Yenty Lily (trading as Access International Services) v ACES System Development Pte Ltd

• Jurisdiction: Singapore
• Judge: Judith Prakash J
• Judgment Date: 18 October 2012
• Neutral Citation: [2012] SGHC 208
• Court: High Court (Singapore)
• Docket Number: Suit No 679 of 2009 (Registrar’s Appeal No 247/2011)
• Published date: 23 October 2012
• Year: 2012
• Hearing Date: 14 October 2011
• Plaintiff Counsel: Lee Mun Hooi and Lee Shi Hui (Lee Mun Hooi & Co)
• Defendant Counsel: N. Sreenivasan and Valerie Ang (instructed) and Mimi Oh (Mimi Oh & Associates)
• Subject Matter: Damages,Measure of damages,Contractual breach,Tort,Wrongful detention of property belonging to another,User principle
• Citation: [2012] SGHC 208

Judith Prakash J:

I have before me an appeal against the assessment of the damages incurred by the plaintiff in the action as a result of the defendant’s breach of contract and tortious actions. The damages were assessed in August last year and the plaintiff, being dissatisfied, has appealed against that assessment.

Background

The parties herein are both carrying on business in the construction industry. The defendant, ACES System Development Pte Ltd, was appointed the main contractor in respect of the project known as “Proposed Improvement works to metal roofs for a total of 39 blocks of flats at Bishan-Toa Payoh North and Toa Payoh Central Divisions” (“the project”) by the Bishan-Toa Payoh Town Council in the first half of 2008.

The defendant needed mobile platforms in order to carry out its work in relation to the project. On 10 July 2008, the defendant entered into a contract (“the subcontract”) with the plaintiff, Lily Yenty trading as Access International Services, whereunder it awarded the plaintiff certain subcontract works. The subcontract works required the plaintiff to provide mobile platforms and to erect and dismantle these platforms at various locations at the site of the project where the defendant was carrying out work.

The subcontract provided that the defendant would pay the plaintiff a lump sum of $850,000 in respect of the subcontract works. The plaintiff’s obligation was to provide six sets of single mast climbing platforms and accessories (collectively “the platforms”) for a maximum period of 16 months and to erect and dismantle and move the same as required. It was also agreed that the lump sum price of $850,000 would be based on 39 blocks and that the plaintiff would be paid $21,795 for each of the first 38 blocks and $21,790 for the last block. An important provision of the subcontract was that the defendant would provide the plaintiff with financial assistance to enable the plaintiff to purchase the platforms and would do this by establishing a letter of credit in favour of the vendor of the platforms. The plaintiff was obligated to repay the purchase price and the charges incurred by the defendant in relation to the letter of credit by 12 equal monthly instalments. It was further provided that such instalments would be deducted from the progress payments to be made by the defendant under the subcontract.

Pursuant to the subcontract, the platforms were purchased and the plaintiff proceeded to carry out the subcontract works in accordance with the requirements of the defendant. The plaintiff submitted progress claims to the defendant but the defendant failed to pay these in full. By the time the plaintiff submitted her eleventh progress claim in July 2009, there was an outstanding balance of over $188,000 due to her. The plaintiff considered such non-payment to be a repudiation of the subcontract. On 3 July 2009, the plaintiff informed the defendant that as the outstanding progress payment had not been settled by the due date, she was unable to carry out further works on the site.

The defendant responded the next day to state that the plaintiff was not released from any risk or obligations imposed on or undertaken by the plaintiff as a subcontractor and, if the plaintiff failed to proceed with the work, the defendant would not hesitate to engage a third party to do so and would recover the cost of employing such third party from the plaintiff. On 7 July 2009, the plaintiff wrote to the defendant noting that it had continued to use the platforms on site and stating that she would hold the defendant responsible for any loss or damage to the same. The plaintiff further stated that she would be removing the platforms from the site immediately. On the same day, the defendant responded by stating that as the platforms were exclusively intended for the execution of the project, the plaintiff had no right to remove the same without the defendant’s consent. The defendant further emphasised that the platforms had been fully paid for by the defendant and therefore remained the property of the defendant. On 11 July 2009, the defendant terminated the subcontract.

