GTMS Construction Pte Ltd v Ser Kim Koi ( Chan Sau Yan (formerly trading as Chan Sau Yan Associates) and another, third parties) [2021] SGHC 9

Introduction

This Suit arises from a long-standing and bitter dispute relating to the construction of three two-storey good class bungalows (Units 12, 12A and 12B) at 12 Leedon Park, Lot 98388L Mukim 04 (the “Project”) at an agreed lump sum price of $13,130,000. The Project is owned by the defendant, Mr Ser Kim Koi. The plaintiff, GTMS Construction Pte Ltd, was the main contractor for the Project. The first third party, Chan Sau Yan Associates (a sole proprietorship wholly owned by Mr Chan Sau Yan Sonny), was the architect for the Project. The relationship between the defendant, the first third party and the plaintiff started out well. However, towards the end of the Project there was mistrust and the relationship between the defendant and the first third party together with the plaintiff went south. The defendant’s allegations of a web of conspiracy and a multitude of lies now hang over the parties’ interactions. Intertwined within these allegations are complex questions of interpretation involving the Singapore Institute of Architects’ Articles and Conditions of Building Contract (Lump Sum Contract) (9th Ed, September 2010) (the “SIA Conditions”) and the implications arising therefrom.

In this Suit, the plaintiff claims for unpaid sums from the defendant. The unpaid sums arise from two interim payment claims and the final payment claim which were certified by the first third party (the “certified payment claims”). The plaintiff claims an aggregate sum of $1,103,915.48 plus interest from the defendant. The defendant refused to pay the plaintiff the certified payment claims. He also refused to pay the first third party’s unpaid fees of $60,990 plus interest.

The parties

The first third party, Chan Sau Yan Associates, was a sole proprietorship wholly owned by Mr Chan Sau Yan Sonny (TPW2, “Mr Chan”). I shall refer to both Chan Sau Yan Associates and Mr Chan, interchangeably, as the “first third party”. The second third party is CSYA Pte Ltd, which is a conversion of the first third party into a private limited company in or around October 2011. I note that there is some dispute between the parties as to whether the defendant has legal recourse against the second third party, as there was no contractual relationship between them. For reasons which I shall elaborate below, I find that the defendant has no legal recourse against the second third party. Hence, all subsequent references to “third party” shall refer to the first third party, unless otherwise specified.

By a Memorandum of Agreement dated 16 June 2009 (the “MOA”), the defendant and his wife engaged the first third party to provide professional architectural services for the Project. Further, the first third party was also authorised by the defendant and his wife to act as their agent in the matters set out or implied in the MOA and the contracts adopted for the Project (see cl 1.1(2) of the MOA).

After a full tender process that was coordinated by the defendant’s quantity surveyor (“QS”) Faithful+Gould Pte Ltd (“F+G”), the plaintiff, a Singapore-incorporated company carrying on the business of general building and construction works, was appointed as the main contractor responsible for building the Project and carrying out works thereunder (“Works”). The terms of engagement between the defendant and the plaintiff were governed by the Letter of Acceptance dated 13 May 2011 (“LOA”), which incorporated the SIA Conditions. I shall refer to all the documents comprising the contract between the plaintiff and the defendant as the “Contract” and this comprises the LOA, the SIA Conditions and all the documents cited in cl 7 of the LOA. This also includes Volumes 1A, 1B and 2 of the formal contract documents prepared by F+G and the defendant’s mechanical and engineering (“M&E”) consultant, Chee Choon & Associates (“CCA”). Although there are some disputes regarding this last category of documents, I find that they are part of the Contract and I shall elaborate further on this issue in my judgment below.

The following consultants were engaged by the defendant on the recommendations of the third party for the Project. I shall refer to them collectively as the “Consultants”:

(a) CCA, the M&E consultant;

(b) F+G, the QS;

(c) Web Structures Pte Ltd (“Web”), the civil and structural engineer; and

(d) Mr Leong Kien Keong (TPW4), the Resident Technical Officer (“RTO Leong”).

Apart from the Consultants, the defendant also engaged a group of his hand-picked individuals, comprising Mr Wilson Cheung (“Mr Cheung”), Mr Chow Kum Wai (“Mr Chow”), Mr Ng See Wah, and Dr Anand Jude Anthony (“Dr Anand”), to assist him in overseeing the Project. I shall refer to them collectively as the defendant’s “Assistants”.

The parties’ cases

The defendant’s case

The defendant’s case is that the plaintiff and the third party conspired to injure him. The defendant does not rely on any one particular incident to support his conspiracy claim. Instead, he relies on his opinionated allegations and personal inferences to establish that there was a conspiracy between the plaintiff and the third party to injure him. Further, arising out of the same facts, the defendant also alleges that the plaintiff and the third party had breached their contractual and/or tortious duties owed to him.

The defendant in his pleadings and affidavit of evidence-in-chief (“AEIC”) did not make any allegations against the tender process. However, in the course of his testimony in court, the defendant alleged that the conspiracy to injure and defraud him by the plaintiff and the third party started from the tender process of the Project. The defendant also asserted in court that the plaintiff had bribed the third party in the course of the Project (the “Bribery Allegation”), although this particular allegation was later retracted. As the allegations of conspiracy and fraud are very serious and would seriously affect many other major issues before this court, I allowed these allegations to be ventilated during the trial notwithstanding that they were not pleaded by the defendant. I shall now summarise the defendant’s case with reference to the events in chronological order.

Tender process

The defendant alleges that the third party conspired with the plaintiff during the tender process for the tender to be awarded to the plaintiff. The tender was called on 13 October 2010 and there were initially five tenderers. Thereafter, Soil-Build Pte Ltd (“Soil-Build”) was invited to participate in the tender at the defendant’s request. The three lowest tenderers, Soil-Build, Daiya Engineering & Construction Pte Ltd (“Daiya”) and the plaintiff, were subsequently shortlisted. The defendant asserts that the third party had “push[ed]” for the plaintiff to be selected over the other tenderers. Therefore, he was unable to select Soil-Build, who was his preferred contractor. In addition, Soil-Build was also not treated equally during the tender process as the third party had “[made] life difficult” for them.

Extensions of time

The defendant submits that the third party and the plaintiff conspired regarding the three requests for extension of time (“EOT”), thereby preventing the defendant from claiming liquidated damages from the plaintiff for EOT 2 and EOT 3. Furthermore, the defendant submits that the EOTs were granted by the third party in breach of the contractual and tortious duties owed by the third party to him.

The original completion date under the LOA is 21 February 2013. Pursuant to cl 23(1) of the SIA Conditions, EOTs can be granted by the third party to the plaintiff. Clause 23(1) states:

In total, there were three EOT requests made by the plaintiff:

(a) The plaintiff’s first request of 60 days of EOT was made on 4 October 2012 due to, inter alia, delays relating to the delivery of marble to the Project (“EOT 1”). EOT 1 was rejected by the third party.

(b) The plaintiff’s second request of 45 days of EOT was made on 20 December 2012 due to, inter alia, SP PowerGrid Ltd’s (“SPPG’s”) delay in connecting the main incoming power supply and SPPG’s late notice of the requirement to install the overground distribution box (“OG Box”) (“EOT 2”). The third party granted EOT 2 on 7 February 2013 for 40 days from 21 February 2013 (the original completion date) to 2 April 2013.

(c) The plaintiff’s third request of 40 days of EOT to complete the testing and commissioning (“T&C”) for M&E works and the installation of light fittings was made on 1 April 2013 (“EOT 3”), in view of SPPG’s delay. The third party granted EOT 3 on 10 April 2013 for 15 days from 2 April 2013 to 17 April 2013.

Therefore, the plaintiff was granted a total of two EOTs (ie, EOT 2 and EOT 3) totalling 55 days during the Project. The defendant alleges that these EOTs should not have been granted and were only granted due to the conspiracy between the plaintiff and the third party to injure him.

(1) EOT 1

The defendant asserts that the plaintiff and the third party conspired to injure him in relation to EOT 1, which concerned the delay in marble delivery. He alleges that the third party would have proceeded to grant EOT 1 but for the intervention of Mr Cheung, one of the defendant’s Assistants, when he enquired during a site meeting whether the delay in marble delivery was on the critical path, ie, an event that may delay the completion of the Project. Since the delay in marble delivery was a non-critical activity, it did not contractually entitle the plaintiff to an EOT. Faced with Mr Cheung’s objections, the third party had no choice but to reject EOT 1. Thus, the defendant submits that EOT 1 supports his allegation that the third party had conspired with the plaintiff to grant EOTs.

(2) EOT 2

In relation to EOT 2, the defendant submits that the third party had no basis to grant EOT 2. Among other things, this was because the plaintiff had failed to exercise due diligence, a pre-condition required by cl 23(1) of the SIA Conditions and, thus, was not entitled to any EOT. While the third party took into account SPPG’s delay in electrical turn-on, it failed to consider the plaintiff’s own delay in the electrical installation works which had to be done before SPPG could connect the incoming power supply. Pursuant to the Project’s Master Programme, the plaintiff was required to complete the construction of the electrical meter compartments by or prior to 9 July 2012. However, the electrical meter compartment doors for Units 12 and 12B were only installed on or around 1 December 2012. Due to this delay of more than four and a half months, the defendant claims that the plaintiff should not have been given any EOT.

The defendant also relies on the circumstances surrounding EOT 2 which, in his view, suggested that the result of EOT 2 was pre-determined. These circumstances were as follows:

(a) The third party had “directed” the plaintiff to include further details in its request in EOT 2 and had also given the plaintiff “further directions to regularise various errors made in its substantiation of the said EOT request”.

(b) When the plaintiff’s request in EOT 2 was circulated to CCA for “confirmation”, a pre-drafted approval was enclosed and CCA was only given one day to respond to the plaintiff’s request.

(c) Prior to the third party’s grant of EOT 2, F+G had recommended in its cost report an estimated $65,000 additional costs due to the plaintiff on the basis of EOT 2.

In court, the defendant further alleged that the plaintiff, CCA and the third party had colluded or conspired to grant EOT 2. The defendant also alleged that the plaintiff had applied improper pressure on or interfered with the third party.

(3) EOT 3

In relation to EOT 3, the defendant likewise submits that the third party had no basis to grant EOT 3. Prior to electrical turn-on, SPPG had to conduct testing and inspection on-site. The first round of testing and inspection was conducted on 14, 20 and 21 March 2013 (the “First Testing and Inspection”) for Units 12B, 12 and 12A respectively. The Project failed the First Testing and Inspection. The defendant’s position is that the reasons for the failure were due to construction-related issues caused by the plaintiff. Consequently, the plaintiff had to rectify these construction-related issues before the Project passed the second round of testing and inspection conducted on 27 March, 2 April and 8 April 2013 (the “Second Testing and Inspection”). Accordingly, the plaintiff had again failed to exercise due diligence and was not entitled to any EOT.

As with EOT 2, the defendant also relies on the circumstances surrounding EOT 3 to claim that the result of EOT 3 was pre-determined. In court, the defendant similarly alleged that the plaintiff, CCA and the third party had colluded or conspired to grant EOT 3. The defendant further alleged that the plaintiff had also applied improper pressure on or interfered with the third party. These circumstances were as follows:

(a) The plaintiff made its request for EOT 3 on 1 April 2013 and the third party had immediately issued an “in-principle” entitlement the next day without prior consultation with CCA.

(b) CCA had initially refused the plaintiff’s request for EOT 3. However, the third party eventually managed to persuade CCA to change its recommendation.

Completion certificate

The defendant submits that the third party and the plaintiff had conspired to issue the completion certificate (“CC”) to the plaintiff.

On 15 May 2013, the third party issued a CC certifying completion of the Project on 17 April 2013 pursuant to cl 24(4) of the SIA Conditions. Clause 24(4) of the SIA Conditions states that the CC “shall be issued by the [third party] when the Works appear to be complete and to comply with the Contract in all respects”. Further, cl 24(4) must also be read with the all-important Item 72 of the “Preliminaries”. The relevant portion of Item 72 of the Preliminaries states as follows:

The defendant submits that all three preconditions in Item 72 of the Preliminaries were not satisfied when the third party issued the CC. The CC was issued prematurely and without basis. Accordingly, this gives rise to an inference that the CC was issued by the third party pursuant to a conspiracy between the third party and the plaintiff.

In relation to Item 72(a) of the Preliminaries, the defendant argues that the Project was not “ready for occupation and for use” as the temporary occupation permit (“TOP”) for the Project had not been obtained. According to the defendant, it is an implied term of the Contract that the TOP must be obtained before the third party can issue the CC.

Furthermore, the Project failed the TOP inspection conducted by the Building and Construction Authority (“BCA”) on 30 April 2013 (“TOP Inspection 1”). This was prior to the date the CC was issued on 15 May 2013. The Project had also failed the BCA’s second TOP inspection on 18 June 2013 (“TOP Inspection 2”). Although the TOP for the Project was eventually obtained on 16 September 2013 by way of photographic submissions, the defendant alleges that this was the result of the plaintiff’s and the third party’s fraud and/or misrepresentation. In particular, the steps and risers in the Project remain non-compliant with statutory requirements and the Project is therefore still not “ready for occupation and for use” as of today.

As for Item 72(b) of the Preliminaries, the defendant submits that this was not satisfied as the operating instructions and warranties were only handed over by the plaintiff to the defendant on 22 June 2014, while the test certificates have not been handed over at all. In addition, the T&C for gas, electricity, air conditioning and mechanical ventilation (“ACMV”) and swimming pool services had not been carried out as of the date when the Project was certified to be complete.

Finally, with regard to Item 72(c) of the Preliminaries, the defendant asserts that there were many outstanding defects as of the date the Project was certified to be complete. These defects were identified and described in the reports prepared by Building Appraisals Pte Ltd (“BAPL”), whom the defendant engaged sometime in October 2013. These defects were as follows:

(a) The gas pipe along the driveway at the front gate of Unit 12A of the Project was punctured.

(b) There were numerous cracks, scratches, and other forms of damage to the Volakas marble flooring in the Project.

(c) There were numerous cracks and splinters in the ironwood used for the installation of the timber decking in the Project.

(d) There were dents and tonality differences in the Indian rosewood timber floor finish.

(e) The aluminium cappings on the rooftops of all three units of the Project were dented, scratched and finished with patchy and splotchy paintwork.

(f) The steps and risers of the Project were non-compliant with the statutory and contractual requirements.

(g) The swimming pools in the Project were leaking.

(h) There were only seven trellis beams constructed at Unit 12B of the Project, instead of eight as required by the Contract.

(i) The coating of the intumescent paint on the steelworks at the Project did not have a fire resistance of two hours, as required by the Contract. Furthermore, the trellis beams had only been coated on three sides, instead of on all four sides.

(j) The external boundary wall was finished in plaster and paint, instead of an “off-form” finish, as required by the Contract.

(k) The grouting at the swimming pools disintegrated easily.

(l) Loamy soil was not used for the Project as required by the Contract.

(m) The foldable glass doors did not slide smoothly and could not be properly locked.

Maintenance certificate

The maintenance period of the Project commenced on 18 April 2013 (ie, the day after completion) and ended on 17 April 2014. Clause 27(5) of the SIA Conditions states, inter alia, that the third party shall within 14 days issue a maintenance certificate (“MC”) when all defects notified by the third party to the plaintiff have been made good by the plaintiff in compliance with the third party’s directions or instructions.

The MC was issued by the third party on 7 July 2014 when the third party was satisfied that all the defects at the Project were rectified by the plaintiff, and the premises were handed over to the defendant on 21 and 23 July 2014. However, the defendant contends that as of 7 July 2014, there were still many defects which had yet to be rectified (see [28] above). The defendant, therefore, alleges that the MC was also issued pursuant to the conspiracy between the plaintiff and the third party.

Furthermore, the defendant argues that the circumstances surrounding the issuance of the MC also indicate that it was issued pursuant to the conspiracy. In support of this argument, the defendant points to the following:

(a) Firstly, the defendant was allegedly only given three days by the third party to prepare his list of outstanding defects.

(b) Secondly, the third party also failed to issue the “Schedule of Defects” within 14 days of the expiry of the maintenance period, in accordance with cl 27(2) of the SIA Conditions.

(c) Thirdly, although the defendant submitted photographs of the defects to the third party on or around April 2014 and 27 July 2014, the plaintiff allegedly wrote to the third party to urge them not to accept these photographs.

(d) Finally, the third party issued the MC without having regard to BAPL’s report.

Payment certificates

The defendant also alleges that the three payment certificates were issued by the third party pursuant to the conspiracy between the plaintiff and the third party. These three certificates were issued after the issuance of the CC:

(a) Interim Certificate No 25 dated 3 September 2013 (“IC25”) was issued pursuant to the plaintiff’s Payment Claim No 25, certifying a sum of $390,951.96 (excluding goods and services tax (“GST”)).

(b) Interim Certificate No 26 dated 6 November 2013 (“IC26”) was issued pursuant to the plaintiff’s Payment Claim No 26, certifying a sum of $189,250.21 (excluding GST).

(c) Final Certificate dated 22 June 2015 (“FC”) was issued pursuant to the plaintiff’s final payment claim of $451,494.54 (excluding GST). This sum is the balance between the final measurement and valuation of the Works in accordance with the Statement of Final Account and the sums that were previously certified by the third party.

The defendant also asserts that the release of the first half of the retention moneys in IC25 was certified by the third party without basis, given that the plaintiff had not satisfied the requirements in cl 24(4) of the SIA Conditions and Item 72 of the Preliminaries for the issuance of the CC.

The defendant’s counterclaim

In totality, the defendant makes the following counterclaim against the plaintiff:

(a) liquidated damages of $3,600 per calendar day from 21 February 2013 (the original completion date) to the present day;

(b) as an alternative claim to liquidated damages, loss of rental income due to the delay by the plaintiff in the completion of the Project (although the defendant subsequently indicated he was no longer pursuing this head of claim);

(c) costs of rectifying all defective works, quantified at $1,632,415.20;

(d) an account of moneys for the $787,742.09 paid to the plaintiff for the PC Sums;

(e) an account of moneys for the $1,757,835 paid to the plaintiff for the PC Rate items;

(f) the utilities fees paid by the defendant before the Project was handed over to him on 23 July 2014, quantified at $27,916.82; and

(g) interest and costs.

The defendant also submits that by reason of the unlawful conspiracy, the third party should be made jointly liable with the plaintiff for the abovementioned losses suffered by the defendant. The third party is also liable for the breaches of its contractual and tortious duties, and the legal expenses incurred by the defendant in the summary judgment application, the details of which are set out at [718]–[724] below. Finally, the defendant avers that the third party is liable to indemnify the defendant from and against the claim brought by the plaintiff against the defendant.

The plaintiff’s and the third party’s cases

The plaintiff and the third party adopt mutually aligned positions vis-à-vis the defendant’s case. The plaintiff and the third party strongly deny that there was a conspiracy between them to injure the defendant. The plaintiff and the third party also argue that there was no breach of their respective contractual and tortious duties owed to the defendant.

The third party avers that the tender was conducted fairly and the EOTs, CC, MC and payment certificates were issued properly, honestly and in good faith based on its independent and professional judgment.

The plaintiff submits that there were valid grounds for the third party to grant the EOT requests and to issue the CC as there were only minor outstanding works. Furthermore, all the defects were eventually rectified by the plaintiff to the satisfaction of the third party.

Tender process

The third party denies the defendant’s allegation that it had “pushed” for the plaintiff to be awarded the tender over the other tenderers. The third party maintains that it was simply performing its professional duties to the defendant by recommending the most suitable contractor for the Project. Furthermore, there were valid grounds for the third party’s recommendation. For example, CCA had also recommended that the plaintiff be appointed, as it had the most competitive bid for the M&E installations. The third party stresses that ultimately, the defendant alone was responsible for making the decision on which contractor to appoint.

Extensions of time

The plaintiff and the third party contend that there was no conspiracy for the third party to grant EOTs to the plaintiff. The plaintiff also did not apply improper pressure on or influence the third party to secure the EOTs. The third party issued the EOTs strictly in accordance with cl 23(1) of the SIA Conditions and the EOTs were reasonable, made properly, honestly and in good faith.

(1) EOT 1

At the trial, the third party’s counsel, Mr Thio Shen Yi SC, pointed out to the defendant that his characterisation of the events surrounding EOT 1 is flawed. The contemporaneous documents, particularly the minutes of the site meetings, do not support the defendant’s assertion that it was Mr Cheung who had raised the issue of the critical path, thereby preventing EOT 1 from being granted. Instead, it was the third party who first raised the issue of the critical path, within a week of the plaintiff’s request. This request was made repeatedly at the following site meetings, as reflected in the minutes. Accordingly, far from supporting the defendant’s conspiracy allegation, the third party’s evaluation process in EOT 1 illustrates its professional and independent assessment of the plaintiff’s EOT requests.

Further, the plaintiff contends that there were indeed genuine and legitimate reasons for its application for EOT 1 on account of the delay by the defendant in marble selection and confirmation, thereby affecting marble delivery. According to the plaintiff, the screeding work progress includes various areas for laying marble, ceramic tile and timber parquet and the sequence of work started from the laying of the marble. At the material time when the plaintiff applied for EOT 1, it had yet to receive 70% of the marble required to complete the Project. Furthermore, the arrival of the marble slabs in the warehouse of the supplier did not automatically mean that it was ready for delivery because the marble slabs needed to be processed for the Project before they were ready to be sent to the work site. This included quality checks, defect rectification such as pin-hole patching, fissure or open vein patching, polishing, cutting to size as per shop drawing, colour tone matching, and finally the packing of the marble pieces for delivery to the worksite.

(2) EOT 2 and EOT 3

The plaintiff and the third party deny the defendant’s allegation that the third party had no basis to grant EOT 2 and EOT 3. The plaintiff and the third party submit that the delays for which EOT 2 and EOT 3 were granted were solely caused by SPPG and not the plaintiff. There was an inordinate delay by SPPG in arranging for the power connection. Furthermore, SPPG had by way of a letter dated 21 November 2012 introduced a new and unexpected requirement for an OG Box at a very late stage in the Project. Since the plaintiff had acted with due diligence at all times, it was entitled to EOTs for the delay in electrical turn-on by SPPG, which would in turn cause delay to the T&C of the M&E works at the Project.

In so far as EOT 2 is concerned, the plaintiff argues that the electrical meter compartments were ready as of 8 October 2012. The third party similarly accepts that the electrical meter compartment, including the doors, were only made ready by the plaintiff in or around October 2012. Accordingly, the plaintiff was in delay pursuant to the Master Programme. But the timelines in the Master Programme were not peremptory, instead they were flexible with built-in buffer time. The third party had assessed that but for the delay events by SPPG, the Project could still be completed on schedule, notwithstanding the plaintiff’s delay in installing the electrical meter compartment doors. The plaintiff’s delay in installing the electrical meter compartment doors and SPPG’s delay in electrical turn-on were entirely independent of one another. Thus, it could not be said that the plaintiff’s failure to exercise due diligence, if any, contributed to SPPG’s delay in electrical turn-on.

The plaintiff and the third party disagree with the defendant that the plaintiff had failed to exercise due diligence in relation to the delay in installing the electrical meter compartment doors. They contend that the purpose of the Master Programme is primarily to monitor the reasonable progress of the Works. The Master Programme does not stipulate contractual deadlines for the plaintiff to strictly adhere to, failing which it would have failed to act with due diligence.

For EOT 3, the plaintiff and the third party deny that the failure of the First Testing and Inspection is evidence of the plaintiff’s lack of due diligence. Although the Project failed SPPG’s First Testing and Inspection because certain mechanical and electrical items did not comply with SPPG’s safety and connection requirements, these were not construction faults. The plaintiff had constructed the electrical installation works fully in accordance with the M&E construction drawings for the Project. The comments arising from SPPG’s First Testing and Inspection required the plaintiff to make some amendments on the single line diagram. There were also comments for the plaintiff to rectify some signage, earthing and minor statutory non-compliance issues. Accordingly, the plaintiff could not be said to have acted without due diligence.

In addition, the plaintiff and the third party deny that the circumstances surrounding EOT 3 suggest that the result of EOT 3 was pre-determined. Although CCA had initially refused to support the plaintiff’s request for EOT 3, CCA acknowledged that their initial refusal was “too hasty”. In any event, it was the third party who had to make the ultimate decision of whether or not to grant EOT 3. The third party honestly believed that the plaintiff was entitled to EOT 3 as the request for EOT 3 arose from the same set of issues in EOT 2.

Completion certificate

The third party asserts that the CC was issued properly, honestly and in good faith based on its independent and professional judgment. The plaintiff agrees that the third party was entitled to certify completion on 17 April 2013.

Firstly, the third party was of the honest opinion that the Project was “ready for occupation and for use”. Therefore, Item 72(a) of the Preliminaries was satisfied. In this regard, both the plaintiff and the third party are of the opinion that it is not a condition precedent for the TOP to be awarded by the BCA before the CC can be issued. The Project “was for all practical intents and purposes, physically ready for occupation and use”. The third party was of the opinion that any further work on the Project, including the rectification of the steps and risers, were “minor outstanding works”.

Secondly, the plaintiff and the third party also submit that Item 72(b) of the Preliminaries was satisfied as, save for the gas supply, all the services at the Project were tested, commissioned and operating satisfactorily at the time the CC was issued. The gas supply was not tested and commissioned prior to the issuance of the CC due to safety concerns raised by CCA and the defendant consented to this.

As for the requirement for all test certificates, operating instructions and warranties to be handed over to the defendant before the issuance of the CC, the third party took a “practical approach” and decided that these documents could be prepared during the maintenance period. The focus was to deliver on the “key deliverable”, which was the construction of the Project. The plaintiff also states that the defendant refused to take over the Project after the CC and the TOP were issued. This further resulted in the late handing over of the test certificates, operating instructions, and warranties.

Maintenance certificate

The third party submits that it issued the MC on 7 July 2014 as it was satisfied that all the defects, including those validly raised by the defendant through BAPL, had been rectified. Furthermore, the third party avers that there was sufficient time given to the defendant and BAPL to prepare their list of defects. In addition, there was no need to issue a Schedule of Defects as the MC was only issued when the third party was satisfied that all the valid defects had been rectified by the plaintiff. The plaintiff agrees with the third party. Furthermore, the plaintiff adds that even as late as 30 April 2014, the list of defects highlighted by BAPL continued to expand and most of the items identified were repetitive and some were merely photographs without any proper indication of the exact locations of the defects. The plaintiff also denies that it requested the third party not to accept the list or photographs of the alleged defects.

Payment certificates

The plaintiff and the third party argue that IC25, IC26 and the FC were issued by the third party properly, honestly and in good faith based on the third party’s independent and professional judgment. The third party had exercised reasonable skill and care in issuing the three payment certificates.

With regard to the retention sum, the third party withheld it until such time as the outstanding works stated in the schedule of the CC were completed. After the issuance of the CC, the plaintiff made a claim for the release of the first half of the retention sum. The third party only certified the release of half of the retention sum in IC25 when it was satisfied that the corresponding amount of works was completed. The other half of the retention sum was withheld and certified for release only in the FC.

The third party also avers that it exercised its professional judgment in coming to the conclusion that there was no delay to the Project. Accordingly, there was no basis to issue a delay certificate for liquidated damages payable by the plaintiff to the defendant.

Finally, the third party argues that it properly accounted for the PC Sums and the PC Rate items claimed by the plaintiff. The third party was provided with all the necessary supporting documents to verify and approve the amounts claimed. Copies of these supporting documents were provided by F+G to the defendant’s solicitors on 23 June 2014. The supporting documents were again given to the defendant on 28 October 2014. In any event, the third party submits that the Contract does not mandate the provision of supporting documentation by the plaintiff to the third party before an architect’s instruction can be issued.

Architect’s fee

Under the MOA, the defendant was to pay the third party for the provision of professional services for the Project. Clause 2 of the MOA states:

The amount of fees payable to the third party (“Architect’s Fee”) is set out in the Schedule of Architect’s Fee in the MOA. The relevant clauses are cll 2.2(m) and 2.2(n) read with cl 2.1(5)(b) of the MOA, which stipulate how and when the portions of the Architect’s Fee become progressively payable. Under cl 2.2(m), 3% of the Architect’s Fee became payable when the Project obtained a TOP while under cl 2.2(n), 2% of the Architect’s Fee became payable when the Project obtained a Certificate of Statutory Completion (“CSC”).

The TOP for the Project was obtained on 16 September 2013 and the CSC for the Project was obtained on 12 May 2014. Thus, the third party is now claiming from the defendant 5% of their Architect’s Fee, which is in the sum of $60,990 with interest.

The summary judgment application

Having provided the relevant background to this dispute, it is now necessary to highlight that the plaintiff had filed an application to enter summary judgment against the defendant for the non-payment of IC25 and IC26 under O 14 r 1 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“Rules of Court”). The plaintiff argued that cl 31 of the SIA Conditions entitled it to full payment of the claimed sums. The relevant portions of cl 31 state as follows:

Clause 31(13) of the SIA Conditions sets out the conditions in order for the third party’s certificates to be granted “temporary finality” (see Chin Ivan v H P Construction & Engineering Pte Ltd [2015] 3 SLR 124 (“Chin Ivan”) at [18]–[21]). The defendant argued, inter alia, that IC25 and IC26 were tainted by fraud, which included recklessness in certification.

The assistant registrar granted the plaintiff’s application for summary judgment. On appeal, I upheld the assistant registrar’s decision on the basis that the certificates were not tainted by fraud, improper pressure or interference. However, on further appeal by the defendant, the Court of Appeal (“CA”) in Ser Kim Koi v GTMS Construction Pte Ltd [2016] 3 SLR 51 (“Ser Kim Koi (Court of Appeal)”) found that on the facts of the case and the evidence before the court at the enforcement stage, the third party issued the CC, IC25 and IC26 at least without belief in their truth and/or recklessly without caring whether they were true or false. Further, the CA was of the view that the CC, IC25 and IC26 were not issued properly under the terms and conditions of the Contract (at [67] and [98]). Accordingly, the CA allowed the defendant’s appeal.

It must be emphasised that the CA expressly acknowledged at [105] that its “findings at [the] enforcement stage … will necessarily be prima facie and non-conclusive at the substantive and final determination of the disputes between the parties”. This general principle in summary judgment applications must apply with greater force when one considers the following facts. The third party was not a party to the summary judgment application and did not make submissions in Ser Kim Koi (Court of Appeal). It had only filed a brief affidavit in support of the plaintiff’s application. This was also acknowledged by the CA, who stated at [77] that the third party ought to have provided more detailed explanations about the certificates in question. In addition, given that the summary judgment application was not concerned with the merits of the certificates, but only with enforcement, the relevant and complete documents were not produced before the CA. Furthermore, the parties were not cross-examined. I shall elaborate on the CA’s judgment in greater detail below.

My decision

The main protagonist in this case is the defendant. He refuses to pay the plaintiff for the sums arising from the certified payment claims and the balance of the Architect’s Fee. The defendant’s primary grievances are that the plaintiff and the third party conspired to injure him and that the third party breached its contractual and/or tortious duties owed to him. As the conspiracy to injure the defendant is the central feature of the defendant’s claim that purportedly tainted all the transactions in the Project, I shall first address the defendant’s claim of unlawful means conspiracy.

The defendant’s claim in unlawful means conspiracy

The relevant legal principles

The CA in EFT Holdings, Inc and another v Marinteknik Shipbuilders (S) Pte Ltd and another [2014] 1 SLR 860 (“EFT Holdings”) at [112] sets out the following requirements to establish the tort of unlawful means conspiracy:

(a) there must be a combination of two or more persons to do certain acts;

(b) the alleged conspirators had the intention to cause damage or injury to the claimant by those acts;

(c) the acts were unlawful;

(d) the acts were performed in furtherance of the agreement; and

(e) the claimant suffered loss as a result of the conspiracy.

Therefore, in order to establish the tort of unlawful means conspiracy, the burden is on the defendant to prove the following:

(a) the plaintiff and the third party agreed or combined to do certain acts. This may be inferred from the circumstances and the acts of the alleged conspirators, but such inference can only be drawn from overt acts (see Turf Club Auto Emporium Pte Ltd and others v Yeo Boong Hua and others and another appeal [2018] 2 SLR 655 (“Turf Club”) at [347]);

(b) the plaintiff and the third party had the intention to cause damage or injury to the defendant by those acts. This involves an examination of their subjective knowledge and intention at the relevant time (see Turf Club at [354]). Reasonable foreseeability that the defendant would or might suffer damage is not sufficient (see EFT Holdings at [99]);

(c) the acts were unlawful. A breach of contract can constitute an unlawful act (see Turf Club at [356]);

(d) the acts of the plaintiff and the third party were performed in furtherance of the agreement; and

(e) the defendant suffered loss as a result of the conspiracy.

The defendant’s claim of unlawful means conspiracy is an enormously serious allegation, especially when it is made against professionals who rely on their reputation for their livelihoods. This claim is premised on the plaintiff and the third party committing fraud on the defendant. In this regard, the elements of fraud were set out by Lord Herschell in Derry v Peek (1889) 14 App Cas 337 at 374, cited also in Ser Kim Koi (Court of Appeal) ([67] supra) at [38]:

Further, the nature of the evidence required to establish fraud is well established. As stated by the CA in Broadley Construction Pte Ltd v Alacran Design Pte Ltd [2018] 2 SLR 110 at [18]:

This principle was explained by the CA in Tang Yoke Kheng (trading as Niklex Supply Co) v Lek Benedict and others [2005] 3 SLR(R) 263 at [14] as follows:

The defendant was the only factual witness who testified in support of his claim in unlawful means conspiracy. Although he had engaged Assistants who were his personal private advisers to closely monitor the progress of the construction of the Project, he did not call them as his witnesses. In his pleadings he alleged that the plaintiff and the third party had conspired to:

In order for the defendant to succeed in his conspiracy claim, he had to prove firstly, that there was an agreement expressly or impliedly between the plaintiff and the third party to do the acts as stated above at [71(a)]. Secondly, that there was an intention to cause injury to the defendant.

I accept that an agreement between conspirators is often tacit and conceived in private (see SH Cogent Logistics Pte Ltd and another v Singapore Agro Acricultural Pte Ltd and others [2014] 4 SLR 1208 at [51]). Thus, I appreciate that it might be difficult to provide direct evidence of a concrete or tangible agreement being reached by all the conspirators (see Syed Ahmad Jamal Alsagoff (administrator of the estates of Shaikah Fitom bte Ghalib bin Omar Al-Bakri and others) and others v Harun bin Syed Hussain Aljunied and others and other suits [2017] 3 SLR 386 at [60]). However, it must be emphasised that a “mere unsubstantiated assertion is clearly insufficient. And even something that goes a little more beyond mere assertion is still insufficient” (see Wu Yang Construction Group Ltd v Zhejiang Jingyi Group Co, Ltd and others [2006] 4 SLR(R) 451 at [93]).

In the present case, the evidence of conspiracy and fraud adduced by the defendant was wholly speculative and spurious. Having regard to the lack of veracity and credibility of his evidence, I find that the defendant has failed to discharge his burden to prove, on a balance of probabilities, that there was an agreement, whether expressly or impliedly, between the plaintiff and the third party to defraud or injure the defendant. Neither did the defendant establish on a balance of probabilities any of the other requirements of a claim in unlawful means conspiracy. The strength and cogency of the evidence that was furnished by the defendant to support his allegations of conspiracy and/or fraud are far from adequate. I should add that even if the nature of evidence required were similar to that in a normal civil action, the defendant would still have failed to establish that the plaintiff and the third party were in a conspiracy to defraud him. I shall now explain my decision.

My general findings in relation to the conspiracy claim

Even before turning to the numerous specific allegations raised by the defendant, set out at [383]–[576] below, I set out my general findings with regard to the overarching conspiracy claim that allegedly tainted the entire Project from the very beginning (ie, the tender process) to the end (ie, the issuance of the CC, the MC, and the FC by the third party). Firstly, I find that the defendant had a propensity to rely on speculations and suspicions that were not supported by any reliable evidence. Secondly, the defendant’s narrative, particularly regarding his allegations of conspiracy, was very incredible. Lastly, the defendant also refused to call any of his Assistants, whom he had engaged to safeguard his interests in this Project, to testify on his behalf. This is highly suspicious as these Assistants would be the very individuals who would be able to support any claims he had in relation to his allegation of conspiracy. I shall elaborate on each of these general findings in greater detail in the following sections.

The defendant had a proclivity for speculations and suspicions

The defendant had a propensity to make reckless and speculative allegations, despite knowing that these allegations and suspicions were tenuous and unsupported by evidence. To use the defendant’s own expression, these allegations were based on his mere “feelings”. There was no direct or even circumstantial evidence to support these allegations. In most instances, these allegations were not even pleaded or included in the defendant’s AEIC.

