Chai Yong Construction Co Pte Ltd v Chan Hock Seng

This assessment of damages arose out of the judgment of Lai Siu Chiu J dated 5 December 2001. Pursuant to that judgment, the defendants were ordered, inter alia, to pay the plaintiffs the sum of $100,813.73 and a further sum, to be agreed or assessed, in respect of variation works carried out by the plaintiffs. The payment of the sum of $100,813.73 was subject to such sum as may be assessed in respect of omissions or the estimated costs of rectification of the following items:

[3] The plaintiffs’ called a total of seven witnesses, namely:

[5] The defendants called three witnesses. They were the first defendant, Mr Carl Baptisa, Head of Research and Development with Origin Exterminators Pte Ltd, and Mr Bransten Tan, the principal of Kenzo Interior Design.

[6] Having heard the witnesses and having had the opportunity to observe their individual demeanour, I had every reason to doubt the reliability of Mr Bransten Tan’s evidence. Under cross-examination, it transpired that he had little or no knowledge of the items of work that he had given a quotation for. Taking his quote for the rectification of the roof as an example, he admitted unequivocally to having no personal knowledge of the quantity or rate employed in arriving at the quote as it was prepared entirely by his quantity surveyor. Be that as it may, when confronted with the actual drawings of the roof, he had little choice but to acknowledge that his quantity surveyor had used the wrong quantities in arriving at the final quote. He also agreed that he was unable to comment on the rates employed by his quantity surveyor as the units used were entirely wrong and he did not know if the rates used were priced per square feet or per square metre.

[9] On the whole, I found Mr Bransten Tan’s demeanour to suggest a lack of confidence in the evidence that he was giving in court. He was hesitant in giving his answers, shifty and often refused to comment on the questions posed or gave vague replies. To my mind, it would have been unsafe to rely on his evidence and hence, I accorded little or no weight to it.

[11] I therefore relied largely upon the evidence and quantification given by the plaintiffs’ two main witnesses, Mr Oh and Mr Soh, in arriving at the quantum of damages to be awarded.

[12] Based on the evidence given by Mr Oh and Mr Soh, I made the following awards for the items that Lee JC ruled to be assessed as an omission to be deducted from the contract price:

$ 500

$ 279

$ 800

installation of twin sockets

$ 75

$ 1,521

[14] The defendants disagreed. Mr Carl Baptista, who gave evidence for the defendants, recommended the use of slab injection ($18,721.86) together with a termite baiting system ($20,800) as the best substitute for the lack of pre-construction termite treatment. According to him, slab injection would alleviate the termite problem immediately without necessarily eliminating the termite colony. However, the termite baiting system, which is a slower process, would eliminate the colony in the long-term. Hence, the combination of both systems would eliminate the termites immediately as well as the termite colony in the long run.

[15] Termite baiting involves the use of stations that are placed at 3m intervals around the property. A cellulose matrix with an insect growth regulator is introduced. Termites foraging in the soil will consume the matrix and transfer the insect growth regulator throughout the colony, thereby eliminating the entire colony in the long run. Slab injection on the other hand involves the drilling of holes of about 600mm spacing around the external and internal perimeter of the house. The holes must be drilled so that they pass through the concrete slab and come into contact with the soil beneath. From these holes, an injection rod is introduced and the chemical of choice is introduced directly into the soil.

[16] According to plaintiffs’ expert witness Mr Simon Teh, slab injection would not be effective in treating against termites for this property because the entire superstructure of the house sits almost directly on top of the basement, which in turn covers nearly the entire plot area. The presence of a basement is significant because the basement sits below the water-table level and since termite treatment starts from the lowest level, no treatment can be carried out in the basement. In the circumstances, Mr Simon Teh testified that he was only prepared to treat the apron and external area on the ground level that does not sit perpendicularly above the basement.

[19] Mr Chin Cheong was not called as a witness at the assessment hearing.

