Yip Holdings Pte Ltd v Asia Link Marine Industries Pte Ltd

• Judgment Date: 13 October 2011
• Date: 13 October 2011
• Docket Number: Suit No 399 of 2008 (Registrar's Appeals Nos 389 of 2010 and 391 of 2010)
• Court: High Court (Singapore)

Yip Holdings Pte Ltd

Plaintiff

and

Asia Link Marine Industries Pte Ltd

Defendant

[2011] SGHC 227

Belinda Ang Saw Ean J

Suit No 399 of 2008 (Registrar's Appeals Nos 389 of 2010 and 391 of 2010)

High Court

Damages—Assessment—Scrap value of crane deducted from market value of crane—Damages awarded in full—Whether defendant should take over crane ‘as is, where is’

Damages—Assessment—Value of crane assessed by reference to its market value at time and place of destruction—Market unable to supply any close replica of or suitable replacement for crane—Whether market value of crane should be assessed by reference to value of crane at time and place of destruction

Damages—Mitigation—No plea of mitigation in defence—Whether mitigation of damages as defence had to be properly pleaded and proved

Damages—Rules in awarding—Ascertainment difficult or impossible—Burden of proving entitlement to damages—Whether court had to adopt flexible approach with regard to proof of damage

Damages—Rules in awarding—Ascertainment difficult or impossible—Whether economical to repair crane—Whether crane was constructive total loss

Suit No 399 of 2008 concerned appeals from Notice of Assessment No 18 of 2008 (‘NA 18’). NA 18 concerned the assessment of damages and costs by the Registrar pursuant to Lai J's decision on liability given on 5 June 2009 (see Yip Holdings Pte Ltd v Asia Link Marine Industries Pte Ltd [2009] SGHC 136 (‘Yip Holdings v Asia Link’)).

In Yip Holdings v Asia Link,interlocutory judgment was entered in favour of Yip Holdings Pte Ltd (‘the Plaintiff’). The Plaintiff claimed damages for breach of contract in relation to damage caused to the Plaintiff's American Hoist 9280 crane (‘the Crane’) that was kept at the premises of Asia Link Marine Industries Pte Ltd (‘the Defendant’) pursuant to an oral agreement made in 1999 (seeYip Holdings v Asia Link at [107] for the terms). The Defendant admitted that on 17 February 2007, the Plaintiff had requested access to the Crane in order to facilitate its removal; instead, and in express breach of contract, the Defendant had instructed that the Crane be moved to another yard belonging to Haruki Machinery Pte Ltd (‘Haruki's yard’). Lai J found that the Crane was unilaterally moved from the Defendant's premises to Haruki's yard on 18 April 2007; that the Plaintiff had no prior knowledge of the Defendant's instructions to Haruki Machinery Pte Ltd (‘Haruki’); and that the Defendant did not inform the Plaintiff that the Crane had been moved to Haruki's yard until 7 May 2007. Haruki had by then demobilised and dismantled the Crane, purportedly to carry out repairs to the Crane. The Crane was left in the open in its dismantled state at Haruki's yard, resulting in damage to the Crane.

NA 18 was heard before an assistant registrar (‘AR’) over several tranches. The AR's decision on the quantum of damages recoverable was given on 15 September 2010 (‘the Order of 15 September 2010’). The AR awarded:

1. (a) damages to the Crane at US$285,000;

2. (b) loss of chance of rental at US$48,000;

3. (c) cost of torque converter at US$6,000; and

4. (d) outstanding amount on the Manitowoc crane at S$65,715.

The AR also awarded interest at 5.33% per annum from the date of the writ of summons to the date of assessment with costs of the assessment fixed at S$53,000 excluding disbursements.

Both parties were dissatisfied with the quantum of damages assessed by the AR and subsequently filed notices of appeal to a judge in chambers. Registrar's Appeal No 389 of 2010 was filed by the Defendant, with the scope of the appeal corresponding to items (a) and (b) of the AR's Order of 15 September 2010. Registrar's Appeal No 391 of 2010 was filed by the Plaintiff, with the appeal also corresponding to items (a) and (b). Both parties did not appeal against items (c) and (d) of the Order of 15 September 2010.

Held, allowing both appeals in part:

(1) The burden of proof was on the party seeking to establish its entitlement to damages. The impossibility of laying down any definitive rule as to what might constitute adequate proof of damage meant that a court had to adopt a flexible approach with regard to the proof of damage: at [14] and [15].

(2) Mitigation of damages as a defence had to be properly pleaded and proved. The AR should not have permitted and entertained the Defendant's mitigation argument because there was no plea of mitigation of damages in the defence. The state of the Defendant's pleadings contravened the established procedural rule that an assertion of a failure to mitigate one's loss had to be pleaded and proved by the party relying on it: at [23] and [24].

(3) The prima facie measure of damages with respect to the Crane was the value of the Crane at the time and place of destruction, plus any other consequential losses. This was because on the basis of the evidence before the court, the Crane was a constructive total loss in the sense that it would be uneconomical to repair the Crane: at [13] and [31] to [35].