For instance, when he was cross-examined by the plaintiff’s counsel, Mr Thulasidas s/o Rengasamy Suppramaniam, the defendant made the Bribery Allegation and alleged unequivocally that the plaintiff had bribed the third party in order to be awarded the tender. Notably, this was the first instance in which the court was apprised of this enormously serious allegation. The Bribery Allegation was not pleaded or included in the defendant’s AEIC.

The Bribery Allegation was later retracted by the defendant on the same day after he conceded that he did not have any evidence that the plaintiff had bribed the third party. However, this retraction was equivocal, in so far as the defendant later re-surfaced the allegations of bribery and corruption in cross-examination. The defendant expressly acknowledged that these allegations were only speculative:

The defendant also alleged that the Consultants, apart from Web, were parties to the conspiracy to injure him. When asked by the third party’s counsel what motivation or reason the Consultants had to injure him, the defendant again raised allegations of bribery and corruption. The premise of the defendant’s allegations was his observation that the Consultants had changed to “bigger and better car[s]”:

The allegations of bribery and corruption did not advance the defendant’s case at all. In fact, these allegations revealed that the defendant is, at his core, someone who is deeply distrustful of others who did not decide in his favour regardless of the merits. The defendant would make certain observations (eg, that some Consultants had changed their cars, or that the plaintiff had repaired RTO Leong’s house) and thereafter draw the wholly unmeritorious conclusion that the plaintiff, the third party and the Consultants had been conspiring to injure him at the material time.

Furthermore, I note that there were numerous other allegations made by the defendant that were based on his speculations and suspicions. These allegations were not borne out by the contemporaneous correspondence and documents. A non-exhaustive list of these allegations include:

(a) The defendant’s allegation that RTO Leong, the plaintiff and the third party had deliberately sabotaged the hard drive of RTO Leong’s laptop in order to prevent the defendant from retrieving relevant information. However, the defendant later conceded that just because RTO Leong’s hard drive was damaged did not mean that it was sabotaged.

(b) The defendant’s allegation that there were tenders which were submitted late, possibly including the plaintiff’s tender. This was based on what he apparently heard from a lady at the third party’s office, which was in any event hearsay.

(c) The defendant’s allegation that Soil-Build was discriminated in the way the tender process was implemented. This was based on what Soil-Build purportedly told him, which was also hearsay.

(d) The defendant’s allegation that CCA’s statement in its final tender report that “[t]he [plaintiff’s] tender submission is generally complete and in compliance with the tender specifications” was incorrect. However, the defendant could not explain why he disagreed with CCA’s statement.

(e) The defendant’s allegation that Daiya had submitted the schedule for deviations, contrary to what CCA had stated. The defendant’s allegation was based on what Daiya’s boss had apparently told Ms Linda Chua Hwee Hwee (TPW7, “Ms Chua”) of CCA, which was in any event hearsay.

(f) The defendant’s allegation that Soil-Build must have complied with the tender given that it is a listed company.

When questioned on the numerous inconsistencies in his evidence, the defendant also sought to shy away from responsibility. On occasion, when he was caught or cornered with inconsistent statements in cross-examination, he went as far as to state:

It is difficult to accept the evidence of the defendant who has a penchant for suspicions and who would take the slightest opportunity to impugn those around him who are not on his side.

The defendant’s version of events was incredible

In his testimony in court, the defendant claimed to have knowledge of the conspiracy as early as between March and May 2011, when the tender was awarded to the plaintiff. Yet, the defendant refused to take any action after he supposedly was convinced that there was a conspiracy by the plaintiff and the third party to plot against him. This can only be described as bizarre if he had, indeed, known that he was a victim of a conspiracy to defraud him at the nascent stage of the Project. This aspect of the allegations he made in court is not in the defendant’s pleadings or in his AEIC. It is unbelievable that the defendant, an experienced, shrewd and very wealthy businessman, would sit idly by and allow the plaintiff and other professionals to conspire to defraud him of millions of dollars.

The defendant also claims that he is a man of principle. He explained that he does not intend to seek alternative settlement of this case as he wishes to contest this case as a matter of principle. Yet when he purportedly discovered the conspiracy against him by the third party, the plaintiff, and the Consultants at the early stage of the Project, he claimed that he did not do anything as he just wanted the Project to be completed. This is deeply inconsistent with the behaviour one would expect from a man of principle. This suggests that there is no truth in the defendant’s allegations that he knew there was a conspiracy to injure or defraud him.

I also find that the defendant’s allegations of conspiracy on the part of the third party, the plaintiff and the Consultants are incredible. In his pleadings and AEIC, the defendant alleges that the conspiracy involved only the plaintiff and the third party. However, during his cross-examination by the third party’s counsel, the defendant essentially alleged that the entire team of professionals involved in the Project, apart from his Assistants and Web, was conspiring to injure him.

It is clear that to the defendant’s mind, the entire Project team slowly devolved into a cesspit of lies and conspiracy. However, this conspiracy theory simply is not borne out on the facts. I highlight two general difficulties that present themselves in relation to his claim of conspiracy.

(1) The defendant’s assertion that CCA, F+G and RTO Leong were conspiring against him

From the defendant’s pleadings and AEIC, it is clear that the parties to the alleged conspiracy to injure him were only the plaintiff and the third party. This was also the position taken in the defendant’s opening statement. There was not the slightest hint that the Consultants, excluding Web, were co-conspirators as well. However, when cross-examined by the third party’s counsel, the defendant then expanded the number of conspirators to almost every professional involved in the Project. The only individuals who were spared were Jessie Tan (TPW8, “Ms Tan”) from Web, the defendant’s wife and his Assistants. The defendant took the position that eight other professionals involved in the Project were all lying and he was the only factual witness that was telling the truth. The list of conspirators is as follows:

(a) in relation to the tender process, Mr Dennis Tan (PW1, “Mr Tan”) and Mr Angamuthu Manoosegaran (PW2, “Mr Manoosegaran”) (from the plaintiff), Mr Phillip Yong (TPW1, “Mr Yong”), Ms Pakawadee Chiyachan (TPW3, “Ms Chiyachan”) and Mr Chan (TPW2) (from the third party), and Ms Chua (TPW7) (from CCA);

(b) in relation to EOT 1, Mr Tan and Mr Manoosegaran (from the plaintiff), Mr Yong, Ms Chiyachan and Mr Chan (from the third party), and Mr Daniel Ng Pak Khuen (TPW6, “Mr Ng”) from F+G;

(c) in relation to EOT 2 and EOT 3, Mr Tan and Mr Manoosegaran (from the plaintiff), Mr Yong, Ms Chiyachan and Mr Chan (from the third party), Ms Chua (from CCA) and Mr Ng (from F+G);

(d) in relation to the CC and the MC, Mr Tan and Mr Manoosegaran (from the plaintiff), Mr Yong, Ms Chiyachan and Mr Chan (from the third party), Ms Chua (from CCA), Mr Ng (from F+G) and RTO Leong; and

(e) in relation to IC25, IC26 and the FC, Mr Tan, Mr Manoosegaran and the plaintiff’s QS (from the plaintiff), Mr Yong, Ms Chiyachan and Mr Chan (from the third party), Ms Chua (from CCA), Mr Ng (from F+G) and RTO Leong.

Although CCA, F+G and RTO Leong were not joined as third parties to the Suit, the defendant ought to have pleaded that they were co-conspirators and mentioned their involvement in the alleged conspiracy in his AEIC. But this is not the case. This glaring omission in identifying the parties to the conspiracy weakened the defendant’s conspiracy claim significantly.

This allegation of conspiracy was vehemently objected to by Mr Ng, on behalf of F+G, as follows:

It was apparent that this was the first time Mr Ng had heard about the defendant’s allegation of conspiracy on the part of F+G, and that it was so incredible to him that he had to clarify whether he was the individual identified. That much speaks about the credibility of the defendant’s claim.

Furthermore, if F+G was one of the conspirators with the plaintiff and the third party, why did the defendant through Mr Cheung, on 31 December 2013, engage F+G to “prepare a valuation of the defective works found in the Units”? Going by the defendant’s allegations, in December 2013 the relationship between the defendant, the plaintiff and the third party was not working out well and the defendant was already highly suspicious of the plaintiff and the third party. If F+G truly was a party to the conspiracy, the defendant would not have trusted F+G to conduct a valuation of the defective works.

The defendant’s allegations of conspiracy on the part of RTO Leong are equally incredible. His speculations of such conspiracy are captured in the following exchange in court between the defendant and the third party’s counsel:

When RTO Leong was questioned about this in court, he testified as follows:

I note at this point that RTO Leong’s evidence must be treated with caution. There was one instance in which he revealed candidly that he signed that he had witnessed the testing and commissioning of the swimming pools for the Project on 15 July 2013 when he did not do so. He said he was asked to do so by Mr Sankar (one of the plaintiff’s staff), who informed him that Ms Chua had asked him to sign. As Ms Chua was the M&E engineer and his superior in the Project, RTO Leong felt pressured to comply. However, this was contradicted by Ms Chua on the stand who denied making such a request to RTO Leong through Mr Sankar.

Notwithstanding this, the very veracity of the defendant’s claim is dubious. The defendant alleges that RTO Leong sought the plaintiff’s assistance to repair the leaks in RTO Leong’s house. When RTO Leong was asked in court about this matter, he said that the plaintiff was called to repair leaks in the defendant’s house. Thus, it is unclear whether it was the defendant’s house that was leaking or RTO Leong’s. There was no contemporaneous evidence of the defendant’s claim in this regard beyond his own assertion, which is, at its very best, questionable. Even if the defendant were to be believed, it is incredible that he was able to infer that there was a conspiracy simply because the plaintiff had separately assisted RTO Leong to repair the leak in the latter’s house.

Similar to what the defendant had done with F+G, he had in fact employed RTO Leong directly to work for him, after RTO Leong was released from the Project on 1 July 2013. He wanted RTO Leong to identify more defects and to monitor the defect rectification on his behalf because of RTO Leong’s familiarity with the Project. This was reflective of the defendant’s relationship with RTO Leong at the time of the Project, as RTO Leong testified:

If RTO Leong truly was a party to the conspiracy, the defendant would not have trusted him to identify defects and oversee the rectification of the defective works. Despite their previously close relationship, the defendant now has no qualms about tarnishing RTO Leong’s reputation and branding him as a co-conspirator.

This lends weight to the conclusion that the entire conspiracy claim is untrue and a mere afterthought. It is a figment of the defendant’s biased imagination that he conjured when he was in the witness stand to amplify his conspiracy defence to defeat the plaintiff’s and the third party’s claims.

(2) The conspiracy claim is inconsistent with the contemporaneous evidence

The defendant claims that he was aware of the purported conspiracy between the plaintiff and the third party from as early as March to May 2011, which was when the tender for the main contractor of the Project was processed. This was at the start of the Project. However, in spite of this knowledge, the defendant did not protest or even entertain the idea of replacing the plaintiff and the third party. The defendant claimed that he still wanted to “trust” the plaintiff and the third party, even though he knew that they were defrauding him of millions of dollars. The defendant’s explanation is unconvincing and unbelievable. Any reasonable individual, let alone an experienced and principled businessman, as the defendant claimed he was, would have dismissed the plaintiff and the third party if he knew that he was indeed a victim of fraud.

Further, the defendant did not even tell anyone, including his wife and his trusted Assistants, about his knowledge of the alleged conspiracy. It is strange that he did not even alert his hand-picked Assistants who he personally employed to safeguard his interests in the Project about the alleged conspiracy. The defendant has also, to date, not made a police report in relation to the conspiracy, nor has he made complaints about the conspiracy to injure him against the professionals involved in this Project to the respective professional bodies. The defendant, by his own account, essentially did nothing when he purportedly suspected the alleged conspiracy. There are also no records in the contemporaneous correspondence and documents, including the minutes of the site meetings, to suggest even the slightest hint of any conspiracy between the plaintiff and the third party.

Accordingly, the defendant’s own conduct and the contemporaneous evidence do not support the defendant’s contention that there was a conspiracy from as early as March to May 2011. In all probability, the defendant pieced together the conspiracy claim after the plaintiff tried to enforce its certified payment claims in an attempt to avoid his contractual liability.

The defendant refused to call any of his Assistants to testify

For the purpose of his case, the defendant relied on nine experts in order to defend and counterclaim against the plaintiff and the third party. However, he did not call any of his Assistants to testify as to the presence of the conspiracy that has tainted most of his defence and the basis of his counterclaim. I have earlier at [8] made reference to the defendant’s Assistants, who were a group of individuals whom the defendant had hand-picked and paid to assist him in monitoring the Project. However, when the defendant was cross-examined on their exact role in the Project, the defendant sought to significantly downplay their roles. The inference is clear. Should he call these Assistants to testify, his case, particularly the serious allegations of conspiracy and fraud on the part of the plaintiff and the third party, would be severely undermined. The Assistants were the very individuals best placed to establish the presence of a conspiracy, as they would have been well-apprised of the development of the Project and could bear witness to everything alongside the defendant.

I begin with Mr Chow, who attended most of the site meetings. According to the defendant, Mr Chow’s “main job” was to “make sure that the waterproofing when they are putting up the membrane, he take a look and make sure that it is fully covered [sic]”. In fact, he had been brought in by the defendant as an additional check on the progress of the plaintiff and the Consultants:

Mr Chow was, thus, heavily involved in the Project, at least in relation to the construction of the swimming pools. Based on the defendant’s evidence, he was allegedly the one who had first noticed that there were issues with the waterproofing.

Similarly, in the case of Dr Anand, although he was involved in the Project for a short duration, he attended the site meetings fortnightly during the period of his involvement. According to the defendant, Dr Anand’s role was as follows:

Dr Anand’s role was, thus, to meticulously place on record every occurrence and discussion at the site meetings. He had been brought in to do this and was remunerated well, because the defendant was of the opinion that the plaintiff and the third party had refused to keep proper records. In fact, it appears that Dr Anand attended the site meeting on behalf of the defendant when the defendant was on holiday. Both Mr Chow and Dr Anand were well positioned to provide evidence as to the existence of any conspiracy, given their heavy involvement in the Project. This fact raises the irresistible and obvious question of why the defendant refused to call them as his witnesses.

Mr Cheung was the general manager and director of BKAsiaPacific (Singapore) Pte Ltd, a claims consultancy which specialises in infrastructure and construction claims. According to his curriculum vitae, which was tendered by the third party, Mr Cheung regularly provides expert reports and advice in relation to construction and infrastructure projects. Mr Cheung also has vast experience in giving evidence in court as an expert witness.

Notwithstanding Mr Cheung’s significant expertise and experience, the defendant claimed that he paid Mr Cheung a $5,000 “token sum” monthly to perform “only administrative” work. Specifically, the defendant alleged that Mr Cheung was apparently engaged only to send and receive e-mails on behalf of the defendant and to record minutes of the site meetings. The defendant strongly disagreed with the third party’s counsel that Mr Cheung was his “adviser”, “main agent”, or that he was heavily involved in the Project.

However, nothing could be further from the truth. Unbeknownst to the defendant, the third party’s counsel was in fact simply using the defendant’s own description of Mr Cheung’s role in the Project from the defendant’s earlier affidavits dated 20 March 2017 and 20 April 2017 as his adviser and main agent for the Project. The defendant was unable to explain the clear and obvious contradictions in his evidence, as revealed in the following excerpt:

It is clear from the defendant’s affidavits dated 20 March 2017 and 20 April 2017 that the defendant directly contradicted his own evidence concerning Mr Cheung’s role in the Project. Firstly, from these affidavits, Mr Cheung was his adviser and did not merely have administrative or secretarial duties. Secondly, Mr Cheung was for all intents and purposes the defendant’s right-hand man. Mr Cheung was the defendant’s “main agent” whom he relied on to communicate with the plaintiff, the third party and the Consultants. Thirdly, Mr Cheung has specialised knowledge and experience in construction matters. Finally, Mr Cheung was heavily involved in the Project and was clearly an integral part of the defendant’s team helping the defendant to closely monitor the progress of the Project. The numerous contemporaneous e-mails that were sent during the construction of the Project by Mr Cheung to the plaintiff, the third party and others involved in the Project clearly show that he played an important and active role on behalf of the defendant.

In his affidavits dated 20 March 2017 and 20 April 2017, the defendant was trying to convince the court that Mr Cheung had played an integral role in the Project. This was to persuade the court that Mr Cheung should be allowed to accompany the defendant to inspect the third party’s documents. Thus, it is clear that the defendant was content to tailor his evidence at different stages of the case to suit his needs. When his contradictions were exposed and made obvious to any reasonable person, the defendant audaciously denied the contradictions. The defendant’s contradictions were clear as day and he failed to provide satisfactory explanations. In addition to bringing into question his entire claim of conspiracy, his credibility and reliability as a witness were significantly undermined by his evasiveness and vacillating testimony during the trial.

In response to my question, the defendant again maintained his incredible story that his Assistants (including Mr Cheung) merely played minor roles, and that he (ie, the defendant) was the only one who knew about the conspiracy against him:

Even taking his evidence at its highest, the defendant alleged that the body language of Mr Cheung showed that he shared the defendant’s sentiments or interpretation, or at the very least was unhappy about the way in which the plaintiff and the third party were operating the Project. If that were true, it demonstrates that there was a general dissatisfaction towards the plaintiff and the third party. This would only serve to bolster the defendant’s claim of a conspiracy and would have been best illustrated by calling his Assistants as witnesses. The fact that he refused to call any of his Assistants as witnesses only goes towards showing that the allegations of conspiracy never existed during the Project. Such allegations only arose after the plaintiff requested for payment pursuant to the last three payment certificates.

Having made these general observations regarding the defendant’s allegations of conspiracy, I shall now make some general observations of the defendant’s case as a whole, before turning to examine the relationship between the defendant and the third party.

My general observations of the defendant’s case

Notwithstanding that the third party was engaged by the defendant, the trust between them slowly eroded towards the end of the Project. When the defendant made excessive demands and unreasonably rejected the rectification works of the plaintiff, he expected the third party to be on his side. However, the third party exercised its professional and independent judgment and found that the rectifications were satisfactory. This infuriated the defendant who became extremely upset and made outrageous and baseless allegations that the defendant and the third party were in a conspiracy to defraud and collude against him, and that the third party was not impartial. I find that most of the defendant’s allegations are unfounded. There is no iota of evidence, not even circumstantial evidence, to support the hugely serious allegations of conspiracy to defraud, corruption and collusion between the plaintiff and the third party. It seems that the defendant has no qualms about carrying out these shenanigans against the plaintiff and the third party even when he knows that he has no evidence to substantiate them. When the other Consultants came forward as witnesses to support the plaintiff’s and the third party’s version of events, the defendant decided to tar everyone with the same brush, asserting without any shred of evidence that they were all parties to an alleged conspiracy to harm him.

It is very difficult to believe the defendant’s allegations of conspiracy. The cogent evidence suggests to me that this conspiracy never existed in reality as it is a figment of the defendant’s imagination arising from his suspicions of the plaintiff, the third party and the Consultants as they resisted his unreasonable conduct. When the plaintiff sought from the defendant payment for the last few certified payment claims, the defendant decided to use the conspiracy claim as a shield for him to avoid any liability.

On the contrary, the evidence shows that the plaintiff and the third party as well as the Consultants were dealing with each other at arm’s length and they behaved professionally throughout the Project. The third party may have been negligent in certain aspects of his duties in this Project, for instance, the failure to know the existence of Item 72 of the Preliminaries in the Contract. However, these lapses certainly were not deliberately or intentionally done to cause harm to the defendant, who was his principal and with whom he had a contractual relationship. There was no contractual nexus between the plaintiff and the third party. There was no reason for the third party to favour the plaintiff unless the allegations by the defendant have some truth, which is not the case here.

I shall begin with my assessment of the defendant’s credibility and veracity as a witness. The defendant was extensively and thoroughly cross-examined by the plaintiff’s and the third party’s respective counsel over 13 days. I had ample opportunities to evaluate the defendant’s credibility and reliability. However, I did not find the defendant to be a credible or reliable witness. The defendant’s testimony was riddled with internal inconsistencies as there were numerous contradictions for which he could not provide a reasonable or satisfactory explanation. This diminished his credibility as a witness. When confronted with his own shifting evidence and the objective correspondence and documents during cross-examination, the defendant was often evasive. In fact, I note that this is not the first time such observations have been made of the defendant’s credibility. In Holland Leedon Pte Ltd (in liquidation) v C & P Transport Pte Ltd [2013] SGHC 281, in which the defendant had testified as a witness, Lionel Yee JC observed at [152] that the defendant “seemed to be unable to recall many things and often appeared to be asserting what he thought ought to be the case rather than what he could specifically remember the facts to be” [emphasis added].

To further his campaign against the plaintiff and the third party, the defendant sought the help of Mr Chin Cheong (DW7, “Mr Chin”), the managing director of BAPL and the defendant’s expert witness, to identify as many defects as possible in the Project. In December 2013, Mr Chin was engaged by the defendant to identify all defects and suggest methods of rectification. Subsequently, Mr Chin compiled his first findings in Building Appraisal Pte Ltd Report December 2013 (the “2013 BAPL Report”).

Based on, inter alia, the findings in the 2013 BAPL Report, the plaintiff carried out rectification works seeking to appease the defendant. This proved to be of no avail as the defendant repeatedly directed Mr Chin to carry out further investigations on the properties. These further investigations occurred in the following months:

(a) April 2014;

(b) June to November 2014, resulting in the Building Appraisal Pte Ltd Report November 2014 (the “2014 BAPL Report”);

(c) April 2016;

(d) June 2016;

(e) June to July 2017;

(f) May 2018;

(g) August 2018; and

(h) September 2018.

These investigations resulted in the Report on the Schedule of Building Defects at Nos 12, 12A, 12B Leedon Park Singapore (16 October 2018) (the “2018 BAPL Report”). The investigations entailed multiple site visits and resulted in extensive reports compiled by Mr Chin. In each subsequent report, Mr Chin’s findings became more detailed, zooming into even the minutest of details, as he was enormously pedantic. It was a massive hunt for the slightest defects that included the use of precision equipment such as a digital Vernier caliper for the steps and risers, which is not used in the construction industry for the measurement of steps and risers. It was an all-out war with no holds barred declared by the defendant against the plaintiff and the third party.

These actions by the defendant demonstrate his unreasonableness and underscore that he is on a campaign against the plaintiff and the third party, determined to find as many flaws as he can in the Project. Perhaps, this may be one of the reasons why he refused to allow the plaintiff and the third party to enter the units after the handover of the Project for the plaintiff to rectify the alleged defects. The defendant also refused to activate the various warranties from the different NSCs to rectify the purportedly defective works. He allowed the units to deteriorate and attempts to pin the blame on the plaintiff. In the same vein, Mr Chin’s willingness to go along with the defendant’s demands brings into question Mr Chin’s impartiality and reliability, on which I shall now elaborate.

Mr Chin agreed that he was the defendant’s representative, but in response to cross-examination, Mr Chin vehemently insisted that he was “independent and impartial” and that he had “no interest in … any of the parties in this dispute”. He again reiterated this point as follows:

Mr Chin alleged that his duties were to the court when he prepared his first report, ie, the 2013 BAPL Report. At that time, however, the present Suit had not yet commenced. It was only on 13 January 2014 that a writ of summons was filed by the plaintiff. Mr Chin was told in cross-examination that he could not have been an expert to assist the court as this Suit had not started when he was first engaged by the defendant. In response, he steadfastly stuck to his story that he had prepared his 2013 BAPL Report as an independent expert to the court.

It is clear from the evidence that Mr Chin intended to further the defendant’s interest. Mr Chin sought to comment on every disputed defect regardless of its severity. He also overreached and provided his opinion on defects that he later conceded he had no experience in (eg, the gas pipe, the alleged leakages in the swimming pools, Volakas marble, iron wood, etc). In his reports, he gave the impression that he had the prerequisite knowledge and expertise in all matters that he commented on. It was only in court that he disclosed that he was a charlatan as he did not have the expertise in those areas:

Mr Chin also vacillated in his evidence. These are some examples of his contradictory evidence in relation to his testimony on the swimming pool:

He also gave contradictory evidence on the Volakas marble flooring. Initially, he testified as follows:

Later when he was asked again, he retracted from his earlier answer:

Furthermore, Mr Chin’s recommendations for rectification works were generally highly excessive and unreasonable. For instance, in relation to the Volakas marble flooring, he stated in his AEIC that the marble had to be completely replaced as laying new tiles alongside old tiles would only create a “‘chessboard’ effect”. In his 2014 BAPL Report, Mr Chin also provided a mapping of the Volakas marble, identifying those with deficiencies and imperfections. However, his mapping listed almost the entire marble plan as being defective. I observed that this meant that effectively, the entire marble flooring had to be replaced, which Mr Chin agreed with:

However, when asked again in court, he conceded that it was not necessary to replace the Volakas marble, much less all of the Volakas marble, as there were alternative methods of rectification:

Q: Mr Chin, you have recommended rectification works for the defects that you've identified in the Volakas marbles.

A: Yes.

Q: For all three units, correct?

A: Yes.

Q: These rectification works which you have recommended is to replace the marble tile that, in your opinion, has a defect. Correct?

A: Yes.

Q: My question to you is: do you agree that it is not compulsory to carry out these rectification works?

A: Yes.

Q: Yes, you agree that it is not compulsory?

A: Yes.

Q: Thank you. Do you agree also that there are also alternative methods of rectification for the defects you have identified for the Volakas marbles in all three units?

A: Yes.

The defendant was highly unreasonable and excessive in his claim

The defendant mounts a highly hyperbolic, exaggerated and unreasonable claim in this Suit, particularly in the quantum of his claim, his refusal to mitigate his losses, as well as his expectation of the rectification works that should have been carried out. He maintains this position steadfastly and stubbornly.

(1) The quantum of the defendant’s claim

The Project’s original contract lump sum value was $13,130,000. As I have mentioned earlier, the defendant counterclaims against the plaintiff for the sum of $12,752,651 and has taken out a third party claim against the third parties for the sum of $10,853,718.63. The defendant’s claims against the plaintiff and the third party are excessive. If the defendant’s claims were allowed, he would essentially be getting three two-storey good class bungalows for almost free or at a very small fraction of their original contract price. It is clear that the equity of the case is not with the defendant’s claims against the plaintiff and the third party.

(2) The defendant’s refusal to mitigate his losses

It is oft-said that the requirement to mitigate is strictly speaking not a positive legal duty but an expression of the principle that an aggrieved party cannot recover damages in respect of losses it could have reasonably avoided (see The Enterprise Fund II Ltd v Jong Hee Sen [2020] 3 SLR 419 at [86]; Golden Strait Corpn v Nippon Yusen Kubishika Kaisha [2007] 2 AC 353 at [10]). In The Asia Star [2010] 2 SLR 1154 (“The Asia Star”), the CA set out the rules relating to the principle of mitigation. The CA observed at [24], [30] and [32] that:

As seen from the above, the inquiry at this stage is extremely fact-centric and focuses on the reasonableness of the aggrieved party’s conduct. It is also pertinent to note the CA’s further observations at [45] regarding aggrieved parties who take no mitigating action at all:

Till this date, the defendant has made no efforts to mitigate his losses by carrying out defect rectification works. He testified that he only carried out maintenance of the swimming pools and gardening works, opting to leave any defects unattended to “for evidence”.

When the defendant was cross-examined by the plaintiff’s counsel, the defendant stated that as of the handover date (ie, 23 July 2014), he had intended to rectify the defects but was unable to find a contractor to perform the rectification works. This cannot be the truth, as the evidence shows that after the defects were discovered, the defendant called for a tender to repair the defects. Three separate companies submitted tenders as they were interested to rectify the defects but the defendant failed to award the contract. Furthermore, it was revealed when the defendant was cross-examined by the third party’s counsel that the defendant in fact had no intention to rectify the premises as he wanted to “preserve evidence”. This was his true intention which was formed shortly after the CC was issued and before the handover date (ie, 23 July 2014):

Therefore, it is clear that it was the defendant who chose not to make an award to one of the three contractors whom he had invited to tender to rectify the defects. Instead, he opted to leave the defects unrectified and chose to go about collecting evidence against the plaintiff and the third party, essentially fiddling while Rome burned. He inexplicably maintains this unreasonable position until today, despite the plaintiff indicating that it was willing to rectify certain defects even after litigation had commenced.

The defendant has also persistently refused to rent out the Project after it was completed and obtained the TOP and the CSC, if that was his intention. The defendant explained that he had not rented the houses out because they were not in “rentable condition”. He further opined that the houses are, in his view, unsafe for rental as, among other things, the steps and risers are unsafe. However, based on the evidence from his own expert witness, Mr Teo Yik Weng (DW3, “Mr Teo”), this cannot be further from the truth. The defendant engaged Mr Teo to give evidence regarding the market rental value of the three units of the Project. Mr Teo examined the three units on 27 February 2018 to assess their market rental value. Mr Teo acknowledged that there were defects in the units. However, he said that these defects did not affect the rental prospects of the units. In fact, he candidly acknowledged that the units were “fit for occupation” and that he would be able to rent them out.

At the trial, the defendant consistently maintained that the units of the Project were unsafe for tenants because of the unevenness in the height of the steps and risers. When the defendant was questioned on why he thought the units were not in rentable condition, the defendant replied, “The step and riser is one of them. If people get injured, we will be in big trouble. …” However, the defendant’s assertion that the units are unsafe clearly holds no water, given that the units had been awarded the TOP as early as 16 September 2013. In fact, one of the non-compliances required by the BCA to be rectified before TOP could be issued was precisely the uneven steps and risers. The fact that the BCA subsequently issued the TOP, after the steps and risers were rectified, demonstrates that the BCA found them to be compliant and, therefore, safe. Furthermore, the defendant’s claim was clearly rebutted by his own witness, Mr Teo, who testified that he was able to climb the stairs of the three units safely to inspect the unit, despite his age:

This shows the unreasonableness of the defendant’s assertion and his economy of the truth that he could not rent out the units due to safety concerns. Even if he held the view that the defects substantially reduced the rental value of the units, this did not mean that he could simply refuse to mitigate his losses by not renting out the units. The units could still fetch a high rent, as Mr Teo testified:

It is not in dispute that the units have been left vacant by the defendant since July 2014 when the Project was handed over to him. However, I emphasise that the crucial time of assessment of damages remains in the year 2014. This was the year in which the Project was handed over to the defendant. It would be grossly unfair if the plaintiff and the third party were found liable for any defects not arising from the plaintiff’s construction error which may have occurred since that date, especially the purported defects reported in 2018, when the defendant deliberately allowed the units in the Project to deteriorate. The defendant attempted to introduce certain defects discovered at various points in time from 2014 to date. This attempt by the defendant is not equitable as the defects could have been the result of the defendant’s deliberate refusal to maintain the Project, rather than due to the plaintiff’s construction errors. Therefore, the defendant’s reliance on expert reports and photographs of alleged defects after 2014 must be treated with extreme caution.

(3) The defendant’s insistence on absolute rectification

The relationship between the defendant and the third parties

Contractual relationship

Before examining the defendant’s allegations more closely, I first consider the preliminary issue of whether the defendant has legal recourse against the second third party in respect of any claim arising out of the MOA. The second third party was incorporated in or around October 2011, as stated at [4] above. This was after 16 June 2009, the date on which the MOA between the defendant and his wife and the first third party was concluded. Since the first third party and the second third party are separate legal entities, there was no privity of contract between the defendant and the second third party in relation to the MOA. As such, the second third party would not owe any obligations to the defendant under the MOA unless there had been a novation of such obligations.

In Schindler Lifts (Singapore) Pte Ltd v Paya Ubi Industrial Park Pte Ltd and Another [2004] SGHC 34 (“Schindler Lifts”), Judith Prakash J (as she then was) held at [14] that:

The brief facts in Schindler Lifts are as follows. A subcontractor sought to claim payment from the developer, notwithstanding that the subcontract had been concluded between the subcontractor and the main contractor. The subcontractor claimed that there had been an implied novation of the subcontract. Prakash J rejected this, noting at [15]–[16] that negotiations to reach an express novation agreement had been unsuccessful and both parties recognised that no express novation had occurred. Furthermore, Prakash J found that the subcontractor’s taking of instructions from the developer, and the developer’s giving of instructions to the subcontractor, did not amount to an implied novation.

In this case, a deed of novation was forwarded to the defendant on 20 December 2011. This deed of novation would have contractually transferred to the second third party all of the first third party’s rights, duties and obligations vis-à-vis the defendant arising from the MOA . However, the defendant failed to sign and return the deed of novation. This was done at his own choice, as he explained in court:

As in Schindler Lifts, it is notable that an express deed of novation was proposed in this case but ultimately unsuccessful. Given that the defendant himself had rejected the deed of novation, it is now disingenuous for him to turn around and seek to bind the second third party to the first third party’s obligations under the MOA. Furthermore, there is no evidence to show that there was an oral or implied novation. In this respect, the defendant contends that the representatives of the second third party continued to deal with the defendant in relation to the Project under the second third party’s electronic signature and the defendant made payment for services rendered for the Project directly to the second third party. This is clearly insufficient to amount to an implied novation. In Schindler Lifts, the subcontractor also continued to deal with the owner, and retention moneys were released to the subcontractor. Yet, Prakash J held that there was no implied novation. The position here is no different.

Therefore, by virtue of the defendant’s failure to sign this deed of novation, as well as the lack of evidence otherwise showing a novation of the MOA, the rights, duties and obligations arising from the MOA remained with the first third party. The defendant himself admits that the MOA was not novated from the first third party to the second third party because the defendant did not agree to the novation.

In reply submissions, the defendant clarified that he was not asserting that the second third party had a contractual relationship with him. Rather, his claim against the second third party was based on the second third party’s role as an agent of the first third party. The third parties agree that the second third party acted as the first third party’s agent. However, it is trite that a principal is liable for its agent’s acts when such acts are within its agent’s actual or apparent authority. There is no claim to be brought against the agent unless it can be shown that the agent entered into the contractual relationship (which, as I have concluded above, the second third party did not), or the claim is based on a breach of warranty of authority (see eg, Fong Maun Yee and another v Yoong Weng Ho Robert [1997] 1 SLR(R) 751), which is not the case here. Therefore, the first third party, as the principal, bears the liability (if any) for the second third party’s dealings with the defendant. Thus, the defendant has no legal recourse against the second third party in respect of any claims arising out of the MOA. Hence, the defendant’s claim against the second third party cannot succeed and must be dismissed.

Principal and agent

As between the defendant and the first third party, there is also a principal-agent relationship, with the defendant being the principal and the third party being the agent. This is evident from cll 1–8 of the SIA Conditions, as well as cl 1.1(2) of the MOA. None of the parties seriously disputes this.

One implication of this is that as between the defendant and the plaintiff, the defendant is bound by the third party’s actions for which the third party had actual or apparent authority. The concept of apparent authority is described in Halsbury’s Laws of Singapore vol 15 (Lexis Nexis, Singapore) at para 180.182, as follows:

As the CA in Banque Nationale de Paris v Tan Nancy and another [2001] 3 SLR(R) 726 explained at [67]–[68]:

The CA then concluded that there were two requirements for the doctrine of apparent authority to apply: (a) there must have been a representation made by the principal that the agent had the authority to enter into the relevant transactions on its behalf; and (b) the contractor must have relied on this representation.

The doctrine of apparent authority is significant because as regards some of the defendant’s allegations against the plaintiff, the plaintiff had acted on the third party’s instructions. I find that by appointing the third party as his architect, the defendant represented to the plaintiff that the third party had the authority to give such instructions. This is also reflected in several parts of the Contract. In particular, cl 1(1) of the SIA Conditions states as follows:

By complying with the architect’s instructions, the plaintiff relied on the defendant’s representation. As such, as between the defendant and the plaintiff, the defendant is bound by the instructions given by the third party to the plaintiff. However, the defendant may still seek recourse against the third party if the third party was negligent or in breach of contract by issuing such instructions, or if the defendant’s claim of unlawful means conspiracy is made out. I shall elaborate on this below in relation to the specific issues and claims.

Tender process

I shall now examine closely the other allegations made by the defendant to support his conspiracy claim, beginning from the tender process. The defendant alleges that the conspiracy between the plaintiff and the third party started from the tender process. Here, the defendant alleges that the plaintiff, the third party and Ms Chua from CCA conspired to award the tender to the plaintiff. The defendant drew these conclusions on the basis that the tender was conducted improperly.

Having examined the contemporaneous correspondence and documents, I reject the defendant’s allegation of a conspiracy at the tender stage. There was nothing improper about the tender process. In fact, the entire tender process supports the plaintiff’s and the third party’s case that there was no conspiracy to injure the defendant.

The defendant alleges that the third party had “pushed” for the plaintiff to be appointed, instead of Soil-Build or Daiya. Specifically, the defendant relies on the following statements made by the third party in the e-mails dated 4 May 2011 and 9 May 2011:

(a) Firstly, the third party had stated that it had “no doubt that [the plaintiff is able] to deliver the product”.

