Viknesh Dairy Farm Pte Ltd v Balakrishnan s/o P S Maniam and others

• Jurisdiction: Singapore
• Judge: Tan Siong Thye JC (as he then was)
• Judgment Date: 28 January 2015
• Neutral Citation: [2015] SGHC 27
• Court: High Court (Singapore)
• Docket Number: Suit No 670 of 2013
• Year: 2015
• Published date: 05 February 2015
• Hearing Date: 27 March 2014,21 March 2014,27 May 2014,28 March 2014,10 November 2014,30 May 2014,26 March 2014,25 March 2014,28 May 2014,29 May 2014
• Plaintiff Counsel: Vasudeven (Advocatus Law LLP)
• Defendant Counsel: The firstdefendant in person,Tan Cheow Hin (CH Partners),R Dilip Kumar (Gavan Law Practice LLC)
• Subject Matter: Tort,conspiracy,Agency,disclosure by agent,Ratification,unlawful acts,Contract,illegality and public policy,contract to commit a civil wrong,Injunctions,mandatory injunction
• Citation: [2015] SGHC 27

Tan Siong Thye J: Introduction

The plaintiff is Viknesh Dairy Farm Pte Ltd. The managing director of the plaintiff is Govindasamy Subbramaniyam (“PW1”) while the general manager is Rajagopal Balakrishnan (“Rajagopal”). The plaintiff leases farmland from the Singapore Land Authority (“SLA”) to operate a dairy farm (“the Farm”).

In September 2012, the plaintiff searched for a professional engineer (“PE”) to obtain a Certificate of Statutory Completion (“the CSC”) so that the farm buildings could be approved as required by the National Environmental Agency (“NEA”). Balakrishnan s/o P S Maniam, alias Tony (“PW2”), represented to PW1 that he was a PE and could assist him to obtain the CSC. PW2 told PW1 that the land had to be levelled for the purpose of the CSC. PW1 trusted PW2 to do the necessary so that the CSC could be obtained.

PW2 separately represented to Singland Transportation Pte Ltd (“D2”) and BES Construction Pte Ltd (“D3”) on different occasions that he was a PE engaged by the plaintiff to level the soil at the Farm. Thereafter, PW2 entered into separate agreements with D2 and D3 to allow them to dump earth on the Farm upon payment of an agreed fee. As a result, more than 1,700 truckloads of earth were dumped by D2 and D3 on the Farm. PW2 alleged that he received about $84,500 and $60,000 from D2 and D3 respectively without the knowledge of the plaintiff.

In this suit, the plaintiff seeks a mandatory injunction compelling the defendants to remove 1,748 truckloads of earth from its land. PW2, who is the first defendant, did not defend the action and has consented to having judgment entered against him. D2 and D3 oppose the plaintiff’s application on the basis that they had entered into legitimate agreements with PW2, who was the plaintiff’s PE and therefore had authority to contract on its behalf. Alternatively, if PW2 was not the plaintiff’s agent, they claim that the plaintiff had ratified their actions of dumping earth on its land. Therefore, they submit that the plaintiff’s application against them ought to be dismissed.

The facts

The plaintiff operates a dairy farm on a plot of leasehold land at 6 Lim Chu Kang Lane 8A, Singapore 719607.¹ Its landlord is SLA and the plaintiff’s lease expired on 20 August 2013. Both wanted to extend it.²

In September 2012, the plaintiff was directed by the NEA to engage a PE so as to obtain a CSC for the farm buildings to be approved.³ Pursuant to this, PW1 went in search of a PE and met with Pulanthi, his friend. Pulanthi explained that while he was an engineer, he was too old to do the job. Pulanthi assured PW1 that PW2 could “provide professional services and expert advice to help [him] obtain the CSC.”⁴ As a result, PW1 met up with PW2 at the Farm where Pulanthi introduced PW2 to PW1.⁵ PW2 also met Rajagopal.⁶

PW2 told PW1 that as the farm buildings were wooden structures, they were not eligible for a CSC. He instructed PW1 to seek the plaintiff’s previous engineer’s (Mr Doh) to assist in the submission of its CSC application while PW2 would prepare all the necessary paper work.⁷ It was then that PW1 informed PW2 that the plaintiff was facing financial difficulties and could not commit to a surveyor at that time.⁸ PW2 then told PW1 that he had several surveyor friends who could do the job at low cost or for free. All the plaintiff had to do was to pay a goodwill deposit for the surveyor.⁹

PW1 trusted PW2 and agreed to engage him to obtain the CSC.¹⁰ Thus PW2 was given access to the plaintiff’s land to execute his duties.¹¹

D2 and D3 are companies that specialise in earthworks.¹² PW2 asked them to transport earth excavated from their project sites to the plaintiff’s Farm. They separately agreed to pay PW2 for allowing them to offload their earth at the Farm instead of dumping the earth at authorised dumping grounds which cost more in terms of dumping fees and where dump trucks have to wait for longer periods of time to dump earth.

The plaintiff is thus bringing this suit against all the defendants for the removal of earth from the Farm. PW2 is also the first defendant but he did not contest the plaintiff’s action and is prepared to have judgment entered against him.¹³ He also became the plaintiff’s witness to support the plaintiff’s case against D2 and D3. Therefore, PW2 plays a crucial role in the plaintiff’s case. D2 and D3 disagree with the plaintiff and argue that they legitimately contracted with PW2, whom they saw as the plaintiff’s agent, to offload earth at the Farm for the purpose of levelling the soil. It is in this light that I shall set out their respective cases as well the circumstances under which D2 and D3 were engaged.

