Vertex Far East Pte Ltd v S A C (PTE) LTD

• Jurisdiction: Singapore
• Judge: Loo Ngan Chor
• Judgment Date: 28 June 2010
• Neutral Citation: [2010] SGDC 272
• Court: District Court (Singapore)
• Hearing Date: 12 February 2010,06 November 2009,09 October 2009,23 November 2009,12 July 2010,22 December 2009,28 June 2010
• Docket Number: District Court No 4057 / 2008 / N, District Court Appeal No 34 of 2010
• Plaintiff Counsel: Melvin Chan (TSMP Law Corporation)
• Defendant Counsel: Selvaraj (Myinstoe & Selvaraj)
• Published date: 15 February 2011

District Judge Loo Ngan Chor: Background:

By a letter of acceptance¹ dated 2nd November 2007, the Housing and Development Board appointed the plaintiff as main contractor for site clearance and infrastructure works for a site at Lorong Halus C1 (“the project”) to be used for the stockpiling of sand and granite. The main contract was dated 18th April 2008². The consideration for the main contract was $1,166,000.00.

The defendant quoted to the plaintiff in their letter³ dated 2nd January 2008 to provide some works within the project. The parties signed a sub-contract agreement⁴ dated 5th March 2008 (“the sub-contract”), which the plaintiff confirmed on 6th March 2008. In so confirming, the plaintiff made a hand-written note on page 3 of the sub-contract which read “letter of award to be issued. Works to comply in all respects to HDB contract specifications.” No letter of award was issued but this does not matter for this case. The terms of the main contract were not incorporated, except for the specifications, so far as relevant. There are none.

The sub-contract provided that the defendant would supply and install two units of weighbridges, supply a new office cabin and a new security post. The sub-contract also required the supply of a variety of peripheral items. The value of the sub-contract works (“the works”) was $79,500.00.

The sub-contract provided that the defendant would deliver the weighbridges, the new office cabin and security post within ten weeks from the plaintiff’s “firm order” and that the defendant would have an “installation time includ(ing) testing, calibration, and commissioning” of approximately 10 to 12 days.

The plaintiff’s case is that the defendant had an extended completion time for the works to 31st July 2008⁵. The defendant agrees⁶. (Quite parenthetically, I should mention that there was some argument over when the contracted dates for delivery and completion of the works were, owing to a factual dispute over when the plaintiff paid a “30% deposit on confirmation of the order”.⁷ The plaintiff’s position was that there was a firm order from the date when the plaintiff confirmed the sub-contract on 6th March 2008, so that delivery of items was due by 15th May 2008 and the works were to be completed by 27th May 2008. The defendant’s position was that time ran from 3rd April 2008 (which was when they said the plaintiff paid the deposit, a date which was the source of yet more dispute), so that their delivery of items fell on 12th June 2008 and the works were to be completed by 24th June 2008.) It is quite clear that the agreed extended completion date of 31st July 2008 rendered the dispute over the time-lines irrelevant.

The HDB’s consultant for the project was Surbana International Consultants Pte Ltd (“Surbana”). Surbana eventually issued their certificate of substantial completion on 26th November 2008⁸, which stated that the date of substantial completion of the project was 16th October 2008. An interim final account⁹ for the project, signed by Surbana, did reflect a sum of $52,000.00 by way of “actual liquidated damages”.

It is common ground that the security post and the cabin office were delivered on 19th June 2008. As for the two weighbridges, the defendant’s position is that these were delivered on 18th June 2008 because that was the date of their invoice. The plaintiff says that the weighbridges in fact comprised a number of constituents and that the defendant only completed delivery in October 2008.

The pleadings:

In this action, the plaintiff’s claim is that the defendant failed to complete the works by 31st July 2008 and or that the works were deficient in a number of ways¹⁰, owing to which they suffered damage. The plaintiff’s particulars of defects were these: Items delivered were not of acceptable quality and or were not fully equipped for testing or commissioning including sub-standard cabling; The air-conditioning opening was wrongly located on both the office cabin and security post; The exhaust fan was installed on the right instead of the left side of the security post; There had been no ‘manhole’ in the centre of the weighbridges for future maintenance by the HDB; The pitch roof for the “dispatch office” (which parties took to refer to the office cabin) was too low so that tipper truck drivers were not able to open their truck doors to collect delivery orders.

