam Yong [1992] 1 SLR 767. Nevertheless, unless there are grounds upon which he differs from the AR, he should be slow to disturb the AR’s findings, particularly where the AR’s decision involved an examination of witnesses. Due weight should be given to the decision of the AR: Evans v Bartlam [1937] AC 473 followed by the Court of Appeal in Chang Ah Lek v Lim Ah Koon [1999] 1 SLR 82.

5 One would have expected that, given the AR’s finding that there was a dearth of evidence in so many respects in the plaintiff’s claim, the plaintiff would have sought belatedly to introduce further evidence (if any) to support his claim. Leave would still have to be obtained of course (the plaintiff having to satisfy a modified version of the test laid down in Ladd v Marshall [1954] 1 WLR 1489 such modification being as set out in Lassiter Ann Masters v To Keng Lam [2004] 2 SLR 392) but at least such an effort could have lent credence to the plaintiff’s claim. Instead, as may be seen below, the plaintiff offered nothing further despite gaping omissions specifically pointed out by the AR.

Damage to machinery

6 With respect to damage to machinery, the AR had found that there was no evidence that the machines were damaged by waste water. She was therefore unable to make a finding on the extent of damage. Before me, the plaintiff’s counsel pointed out that the defendant had taken photographs of the plaintiff’s equipment which showed the machines soiled by the waste water. He therefore argued that the AR was wrong in observing that there was no documentation of what machinery was on site at the time of the incident. However, the key finding was at [10] that:

[T]here was no proof that the machines had been damaged by the incident, even less that they were irreparably damaged. The surveyor’s report made no mention of any damage. While it stated that the machines would have to be inspected and tested, there was no evidence that this was done.

7 The AR further noted that representatives of Canon and Hitachi were not called to testify as to the state of the machines. This was despite the fact that the plaintiff had expressly listed them as among the witnesses he would call. Before me the plaintiff made no attempt to adduce any further evidence to repair the omissions. Instead, counsel repeated the submission below that “relevant papers relating to the leases of the machinery, their return, their eventual sale as scrap and the final amounts due” constituted evidence that the machines had been irreparably damaged. This was what the AR had to say:

11 The only concrete evidence before the court was (i) a letter from Hitachi to the Plaintiff dated 8 Oct 2001 warning the Plaintiff that he owed $39,821.51 to...