(b) Secondly, the third party also stated that the plaintiff “should be able to [perform] based on our experience with them at another job site”.

By asserting that the third party was “pushing” for the plaintiff to be appointed, the defendant is implying that the tender process was not fairly conducted. However, I find this contention completely unmeritorious.

The third party was simply performing its duties to the defendant by recommending which contractor to appoint for the Project. There is not an iota of evidence to suggest that the third party did not perform its duty honestly and independently in the exercise of its professional judgment. The third party informed the defendant that the plaintiff had submitted the lowest tender. The third party also took into account CCA’s final tender report for M&E installations. CCA made an independent assessment that the plaintiff had the most competitive bid for M&E installations and that its tender submission was “generally complete and in compliance with the tender specifications”. In contrast, Soil-Build’s tender submission was incomplete in so far as M&E installations were concerned, while Daiya had deviated on the air-con equipment and monthly air-con maintenance.

Additionally, as Mr Yong testified, there was no preferential treatment given to the plaintiff. In fact, on the contrary, preferential treatment appears to have been granted to Soil-Build, to accommodate the defendant’s various requests:

Furthermore, the third party had a prior positive working experience with the plaintiff. The plaintiff was also the contractor with the lowest and most compliant tender, as reflected in the Tender Summary Report No 3 dated 29 April 2011 prepared by F+G.

The third party expressly stated in its e-mail dated 9 May 2011 that the “final decision” on which contractor to appoint was for the defendant to decide. The third party did not state that the plaintiff must be appointed. It was always open for the defendant, the owner of the Project, to reject the third party’s recommendation and proceed to appoint Soil-Build. The evidence further shows that the defendant applied his mind to the selection of the plaintiff and participated in the tender interview. He also requested the financial information of the plaintiff as part of this process. At any point in time, the defendant was free to ask for further documents had he not been satisfied with the selection of the plaintiff. Ultimately, the selection of the plaintiff had really been done at the defendant’s own behest. The defendant himself acknowledged this:

Mr Yong similarly testified that it was the defendant who had selected the plaintiff:

The defendant also asserts that the tender process was improper because the third party had asked Soil-Build to “stay away”. I observe that this was not pleaded and neither was it in the defendant’s AEIC. The defendant also did not subpoena someone from Soil-Build as a witness to establish his allegation. Be that as it may, this is contradicted by the contemporaneous documents which show that Soil-Build was invited to tender, as per the defendant’s instructions, and Soil-Build did submit a tender based on the same tender documentation as all other tenderers. Soil-Build also attended a tender interview held on 19 April 2011.

The defendant also alleges that the third party had made “life difficult” for Soil-Build. When pressed by the third party’s counsel during cross-examination, the defendant elaborated that this referred to the third party telling Soil-Build that items not included in the quote would be treated as part of the lump sum. This was speculative and hearsay as Soil-Build did not testify in court. In any event, there is no evidence to show that this was not told to all the tenderers. The defendant also admitted that he had no evidence to show that Soil-Build was deliberately disadvantaged in the tender process.

In contradistinction, I accept Mr Yong’s evidence that no such actions were taken against Soil-Build:

In fact, the defendant’s entire song and dance regarding Soil-Build appears to be something he came up with belatedly in order to support his claim of conspiracy. I refer to the evidence of Mr See Choo Lip (DW9, “Mr See”). Mr See was the quantity surveyor appointed by the defendant to quantify the value of the rectification works for the defects arising from the Project.

Mr See also prepared tender documents for the rectification works. Three contractors showed interest and submitted their tenders for the rectification works, namely, Maple Builders Pte Ltd, Forum Construction Pte Ltd and Bethnal Construction Pte Ltd. The defendant suggested to Mr See to invite Bethnal Construction Pte Ltd to tender for the rectification works. The defendant had not suggested Soil-Build. This was despite him purportedly wanting Soil-Build to undertake the Project. If it were true that he had confidence in having Soil-Build to do the Project, I would expect the defendant to have invited Soil-Build to tender for the rectification works. But this was not done.

The defendant also alleges that CCA conspired with the third party to grant the plaintiff the tender award. However, this was again entirely speculative and baseless. This is encapsulated by the following exchange between the third party’s counsel and the defendant during cross-examination:

At the material time, the defendant was also concurrently the owner of a construction project at Coronation Road West (the “Coronation Project”). The Coronation Project was eventually awarded to Daiya. Although the Coronation Project is not directly relevant to this Suit, the defendant similarly alleges that there was a conspiracy between the third party and Daiya to wrongfully favour Daiya. The purported “basis” for this allegation was that Daiya had built Mr Yong’s house, but this was again entirely speculative:

Contrary to the defendant’s speculations concerning the tender process, the contemporaneous correspondence and documents show that the tender process was conducted transparently, fairly and thoroughly. There is no iota of evidence to indicate partiality or bigotry in the tender process. It is not necessary for me to set out the complete tender process. However, I shall just refer to three examples.

Firstly, all interested contractors were made to go through the same pre-qualification exercise, of which the defendant was kept informed via e-mail. F+G, who coordinated the tender process and conducted the pre-qualification exercise, disclosed the shortcomings of the plaintiff as early as in the pre-qualification report. It was expressly stated that the plaintiff had no experience in building bungalows that were similar to the Project. It was also disclosed in F+G’s pre-qualification report that the plaintiff had been involved in litigation or arbitration.

Secondly, CCA also raised issues found in the plaintiff’s tender, such as the price for installation of the filtration system.

Thirdly, the third party also asked the defendant for permission to extend the tender date, in order to obtain more competitive quotations. I note that the plaintiff’s initial quotation of $15.2m was eventually reduced by approximately $2m in the final contract sum. For these reasons, I find that there is no evidence to suggest that there was a conspiracy to award the Project to the plaintiff.

The EOTs

The defendant alleges that there was a conspiracy amongst the plaintiff, the third party, Ms Chua from CCA and Mr Ng from F+G to grant EOT 2 and EOT 3 to the plaintiff and that they had the intention to cause injury to the defendant and to defraud him. The defendant bases this conclusion on the claim that EOT 2 and EOT 3 were granted improperly as, among other things, the plaintiff had failed to exercise due diligence and was already in delay, and so was not entitled to any EOT. Further, the defendant also alleges that the circumstances surrounding the EOTs were highly suspicious.

Under cl 23 of the SIA Conditions, which forms part of the Contract, the power to grant EOTs to the plaintiff is vested in the third party. The facts surrounding the grants of the EOTs have also been summarised at [12]–[21] above.

During cross-examination the defendant alleged that EOT 1 supported his conspiracy claim although he did not mention this in his pleadings and AEIC. Accordingly, it is necessary for me to address the plaintiff’s request and the third party’s evaluation process in EOT 1.

EOT 1

EOT 1 concerned the delay in the delivery of marble by the defendant’s supplier, in relation to which the plaintiff made a request on 4 October 2012 for an extension of 60 days. This was eventually rejected by the third party on the basis that the delay in marble delivery was a “non-critical” activity.

The defendant claims that the third party had already agreed with the plaintiff to grant EOT 1 and that this request would have been approved but for the intervention of Mr Cheung. According to the defendant, it was Mr Cheung who questioned the basis for the request for EOT 1 during a meeting, given that the delay in marble delivery was a “non-critical” activity which did not contractually entitle the plaintiff to an EOT.

I note that this version of Mr Cheung’s role in the Project is inconsistent with the defendant’s earlier characterisation of Mr Cheung at the trial as an individual who only had administrative duties, including the forwarding and receiving of e-mails (see [113] above). For the purpose of establishing that there was a conspiracy to injure him, the defendant conveniently enhanced the role of Mr Cheung for this Project, in relation to EOT 1.

Be that as it may, the events surrounding the grant of EOT 1 do not support the defendant’s allegation that the plaintiff and the third party conspired to grant the plaintiff EOT 1. On the contrary, the evaluation process for EOT 1 is evidence of the third party’s professional and independent assessment of EOT requests. In the minutes of Site Meeting No 34 dated 8 October 2012, it is recorded that the plaintiff raised the issue of the delay in the marble delivery and said that they would submit an EOT request. The plaintiff then sent the request for EOT 1 on the same day (ie, 8 October 2012). Between 8 October 2012 and 16 October 2012 (when the minutes for Site Meeting No 34 were circulated), the third party requested the plaintiff to submit the critical path schedule for the third party’s assessment. The third party’s request was repeated in Site Meeting No 35 dated 22 October 2012, Site Meeting No 36 dated 5 November 2012 and Site Meeting No 37 dated 19 November 2012.

Two things become clear from the minutes of these meetings, as well as the minutes that Mr Cheung had himself recorded separately. Firstly, it was the third party who first raised the topic of the critical path. Secondly, there is no indication that Mr Cheung objected to EOT 1 on the basis that it was a non-critical activity. The contemporaneous evidence simply does not support the defendant’s assertion that it was Mr Cheung who had intervened to stop the third party from granting EOT 1 to the plaintiff. Even if Mr Cheung had raised the objection, it is entirely speculative to assert that EOT 1 would have been granted but for his objection. The defendant’s allegations are further weakened by the absence of Mr Cheung’s testimony such that the purported objection from Mr Cheung is hearsay.

EOT 2 and EOT 3

EOT 2 and EOT 3 were granted on the premise that SPPG had delayed the power connection, which therefore caused delay in the T&C of M&E works. It is helpful to first set out the steps required to achieve electricity turn-on which are relevant for this issue. This procedure was explained in the expert report of Mr Lee Keh Sai (DW2, “Mr Lee”), who was instructed by the defendant:

In deciding whether the plaintiff was entitled to an EOT, the third party had to satisfy itself that the relevant pre-conditions in cl 23 of the SIA Conditions were complied with. The substantive pre-conditions are:

(a) the event which is alleged to have caused the delay in completion must be one of the delay events stated in cl 23(1);

(b) the event caused a delay in completion; and

(c) the plaintiff must have acted with due diligence and taken all reasonable steps to avoid or reduce the delay in completion.

The defendant’s case is that SPPG’s delay did not constitute one of the delay events stated in cl 23(1). Further, the delays for which EOT 2 and EOT 3 were granted were caused by the plaintiff’s own failure to exercise due diligence and/or take all reasonable steps to avoid or reduce the same. This is derived from cl 23(1) of the SIA Conditions, which states as follows:

Accordingly, the defendant alleges that the plaintiff was not entitled to any EOT. The defendant contends that the fact that EOT 2 and EOT 3 were issued by the third party without basis suggests that the plaintiff and the third party had an agreement or there was collusion to grant EOTs with the intention to injure the defendant.

Whether SPPG’s delay constitutes a delay event

The first issue in relation to both EOT 2 and EOT 3 is whether SPPG’s requirement of an OG Box (the “OG Box requirement”) and its delay in power connection works constituted one of the delay events under cll 23(1)(a) to 23(1)(q). The plaintiff and the third party submit that cl 23(1)(a) applies in this case. The third party further submits that cl 23(1)(o) also applies. Clause 23(1)(a) stipulates that delay caused by force majeure is a delay event, whereas cl 23(1)(o) read with cl 7(1) pertains to where the alleged delay event resulted in a “variation of the works”. In response, the defendant submits that both cl 23(1)(a) and 23(1)(o) are inapplicable. I shall deal with each of these clauses in turn.

(1) Clause 23(1)(a)

The plaintiff and the third party submit that SPPG’s delay in carrying out power connection works and the OG Box requirement amounted to a force majeure event because it was unforeseeable and/or out of the control of all parties. In response, the defendant submits that cl 23(1)(a) is “meaningless, unenforceable and cannot be relied on” because the Contract does not contain a definition of what constitutes force majeure. The defendant further submits that even if cl 23(1)(a) were operative, SPPG’s delay in carrying out power connection works did not amount to a force majeure event as they were foreseeable. Having considered the parties’ submissions, I find that cl 23(1)(a) is operative and applies in this case.

I turn first to the issue of whether cl 23(1)(a) is operative and enforceable. In my view, the defendant’s argument that cl 23(1)(a) is rendered unenforceable for lack of definition does not hold water. The meaning of the term force majeure is generally understood. In Chow Kok Fong, Construction Contracts Dictionary (Sweet & Maxwell, 2nd Ed, 2014) (“Construction Contracts Dictionary”) at p 198, the term force majeure is explained in the following terms:

Similarly, Halsbury’s Laws of Singapore vol 2 (Lexis Nexis, Singapore) (“Halsbury’s Laws of Singapore”) at para 30.112 states that:

In relation to this “standard form of construction contract”, the learned author of Halsbury’s Laws of Singapore referred to cl 14.2 of the Public Sector Standard Conditions of Contract (7th Ed, 2014). Similar to cl 23(1)(a) of the SIA Conditions, cl 14.2(a) simply refers to “[f]orce majeure” without any accompanying definition.

The concept of force majeure was explained in some detail by the CA in RDC Concrete Pte Ltd v Sato Kogyo (S) Pte Ltd and another appeal [2007] 4 SLR(R) 413 (“RDC Concrete”) at [54] and [57]:

Thus, a force majeure event generally refers to an event that impedes or obstructs the performance of the contract, which was out of the parties’ control and occurred without the fault of either party. Whether a force majeure event arises is ultimately a matter of construction based on the facts of each case, with a view to giving effect to the parties’ intentions. Furthermore, the element of unforeseeability is not strictly necessary. As the CA in RDC Concrete observed at [56], a force majeure clause is “an agreement as to how outstanding obligations should be resolved upon the onset of a foreseeable event” [emphasis in original]. In this regard, the CA distinguished the concept of force majeure from the related doctrine of frustration, in which the element of unforeseeability is critical. However, a force majeure event is typically “radical” (see RDC Concrete at [57]). Borrowing from the doctrine of frustration, this refers to where “the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract” (see Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696 at 729, cited by the CA in Glahe International Expo AG v ACS Computer Pte Ltd and another appeal [1999] 1 SLR(R) 945 at [27]).

The court should be slow to find the force majeure clause unenforceable on the basis that it is not defined in the Contract. In the absence of any contractual definition, I find it appropriate to construe the clause based on its general and established meaning as set out at [197] above – an event that was radical and out of the parties’ control, which occurred without either party’s fault.

The scope and coverage of the term force majeure in cl 23(1)(a) has to be considered in the context of the entirety of cl 23(1) which deals with EOT in the SIA Conditions. Clause 23(1) lists out various instances in which EOT may be granted. It is also important to note that cl 23(1) is derived from the standard SIA Conditions which are often incorporated into construction contracts. In other words, cl 23(1) is not a bespoke contractual term specially contemplated by the plaintiff and the defendant. Clause 23(1) lists a number of delay events from cll 23(1)(a)–(q) in which EOT may be granted. One such delay event is force majeure which is in cl 23(1)(a). There are a few instances in cl 23(1) that can easily come within force majeure but these are stipulated as delay events under other specific sub-clauses. I shall list out the following instances. Clause 23(1)(b) allows an EOT if there are “exceptionally adverse weather conditions”. Clause 23(1)(c) allows an EOT if there is a “fire, storm, lightning, high winds, earthquake or aircraft or aerial objects …”. Clause 23(1)(d) allows an EOT if there is a “war, hostilities, insurgency, terrorism, civil commotion, or riots”. Hence, cl 23(1)(b)–(d) are instances of force majeure, but under the SIA Conditions they are deliberately separated from cl 23(1)(a), the force majeure clause. This suggests that the scope of force majeure in cl 23(1)(a) has a wider and more general application extending beyond these common instances of force majeure. Furthermore, if cll 23(1)(a)–(q) are considered closely the common thread underlying all the delay events set out therein is that when the delaying events are not attributable to the contractor, it can apply for an EOT. This is a fair and equitable approach to the issue of EOT.

Having found cl 23(1)(a) operative and enforceable, I turn now to ascertain whether the OG Box requirement cum installation and the delay in SPPG’s power connection works is a force majeure event falling within the ambit of cl 23(1)(a). It is useful to set out the relevant facts, as follows:

(a) CCA made the request to SPPG for SPPG to lay the cable to the electrical meter compartments between 8 October 2012 (when the plaintiff informed that the electrical meter compartments were ready) and 22 October 2012 (when CCA informed that it had made the relevant arrangements with SPPG).

(b) By way of a letter dated 21 November 2012, SPPG informed the defendant that it was necessary to install an OG Box for the Project. This letter was forwarded by CCA to the plaintiff and the third party on 26 November 2012. This was the first time the OG Box requirement was raised by SPPG. The OG Box requirement was neither mentioned nor included in SPPG’s initial quotation dated 22 November 2010 which was two years ago.

(c) Consequently, between 3 December 2012 and 17 December 2012, CCA had to work with Web to ensure that the National Parks Board (“NParks”) had no issues with the proposed location of the OG Box. This entailed making amendments to plans and drawings for the Project. CCA also had to rely on the third party to expedite the defendant’s approval for the location of the OG Box.

(d) Despite the fact that the issue of the proposed location of the OG Box had been resolved at the very latest by 17 December 2012, SPPG only started its works for incoming power supply on or around 25 February 2013. There were many e-mails and telephone calls from CCA and the plaintiff to SPPG pleading with it to start its works expediently. However, SPPG gave various reasons for its delays, such as adverse weather conditions and low morale on the part of the subcontractors due to fatalities at other sites. On one occasion, SPPG’s workers simply failed to turn up despite prior arrangements made with CCA.

(e) SPPG eventually completed its works on 7 March 2013.

There were, thus, two aspects of the delay: (a) the delay occasioned by the need to determine a location for the OG Box; and (b) the delay occasioned by the time taken by SPPG to install the OG Box and complete its power connection works. Both the installation of the OG Box and the laying of the cables constituted part of SPPG’s power connection works. Mr Lee, the defendant’s expert, explained as follows:

In my view, the delay occasioned by SPPG was out of the parties’ control and occurred without either party’s fault. The last-minute requirement to install an OG Box was not mentioned in SPPG’s initial quotation two years ago. Furthermore, the construction of the OG Box did not fall within the scope of responsibility of either the plaintiff or the defendant. This is evident from Ms Tan’s testimony, as follows:

Similarly, Mr Lee, the defendant’s expert, explained as follows:

Therefore, not only was the OG Box requirement entirely unexpected, the delay thereby caused by the OG Box requirement occurred without the fault of either party and was out of their control.

Similarly, the time taken by SPPG in carrying out power connection works was also out of the control of both parties and occurred without either party’s fault. This can be seen from the reasons given by SPPG for its delay, for instance, adverse weather conditions and low morale. These reasons were not attributable to either the plaintiff or the defendant. Mr Lee acknowledged that the time taken by SPPG to complete its power connection works was outside of the plaintiff’s and the defendant’s control, as follows:

In fact, even though the power connection works were outside the scope of responsibility of the plaintiff and the defendant, the plaintiff and CCA nevertheless tried to persuade SPPG to commence works expediently. I shall elaborate more on the issue of fault below, as it is also relevant to whether the plaintiff’s failure to exercise due diligence contributed to the delay event and whether the plaintiff took reasonable steps to mitigate the delay arising from the delay event.

The defendant submits that the delay on SPPG’s part was foreseeable and, therefore, cannot constitute a force majeure event. This is based on the fact that, according to the Master Programme, the plaintiff had planned for SPPG to begin its incoming power supply connection on 9 July 2012, about six months before TOP. Ms Chua explained that this “allowance of six months” had been specifically planned to “cater for delays” by the plaintiff and/or SPPG. Indeed, Ms Chua acknowledged that “delays by SPPG in general was fore[seen] by CCA”.

In my view, this does not take SPPG’s delay out of the scope of cl 23(1)(a). SPPG’s role in bringing incoming power supply to the Project was a critical and planned event in the Master Programme. This activity, therefore, was foreseeable. However, it was not foreseen that the OG Box requirement would be part of SPPG’s conditions for bringing incoming power supply. Similarly, while the bringing of incoming power supply was an expected activity, the unforeseeable aspect of this activity in this case was SPPG’s prolonged and protracted delay despite numerous reminders by the plaintiff and CCA.

In any case, as I have observed above, the element of foreseeability is not critical to the concept of force majeure. Instead, the true question is whether the event was such that it rendered performance of the contract “radically different” from what was originally undertaken. In my view, it was. SPPG had initially estimated that it would take about four to six weeks to complete its power connection works. According to Ms Chua from CCA, SPPG would typically take a much shorter time of about two weeks. However, the actual time between when SPPG was first notified (between 8 October 2012 and 22 October 2012) and when power connection works were eventually completed (7 March 2013) was around 19 to 21 weeks. While parties did anticipate some delay to be possible, this was significantly longer than what all parties had expected. Although the plaintiff and CCA had catered for a buffer period of six months, this included time required by the plaintiff to carry out other works that it needed to do after power connection, such as T&C of the M&E works. In other words, SPPG had not been expected to take up the entirety of the six months buffer period. To put the extent of delay into perspective, the Project had been expected to take less than two years to complete (from the time of the signing of the LOA on 13 May 2011 to the original completion date of 21 February 2013). Thus, the four to five months taken by SPPG would constitute almost a quarter of the original estimated time required to complete the Project. Therefore, although some delays were expected from SPPG, the extent of the delay in this case was so protracted that it rendered the performance of the Contract radically different from what had initially been undertaken. The same can be said for the last-minute introduction of the OG Box requirement.

For the above reasons, in the context of cl 23(1) and the facts of this case, the OG Box requirement and the prolonged delay by SPPG amount to force majeure under cl 23(1)(a) of the SIA Conditions. In this case, it cannot be gainsaid that the OG Box requirement and the protracted delay by SPPG for the incoming power supply were beyond the control of the parties and this could not be attributable to the plaintiff. The delaying event in this case could easily justify the grant of an EOT to the plaintiff according to the spirit and intent of cl 23(1), provided that there was no lapse of due diligence on the part of the plaintiff. This explains why the defendant and his Assistants, especially Mr Cheung, did not object at the relevant time when the third party was considering the plaintiff’s applications for EOT 2 and EOT 3. The defendant and Mr Cheung also did not register their objections in any way when the third party granted EOT 2 and EOT 3. The defendant only took objection to the third party’s grant of EOT 2 and EOT 3 when the plaintiff instituted this Suit.

For these reasons, I find that cl 23(1)(a) is operative and SPPG’s OG Box requirement and delay in carrying out power connection works amounted to a force majeure event falling within the ambit of cl 23(1)(a), and also led to a delay in completion.

(2) Clause 23(1)(o)

I turn now to cl 23(1)(o). The third party submits that SPPG’s delay in carrying out power connection works also falls within the ambit of cl 23(1)(o). Given my finding that cl 23(1)(a) applies to the OG Box requirement and SPPG’s delay in commencing power connection works, there is strictly speaking no need for me to determine this point.

However, for completeness, I would not have accepted the third party’s submission in this regard. It was not pleaded by the third party, although it was raised in the middle of the trial. Furthermore, it was not borne out by the evidence. The third party’s letter granting EOT 2 did not contain any mention of cl 23(1)(o). More importantly, there is no “variation” to speak of in this case. Given that the OG Box fell within SPPG’s purview, the plaintiff was not contractually obligated to construct the OG Box and it was instead constructed by SPPG. Thus, the OG Box requirement could not have amounted to a “variation” of the plaintiff’s contractual Works within the meaning of cl 7(1) of the SIA Conditions. There is also no evidence of any architect’s instructions, or verbal instructions even, for the plaintiff to carry out variation works as a result of SPPG’s delays.

When asked regarding this point, the third party’s counsel encouraged the court to adopt a broad interpretation of the word “variation”. While he accepted that there was no variation in the Works themselves, he sought to suggest that the “variation” in this case was a variation in the schedule for the Works. I do not accept this. There is nothing in the Contract to support such a broad interpretation of the word “variation”. To the contrary, the non-exhaustive definition of “variation” in cl 12(2) of the SIA Conditions suggests otherwise, because the activities set out therein relate to variations in the Works themselves. Therefore, cl 23(1)(o) is not applicable in this case.

Whether the requirements for EOT 2 are established

Having found that SPPG’s delay constituted a delay event under cl 23(1)(a), I turn next to the other requirements for the granting of an EOT. I shall first deal with EOT 2.

Based on cl 23(1) of the SIA Conditions set out above at [190], there are two critical questions that have to be answered. Firstly, whether the plaintiff’s failure to exercise due diligence contributed to the delay event. Secondly, whether the plaintiff took reasonable steps to mitigate the delay arising from the delay event.

Additionally, given that the defendant’s claim here is one of unlawful means conspiracy, the further question to be answered is whether the third party’s decision to grant EOT 2 was proper. I shall deal with these questions sequentially.

(1) The plaintiff exercised due diligence and was not responsible for the delay

As I have explained above, SPPG’s original estimation of the time needed for electrical turn-on (ie, four to six weeks) was not realised in this case, resulting in a long delay in completion. This was through no fault of any of the parties in this dispute. Rather, it was due to matters wholly beyond the plaintiff’s control (or that of any other party in the Project). This is apparent from the sequence of events set out at [200] above.

The defendant raises two main arguments to support his submission that the plaintiff failed to exercise due diligence. First, the defendant alleges that because the electrical meter compartment doors for Unit 12 and Unit 12B were only installed on or around 1 December 2012, this meant that the electrical meter compartments were not ready to receive the incoming power supply. Hence, with reference to the timelines in the Project’s Master Programme, the plaintiff was already in delay of more than four and a half months. According to the Master Programme, the time allocated for SPPG to establish power connection was between 9 July 2012 and 11 August 2012. Therefore, the defendant alleges that the plaintiff should have completed construction of the electrical meter compartments by 9 July 2012. Its failure to do so meant that, notwithstanding SPPG’s delay in achieving incoming power supply and subsequent electrical turn-on, the plaintiff itself had failed to exercise due diligence. The defendant also contends that the Project was not ready for SPPG to commence its cable-laying works until 10 January 2013, due to certain ongoing works which would have obstructed the cable-laying works. In support of his submission, the defendant relies on the evidence of Mr Foo Charn Lim (DW6, “Mr Foo”), who conducted a delay analysis on the events leading up to EOT 2. I shall deal with each of these points in turn.

(A) The electrical meter compartment doors

On the facts, the plaintiff’s delay in the installation of the electrical meter compartments would not have delayed the completion of the Project. The delay in the completion of the Project was entirely due to SPPG’s OG Box requirement and delay in carrying out power connection works. At the very latest, the electrical meter compartments (except the doors) were ready in or around early October 2012. It was at this point that the electrical meter compartments were ready for survey by SPPG. Although the electrical meter compartment doors were only ready in November 2012 and installed on or around 1 December 2012 at the latest, there was simply no requirement that the electrical meter compartment doors must have been installed before SPPG would be willing to commence work. In SPPG’s letters dated 22 November 2010, there were no requirement for the electrical meter compartment doors to be completed. The only conditions were as follows:

The various letters dated 25 August 2011 from SPPG also did not indicate that the electrical meter compartment doors must be ready for incoming power supply. However, SPPG indicated that the following matters should be ready:

Therefore, SPPG only required the switchboard/meter board and cable entry pipe to be ready before SPPG would install the service cables for incoming power supply. SPPG did not require the electrical meter compartment doors to be ready for incoming power supply.

Further, I find that the presence or absence of the electrical meter compartment doors simply had no bearing on whether SPPG could carry out the installation works, as the electrical meter compartment doors were not essential for the installation of cables to facilitate incoming power supply. This was conceded by the defendant’s own witness, Mr Lee, in cross-examination as follows:

He made similar concessions in response to my questions:

In fact, based on the answers from Mr Lee, it appears that the electrical meter compartment doors would get in the way of SPPG’s installation works. This was also confirmed by Mr Tan and RTO Leong who both agreed that it was good practice not to install the doors before SPPG commenced its works. The pertinent evidence of RTO Leong, in particular, was as follows:

There is, therefore, no reason for SPPG to have required the electrical meter compartment doors to be installed before commencing any works. Although Ms Chua initially testified that SPPG required doors to be installed to prevent the tampering of any cables that were installed, she subsequently clarified that what was required by SPPG prior to its installation works was a “temporary structure” to secure the electrical meter compartments. It was only after SPPG completed its installation works and electrical testing was conducted that the actual electrical meter compartment doors needed to be installed:

Ms Chua’s evidence leads to two points. Firstly, the actual electrical meter compartment doors were only required to be installed after SPPG had completed its first stage of installation works. There was no need for the actual doors to be in place before SPPG could come in. It was, hence, not strictly a prerequisite before SPPG could begin works. Secondly, to the extent that SPPG wanted to prevent the tampering of the cables, this could be done by putting a temporary structure in place to ensure that the electrical meter compartment was secure.

My findings above were also confirmed by Mr Yong in his evidence, which is useful to reproduce extensively:

I note that in any case, the plaintiff may appear to have been behind schedule for the installation of the electrical meter compartments vis-à-vis the Master Programme. The electrical meter compartments (except the doors) were ready in or around early October 2012, when the Master Programme provided that they should have been ready by 9 July 2012. However, this in itself cannot mean that the plaintiff was in delay as the Master Programme incorporates the concept of a “float” to allow the plaintiff to catch-up and meet the completion date of 21 February 2013. This refers to the period of time in which the execution of an activity which is not on a critical path may be prolonged without affecting subsequent activities or the completion time for the project as a whole (see Construction Contracts Dictionary at p 197). The float is calculated by subtracting the time actually required to perform an activity from all the time that is available to perform it. In the construction industry, the float is useful in allocating resources, in that those activities which have no or less float allocated can be given higher priority.

Therefore, the Master Programme has to be analysed in conjunction with the concept of a float. The purpose of the Master Programme is to provide a general guide to monitor the progress of the work and is not intended to impose strict contractual deadlines for each activity. This is evident from cl 4(2) of the SIA Conditions, which states:

This is further explained in Chow Kok Fong, The Singapore SIA Form of Building Contract: A Commentary on the 9th Edition of the Singapore Institute of Architects Standard Form of Building Contract (Sweet & Maxwell, 2013) (“Commentary on SIA Standard Form”) at para 6.10, as follows:

This is the position taken by the plaintiff, the third party and CCA. Indeed, if the defendant genuinely believed that the Master Programme stipulated strict contractual deadlines for each activity, then the onus would be on him and his Assistants to voice their disapproval during the course of the Project if the timelines for the various activities failed to comply with the Master Programme. His Assistants, particularly Mr Cheung, who has vast experience in the construction industry, knew that the plaintiff could not be held strictly to the Master Programme. By choosing to remain silent at the relevant times and site meetings, I can only surmise that the defendant understood that the Master Programme was not a rigid schedule of activities. The defendant’s counsel accepts that the Master Programme is merely a benchmark for judging the progress of the works and the dates provided for in the Master Programme are not peremptory, because the plaintiff is ultimately held to the completion date. In the circumstances, the defendant cannot argue that the plaintiff was in delay merely by the fact that it failed to have the electrical meter compartments, including the doors, ready on 9 July 2012 for SPPG to do the incoming power supply connection. This is given that there was an in-built float in the Master Programme to allow flexibility to the plaintiff in relation to the construction of the electrical meter compartments, including the doors.

Since the timelines in the Master Programme are not peremptory, the true question is whether the plaintiff was acting with due diligence. Although the plaintiff did not adhere to the timelines in the Master Programme for the installation of the electrical meter compartments, I find that it was still acting with due diligence. In assessing whether the contractor is acting with due diligence, the Master Programme is of evidential value (as observed in Commentary on SIA Standard Form cited at [231] above). However, it is not conclusive. As Simon Brown LJ observed in West Faulkner Associates v London Borough of Newham [1995] 71 BLR 1 at 12 (cited in Compact Metal Industries Ltd v Enersave Power Builders Pte Ltd and Others [2008] SGHC 201 at [82]):

The defendant cites Jurong Engineering Ltd v Paccan Building Technology Pte Ltd [1999] 2 SLR(R) 849 (“Jurong Engineering”) in support of his case that the plaintiff’s delay in installing the electrical meter compartment doors meant that it was not proceeding with due diligence. Although the CA observed at [39] that due diligence “can only be determined by pacing the progress of [the subcontractor’s] work against the subcontract programme”, this must be seen in the context of the CA’s entire decision. In particular, the CA observed at [44] that:

The CA, therefore, was not saying that the subcontractor had to follow strictly the dates set out in the subcontract programme. Rather, the CA was focused on whether the progress of the subcontract works evinced a consistent lag compared to the subcontract programme. This is evident from how the CA at [51] subsequently cited a passage which referred to a situation “where a contractor persists in a rate of progress bearing no relation either to a contractually promised or reasonable date of completion” [emphasis added]. This is also evident from the CA’s actual decision, where it held that there were “extensive delays” in respect of at least six categories of works (see Jurong Engineering at [47], [49] and [50]). Furthermore, it is not apparent whether the subcontract in Jurong Engineering contained a clause similar to cl 4(2) of the SIA Conditions, which deliberately downplays the importance of the Master Programme. As such, Jurong Engineering merely reinforces the position that adherence to the Master Programme is of evidential value in assessing whether the contractor was proceeding with due diligence.

Thus, the critical question is whether the rate at which the plaintiff was proceeding was in accordance with his obligation to act with due diligence. In this regard, Construction Contracts Dictionary at p 153 observes that “any obligation for due diligence has to be interpreted with reference to the completion date stated in the contract”. Thus, in assessing whether a contractor has acted with due diligence, the contractor’s ability to meet the stipulated completion date is an important consideration.

In this case, I emphasise that even though the electrical meter compartment doors were installed on or around 1 December 2012, the plaintiff, the third party and crucially the M&E consultant, CCA, were still confident that the Project could be completed on schedule, provided SPPG completed its cable-laying works and supplied the requisite electrical turn-on within four to six weeks, following which the T&C of M&E works could be carried out. In this regard, Ms Chua testified as follows:

Accordingly, I find that the plaintiff’s delay in the installation of the electrical meter compartments and the electrical meter compartment doors would not have caused any delay in the completion of the Project, but for SPPG’s OG Box requirement and its delay in the installation of the incoming power supply connection to the three units of the Project. The plaintiff’s delay in the installation of the electrical meter compartments and the electrical meter compartment doors had no nexus to SPPG’s delay. The latter was wholly beyond the plaintiff’s control.

(B) Mr Foo’s delay analysis

The defendant relies on the evidence of Mr Foo to argue that the plaintiff was in fact the cause of the delay. Mr Foo is a civil engineer whose work experience is primarily in the areas of programme planning, delay analysis and extension of time claims in various types of construction projects. Mr Foo was instructed by the defendant to provide an expert opinion on the progress, delay and completion of the Project. In his opinion, although the grant of EOT 2 and EOT 3 due to SPPG’s delay and the OG Box requirement was reasonable, the plaintiff was not entitled to the quantum of EOT 2. Thus, the third party had incorrectly granted the EOT in so far as it was wrong in its computation of the number of days of extension to which the plaintiff had been entitled. In coming to his findings, Mr Foo relied on the Master Programme, performing a delay analysis progressively upon the achievement of certain milestones in the Project. Based on this, he concluded that the Project’s expected completion date was 4 June 2013, which was in delay of 103 days from the original contractual completion date of 21 February 2013.

Although I agree with Mr Foo’s methodology in his analysis, I am unable to agree with his assumptions, which have a material outcome on his findings. He has three assumptions that are fundamentally incorrect and which, ultimately, substantially and significantly undermined his findings.

Firstly, Mr Foo began the calculation of his delay analysis from 17 November 2012 as he assumed that the application to SPPG for power connection was made on that date. In his view, this was the appropriate date and he based this on a letter that the defendant had received from SP Services on 17 November 2012. Given that the Master Programme had planned for “incoming power supply” to be connected between 9 July 2012 and 11 August 2012, Mr Foo opined that the plaintiff was already in delay as at 17 November 2012.