[21] It would clearly be wrong to make an award for the replacement of the entire roof as it would amount to overcompensating the defendants. In any event, the fact that the exact location of these four spots of roof leakage had not been identified did not mean that Mr Chin Cheong’s method of rectification, which method was not disputed by the defendants’ experts at the trial, was not workable. In my view, this simply meant that the recommended method of rectification ought to be carried out to the entire roof. Indeed, this was exactly what Mr Oh and Mr Soh had assumed to be the case viz. the realignment and resetting of the roof tiles, which will be done during the battening/nailing down process, would be carried out to the entire roof.

[22] I agreed with Mr Soh’s estimate for this item and accordingly awarded the sum of $550 under these two items.

[23] The parties were in agreement that the entire external areas of the second and third storey should be re-screed. At the assessment hearing, Mr Soh gave evidence that the entire terrace area should be re-screed to achieve the best results. To this end, the defendants tried to establish that Lai J had intended the ‘terrace’ to mean the entire ground floor area which would include the apron and car porch.

[29] Both Mr Oh and Mr Soh gave evidence that, having regard to the type of granite used in the property, it would be possible to find a matching piece of granite. They also testified that it would be possible to replace the one piece of granite without damaging the adjoining tiles. I accepted their evidence and I awarded the sum of $75 ($100 (labour) + $75 (material)) under this item.

[30] The defendants have agreed that both of these items are the same and should therefore be assessed as one item. I accepted the Mr Oh’s quantification of these two items and awarded the sum of $105.

[31] Given that Mr Tan Hui Say had agreed under oath to fabricate and hot-dip galvanise a gate according to the specifications of the defendants’ existing main gate and install it at the premises for $2,300, I accordingly awarded the said sum for this item.

[33] The plaintiffs were quick to point out that the defendants were raising this issue about a 6 m long culvert for the first time at the assessment hearing. Upon perusal of the Amended Defence and Counterclaim and the Notes of Evidence from the trial in relation to the evidence of Mr Portwood, the structural engineer of the project, I found this to be indeed the case.

[34] In their Amended Defence and Counterclaim, the defendants alleged, that the plaintiffs had failed to construct the culvert according to Portwood’s specifications. No particulars were given of the non-conformity. At the trial, the main issue raised by the defendants regarding the culvert was that as a result of the plaintiffs’ failure to build the culvert in accordance to Portwood’s specification, the Land Transport Authority (“LTA”) refused to give their approval for the culvert and the defendants had to engage another contractor to carry out the necessary works to obtain LTA’s approval.

[36] From the Notes of Evidence at the trial, it is also apparent that, apart from disagreeing with the defendants’ assertion that his design called for two parapet walls to be built next to the culvert (See page 274 of the Notes of Evidence dated 31 July 2001), Mr Portwood did not elaborate on what these items in ‘waiting’ were.

[37] The defendants based their assertion of a 6m long culvert entirely on their interpretation of Mr Portwood’s plans that were tendered at the trial. Mr Soh who was asked to comment on the same drawing, disagreed with the defendants’ interpretation. He maintained that, in his professional opinion, the Mr Portwood’s drawing only called for a 3.5m long culvert. He also testified that he had submitted a set of drawings to the LTA for their approval of the culvert, and that his drawings similarly specified a 3.5m long culvert. Mr Soh, who did not physically measure the existing culvert, was unable to confirm the exact length of the culvert. However, in his opinion, the existing culvert was unlikely to be less than 3m and he would estimate the length of the culvert to be about 3.5m.

[38] Based on the foregoing, I found that the defendants had failed prove their case under this item and therefore made no award under this head.

[39] In light of the fact that the defendants did not dispute the plaintiffs’ valuations of the variation works, I awarded the sum of $10,450 to the plaintiffs and interest thereon at the rate of 6% per annum from the date of writ to the date of judgment.

[40] In conclusion, I awarded total sum of $33,977 for the 15 items. I also awarded interest on the said sum at the rate of 6% per annum from the date of writ to the date of judgment.