Store+Deliver+Logistics Pte Ltd v Chin Siew Gim (trading as S G Chin and Associates)

JurisdictionSingapore
JudgeLee Seiu Kin J
Judgment Date27 April 2012
Neutral Citation[2012] SGHC 89
CourtHigh Court (Singapore)
Docket NumberSuit No 188 of 2009
Year2012
Published date31 July 2012
Hearing Date05 September 2011,06 September 2011,07 September 2011,09 September 2011,12 September 2011,02 September 2011,13 September 2011,08 September 2011,31 August 2011,16 November 2011,29 August 2011
Plaintiff CounselS Gunaseelan (M/s S Gunaseelan & Partners)
Defendant CounselTan Cheow Hin (M/s CH Partners)
Subject Matterbuilding and construction contracts, contractors' duties
Citation[2012] SGHC 89
Lee Seiu Kin J :

The plaintiff company is the owner of a warehouse at 7 Gul Drive (“the Warehouse”) which was constructed by Expedite Construction & Development Pte Ltd (“Expedite”) in three phases. The last phase was completed in October 2003. The defendant, an architect practising in his own firm of S G Chin and Associates (“S G Chin”), was appointed by the plaintiff to design and supervise construction of the Warehouse. The terms of appointment are set out in the defendant’s letter to the plaintiff dated 15 May 2001. It is the common position of the parties that this constitutes the contract between them (“the Contract”).

The defendant had been engaged as the architect for an earlier warehouse project at 7 Clementi Loop known as Scandinavia Warehouse Pte Ltd (“Scandinavia Warehouse”). It was in connection with that project that the defendant met Lee Ah Teng (“AT Lee”), a director and shareholder of the company that owned Scandinavia Warehouse. AT Lee was also a director of the plaintiff and it was on the strength of the defendant’s work in the Scandinavia Warehouse project that the plaintiff appointed him to undertake work for the Warehouse. This entailed a 3-phase reconstruction of an existing warehouse into a new warehouse cum office. Part of the Warehouse was intended to store hazardous chemicals. The defendant carried out the design of the Warehouse and preparation of the tender documents. Tenders were called, which closed on 8 February 2002. On 22 February 2002, the defendant produced his tender report to the plaintiff in which he recommended awarding the warehouse project (“Warehouse Project”) to the lowest tenderer, Kin Lin Builders Pte Ltd, at $4.19m.

However the plaintiff did not proceed as the defendant had recommended. Instead they brought one S K Goh (“Goh”), the director of Expedite, to meet the defendant. Goh said that Expedite was prepared to undertake the construction for a much smaller sum. On AT Lee’s instruction, the defendant handed the tender documents to Goh. About a week after that, Goh submitted a quote of about $3.5m, some $677,000 lower than Kin Lin Builders’ price. The defendant wrote to the plaintiff on 13 May 2002, advising against awarding the project to Expedite because the price was too low, Expedite’s past record was not impressive and it did not have the financial strength to undertake the Warehouse Project. However, after two rounds of interview with Expedite, the Warehouse Project was awarded to Expedite.

Award of Building Contract to Expedite

There were some disagreements on the exact circumstances regarding the award of the Warehouse Project to Expedite. It was not disputed that the plaintiff was the one who procured Expedite to submit a quote. The defendant claimed that he had no choice over the matter and that the plaintiff’s problems with the Warehouse were caused by their choice of Expedite. However I note that there were two interviews with Expedite conducted by, among others, the defendant and AT Lee, on 17 May and 6 June 2002 and, in the event, the defendant sent the letter of acceptance to Expedite on plaintiff’s behalf. The defendant had obviously been swayed by the plaintiff’s budget constraints and had decided that he could work with Expedite. However as a professional architect, it was his duty to advise the plaintiff as to whether he was satisfied with Expedite’s capability to undertake the project. The plaintiffs pointed out that the defendant did not complain about Expedite’s work during the construction period, and had done so well after the work had ceased. I therefore find that the defendant’s assertion that the selection of Expedite was the sole responsibility of the Plaintiffs has no basis. Furthermore, the plaintiff and Expedite had referred their disputes to arbitration (“the Arbitration”) which resulted in an award by the arbitrator (“the Arbitrator”) against the plaintiff of the sum of $331,097.55. In his award, the Arbitrator did not make any adverse finding in relation to the work of Expedite under the Building Contract. Therefore the defendant’s allegations that he was not responsible for any shortcoming in performance on the part of Expedite also had no basis in that the Arbitrator made no finding that Expedite had failed to carry out the building works satisfactorily (other than in respect of certain defects set out in the plaintiff’s claims against Expedite in the Arbitration for which the Arbitrator awarded damages to the plaintiff for their rectification). It is therefore not relevant whether the award of the contract for the construction of the Warehouse to Expedite was or was not solely the decision of the plaintiff.

By way of a letter of award dated 17 June 2002 issued by the defendant on behalf of the plaintiff, the contract for the construction of the Warehouse was awarded to Expedite for about $3.5m. The documents constituting the contract between the plaintiff and Expedite were, in accordance with normal practice in the building industry, compiled in a bundle which was signed by representatives of the plaintiff and Expedite sometime in September 2002. This bundle was produced in court and marked as 8AB and referred to hereafter as the “Building Contract”.

