Sim & Associates (sued as a firm) v Tan Alfred

• Judge: Karthigesu JA
• Judgment Date: 25 January 1994
• Neutral Citation: [1994] SGCA 12
• Citation: [1994] SGCA 12
• Defendant Counsel: Cheng Tim Pin (Yap & Yap)
• Published date: 19 September 2003
• Plaintiff Counsel: Woo Bih Li (Bih Li & Lee)
• Date: 25 July 1994
• Docket Number: Civil Appeal No 118 of 1993
• Court: Court of Appeal (Singapore)
• Subject Matter: Defective works in building,Duties and liabilities,Whether breach of contract,Building contract,Whether architect breached duty of supervision,Contract,Architects,Building and Construction Law,Turnkey project for building construction,Breach,Singapore Institute of Architects Form (1982 Ed),Professions,Architects, engineers and surveyors,Whether architects failed to effect proper supervision,Scope of architect's duty of supervision

Cur Adv Vult

This is an appeal against the decision of Justice Warren Khoo in Suit No 9660 of 1985 in which the learned judge awarded the respondent, inter alia, a sum of $193,524 in damages against the appellants for breach of their duties as architects in connection with the construction of a two-storey bungalow and further dismissed the appellants` counterclaim for the balance of their professional fees and disbursements.

In November 1981, the respondent bought a piece of land at No 16 Second Avenue with a view to building a two-storey bungalow thereon. He engaged the appellants, a firm of architects, planners and engineers to provide various services including architectural services and the services of a quantity surveyor in connection with the construction of the bungalow. There was no formal contract between the appellants and the respondent.

The appellants subsequently called for tenders for the project and on 9 December 1982, on the respondent`s behalf, awarded the contract to Hok Mee Construction (Pte) Ltd (`the main contractor`). The main contractor had originally submitted a tender for $1,634,853.35. Subsequently however, various items, including the installation of the external marble cladding for the bungalow, were omitted. These omissions resulted in a reduction of the tender sum to $1,228,072.35. The main contractor confirmed these omissions on 10 December 1982 and the formal building contract between the respondent, as `employer`, and the main contractor was signed on 17 January 1983.

The building contract was on the Singapore Institute of architects form of contract (1982 Ed). Two of the appellants` representatives were appointed `architect` and `quantity surveyor` under the building contract. The commencement and completion dates were stated to be 17 December 1982 and 16 June 1983 respectively. The building contract also provided for a maintenance period of six months from the date of issuance of the completion certificate by the architect. The appendix to the building contract, read with cl 31(1), provided for the architect to issue monthly interim certificates for payment to the main contractor. The respondent, as the `employer` under the building contract, was required to honour these interim certificates for payment within 14 days from the date of certification.

The original specification provided for marble to be affixed to the external walls of the bungalow (the external marble cladding). The method specified in the original tender documents for securing the marble slabs to the external walls was the use of metal anchorages made of a suitable non-ferrous metal, eg stainless steel or some other approved metal (the mechanical method). However, at the time of the award of the tender on 9 December 1982, the external marble cladding was omitted from the contract because of its high cost, resulting in a reduction of the contract sum. Subsequently, the external marble cladding was reintroduced using a less costly method. This alternative method involved affixing the marble slabs to the external walls using a sand and cement plaster backing with brass wire clamps (the adhesion method). The cheapest quotation for the adhesion method was submitted by Cheah Choon Yin Construction Co Pte Ltd (`Cheah Choon Yin`) on 24 May 1983. This quotation was accepted on 27 June 1983 by the appellants for and on behalf of the respondent. Under the agreement, Cheah Choon Yin was required to commence the external marble works on 29 June 1983 and complete the works within six weeks thereof.

As it often happens in building projects, there were delays to the construction of the bungalow. No evidence was however led at the trial as to the cause of these delays. Various efforts were made by the appellants as the architect under the building contract to get the main contractor to ensure a prompt completion of the works but without success. The respondent was eager to move into the bungalow as the lease for his rented premises was expiring. Although a temporary occupation licence had not yet been given, the respondent made arrangements with the main contractor to occupy the bungalow and moved in on 28 November 1983. At the time the respondent moved into the bungalow, there were various defective works awaiting rectification and the external marble cladding was not fully completed.