The plaintiff thus claims: $52,000.00, which was a sum in liquidated damages which the plaintiff had to pay the HDB under the main contract¹¹; Unspecified damages for the attendance of the plaintiff’s project engineer and supervisor on site to oversee the defendant’s allegedly outstanding works; additional preliminaries due to delayed completion and the cost of rectification of the defective works¹² (collectively “the wasted expenses claim”). As these particulars just mentioned (at [8] and [9(b)]) were not assigned a dollar value, the plaintiff was thus claiming general damages for losses occasioned by the defendant’s allegedly outstanding works and for rectifying their defective works.

The Defence and Counter-claim (Amendment No. 1) states that the delays (if any) were in fact caused by the plaintiff. The following particulars of delays were set out: The plaintiff only secured electrical supply after 21st October 2008, without which the defendant claimed they could not test, commission or install the items. The defendant were unable to configure the computer system for the weighbridge because the plaintiff failed to furnish the names of the tenants or persons to whom the (weighbridge) software was licensed despite numerous email reminders until on or about 16th October 2008.¹³ Further particulars¹⁴ of delay were set out at trial, with my leave.

In respect of the alleged deficiencies ([8] above) the defendant states that: Items were delivered by mid-June 2008¹⁵; The plaintiff’s licensed electrical worker had never complained of any alleged sub-standard cabling and it was only on or about 16th September that he requested for upgrading of electrical fittings and the DB box¹⁶; The positions of the air-conditioning openings and exhaust fan had been shown in their drawings approved by the plaintiff. It was only in September 2008 that the plaintiff wanted the positions of these two items changed¹⁷; The HDB did not require a manhole¹⁸; The height of the pitch roof of the office cabin depended on the thickness of the weighbridge foundation which the plaintiff laid.

The defendant counter-claims for the payment of the sum of $17,013.00, which is 20% of the value of the sub-contract, including GST, these being for amounts they invoiced the plaintiff on 11th July 2008 and 25th July 2008.¹⁹ I should mention that the plaintiff had paid 30% of the value of the sub-contract as a deposit and 50% of the value of the sub-contract, which was contractually due upon delivery of the items, pursuant to the defendant’s invoice dated 18th June 2008 (referred to at [7] above).

The plaintiff’s responses to the defence and counter-claim were these: While agreeing that the plaintiff had the duty to provide the electricity, the plaintiff maintained that the defendant “only completed their delivery and installation and were only in the position to test, calibrate and or commission the said goods in or about late October 2008”; While denying that the defendant failed to configure the software for the weighbridge computer system because the plaintiff had not furnished the tenant’s particulars, the plaintiff maintained that the defendant was not in a position to finalise the software until in or about October 2009;²⁰ Denying that the licensed electrical worker only required up-grading in September, the plaintiff maintained that the defendant was not able to finalise the software until in or about October 2008²¹; The plaintiff denied that they had approved drawings, stating that by their email of 8th May 2008, the plaintiff replied that they had no objections to the drawings “subject to full compliance with the HDB specifications which are also known to the defendant.”²² While agreeing that the plaintiff did build the weighbridge foundation, the plaintiff stated that this was in accordance with requirements provided by the defendant.²³

The dispute in gist:

It would be useful to outline the scope of the parties’ disagreement. In respect of the issues of delay, these concerned really the two weighbridges and one cabin office. The plaintiff saw the weighbridges and the cabin office as a single composite item, so that lateness the completion of either meant that there was lateness overall. The defendant’s position is that the delays were caused by the plaintiff’s failure to provide timely instructions or changing their instructions. In respect of the alleged defects, these mainly concerned the security office and the cabling of the cabin office.

Purpose of the weighbridges:

The project involved a stockpiling site. Loaded trucks moving in and out of the site were expected to be weighed on either of the two weighbridges so that, nett of their unladen weight, the weight of their load would be known. Hence, as might be envisaged, each weighbridge comprised a steel platform mounted over load cells for weights to be taken, and both were linked to one computer system with a printer (to be housed in the cabin office) and a display monitor so that the weights read by the weighbridges would be known, recorded and receipted.

The evidence and my findings: Defects:

For the defects, the plaintiff says that they incurred $7000 to put right the defects, as follows²⁴: In respect of the roof of the cabin office, the plaintiff said that they spent $1400.00 engaging another contractor to cut the side of the roof which, the plaintiff said, were drawn and intended to be flushed with the support purlin. As the security post was not bolted to the ground, as the...