Under the Building Contract, Messrs Tenwit Engineering Consultants was appointed the structural engineer and HPS Consulting was appointed the mechanical and electrical engineer (“M&E Engineer”). No quantity surveyor (“QS”) was named in the Building Contract under Article 4 of the Articles and Conditions of Building Contract. The defendant’s firm of S G Chin was named as the firm from which the QS would be appointed. It was common ground that the parties had agreed to use the in-house QS in S G Chin, but as that person may change over the duration of the project, it would be expedient to leave the name blank. The in-house QS in S G Chin at the time was one Lam, but after he resigned in December 2003, the defendant did not employ another QS for the remaining duration of the construction of the Warehouse.

Construction of the Warehouse

Construction commenced on 1 July 2002 and the construction period was to be 11 months, ie the completion date would be 31 May 2003. The work was to be completed in three phases: phase 1 comprised the office block, phase 2 was the smaller part of the Warehouse that would store flammable, toxic and corrosive substances, and phase 3 was the larger part of the Warehouse. Phase 1 was completed and handed to the plaintiff on 20 February 2003. Expedite commenced work on phase 2 on 6 February 2003 and on phase 3 on 29 June 2003.

Royston Chow Kwai Yeow (“Chow”) had been employed by the defendant since 1980 and at the material time he was a senior project manager. The defendant tasked Chow to supervise the construction, which included coordinating and supervising activities at the site, ensuring builder’s works were executed in accordance with the drawings and the requirements of the Building Contract. Chow said that his work only covered the architectural works. He gave evidence that he was the main person on site representing the architect and that he received reports from the clerks-of-works (“CW”) and reported regularly to the defendant regarding the progress of the works. Chow was the defendant’s right hand man for the project; he would consult the defendant on every matter and draft the documents for the defendant to sign which the defendant did after reviewing them and satisfying himself that they were in order to do so. One Ho Cheow Thatt was appointed the CW. Under the Contract, where constant supervision was required by the plaintiff, a CW is to be employed, which shall be paid by the plaintiff but shall work under the architect’s direction and control. The defendant tried to dissociate himself from any responsibility for oversight of the CW, but it is patently clear from the terms of the Contract that supervision of construction is his responsibility and that the CW worked under his direct control even if he was employed by the plaintiff.

On 17 November 2003, the defendant certified that the works for the Warehouse were completed by Expedite on 15 October 2003, save for the defects detailed in his letter of 13 November 2003. The latter had listed 12 defects, one of which was “uneven floor inside the warehouse (phase 3 area)”. The defendant also certified that the maintenance period would commence on 15 October 2003.

Throughout the contract period, the plaintiff made progress payments to Expedite pursuant to the architect’s certificates issued by the defendant. The defendant also issued a number of variation orders pursuant to the Building Contract for builder’s works in relation to various omissions and additions required by the architect’s instructions.

Fire to the Warehouse

On 27 December 2003, some two months after completion, a fire broke out in the Warehouse that damaged most of the phase 2 area and part of the phase 3 area. In particular, the roof of the phase 2 area was completely destroyed and part of the roof of the phase 3 area was damaged. The cost of rectification works for the damaged portion of the Warehouse, including the roof, was repaired by a third party and paid for by the insurers.

Defects rectification

The defects rectification process was somewhat drawn out, no doubt complicated by the fire in December 2003, but also by a number of other factors. On 5 January 2004 Expedite wrote to the defendant and provided a schedule for the rectification of the defects listed in the defendant’s letter of 13 November 2003. Expedite noted that the fire in December 2003 may have caused damage to the Warehouse and asked for the details of such damage. On 27 January 2004, the defendant responded to this letter and instructed Expedite, among other things, to proceed with rectification of the “unlevelled floor as soon as possible”. On 29 January 2004 Expedite wrote to the defendant stating...

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1 firm's commentaries
  • Compelling the performance of construction works
    • Hong Kong
    • JD Supra Hong Kong
    • 9 Noviembre 2020
    ...is required to pay money into a project bank account,5 but it has failed to do so. 1 Store+Deliver+Logistics Pte Ltd v Chin Siew Gim [2012] SGHC 89. 2 Liberty Mercian Ltd v Cuddy Civil Engineering Ltd [2013] EWHC 4110 (TCC); CCIG (Australia) Pty Ltd v Amicus Hospitality Group Pty Ltd [2019]......
2 books & journal articles
  • Intellectual property
    • United Kingdom
    • Construction Law. Volume III - Third Edition
    • 13 Abril 2020
    ...Ltd (2008) 123 Con LR 91. 120 Speciic performance is discussed in Chapter 9. 121 See, eg, Store+Deliver+Logistics Pte Ltd v Chin Siew Gim [2012] SGHC 89 at [39], per Lee Seiu Kin J. In an analogous situation, if an employee of a construction business deliberately and wrongfully destroys or ......
  • Building and Construction Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2012, December 2012
    • 1 Diciembre 2012
    ...threshold required to support an application for injunctive relief on this ground. 7.2 In Store+Deliver+Logistics Pte Ltd v Chin Siew Gim[2012] SGHC 89 (‘Chin Siew Gim’), the High Court examined, inter alia, the obligations of an architect in a design and build contract and in Kosui Singapo......

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