By a letter dated 2 December 1983 from the main contractor to the respondent, various matters relating to the construction of the bungalow were agreed upon between themselves. Owing to its importance, this letter is reproduced in full:

2 December 1983

Mr Alfred Tan Chor How

No 16 Second Avenue

Singapore 1026

Dear Mr Tan,

2-Storey Bungalow at No 16 Second Avenue

We refer to the recent meeting between yourself and our Mr Kek and are pleased to confirm the following agreement reached between us for the handing over of the building to you for occupation.

(1) The date for the practical completion of the project under the conditions of the building contract has been extended to 30 November 1983, and on taking possession of the premises by you, the works under the building contract has reached a stage of practical completion.

(2) No liquidated damages will be imposed by you. Likewise we agree not to claim for additional costs and expenses incurred due to the extended construction time.

(3) Turfing and planting works under the contract are to be omitted from our contracts.

(4) Due to the shortage of marble slabs supplied by you and at your request we will cease all works on the unfinish external marble wall until the arrival of the marble slabs to be supplied by you. We will remove all scaffolding and equipment from the site as requested by you.

(5) You have agreed to pay us new rates for remobilisation, delivery and re-erection of all scaffold and other preliminary works necessary for the completion of the external marble wall when your material arrives on site.

(6) As per your telex of 24 November 1983, we confirm our agreement that you may engage Allied Initial Services to carry out the clearing of the rubbish and cleaning of the whole site and the building, including polishing of all the floors and wall surfaces for the sum of $2, 500.The said cost shall be for our account on the understanding that we will be relieved of all responsibilities concerning the cleaning up on completion of works as required under the conditions of the building contract.

Yours faithfully

Hok Mee Construction Pte Ltd

(signed)

Kek Kim Hok

Managing Director

cc: Sim & Associates - Attention: Mr Sim Hong Boon

The main contractor left the site on 17 January 1984, subject to the agreement to return later to complete the external marble cladding when the respondent supplied the marble slabs and after new rates for remobilisation were agreed to pursuant to the above agreement.

At the trial, the respondent did not dispute the correctness of the above agreement. In cross-examination, the respondent indicated that the letter was a correct record of what was agreed to and that he did not eventually come to any agreement with the main contractor as to the new rates to be charged for remobilising the marble works.

On 18 January 1984, the appellants in their capacity as the architect under the building contract wrote to the respondent proposing to issue the 11th interim certificate to the main contractor. The interim certificate set out the respective amounts proposed for payment to the main contractor and the nominated sub-contractors. No objection was received from the respondent and on 25 January 1984, the appellants issued the 11th interim certificate for progress payment in the sum of $183,866.84 to be paid by the respondent to the main contractor. Under the contract, this payment from the respondent was due in 14 days, ie on or around 8 February 1984. The respondent failed to make this payment and persistently refused to make this payment when called upon to do so. As a result of this failure to pay the 11th interim certificate sum, the main contractor and the nominated sub-contractors refused to rectify the defective works.

Various efforts were made by the appellants to end this impasse resulting in a meeting on 30 May 1984 between the respondent, the main contractor and the appellants. The unsigned minutes of the meeting recorded the following agreement between the respondent and the main contractor:

Notes of meeting held at Shaw House on 30 May 1984 at 6pm

Attendance:

Mr Alfred Tan (the respondent)

Mr Kek (the main contractor`s representative)

Mr Sim Hong Boon (the appellants` representative)

(1) It was agreed that Mr Alfred Tan will make payment to Mr Kek of Hok Mee Construction Co Pte Ltd the sum of $183,866.84 under architect`s certificate no 275/11 by Friday, 1 June 1984.

(2) Mr Kek has agreed that he and his sub-contractors will commence the rectification works by 15 June 1984 after receiving payment from Mr Tan and have the works completed by 27 July 1984. The list of the defective works prepared by Mr Alfred Tan was given to Mr Kek at the meeting.

(3) Mr Tan agreed that he will issue Mr Kek a banker`s guarantee for payment of the balance of approximately $360,000 to ensure payment to Mr Kek after Mr Kek has completed all the rectification works.

(4) It was agreed that the parties, Mr Tan and Mr Kek and, if necessary, the architect will be present and take over/accept defective works completed by Mr Kek and the sub-contractors progressively.

(5) Should Mr Kek fail to complete all the defective works by the date mentioned above under item 2, it was agreed that he will pay Mr Tan the rate of $1,500 per day.

(6) The defect liability under the contract has expired. It was agreed that Mr Kek will extend this defect liability for a further two months from 27 July 1984 and the retention sum of approximately $9,252.97 will be...