However, it is incorrect for Mr Foo to use 17 November 2012 as the date on which the application to SPPG for incoming power connection was done. As stated above at [200(a)], the request to SPPG for electrical incoming power supply turn-on was done in or around October 2012. The minutes of Site Meeting No 34 dated 8 October 2012 state that as of that date, “GTMS informed that all meter compartments are ready. CCA to follow up for inspection.” Ms Chua testified that once the plaintiff informed CCA that the electrical meter compartments were ready on 8 October 2012, she “would have called [SPPG] immediately”, and probably on 8 October 2012 itself. This request to SPPG was reflected in the minutes of Site Meeting No 35 dated 22 October 2012, which state that as of this date, “GTMS informed that all meter compartments are ready. CCA informed that CCA has already arranged with officers. GTMS to follow up.” [emphasis added] As explained by Mr Tan, this meant that CCA had already contacted SPPG to connect the incoming power supply and this also involved the licensed electrical worker. As confirmed by Mr Yong:

Again, the minutes of the subsequent site meeting dated 5 November 2012 state that as of this date, “[c]urrently, GTMS is arranging with power grid officer for testing date and will submit the schedule of testing for information.” Logically, it would not have been possible for the plaintiff to arrange for a testing date without a prior application having already been made to SPPG. In contrast, as seen from its opening paragraph, the letter that Mr Foo relies on is merely in reference to a “request for the opening of utility account”. This letter from SP Services dated 17 November 2012 does not make any mention of the earlier initial application date to SPPG and as confirmed by Ms Chua, was not the application to SPPG for power connection. Ms Chua further clarified that:

Therefore, it would be more accurate to take the actual date of CCA’s submission of its request to SPPG as the starting point of the calculation in Mr Foo’s delay analysis. The earliest possible date when this request was submitted was 8 October 2012, according to Ms Chua’s testimony. As regards the latest possible date, the minutes of Site Meeting No 35 show that the application to SPPG was made by 22 October 2012, which would still have been ahead of the date Mr Foo used (ie, 17 November 2012). In fact, the difference between 22 October 2012 and 17 November 2012 is 26 days and that would have been omitted from the delay calculation. Secondly, Mr Foo also noted in his calculations that SPPG was unable to commence its power connection works on 17 December 2012, because: (a) the doors to the electrical meter compartment were only installed “on or around 1 December 2012”; and (b) the location of the OG box was only confirmed on 17 December 2012. This assumption of 17 December 2012 is again incorrect as both of the premises upon which it is founded are misguided for the following reasons:

(a) Mr Foo’s opinion that SPPG would commence its works only after the electrical meter compartment doors were ready was based on the evidence of Mr Lee. However, as shown above at [220]–[228], that was never a requirement mandated by SPPG. Mr Lee accepted that incoming power could be installed without the electrical meter compartment doors.

(b) Similarly, the confirmation of the location of the OG Box was also not a requirement originally mandated by SPPG. The only requirements, as stated above at [222], were for the switchboard/meter board and cable entry pipe to be ready. Hence, the plaintiff cannot be faulted for not determining the location of an OG Box. Furthermore, the plaintiff was not responsible for determining the location of the OG Box as this was a matter to be resolved between CCA, Web, NParks, the defendant and the third party. Thus, it follows that the plaintiff cannot be said to have lacked due diligence in respect of determining the location of the OG Box. For the purposes of considering whether the plaintiff was the cause of the delay or contributed to the delay, therefore, it should be assumed that SPPG could have commenced work without the need to confirm the location of an OG Box.

SPPG thus could have commenced its work way ahead of 17 December 2012, bringing into question Mr Foo’s calculations.

Thirdly, Mr Foo opined that the site was not ready for SPPG to lay the subterranean cable as there were ongoing excavation works as of 2 January 2013. In his view, this presented site constraints, preventing SPPG from commencing work any earlier than 2 January 2013. I am, however, unable to agree with Mr Foo’s interpretation in this regard. Mr Foo’s assumption that there were ongoing excavation works was based solely on a single photograph which he alleged showed some excavation work outside the parameter wall between Units 12 and 12A. He had never physically been to the site himself. This means that Mr Foo’s interpretation of this photograph and the implication that it hindered SPPG’s works was entirely speculative, as he acknowledged:

Even if there were ongoing excavation works, in my view, it is entirely possible that the excavation works could be carried out concurrently with SPPG’s laying of the cables. This was a possibility that Mr Foo also subsequently acknowledged:

The excavation works were, therefore, no impediment to SPPG commencing works. In fact, this was confirmed by Mr Yong’s own view of the entire process. Mr Yong explained that the excavator and the earthwork in the photograph mentioned by Mr Foo were within the compound of the Project and would not hinder SPPG’s cable-laying from the OG Box to the three units:

For the above reasons, the actual timeline had SPPG not been in delay would have been as follows:

(a) Taking the latest date possible, the application for power connection to SPPG would have been done on 22 October 2012 (see [200(a)] above).

(b) SPPG would have required 11 days to make preparation to commence work, based on Mr Foo’s own calculation, bringing the relevant date to 2 November 2012.

(c) SPPG then would have required 11 days to complete the works, based on the time they had actually taken (ie, 25 February 2013 to 7 March 2013) (see [200(d)]–[200(e)] above). This would have brought the relevant date to 13 November 2012.

(d) An additional 40 days would then be required for electrical T&C and M&E works. This was the estimated duration arrived at by the third party, nearer to the date of the planned works. Although Mr Foo initially insisted on using the original estimate of 90 days based on the Master Programme, he eventually conceded in cross-examination that the estimate of 40 days would be more accurate. This would have brought the relevant date to 23 December 2012.

This would mean that the Project would be ready for completion by 23 December 2012, 60 days ahead of the original completion date of 21 February 2013.

Even taking Mr Foo’s starting date of 17 November 2012, the plaintiff would still have been able to complete the Project on time if SPPG had not been in delay. According to Ms Chua, the timeline would have been as follows:

(a) Taking Mr Foo’s starting date, the application for power connection to SPPG would have been made on 17 November 2012.

(b) According to Mr Foo’s estimate, SPPG would have taken 34 days to complete their incoming power supply connection works. As confirmed by Ms Chua, this amount of time was “very typical”. This would bring the relevant date to 21 December 2012.

(c) The additional 40 days needed for T&C and M&E works, starting from 22 December 2012, would then bring the relevant date to 31 January 2013.

I note that this timeline does not include the time taken for SPPG to respond and prepare for the cable-laying works. According to Mr Foo, this would have taken another 11 days. Factoring these 11 days into account, the Project would still have been completed by 11 February 2013, ten days ahead of the original completion date of 21 February 2013. The plaintiff, thus, cannot be held liable for the delay that resulted from SPPG’s conduct.

(2) The plaintiff took reasonable mitigation efforts

The next question is whether the plaintiff, upon the knowledge of SPPG’s delay, took reasonable mitigation efforts to reduce the delay. It is pertinent to note that it was not within the plaintiff’s scope of works to arrange for incoming power supply. That was the responsibility of CCA, the M&E consultant who had been engaged directly by the defendant. The defendant himself was of the view that it was CCA’s responsibility to arrange for electrical turn-on with SPPG. For example, on 21 February 2013, Mr Cheung sent the following e-mail to Ms Chua and Mr Ng Chee Choon of CCA on behalf of the defendant (the “21 February 2013 E-mail”):

Two points ought to be highlighted from the 21 February 2013 E-mail. Firstly, the defendant, through Mr Cheung, a person experienced in the construction industry, accepted that it was CCA’s responsibility to arrange for incoming power supply. Accordingly, short of completing all the necessary installation works, there was nothing further for the plaintiff to do to mitigate SPPG’s delay. Nevertheless, it should be noted that the plaintiff also followed up with SPPG, in conjunction with the efforts of CCA, to persuade SPPG to carry out its power connection works more expediently. In this respect, Mr Manoosegaran testified as follows:

This was supported by documentary evidence and further confirmed by Ms Chua in the course of the trial:

Secondly, it is clear from the 21 February 2013 E-mail that Mr Cheung and the defendant recognised that the plaintiff was entitled to claim EOT on the basis of SPPG’s delay. Crucially, at no point of time during the course of the Project did the defendant or any of his Assistants ever object to the issuance of EOT 2 and EOT 3.

(3) The third party’s decision to grant EOT 2 was proper

Thus, the plaintiff was entitled to an extension of time in so far as EOT 2 was concerned. The next question is whether the third party’s decision to grant 40 days’ extension for EOT 2 was improper. I note that CCA had only recommended 15 days’ extension to be granted.

However, the court will not lightly disturb the third party’s assessment, as long as it is made fairly and rationally. As stated by Warren Khoo J in Lian Soon Construction Pte Ltd v Guan Qian Realty Pte Ltd [1999] 3 SLR(R) 518 at [29]:

This was further explained in Liew Ter Kwang v Hurry General Contractor Pte Ltd [2004] 3 SLR(R) 59 (“Liew Ter Kwang”) at [17], where Prakash J explained that “whilst the assessment of a fair and reasonable extension involves an exercise of judgment, that judgment must be fairly and rationally based”. This means that the third party must:

(a) carry out a logical analysis in a methodical way of the impact that the relevant matters the plaintiff put forward had on the delay to the Project;

(b) make a calculated assessment of time which it thought was reasonable for the various items individually and overall, rather than an impressionistic assessment;

(c) apply the provisions of the Contract correctly; and

(d) in allowing time based on the grounds listed in the provisions of the Contract, ensure that the allowance made bears a logical and reasonable relation to the delay caused.

I am satisfied that the third party had made a fair and rational assessment with regard to the plaintiff’s request in EOT 2. As Mr Foo himself observed, in the context of extension of time analyses, different people can reasonably and honestly hold different perspectives. As such, despite the difference of opinion between himself and the third party, he believed that the third party “acted reasonably” in granting the EOT. Moreover, in coming to its decision, the third party sought and reviewed a critical path analysis of SPPG’s delay, sought the views of CCA, and requested the relevant information from the plaintiff. Furthermore, it is crystal clear that when EOT 2 was granted on 7 February 2013, SPPG had not even started works. SPPG also failed to provide an indication of when it would commence works, save that it would be after Chinese New Year, and therefore 18 February 2013 at the earliest. Given that such power connection works would ordinarily take at least two weeks to complete according to Ms Chua’s estimate, four to six weeks by SPPG’s estimate or 34 days according to Mr Foo’s estimate, it would not have been possible to meet the original completion date of 21 February 2013. In fact, SPPG only began its power connection works on or about 25 February 2013 which was after the original completion date.

For EOT 2, the third party’s decision to grant 40 days’ extension was based on a breakdown of the various works that the plaintiff was required to undertake after the incoming supply of electricity. Mr Yong explained that he estimated 40 days in total as the plaintiff required 15 days for M&E works, ten days for ACMV works and 15 days for lighting installation. The third party also decided that T&C of M&E works for all three units could be conducted concurrently and this would require the plaintiff to increase its manpower in order to meet the extended time limits. Indeed, this was the third party’s justification for granting EOT 2 at the material time.

The defendant argues that the ACMV and lighting works could be conducted concurrently, thus, only 15 days should have been given for both these works. According to the defendant, the third party had given the plaintiff an additional ten days’ EOT to the plaintiff, even though this was not necessary. Mr Yong explained that the reason why he had assessed each of these works separately was because he had followed the scopes of work set out in the Master Programme:

The defendant also argues that as at 7 February 2013, the third party was not entitled to grant EOT 2 to the plaintiff as the delay event had not completed. This is based on the defendant’s interpretation of cl 23(3) of the SIA Conditions, which provides:

According to the defendant, the portion of cl 23(3) italicised above means that the third party was not entitled to grant an EOT until the delay event had “ceased to operate”. The number of days given for extension should then be calibrated against the actual number of days of delay. Further, extensions of time can only be granted if there is an impact on completion. Thus, the defendant argues that the grant of EOT 2 was premature, given that the delay event had not yet ceased at the time of the grant. At the time when EOT 2 was granted the third party could not have known whether the delay event would have any impact on eventual completion. Furthermore, the plaintiff actually completed the T&C of M&E works in ten days. Hence, the 40 days’ extension granted under EOT 2 unfairly benefitted the plaintiff.

I do not accept this argument. Clause 23(3) of the SIA Conditions places an obligation on the third party to determine the plaintiff’s application for an EOT and to notify the plaintiff of its decision. This clause states that when the third party considers the plaintiff’s EOT application, it can wait till after the cessation of the delay event to decide the length of extension beyond the contract completion date, provided that the third party notifies the plaintiff of its decision and estimate by the time of the issuance of the final certificate. This merely provides the latest date by which the third party must notify the plaintiff of its decision. Clause 23(3) does not state that the third party cannot grant the EOT earlier if it is able to evaluate the EOT application before the cessation of the delay event. This interpretation of cl 23(3) is supported by the following observations in Eugenie Lip & Choy Chee Yean, Contract Administration Guide to the SIA Conditions of Building Contract (Lexis Nexis, 2nd Ed, 2009) at para 2.131:

In this case, Mr Yong explained that the EOT application was submitted on 20 December 2012, which was close to the contract completion date, ie, 21 February 2013. The third party knew that the delay event was SPPG’s delay in carrying out power connection works and that the delay would impact the contract completion date. Instead of delaying its decision on the EOT application till the issuance of the final certificate, the third party processed the EOT application with inputs from CCA as it was certain that the delay caused by SPPG would push back the actual completion date beyond the contractual completion date of 21 February 2013. This expeditious processing of the EOT application under these circumstances cannot be faulted.

Whether the requirements for EOT 3 are established

I shall now turn to EOT 3. EOT 3 was granted by the third party due to SPPG’s protracted delay in carrying out its incoming cable-laying works. This was anticipated even at the time of the granting of EOT 2, when the third party stated that it was granting an extension of 40 days and keeping another 15 days in reserve depending on whether there was “further delay due to [SPPG’s] part”. Since SPPG took longer than the parties expected, the third party granted EOT 3, again on the basis of SPPG’s delay. I have already concluded at [211] above that SPPG’s delay constituted a force majeure event within the ambit of cl 23(1)(a) of the SIA Conditions.

The defendant asserts that the third party should not have granted EOT 3 because the plaintiff was responsible for the failure of SPPG’s First Testing and Inspection on 14, 20 and 21 March 2013 for Units 12B, 12 and 12A respectively (ie, the reasons for the failure were due to construction-related issues). Accordingly, the plaintiff did not exercise due diligence.

At this juncture, it should be recalled that SPPG’s testing and inspection took place after the completion of all electrical installation and the receipt of notification from SPPG on the readiness of the service connection.

I am satisfied that the plaintiff acted with due diligence in relation to EOT 3. CCA, the M&E consultant, confirmed that the plaintiff had constructed the M&E works fully in accordance with the M&E construction drawings. Although the Project failed SPPG’s First Testing and Inspection because certain mechanical and electrical items did not comply with SPPG’s safety and connection requirements, the issues that were highlighted by SPPG in the First Testing and Inspection were not construction faults. The comments arising from SPPG’s First Testing and Inspection required the plaintiff to amend the single line diagram, and to rectify some signage, earthing and minor statutory non-compliance issues. Moreover, the failure of SPPG’s First Testing and Inspection was expected due to the extremely detailed nature of the inspection. Mr Chan explained as follows:

This was confirmed by Ms Chua, when she testified:

Accordingly, the plaintiff could not be said to have acted without due diligence.

The defendant also took issue with the fact that although CCA had recommended that EOT 3 be granted for 15 days with effect from 28 March 2013, the third party granted the extension with effect from 2 April 2013. CCA had recommended 28 March 2013 as it was the first re-test and electrical turn-on date conducted for the three units, specifically Unit 12B. Further, CCA was of the opinion that the test dates for Units 12 and 12A, on 2 April 2013 and 8 April 2013 respectively, were not appropriate as the testing defects were similar to that of Unit 12B but had been left unrectified by the plaintiff. However, the third party explained that since EOT 2 was granted until 2 April 2013, EOT 3 should therefore begin from 2 April 2013. Further, from the viewpoint of the third party, the 15 days in EOT 3 related to the same issues as in EOT 2, and was distinct from this issue of re-test and electrical turn-on. This is elaborated on below at [290]–[292]. In any case, as stated above at [257], the court will not lightly disturb the third party’s assessment so long as it is one that is made fairly and rationally. The mere fact that the third party decided to have EOT 3 start on 2 April 2013 instead of 28 March 2013 does not suggest that the assessment was made unfairly or irrationally. It should also be emphasised that the plaintiff had requested 40 days’ EOT in EOT 3, but the third party decided to only grant 15 days based on its independent assessment.

In the circumstances, for both EOT 2 and EOT 3, I find that there was no failure on the part of the plaintiff to exercise due diligence or take reasonable mitigation steps. The third party’s issuance of EOT 2 and EOT 3, which was based on its professional and independent assessment, cannot be impugned.

Circumstances surrounding EOT 2 and EOT 3

The defendant further alleges that the results of EOT 2 and EOT 3 were pre-determined, based on certain observations he himself had made. On that basis, the defendant claims that there were both a conspiracy amongst the parties and improper pressure or interference exerted by the plaintiff on the third party and CCA.

I note first that the defendant’s two claims are fundamentally inconsistent. If the plaintiff were conspiring with CCA and the third party to injure the defendant, it naturally follows that they would be working in tandem with one another. In other words, there would simply be no need for the plaintiff to exert improper pressure or to interfere with the other parties to get them to comply with its demands. Regardless, in my view, both of the allegations made by the defendant are completely speculative and baseless.

Additionally, the defendant’s own expert witness, Mr Foo, contradicted the defendant’s allegations of conspiracy and/or collusion. Even though he strongly disagreed with the third party’s granting of the EOTs, Mr Foo acknowledged in response to my questions that “when you say are they colluding, I don’t see the evidence”.

I shall first address EOT 2. The defendant alleges that the third party was coaching or advising the plaintiff to advance the latter’s claim. The defendant highlighted that on 28 January 2013, the third party had requested the plaintiff to include SPPG’s delay in electrical turn-on in its request (the “28 January 2013 E-mail”). The 28 January 2013 E-mail from Ms Chiyachan addressed to Mr Manoosegaran and Mr Kumar of the plaintiff stated as follows:

In addition, on 1 February 2013, the third party directed the plaintiff to regularise various errors made in its substantiation of its request (the “1 February 2013 E-mail”). The 1 February 2013 E-mail from Ms Chiyachan to Mr Kumar stated as follows:

I find that there is no merit to the defendant’s allegation whatsoever. Clause 23(4) of the SIA Conditions expressly permits the third party to request for further information from the plaintiff to enable it to estimate the period of extension of time to be granted, if any. There is nothing insidious about such a request. In certifying EOT claims, the role of the third party is to evaluate the merits of the EOT application rationally and fairly. It has to exercise its independent and professional judgment and not take sides with either the plaintiff or the defendant. It is, thus, necessary for all relevant information to be placed before the third party so that it can properly exercise its judgment. The information must be complete (which was the third party’s intention in sending the 28 January 2013 E-mail) and must also be accurate (which was the third party’s intention in sending the 1 February 2013 E-mail). Further, the third party’s practice of seeking further substantiation was not a one-off incident. For EOT 1, which was ultimately rejected, the third party had similarly requested the plaintiff to provide further substantiation on four occasions.

The defendant also alleges that the plaintiff’s amended request for EOT 2 was sent by the third party to CCA for “confirmation” on 5 February 2013 (the “5 February 2013 E-mail”) and a pre-drafted approval from the third party was enclosed. Further, CCA was only given one day to respond. Thus, the defendant suggests that the third party had already pre-determined EOT 2.

I find that there is no evidence of a conspiracy involving CCA. There is no obligation on the part of the third party to seek any “confirmation” from CCA, or any party for that matter. The third party explained that it had sought CCA’s views on EOT 2 given that EOT 2 related to M&E works. Ultimately, it was the third party alone who was responsible for EOT certification. As Ms Chua herself agreed, the third party was in a better position than CCA to assess whether the plaintiff had carried out its works diligently such that an EOT should be granted. If the result of EOT 2 was indeed pre-determined, then there was no reason for the third party to seek CCA’s input. Further, while the 5 February 2013 E-mail did indeed seek CCA’s response by the next day, CCA was aware of EOT 2 from as early as 20 December 2012 and had commenced its review of EOT 2 on 28 December 2012. Accordingly, it is clear that the 5 February 2013 E-mail was sent by the third party to seek CCA’s final input on EOT 2.

There is similarly no evidence of improper pressure being exerted on CCA by the plaintiff. It should be noted that CCA had itself recommended granting EOT 2, albeit for only 15 days. CCA’s reply stated that: “For PG [Power Grid] parts … you are granting 15 days [sic] and we are fine with it”.

I shall now deal with EOT 3, where the plaintiff was granted 15 days’ extension on 10 April 2013 from 2 April 2013 to 17 April 2013. The defendant likewise claims that the result of EOT 3 was pre-determined and was pursuant to a conspiracy between the plaintiff and the third party, or as a result of improper pressure exerted by the plaintiff. If EOT 3 had not been granted, the contractual completion date would have been 2 April 2013, such that the plaintiff would have been liable to pay liquidated damages from that date onwards until the actual completion date of the Project.

The defendant relies on the fact that the third party issued an “in-principle” entitlement to EOT to the plaintiff on 2 April 2013. This was only one day after the plaintiff’s request for EOT 3 was made. The in-principle entitlement was issued by the third party without consulting CCA. Further, it transpired that CCA had initially refused to support the plaintiff’s request in EOT 3. According to the defendant, CCA was “persuaded” by the third party to change their recommendation.

Additionally, the defendant asserts that the plaintiff and the third party had a pre-planned agreement to grant an EOT of 15 days. This agreement entailed the plaintiff pretending to ask the third party for 40 days’ EOT, following which the third party would pretend to consider the proposition. The third party would then reject the request for 40 days’ EOT and gave 15 days’ EOT.

I must say that the defendant’s arguments are illogical and baseless. The defendant alleges that Ms Chua from CCA was a party to the conspiracy in relation to EOT 2 and EOT 3. However, if CCA was indeed a party to the conspiracy, then there was no reason for it to have initially objected to granting EOT 3.

Be that as it may, I shall consider whether the events set out in [266]–[271] and [285] above support the defendant’s contention that the plaintiff and the third party conspired in relation to EOT 3. It is not disputed that CCA had initially refused the plaintiff’s request for EOT 3. However, CCA itself acknowledged that its initial refusal was “too hasty”. As Ms Chua explained:

Further, it must again be emphasised that ultimately, even if CCA had persisted in its refusal to support the grant of EOT 3, the third party is still the one who has to make the final judgment call on whether or not to grant EOT 3. As long as the third party exercises its judgment fairly and rationally, it is completely entitled to disagree with CCA and arrive at a different conclusion.

Additionally, the circumstances of the third party granting an in-principle entitlement to the plaintiff are not suspicious if one considers that the third party honestly believed that EOT 3 arose from the same set of issues in EOT 2. As stated by Mr Yong in his e-mail to Ms Chua on 2 April 2013 (the “2 April 2013 E-mail”):

It becomes more improbable that EOT 3 arose out of a conspiracy given that the possibility of granting EOT 3 had previously already been discussed during EOT 2. This heads-up is found in the letter granting EOT 2:

This was again confirmed by Mr Yong on the witness stand:

Accordingly, the circumstances surrounding the issuance of EOT 2 and EOT 3 do not support the inference of any conspiracy between the plaintiff and the third party to grant EOT 2 and EOT 3. Neither is there any evidence that the plaintiff and the third party had an intention to injure the defendant by allowing EOT 2 and EOT 3 to be granted. There is also absolutely no evidence of interference or pressure being exerted by the plaintiff on the third party or CCA.

What is most revealing and pertinent is that these allegations to injure or defraud the defendant were never raised or suggested by the defendant and his Assistants when the EOTs were considered. If these allegations were indeed true, one would have expected the defendant and his Assistants to have protested or expressed some dissatisfaction over the granting of EOT 2 and EOT 3. However, there were no signs or any indications of unhappiness over the granting of EOT 2 and EOT 3 until the plaintiff commenced this Suit. Neither the defendant nor his Assistants raised any discernible objection to the EOTs at the material time, even though they were copied in the letters and had the opportunity to do so. In fact, the defendant could not even remember when he first raised his objections, or whether he had even expressed any objections in the first place. This can be seen from my exchange with him:

Hence, I find that the defendant’s allegations of conspiracy in relation to the EOTs are completely spurious as the allegations are unsupported by any evidence. To the contrary, the evidence clearly shows that the plaintiff and the professionals involved in the processing of EOT 2 and EOT 3 acted professionally and independently.

Summary on the EOTs

In summary, the defendant has not proven his case on a balance of probabilities in relation to a conspiracy between the plaintiff and the third party regarding the grant of the EOTs:

(a) The circumstances surrounding the evaluation of EOT 1, if anything, evidenced the third party’s professionalism and independence when assessing the EOT requests, for it was the third party who had continually pushed back and required substantiation from the plaintiff when evaluating EOT 1.

(b) EOT 2 was granted fairly and independently as SPPG’s delay in carrying out power connection works constituted a force majeure event falling within cl 23(1)(a) of the SIA Conditions. Furthermore, the plaintiff was not responsible for any delay that occurred and in fact, took reasonable efforts to mitigate any delays that arose. Although EOT 2 was granted for a period of 40 days, instead of CCA’s recommendation of 15 days, I find that the third party acted rationally and its decision was based on a breakdown of the Works that the plaintiff was required to undertake.

(c) In EOT 3, the third party granted the plaintiff a period of 15 days of EOT. This was also justifiably granted as it was similarly due to SPPG’s delay in carrying out power connection works, which constituted a force majeure event. EOT 3 was linked to EOT 2 in so far as the third party, in granting 40 days for EOT 2, had indicated to the plaintiff that it was keeping another 15 days in reserve depending on whether there was “further delay due to [SPPG’s] part”. SPPG did cause further delay after EOT 2. Moreover, the plaintiff acted with due diligence in seeking to comply with the First Testing and Inspection. The third party’s decision was, therefore, made professionally and independently.

My findings above are also buttressed by the fact that there was no shred of evidence of any broader conspiracy surrounding the EOTs. The allegations of fraud raised by the defendant in this regard were often fundamentally inconsistent or soundly rebutted by the evidence available. I, therefore, reject the defendant’s allegations in this regard.

Completion certificate

The defendant asserts that the CC was issued prematurely and without basis. The defendant avers that the conditions in Item 72 of the Preliminaries regarding the issuance of the CC were not satisfied. On that basis, the defendant alleges that the circumstances give rise to an inference that there was a conspiracy between the plaintiff and the third party for the third party to issue the CC to the plaintiff with the intention of thereby causing injury to the defendant.

To recapitulate, Item 72 of the Preliminaries comprises three conditions as follows:

In determining whether the CC can be issued, Item 72 of the Preliminaries must be read together with cl 24(4) of the SIA Conditions which provides:

Clause 24(4) of the SIA Conditions requires the third party to refer to the Contract between the plaintiff and the defendant, which includes Item 72 of the Preliminaries.

Whether Item 72 of the Preliminaries is applicable

The plaintiff and the third party contend that Item 72 of the Preliminaries does not apply in determining when the CC should be issued. They raise various arguments in this respect, which I shall address in turn.

(1) The third party’s submission that Item 72 does not form part of the Contract as the defendant did not sign Volumes 1A, 1B and 2 of the formal contract documents

The third party submits that Item 72 of the Preliminaries does not form part of the Contract. This submission is based on the fact that the defendant did not sign Volumes 1A, 1B and 2 of the formal contract documents, which contained Item 72 of the Preliminaries. According to the third party, this “evince[d] an intention not to be bound by Volumes 1A, 1B and 2”. Furthermore, cl 7 of the LOA states, among other things, that:

According to the third party, since Item 72 of the Preliminaries is not found in any of the documents referred to in cl 7 of the LOA, Item 72 of the Preliminaries does not form part of the Contract. Instead, the relevant clauses are contained in the SIA Conditions, which forms part of the Contract via cl 7(a) of the LOA.

I disagree with the third party. As V K Rajah JC (as he then was) observed in Midlink Development Pte Ltd v The Stansfield Group Pte Ltd [2004] 4 SLR(R) 258 at [48]–[50] and [52] (cited by the CA in Toptip Holding Pte Ltd v Mercuria Energy Trading Pte Ltd and another appeal [2018] 1 SLR 50 at [51]):

Looking at the matrix of circumstances in this case, the conduct of both the plaintiff and the defendant evinces an agreement that Volumes 1A, 1B and 2 formed part of the Contract. The formal contract documents had been prepared by F+G and CCA, both of whom were consultants engaged by the defendant. From 29 February 2012 to 15 April 2013, the defendant was repeatedly reminded at site meetings to sign the formal contract documents. However, the defendant testified that he “just put the contract aside”. Throughout this time, the plaintiff and the third party continued to work on the Project. On their end, Mr Tan agreed in cross-examination that Volumes 1A, 1B and 2 formed part of the Contract, and that he had signed on various pages of Volume 1B. Mr Chan similarly agreed that the Contract included Volumes 1A, 1B and 2, as well as Item 72 in particular.

In the light of all these circumstances, the defendant’s conduct taken objectively signified his acceptance rather than his rejection of the formal contract documents. Having been reminded to sign the formal contract documents at site meetings, he must have known that the plaintiff and the third party were operating on the basis that the formal contract documents applied. His inaction despite such knowledge evinced to the plaintiff his acquiescence to the formal contract documents being part of the Contract. Therefore, I find that although the formal contract documents were not signed by the defendant, the plaintiff and the defendant agreed by their conduct that the formal contract documents formed part of the Contract. As such, Item 72 of the Preliminaries, which can be found in Volume 1B of the formal contract documents, is also part of the Contract.

(2) The plaintiff’s submission that Item 72 relates to the issuance of the MC and not the CC

The plaintiff takes a slightly different position from the third party. While the plaintiff accepts that Item 72 of the Preliminaries forms part of the Contract, the plaintiff submits that Item 72 relates to the issuance of the MC, rather than the CC. According to the plaintiff, the Preliminaries were drafted with the Public Sector Standard Conditions of Contract for Construction Works (the “PSS Conditions”) in mind, such that the reference to the “Completion Certificate” should be construed as a reference to the “Maintenance Certificate”. In support of this, the plaintiff points to Items 17, 45 and 60 of the Preliminaries, in which there are several apparent discrepancies between the terminologies used in the Preliminaries and the SIA Conditions. Thus, the plaintiff submits that Item 72 pertains to the issuance of the MC and is irrelevant to the determination of whether and when the CC should have been issued.

I do not accept the plaintiff’s submission. First, this was raised for the very first time in the plaintiff’s written closing submissions after the trial had ended. The plaintiff did not mention this point in its pleadings. It did not adduce any evidence of the PSS Conditions and its relevant terms, neither did it put this aspect of its case to any of the witnesses at trial. The last point is especially significant as it was F+G and CCA who had prepared the formal contract documents, including the Preliminaries. Therefore, the witnesses from F+G and/or CCA could have provided useful evidence as to how the Preliminaries came about and whether they were originally drafted for the PSS Conditions. However, the plaintiff failed to raise this point entirely. In these circumstances, it would not be fair to the other parties, the defendant especially, to permit the plaintiff to raise this new argument at the last minute at the conclusion of the trial after all the witnesses had testified.

Secondly, it is not apparent from the evidence before me that the Preliminaries were intended to be used with the PSS Conditions. There are no express references in the Preliminaries to the PSS Conditions. The phrase “Completion Certificate” does not even appear in the PSS Conditions, which use the term “Final Completion Certificate”. In contrast, the SIA Conditions use the exact term “Completion Certificate”.

Thirdly, even if the Preliminaries were originally drafted to be used with the PSS Conditions, that does not mean that they cannot be used with the SIA Conditions. Furthermore, when used with the SIA Conditions, the Preliminaries may not necessarily take on the same meanings as when they were used with the PSS Conditions. While there may be some discrepancies in the terminologies used (eg, Item 60 of the Preliminaries refers to a “Certificate of Substantial Completion” although the SIA Conditions do not refer to a “Certificate of Substantial Completion”), the meaning as intended by the parties is ultimately a matter of construction based on the circumstances as a whole. In construing the meaning of “Completion Certificate”, it is pertinent that Item 72 of the Preliminaries clearly states that:

In turn, the phrase “Conditions of Contract” is expressly defined at Item 3 of the Preliminaries to be the SIA Conditions together with the Supplementary Conditions. Read in this context, the phrase “Completion Certificate” in Item 72 must have the same meaning as the phrase “Completion Certificate” in cl 24(4) of the SIA Conditions although the scope and requirements in the two provisions are ostensibly different. It is also important to note that none of the witnesses, including those from F+G and CCA, testified that Item 72 of the Preliminaries was applicable to the Maintenance Certificate rather than the Completion Certificate. If Item 72 indeed relates to the Maintenance Certificate, one would expect the witnesses and the parties to raise it right from the start.

For the above reasons, I do not accept the plaintiff’s submission that the term “Completion Certificate” in Item 72 of the Preliminaries should be construed as “Maintenance Certificate”.

(3) The plaintiff’s and the third party’s submission that Item 72 should be disregarded as it contradicts cl 24(4)

Finally, the plaintiff and the third party both submit that even if Item 72 forms part of the Contract, cl 24(4) of the SIA Conditions supersedes Item 72 of the Preliminaries, such that the latter should be disregarded when determining whether the CC can be issued. This argument is based on cl 11 of the Supplementary Conditions to the Conditions of Contract, which provides as follows:

The plaintiff and the third party contend that as cl 24(4) contradicts Item 72 of the Preliminaries, the effect of cl 11 is that cl 24(4) of the SIA Conditions “prevail[s]” over Item 72 of the Preliminaries. In support of this, the third party raises several instances of apparent contradictions between cl 24(4) and Item 72. The eventual result is that, in determining when the CC can be issued, the third party only has to refer to cl 24(4) of the SIA Conditions.

I disagree with the plaintiff and the third party. Clause 11 states the order of priority “[i]n the event of conflicts and discrepancies”. In this instance, however, cl 24(4) of the SIA Conditions and Item 72 of the Preliminaries are neither in conflict nor inconsistent. There are no discrepancies in these two provisions. In fact, Item 72 of the Preliminaries is complementary or supplementary to cl 24(4) of the SIA Conditions. Clause 24(4) broadly sets out the circumstances under which the third party can exercise its discretion to issue the CC, as seen above at [300]. Item 72 of the Preliminaries provides further guidelines to the third party on its exercise of the discretion in cl 24(4) of the SIA Conditions. Both provisions have a common purpose, that is, to ensure that the Project is complete, in compliance with the contractual requirements and that the defendant can move in to occupy and use the three units in the Project. In this regard, it is notable that cl 24(4) makes reference to compliance with “the Contract in all respects”. This reference to the Contract means that in determining whether the requirements in cl 24(4) are satisfied, the third party should have regard to the entire Contract, including Item 72 of the Preliminaries.

In this respect, the CA in Ser Kim Koi (Court of Appeal) ([67] supra) at [66] similarly observed:

Thus, Item 72 of the Preliminaries has to be satisfied before the CC can be issued. I turn now to deal with each of the conditions under Item 72 of the Preliminaries and the specific allegations in relation to each condition.

Whether Item 72(a) of the Preliminaries has been fulfilled

Item 72(a) of the Preliminaries states that the CC shall not be issued until “[a]ll parts of the Works are in the Architect’s opinion ready for occupation and for use”. To recapitulate, the CC was issued by the third party on 15 May 2013, certifying completion on 17 April 2013. The TOP was only issued by the BCA on 16 September 2013. As at 15 May 2013, the Project had already failed TOP Inspection 1, which was held on 30 April 2013.

The plaintiff distinguishes between the Project being “physically ready for occupation” and the employer being able to “legally occupy the Project” after the TOP is obtained. The plaintiff submits that the phrase “ready for occupation and for use” in Item 72(a) refers to physical readiness for occupation, not legal readiness. Otherwise, the phrase “Architect’s opinion” would be rendered otiose. The plaintiff also notes that when making a request for the issuance of the TOP, the third party is required to submit a declaration that the “works have been completed in accordance with the provisions of the Building Control Act, the regulations made thereunder and the conditions under which the plans were approved”. According to the plaintiff, this means that the third party must be satisfied that the Project is “ready for occupation” before applying for the TOP.

Similarly, the third party submits that the issuance of the TOP is not a pre-condition for the third party’s issuance of the CC. The third party notes that pursuant to s 12(4) of the Building Control Act (Cap 29, 1999 Rev Ed) (“Building Control Act”), the TOP is only prima facie evidence that a building is suitable for occupation. Moreover, there is no express reference to obtaining the TOP in Item 72(a) or any other part of the Contract. Thus, Item 72(a) should be read practically from the perspective of the third party who is not legally-trained.

The defendant takes a different position. Since it is an offence pursuant to s 12 of the Building Control Act to occupy a building before the TOP or CSC has been issued, the defendant claims that the third party should not have issued the CC for the Project certifying that it was ready for occupation and use. The defendant also relies on the following passages from Ser Kim Koi (Court of Appeal) ([67] supra) at [44]–[45]:

I generally agree with the above-cited passages in principle, on the premise that the reasons for the failure of the TOP inspections can be attributed to matters that fall within the scope of the plaintiff’s Works. However, the passages cited above cannot be taken to stand for the absolute proposition that a CC can never be issued if the TOP is not obtained. An example of when the CC was issued prior to the obtaining of the TOP is Schindler’s Lifts ([150] supra). In that case, the completion certificate was issued on 1 September 2000 whereas the TOP was obtained in two phrases on 23 September 2000 and 1 February 2001 (see Schindler’s Lifts at [4]). In this case, it is clear and undisputed that Item 72(a) of the Preliminaries and cl 24(4) of the SIA Conditions do not state that the TOP must be secured before the architect can issue the CC. In a situation where the third party issues the CC notwithstanding that the TOP inspections have failed, a more nuanced inquiry is needed, on which I shall now elaborate.

