Stuttgart Auto Pte Ltd v Ng Shwu Yong

• Jurisdiction: Singapore
• Judge: Kan Ting Chiu J
• Judgment Date: 19 October 2004
• Neutral Citation: [2004] SGHC 231
• Date: 19 October 2004
• Subject Matter: Tort,Negligence,Defendant instructing plaintiff workshop to repair damaged car,Whether duty of care existing given defendant's car remaining in workshop against plaintiff's wishes,Authorisation not forthcoming from defendant,Duty of care,Acceptance,Contract,Whether defendant entitled to counterclaim for deterioration of car and loss of use,Whether plaintiff workshop owing defendant duty of care upon receipt of damaged car or upon receipt of defendant's deposit for repair of car,Whether plaintiff entitled to recover towage and storage charges from defendant,Plaintiff requiring defendant's authorisation to commence repairs,Formation,Whether binding contract entered into between parties
• Docket Number: Suit No 72 of 2003
• Published date: 20 October 2004
• Defendant Counsel: B Mohan Singh (K K Yap and Partners)
• Court: High Court (Singapore)
• Plaintiff Counsel: Tan Chee Meng and Josephine Choo (Harry Elias Partnership)

19 October 2004 Judgment reserved.

Kan Ting Chiu J:

1 This is an exceptional case arising out of rather unexceptional beginnings. A car was damaged in a road accident, after which it was towed to a workshop for repairs. Then matters became contentious. No repairs were done for five years while the car owner and the workshop argued over the conditions for the repairs. The workshop asked the owner to remove the car and even had the car towed back to the owner’s residence, but the owner refused to take it, and the car was brought back to the workshop. The workshop took action to compel the owner to remove the car from the workshop, and the owner filed a counterclaim for loss arising from the deterioration of the car and the loss of use of it.

2 The plaintiff, Stuttgart Auto Pte Ltd, the agent for Porsche cars, was the workshop in question. The car was a Porsche 964, registration number SBY8919S (“the car”). The defendant, Dr Ng Shwu Yong, was the registered owner of the car. However, she left her husband, Mr Dennis Chee Boon Keng (“Chee”), to deal with the repairs and the workshop.

3 On 24 August 1998, the defendant met with an accident while driving the car. She called the plaintiff’s hotline and it was arranged that the car be towed to the plaintiff’s workshop for repairs. On 28 August 1998, the plaintiff issued to the defendant an estimate of the cost of the repairs in the sum of $76,650.00. The plaintiff refused to carry out the repairs until the defendant had issued her written authorisation. The defendant refused to take the car away, and it remained at the workshop with no repairs done. The plaintiff tried to return the car on 15 May 2001, but was rebuffed. Although attempts were made to seek a resolution and revised estimates were issued, the impasse persisted. In the course of the hearing before me, I authorised the plaintiff to return the car to the defendant’s residence, and this was done on 27 September 2003. I agreed with counsel for the plaintiff that the car should go back to the defendant as the counterclaim was for damages and not for an order of specific performance for the plaintiff to repair the car – see [10] below.

The pleadings

4 The action was filed by the plaintiff in the District Court in April 2000. In the Statement of Claim, the plaintiff alleged that the defendant had not given the necessary authorisation to carry out the repairs,[1] and had refused to remove the car. The plaintiff sought an order that it be allowed to tow the car to the defendant’s residence, and it sought to recover towing and storage charges from her.

5 The defendant filed her defence on 9 May 2000, and amended it two and a half years later on 28 September 2002 to make a counterclaim. The size of the counterclaim caused the action to be transferred to the High Court.

6 In the Amended Defence and Counterclaim, the defendant denied that she had not authorised the repairs and asserted that:

(a) She had instructed the plaintiff verbally through Chee to proceed with the repairs;

(b) She had confirmed those instructions in writing; and

(c) When she deposited $60,000 with the plaintiff’s solicitors, that was confirmation that she wanted the car to be repaired by the plaintiff.[2]

7 In the Counterclaim, the defendant alleged that:

(a) The plaintiff was the sole authorised service agent in Singapore for Porsche cars;[3]

(b) The plaintiff had refused to send the car to Germany to be repaired by the manufacturers, and she was unable to send the car to Germany herself without the plaintiff’s clearance in writing.[4] (The defendant led no evidence to support these allegations);

(c) On 28 August 1998, the plaintiff had issued a quotation for the repair of the car. The defendant had accepted it “subject to surveyors [sic] approval” and had instructed the plaintiff to proceed with the repairs, but the plaintiff did not do so;[5]

(d) On 11 May 2000, the defendant wrote to the plaintiff’s solicitors, M/s Colin Ng & Partners (“CNP”), to authorise the plaintiff to commence repairs and paid a deposit of $60,000,[6] and

(e) On 11 July 2000, the plaintiff sent another estimate for the cost of repairs. The defendant instructed the plaintiff to commence repairs. When the plaintiff requested the estimate to be signed, she faxed that to the plaintiff’s solicitors on 29 November 2000, but the plaintiff still failed to carry out the repairs.[7]

8 From the Amended Defence and Counterclaim, the contract to repair the car was alleged to be constituted by (a) the acceptance of the quotations of 28 August 1998; (b) the letter to CNP of 11 May 2000 and the payment of $60,000; or (c) the return of the estimate of 11 July 2000 or 29 November 2000.

