Sie Choon Poh (trading as Image Galaxy) v Amara Hotel Properties Pte Ltd (No 2)

• Judge: Lai Kew Chai J
• Judgment Date: 15 July 2005
• Neutral Citation: [2005] SGHC 127
• Citation: [2005] SGHC 127
• Subject Matter: Covenants,Repair,Landlord and Tenant,Landlord relying on exclusion clause for damage caused in absence of landlord's gross negligence,Whether landlord's conduct amounting to gross negligence,Whether landlord entitled to rely on exclusion clause,Tenant claiming damages from landlord for breach of covenant to maintain and keep in repair common areas
• Published date: 22 July 2005
• Court: High Court (Singapore)
• Year: 2005
• Defendant Counsel: Adeline Chong (Harry Elias Partnership)
• Plaintiff Counsel: Navinder Singh (Navin and Co)

15 July 2005 Judgment reserved.

Lai Kew Chai J:

1 At an earlier trial, I allowed the plaintiff tenant’s claim for damages arising out of the landlord’s breach of the covenant to repair: see [2003] 3 SLR 703. The Court of Appeal allowed the landlord’s appeal, ruling that the issue of whether the defendant was negligent or not was joined, and remitted the matter back to me for consideration of the issue whether on the facts, cl 8.1 of the lease applied so as to exempt the landlord from liability for the tenant’s losses.

2 The material facts are as follows. The defendant, Amara Hotel Properties Pte Ltd (“Amara”), was the owner of the shopping complex known as “The Amara” in Tanjong Pagar, including a food court as well as several shop units. The plaintiff, Sie Choon Poh (trading as Image Galaxy) (“Mr Sie”) took a lease of a shop unit below the food court for a period of three years ending on 8 September 2001 under a lease agreement dated 28 July 1998. Mr Sie operated a printing business at the unit.

3 The material terms of the lease for present purposes are as follows:

8.1 Negligence

The Lessees agree to occupy use and keep the demised premises at the risk of the Lessees and hereby release the Lessors and their contractors and invitees in the absence of any gross negligence on the part of the Lessors their servants or agents from all claims and demands of every kind in respect of or resulting from any accident damage or injury occurring in the Complex or the demised premises and the Lessees expressly agree that in the absence of any such negligence as aforesaid the Lessors shall have no responsibility or liability for any loss damage or injury suffered by the Lessees (whether to or in respect of the Lessees’ person property or business conducted by the Lessees) as a result of any breakage leakage accident or event in the Complex or the demised premises.

9.2 Quiet Enjoyment

To permit the Lessees … to have quiet enjoyment and exclusive possession of the demised premises during the said term without any interruption by the Lessors …

9.4 Maintenance of the Complex

The Lessors shall maintain and keep in repair the Common Area during the term of this Lease inclusive of the exterior walls (other than shop fronts) and all parking spaces roads pavements water drainage lighting and other common facilities and services Provided Always that the manner in which such areas and facilities shall be maintained and the expenditure thereon shall be at the absolute discretion of the Lessors.

[emphasis added]

4 On 19 April 2001, the T-joint of a pipe system carrying caustic effluents from the food court above Mr Sie’s unit ruptured and caused widespread damage to the machinery of Mr Sie. The T-joint, concealed within the ceiling in the unit, was found to be in a severe state of corrosion, which led to the rupture.

5 The issue for determination at this remitted trial is whether, as Mr Sie asserts, Amara was “grossly negligent” and therefore disentitled from relying on the exemption under cl 8.1 of the lease.

Gross negligence

The law

6 The term “gross negligence” as a concept is not susceptible of definition. Nor is it possible to lay down a standard, derived logically from past cases, by which a court can confidently rule when negligence should be deemed to be gross negligence. This is because the circumstances giving rise to the duty to act, including the duty to remove a potentially damaging or dangerous situation, vary from case to case and they also vary in infinite degree. It should be recognised that it is a practical impossibility that all the...