In construing Item 72(a) of the Preliminaries, the court has to first determine the scope of the plaintiff’s Works under the Contract. In this case, the definition of the term “Works” is set out in cl 1 of the Articles of Contract, under the heading “Contractor’s Obligations”:

Next, the court has to identify the reasons for the failure of the TOP inspections. Were any of these reasons due to construction-related issues that were within the scope of the plaintiff’s Works? If the failure of the TOP inspections was due to defects that were wholly beyond the plaintiff’s control and not within its contractual responsibility, it would be difficult for the third party not to issue the CC since the plaintiff can be considered to have completed its contractual obligations. In these circumstances, it would be justifiable for the third party to issue the CC notwithstanding that the TOP has not been obtained. This is especially so having regard to the purpose of the CC which, inter alia, is to determine the plaintiff’s liability for delay and determine the commencement of the maintenance period (see Ser Kim Koi (Court of Appeal) at [69]).

In relation to TOP Inspection 1, some of the reasons why it failed clearly fell within the scope of the plaintiff’s Works eg, the unequal steps and risers. This shortcoming was already known to the third party before TOP Inspection 1 as it had qualified it in the CC. Both the plaintiff and the third party have stated that they considered some of the non-compliances identified in the TOP inspections as minor works which could be completed post-completion. For example, in relation to the unequal steps and risers, Mr Yong stated as follows:

However, it does not matter whether or not the unequal steps and risers are “minor” works by industry standard or that they could easily be rectified. The fact is that the Project could not have been “ready for occupation” under Item 72(a) of the Preliminaries in the light of the safety issues presented by the unequal steps and risers. Thus, these minor works would have posed a danger to the occupiers of the Project. That was why the TOP was not granted after TOP Inspection 1. As stated by the CA in Ser Kim Koi (Court of Appeal) ([67] supra) at [53]–[55]:

The third party claims that it acted in good faith based on its experience, commercial understanding and practical reality. But none of these reasons can override the clear and express language of Item 72(a) of the Preliminaries. Further, Mr Yong testified that when he issued the CC on 15 May 2013, he was unaware of Item 72 of the Preliminaries. Instead, he relied on cl 24(4) of the SIA Conditions. As stated above at [300], however, cl 24(4) of the SIA Conditions expressly states that the Works must “comply with the Contract in all respects”. Therefore, this provision requires the third party to refer to the Contract documents between the plaintiff and the defendant, which includes Item 72 of the Preliminaries.

It is, therefore, clear that as of TOP Inspection 1 on 30 April 2013, Item 72(a) of the Preliminaries had not been fully complied with by the plaintiff. In fact, the plaintiff itself admits that “there [were] construction errors in the steps that caused [TOP Inspection 1] to fail”. TOP Inspection 1 was before 15 May 2013, when the CC was issued to take effect from 17 April 2013. The third party knew on 15 May 2013 that TOP Inspection 1 failed for several reasons, including the non-compliant steps and risers which was a construction matter within the plaintiff’s scope of responsibility. In fact, the evidence shows that the third party knew that the steps and risers were non-compliant even before the application for TOP Inspection 1. Hence, the third party should not have issued the CC on 15 May 2013 certifying that the Project was completed on 17 April 2013.

TOP Inspection 2 was on 18 June 2013. After TOP Inspection 2, the BCA did not comment on the steps and risers inside the three units, including those that they had earlier identified as non-compliant. Thus, those steps and risers were deemed acceptable by the BCA. However, the Project again failed TOP Inspection 2. This second failure to obtain the TOP was due to three issues – the steps at the RC flat roof for all units, the last step at the landscape area of Unit 12A that failed to comply with the requirements for steps and risers, and the height of the barrier at the pavilion in Unit 12A. I shall deal with each of these in turn.

I start with the steps at the RC flat roof. The steps at the RC flat roof were not part of the contract drawings and had only been added subsequently to ensure easy access at the flat roof, as instructed by the third party pursuant to Architect’s Instruction Number 15. Hence, this is additional work directed by the third party. As Mr Tan explained, these steps were “non-standard and not typical in design”. The reason for not allowing the steps pertained to design, rather than as a result of a construction fault on the plaintiff’s part. The plaintiff had merely followed the design of the RC flat roof step area provided by the third party. Therefore, this was not a construction error by the plaintiff. I also do not consider this to be a matter of negligent design on the part of the third party. The third party had considered that the steps at the RC flat roof fell within certain exceptions to the BCA’s Approved Document – Acceptable Solutions (July 2011) (the “BCA Regulations”), whereas the BCA officer took a different view. This was a matter of a difference in opinion, rather than the third party being negligent in its design.

I turn now to the last step at the landscape area of Unit 12A. While this was within the contract drawings and clearly fell within the scope of the plaintiff’s Works, the cause of the defect was not a construction error. Rather, the defect arose due to the settlement of the landscaped soil, which resulted in the height of the last step being higher than permitted under the BCA Regulations. As this was a natural phenomenon, it cannot be attributed to the plaintiff or the third party, nor can it be regarded as a construction error.

Finally, I turn to the issue of the height of the barrier at the pavilion in Unit 12A. The TOP was only obtained on 16 September 2013 due to this issue, which eventually necessitated the installation of a glass barrier. According to the BCA Regulations, where a design had a fall of more than one metre in height, a barrier should be constructed for safety purposes. Furthermore, the BCA Regulations state that the “height of a barrier is measured vertically from the finished floor level to the top of the barrier”. In this instance, there was a wall at the pavilion of Unit 12A which was a metre high if measured from the pavilion floor. However, there was a bench built into the wall. During TOP Inspection 1, the BCA officer measured the height of the wall from the top of the bench instead of from the floor of the pavilion. Thus, the height of the wall became less than a metre and the BCA officer was of the view that this posed a safety issue as people could climb onto the bench and potentially topple over the wall onto the level below which would be more than a metre fall. The third party was of the opinion that it was not a safety issue as the wall was a metre tall when measured from the floor of the pavilion. On this view, the term “finished floor level” in the BCA Regulations referred to the floor of the pavilion, rather than the top of the bench. However, the BCA disagreed as the BCA officer measured the height of the wall from the top of the bench to the top of the wall.

It was this difference in opinion that resulted in the BCA refusing to grant the TOP at TOP Inspection 2. The BCA Regulations did not state where the measurements should begin, ie, from the top of the wall or the top of the bench. It was, thus, a matter of a difference in opinion. The third party could not have foreseen this with certainty before the BCA’s inspections. In fact, prior to the construction of the Project, the third party had obtained approvals for the building plans from the BCA. The building plans included the height of the wall with the built-in bench at the pavilion at Unit 12A being stated as 1000mm from the “finished floor level”. Since the BCA had approved the building plans, the BCA should not have faulted this aspect of the design at TOP Inspection 1. Nevertheless, the BCA did. The third party then attempted to resolve the issue by implementing an invisible grille which was, however, rejected by the BCA. Eventually, a glass barrier was used with the approval of the BCA. It would, therefore, not be correct to say that the third party had been negligent in designing the pavilion and the invisible grille. It would also not be correct to say that the issue with the height of the barrier at the pavilion in Unit 12A was a construction error.

Thus, while the failure of TOP Inspection 1 was due to construction faults on the plaintiff’s part, the failure of TOP Inspection 2 was not. Rather, it was caused by natural phenomenon and design issues falling within the third party’s purview. Therefore, since the failure of TOP Inspection 2 was not due to defects within the plaintiff’s contractual responsibility, the third party could have issued the CC once the defects highlighted in TOP Inspection 1 were rectified. I accept Mr Yong’s evidence that such rectification works were completed by 28 May 2013, within 28 days from the date of TOP Inspection 1. The rectification works started on 17 May 2013 and it took 11 days to complete it. I note that there is some dispute amongst the parties in relation to whether the rectification works for the steps and risers had in fact been carried out satisfactorily, which I shall deal with further below. Thus, I find that Item 72(a) of the Preliminaries was satisfied by 28 May 2013.

For completeness, I should add that the plaintiff pleaded for the court to grant an extension of time from 17 April 2013 to 16 September 2013, or in the alternative, for a declaration that time had been set at large for the completion of the Contract. This was on the basis that any delay in obtaining the TOP was due to the third party’s failure to produce a design for the pavilion at Unit 12A that was acceptable to the BCA. Given my finding that the CC should have been issued on 28 May 2013 (before the issue relating to the pavilion at Unit 12A was resolved), there is no need for the court to consider the issue of any delay occasioned by the invisible grille. Furthermore, for reasons which I shall explain at [661]–[665] below, the relevant act of prevention was not the third party’s design of the invisible grille, but its instructions to the plaintiff to delay rectification of the steps and risers until after TOP Inspection 1. In the circumstances, it was understandable why the plaintiff did not apply for an EOT after the issues relating to the invisible grille arose. At that point in time, the CC had already been issued. There would have been no need for the plaintiff to apply for any EOT and it would not have occurred to the plaintiff to do so.

Whether Item 72(b) of the Preliminaries has been fulfilled

The defendant alleges that as at 17 April 2013, various services, including gas and electricity, had not undergone T&C. According to the defendant, the T&C for electricity was never carried out as he had not received any report on the same. In addition, the defendant claims that T&C for ACMV works was only done on 8 July 2013.

I shall deal first with the T&C for gas services before turning to the T&C for the other services, and finally, the handing over of the relevant documentation.

(1) Testing and commissioning of gas services

Item 72(b) of the Preliminaries states that before the third party issues the CC, “[a]ll services [must be] tested, commissioned and operating satisfactorily as specified in the Contract”. The defendant contends that this includes the gas services for the Project, and that T&C of the gas services was not conducted after power turn-on. It is not in dispute that as at 17 April 2013, T&C for the gas services was not completed. The third party submits that the defendant is estopped from strict reliance on Item 72(b) in this respect because it was represented to all parties that, for safety reasons, the T&C for the gas services would be done after the Project was completed and all parties consented to this.

The requirements of promissory estoppel are well-settled, as explained by the CA in Audi Construction Pte Ltd v Kian Hiap Construction Pte Ltd [2018] 1 SLR 317 at [57], [58] and [61]:

I agree that gas services fall within the scope of Item 72(b) of the Preliminaries. However, I accept the third party’s submission that the defendant is estopped from insisting that T&C of the gas services be done prior to the issuance of the CC. CCA was of the opinion that gas turn-on for the Project should only be completed after the TOP was obtained, as it had concerns about the safety of switching on the gas supply for the Project that would be vacant for an extended period of time. This was communicated by CCA to the defendant, Mr Cheung, Mr Chow, the third party and the other Consultants on 21 January 2013 during Site Meeting No 41. Item 7.4 of the minutes of Site Meeting No 41 states:

The defendant, Mr Cheung and Mr Chow did not have any objections to this proposal at the meeting. A copy of the minutes was circulated to all parties present at Site Meeting No 41 by the third party via an e-mail dated 30 January 2013. There is also no other evidence to suggest that the defendant or his Assistants had any objections to the proposal at Site Meeting No 42, or at any other point of time during the course of the Project. This was confirmed by Ms Chua at trial:

As evident from the above, the defendant was informed of CCA’s proposal to conduct T&C of the gas services after the TOP. The defendant was the employer in the Project. If no objections were made by him after he was informed of the proposal, a reasonable person in the position of the plaintiff and the third party would think that he had agreed to CCA’s proposal. In other words, he had a duty to speak. Therefore, his failure to voice any objections amounts to a representation that he agreed to the T&C of the gas services being conducted after the TOP. The plaintiff relied on this representation when it did not carry out the T&C of the gas services until after the TOP and the issuance of the CC. Accordingly, it would be inequitable for the defendant to now raise the argument that there was no T&C of the gas services prior to the issuance of the CC, when it appears that all parties had jointly agreed to CCA’s proposal in Meeting Site Number 41.

Moreover, T&C was eventually conducted by City Gas as well as by the plaintiff and its subcontractors, both prior to, at the time of, and after gas turn-on. This is confirmed by the documents as well as the testimonies of the various witnesses. Mr Chew Beng Wah (PW6, “Mr Chew”) testified that although CCA was of the view that further T&C for the gas services was not required following turn-on, the subcontractors nevertheless carried out further T&C at the Project after gas turn-on. Similarly, Ms Chua testified as follows:

(2) Testing and commissioning of other services

I note that in Ser Kim Koi (Court of Appeal) ([67] supra), the CA also observed at [47] that the documents in the CC suggested that some basic works and services had yet to be tested, commissioned, or checked if they were operating satisfactorily. In particular, the CA referred to the schedule of minor outstanding works attached to the CC, which states:

Thus, there were possibly four services for which T&C had not been carried out, namely, the electrical services, the ACMV works, the water pipes, and the hot water supply. I shall address each of these in turn.

Firstly, regarding the electrical services, the contemporaneous documents demonstrate that the electrical services of the Project had undergone T&C before 17 April 2013. These are as follows:

(a) In relation to the T&C of the lighting points and lighting arrester, the Certificate of Supervision of Lighting Protection System dated 7 February 2013 is evidence that T&C of the lighting points and lighting arrestor was completed prior to 17 April 2013.

(b) In relation to the T&C of the lighting points and built-in equipment, the Certificate of Fitness of Residential Unit dated 7 March 2013 for Unit 12, Unit 12A and Unit 12B show that T&C of the lighting points and built-in equipment was completed prior to 17 April 2013.

(c) The licensed electrical worker signed the Electrical Installation Inspection Report for Unit 12, Unit 12A and Unit 12B on 5 April 2013, 1 April 2013 and 26 March 2013 respectively, showing that the electrical installation complied with the requirements in accordance with “the Singapore Standard CP5 and the relevant regulations” prior to 17 April 2013.

(d) SPPG’s officer signed the Statement of Turn-on of Electricity for Unit 12, Unit 12A and Unit 12B on 8 April 2013, 2 April 2013 and 27 March 2013 respectively, showing that the electrical installation was “suitable for connection to the electrical system” prior to 17 April 2013.

Mr Lee, the defendant’s expert electrical witness, affirmed that once the Certificate of Fitness of Residential Unit, Electrical Installation Inspection Report and Statement of Turn-on of Electricity were duly endorsed, no further T&C was required for the Project.

That addresses T&C prior to electrical turn-on. However, the defendant’s contention is that T&C must have been conducted before and after turn-on. I turn now to T&C conducted after turn-on. Mr Yong explained that when it came to T&C of certain services conducted by the plaintiff after turn-on and prior to handing over, these might not necessarily be accompanied by formal documentation. Mr Yong explained as follows:

Given the absence of formal documentation, the most useful evidence to determine whether T&C had in fact been conducted is the evidence of the people who were present at the Project at the relevant time and who had witnessed such T&C taking place. In that regard, Mr Yong confirmed in his evidence that T&C of the electrical services had been carried out:

Ms Chua similarly confirmed that the requisite T&C had been carried out by the plaintiff:

I note that in the course of cross-examination, Mr Tan testified that the T&C for the electrical services had not in fact been conducted after power turn-on:

The defendant seeks to rely on this portion of Mr Tan’s evidence to show that the T&C of the electrical services was not conducted after power turn-on. However, it must be borne in mind that Mr Tan is the plaintiff’s director and was not directly managing the Project. When giving evidence on the stand in relation to the T&C of the relevant services, he stated that he would “leave the technical aspect to [his] project manager to explain”. In contrast, Mr Yong and Ms Chua were both more closely involved in the running of the Project than Mr Tan. In fact, Ms Chua was the M&E engineer for the Project, therefore, she would have been directly involved in overseeing the plaintiff’s progress in relation to the electrical services. In these circumstances, when it comes to the issue of whether the T&C of the electrical services was in fact carried out after power turn-on, I am more inclined to prefer the evidence of Mr Yong and Ms Chua over that of Mr Tan.

Secondly, the T&C of the ACMV works had already been completed on or around 1 and 2 April 2013 (before electrical turn-on), as well as from 10 to 12 April 2013 (after electrical turn-on). This is supported by the contemporaneous documents, and confirmed by Ms Chua at trial. In particular, the T&C of the ACMV works was completed and signed off by the plaintiff and its subcontractor for Unit 12, Unit 12A and Unit 12B on 10 April 2013, 11 April 2013 and 12 April 2013 respectively. Ms Chua testified that she had personally conducted the T&C of the ACMV works:

Ms Chua further explained that CCA had to conduct the T&C before it could release the Certificate of Supervision required for the TOP application:

In relation to the T&C of the A/C equipment referred to in the schedule of minor works attached to the CC (which was eventually carried out on 8 July 2013), this was an additional T&C carried out at the defendant’s request, as he wanted the ACMV works to be tested on both sunny and rainy days. Mr Yong testified to this effect:

Ms Chiyachan had corroborated this by explaining that it had been an additional request by the defendant:

This was, again, confirmed by Ms Chua during cross-examination:

As Ms Chua explained, this additional T&C pertained to ascertaining whether CCA’s design for the ACMV works was performing according to purpose, and not whether the ACMV works were constructed by the plaintiff in accordance with CCA’s design:

When questioned by the court, Ms Chua maintained this position:

In relation to the T&C for the water pipes and hot water, I find that as at 17 April 2013, these services must necessarily have been already working. This is seen from the evidence of Ms Chiyachan:

This was also corroborated by the evidence of Mr Yong, who testified that similar to the T&C of the electrical services, the plaintiff’s internal T&C of the water pipes and hot water was not necessarily accompanied by formal documentation. Mr Yong explained as follows:

Ms Chua similarly confirmed that the requisite T&C for all the relevant works had been carried out before 17 April 2013, save for the T&C of the gas services:

I turn now to the defendant’s submission regarding the T&C of the swimming pool. The defendant submits that the T&C of the swimming pool installations was conducted after the certified completion date of 17 April 2013, and that RTO Leong (who signed as a witness to these reports) had not actually been present during the T&C of the swimming pool installations.

However, this allegation was not pleaded by the defendant. This was pointed out to the defendant’s counsel during the trial. Nevertheless, he maintained that there was no need for the defendant to amend his pleadings as the T&C of the swimming pool fell within his “pleaded case [that] item 72(b) of the [P]reliminaries have not been satisfied”. With respect, I find this explanation highly unsatisfactory. As the defendant’s counsel himself pointed out during Mr Ng’s cross-examination, the services falling within Item 72(b) were M&E installations, electrical installations, ACMV works, plumbing, sanitary, gas and filtration. However, it was not apparent from the defendant’s pleadings that his case regarding Item 72(b) related to all of the services covered by Item 72(b). The defendant’s case as reflected in his pleadings is that “there was no basis for issuing the CC stating that the Project was complete on 17 April 2013, when gas, electrical services, and ACMV for the Project had yet to be fully tested and commissioned” [emphasis added]. There is no mention of the T&C for the swimming pool. The fact that the defendant specifically referred to “gas, electrical services and ACMV” reinforces the understanding that the defendant was only contesting T&C in relation to these particular services. In fact, the defendant’s counsel acknowledged in his oral submissions that the defendant did not “plead the swimming pool”. The defendant’s counsel submitted that nevertheless, the court should consider the issue as it “came out in evidence”. This too is not a satisfactory explanation.

It is trite that parties must plead all the material facts of their case and the court is precluded from deciding on a matter that the parties have decided not to put in issue. The exception to this is where no prejudice would be caused to the other parties in the trial or it would be clearly unjust for the court to disregard the issue (see V Nithia (co-administratrix of the estate of Ponnusamy Sivapakiam, deceased) v Buthmanaban s/o Vaithilingam and another [2015] 5 SLR 1422 at [35], [38] and [40]). The rationale for this is procedural fairness (see RDC Concrete ([196] supra) at [52]), including the need to ensure that a party has notice of his opponent’s case so that he can adequately prepare for it.

In this case, I find that the defendant’s pleadings were insufficient to bring to the parties’ and the court’s attention that he was also contesting the T&C of the swimming pool. The main focus throughout the trial was on the alleged leakage of the swimming pool. There was no mention of whether the T&C for the swimming pool was conducted in the pleadings. That was raised as an issue only in the last tranche of the trial, when the court sought certain clarifications from the parties on the evidence. As such, to consider the issue now would be prejudicial to the plaintiff and the third party, who did not have the opportunity to prepare for this point and adduce from their witnesses the relevant evidence to address this point. In particular, the defendant relies on a document titled “Checklist for Testing & Commissioning of Swimming Pool” dated 16 May 2013, after the certified completion date. While this document was referred to by the parties in the course of the trial, it was not for the purpose of asking the witnesses whether and when the T&C of the swimming pool was conducted. Therefore, I disregard the defendant’s submissions on this point as it was not pleaded, and it would be prejudicial to the plaintiff and the third party to consider it now.

In any case, even if the issue were considered, I would not have accepted the defendant’s claim that the T&C of the swimming pool was not conducted before the issuance of the CC. To the contrary, the evidence shows that the T&C of the swimming pool was in fact conducted before the issuance of the CC. Specifically, Ms Chua testified that all of the relevant T&C had been conducted (see [360] above). This is supported by the minutes of Site Meeting No 47 dated 15 April 2013, which state that the T&C of the swimming pool was completed as at that date.

(3) Handover of test certificates, operating instructions and warranties

A final issue arises in relation to Item 72(b) of the Preliminaries. This condition stipulates that test certificates, operating instructions and warranties (the “Documents”) have to be handed over by the plaintiff to the defendant before the third party can issue the CC. It is not disputed that the operating instructions and warranties were only handed over to the defendant on or about 22 June 2014. The defendant further submits that the test certificates have not been handed over to the defendant even up till today. However, the Documents were in fact ready earlier than 22 June 2014 as the plaintiff and the third party wanted to hand over the Project to the defendant soon after the TOP was obtained, specifically, on or around 25 September 2013, but the defendant refused to take over the Project.

The third party explained that the Documents were not handed over because it took a “practical approach” and was of the opinion that the Documents could be prepared during the maintenance period. The third party considered the handing over of the Documents a de minimis issue which had no impact on the practicality of completion. Accordingly, the third party was of the opinion that Item 72(b) of the Preliminaries did not require the Documents to be handed over prior to the issuance of the CC. This position was reiterated by Mr Yong in cross-examination:

When pressed further in cross-examination, his explanation was as follows:

I accept the third party’s position that the handing over of the Documents under the second part of Item 72(b) of the Preliminaries is de minimis. It is trite that the Singapore courts adopt a contextual approach to interpretation. This was set out by the CA in Zurich Insurance (Singapore) Pte Ltd v B-Gold Interior Design & Construction Pte Ltd [2008] 3 SLR(R) 1029 at [130]:

The CA further cited Gerald McMeel, The Construction of Contracts: Interpretation, Implication, and Rectification (Oxford University Press, 2007) and endorsed several canons of interpretation at [131]. The ones that are significant in this case are the following:

(a) The aim of construction: the aim of the exercise of construction of a contract is to ascertain the meaning which it would convey to a reasonable business person.

(b) The holistic or “whole contract” approach: the exercise of construction is based on the whole contract or a holistic approach. Courts are not excessively focused upon a particular word, phrase, sentence or clause, rather, the emphasis is on the document as a whole.

(c) The contextual dimension: the exercise in construction is informed by the surrounding circumstances or external context. Modern judges are prepared to look beyond the four corners of a document, or the bare words of an utterance. It is permissible to have regard to the legal, regulatory, and factual matrix which constitutes the background in which the document was drafted or the utterance was made.

(d) Business purpose: due consideration is given to the commercial purpose of the transaction or provision. The courts have regard to the overall purpose of the parties with respect to a particular transaction, or more narrowly the reason why a particular obligation was undertaken.

(e) Avoiding unreasonable results: a construction which leads to very unreasonable results is to be avoided unless it is required by clear words and there is no other tenable construction.

Applying these principles, I turn first to the plain language of Item 72(b) of the Preliminaries. In full, Item 72(b) reads:

Item 72(b) essentially comprises two parts. Firstly, the requirement to ensure that all services are tested, commissioned and operating satisfactorily (the “T&C requirement”). Secondly, the requirement to hand over the Documents (the “handover requirement”). The defendant contends that the court should adopt the literal meaning of Item 72(b), which is that it is mandatory for the handover requirement to be fulfilled in order for Item 72(b) to be satisfied. In my view, however, the word “including” which connects the T&C requirement and the handover requirement shows that the handover requirement is a subset of the T&C requirement. The plain language of Item 72(b) thus suggests that the handover requirement is subsidiary to the primary focus of the sub-clause, which is the T&C requirement. In determining whether Item 72(b) has been satisfied, therefore, the critical issue is whether the T&C requirement has been fulfilled.

This alternative meaning is plausible in the light of the context of the clause and the Contract as a whole, as well as its commercial background and business purpose. I turn first to the contractual context. Item 72(b) forms part of various other requirements that must be satisfied before the third party can issue the CC. These are Items 72(a) and 72(c), as well as cl 24(4) of the SIA Conditions. Items 72(a) and 72(c) provide that:

Clause 24(4) of the SIA Conditions provides that:

As seen from the italicised portions of the provisions above, these provisions confer onto the third party a significant amount of leeway to apply its judgment to determine whether such conditions have been satisfied. This makes sense given that it is precisely the architect’s expertise that is sought after when an owner engages an architect to oversee a project. The T&C requirement in Item 72(b) contains a phrasing similar to the above provisions in so far as it uses the word “satisfactorily”, which must refer to the satisfaction of the architect. The spirit of these provisions, therefore, is that the CC should be issued when the architect, applying his professional judgment and expertise, is satisfied that the works have been completed. Allowing the architect to retain this broad, general discretion to determine whether the T&C requirements have been satisfied, rather than restricting him to the timing of the handover of the Documents, would be more in line with the spirit of Item 72.

This interpretation is fortified by the commercial background and business purpose of Item 72. The literal interpretation of Item 72(b) would not cohere with the business purpose of the CC. As mentioned at [324] above, the purpose of the CC is, inter alia, to determine the plaintiff’s liability for delay and determine the commencement of the maintenance period. Therefore, in construing Item 72(b), as with Item 72(a), the court must have reference to the scope of the plaintiff’s responsibilities. As Mr Yong testified, the Documents must first be verified by the quality surveyor before they can be handed over the defendant. Similarly, Ms Chua testified that after compiling the Documents, the plaintiff had to submit them to CCA for vetting and approval before the Documents could be handed over to the defendant. If Item 72(b) were construed literally such that the CC could only be issued after the handover requirement was satisfied, the plaintiff would be exposed to the risk of delay on the part of other parties over whom it had no control.

Similarly, to interpret Item 72(b) literally so as to require the Documents to be handed over before the issuance of the CC would have been impracticable, unworkable even, for all parties. As Mr Yong explained:

Such an impracticable outcome could not have been the parties’ intentions, neither would a reasonable business person have understood Item 72(b) in this manner. Although the court must not rewrite the parties’ contract (see Goh Yihan, The Interpretation of Contracts in Singapore (Sweet & Maxwell, 2018) at para 10.005), the unreasonableness of a particular interpretation may suggest that it was not the parties’ intentions for such an interpretation to be adopted.

Furthermore, I note that Item 72 was included in the Contract by CCA, rather than having been specifically negotiated by the plaintiff and the defendant. Therefore, it is not the case that the parties specially took pains to include this clause in the Contract. This supports the interpretation that the handover requirement is de minimis.

Finally, I note that cl 31(13) of the SIA Conditions states that “[t]he Architect shall in all matters certify strictly in accordance with the terms of the Contract”. This is not a bar to the abovementioned purposive construction of Item 72(b). Clause 31(13) merely states that the Architect must adhere strictly to the terms of the Contract; it does not require that the Architect adhere strictly to the literal meaning of the Contract. Rather, the terms of the Contract are determined by the court through the process of construction. In other words, cl 31(13) does not mandate a literal interpretation of the Contract, only that the Architect must certify strictly in accordance with the terms of the Contract as construed by the court. Therefore, it does not impede the purposive interpretation that the handover of the Documents in Item 72 is de minimis.

For the above reasons, I find that Item 72(b) is fulfilled as long as the services are tested, commissioned and operating to the third party’s satisfaction as specified in the Contract and subcontracts. In assessing whether these requirements have been satisfied, the third party may have regard to whether the Documents have been handed over to the defendant. Given that the T&C had been carried out for all services except for gas services by 17 April 2013, and the third party was of the view that, from a practical perspective, the handover of the Documents could be done on another day, Item 72(b) was satisfied by 17 April 2013.

Thus, my finding remains that the CC should only have been issued as of 28 May 2013, which is the date that Item 72(a) was complied with (ie, the date of completion of rectification works in relation to the defects raised after TOP Inspection 1).

Whether Item 72(c) of the Preliminaries has been fulfilled

The defendant submits that the third party should not have issued the CC certifying completion on 17 April 2013, as there were “many outstanding unrectified construction defects at the Project”. Item 72(c) of the Preliminaries provides that the third party shall not issue the CC unless “[a]ll works included in the Contract are performed including such rectification as may be required to bring the work to the completion and standards acceptable to the [third party]” [emphasis added]. Therefore, the defendant asserts that the fact that the CC was issued, notwithstanding the numerous defects, gives rise to the inference that the plaintiff and the third party had conspired in relation to the issuance of the CC. I should also add that the defendant challenges the issuance of the MC on the same basis.

The plaintiff disputes this and contends that the remaining outstanding works after the CC was issued were “minor” works. Similarly, the third party points to cll 24(4) and 24(5) of the SIA Conditions, which provide that the Works should “appear to be complete and to comply with the Contract in all respects”, and that the third party can list outstanding “minor works” in a schedule to the CC to be rectified thereafter.

Preliminarily, I note that the presence of minor defects does not prohibit the third party from issuing the CC. This was explained by Prakash J in Yap Boon Keng Sonny v Pacific Prince International Pte Ltd and another [2009] 1 SLR(R) 385 (“Yap Boon Keng Sonny”) at [134], as follows:

The following passage from Commentary on SIA Standard Form at para 24.14 is pertinent in explaining the standards expected of a contractor at the point of completion:

This term “practical completion” has been understood as referring to “the completion of all the construction work that has to be done … notwithstanding the existence of latent defects” and “a state of affairs in which the works had been completed free from patent defects other than ones to be ignored as trifling” (see Chow Kok Fong, Law and Practice of Construction Contracts (5th Ed, Sweet & Maxwell Asia, 2018) (“Law and Practice of Construction Contracts”) at para 23.414).

I turn now to the alleged defects. The matters raised by the defendant can be classified into three categories:

(a) defects due to the plaintiff’s failure to exercise proper care and skill in constructing the Project (see Stephen Furst and Vivian Ramsey, Keating on Construction Contracts (Sweet & Maxwell, 10th Ed, 2016) at para 3-071);

(b) defects due to the defendant’s lack of maintenance of the Project and/or wear and tear; and

(c) issues arising due to the natural characteristics of the materials chosen by the defendant.

From the outset, I must emphasise that the plaintiff and the third party can only be liable for defects that are due to the plaintiff’s failure to exercise proper care and skill (ie, the first category stated above). The burden is on the defendant to prove, on a balance of probabilities, that each alleged defect is attributable to the plaintiff.

Further, I note that Item 72(c) of the Preliminaries states that the Works and any rectifications must be carried out “to the completion and standards acceptable to the Architect” [emphasis added]. It is, therefore, clear that the decision to issue the CC under Item 72(c) of the Preliminaries lies in the discretion of the third party.

In so far as the defendant sought to rely on expert reports and photographs of alleged defects after 2014, this had to be treated with extreme caution given that these defects could have been the result of the defendant’s deliberate refusal to maintain the Project, as mentioned above at [140]–[142].

Clause 11 of the SIA Conditions

Before turning to deal with each of the specific defects, I would like to refer to Mr Chin’s opinion on cl 11(1) of the SIA Conditions, which he claims required the plaintiff to supply materials of “… the best of their described kinds…” for the Project. He relied on this clause to support his finding of defects in relation to the Volakas marble, the ironwood for the timber decking and the variance in tonality of the Indian rosewood. With respect, Mr Chin must read that provision in the context of the entirety of clause 11(1). It is wrong for him to focus only on that portion of the clause to the exclusion of other parts to support his opinion that the plaintiff furnished poor quality materials in this Project. Clause 11(1) reads:

This sentence does not mean that the plaintiff must provide the best materials regardless of the materials agreed, selected and chosen by the defendant. As I elaborate below at [425]–[429], the defendant personally chose and selected the Volakas marble. Similarly, in relation to the Indian rosewood and ironwood, samples were shown to the defendant, together with the prices of those materials (see below at [447]). These materials became the PC Rate items of the defendant’s NSCs and were included in the tender documents that subsequently became the contractual terms. Therefore, the plaintiff had no discretion to change these materials. Hence, it is incorrect and unfair for the defendant to now claim that the plaintiff must provide the best quality materials in respect of all the materials in the Project. Bearing the above in mind, I shall now address the alleged defects in the Project.

(1) Punctured gas pipe

The defendant alleges that there is a defective gas pipe laid across the driveway at the front gate of Unit 12A. This defect only relates to Unit 12A. There are two parts to the defendant’s pleadings regarding the alleged defective gas pipe. Firstly, the defendant argues that the gas pipe was punctured and not rectified. He pleads as follows:

Secondly, as part of his claim that the third party demonstrated undue partiality towards the plaintiff, the defendant argues as follows:

In essence, the defendant’s pleadings raised three allegations in relation to the gas pipe. Firstly, the gas pipe sleeve had been dented. Secondly, the gas pipe had been punctured. Lastly, there had been no proper replacement and pressure testing of the gas pipe. Before I deal with these issues, I would like to address the manner in which the defendant introduced fresh evidence in relation to these issues at the last minute.

The defendant’s belated introduction of evidence

During the course of trial, the defendant sought to introduce new evidence in relation to the gas pipe at the first and third tranche of the trial, ie, 8 November to 30 November 2018 and 18 February to 3 July 2020. On both occasions, this was done weeks after that particular tranche of hearings had commenced. In any case these applications to adduce fresh evidence were made several years after the pleadings had been exchanged and closed. These introductions of fresh evidence were also done after the summary judgment application in 2016.

I shall elaborate on each of these fresh applications in greater detail to illustrate the undesirable state of affairs in relation to the defendant’s conduct of this case. Generally, the court should not condone such unsatisfactory conduct on the part of the defendant, as the belated introduction of fresh evidence may impinge on procedural fairness if the opposing parties are not given sufficient opportunity to respond to the fresh evidence.

The first application to introduce fresh evidence was made on 28 November 2018. The defendant sought to adduce into evidence a video taken on 22 November 2018. The defendant had engaged a contractor to hack the driveway of Unit 12A to expose the allegedly punctured gas pipe. According to the defendant’s counsel, Mr Christopher Chong, the purpose of the video was to prove that the plaintiff did not perform the necessary rectification works on the gas pipe sleeve and that the gas pipe still remained punctured.

It must be emphasised that this new evidence was introduced approximately three weeks after the trial had commenced. The video was only disclosed to the plaintiff and the third party on the evening of 26 November 2018. In all fairness to the plaintiff and the third party, the hearing had to be adjourned for them to view the video evidence and to respond to the defendant’s application. The plaintiff and the third party, quite understandably, vehemently objected to this last-minute introduction of new evidence as they were caught by surprise.

The defendant’s counsel explained that the video was only filmed on 22 November 2018 as Mr Tan had stated during cross-examination that the gas pipe sleeve was replaced by the plaintiff. However, the defendant’s counsel candidly acknowledged that the defendant had been aware that the plaintiff’s case was that the defects had been rectified. If that was the case, the evidence could have and should have been obtained and introduced at an earlier stage.

Thus, I expressed my great dissatisfaction that evidence was being introduced so late in the trial. Despite my dissatisfaction, on 9 March 2020 at the third tranche of the trial, the defendant again sought to admit fresh evidence in relation to the issue of the gas pipe.

On this second occasion to adduce fresh evidence, the defendant sought to introduce the evidence of Mr Lim Teck Seng Bernard (DW8, “Mr Bernard Lim”). According to the defendant’s counsel, Mr Bernard Lim’s evidence would show that the gas pipe had been improperly rectified. Again, it must be emphasised that this introduction of new evidence was made two weeks after the third tranche of trial had commenced. The interval between the first tranche of trial (ie, November 2018) to the third tranche of trial was more than a year. Clearly, there was inordinate delay on the defendant’s part.

Again, I reluctantly allowed the defendant to introduce the new evidence on account of its potential relevance to the issue of whether the gas pipe was punctured. However, as will be discussed below, a more thorough and careful analysis of the evidence and the pleadings reveal that this new evidence is irrelevant to the defendant’s pleaded case and this introduction of fresh evidence should not have been allowed.

Ultimately, this entire state of affairs leaves much to be desired. The burden is on the defendant to prove his counterclaim that the gas pipe was punctured and that the plaintiff did not rectify the defect. Accordingly, the defendant ought to have acted far more expediently to obtain all relevant evidence that would go towards proving the alleged defects, and this should have been done before the trial commenced.

