Yip Holdings Pte Ltd v Asia Link Marine Industries Pte Ltd

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judge: Belinda Ang Saw Ean J
• Judgment Date: 13 October 2011
• Neutral Citation: [2011] SGHC 227
• Citation: [2011] SGHC 227
• Hearing Date: 18 February 2011,22 October 2010,20 April 2011
• Year: 2011
• Published date: 17 October 2011
• Docket Number: Suit No 399 of 2008 (Registrar’s Appeal Nos 389 of 2010 and 391 of 2010)
• Plaintiff Counsel: Glenn Knight and Susan Jacobs (Messrs Glenn Knight)
• Defendant Counsel: Walter Ferix Justine (Joseph Tan Jude Benny LLP)
• Subject Matter: Damages,Assessment,Rules in awarding,Ascertainment difficult or impossible,Mitigation

Belinda Ang Saw Ean J: Introduction

The 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”).

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.

Haruki had demobilised and dismantled the Crane purportedly to carry out repairs to the Crane at No 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.

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

I refer to the trial judge’s finding of facts and legal conclusions on the liability issue in Yip Holdings v Asia Link. The paragraphs that are relevant to the assessment of recoverable damages are set out hereunder: 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.

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104 As the plaintiff rightly pointed out in its closing submissions [at para 11(b)], Yip responded as expeditiously as possible when Lim demanded that the [Crane] be removed by 2 January 2007. On 17 February 2007, the plaintiff was ready to move the [Crane] to the premises of Triple Gem but was denied access to the yard by Lim. Lim failed to respond to Yip’s letter dated 17 February 2007 in [30]. After his unilateral move of the [Crane] on 18 April 2007, Lim still did not inform Yip/the plaintiff of the move until 7 May 2007. It is my view that the only reason Lim was prompted to respond was due to his receipt of the letter dated 3 May 2007 from the plaintiff’s solicitors in [33] which was carbon-copied to Jurong Police station, after Yip had lodged a police report on Lim’s attempt to move the [Crane] out of Haruki’s yard. 105 What made the defendant’s/Lim’s conduct even more reprehensible was the fact that Lim had engaged Haruki who were not a qualified contractor for the make of the [Crane], to dismantle and disassemble [Crane]. Judging by subsequent events, Haruki not only damaged the [Crane] in the process but seemed incapable of assembling and/or restoring the [Crane] to its original state. 106 Lim acted to all intents and purposes as if he was the owner of the [Crane] to the extent that he denied Yip access to the [Crane] while it was in the yard. ...

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109 ...I accepted the plaintiff’s submission that the defendant breached the oral agreement when it unilaterally moved the [Crane] out of the yard without the prior knowledge or consent of the plaintiff and against the plaintiff’s express request to have the move carried out by its appointed contractor, Triple Gem. 110 It would not even be necessary to consider the plaintiff’s submissions on the necessary terms to be implied into the oral agreement as Lim himself had admitted (at N/E 169-170) that he needed to inform the owner should any equipment stored in the yard be relocated to another area and, when questioned by the court, he agreed that he would be liable should any damage result from such a move (see [93] above). 111 Consequently, the [Crane] having been damaged when it was moved and/or after it was moved, from the yard to Haruki’s yard on the instructions of Lim, the defendant was liable for the damage caused thereby.

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113 There can be little doubt that the present deplorable condition of the [Crane] was entirely attributable to Haruki’s dismantling and disassembling of the [Crane]. In the words of Spencer (at N/E 98) the condition of the [Crane] was near scrap value. Spencer’s view was confirmed by none other than the defendant’s own witness Razak (at para 8.03 of his report) when he said:

The [Crane] had deteriorated to such a state it might not be economical to repair to bring it back to original working condition.

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The undisputed facts as narrated by Lai J in Yip Holdings v Asia Link are as follows: 35 The plaintiff’s solicitors wrote to the defendant on 28 May 2007 to say the latter had breached its obligations to safeguard the [Crane]. Despite the plaintiff’s various efforts to recover the [Crane], the defendant refused to respond to the plaintiff’s request to repair and reassemble the crane into working condition. 36 At the same time as the plaintiff/its solicitors were corresponding with the defendant, the plaintiff requested Haruki to give a list of replacements to put the [Crane] into fully operational condition. The plaintiff was anxious to rebuild the [Crane] as soon as possible so that it could rent it out or sell it off as at that time, the construction industry was booming in both Asia and the Middle East with a corresponding high demand for big heavy cranes. 37 Haruki did give the plaintiff an estimate but it failed to take any steps to rebuild the [Crane] leaving the [Crane’s] components exposed to the elements. Notwithstanding Haruki’s inaction, Yip let the market know that the plaintiff had a 150 ton lifting capacity crane which was available for rent or sale. 38 Between 7 May 2007 and 7 December 2007, the plaintiff received inquiries from three interested parties either to buy or to rent the crane. One offer was from an Indian party (at US$400,000), another from Malaysia (also at US$400,000) and the third offer was from Haruki itself whose offer was $300,000 on an “as is where is” basis. The first two interested parties required the [Crane] to be rebuilt to its fully operational condition. Unfortunately, the plaintiff was unable to accept either the first or second offers (Yip rejected Haruki’s offer) because of Haruki’s inaction on the repair works. 39 Subsequently, Haruki renewed its offer to the plaintiff after the Malaysian buyer withdrew its offer. On 7 December 2008, the plaintiff’s solicitors received an offer from Haruki’s solicitors of $300,000 for the [Crane]. The offer required the plaintiff as well as Yip to given an indemnity. Yip rejected the offer.

The Assistant Registrar’s Order of 15 September 2010

The plaintiff’s Notice of Assessment of Damages, namely, NA 18 of 2008/W (“NA 18”) was listed for hearing 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”). In particular, the AR awarded: Damage to the Crane at US$285,000; Loss of chance of rental at US$48,000; Cost of torque converter at US$6,000; and 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 Notices of Appeal to Judge in Chambers were filed. RA No 389 of 2010/J (“RA 389”) was filed by the Defendant and the scope of the appeal related to items (a) and (b) of the AR’s Order of 15 September 2010 (see [7] above). RA No 391 of 2010/E (“RA 391”) was filed by the plaintiff, and the appeal also related to items (a) and (b). In short, both parties did not appeal against items (c) and (d) of the Order of 15 September 2010. At the conclusion of the hearing, I made the following orders: The defendant to pay the plaintiff the sum of US$395,000 (equivalent to S$516,265) being the value of the Crane after deducting the sum of US$5,000. The defendant is to take over the plaintiff’s proprietary interest in the Crane “as is, where is”; No damages for loss of rental; No damages for loss of chance to rent out the Crane; and Each party to bear its own costs of appeal.

I informed counsel at the hearing on 20 April 2011 that I would use the AR’s exchange rate of US$1 = S$1.307.¹ For the plaintiff’s loss of the Crane being the value of the Crane, the amount of damages awarded in...