9 The defendant pleaded in the alternative that:

[T]he Plaintiffs were negligent in that as the sole authorized service agent in Singapore for Porsches the Plaintiffs failed to repair or provide proper advice to the Defendant who had sent the Porsche to them for repair. The Plaintiffs owes [sic] a duty of care to the Defendant upon the receipt of the damage [sic] Porsche, or upon the receipt of the S$60,000.00 deposit for the repair of the Porsche.[8]

10 In her counterclaim she claimed:

1. Loss due to depreciation of the Porsche at
(S$670,000.00 cost of car – S$80,000.00 scrap
value of car) / 10 years life of car x 4 years
repair time delay, or to the date of repair;
total estimated at S$236,000.00

2. Loss of use based on S$300.00 per day x 365 days
x 4 years, (This is based on market rental rate of
about S$200.00 per day for a 2.5 litre capacity car.
The Porsche is about 3.6 litre capacity)
Total estimated at S$438,000.00

11 The hearing of the action spread over eight days in three tranches on 7 and 8 April 2003, 15 September to 22 September 2003 and 16 April 2004.

12 On the first day of the hearing, the defendant applied to amend the Amended Defence and Counterclaim further, mainly to add a further cause of action of bailment to the counterclaim. I disallowed the application because it was plainly unjustified for the defendant to add a new cause of action a year and a half after she had filed her counterclaim, and leaving it to the commencement of the trial to do it when all the facts she was relying on were known to her from the time she made the counterclaim.

13 The hearing did not proceed smoothly. This was due partly to Chee being argumentative and evasive in the witness box. To compound that, he was unable to continue with his evidence after his first attendance on grounds of his health. This led to my direction after several delays in continuing with the hearing that the defence was to close if he continued to be unavailable, after which he returned and resumed his evidence with no apparent difficulty. Counsel also contributed by not confining themselves to the pleadings. As a consequence, the case lost focus on occasions, and matters not pleaded were brought into contention. I will, however, confine my decision to the issues pleaded.

Whether there was oral authorisation

14 The defendant had called the plaintiff’s hotline and arranged for the car to be towed to the plaintiff’s workshop on 24 August 1998. In her affidavit of evidence-in-chief, she deposed that:

I had on 24 August 1998 authorized the Plaintiffs, Stuttgart Auto Pte Ltd to repair the Porsche to its mint original condition and I undertook to pay the invoice amount and all other costs which may be incurred in the course of the repair work, less any deposit. I told the Plaintiffs to repair the Porsche and the Plaintiffs accepted my offer to repair in that they arranged to tow the Porsche to their workshop for the repairs. Subsequently, they also accepted a deposit of S$60,000.00. I left the costs of repair to the Plaintiffs.

15 She was asked about the arrangements made on 24 August 1998:

Q: Was there any agreement that the repairs and the costs of repairs [were] subject to an appraisal being done on the car?

A: No, we didn’t have time to discuss that. It was at the accident and I was crying and I called and he [Andrew Ang, Sales Manager of the plaintiff] answered so he said, “Don’t worry, I’ll get it done, nicely repaired it properly back to you” and I said, “Sure, go ahead.”

Q: Was there any agreement on the amount of deposit that you had to place before Stuttgart will proceed with the car’s [repairs]?

A I don’t remember discussing that with him.

Q Was there any indication given to Andrew whether you were paying for the repairs yourself or claiming from insurance?

A No.

Q So it is your evidence that without agreeing on those matters that I’ve just highlighted Andrew said he would repair your car?

A Andrew said he would take care of everything. He would get the car towed back to the workshop and he would repair it, not to worry.[9]

16 From the evidence, all that was agreed was that the car was to be brought to the workshop to be repaired. Nothing else was discussed as to the scope, time, costs and payment for the repairs. Clearly no contract was formed in this conversation. Furthermore, the oral instruction referred to in the Defence and Counterclaim was not entered into directly by her, but by Chee on her behalf.

Whether there was authorisation in writing

17 There is a significant difference in the parties’ approach and position on this issue which was reflected in the pleadings. The plaintiff’s case was that the defendant had not issued the authorisation it required for the repairs to be carried out. The defendant’s case was that she had issued instructions for the car to be repaired. An authorisation and an instruction may not be the same thing. For example, an instruction for the repairs would be “Get my car repaired and I will pay for it.” But a workshop receiving this instruction may require more from the owner before it agrees to take on the job. It may want the owner to authorise the scope of the repairs to be done, the costs for the repairs, the terms of payment, etc. In this situation, no contract is...