The alleged defects in the gas pipe

I shall now deal with the defendant’s counterclaim regarding the alleged punctured gas pipe. In this regard, the defendant relies on an email sent by CCA on 7 March 2014 and a corresponding Engineer’s Direction No 1 (“ED 01”) issued by CCA on 24 March 2014 to replace the gas pipe. The defendant asserts that the plaintiff has not complied with ED 01 to date.

However, CCA confirmed that the plaintiff complied with ED 01 by carrying out all the necessary rectification works in relation to the gas pipe as of 1 April 2014. Contrary to the defendant’s allegations, it was the gas pipe sleeve which covers the gas pipe that was dented. Furthermore, BAPL, the defendant’s own expert, confirmed that as of 21 November 2013, the gas pressure was fully restored and was not leaking. This suggests that any issues with the gas pipe, regardless of whether they concern the gas pipe sleeve or the actual gas pipe, had been rectified by the plaintiff.

In any event, the defendant has failed to establish, on a balance of probabilities, that the dented/punctured gas pipe was not replaced, and pressure tested as pleaded. The defendant’s allegations are rebutted by the testimony of Mr Lim Shao Lin, (PW7, “Mr Lim SL”), the managing director of GasHub Engineering Pte Ltd and the licensed gas worker for the Project. It transpired that in November 2013, there were complaints from the defendant of low gas pressure at Unit 12A of the Project. Mr Lim SL suspected that the gas pipes might be waterlogged, preventing gas from flowing through. Accordingly, Mr Lim SL conducted investigations on the same gas pipe that the defendant now alleges was punctured. For the purpose of these investigations, Mr Lim SL hacked the tiles of the driveway at Unit 12A that covered the gas pipe, removed the cement, cut the iron gas pipe sleeve and removed the sleeve. It was in the course of this process that the gas pipe sleeve was deliberately cut to access the gas pipe. Separately, Mr Lim SL also had to drill and tap a hole in the gas pipe to check if it was waterlogged. He found nothing wrong with the gas pipe and patched up the hole that he had drilled with a steel plug and sealant to prevent any gas leaks. Thereafter, a semi-circular iron structure was used to replace the part of the iron sleeve that was removed to access the gas pipe so as to protect that portion of the gas pipe. It was subsequently revealed that the cause of the low gas pressure was due to gas pipes laid by external parties at the roadside outside the Project.

The alleged puncture in the gas pipe was thus due to investigations made as a result of the defendant’s own complaints. It, therefore, does not lie in the defendant’s mouth to allege that there was defect, or a puncture, in the gas pipe.

However, the defendant then pointed to the fact that there was a steel plug on the gas pipe as evidence that it was and remains punctured. It was for this very purpose that he sought to introduce the video evidence. However, the video evidence does not advance the defendant’s case in any way, for nothing can be made out from the video disclosed. In fact, the evidence shows that after confirming that the gas pipe was not waterlogged, Mr Lim SL had to seal the hole in the gas pipe with a steel plug. Accordingly, what is clear is that not only was there no puncture in the gas pipe before Mr Lim SL drilled it to check whether it was waterlogged (and found that it was not, hence, no replacement was required), proper testing that involved drilling into the gas pipe had to be done.

I turn next to the evidence of Mr Bernard Lim, which is relied upon by the defendant. Mr Bernard Lim is a project coordinator at City Gas Pte Ltd, which is a retail supplier of gas. He said that the laying of the gas pipe was according to the as-built plan, which had been approved. He further said that the gas pipe protected by the iron sleeve that was laid across the driveway of Unit 12A is proper and acceptable.

Mr Bernard Lim had inspected the relevant gas pipe at Unit 12A and opined that sealing the hole in the gas pipe with a steel plug was contrary to accepted practice. However, the defendant’s pleadings are not that the rectification work done to the gas pipe is improper or illegal. Rather, the pleadings state that no rectification work was carried out on the dented or punctured gas pipe. It is, therefore, clear that Mr Bernard Lim’s evidence is simply irrelevant to any of the pleaded issues as stated at [393]-–[395]. Thus, Mr Bernard Lim’s evidence should not, strictly speaking, have been admitted at all.

However, I am cognisant of the fact that his evidence related to the issue of gas safety. Thus, I shall nevertheless deal with this matter. In Mr Bernard Lim’s opinion, it was a dangerous practice to drill a hole into the gas pipe and to subsequently seal the hole with a steel plug. This was because there was a possibility of gas leakage as the gas pipe in Unit 12A was made of polythylene. The proper practice, in his view, was to cut away a section of the pipe and thereafter insert a T-joint between adjacent parts of the pipe. However, he opined that if the gas pipe were made of ductile iron it would be appropriate to drill a hole and thereafter plug that hole:

I recognise that this may certainly have been one viable method of testing and rectification of the gas pipe. However, Mr Bernard Lim also acknowledged that what Mr Lim SL, the certified licensed gas worker, did was not against the Code of Practice for Manufactured Gas Pipe Installation (also referred to as “CP51”) or any regulation or law:

As seen from Mr Bernard Lim’s response, he acknowledged that there is no relevant regulation or rule that prohibits the method of rectification used by Mr Lim SL. Furthermore, there is no evidence that the licensed gas workers who legitimately conducted on-site rectification had improperly conducted their works or were negligent in any way. In any case, given that all licensed gas service workers are licensed by the Energy Market Authority, the plaintiff and the third party would have been fully entitled to rely on their method of rectification. Although Mr Bernard Lim disagreed with Mr Lim SL’s method of rectification, this court cannot disregard the method used by Mr Lim SL, who was a qualified licensed gas worker and whose rectification work was accepted by CCA.

Similarly, the defendant’s claim regarding the possibility of the gas pipe being dented was a non-starter. Contrary to what the defendant alleges, it was the gas pipe sleeve which covers the gas pipe that was dented. The dent in the gas pipe sleeve did not affect the gas pipe. According to Mr Chew, the purpose of the gas pipe sleeve is to protect the gas pipe from being damaged. That dent in the gas pipe sleeve did not damage or affect the gas pipe itself. The rectification of the pipe sleeve and gas pipe after testing by Mr Lim SL was accepted by CCA.

(2) Volakas marble flooring

The defendant alleges that there were “numerous cracks, scratches, and other forms of damage to the marble flooring [in the Project]”. According to the defendant, these defects were due to the plaintiff’s failure to handle, lay and protect the Volakas marble tiles with the requisite care. Furthermore, the plaintiff also made use of a pallet truck on-site without ensuring that there were proper protective measures to prevent damage to the Volakas marble flooring. In fact, the defendant raised his concerns about the lack of protection to the Volakas marble flooring over the course of the various site meetings from 19 November 2012 to 4 February 2013. The third party itself also issued an architect’s direction (“AD 01”) on 4 January 2013, noting that “[t]here [were] no proper protection of the installed works …”. The defendant contends that the plaintiff failed to comply with AD 01 as the protection provided by the plaintiff remained unsatisfactory. The defendant also relies on Mr Chin’s evidence to argue that the Volakas marble was defective. In considering Mr Chin’s evidence it is important to bear in mind that he was not an expert in Volakas marble as he had no prior experience regarding Volakas marble. Although he professed to have dealt with other kinds of marble in general, such experience does not immediately translate to the kind of in-depth knowledge that he professed to have in relation to Volakas marble. Hence, he cannot be considered an expert in Volakas marble.

I find that Mr Chin’s insistence on excessive rectification, as discussed above at [134], brings into question his objectivity. Mr Chin’s evidence is also highly unreliable, for as stated above at [131]–[133], he vacillated on a number of key issues when providing evidence. In particular, the Volakas marble was a key issue in relation to which he originally testified that a complete replacement of all the marble slabs would be required. However, he subsequently retracted from his original position, conceding that it was possible to attempt to rectify the defects using other means besides a complete replacement. This change of approach suggests that he may have realised the extreme position that he initially took. In any case, I find Mr Chin’s evidence in relation to the Volakas marble to have been given without the requisite experience and it should be treated with extreme caution.

It should also be noted that RTO Leong testified that he had specifically checked the marble that was delivered to the site at multiple times:

It is clear that the defendant’s allegations regarding the Volakas marble flooring are largely unmeritorious and extreme. The plaintiff did rectification works to the marble flooring following the defendant’s complaints. Furthermore, the alleged cracks, tonality, stains and other forms of impurity are natural inherent characteristics of the Volakas marble. The natural characteristics of Volakas marble must be the starting premise to determine whether or not there were any defects in relation to the Volakas marble flooring. Furthermore, the defendant chose the Volakas marble slabs himself and decided not to dry lay the Volakas marble tiles (ie, laying out the marble slabs without mortar to observe the aesthetic effect). Dry laying the Volakas marble tiles beforehand would have ensured better tonality of the Volakas marble flooring. In the circumstances, it was highly improper for the defendant to turn around and claim that the plaintiff was responsible for the alleged defects arising out of the Volakas marble flooring. I shall elaborate on each of these points.

Firstly, I accept the plaintiff’s and the third party’s submission that the alleged defects in the Volakas marble flooring were “natural flaws”. On this point, the evidence of Mr Tong Kam Fei (PW4, “Mr Tong”) was highly relevant. Mr Tong is a director of Andes Consultant Pte Ltd, a firm that specialises in advising on building and construction disputes. Mr Tong testified that he is experienced to deal with issues arising from marble. Mr Tong inspected the Project on 20 February 2014 and made the following finding in relation to the Volakas marble flooring:

Mr Tong’s assessment of the Volakas marble was consistent with that of Marble Market, a Greek supplier of Volakas marble, as well as Palazzo, who supplied the Volakas marble for the Project. Both Marble Market and Palazzo were of the opinion that the alleged defects concerning the Volakas marble flooring were natural flaws. Mr Tong agreed with their assessment. In a letter that was sent in March 2014, Mr Yiannis Chatziioannidis, the managing director of Marble Market, stated that Volakas marble “can include some natural impurities like red and yellow lines, grey crystals … hairline cracks and fissures … pinholes and holes … [and] brown pencil veins”. In addition, in an email dated 22 November 2013, Mr Joseph Tan from Palazzo also stated that Volakas marble is a “natural stone [that] is likely to vary in colour and veins. The yellow stains found on the surface of the marble are iron minerals”.

These statements are consistent with the existing literature on Volakas marble. In Marble Institute of America, “Marble Soundness Classification” (January 2005), which was tendered by the third party, Grade C marbles such as Volakas marble are said to:

Secondly, the defendant would have been fully aware of some of these natural flaws which were exposed when he selected the Volakas marble at the Palazzo warehouse. The defendant visited the Palazzo warehouse on at least three occasions (16 July, 23 July and 30 July 2012) and personally chose the Volakas slabs. These visits to the warehouse lasted for at least two hours on each occasion.

The defendant claims that nevertheless, he did not have the opportunity to check the Volakas marble delivered by Palazzo. I do not accept this claim. According to Mr Manoosegaran, the defendant personally chose the Volakas marble slabs at the Palazzo warehouse before they were cut to their required sizes. This was corroborated by Ms Chiyachan, who had accompanied the defendant to the warehouses on various occasions. There are also contemporaneous emails sent by Ms Chiyachan that clearly show that the defendant visited the Palazzo warehouse to select the Volakas slabs for the Project on 16 July and 23 July 2012. These visits were arranged pursuant to a discussion on 5 July 2012 where the defendant agreed not to dry lay the Volakas marble, but to view the slabs before cutting instead.

The defendant, however, disputes this by claiming that he would usually only be standing “20–30 feet away” as he was afraid of going near the marble slabs. Again, this was simply untrue. The plaintiff and the third party rely on photographs showing the defendant selecting the Volakas marble slabs at the Palazzo warehouse. In these pictures, the defendant is shown standing closely to a marble slab as part of his inspection. Ms Chiyachan also testified that at these visits, the defendant had gone “quite close” to the marble and had been “quite close together with us, and he also see [sic] the marble and to carry the marble himself … we went there together to understand what his standard for the marble [was]”.

Therefore, in the light of the evidence, photographs and contemporaneous emails, I reject the defendant’s bare assertion that he did not select any Volakas marble and that the photographs merely captured him “walking past” the Volakas slabs. The defendant’s assertion was also not corroborated by any of the other witnesses, who instead testified that the defendant had chosen the Volakas slabs himself. Thus, the defendant would have been fully aware of some of the natural flaws of the Volakas marble which were exposed and later made more apparent when polished by the plaintiff.

I further note that prior to the above events, the defendant and his wife had paid a visit to Mr Yong’s house in order to obtain an idea of how Volakas marble would look when installed in a larger space. At that meeting, Mr Yong explained to them the issues relating to Volakas marble, including the tonality, stain, grain and veins, which was often only appreciated by marble connoisseurs. In fact, at this meeting the defendant’s wife had expressed her objections to the selection of Volakas marble, which she thought to be ugly. Ironically, it was shortly after this meeting that the defendant chose Volakas marble for the Project, to the surprise of Mr Yong. Given that the defendant had clearly been apprised of the issues relating to Volakas marble prior to making his own choice, he ought to lie in the bed that he had made for himself.

Finally, I note that the defendant only raised his complaints about the Volakas marble flooring in October 2013, notwithstanding that the installation of the Volakas marble tiles was completed before January 2013. I accept that the defendant was entitled to raise any defects throughout the defects liability period. However, with regard to the Volakas marble flooring, the defendant would have been aware of the alleged defects since January 2013. The fact that he did not have any issues then and only complained about the alleged defects in October 2013 is evidence of how the defendant only sought to subsequently nit-pick and identify all possible defects in an unreasonable and pedantic manner, in order to find fault with the plaintiff and the third party once the certified payment claims became due. The defendant’s issue with the Volakas marble flooring was, in all likelihood, a mere afterthought.

In any event, I observe that the plaintiff carried out three rounds of rectification to the Volakas marble flooring for the Project. It appears that these rectifications by the plaintiff had been undertaken with great care to cater to BAPL’s complaints, as Mr Yong himself testified:

Such rectification by the plaintiff was done purely on a goodwill basis and the plaintiff did not issue an invoice or make a claim for these rectification works. I have seen the photographs of the rectification works done by the plaintiff as produced by Mr Chin and the rectification works appear to be satisfactory. The third party similarly approved the rectification works at the time, as Mr Yong observed:

It is, therefore, unreasonable for the defendant and Mr Chin to reject those rectification works.

(3) Ironwood for timber decking

The defendant alleges that there were numerous cracks and splinters in the ironwood used for the installation of the timber decking in the Project. Furthermore, there were also differences in tonality between the ironwood used for the Project. Mr Chin agreed with the defendant’s allegations regarding the cracks, splinters and differences in tonality. He opined that the timber strips with such defects have to be replaced. Further, Mr Chin also noted the presence of stains on the timber decking, which he claimed have to be removed with a stain remover.

Similar to the Volakas marble flooring, Mr Chin provided a mapping of the timber strips that, in his view, were defective. However, once again, I observed that the extent of his mapping in relation to Unit 12 was so extensive as to effectively require the complete replacement of the entire timber decking. Mr Chin agreed with my observation:

However, these allegations are again without merit. As with Volakas marble flooring, these alleged defects were simply natural characteristics of ironwood. In this regard, Mr Tong opined as follows:

While Mr Chin agreed with Mr Tong’s observations, he opined that such splitting and checking could not have occurred in the early stage of life of timber that was carefully selected, as the natural decaying mechanism would take a long period of time.

However, in my view, Mr Chin failed to take into account the fact that the timber had been left exposed outdoors for a period of time. In fact, from the time the Project was purportedly completed in April 2013 to his investigations in November 2014, which resulted in the mapping, the timber had been left exposed for a period of 19 months. That would have allowed the split and checks to develop, as per Mr Tong’s opinion above at [438] unless there was proper maintenance. Further, Mr Tong’s evidence is consistent with the literature that states that ironwood, which was used for the timber decking, “seasons slowly with tendency for … splitting”. Furthermore, ironwood also “darken[s] on exposure to a deep reddish brown, becoming very dark brown or even black with age”.

The plaintiff and the third party further argue that they had used control samples on-site during the installation of the timber decking to monitor the tonality of the ironwood. The plaintiff’s representatives and RTO Leong would compare the ironwood received on-site with the control samples, ensuring that they fell within the acceptable tonality range. This was the general practice for this Project as confirmed by Mr Yong:

Accordingly, the alleged defects in relation to the ironwood at the timber decking were not construction defects. In any event, the plaintiff also carried out the necessary rectification works to the timber decking on or around 14 January 2014 and 8 April 2014, which the third party was satisfied with.

Besides, the defendant has an existing warranty with the plaintiff and the subcontractor, Kianson Pte Ltd. Under this warranty, the defendant is indemnified in relation to the timber decking. Accordingly, if the defendant maintains that the timber decking is defective, the appropriate course of action would be for him to enforce the warranty against the plaintiff or Kianson Pte Ltd. He could easily have used this warranty to get the person who issued it to rectify the allegedly defective timber decking. However, he not only refused to allow the plaintiff to rectify the works, he also did not activate the warranty. The defendant is contributorily negligent in this regard even if he were found to be entitled to compensation for these defects.

(4) Variance in tonality of timber floor finish

However, once again, these differences in tonality are inherent natural characteristics of the Indian rosewood used for the timber floor finish. Mr Tong opined as follows:

This is again consistent with the existing literature on Indian rosewood that states that the general characteristic of Indian rosewood is that it varies in colour from golden brown to dark purple brown with darker streaks. Moreover, according to Mr Tong, this tonality difference is something that is ordinarily appreciated by purchasers of Indian rosewood. As with the ironwood, the Indian rosewood used for the Project was checked against control samples before installation. If the defendant did not appreciate such tonality differences, then it was incumbent on him to install curtains or other protective coverings to protect the Indian rosewood from exposure to sunlight, preventing the tonality differences from being exacerbated.

Further, as mentioned above at [441], there had been a concerted effort to ensure the quality of the materials that were used at the Project. Specifically in relation to the Indian rosewood, samples had been brought at an early stage of the Project to a meeting between the third party and the defendant, for the latter’s approval and comments. Thereafter, there was a further re-submission of Indian rosewood by the supplier that had also been placed on-site.

Accordingly, the variance in tonality of the indoor timber floor finishes was not a construction defect and neither the plaintiff nor the third party is liable for them.

(5) Aluminium cappings at the rooftop

The defendant alleges that the aluminium cappings on the rooftops of all three units of the Project were dented, scratched and finished with patchy and splotchy paintwork. When the plaintiff attempted to rectify these alleged defects, the plaintiff applied polyurethane spray-paint in a patchwork manner, when the aluminium had already been powder-coated. The defendant contends that the application of these different types of paint resulted in visibly divergent finishes.

The defendant’s allegations are again unmeritorious. The defendant is essentially asserting that the plaintiff’s method of rectification worsened the alleged defects. Instead, the plaintiff should have completely replaced the aluminium cappings with powder coated cappings. However, the plaintiff’s method of rectification was accepted by the third party and was confirmed to be correct by Qualicoat Pte Ltd (“Qualicoat”), the manufacturer of the aluminium. Qualicoat has provided a ten-year performance warranty to the plaintiff in relation to the aluminium and stated as follows in a letter dated 1 April 2014:

In fact, Mr Chin, the defendant’s own witness, also agreed with Qualicoat’s method of rectification as follows:

Mr Chin further alleged that even after the rectification had been completed, the polyurethane spray-paint could still be easily rubbed off by simply using his fingers. I find the allegation that the spray-paint can be so easily removed difficult to accept. In fact, as Mr Yong testified, what he had rubbed off could instead have been mere dust:

Furthermore, I also agree with the plaintiff and the third party that any issues with the aluminium claddings and cappings are aesthetic in nature. Mr Chin agreed that overall, this would not affect the performance of the metal cappings:

In any event, I note that the defendant has an existing warranty wherein the plaintiff and the subcontractor, Lejen Aluminium Pte Ltd, are jointly and severally liable “in the event of any deterioration or defects” in the aluminium works and glazing (except shower screen). This warranty expires on 17 April 2023 and the plaintiff has indicated that it is prepared to honour this warranty. Therefore, the appropriate course of action is for the defendant to enforce this warranty if he is of the opinion that there are indeed defects concerning the aluminium works.

(6) Steps and risers

I have earlier found that the third party should not have issued the CC as of 17 April 2013 due to the non-compliant steps and risers (see [382] above). However, I reject the defendant’s allegation that the steps and risers remain unrectified and non-compliant with the statutory requirements and contractual requirements up till today.

According to the BCA Regulations, the height of a riser shall not be more than 175mm (see Section E.3.4.1). Note 1 of the BCA Regulations qualifies this by clearly stating that a tolerance of +/- 5mm in any flight of stairs is acceptable. The defendant relies on a later version of the BCA Regulations (ie, the October 2013 version) wherein Note 1 to Section E.3.4.1 states that “[a] tolerance of 5mm between two consecutive steps in any flights of staircase is acceptable” [emphasis added]. However, the October 2013 version of the BCA Regulations is irrelevant for the purposes of this dispute, given that the steps and risers were constructed before then and the TOP inspections were also conducted before October 2013.

The defendant alleges that the height of many risers exceeded 180mm even up till today. In this regard, the defendant relies on the measurements of the risers by Mr Chin. He utilised precision measurement tools such as the digital Vernier caliper and a bubble leveller to carry out an interpolation and extrapolation of different points of the various steps. Undoubtedly, this allowed him to achieve a highly precise reading of the thickness and height of the various steps and risers. Based on his findings, Mr Chin opined that the riser heights were non-compliant with the BCA Regulations. Further, he opined that the difference in thickness and height of the various steps and risers was evidence of inadequate rectification done by the plaintiff. Overall, in Mr Chin’s view, these defects presented a hazard to anyone walking up or down the stairs.

However, Mr Chin’s use of such equipment to measure the height of the risers is completely inappropriate and unreasonable in the construction industry. According to Mr Tan, Mr Chin’s method of measurement would have added 3mm to the measurement of the riser. Mr Chin’s method of measurement is also at odds with the construction industry’s traditional method of measuring steps and risers, namely, the use of a simple measuring tape. In the construction industry, precision instruments are not used to measure the height of the risers. Mr Chin conceded that the digital Vernier caliper is not used in the construction industry to measure steps and risers and that the usual method of measurement was by a measuring tape. He conceded this several times in court:

Again, in response to my questions, he agreed that the digital Vernier caliper is not used by those in the construction industry:

It is understandable why precision tools such as the digital Vernier caliper are not used to measure steps and risers. The digital Vernier caliper is a tool used in the precision manufacturing industry in which exact precision in measurement is critical as there is little or no room for error. This is not the case for the measurement of the steps and risers as the BCA does give a range for acceptance of compliance. Mr Chin conceded that prior to this Project he had no experience in measuring steps and risers. For him to use the digital Vernier caliper, knowing that such precision equipment is not used in construction industry, suggests that he was out to prove that the steps and risers were not compliant with the BCA Regulations.

In my view, using the common measuring tape would have been the appropriate method of measurement, given that the BCA itself had used this method to determine if the steps and risers were compliant with statutory requirements. In fact, according to Mr Yong who was present at the TOP inspections, he said that the BCA inspectors walked along the stairs and if they felt that the steps and risers were uneven or not according to the prescribed requirements, then measurements were taken. The BCA inspectors did not take measurements of every step and riser. The BCA’s method of measurement must be the starting premise to determine if the steps and risers were in compliance with statutory requirements. Indeed, when the third party corresponded with the BCA to rectify the non-compliances arising out of the TOP inspections, the photographs of the rectified stairs were accompanied by a tape measure. The BCA was satisfied with these photographic submissions and granted the TOP for the Project on that basis.

In fact, the industry practice is similar to the method used by the BCA during its TOP site inspections (ie, walking up and down the stairs to spot the uneven height of the risers). This is Mr Yong’s explanation:

Similar evidence was provided by Ms Chiyachan in her testimony as follows:

This is a sensible method of testing the staircase ie, a general walk of the staircase, and pausing to measure only when something is obviously dangerous or incorrect. The BCA used the ergonomics of the human body to test the safety aspects of the staircases. This is logical as after all the staircases are used by people. This underscores the fact that the construction industry is far from a precision industry, which Mr Chin would have known.

In this regard, I accept the measurements of the steps and risers produced by the third party after the plaintiff performed the rectification works. Although the defendant submits that this set of measurements are inadmissible hearsay evidence, I accept the plaintiff’s contention that this set of measurements is an exception to the hearsay rule pursuant to s 32(1)(b)(iv) of the Evidence Act (Cap 97, 1997 Rev Ed) (the “Evidence Act”). Section 32(1)(b)(iv) provides:

In this case, the measurements were taken by the plaintiff’s ex-employee, Juan Ocampo (“Mr Ocampo”). According to Mr Tan, Mr Ocampo had left the plaintiff’s employ and returned to the Philippines. Nevertheless, the measurements were taken by Mr Ocampo as part of the plaintiff’s records, in the course of carrying out the plaintiff’s business. Therefore, the measurements fall within the exception to hearsay set out in s 32(1)(b)(iv) of the Evidence Act.

I address briefly two points raised by the defendant in this regard. First, the defendant submits that the measurements should not be admitted into evidence because the plaintiff did not comply with the notice requirements in O 38 r 4 of the Rules of Court. While this is true, this is a mere irregularity and is not fatal to the plaintiff’s admission of such evidence. Order 2 r 1(1) of the Rules of Court states that:

Secondly, the defendant also relies on Bumi Geo Engineering Pte Ltd v Civil Tech Pte Ltd [2015] 5 SLR 1322 (“Bumi Geo”) to submit that the measurements were a “once-off set of measurements”, were not recorded with a disinterested motive, and it was unclear who took the measurements and whether it was taken by the person who recorded them. These objections are without merit. The fact that the measurements were “once-off” is immaterial. The critical question, as set out in Bumi Geo at [105], is whether the measurements were made “in the way of business”, which “has been defined to mean a course of transactions performed in one’s habitual relations with others and as a material part of one’s mode of obtaining a livelihood”. In the present case, it is clear that they were – Mr Ocampo made the measurements in the course of his employment with the plaintiff for the purposes of the plaintiff’s business as a contractor. Furthermore, the court’s observations in Bumi Geo at [104] regarding a “disinterested motive” were in relation to explaining the rationale of the hearsay exception, rather than laying down a general rule that all evidence sought to be adduced via s 32(1)(b)(iv) had to have been made with a disinterested motive. The identity of the person who took the measurements is also not unclear, as there is evidence before the court that they were taken by Mr Ocampo. Thus, I reject the defendant’s submission that the measurements of the rectified steps and risers taken by Mr Ocampo are inadmissible hearsay evidence.

The defendant still asserts up till today that the defects relating to the steps and risers are unrectified. I note that the TOP has been granted for the Project and the BCA certified the staircases as having passed their inspections, ie, the staircase is safe for use. The CSC has also been issued in respect of the Project.

I find that the defendant’s assertions are without basis and incorrect for several reasons. Firstly, in Mr See’s opinion the proper rectification work was to have:

Mr See proposed a complete removal of the staircase and to re-do the steps and risers. He disagreed with Mr Chin’s and Mr Yong’s method of rectification by sanding down the steps. He explained:

The flaw in Mr See’s assessment is that he had only looked at a short flight of five steps leading up to the roof level, before concluding that sanding down was not possible. When cross-examined, Mr Yong conceded that based on these five steps alone, it would not be possible to sand them down to 175mm per step. However, as Mr Yong noted, this would not be a problem if one sanded down the various flights of steps as a whole. In that way, there would be a greater range of steps to allow for any topping up or sanding down to be done. Although he had not been required to carry out the exercise, in his view, this would have rectified the defects:

Furthermore, in the event that there was any excess that could not be solved by sanding down the steps alone, this excess could be resolved by sanding down the various landings in the stairs, as Mr Yong explained:

It should be noted that the plaintiff had, in fact, initially proposed a method of rectification similar to what Mr See suggested, albeit one less drastic. Following the failure of TOP Inspection 1, the plaintiff wrote to the third party, suggesting a number of major rectification works, including the reduction of a riser from the flight of steps such that every single step would be 172.5mm. This method would involve a substantial amount of work, which was effectively a redesign of the staircase. The fact that the plaintiff voluntarily suggested, and undertook to carry out, such major work demonstrates its willingness to rectify the defects whatever may be the efforts involved. The plaintiff’s proposal was not implemented because the third party opined that such drastic measures were not necessary, as Mr Yong testified:

Secondly, there is no evidence that any misrepresentations were made to the BCA in the final TOP inspection in order to gain approval. Although the defendant claims that a letter was drafted to inform the BCA, this was not produced in evidence. In any case, this draft letter is irrelevant, for not only was it never submitted to the BCA, there have been no sanctions or findings by the BCA that there were false representations made by the parties.

Lastly, the evidence shows that the defendant was at all times aware of the progress of the TOP inspections. In fact, after the unsuccessful TOP inspection held on 30 April 2013, the defendant instructed Mr Cheung to keep an eye on any works done by the third party. It is unbelievable that the defendant had opted to stay silent even when he disagreed with the finishings and had every opportunity to ask for further details.

I shall briefly deal with Mr Chin’s assertion that the steps and risers, mentioned above at [457], may be a safety issue. His assertion is not borne out on the facts. As noted above at [144], Mr Teo, who had visited the Project in order to determine its rental value, had no problem using the staircase despite his age. In fact, prior to being informed in court that there was a dispute regarding the height of the steps, Mr Teo had not even noticed any defects during his inspections.

In relation to Mr Chin himself, I note that it was only in 2017 that he went into the Project, armed with his precision tools, to identify the defects set out in his 2018 BAPL Report. Prior to that, he was at the site on multiple occasions in December 2013 and November 2014 during which he carried out extensive inspections for defects and flaws. In all these inspections, he had no problem when he used the staircases in the three units to access the upper floors. There was never any mention in his reports, prior to his inspection of the steps and risers, of any hazard posed by the steps and risers, or that he had tripped or fallen because of the unevenness or uneven height in the steps and risers. The first time the allegations relating to the steps and risers were brought up was in June 2016, in Mr Chin’s penultimate BAPL Report. This very point was also noted by Mr Yong in his testimony:

The methodology and results from Mr Chin’s reports are further questionable. Mr Chin had inexplicably adopted a method of measurement that was simply different from the industry practice, as seen from the following exchange in court:

The adoption of such a method resulted in substantially different measurements being taken by Mr Chin, allowing him to conclude that the stairs posed a danger. However, there was simply no reason for him to have done so, and this is reflected in the disparity between his conclusions regarding the alleged danger posed by the stairs and what has transpired in actuality:

All of these suggest that Mr Chin was blowing things out of proportion and that there was never a genuine danger posed by the steps and risers.

Accordingly, I find that the steps and risers for the Project were in compliance with the statutory requirements as of 28 May 2013, which was when the plaintiff completed its rectification works in relation to the defects raised after TOP Inspection 1.

(7) Swimming pool leakage

In February 2014, the defendant alleged that the water level of the swimming pools at the Project dropped by inches within days after the pumps were switched off. He also received a notification from the Public Utilities Board that the water consumption at the Project was exceptionally high and he was advised to check for leakages. The defendant, therefore, contends that the swimming pools at the Project are leaking and that these remain unrectified by the plaintiff. This alleged leakage has resulted in abnormal water consumption at the Project.

In this regard, the defendant called his experts Mr Ng Dick Young (DW4, “Mr Ng DY”), Mr Tang Chua Boon (DW5, “Mr Tang”) and Mr Chin. Their respective roles were as follows:

(a) Mr Ng DY conducted inspections of the swimming pools in August and October 2018. He opined that the swimming pools were clearly leaking, and this was attributable to the waterproofing membrane being defective, rather than wear and tear or a lack of maintenance.

(b) Mr Tang conducted CCTV inspections of the integrity of the swimming pool piping systems in September and October 2014, as well as in October 2018. He opined that a number of the pipes suffered from severe deficiencies in the pipe joints. This was attributable to a failure to ensure a proper support system or different size of pipes having been used in the construction, which could result in water leakage, irregular flow and clogging, and irregular flow rate.

(c) Mr Chin conducted various inspections of the units in the Project. In his 2018 BAPL Report, he observed that the swimming pool suffered from water stain marks on the wall next to the overflow drain and around the grout joints of the tiles. In his opinion, these were likely due to moisture egress, which was likely because the waterproofing membrane was damaged.

Therefore, the defendant claims that these experts’ findings support his initial complaint about the leakage of the swimming pool in February 2014.

However, the plaintiff relies on a report prepared by Barry Lee Tiong Meng (PW8, “Mr Lee”) from Aquatic Technology Pte Ltd, the firm that installed several aspects of the defendant’s swimming pools, namely, the laying of the pipes, the filtration system, and the T&C of the swimming pool system. Following the defendant’s complaints about the swimming pools in February 2014, Mr Lee conducted an investigation into a possible leakage of the swimming pools in April 2014. Based on the investigation, Mr Lee concluded that the water level of the swimming pools only dropped “marginally”. There were two reasons for this marginal drop in water level:

(a) firstly, there was seepage from the screed at the coping edge in the swimming pools; and

(b) secondly, evaporation of water, which averaged 5mm a day but could be as high as 9mm on a hot and dry day.

I wish to reiterate that the defendant engaged his Assistant, Mr Chow, an expert in waterproofing of swimming pools, to closely supervise the construction of the swimming pools in the Project. If there were any issues regarding the swimming pools, Mr Chow would have raised them on the spot or soon thereafter. But Mr Chow did not complain of any leaks in the swimming pools.

Having reviewed all four reports and heard the evidence of the experts, I find that the defendant has failed, on the balance of probabilities, to prove that the swimming pools were leaking at the material time (ie, 2014). I shall deal with each of the expert’s evidence in turn.

Ng Dick Young’s evidence

There are several reasons why I reject Mr Ng DY’s evidence. Firstly, Mr Ng DY’s report was based on inspections which were only conducted in August and October 2018, about five years after the TOP was obtained (ie, 16 September 2013). As he candidly acknowledged, his report was not relevant to the state of the swimming pools as at 2013, which was the relevant time of the defendant’s complaints of a leakage. In contrast, Mr Lee’s report was based on inspections in April 2014, and thus would have been more accurate and relevant in determining whether the swimming pools were indeed leaking at that time. As a corollary, the possibility that the leakages, if any, observed by Mr Ng DY in 2018 were due to a lack of maintenance and wear and tear, as suggested by Mr Tan, could not be eliminated.

Secondly, Mr Ng DY’s evidence was unreliable. He had only conducted a physical inspection involving hacking work at Unit 12A and not the other two units. Unit 12A was selected on the instructions of the defendant. Further, Mr Ng DY did not decide which tiles to hack. It was the defendant who discussed with Mr Ng DY’s engineer on the tiles to be hacked. Further, Mr Ng DY’s findings from Unit 12 and Unit 12B were based on extrapolations from his inspection of Unit 12A. In fact, he had only conducted a visual inspection of these two units. Mr Ng DY assumed that a finding of leakage in one swimming pool could similarly mean that there were leakages in the other pools, simply because the three swimming pools were constructed in the same manner.

This is not how an expert should conduct his checks. Assuming his method was correct, the proper way to find out if the other two swimming pools were leaking would be to conduct an independent and objective physical test involving hacking works, which he had not done. Such failure to do so made his report unreliable. In addition, this was the first time that Mr Ng DY had ever been asked to inspect a swimming pool for leakages and to prepare such a corresponding report. He does not qualify as an expert in determining leakages in swimming pool.

Thirdly, Mr Ng DY’s investigation may not have been able to positively determine that the swimming pool was in fact leaking. To ascertain this issue of swimming pool leak, it is necessary to first describe the structure of the swimming pool wall, which comprised several layers.

The outermost layer was made up of tiles, either granite tiles making up the exterior wall of the swimming pool, or mosaic tiles on the interior wall of the swimming pool. Underneath the layer of tiles was a layer of cement adhesive, which was used to adhere the tiles to the third layer of cement bedding. The fourth layer was the cementitious waterproof membrane, referred to as a cementitious polymer modified elastrometric membrane. Mr Ng DY explained that this cementitious waterproof membrane has specified chemical with waterproofing properties that, when solidified, would look exactly like normal cement to a layperson. The final layer was the reinforced concrete wall, which the plaintiff said also had a waterproof additive added to it before it was casted.

The diagrammatic representation of the swimming pool waterproofing is reproduced by the plaintiff:

Figure 1.

