Wishing Star Ltd v Jurong Town Corp

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 14 August 2007
• Neutral Citation: [2007] SGHC 128
• Court: High Court (Singapore)
• Published date: 21 August 2007
• Year: 2007
• Plaintiff Counsel: Tan Liam Beng and Eugene Tan Kon Yeng (Drew & Napier LLC)
• Defendant Counsel: Ho Chien Mien and Jagateesan Sathiaseelan (Allen & Gledhill)
• Citation: [2007] SGHC 128

14 August 2007 Judgment reserved.

Choo Han Teck J:

Introduction

1 The issue of liability was determined previously and the facts concerning that issue are found in the previous judgment of this court in Wishing Star Ltd v Jurong Town Corporation [2005] 1 SLR 339 and the Court of Appeal’s decision is reported in [2005] 3 SLR 283. Pursuant to the latter decision, the defendant proceeded to have damages assessed in respect of its counterclaim. The plaintiff was awarded the contract on 14 June 2002 for façade work for the project commonly referred to as “The Biopolis Project” which comprised seven tower blocks. The contract was terminated by the defendant on 9 September 2002 on the ground of various misrepresentations made by the plaintiff to it. Consequently, the defendant engaged a new contractor, Bovis Lend Lease (“BLL”) to take over and complete the job. The damages claimed by the defendant were set out in counsel’s written closing submissions at paragraph 6.1 as follows –

(a) The sum of S$7,810,000.00 being the difference in the value of the WSL Contract and the value of contract between JTC and Bovis Lend Lease (“BLL”), being the sub-contractor engaged by JTC to carry out the Façade Works subsequent to WSL’s termination (the “BLL Contract”);

(b) The sum of S$2,437,120.00 [amended to S$1,036,983.00 at paragraph 55.3] being the expenses incurred by JTC as a result of JCPL administering the BLL Contract;

(c) The sum of S$18,223.97 being the expenses for the 3 inspection trips to China which took place in the course of the WSL Contract;

(d) The sum of S$313,600.00 being the expenses incurred by JTC as a result of JCPL having to attend to WSL in the course of the WSL Contract;

(e) The sum of S$8,000.00 being the costs of engaging a surveyor for JTC’s inspection visit to WSL’s facilities in China on 3 September 2002; and

(f) The sum of S$7,700.00 [amended to S$3,003.00 at paragraph 63.1] being the abortive costs for Site Occupational Licenses.

2 The plaintiff’s first challenge was to the defendant’s counterclaim on the ground that it had failed to mitigate its loss. The failure to mitigate was evidenced, in counsel’s opinion, in five areas. First, the defendant did not appoint Compact Integrate Marketing Pte Ltd (“Compact”) or Rotol Singapore (“Rotol”) as third party sub-contractors. Secondly, the defendant failed to novate the contract to a company under the defendant’s control or influence, for example, Jurong Consultants Pte Ltd (“JCPL”). Thirdly, the plaintiff failed to engage SB Façade as replacement contractors. Fourthly, the defendant overpaid BLL by $4,309,992.00 because it did not engage BLL on the latter’s first quotation of $57,500,008.00 and accepted its later quotation of $61,810,000.00. Fifthly, the defendant’s agent, JCPL failed to negotiate for lower prices for the granite materials used. There was merit in the defendant’s complaint that the allegation of a failure to mitigate was made very late. The plaintiff’s reply and defence to counter-claim were filed on 7 March 2003 and the assessment of damages scheduled to be heard from 10 April 2006. The application to amend the statement of claim to include the allegation of failure to mitigate was made on 7 April 2006. In the event, leave was granted to amend and so the defendant’s complaint that this defence was an afterthought is not significant if the plaintiff can show that the defendant did not mitigate. I therefore turn to the plaintiff’s grounds.

3 It appeared that Compact and Rotol were established companies that had the ability to complete the job, but what was disputed was the capacity of either company to do so at the time. The burden was on the plaintiff to show that either of them was prepared and ready to take over if offered the job as a sub-contractor or a direct contractor, but no evidence had been adduced other than the claim by the plaintiff itself. On that score, I am not satisfied that the burden was discharged. The plaintiff alleged that the defendant ought to have appointed Synergy or PrimeWide to take over the façade work. The evidence showed that during the crisis of confidence, the defendant considered various companies as alternatives and Synergy and PrimeWide were among those considered, but were not appointed because the defendant lacked the confidence in appointing any of them. The same applied in respect of the allegation that the defendant ought to have appointed SB Façade to take over because the latter had submitted the second lowest tender, and was pipped by the plaintiff with the lowest. The evidence, however, showed that the defendant was not...