These proceedings were commenced in August 2009. The plaintiff claimed the outstanding amount of $188,404.30, loss of profits, the return of the platforms and damages for wrongful detention of the same. The plaintiff averred in her statement of claim that she was the legal and beneficial owner of the platforms. In its defence, the defendant denied liability on various grounds and stated that it had purchased and paid for the platforms for use at the site of the project. It denied that the plaintiff had purchased the platforms with the financial assistance of the defendant and further put her to proof of her allegation that she had made six monthly instalment payments towards the purchase price of the platforms. The defendant specifically denied that the plaintiff was both the legal and beneficial owner of the platforms when she had not financed or purchased the platforms or even completed and handed over the works to the defendant.

The action came on for hearing before Lee Seiu Kin J (the “trial judge”) in May 2010, and after hearing the evidence and submissions which were completed on 4 October 2010, it was adjudged by the trial judge that: The defendant had wrongfully repudiated the subcontract and the plaintiff had been entitled to terminate the same by her letter of 3 July 2009; Interlocutory judgment had to be entered for the plaintiff for damages to be assessed on the basis of the lump sum of $850,000 less: Cash payments received by the plaintiff from the defendant totalling $281,800; The cost of the six platforms (inclusive of banking and workers’ charges) totalling $227,600.70; and Costs that would have been incurred by the plaintiff to complete the remaining blocks of the project, ie, blocks 228 and 235 (subject to proof of completion or non-completion) plus the six blocks in respect of which works had not commenced at time of termination as the same were assessed by the Registrar. It was declared that the plaintiff was the legal and lawful owner of the platforms and that there would be interlocutory judgment for her for damages to be assessed for the defendant’s wrongful retention of the platforms as from 31 January 2010. The plaintiff was awarded interest at the rate of 5.33% per annum on the sums found due and payable to her by the defendant with the date from which the interest was to run to be decided by the Registrar. The plaintiff was also awarded costs of the action.

The defendant only returned the platforms to the plaintiff on 23 October 2010. Prior to that, the defendant had kept the platforms in storage at the warehouse of WYN2000 Transport & Container Services Pte Ltd (“WYN2000”). The platforms had been moved there in December 2009 after work on the project was completed. It should be noted that in deciding that the defendant’s continued retention of the platforms was wrongful as from 31 January 2010, the trial judge had taken into account the fact that, under the subcontract, the plaintiff’s obligation was to make the platforms available to the defendant for a period of 16 months and this period only ended on 31 January 2010.

The assessment

Following from the interlocutory judgment obtained by the plaintiff, the Assistant Registrar (“AR”) who heard the assessment was faced with the task of determining the following: The costs that would have been incurred by the plaintiff to complete work on the remaining blocks of the project; The extent to which the platforms had been damaged or lost whilst in the possession of the defendant and the amount payable to the plaintiff in respect of such loss and damage; and The quantum of damages that should be awarded to the plaintiff in respect of the wrongful retention of the platforms.

The AR made the following findings: That the plaintiff would have incurred a further $52,124.11 in expenses had she completed the remaining blocks of the project. The AR found that a sum of $4,626.90 had already been paid by the plaintiff in relation to such costs and therefore deducted the same from the sum of $52,124.11. Thus, the sum deductible as costs of completion was $47,497.21. The AR accepted that the best evidence of the inventory left by the plaintiff on the site in July 2009 was contained in the report of the survey of the platforms and their accessories conducted by Insight Marine Services Pte Ltd (“Insight”) on 23 October 2010 at the open yard in front of the warehouse of WYN2000. On the basis of this survey report, the AR found that the defendant would have to pay the plaintiff €9,420.70 for damage and loss in respect of the inventory. She allowed a further sum of $3,648 for maintenance and servicing of the platforms after the plaintiff retrieved them from the defendant and $100 as an amount payable to WYN2000. As for the plaintiff’s claim for loss of rental and profit arising from the wrongful detention of the platforms, the AR awarded nominal damages of $100 on the basis that the plaintiff had failed to adduce sufficient evidence to prove her actual loss. The defendant was to pay the plaintiff interest at 5.33% to run on the total award from the date of the writ of summons up to the time of any interim payment by the defendant and thereafter interest at 5.33% on the remaining balance until payment.

The plaintiff was dissatisfied with all of the above holdings and therefore filed the present appeal (Registrar’s Appeal No 247 of 2011). The defendant was dissatisfied with the decision on interest and filed a cross-appeal in that respect (Registrar’s Appeal No 248 of 2011) but, at the start of the hearing of the appeal, counsel informed me that the defendant was not proceeding with its cross-appeal.

The appeal Costs of completing the project

One of the main disputes between the parties in regard to...