Mr Ng DY’s method of testing whether the pool at Unit 12A was leaking involved mechanically hacking, with power tools, those parts of the exterior wall of the swimming pool which the defendant opined to be likely leak spots. However, this methodology may not be correct. For a swimming pool to leak and result in substantial water loss, this would entail the water having to seep through several layers. First, the mosaic tiles and grouting must be defective. Second, there is a defective waterproof membrane of the interior wall that holds the water. Third, the water has to seep through the thick reinforced concrete wall with waterproof additive. Lastly, the water has to go through the defective exterior waterproof membrane, cement bedding and adhesive cement that held the granite tiles for the cascading effects. This clearly had not happened as Mr Ng DY acknowledged in cross-examination:

Further, even if the exterior wall suffered from a deficiency, it would not necessarily result in the leakage of water from the swimming pool. Although Mr Ng DY acknowledged this to be the case, he did not examine the inner wall of the swimming pool which would determine whether the swimming pool was leaking, as he acknowledged in court:

It is also important to note that Mr Ng DY was not personally present when his workers carried out the hacking works. The cementitious waterproof membrane looks similar to the cement concrete wall and Mr Ng DY noted that his workers would not be able to differentiate between these two materials. Thus, it was possible that the workers could have damaged or removed the waterproof membrane themselves during the hacking process. In fact, this possibility was also corroborated by the testimony of RTO Leong in court. When referred to Mr Ng DY’s AEIC and the relevant pictures, RTO Leong initially testified in cross-examination as follows:

However, when further questioned, he clarified as follows:

Finally, when Mr Ng DY was questioned on his expert opinion, he repeatedly retracted and contradicted significant portions of his report. These pertained to his observations relating to the following: (a) the damp concrete areas; (b) the signs of corrosion in the exposed concrete wall; (c) the presence of “honeycombs”; and (d) the debonding of tiles. I address each of these in turn.

In relation to dampness of the bare reinforced concrete, Mr Ng DY had stated in his AEIC, as follows:

His initial evidence was that the dampness of the bare reinforced concrete walls was proof that the waterproof membrane had failed. However, when questioned in cross-examination, he quickly conceded that this was untrue:

Similarly, in relation to signs of corrosion in the exposed concrete wall, Mr Ng DY’s AEIC stated as follows:

However, in cross-examination, he conceded that this was not necessarily the case with respect to the corrosion near the bottom of the bare concrete wall:

He similarly backtracked in his evidence regarding the other signs of corrosion, revealing that he had not in fact gone on to investigate the cause of the corrosion:

Despite his initial position regarding the corrosion stains, Mr Ng DY, therefore, admitted that the corrosion was caused by the corrosion of the steel edging supports near the external bottom of the pool wall of the overflow drain. Beyond this, he did not know for sure that the water had permeated the concrete and corroded the reinforcing bars.

In relation to the presence of “honeycombs”, Mr Yong explained how honeycombs could be formed when the concrete is poured over the reinforced iron bars contained within the wooden formwork. The concrete is then vibrated to allow it to hold on to the reinforced iron bars, and if it is not well vibrated, air bubbles could be left behind, which would look like honeycombs. On this point, Mr Ng DY’s AEIC stated that:

In court, however, Mr Ng DY acknowledged that the water seepage that would result from honeycombs, was not in fact present:

In fact, according to Mr Yong’s evidence, it appears that Mr Ng DY could not possibly have been looking at honeycombs as honeycombs could only form on bare reinforced concrete. Since Mr Ng DY had not removed the waterproofing layer in his investigations, he could not have seen the bare reinforced concrete. This was affirmed by Ms Tan at trial, when she testified that the concrete wall did not appear to have honeycombs on it:

This coheres with the evidence of RTO Leong, who stated that prior to the application of the waterproofing, he and Mr Chow had checked the surface of the structure wall of the swimming pool to ensure that there were no honeycombs. In his words, they were “very particular about this because waterproofing is very important”.

Lastly, in relation to the debonding of the tiles, Mr Ng DY had stated in his AEIC that:

This suggestion was brought into question by his own testimony during cross-examination:

It is, thus, immediately apparent that Mr Ng DY’s evidence on the stand was a clear volte-face from his own expert report. For these reasons, I am not satisfied with Mr Ng DY’s evidence that the swimming pool was leaking due to a failure in the waterproof membrane.

Tang Chua Boon’s evidence

Similarly, I find that Mr Tang’s evidence does not support the defendant’s case. Fundamentally, Mr Tang’s evidence is irrelevant to this issue of the swimming pool leakage. He conceded that his CCTV camera was not a test for leak in the swimming pools:

In the first place, Mr Tang did not conduct a water flood test. This involves capping the bottom end of the pipe, filling the pipe with water and monitoring the water level over 24 hours. Instead, Mr Tang only did a visual, telescopic inspection of the pipes. This method of testing was used only to detect the possible presence of deformities in the pipes and is usually ordered after the pipes have been determined to be leaking. Mr Tang candidly acknowledged this:

In fact, he testified that not only was the water flood test a more appropriate method, he would not himself have relied on the CCTV camera inspection to test for water leakages:

Therefore, Mr Tang’s evidence does not show the leakage of the swimming pools in the three units. This would be sufficient to dispose of Mr Tang’s evidence in relation to this entire issue.

For completeness, however, I shall deal with why his findings did not actually show the possibility of a leakage. A key finding in Mr Tang’s inspections was that there were gaps within the joints of several of the pipes that he had inspected. An example of such a gap is found in the following picture that he annexed to his report:

Figure 2.

In his opinion, such gaps would not be present if proper workmanship, and hence a proper connection, had been done. These gaps would further lead to a leakage problem in the pipes. However, Mr Tang acknowledged that he was unable to ascertain whether the gaps were such that they would allow water to seep through, as he was unable to view the length of the gaps. The gaps had initially been filled up using UPVC glue, in order to adhere the various pipes together. Mr Tang was unable to view the gaps from end to end, thus, the possibility that the UPVC glue was preventing a leakage could not be ruled out.

Mr Tang also took issue with the failure to utilise a standard reducer to join two different sizes of pipes in Unit 12A. According to his evidence, a standard reducer is a common solution used when a bigger pipe is connected to a smaller pipe, without which there would be a leakage when water flowed through. The picture that he annexed to show the defect in this case was the following:

Figure 3.

However, what is clear is that even if this defect existed, it made no difference in so far as the issue of leakage was concerned, as Mr Tang himself noted:

Therefore, I reject Mr Tang’s evidence that the swimming pool was experiencing a water leakage.

Chin Cheong’s evidence

I note at the outset that this is yet another area in which Mr Chin simply had no experience prior to 2013. In any case, Mr Chin had not conducted any tests whatsoever to determine whether the swimming pool was leaking. He relied purely on speculations based on his observations of stains at the site. When asked in cross-examination, Mr Chin noted that there were two possible causes of the stains namely, that the waterproofing membrane had failed, or the grout in between the tiles was defective. He was unable to point a definitive cause of the leak, or whether it was even leaking in the first place.

When cross-examined on this issue, Mr Chin made two key concessions, which effectively undermined his evidence:

The fact remains that Mr Chin did not personally observe the drop in water level, and that the plaintiff’s tests would have been more definitive than his evidence. Further, given the speculative nature of his evidence and his lack of experience on the matter, I reject Mr Chin’s evidence that the swimming pools had water leakage.

Lee Tiong Meng’s evidence

I turn now to Mr Lee’s evidence that there was a marginal drop in the swimming pool water levels due to evaporation and possible seepage from the screed of the coping edge. Mr Lee explained that the coping edge of a swimming pool is the cap or edging which is the granite that is placed around the top rim of a swimming pool. The screed is the adhesive that is used to hold the coping granite at the top structure of the swimming pool vertical wall. The water from the swimming pool will flow over the granite capping edge and cascade down the exterior wall to the overflow channel. The diagrammatic representation of the swimming pool water flow is reproduced by the plaintiff:

Figure 4.

The plaintiff’s and the third party’s case is that although the water could have seeped out of the screed, this was not a water loss from the swimming pool. The swimming pools here were designed to have a cascading effect, such that water would overflow the pools, across the outer wall. The water that flowed out of these pools would then be collected in an overflow channel and subsequently flow back into a balancing tank. When the pump of this swimming pool system was turned on, the water would be pumped back into the swimming pool and the water level would remain the same. In other words, there would be no nett water loss as a result of the leakage from the screed as that water will find its way down the water cascading wall to the overflow channel. This was the feature of these swimming pools.

I note that the minutes of Site Meeting No 47 dated 15 April 2013 state that the swimming pool testing was completed. Furthermore Web, one of the defendant’s Consultants, was satisfied that the swimming pools were not leaking as of 29 January 2014.

However, the defendant’s case is that the water levels had dropped when the pumps were switched off. On Mr Lee’s evidence when the pumping system was not turned on, the water could leak from the screed down the cascading wall to the overflow drain. This may, perhaps, result in a drop in the water levels. Mr Lee acknowledged that the leak from the screed was a common problem. This can be seen from his evidence, as follows:

From the above, it can be seen that although it is a “common problem” for the screed to leak, it is still considered a defect and has to be rectified. In fact, Mr Lee observed that a failure to rectify the screed might worsen the porousness of the screed, possibly even to the extent of affecting the cascading effect of the swimming pool.

Therefore, I accept that there was a defect in the screed which may cause some leakage in the swimming pools due to the porous nature of the screed. For completeness, I note that Mr Lee did not specify which swimming pool was leaking, however, he had checked all three swimming pools for leakage. The inference, therefore, is that his observations apply to all three swimming pools. Hence the plaintiff is liable to waterproof the screed of the swimming pools of the three units in the Project.

(8) Grouting at the swimming pool

The defendant alleges that there are defects concerning the grouting used at the swimming pools. The grouting refers to the material that is used to fill the gaps between the tiles.

According to the defendant, the grouting disintegrates easily whenever he rubs it gently with his fingers. This was also stated in the 2014 BAPL Report by Mr Chin, who opined that “with a slight abrasion, the colour of the grout begins to dissolve and disintegrate”. Mr Chin again reiterated in his 2018 BAPL Report that the wrong type of grouting had been used because the pointing at the tile joints could be easily rubbed off. Furthermore, the defects associated with the grouting caused water to squirt in an unsightly manner from different locations of the exterior swimming pool walls.

In his testimony, Mr Yong observed that it could not have been possible that the grouting was so easily removed:

Additionally, Mr Yong was of the opinion that based on the photographs, it appeared that what had been removed was not in fact any of the grouting:

The plaintiff and the third party argue that the issues with the grouting are due to the improper chemistry of the water in the swimming pools. In an email dated 16 May 2014 from Ms Evelyn Tay of MAPEI Far East Pte Ltd (“MAPEI”), the manufacturer of the grouting, it was stated that MAPEI had checked the pH value of the water in the swimming pools, and the readings ranged from pH 6.8 to 7.0, which is acidic. MAPEI indicated that the pH value of the water in the swimming pool should not be less than pH 7.2, otherwise the grouting would be affected.

It is clear from MAPEI’s investigations in May 2014 that the defects relating to the grouting are due to the improper pH value of the swimming pools. This was before the Project was handed over to the defendant. Hence, the plaintiff failed to maintain the pH value of the swimming pools before the Project was handed over to the defendant in July 2014.

(9) Trellis beams

For the trellis beams, the parties do not dispute that both the Contract Drawing No. WEB325/12b/S.01 and As-Built Drawing No. WEB325/12b/S.01 show that there are to be eight trellis beams constructed at the car porch of Unit 12B of the Project, but only seven were erected. The defendant alleges that the plaintiff and the third party are liable for $2,400 in respect of the missing trellis beam. In response, the plaintiff and the third party submit that Web regularised the discrepancy in the as-built drawings through the issuance of Engineer’s Instruction No WEB365/22/EI.008 dated 30 June 2014, which was confirmed by the third party in Architect’s Instruction No 42. The third party also submits that the seven trellis beams are sufficient to accommodate the structural needs of the Project.

It is not disputed that the defendant did not expressly consent to reducing the number of trellis beams from eight to seven at the car porch of Unit 12B of the Project. This change in the number of trellis beams was solely due to instructions from the third party after Web decided to change the trellis beams from eight to seven. This was candidly admitted to by Mr Yong as follows:

Turning to the question of quantum, I note that the defendant is now claiming the sum of $2,400 based on Mr See’s report. However, the defendant has not provided any satisfactory reason why he is now claiming more than three times the sum reflected in the initial claim in his payment response. While it was suggested that the sum set out in the defendant’s payment response was merely the defendant’s layman opinion, this is not borne out by the payment response itself. As the plaintiff’s counsel, Mr Mendel Yap, pointed out, the payment response was drafted by Mr Cheung, and was precise and lengthy. Further, having earlier quantified the overpayment as $708.40, the defendant should be taken to have agreed to this quantification. Accordingly, the quantum of damages for the missing trellis beam is $708.40, which the plaintiff will pay to the defendant, as the plaintiff rightfully admitted that the missing beam should not have been billed.

(10) Intumescent paint

The defendant alleges that the intumescent paint has not been applied satisfactorily on the steelworks at the Project. This allegation has two aspects: firstly, that the intumescent paint only has a fire resistance of one hour; secondly, that the intumescent paint was only applied on three out of four surfaces of the trellis beams. For this, the defendant claims the sum of $63,144 to reapply the intumescent paint on all the trellis beams and $90,556 to reapply the intumescent paint at the steel staircases for the Project.

I shall first address the fire resistance of the intumescent paint. It is undisputed that the intumescent paint only has a fire resistance of one hour. The defendant contends that the intumescent paint should have a fire resistance of two hours. This is based on cl 3.8 of Contract Drawing No WEB325/GN.01, which expressly stipulates that “all steelworks are to be fire-proofed for minimum two hours protection” [emphasis added].

However, cl 3.8 appears to contradict cl 7.1 of the same Contract Drawing No WEB325/GN.01, which provides that “[a]ll structural steelwork [are] to receive adequate/appropriate fire protection in line with the prescribed fire resistance periods”. Although the defendant submits that this refers to the two-hour resistance period in cl 3.8, I find this unsatisfactory. If that was the case, cl 7.1 would be devoid of meaning as it simply reiterates what is provided for in cl 3.8. Further, the word “prescribed” suggests a mandatory requirement, in particular, one that is imposed by the relevant authorities. Clause 3.8 also appears to contradict cl 7(1) of the SIA Conditions, which requires the plaintiff to comply with the relevant statutory requirements in force at the material time.

In light of these contradictions, I accept the plaintiff’s and the third party’s submissions that cl 7(1) of the SIA Conditions overrides cl 3.8 of Contract Drawing No WEB325/GN.01. This is based on cll 11 and 14 of the SIA Conditions. Clause 11 provides that in the event of conflict, the SIA Conditions take priority over any drawings and technical specifications (see [313] above). Clause 14 provides that all discrepancies and divergences in the contract documents for the Project are to be resolved by the third party through the giving of a direction or instruction if they were brought to his attention. Thus, whether the intumescent paint should have a fire resistance of one hour or two hours is a matter that lay in the third party’s discretion.

In this case, the third party had agreed with the plaintiff on or around 20 December 2012 that it sufficed for the intumescent paint to have a fire resistance of one hour. This was in line with the prescribed fire resistance period pursuant to the relevant statutory requirements at the time. Based on Table 3.3A of the Singapore Civil Defence Force Fire Code 2013 (the “SCDF Fire Code 2013”), the minimum period of fire resistance for the intumescent paint was one hour. On 20 March 2013, Registered Inspector Chua Seow Ann issued a Registered Inspector’s Inspection Certificate to certify that in accordance with the Fire Safety (Registered Inspector) Regulations, he had carried out an inspection of the fire safety works and confirmed that the fire safety works had been carried out in accordance with the approved plans of fire safety works. Setsco Services Pte Ltd, an independent third party laboratory, also certified that the Project was compliant with the statutory requirements in relation to fire-proofing. Therefore, it is acceptable for the intumescent paint to have a fire resistance of one hour.

I address now the second part of the defendant’s allegation. In addition to the fire resistance period, the defendant also alleges that the steel beams, which form part of the trellises, were only coated with intumescent paint on three sides instead of all four sides. It is not disputed that only three sides of the trellises were coated with intumescent paint and that intumescent paint had not been applied on the surface of the trellis beams facing the timber deck above. The issue is whether painting only three sides of the trellises was in line with the Contract.

In my view, it was. When cross-examined, Mr Tan explained that one side of the steel beams was not coated with intumescent paint as they were covered by the timber decking. The Contract does not contain any express stipulation of how many, and which sides, of the trellis beams must be coated with intumescent paint. Clause 7.1 of the same Contract Drawing No WEB325/GN.01 simply provides that “[a]ll structural steelwork [are] to receive adequate/appropriate fire protection in line with the prescribed fire resistance periods”. Turning to the relevant statutory requirements, therefore, Table 3.3A of the SCDF Fire Code 2013 only requires the “exposed faces” of the structural frame, beam or column to be coated with intumescent paint. This is affirmed by the fact that a Registered Inspector’s Inspection Certificate has been issued in respect of the Project and Setsco Services Pte Ltd had certified that the Project was compliant with the statutory requirements in relation to fire-proofing (see [546] above). This puts to rest the defendant’s assertion that in order to have “effective fireproofing”, the plaintiff should have fire-proofed all four sides of the steelworks. The defendant did not adduce any evidence or expert testimony to support this assertion. On the contrary, as I have observed above, the Project has been certified to be compliant with the statutory requirements in relation to fire-proofing. Therefore, I find that the coating of only three sides of the trellises with intumescent paint is compliant with the Contract and does not amount to a defect.

For the above reasons, I find that the plaintiff is not liable to the defendant in respect of the intumescent paint applied. The fire resistance period of one hour and the painting of the three exposed sides of the trellises are in compliance with the Contract.

I shall now deal with the defendant’s allegation that the intumescent paint was defective and had peeled. Based on Mr Chin’s BAPL reports, the defendant alleges that there were several locations at the Project where the intumescent paint had peeled. However, the plaintiff admits only to the peeling of the intumescent paint as identified in the minutes of a meeting dated 11 February 2015. According to these minutes, after a joint inspection of all three units, only five points of peeling at three beams at Unit 12A were identified. Given my concerns regarding Mr Chin’s evidence, as explained above, I do not think it appropriate to rely on the BAPL Reports to conclude the extent of peeling of the intumescent paint. Indeed, it was not clear from many of the photographs in Mr Chin’s reports whether the intumescent paint was actually peeling. In my view, the minutes of the meeting dated 11 February 2015 are much more reliable, having been the outcome of a joint inspection. Furthermore, it took place several months after the Project was handed over to the defendant. Therefore, results of the joint inspection should be quite indicative of the condition of the Project around the time of handover. Hence, I find that the application of the intumescent paint was defective in so far as it had peeled in respect of three beams in Unit 12A.

Furthermore, the damages awarded for the peeling of the intumescent paint must also take into account the defendant’s failure to mitigate his loss. The court must take into account his failure to expeditiously rectify the defects relating to the peeling of the intumescent paint. Moreover, the defendant also exacerbated his loss by peeling off the top coat of the intumescent paint, which is the protective layer for the intumescent paint. This was done by the defendant “for his own investigation”. The subcontractor for the intumescent paint works, Innovente Asia Pacific Pte Ltd, based on their site inspection on 11 February 2015, observed that the top coat of the intumescent paint was intentionally removed. This is also reflected in the minutes of the joint inspection dated 11 February 2015. Mr Yong similarly observed that it appeared that some of the peeling had also been done deliberately:

I also note that the plaintiff had offered to rectify the intumescent paint on 4 September 2014, 22 September 2014 and 3 December 2014, but the defendant refused to allow the plaintiff to do so. This began in 24 July 2014, when the plaintiff submitted the repair method statement as requested by the defendant. The method statement laid out the plan to repair the works. After the method statement was given to the defendant, he set out a number of conditions before he would allow the plaintiff to enter the Project. For example, the defendant wanted to know the plan to protect the surrounding area, the number of people with the trade certificate, the access plan to the work area, the manner of supervision of the workers, the quality of the work and even the safety and equipment insurance. When this information was properly provided to the defendant, it was only after a long delay that the defendant’s lawyers sent a letter to the plaintiff’s lawyers refusing the plaintiff entry to conduct the repair works. Even after this, the plaintiff continued to offer to rectify the works. The defendant, however, responded by incredulously requiring the plaintiff to submit a plan to repair the works without entering the units at the Project. This clearly demonstrated an attempt by the defendant to refuse or frustrate any attempt by the plaintiff to rectify the defects.

In the circumstances, regarding the defective intumescent paint for the trellis beams, I allow the defendant’s claim in respect of those five locations of peeling on three trellis beams at Unit 12A. As the defendant has not provided any alternative quantification for these damages, I shall award nominal damages in respect of the peeling intumescent paint. However, the nominal damages will be further adjusted downwards to account for the defendant’s failure to mitigate his loss. Accordingly, the defendant is awarded $500 for the peeling intumescent paint at Unit 12A.

(11) Finishing of external boundary wall

The defendant alleges that the external boundary wall has yet to be constructed with an “off-form” finish in accordance with the contractual requirements (see Item 3.5 of Section F – Schedule of Prices). The boundary wall was finished in plaster and paint on the instruction of the third party after the latter did not like the outcome of the off-form effects.

When cross-examined, Mr Tan conceded that the plaintiff had a contractual obligation to provide an “off-form” finish to the external boundary wall, instead of a plaster and paint finish. The plaintiff’s defence, however, is that it was instructed by the third party to use plaster and paint instead. The third party confirmed that it had issued these instructions to the plaintiff. The reason for such a change was that the third party had determined that the final outcome following the plaintiff’s initial works was “unsightly”.

Therefore, the plaintiff is not liable for the boundary wall finish in plaster and paint instead of an “off-form” finish. It is settled law that the third party is the defendant’s agent, although it must act fairly and professionally in the exercise of his functions requiring skill and judgment, such as in assessing EOT requests and payment claims (Hiap Hong & Co Pte Ltd v Hong Huat Development Co (Pte) Ltd [2001] 1 SLR(R) 458 at [16]). As I have explained at [159] above, the third party had the apparent authority to instruct the plaintiff to vary the Works. When the plaintiff was informed by the third party to use plaster and paint instead, the plaintiff was fully entitled to proceed as instructed by the third party. Given that the third party was the agent for the defendant, it was within the third party’s authority to “provid[e] all necessary information and issu[e] instructions to [the plaintiff] to enable [the plaintiff] to proceed with the works” (see cl 2(1)(4)(a) of the MOA).

Be that as it may, I note that in this instance, the change of specification was done without the approval of the defendant. As stipulated in cl 1.1(3) of the MOA:

It is not disputed that the third party did not expressly obtain the consent of the defendant for such alterations. However, I find that the defendant impliedly consented to such changes. Throughout the construction of the Project, neither the defendant nor any of his Assistants objected to the alterations that had been done. This was despite them having personally visited the site on multiple occasions, including during the various site inspections. This is hardly surprising, given that the alterations were an improvement from the original finish, for which the defendant was not billed (see [558] above). In fact, the first time the defendant took issue with the finishing of the external boundary wall was when the present suit commenced. It is apparent that this particular alleged defect was included as part of the defendant’s avalanche of defects to overwhelm the plaintiff and the third party. For these reasons, I am not satisfied that the defendant has made out a case on this alleged defect.

(12) Loamy soil

The defendant alleges that the plaintiff failed to supply and backfill the Project with loamy soil, as required by Architect Instruction No 26 (“AI 26”) dated 4 January 2013. The defendant relies on the expert report of Mr Daniel Tay (DW10, “Mr Tay”), a senior design consultant from Landscape Konsortium Pte Ltd, a landscape consultancy firm. Mr Tay opined as follows:

I am not convinced by Mr Tay’s findings, as they were the result of mere visual observation. As Mr Tay conceded:

However, loamy soil is made up of clay, silt and sand in equal parts, with a small proportion of humus. Therefore, in order to determine whether the soil sample was loamy soil, it would have been important to know the proportion of these components. Mr Tay admitted his tests did not reveal the proportion of the components in the soil:

The plaintiff’s, and the third party’s, defence is that the Project was backfilled with an approved soil mixture (“ASM”) containing loamy soil. To elaborate, NParks requires any external roadside planting to be backfilled with an ASM containing loamy soil, compost and washed sand in the ratio of 3:2:1 respectively. The plaintiff and the third party argue that since NParks had no issue with the type of soil used in the external road planting, this meant that the Project must also have been backfilled with an ASM containing loamy soil. The plaintiff and the third party also rely on the expert report of Mr Leong Lian Chuan (PW3, “Mr Leong”). Mr Leong is a consulting arborist from Urban Forester Landscape Pte Ltd, a firm that specialises in advising on arboriculture and landscaping. According to Mr Leong, based on his examination of the photographs provided to him by the plaintiff, the soil used at the Project was loamy soil as it matched the ratio of clay, sand and silt contained in loamy soil. Furthermore, there were laboratory reports from the Agri-Food and Veterinary Authority of Singapore which confirmed that the soil used was an ASM which contained loamy soil.

The plaintiff did not provide the requisite volume of loamy soil for the Project. When cross-examined, Mr Leong conceded that the photographs did not provide conclusive evidence that the Project was backfilled with loamy soil. He agreed with the defendant’s counsel that the photographs were consistent with Mr Tay’s evidence that the loamy soil was merely applied on the Project by way of “top-dressing”, rather than backfilled. Furthermore, even though the Project might have been backfilled with an ASM which contained loamy soil, this fails to comply with AI 26, which clearly stipulates that the Project is to be backfilled with 641.8m3 of loamy soil, and not a soil mixture containing loamy soil.

(13) Sliding glass doors

In contrast, the plaintiff and the third party argue that there were no defects in relation to the foldable glass doors during the final site inspection:

A possible reason for this difference in observations is that the doors had deteriorated due to the lack of maintenance. This is evident from the various BAPL reports adduced by Mr Chin, who in his December 2013 BAPL Report only noted a defect in one single foldable glass door. This pertained to one of the glass doors not being able to lock, which was subsequently rectified by the plaintiff. Despite having raised this particular defect, Mr Chin did not mention any other problems with the sliding glass doors, including the ease of opening and closing them. The number of alleged defects in the sliding glass doors, however, increased in his November 2014 BAPL report. The fact that lack of maintenance could be a possible reason for any difficulty in opening and closing the sliding glass doors is observed by Mr Chan in his AEIC where he states:

Accordingly, for the above reasons I dismiss the defendant’s claim regarding the sliding glass doors.

(14) Summary on incomplete rectification works

In summary, the defendant has proven his case in respect of the following construction defects as of the date when the CC was issued (ie, 17 April 2013), on a balance of probabilities:

(a) The leakage in the swimming pools resulting from water seepage from the screed of the coping edge in the swimming pools (see [483]–[530] above). The plaintiff is liable for the cost of rectifying the screed, which is quantified at $4,678.40 for Unit 12, $3,823.20 for Unit 12A and $5,314.80 for Unit 12B, amounting to $13,816.40 in total.

(b) The grouting at the swimming pool is defective due to the plaintiff’s failure to maintain the proper pH value of the water in the swimming pool before the handover on 21 and 23 July 2014. The plaintiff is liable for this defect, and the cost of rectifying the grouting is $4,555.20 for all three units (see [531]–[537] above).

(c) There were seven trellis beams constructed instead of eight. The plaintiff is liable for the amount that the defendant has been overcharged, which is $708.40 (see [538]–[541] above).

(d) The plaintiff is liable for the peeling of the intumescent paint at five locations on three trellis beams at Unit 12A. However, as the defendant has not quantified the cost of rectification, the plaintiff is liable for nominal damages. The amount of nominal damages must also be adjusted downwards as the defendant failed to mitigate his loss (see [550]–[554]). Thus, the plaintiff is liable for $500.

However, I find that, on a balance of probabilities, the defendant has not proven his case in relation to the following issues and accordingly these claims are dismissed:

(a) It was the gas pipe sleeve, and not the gas pipe, which had been dented/punctured. Moreover, the dent/puncture in the gas pipe sleeve had in fact been made due to investigations conducted as a result of the defendant’s own complaints. Further, any defects in the gas pipe sleeve had been properly rectified by a licensed gas worker (see [393]–[416] above).

(b) The Volakas marble flooring is not defective, given that the alleged cracks, tonality, stains and other forms of impurities are natural inherent characteristics of the marble (see [417]–[435] above).

(c) The ironwood at the timber decking is not defective, given that the alleged cracks, splinters, stains and differences in tonality were not construction defects (see [436]–[443]).

(d) The variance in tonality of timber floor finish is not defective. Instead, these were characteristics inherent in the Indian rosewood itself and were not construction defects (see [444]–[448]).

(e) The application of paint on the aluminium cappings at the rooftop was not defective, as this method of rectification undertaken by the plaintiff was wholly appropriate. Further, the defects are de minimis in nature and does not affect the overall performance of the cappings (see [449]–[454] above).

(f) The steps and risers were rectified and complied with the statutory requirements after the TOP was issued by the BCA (see [455]–[482] above).

(g) The intumescent paint has a fire resistance of one hour instead of two hours which is specified under the contract. The contract also makes reference to fire safety requirements which accepted three exposed sides rather than four sides of the trellis beams to be coated with intumescent paint (see [542]–[549] above).

(h) Although the external boundary wall was not constructed with an off-form finish and was not in line with contractual specifications, the defendant had implicitly agreed to such alterations (see [555]–[560] above).

(i) The supply and backfilling of the Project with loamy soil was not in line with contractual specifications. However, although this requirement as per AI 26 was not complied with, the defendant suffered no loss as the ASM cost more and was of a better quality than loamy soil (see [561]–[567] above).

(j) The sliding glass doors were not defective. Most of the defendant’s allegations regarding the sliding glass doors were raised in November 2014 and were potentially due to a lack of maintenance (see [568]–[570] above).

The defendant submits that the CC ought not to be issued at all even up till today given the presence of the unrectified defects (ie, steps and risers, intumescent paint, trellis beams, external boundary wall, loamy soil, etc). I disagree with the defendant’s submissions. I find that the CC could have been issued on 28 May 2013 (see above at [334]). Based strictly on the plaintiff’s scope of work under the contract, the TOP could easily have been obtained at TOP Inspection 2 as the one non-compliant concrete step at the turf could easily be rectified by topping up the soil at the bottom of the step. The failure of TOP Inspection 2 was also related to other issues not due to the plaintiff’s fault. If the TOP had been issued following TOP Inspection 2, then the defendant could have moved into the three units and utilised the premises as the defects which I have found would not have prevented the defendant from doing so. A reasonable architect would, therefore, have determined that Item 72(c) of the Preliminaries had been fulfilled, thereby allowing the issuance of the CC on 28 May 2013.

Further, in my view, the BCA, an objective and independent agency, had already approved the steps and risers, and the other purported defects were minor works in the opinion of the third party. Clause 24(5) of the SIA Conditions provides that “if any minor works are outstanding … the [third party] may (but shall not be bound to) issue a [CC], which shall record such outstanding work by way of a schedule attached to the certificate …” Hence, Item 72 has been satisfied as of today. Therefore, the third party could have issued the CC on 28 May 2013 although it was premature to issue the CC on 15 May 2013 when the steps and risers failed at TOP Inspection 1. Furthermore, although the intumescent paint relates to safety, it was still in compliance with the statutory requirements set out by the SCDF. Therefore, the earliest date on which the CC should have been issued by the third party remains 28 May 2013.

I now turn to address whether the presence of these defects supports the defendant’s allegation that there was a conspiracy to injure him. I find that the plaintiff and the third party genuinely and honestly believed at the time that there was nothing improper in relation to the intumescent paint, trellis beams and external boundary wall. At best, the evidence only shows that the plaintiff and the third party failed to pay careful attention to the contractual requirements and ought to have sought the defendant’s express consent to depart from these requirements. There is no iota of evidence that there was a conspiracy to injure the defendant. It is a myth that there was a conspiracy and it is a figment of the defendant’s imagination as he opined that the third party favoured the plaintiff, particularly towards the end of the Project.

Was the third party correct when it issued the Payment Certificates?

(1) Did the third party exercise reasonable skill and care?

In relation to the three payment certificates, namely IC25, IC26 and the FC, which are the basis of the plaintiff’s claim, the defendant is not disputing the quantification of the PC Sums. But the defendant alleges that there is no evidence that the plaintiff paid the NSCs the PC Sums. As for the PC Rate items the defendant’s main contention is that the calculation of the PC Rate items by the QS was wrong. Further, the defendant submits that the third party should not have issued the three payment certificates namely, IC25, IC26 and FC, as the third party had failed to conduct an independent verification of the amounts claimed by the plaintiff. The alleged failure to exercise reasonable skill and care comprises three instances:

(a) the failure to withhold the costs of outstanding works in the schedule of the CC until the outstanding works were completed;

(b) the release of the first half retention moneys in IC25 without basis; and

(c) the failure to properly account for the PC Rate items claimed by the plaintiff under the Project.

At this point, I wish to reiterate that the court will not disturb the third party’s assessment if that assessment had been carried out fairly and rationally (see above at [257]). Although there was a QS in the Project, the certification of the payment claims ultimately rests with the third party. This protocol is confirmed by Mr Ng in his AEIC, where he stated that “it is ultimately up to [the third party] alone to decide whether or not to adopt the Recommended Valuations [from F+G] as the basis for the issuance of its [IC25, IC26] and the FC”. Similarly, as stated by Mr Remus Goh Kok Han (“Mr Goh”) in his AEIC, “[a]n architect has the full discretion to adopt the QS’ evaluation and valuation of the works done in the construction project in a wholesale manner.”

When the third party received the QS’s reports it did not undertake a minute or pedantic review of the details of the valuations or check the mathematics involved as the QS was engaged as a professional consultant to evaluate works done for the Project. Indeed, pursuant to Recital 4 of the SIA Conditions, the QS’s duty is to “assist the Architect in all matters of valuation or measurement under the terms of the Contract”. It was only if an item or quantification was obviously incorrect or illogical that the third party would question the QS’s reports. It is eminently logical that the third party placed great weight on the opinions of the QS. This was also evident from Mr Yong’s explanation in court:

I shall now deal with the allegations raised by the defendant.

The third party listed the outstanding works for the plaintiff to attend to when the CC was issued. When the outstanding works were completed to the satisfaction of the third party, the latter authorised the release of half the retention sum in IC25 dated 3 September 2013. The third party further authorised the release of the balance of the retention sum in the FC dated 22 June 2015 when the Project was completed notwithstanding the defendant’s allegations that there were numerous outstanding defects. The third party was entitled to exercise its professional judgment on whether the plaintiff had rectified the defects satisfactorily. In June 2015 when the FC was issued, the Project had already been completed for more than three years. However, the defendant adamantly refused to allow the plaintiff to enter the Project to rectify the outstanding defects. Thus, the third party opined that the balance of the retention sum should be released despite the defendant’s refusal to pay IC25, IC26 and FC.

In relation to the PC Sums and PC Rate items claimed by the plaintiff under the Project, I find that the third party acted diligently and properly accounted for such items. In order to approve the quantum of PC Sums, the third party issued architect’s instructions to F+G to value the PC sums. The third party issued Architect’s Instruction No 08 dated 10 July 2012, Architect’s Instruction No 09 dated 10 July 2012, Architect’s Instruction No 10 dated 10 July 2012, Architect’s Instruction No 11 dated 10 July 2012, Architect’s Instruction No 12 dated 10 July 2012, Architect’s Instruction No 20 dated 26 September 2012, Architect’s Instruction No 21 dated 26 September 2012 and Architect’s Instruction No 22 dated 26 September 2012. Attached to each of these architect’s instructions were detailed and voluminous documentation, including quotations and invoices from the NS or NSC, for the PC Sums and the items that were being claimed.

There is, therefore, simply no basis for the defendant’s assertion that the architect’s instructions had been issued without proper documentation. In fact, it appears that the architect’s instructions and the accompanying documents had been more than sufficient for F+G to undertake a proper valuation of the PC Sums. As Mr Goh noted in his AEIC:

It appears to me, therefore, that in issuing the architect’s instructions, the third party did have access and proper regard to the documents that it required to account for the PC Sums.

The defendant had, in fact, been informed as to the various items, the breakdowns and the rates on multiple occasions. For every interim certificate that was issued, the IVs from F+G’s valuations would be attached and the documents would all have been given to the defendant. Further, on 23 June 2014, a letter was sent by F+G to the defendant’s then solicitors, Eldan Law LLP, enclosing the invoices of all the PC Rate items submitted by the plaintiff during the construction of the Project. Again, on 22 December 2014, F+G sent another letter to the defendant informing him of the various PC Rate items comprising stones, timber and tiles. It is evident that these various invoices and documentation had reached the defendant. As can be seen from a letter dated 14 November 2014 from Mr Cheung to F+G, Mr Cheung states that “[w]e note that you have sent the following to Eldan Law LLP” and goes on to list a series of tax invoices and delivery orders from various NSCs or NSs, before signing off “[f]or and on behalf of The Employer”. This was a reference to the defendant and is conclusive that he had indeed received the invoices and orders.

(2) Were IC25 and IC26 issued correctly?

At this juncture, I pause to deal with the question of whether there were irregularities in IC25 and IC26 and if these were issued in accordance with the Contract. This issue was not pleaded by the defendant, but it is nevertheless important as it was dealt with extensively by the CA in Ser Kim Koi (Court of Appeal) ([67] supra). This was one of the reasons the CA allowed the defendant’s appeal. The CA opined that the failure to properly issue these payment certificates, or a huge unexplained disparity in the sums stated therein, would raise suspicions and lend credence to the defendant’s broader allegation that there was a conspiracy between the plaintiff and the third party.

