TSB Global Distributions Pte Ltd v Pure Projects (Singapore) Pte Ltd

• Jurisdiction: Singapore
• Judge: Lee Li Choon
• Judgment Date: 30 December 2021
• Neutral Citation: [2021] SGDC 290
• Court: District Court (Singapore)
• Hearing Date: 02 September 2021,26 July 2021,02 November 2021,27 July 2021,19 February 2021
• Docket Number: District Court Suit No 409 of 2020
• Plaintiff Counsel: Sureshan s/o T Kulaisingam and Samuel Ang Rong En (Sureshan LLC)
• Defendant Counsel: Chia Swee Chye Kelvin and Tan E Wei Bernard (Lumen Law Corporation)
• Subject Matter: CONTRACT,Breach,Consideration,Failure,RESTITUTION,Failure of consideration,Unjust enrichment
• Published date: 02 March 2022

District Judge Lee Li Choon: Background Facts

The Plaintiff’s Claim and the Defendant’s Counterclaim in this suit involves the project relating to the conversion of the then Marina Bay Sands Theatre into three venues, namely, the Marquee nightclub, the KOMA restaurant and Avenue, a nightclub and restaurant. Marina Bay Sands (“MBS”) was the employer or owner of the said project and the Defendant was the Project Manager with its role described as “to basically, facilitate all the design and construction of the Sands theatre conversion of the 3 venues”¹. The Plaintiff was engaged by the Defendant as a subcontractor for the conversion of one of the three venues - the Marquee nightclub (“the Project”). For the Marquee nightclub conversion (“the Project”), ISOTeam TMG Pte. Ltd (“ISOTeam”) was the main contractor, and the structural engineer was Arup Singapore Pte Ltd (“Arup”)².

Pursuant to the engagement of the Plaintiff for the conversion relating to the Marquee nightclub, the Defendant first engaged the Plaintiff on 21st December 2018 for the Plaintiff to supply, deliver and install Milos Trusses on the site pursuant to “Quotation No. 2018-8128-PP-Milos-Truss” (“the Milos Truss Works” / “Milos Truss Quotation”). Shortly thereafter, the Defendant engaged the Plaintiff on 28th December 2018 to carry out delivery, installation, rigging, testing, and commissioning of the Movecat hoists on the Project site pursuant to “Quotation 2018-8135-PP-MCMQ.3” (“the Movecat Hoist Works”/ “Movecat Hoist Quotation”). Thereafter, on 20th February 2019, the Defendant engaged the Plaintiff to obtain certifications from a Ministry of Manpower Singapore (“MOM”) registered Professional Engineer (“PE”) with respect to the Movecat Hoist Works (“PE Certification of Movecat Hoist Works”) and with respect to the lighting trusses and supporting system (“PE Certification of Supporting System”).

On 7 March 2019, the Plaintiff’s representative Ted Singh (“Mr Singh”) and the Defendant’s representative Jon Coney (“Mr Coney”) both signed off on a Handing/Taking Over Checklist (“the HTO Document”).

A few days after signing off on the HTO Document, on 11 March 2019, an incident occurred which resulted in the emission of water causing damage to the works, fixtures, and other properties on the Project site (“Water Damage Incident”). As a result of the Water Damage Incident, on 14 March 2019, the Defendant engaged the Plaintiff to carry out the replacement of the hoist system for the Marquee nightclub via “Quotation No. 2019-8140-PP-Damage-Hoist System” (“the Hoist Replacement Works” / “Hoist Replacement Quotation”).

On 29th March 2019, the Defendant engaged the Plaintiff to perform works on the Funktion One System on the Project site pursuant to Quotation No. 2019-19138-PPFunktion One System (“the Funktion One System”). The Plaintiff issued Tax Invoice No. 19117 in respect of the works under this quotation on the same day. Shortly prior to the planned opening of the Marquee nightclub on 12th April 2019, the Plaintiff provided services including the re-filling of “2x Nitro Gas”, supply of “2 x Tanks 1x 3L 1 x 2L” and “MDG HAZE Liquid 20L” as well as manpower to carry out certain urgent site works required for the opening and issued Tax Invoice 19120.A on 12th April 2019 in respect thereof.

On 12 April 2019, the Marquee nightclub opened as planned.

The Plaintiff’s Claim

The Plaintiff’s Claim is in respect of Tax Invoice No. 19117 and Tax Invoice 19120.A. It is not disputed that the Defendant had not made any payment due under these two invoices.

In respect of the Plaintiff’s claim under Tax Invoice No. 19117, the Defendant avers in its defence that the works were incomplete in that the Plaintiff has not provided any certifications for the works³.

In respect of the Plaintiff’s claim under Tax Invoice 19120.A, the Defendant avers that it did not order for the works performed by the manpower stated therein and is therefore not liable to pay to the Plaintiff the alleged sum of $15,450.80 under this invoice⁴.

The Defendant’s Counterclaim

It is not disputed that the Defendant has made payment to the Plaintiff in respect of all the invoices issued for the Milos Truss Works, Movecat Hoist Works, PE Certification of Movecat Hoist Works, PE Certification of Supporting System and the Hoist Replacement Works, amounting to over $1.1 million or 96% of the total sum invoiced by the Plaintiff.

