Tang Da-Yan v Bar None (S) Pte Ltd (Refine Construction Pte Ltd, third party)

• Jurisdiction: Singapore
• Judge: Joel Chen AR
• Judgment Date: 03 March 2011
• Neutral Citation: [2011] SGHC 49
• Court: High Court (Singapore)
• Hearing Date: 23 February 2011
• Docket Number: Suit No 168 of 2010 (Summons in Chambers No 279 of 2011)
• Defendant Counsel: Nagaraja S Maniam and Shelley Lim (M Rama Law Corporation),Adrian Ee (Ramdas & Wong)
• Subject Matter: Civil Procedure
• Published date: 28 March 2012

Joel Chen AR: Introduction

This was an application by the third party to strike out the defendant’s statement of claim against it on the basis that the material evidence relating to their dispute has been destroyed.

The facts

The defendant was at all material times the occupier of premises situated at the basement of Marriott Hotel (“the Premises”), where it carried on business as a bar and pub. Sometime in February 2003, the defendant engaged the third party contractor to carry out renovation works to the Premises. Part of the renovation works included the installation of wall tiles which, apparently, had been provided to the third party by the defendant.

On 30 March 2007, the plaintiff was seated in the Premises as a customer when some tiles fell from a feature wall located next to him. One of the tiles struck him on the head, causing injury. The defendant informed its insurers of the accident shortly thereafter and the insurer appointed a loss adjuster to investigate the matter. While this was going on, the insurers were liaising with the plaintiff’s solicitors with a view to settling the matter out of court.

It is not disputed that during this period, neither the defendant nor its insurer had identified the third party as being potentially liable to indemnify the defendant against the plaintiff’s claim. The loss adjuster deposed in his affidavit that he was informed by the defendant’s assistant manager, one Shaun Sebastian Das (“Das”), that the wall where the tiles had fallen from had been installed some three years prior to the accident. However, Das had also informed the loss adjuster that he could not recall the name of the renovation contractor who had installed the tiles. The loss adjuster took a few photographs of the wall and the spaces where the tiles fell off, but no detailed inspection was ever carried out. It is unknown what eventually happened to the dislodged tiles.

Subsequently, in September 2007, the defendant engaged a separate contractor to renovate the Premises, which resulted in all traces of the feature wall and the remaining tiles being obliterated.

The plaintiff was unable to come to a settlement with the defendant’s insurers and accordingly filed the present suit in March 2010. The insurers sought legal advice and realised for the first time that the defendant might have a claim against the contractor who installed the fallen tiles. It was at this stage where the defendant’s former managing director, one Marco De Miranda (“Miranda”), managed to identify the third party as the contractor in question. The defendant thus commenced third party proceedings in July 2010. In its statement of claim dated 27 September 2010, the defendant pleaded that the plaintiff’s injuries were caused by the third party’s negligence and/or breach of contract in installing the fallen tiles, and claimed an indemnity from the third party in respect of any sums it might be held liable to pay or might agree to pay the plaintiff.

The third party served interrogatories and sought further and better particulars from the defendant, but obtained little information relating to the state of the Premises when the accident occurred. The defendant stated that it neither knew what materials the tiles were made from, nor the manner in which they were installed. Apparently, both the defendant and the third party had also wanted to appoint an expert to conduct a joint inspection of the Premises (after the latest renovation in September 2007) to see if there was any leftover evidence. However, the expert informed them that there was nothing he could do as the Premises had been completely changed. The third party then brought this application, contending that the defendant’s statement of claim should be struck out because the material evidence relating to the dispute had been destroyed. The plaintiff is not involved in this application.

Defendant’s lack of evidence

Counsel for the third party, Mr Adrian Ee, first submitted that the defendant had insufficient evidence to prove its claim against the third party and thus its action should be struck out. I am unable to accept this argument because whether the defendant has sufficient evidence to establish its claim is a question for the trial judge alone to determine.

Third party’s lack of evidence

Mr Ee next submitted that since the Premises had been renovated after the accident, the third party has...