(4) Market value was looked upon as the fairest way to objectively assess the value of a chattel destroyed (or was a constructive total loss) at the place and the time of the wrong. However, even if the market value could not be determined or would be inadequate because of the special or unique nature of the chattel, the value of the chattel had to still be ascertained, and the court had to do the best it could on the available evidence. This was because the exercise required to quantify the damages involved the same objective and principle, ie, the value of the chattel at the time and place of destruction: at [36] to [41].

(5) There should be no deduction of the scrap value from the market value of the Crane since the award was for damages in full. Accordingly, the Defendant should take over the Crane ‘as is, where is’: at [60].

Asia Star, The [2010] 2 SLR 1154 (folld)

Derby Resources AG v Blue Corinth Marine Co Ltd [1998] 2 Lloyd's Rep 410 (refd)

Dodd Properties (Kent) Ltd v Canterbury City Council [1980] 1 WLR 433 (refd)

Geest plc v Lansiquot [2002] 1 WLR 3111 (refd)

Harmonides, The [1903] P 1 (refd)

Jia Min Building Construction Pte Ltd v Ann Lee Pte Ltd [2004] 3 SLR (R) 288; [2004] 3 SLR 288 (folld)

Kingsway, The [1918] P 344 (refd)

Dredger Liesbosch, Owners of v Owners of Steamship Edison [1933] AC 449 (refd)

Mediana, The [1900] AC 113 (refd)

Rainbow Star, The [2011] 3 SLR 1 (folld)

Robertson Quay Investment Pte Ltd v Steen Consultants Pte Ltd [2008] 2 SLR (R) 623; [2008] 2 SLR 623 (folld)

Yip Holdings Pte Ltd v Asia Link Marine Industries Pte Ltd [2009] SGHC 136 (refd)

Glenn Knight and Susan Jacobs (Glenn Knight) for the plaintiff

Walter Ferix Justine (Joseph Tan Jude Benny LLP) for the defendant.

Belinda Ang Saw Ean J

Introduction

1 The assessment of damages (‘Assessment of Damages’) against the defendant, Asia Link Marine Industries Pte Ltd, was pursuant to Lai Siu Chiu J's decision on liability given on 5 June 2009. Interlocutory judgment was duly entered in favour of the plaintiff, Yip Holdings Pte Ltd, on its claim with costs, and damages were directed to be assessed by the Registrar with costs of the assessment reserved to the Registrar (see Yip Holdings Pte Ltd v Asia Link Marine Industries Pte Ltd [2009]SGHC 136 (‘Yip Holdings v Asia Link’).

2 The facts giving rise to these proceedings may be briefly stated as follows. The plaintiff in Suit No 399 of 2008 claimed damages for breach of contract in relation to, inter alia, damage caused to the plaintiff's American Hoist 9280 crane (‘the Crane’) that was kept at the defendant's premises pursuant to an oral agreement made in 1999 (see Yip Holdings v Asia Link at [107] for the terms). The defendant admitted that on 17 February 2007, the plaintiff had requested access to the Crane in order to facilitate its removal, and that the defendant had instructed the Crane to be moved to another yard belonging to Haruki Machinery Pte Ltd (‘Haruki’). Lai J found that the Crane was unilaterally moved from the defendant's premises to another location on 18 April 2007, that the plaintiff had no prior knowledge of the defendant's instructions to Haruki, and that the defendant did not inform the plaintiff that the Crane had been moved to another location until 7 May 2007.

3 Haruki had demobilised and dismantled the Crane purportedly to carry out repairs to the Crane at 48 Tuas Avenue 9, Singapore (‘Haruki's yard’). From what had been stated, the dismantling of the Crane involved taking out various parts of the Crane. However, repairs were never carried out. Instead, the defendant left the Crane in the open in its dismantled state at Haruki's yard.

4 The plaintiff's managing director and major shareholder who testified at the trial was Yip Fook Chong also known as Ronald Yip (‘Yip’). The defendant's director and shareholder who testified on behalf of the defendant was Lim Seong Ong also known as Kenny Lim (‘Lim’).

Decision of Lai Siu Chiu J

5 I refer to the trial judge's finding of facts and legal conclusions on the liability issue in Yip Holdings v Asia Link( [1]supra). The paragraphs that are relevant to the assessment of recoverable damages ( [102], [104]- [106], [109]- [111] and [113]) are set out hereunder:

1. 102 I found Lim's explanation as to why he refused Yip permission for [Triple Gem International Pte Ltd (‘Triple Gem’)] to move the [Crane] out from the yard utterly incredible. As it was the plaintiff and not the defendant which owned the [Crane], it was of no concern to the defendant whether the removal from the yard was done by a qualified or unqualified crane contractor. It would be the plaintiff and not the defendant who would bear the consequences should it be found that the moving needed to be done by an approved contractor on MOM's list.

...

1. 104 As the plaintiff rightly pointed out in its closing submissions [at para 11 (b)], Yip...