In response to the Plaintiff’s Claim, the Defendant counterclaims for damages for breach of contract and/or failure of consideration and unjust enrichment in relation to the Milos Truss Works, Movecat Hoist Works, PE Certification of Movecat Hoist Works, PE Certification of Supporting System and Hoist Replacement Works on the following grounds: In respect of the Milos Truss Works, the Defendant alleges that the Plaintiff had breached its contractual obligations in failing to supply and deliver milos trusses in matte black colour⁵. In respect of the Movecat Hoist Works, the Defendant alleges that the Plaintiff was in breach in that it had failed to carry out the Movecat Hoist Works in a good and workmanlike manner as it had failed to ensure that its installation was structurally safe, and the Defendant had to engage ISOTeam to rectify the installation and thereby suffered loss and damage⁶. In respect of the PE Certification of Movecat Hoist Works, the Defendant alleges that the Plaintiff was in breach or that there was a failure of consideration as the Plaintiff had failed to procure MOM certificates with the correct ownership details⁷. In respect of the PE Certification of Supporting System, the Defendant alleges that the Plaintiff has failed to provide the necessary certification (i.e., certify the weight which the anchor point could hold) and as such, there was a failure of consideration for the Defendant’s payment made to the Plaintiff⁸. In respect of the Hoist Replacement Works, the Defendant alleges that the Plaintiff was in breach in failing to deliver items 1 and 3 of the Hoist Replacement Quotation. The Defendant also alleges that the Plaintiff had, by its conduct and in its email dated 19 June 2019, evinced an intention not to perform its contractual obligations in an essential or substantial respect, thereby leading the Defendant to believe that the Plaintiff no longer intends to be bound by its contracts. In this regard, the Plaintiff is in repudiatory breach and such breach has been accepted by the Defendant and the Defendant is entitled to claim for damages arising from such repudiatory breach. Alternatively, the Defendant also alleges that there is a failure of consideration and/or unjust enrichment in respect of the Hoist Replacement Works as items 1 and 3 (a substantial part of this contract) were never delivered⁹.

The Defendant also alleges that it is entitled to the refund of $28,034 that was paid to the Plaintiff on 18 March 2019 under Quotation 019-19135-PP-MOVECAT (“the Movecat Operator Quotation”) as the service was not provided and/or was abortive because the replacement hoists were not delivered.

In addition, the Defendant alleges that there has been overcharging in relation to the Plaintiff’s Tax Invoice Nos. 19112, 19114 and 19119 in the respective amounts of $18,944.78, $17,580.10, and $10,700.00 (totalling $47,224,88) as the said charges are in respect of Quotation 2018-8135-PP-MCMQ.3 (i.e., the Movecat Hoist Quotation) for which the Defendant has allegedly already paid under the Plaintiff’s Tax Invoice No. 19101¹⁰. The Defendant therefore says there is unjust enrichment, and the Defendant is entitled to claim back the amounts it had paid under these invoices.

Plaintiff’s response and defence to the Defendant’s Counterclaim

In respect of the Defendant’s counterclaim, the Plaintiff counters that both parties’ representatives had signed off on the HTO Document on 7 March 2019 confirming with respect to the list of equipment delivered and installed by the Plaintiff as follows:

“The above works has been completed in respect as per the agreement and the Client’s directives and necessary requirements. And no rectification works is found during the handing/taking over of the work. The works are handed to (the Defendant) in a good and satisfactory condition.”

The Plaintiff also avers that by signing the HTO Document, the Defendant has also confirmed that,

“The system programme, configuration, testing and commissioning was successfully carried out and no rectification work is found during the system programme, configuration, testing and commissioning. The system programme, configuration, testing and commissioning of the work are taken over by (the Defendant) in a good and satisfactory condition.”

The Plaintiff avers that by reason of the HTO Document, the Defendant is estopped from raising the allegations in its counterclaim. The Plaintiff further avers that the issues belatedly raised by the Defendant in response to the Plaintiff’s claim for payment under Invoice Nos. 19117 and 19120.A after it had made payments without issue are but afterthoughts¹¹.

Specifically, in respect of each item of the Defendant’s counterclaim, the Plaintiff avers as follows: In respect of the Milos Truss Works, the Plaintiff says that the Defendant’s representative, Mr Coney was aware that the trusses delivered were not in matt black colour but silver colour. He had nevertheless directed the Plaintiff to proceed to install the trusses. Thereafter, the Defendant requested the Plaintiff to procure black fabric to cover the silver trusses and pursuant to that, the Plaintiff’s Quotation 2019-19140-PP-Black-JC (“Black Fabric Quotation”) was accepted by the Defendant. The Defendant has made payment of $10,432.50 under Invoice No. 19118 without raising any issue¹². In respect of the Movecat Hoist Works, the Plaintiff avers that in respect of Quotation 2018-8135-PP-MCMQ.3 (the Movecat Hoist Works...