PW2’s version of the story

According to PW2, PW1 needed a PE to obtain the CSC for the Farm and hence he informed PW1 that he was a PE who could assist. As PW2 knew that the plaintiff had some financial difficulties, he suggested to PW1 that he would instruct one of his surveyor friends to conduct the survey at minimal cost. The plaintiff could pay his friend later. Thereafter, he asked for a $500 deposit to engage the surveyor and the sum was paid by the plaintiff.¹⁴

PW2 stated that he only thought of dumping earth on the plaintiff’s land in October 2012 when PW1 received a call from Lee Kong Hock (“DW1”), asking if the plaintiff had space on its land to store a few excavators and to dump earth.¹⁵ PW1 told DW1 that there was none, after which, PW2 asked PW1 about the call. PW1 then told him that DW1 was looking for a place to dump earth.

Subsequently, PW2 obtained DW1’s phone number from PW1 and called DW1. He discovered that D2 was looking for a place to dump a large quantity of earth from its projects. PW2 then obtained the contact details of Soh Eng Koon (“DW3”), D2’s director, and they colluded together to dump earth at the Farm so that D2 could save some costs from dumping earth at the approved staging grounds while PW2 could make some money out of this situation. D2’s payments to PW2 were made on the basis of dumping tickets which were collected by one David, D2’s excavator operator, or himself and then submitted to D2 for payment.¹⁶

PW2 claimed that D2 agreed to the arrangement despite knowing that the land belonged to SLA and that PW2 had no authority to permit the dumping of earth on the plaintiff’s Farm.¹⁷ Since D2 had: (a) never met PW1; (b) never formalised any agreement with the plaintiff; (c) made all the payments by cash or cheque to PW2;¹⁸ (d) never received receipts from the plaintiff; (e) known that the land belonged to SLA by virtue of the fact that it was a company specialising in earthworks;¹⁹ and (f) agreed with PW2 to take the chance that SLA would never inspect the land,²⁰ D2 had conspired with PW2 to injure the plaintiff and therefore was obliged to remove the earth.²¹

With respect to D3, PW2 claimed that around the time that D2 was dumping its final loads of earth on to the plaintiff’s land, Lye Ah Hing (“Ah Lam”) and Jason Lye Wee Boon (“DW5”), directors of D3, contacted him. They proposed that earth be dumped on the Farm.²² This was because they had heard from DW1 that D2 had dumped a large volume of earth on the plaintiff’s Farm. D3 wanted to do the same on the same terms at the plaintiff’s expense.²³ Just like D2, D3 agreed despite knowing that the land was SLA’s and that PW2 was not authorised to dump earth on the plaintiff’s land.

D2 and D3’s version of the story

There are similar features in D2 and D3’s cases. First, both of them made cash or cheque payments to PW2 instead of the plaintiff. They believed that PW2 was authorised by the plaintiff to collect payment on its behalf, ²⁴ although this is disputed by PW2. Second, no receipts were given by the plaintiff to D2 and D3.²⁵

D2 was the first company that was engaged by PW2. Its case is that PW2 had arranged for DW3 to meet DW1 at the Lim Chu Kang area.²⁶ At that meeting, PW2 represented himself to be the PE engaged by the plaintiff to obtain the CSC for the farm buildings. DW3 accepted PW2’s representation without verification from PW1.²⁷ In any event, PW2 claimed that he needed earth so as to stabilise the land for drainage works.²⁸ After the meeting, DW3 agreed to dump earth on the plaintiff’s land and D2 would pay PW2 $65 per lorry load of earth.²⁹

It might seem strange that D2 was willing to pay PW2 to dump earth instead of vice versa. This is because in the construction industry, it is a business cost to dispose of unwanted earth from construction sites. Earth is usually taken to two places in Singapore where it is dumped for a fee. DW3 would save on his business cost by dumping on the plaintiff’s land as paying PW2 $65 per lorry load of earth was cheaper than dumping earth at the other approved sites.

Pursuant to the agreement, DW3 sent an excavator to the plaintiff’s land on 1 November 2012 to organise the dumping process. It commenced earth dumping in front of the farm office and next to the barns from December 2012 to 26 January 2013, when it eventually ran out of earth. D2 paid PW2 the agreed sums on the understanding that he was the plaintiff’s agent and would later pay the plaintiff.³⁰ Alternatively, if PW2 was not the agent of the plaintiff, the latter had ratified his acts and is therefore precluded from claiming against D2.³¹

D3’s case is that in March 2013, it had unwanted earth from Mandai Link and Yishun which it had to remove. After hearing that the plaintiff was looking for soil to adjust the soil level on his farm, Jacky Lye Cheow Hui (“Jacky Lye”), its General Manager, approached PW2 together with Ah Lam and DW5. They understood that PW2 was authorised to act on the plaintiff’s behalf to dump earth onto the Farm. Subsequently, PW2 entered into a written agreement to allow D3 to dump earth on the Farm and for him to receive about $18,000.³² Later when more earth was needed, D3 agreed to dump more earth for another $42,000.³³ In total, D3 dumped...