The issuance of IC25

In relation to IC25, a number of questions were raised by the CA:

(a) firstly, whether the moiety of the retention sum released had been done in compliance with the contractual terms;

(b) secondly, IC25 was issued several months after the CC had been issued and this suggested that there were substantial works to be done after the CC was issued; and

(c) thirdly, whether the amounts certified under IC25 were correct.

Under IC25, a moiety of the retention sum amounting to $328,250 was released to the plaintiff. In accordance with the Contract, this should only have been 50% of the retention sum, in compliance with cl 31(13) that the Architect “shall in all matters certify strictly in accordance with the Contract”. In relation to this, the CA observed as follows:

On the evidence before the CA, it appeared that the sum of $328,250 amounted to 51% of the retention sum listed under Interim Certificate 24 (“IC24”) dated 1 July 2013, which was listed as $644,195.65. However, the evidence before me shows that the total retention sum was not $644,195.65 as in IC24. In the Statement of Retention in Interim Valuation 24 adduced before the court, the total retention sum was actually listed as $656,500.

The reason for this confusion in the retention sum is in IC24 itself, the first page of which is annexed to this Judgment as Annex A. In IC24, the third party provided a list of values for contractual works and materials. These were works and materials that were certified as being carried out and delivered, pursuant to cl 31(1) of the SIA Conditions. These fell into three broad categories, namely: (a) work carried out by the Contractor; (b) unfixed goods and materials; and (c) nominated sub-contractor or supplier or designated PC work.

Under each of the specific items, the third party listed the term “(less retention)” where relevant. These indicated the retention sums that were calculated with reference to that specific type of work. It is here that the confusion arises. Under the first category of “work carried out by the Contractor”, a sum of $644,195.65 was listed as the retention sum relevant to those works. This was the figure that the CA had utilised in its deliberations. At first blush, it would appear that this was indeed the correct figure to be utilised since it referred to the works that the plaintiff had carried out.

However, as was explained in court, this was not the full retention sum for the Project, as two other sums had to be added in. These other retention sums are found under the category of “nominated sub-contractor or supplier or designated PC work”, specifically item (b) “Built-in-Kitchen Cabinet & Appliances”, and item (c) “Built-in Wardrobe/Cabinet”. The retention sums for these items were $6,910.57 and $5,393.78 respectively. Although they were listed as works completed by parties other than the plaintiff, eg, the NSCs, these works were still completed as part of the Project and the retention sums are still relevant.

The full and accurate figure for the Project’s retention sum can, thus, only be derived by adding $644,195.65, $6,910.57 and $5,393.78, amounting to a total of $656,500. This calculation was corroborated by Mr Ng as follows:

Without the benefit of the Statement of Retention in Interim Valuation 24 or the parties’ explanations it is easy to see why the CA utilised the sum of $644,195.65 instead of $656,500.

Having had the benefit of further evidence, however, I find that the moiety of $328,250 that was released to the plaintiff was 50% of the retention sum and not 51% as stated by the CA. The quantum of retention moneys as certified under IC25 was in fact in accordance with the terms of the Contract. This was confirmed by the plaintiff’s counsel, Mr Ng and the defendant’s counsel, who all agreed that the total retention sum should rightly have been $656,500.

I turn now to the issues relating to the apparent delay in the issuance of IC25, and whether substantial works were only completed after the CC had been issued. This issue was alluded to at [70] of Ser Kim Koi (Court of Appeal) (see above at [591]). The CA further stated as follows:

At the hearing before the CA, as seen from [76]–[78] of Ser Kim Koi (Court of Appeal), the third party did not adequately explain the certification of IC25 and IC26, which were disputed by the defendant. The third party was not a party to the proceedings at the summary proceeding stage taken out by the plaintiff against the defendant. It was, therefore, difficult for the CA to grant enforcement of these payment certificates, when the “temporary finality of [the third party’s] certificates [were] in question” (see Ser Kim Koi (Court of Appeal) at [77]). Indeed, Interim Certificate 23 (“IC23”) was issued on 5 June 2013, IC24 was issued on 1 July 2013, IC25 was issued on 3 September 2013 and IC26 on 6 November 2013. All of these interim certificates for payment were granted long after the date of the issuance of the CC on 15 May 2013. Thus, the CA found it strange that the third party did not explain the certification process although the third party gave detailed explanations for the EOTs and the alleged defects. In this trial, the third party explained the procedure for the issuance of interim certificates, the purported delay in the issuance of the payment certificates. The third party explained that the issuance of the interim certificates and the state of building works are two different matters and these two activities were not necessarily correlated. The explanation lies in understanding the procedure resulting in the issuance of a payment certificate which is as follows:

(a) The entire process would begin with the plaintiff submitting a draft progress payment claim to F+G and CCA for review, together with the supporting documents. The plaintiff’s draft progress payment claim was usually submitted at the end of every month for the works that had been completed in that month.

(b) CCA was in charge of reviewing the M&E portion in the draft progress payment claim while F+G would review the rest of the draft progress payment claim. CCA and F+G then furnished their views and preliminary comments to the plaintiff.

(c) The plaintiff had the option of incorporating F+G and CCA’s preliminary comments or to amend the amounts before submitting a formal progress payment claim to the third party, F+G and CCA, in accordance with cl 31(2) of the SIA Conditions.

(d) F+G would then evaluate the value of the works as claimed by the plaintiff in the formal progress payment claim. Thereafter, F+G issued an interim valuation to the third party, copying the plaintiff, the defendant and the Consultants in the Project.

(e) The third party evaluated the interim valuation, before issuing the interim payment certificate.

The first step, or the precursor, to the payment process, therefore, was the plaintiff’s submission of a draft progress payment claim. Without the plaintiff’s submission there was no need and, indeed, no basis for the third party to issue an interim payment certificate. It was, thus, solely up to the discretion of the plaintiff to decide when to submit its payment claim. This would have a direct impact on the timing of the certifications by the third party. This point was also noted by Mr Yong in his testimony:

The evidence before this court is that the issuance of the payment certificates was independent of when the works were actually completed. However, the works had to be completed before the plaintiff could submit its progress payment claim. After the works were completed it was left to the plaintiff to submit its progress payment claim with supporting documents. Hence, the date of the third party’s interim certificate depended on when the plaintiff submitted its progress payment claim. In this instance, Payment Claim 25 leading to IC25 was filed by the plaintiff on 26 August 2013 while Payment Claim 26 leading to IC26 was filed by the plaintiff on 29 October 2013. The plaintiff filed its final account documents on 15 July 2015. In these circumstances, the dates on which IC25, IC26 and the FC were issued were not out of the ordinary from the third party’s point of view.

The evidence in this court shows that when the CC was issued, the third party and the Consultants were satisfied that the Project had been completed according to the approved building plans. This was confirmed at their meeting on 15 April 2013 and verified in their site meeting on 17 April 2013. In other words, in the view of the third party and the Consultants of the Project, the plaintiff had completed its works on 17 April 2013 under the Contract except for minor works that were listed by the third party in the schedule to the CC. Although the plaintiff had completed its building works under the contract, it had yet to submit Progress Claims 23 to 26 when the CC was issued, and the corresponding interim certificates were similarly not yet issued. Hence, the state of completion and the issuance of the interim certificates are two different issues and the interim certificate is not indicative of the state of building works at the time it was issued. The state of completion was independently evaluated by the third party and the Consultants, whereas the interim certificate was the result of the plaintiff’s submission of his progress claim, ie, it was purely an accounting exercise. Hence, there can be a situation in which the works have already been completed for some time but the contractor for whatever reasons may have submitted his claim much later. The contractor, of course, would ideally like to submit its claim as soon as possible so that payment could be made expeditiously. However, the justification for the claim process may take time to prepare and the contractor may have limited manpower resources, which might make immediate submission of the claim not possible. This was what happened in this case in which IC23 to IC26 were issued after the CC. The defendant paid IC23 and IC24 but not IC25 and IC26.

Therefore, it may not be accurate to determine the state of the building works purely based on the dates of the interim certificates. The CA, with limited evidence, tried to make sense of IC25 and IC26. However, with the deepest respect, the CA mistakenly equated the amount of work done with the outstanding interim certificates issued by the third party, namely IC25 and IC26, and came to the conclusion that the CC was wrongly issued as there were substantial building works that had not been completed. This, perhaps, explains why the defendant did not pursue this issue and plead that IC25 and IC26 which were issued much later after the issuance of the CC showed that the Project was incomplete despite the findings of the CA.

It is also evident that the Works were complete, in the opinion of the third party and the Consultants, when the CC was issued. On 15 April 2013, two days prior to the issuance of the CC on 17 April 2013, the third party conducted a meeting with the Consultants, including F+G and CCA, to satisfy itself that the Project was completed. At this meeting, the third party informed the Consultants that it intended to issue the CC, certifying that all the Works were completed. The Consultants were also in agreement that their respective spheres of Works had been completed. The third party further informed the Consultants that there would be an inspection of the Project two days later (ie, 17 April 2013). The purpose of the inspection was to ensure that all Works had been completed and done in accordance with the contractual drawings and the Contract in relation to all the individual departments, for instance, the M&E works, structural works or architectural works. At the site inspection on 17 April 2013, the third party and the Consultants were satisfied that the Project was completed, save for some minor works.

Why then, did the plaintiff make “late submissions” of Payment Claim 25 (“PC 25”) and Payment Claim 26 (“PC 26”)? Mr Tan explained in his AEIC:

Mr Yong opined that there was no “uncharacteristic delay” in the submissions of PC 25 and PC 26, and this was not out of the ordinary:

It is clear that the delay in the submission of PC 25 and PC 26 does not mean that substantial works by the plaintiff were outstanding. My findings above were confirmed by Mr Ng on behalf of F+G, as seen from the following exchange in court:

I turn now to the amount certified under IC25. On this issue, the relevant portions of the Ser Kim Koi (Court of Appeal) ([67] supra) state as follows:

(a) Prime Cost (“PC”) Sum items: PC Sum items in the Contract refer to the items in the Project that are based on a lump sum. Examples of such PC Sum items include the ironmongery, landscaping, built-in wardrobes, cabinets, built-in kitchen appliances and sanitary wares. The PC Sum items were provided by the defendant’s NSCs. The value of these PC Sum items was included under S/N 2 of the Summary (“Prime Cost & Provisional Items”). In this Project, according to Mr Yong and Mr Ng there were no Provisional Items. Thus, S/N 2 of the Summary should have been “PC Sum Items”.

(b) PC Rate items: PC Rate items constituted those that were calculated in the Project based on a rate per square metre. Examples of such PC Rate items include the supply of marbles, tiles, Indian rosewood and ironwood. These items were also provided by the defendant’s NSCs. The values of these PC Rate items are included within S/N 3 of the Summary (“Main Building Works”) and S/N 4 of the Summary (“External Works”) for each of the three units. For the relevant IVs (namely IV25, IV26 and IV27), however, there were no PC Rate items for “External Works”. Therefore, I shall refer solely to S/N 3 of the Summary for the PC Rate items under these IVs.

(c) PC Rate adjustments: F+G had to value PC Rate items that were actually used for the Project against the estimated sum in the Contract and make adjustments accordingly. This was carried out in the following manner:

(i) The PC Rate items were entered under the “Main Building Works” at S/N 3 of the Summary. Payment for PC Rate items in IV 26 is stated under the column “Net Amounts Recommended for Payment” and the values are as follows: $113,590.77 for Unit 12, $115,474.38 for Unit 12A and $108,827.79 for Unit 12B.

(ii) The above figures for PC Rate items have to take into account the variations for these items which are indicated under “Building Works” in S/N 7 of the Summary. The variations take into account any differences between the PC Rate items that were actually used in the Project and the budgeted PC Rate items in the contract, either in terms of the quantity used or the price of the material per square metre. For IV26 under S/N 7 there is a negative figure of ($185,287.91). This means there was a saving of $185,287.91 for the PC Rate items when compared to the Contract sum.

According to the Summary, the PC Rate adjustments were conducted separately from the PC Sum adjustments. Thus, PC Rate adjustments had no effect on the PC Sum items.

(d) PC Sum adjustments: F+G had to value the PC Sum items that were actually used for the Project against the estimated sum in the Contract and make adjustments accordingly. This, however, was only done in the final accounts, unlike the PC Rate adjustments that were done at the stage of IV26. The PC Sum adjustments were carried out in the following manner:

(i) The PC Sum items were entered under the “Prime Cost & Provisional Sums” at S/N 2 of the Summary. According to Mr Ng there were no Provisional Sums in the Project. Thus, S/N 2 of the Summary should be called PC Sum as it deals solely with PC Sum items and not Prime Cost and Provisional Sums. The payment for PC Sum items in IV27 (Final) is indicated under the column “Net Amount Recommended for Payment” for the sum of $437,843.91.

(ii) The above figure for PC Sum items has to take into account the variations for these items under “Building Works” in S/N 7 of the Summary. For IV27 (Final), under S/N 7 there is a negative figure “(322,146.02)”. This has to be subtracted from the sum of $437,843.91 as part of the adjustment for PC Sum items.

(e) PC items: The PC items in the Summary do not refer to both PC Sum items and PC Rate items. PC items refer only to PC Sum items in the Project. In Ser Kim Koi (Court of Appeal), the term “PC items” was utilised as a shortened form of the phrase “prime cost and provisional sums”. This phrase refers to the PC Sum items.

There was some confusion regarding PC Rate and PC Sum in the Summary which led to the CA rejecting Mr Tan’s explanation. The confusion arose because the Summary does not clearly state the PC Sum and PC Rate items. The PC Sum items are in S/N 2 and the adjustment for the PC Sum items was done in the final account. On the other hand, the PC Rate items are co-mingled with the Building Works in S/N 3(a) and Exterior Works in S/N 3(b) of the Summary. Furthermore, the PC Rate figures in S/N 3(a) and 3(b) have to be adjusted with the variation at S/N 7, especially in IV26. Mr Tan’s explanation in his third affidavit dated 30 April 2014 was referred to by the CA in Ser Kim Koi (Court of Appeal) at [78] (see [609] above). He said that for IV26 the PC Rate under the “Main Building Works” for the three units had to be adjusted against the “Variation” in S/N 7 of the Summary. This was rejected by the CA because the PC items only reflected an amount of $19.19 as the “Net Amount Recommended for Payment” under IV26. On that basis, the CA concluded that there could not have been any PC Rate adjustments for IV26. Unfortunately, when the CA referred to the PC items under the “PC and Provisional Sum” in S/N 2 of the Summary, that referred not to PC Rate items but to PC Sums. Thus, the comparison is not of the same items.

Hence, a change in the values of the PC Sum items is completely different from any PC Rate adjustments. Instead, the process for the PC Rate adjustments is as explained in [610(c)(i)] and [610(c)(ii)] above. The figure of 337,892.94 emerges when one sums up the three figures for the three units listed at [610(c)(i)] above, as follows:

The sum of $337,892.94 was, therefore, a result of the addition of the sums referred to above at [610(c)(i)]. The PC Rate figure had to be adjusted before payment to the plaintiff could be made as there was a variation for “Builder’s Work” at S/N 7 of the Summary. This is the negative figure of “($185,287.91)” and it had to be subtracted from the sum of $337,892.94. This confusion could only have been cleared during the trial.

This was confirmed by Mr Yong in the trial, as follows:

Furthermore, the sums in IV26 did not mean that the Works were only belatedly completed after IC25 had been issued. This was explained by Mr Yong, as follows:

Mr Ng, the QS, also agreed with Mr Yong that IV23, IV24 and IV25 which were processed after the issuance of the CC did not mean that the Project was not completed on 17 April 2013. This can be seen from the exchange between myself and Mr Ng which I have quoted extensively at [608] above.

This is in stark contrast to the observations made by the CA on this issue at [79] and [80]:

At first blush, the CA’s observations appeared logical. In addition to the above, the “Net Amount Recommended for Payment” for the “Main Building Works”, listed under row S/N 2 of the Summary, remained at zero in IV23, IV24 and IV25. It was only in IV26 that the sum of $337,892.94 was recommended to be paid to the plaintiff, suggesting that it was only then that the Works had been completed.

Again, it was only with the full benefit of the trial process as well as the further evidence and detailed explanation from the parties that it is clear that the amount claimed or subsequently certified by the third party did not represent the state of the building works. In IV22 to IV25, the valuation of the “Main Building Works” for Units 12, 12A and 12B for PC 22 to PC 25 submitted by the plaintiff had consistently remained at 95.73%, 95.50% and 95.51% respectively.

This was not because almost 5% of the building works in each of the houses had remained incomplete even though the CC had already been issued. Instead, the figures remained capped at those values pending the PC Rate adjustments. This was explained by Mr Ng in court as follows:

Therefore, given that the PC Rate adjustments had only occurred in IC26, as found above at [610]–[613], it was only at this point that the valuation of the “Main Building Works” in the row of S/N 3 of the Summary could be adjusted to 100%. Moreover, these sums were clearly due to the PC Rate adjustments for works that had already been carried out prior to completion, notwithstanding the delay in the issuance of the payment certificates.

The issuance of IC26

I turn now to deal with the certification under IC26. In Ser Kim Koi (Court of Appeal), the CA again found IC26’s certification questionable. The main issues that arose can be distilled into two broad grounds:

(a) Similar to IC25, questions were raised in relation to the sums certified, whether they were in relation to PC Rate adjustments and when the Works had been completed (Ser Kim Koi (Court of Appeal) at [82]–[87]).

(b) Whether the sums for the M&E works in IC26 were accurately accounted for (Ser Kim Koi (Court of Appeal) at [88]–[91]).

In relation to the first ground, given the overlap in issues raised regarding IC25 and IC26, my observations as above in [590]–[620] apply mutatis mutandis to IC26. I shall simply summarise the following points that have arisen as a result of the evidence produced in the hearing before me:

(a) Unlike the previous ICs, IC26 took into account PC Rate adjustments, as explained in [610(c)], [612]–[613]. The changes are reflected in the amounts paid for “Main Building Works” in the row of S/N 3 of the Summary and the variations for “Builder’s Works” in the row of S/N 7(a) of the Summary.

(b) Therefore, the changes in the valuation amount in IC26 were not as a result of works being valued after completion or the issuance of the CC. It is clear that the relevant works had already been carried out prior to completion and the third party and the Consultants were satisfied that the Project was complete.

(c) As a corollary, the items and valuations certified in IC26 were done accurately and were properly accounted for.

It is the second ground, which raises a new issue in relation to the M&E items, that I now focus on. In this regard, the relevant paragraphs from Ser Kim Koi (Court of Appeal) are as follows:

The numerous questions that arose in the CA’s determination were undoubtedly caused, once again, by the documentary evidence, or lack thereof. Having had the full account of the IVs that were adduced before me, I find that there was indeed a reasonable explanation for the valuations certified in IC26. I shall now elaborate.

For M&E works, the various values are reflected in the row of S/N 5 of the Summary. Under IV26, in the column of “Cumulative Amount Recommended for Payment”, a figure of $2,267,956.00 was listed for M&E works. In contrast, in the column of “Cumulative Amount Recommended for Payment”, a corresponding figure of only $2,031,200.59 for M&E works was listed under IV25. The difference between the two values is $236,755.41 and is listed as “Net Amount Recommended for Payment” under IV26. As the CA observed, this was an increase of 10.32% of the contract sum for M&E works, which was reflected as $2,294,002.00 under the “Contract Sum” column. Therefore, it appeared that only 10.32% of the M&E works had been completed during this time.

As with the PC Rate items, however, it was explained at the trial that M&E works were also subjected to a variation sum before payment to the plaintiff. This was reflected in the row of S/N 7(b) of the Summary as “Variations – M&E Works”. This variation sum for M&E Works is found in the column “Net Amounts for Payment” for IV26, listed as “(205,605.41)”, indicating that $205,605.41 was to be subtracted.

This was the exact figure that Mr Tan had termed as an “omission” that was “separate” under IV26 before the CA. When one subtracts this variation sum from the amount recommended for payment under IV26, what is left is a sum of $31,150. This sum of $31,150 comprises the two sums certified by CCA in the documents annexed to IV26: $26,860.00 in payment recommendation M&E 25 dated 16 September 2013, and $4,290 in payment recommendation M&E 26 dated 30 September 2013.

This sum, being the true value of the M&E works certified under IV26, was about 1.36% of the total contract sum of M&E works. This was a far cry from the 10.32% noted above in [626]. The implication of this was that prior to this, at least 98.64% of the M&E works had been certified for payment. There was, therefore, no sudden unexplained increase in the M&E works completed.

A more fundamental question, however, arises as to the extent of M&E works that had been done as at the date of completion. It bears emphasizing that as with the PC items above at [602], the date of certification for M&E works was not indicative of the date on which the works were actually completed. This is unsurprising, given that the process of certification for M&E works was similar to that of PC items, with CCA and F+G both following the same process listed above at [600]. The certification of the M&E works was, therefore, only dependent on when the plaintiff submitted its claim for the works. Given the plaintiff’s delay in submitting its payment claims for the PC Sum items, as explained above at [606]–[608], it is also to be expected that there were delays in the submission of its payment claims for the M&E works. Nevertheless, it is clear that the M&E works were also completed as at the date of the issuance of the CC. This follows from the rigorous process of inspection by the third party and the Consultants, as explained above at [603]. This was confirmed by Ms Chua at the trial:

Therefore, I find that IC26 was issued properly and in accordance with the contractual terms.

General observations of the CA’s findings regarding the retention sum and the interim certifications

Accuracy of the figures in IC25 and IC26

The defendant now contends that the values certified by F+G in IC25 and IC26 were done incorrectly. The challenge mounted against the values, however, is a highly specific one – that the values used by F+G in determining the payments for the PC Rate items was not done correctly. I would like to state that the defendant is not challenging the quantification of the PC Sum items per se. He is only challenging the quantification of the PC Rate items, specifically the proper method which should have been used to make adjustments to the PC Rate items. The defendant’s challenge as to the PC Sum items relates to the proof of payment of the PC Sum items, which I shall further elaborate below.

In ascertaining the appropriate amount to be paid to the plaintiff, F+G would follow the process as set out in cl 28(5) of the SIA Conditions as follows:

Thus, the “relevant” PC Rate sums have to be deducted from the Contract Sum, before substituting the actual value of the work that had been completed. Again, the parties do not dispute the value of the actual work completed that was to be substituted, which was calculated by multiplying the area in the contractual drawings with the actual unit rate of the PC Rate items quoted by the NSCs. The only dispute that arises is which sums are referred to by the word “relevant”.

The defendant’s counsel contends that the term “relevant” should refer to the budgeted sums written by the plaintiff in the schedule of prices for the PC Rate items in the tender documents for the Project (the “tender breakdown prices”). According to the defendant, this means that F+G should have omitted $2,034,823.97 instead of $1,376,837 in the Statement of Final Account. The plaintiff takes issue with the use of the tender breakdown prices. It contends that the relevant sums were those estimated by the third party after discussion with the Consultants. In this instance, the PC Rate sums were calculated by the plaintiff from the PC Rates given by the third party. Thus, Mr Ng explained that those were not the tender breakdown prices. The plaintiff and the third party contend that the “relevant” sum was the value utilised by F+G, or what they term the “contract allowance”. F+G had derived the contract allowance by taking the contractual unit rate of the PC Rate items provided by the third party, multiplied by the area in the contract drawings. I refer to the value used by F+G as the “measured sum”. The plaintiff submits that this method is supported by the authorities, relying on Lim Pin, Contract Administration and Procurement in the Singapore Construction Industry (World Scientific Publishing Co Pte Ltd, 2016) at p 86, which states that:

I accept the plaintiff’s and the third party’s submissions. I am unable to agree with the defendant’s interpretation of the term “relevant” for the following reasons. Firstly, the tender breakdown prices listed in the tender documents should not be utilised as they do not reflect the actual contractual value of the items. The contractors are free to list any values for each of the items in the schedule of prices in accordance with their tender strategies, notwithstanding that such values must be “fair and reasonable”. For instance, contractors could quote higher sums for items completed earlier in the construction, allowing them to claim earlier or “front-load” their payments. The tender breakdown prices are, hence, clearly not reflective of the actual contractual values of the PC Rate items.

Secondly, cl 28(5) of the SIA Conditions anticipates that owners may have difficulties in ascertaining the values of the PC Sums and PC Rate items at the tender stage, notwithstanding that the contractor is to “ensure that the rate and price for each time shall truly represent the full value of the item”. Moreover, during the construction there will often be changes in specifications, be it in relation to materials or quality, quantity, etc. Such changes result from a variety of reasons, but will naturally have an impact on the value of the works actually done. This is why even the measured sum, that is based on contractual rates and drawings, differs from the value of the actual work completed. Therefore, as between the tender breakdown prices and the measured sum, the measured sum is a more accurate reflection of the estimated value of the work.

Thirdly, cl 28(5) of the SIA Conditions is intended to be an equitable method of adjustment for the value of the work done. To use the contractor’s tender breakdown prices that are not derived from any rates or measurements related to the works itself may not be a fair and equitable method of adjustment for the PC Rate items. Mr Ng testified that in his opinion as a QS, his method was the “fair and reasonable way to make such adjustment[s]”. I agree with Mr Ng that the method he had utilised, which was also that advocated by the plaintiff and the third party, is eminently fairer. This is evident when one compares the two methods alongside each other.

This is best illustrated via a simple hypothetical example. First, assume a contract with only one PC Rate item and one non-PC Rate item. Based on the contract drawings and the PC Rate, the measured sum for the PC Rate item is $5,000. However, in the schedule of prices, the contractor has indicated a lower tender breakdown price of $3,000 for the PC Rate item. As noted above at [638], there is some room for variability as to the tender breakdown price depending on the contractor’s pricing strategy. Furthermore, the contractor has priced the non-PC Rate item as $10,000. This results in an overall contract sum of $13,000. Next, assume that the contract was completed and there were no changes to the PC Rate or the quantities used as the as-built drawings matched the contract drawings exactly. After applying the adjustment process of deducting the “relevant” sum and adding the actual sum expended, the result under each method of calculation would be as follows:

In a situation where there are no changes to the PC Rate or the quantities of the PC Rate item, one would expect as a matter of fairness that the contract sum should stay the same. Indeed, this is the result that is obtained under F+G’s method, as seen by the final contract sum emphasised in bold. In contrast, the defendant’s method of calculation would result in the final contract sum being increased from $13,000 to $15,000, despite the fact that no changes were actually made to the contract specifications. This illustrates how F+G’s method of calculation (ie, deducting the measured sum) will result in more accurate adjustments being made to the contract sum, allowing for fairer results. It will also result in greater certainty to the owner. This point was corroborated by Mr Ng as follows:

Finally, I also notice that the defendant failed to call an expert QS to support his method of calculation of the PC Rate items. In contrast, Mr Ng was himself a pundit QS and testified that based on his knowledge and experience, his method of calculation is “common” whereas he had never come across the defendant’s method of calculation. While the defendant submits that Mr Ng had disagreed that F+G’s method was used in the industry, this is not entirely accurate and reflects only one portion of his evidence. I reproduce his evidence in this regard:

For these reasons, I accept the plaintiff’s and the third party’s submission that for the purpose of adjustments, the “relevant” sum should be treated as the measured sum. Thus, F+G had applied the correct approach to quantifying the PC Rate items in the Contract.

The defendant also claims that the plaintiff was not entitled to payment for both the PC Sums and PC Rate items as the plaintiff produced invoices rather than proof of payment to the NSCs. This argument is based on cl 31(11)(a) of the SIA Conditions, which provides that the plaintiff must provide the third party and F+G with “supporting documents, vouchers and other documents including documents relating to the accounts of the Designated or Nominated Sub-Contractors or Suppliers”. In response, the plaintiff and third party argue that the submission of an invoice was sufficient. They rely on cl 28(5) of the SIA Conditions, which provides that the relevant PC Sums are to be substituted with, inter alia, the “amount of the relevant Sub-Contractor’s or Supplier’s accounts showing the sub-contract value of the work carried out by them”.

I agree with the plaintiff and the third party’s submissions. Mr Ng stated that F+G would use the unit rate stated in the architect’s instruction, checked against the invoice submitted by the plaintiff. He further explained as follows:

As Mr Ng pointed out, there is nothing in the Contract stipulating that F+G and/or the third party was required to obtain proof of payment from the plaintiff. Based on the clauses cited by all parties, there is no express requirement that proof of payment be submitted. Rather, cll 31(11)(a) and 28(5) refer generally to “supporting documents, vouchers and other documents” which show the “sub-contract value of the work carried out by [the NSCs]”. In ascertaining the “value” of this work, it was appropriate for F+G to consider the value attributed to it in the architect’s instructions, checked against the invoice. Furthermore, the defendant’s case rests upon the assumption that before the Statement of Final Account is issued, the plaintiff must have made payment to all of its subcontractors in order for it to be able to provide proof of payment. However, this is not always the case. In fact, the plaintiff has yet to pay some of the NSCs pending the outcome of this trial. The NSCs or NSs would look to the plaintiff for payment and not the defendant. Therefore, it would not have made commercial sense for the parties to intend, by cll 31(11)(a) and 28(5), that the plaintiff be required to submit proof of payment. Thus, I find that it was appropriate for the plaintiff to have submitted the relevant invoices.

I observe that the defendant had made numerous progress payments to the plaintiff prior to IC25. He had no problem making those progress payments without any proof of payment from the plaintiff. However, after the commencement of the Suit by the plaintiff, he now raises the issue of the need to have proof of payment from the plaintiff.

A final issue relates to the accuracy of the actual unit rate of the PC Rate items quoted by the NSCs, which was used to compute the value of the actual work completed. The defendant produced several credit notes given by the NSCs to the plaintiff, which the defendant claims should have been taken into account in the Statement of Final Account. The defendant submits that the manner in which the invoices and credit notes were issued suggests that the plaintiff wanted to conceal the fact that it had received discounts from the NSCs. In support of his submission, the defendant cites a portion of Mr Tan’s testimony where he stated that his QS “may have kept quiet about discount”. The defendant further alleges that the plaintiff failed to provide proof of payment to the NSCs, although it must have evidence of such payment in its possession.

I do not accept this argument and find it to be unmeritorious. As Mr Ng explained, there were many possible reasons for such credit notes:

If the defendant wishes to contend that the plaintiff enjoyed discounts which it did not pass on to the defendant, this is a matter for him to prove on a balance of probabilities. The defendant cannot simply allege that the plaintiff has failed to produce evidence rebutting the defendant’s allegations. As Mr Ng testified, these credit notes would only be relevant for the Statement of Final Account if they were given for the plaintiff to enjoy a discounted rate on the PC Rate items. Given that there could have been a multitude of reasons why the credit notes were issued, the credit notes in and of themselves are not sufficient to make out the defendant’s allegation. If the defendant believes that the plaintiff benefited from the discounts given by the NSCs he should have called those NSCs concerned to testify instead of making insinuations of impropriety by the plaintiff without any proof. After all, these were the NSCs chosen by the defendant himself. Furthermore, although Mr Tan did state that his QS may have “kept quiet about discount”, this was cited out of context. I set out the full exchange, as follows:

It is clear from the above that Mr Tan was not suggesting that his QS concealed any discounts from F+G. As Mr Tan said, that was “hypothetical” and intended to explain that any attempt to conceal discounts would have been discovered by F+G. In this light, Mr Tan’s evidence does little to support the defendant’s case. Even if it shows that concealment of discounts is a possibility, this does not meet the standard of proof on a balance of probabilities as required of the defendant.

Summary on the issuance of IC25 and IC26

In summary, I find that IC25 and IC26 were issued in accordance with the contractual terms. In relation to the questions raised by the CA in Ser Kim Koi (Court of Appeal) ([67] supra), the plaintiff and the third party provided sufficient and satisfactory explanations for the following reasons:

(a) The release of the moiety of the retention sum of $328,250 under IC25 was accurately 50% of the total retention sum, as the total retention sum was $656,500 and not $644,195.65.

(b) The plaintiff had a backlog of progress payment claims, and this led to the delay in its submission of progressive PC 23 to PC 26 after the issuance of the CC. This, in turn, caused a delay in the issuance of IC25 and IC26. This provided the plaintiff a steady stream of claims for its finances.

(c) The amounts certified under IC25 and IC26 were proper and correctly quantified.

(d) The works certified under IC25 and IC26 had been completed prior to the issuance of the CC although the progressive payment claims were submitted much later.

These findings are only possible because of the veritable wealth of evidence that was adduced before me, while the CA only had scanty affidavits containing limited evidence. This was a point repeatedly emphasized by the CA, in particular at [86] and [92] as follows:

Furthermore, the sums tabulated in the Summary were flummoxing and unnecessarily complex, which required extensive explanation, as seen from the following exchange:

This problem before the CA was aggravated by the absence of the third party in the summary judgment proceedings. Thus, the third party was not able to provide its reasons or explanations to the CA. In this regard, I reproduce the CA’s observations at [76] that:

The third party should have provided to the CA clear reasons or explanations for its decisions, as its interim certificates confer temporary finality.

Implications of the wrongful issuance of the completion certificate

I have found at [334] that the earliest date for the CC of the Project certified by the third party was 28 May 2013, instead of 17 April 2013. The CC, properly issued on 28 May 2013, should also have reflected that the Project was completed pursuant to cl 24(4) of the SIA Conditions and Item 72 of the Preliminaries.

(1) Unlawful means conspiracy

However, the premature issuance of the CC does not support the defendant’s claim of unlawful means conspiracy. Notwithstanding that the CC was prematurely issued, I find that there was no conspiracy between the plaintiff and the third party in this regard.

I accept the third party’s explanation that the premature issuance of the CC was an honest mistake as it had overlooked Item 72 of the Preliminaries. Mr Chan was upfront on the stand and candidly acknowledged his mistake. Mr Chan explained his mistake as follows:

The third party had acted in good faith based on its experience, commercial understanding and the practical reality, as stated above at [327]. Unfortunately, in issuing the CC, the third party had not factored in Item 72(a) of the Preliminaries, as stated above at [327] and [368]. Although these are the reasons that demonstrate that the CC was improperly issued, they conversely rebut any claims of a conspiracy between the plaintiff and the third party. Given that there was no other evidence adduced to demonstrate a conspiracy in relation to the issuance of the CC, the defendant’s claim on an unlawful means conspiracy must fail. As such, the premature issuance of the CC does not lead to the conclusion that there was a conspiracy between the plaintiff and the third party to defraud the defendant by unlawful means.

(2) The defendant’s claim against the plaintiff for liquidated damages

Furthermore, the premature issuance of the CC does not entitle the defendant to claim liquidated damages from the plaintiff for the period between the extended completion date and the date when the CC should have been issued (ie, from 17 April 2013 to 28 May 2013). This is because it was the third party, in its capacity as the defendant’s agent, who had instructed the plaintiff not to commence rectification of the steps and risers until after TOP Inspection 1. This constitutes an act of prevention which renders the liquidated damages clause inoperable against the plaintiff.

The principles surrounding the concept of an act of prevention are well-settled in Singapore and have been approved in many cases (see eg, Yap Boon Keng Sonny ([385] supra) at [34]; Lim Chin San Contractors Pte Ltd v LW Infrastructure Pte Ltd [2011] 4 SLR 455; Chua Tian Chu and another v Chin Bay Ching and another [2011] SGHC 126 at [58]–[64]). An act of prevention is an event that “operates to prevent, impede or otherwise make it more difficult for a contractor to complete the works by the date stipulated in the contract” (see Law and Practice of Construction Contracts at para 9.155). The effect and rationale of an act of prevention are explained in Law and Practice of Construction Contracts at paras 9.156 and 9.157 as such:

Warren L H Khoo J in Kwang In Tong Chinese Temple v Fong Choon Hung Construction Pte Ltd [1997] 1 SLR(R) 907 similarly explained as follows at [18]:

In this case, the issues relating to the steps and risers were discovered on or around 17 April 2013. This was also the rightful and new contractual completion date, taking into account the granting of EOT 2 and EOT 3. After this discovery, the third party, as the defendant’s agent and clothed with actual or apparent authority, instructed the plaintiff not to commence rectification works until after TOP Inspection 1, which took place on 30 April 2013. The delay of rectification works was, perhaps, because the third party considered the steps and risers as minor works that could be rectified after TOP Inspection 1. This prevented the plaintiff from completing the rectification works sooner. Although the SIA Conditions do contain provisions pertaining to the grant of EOT, no EOT was actually granted in respect of the third party’s direction to delay rectification works. Accordingly, the time for completion was set at large. I note that if the plaintiff had commenced rectification works immediately, it would probably have completed rectification works after the completion date of 17 April 2013. Therefore, it was likely to have been in delay regardless of the third party’s instruction. However, as explained in the passage from Law and Practice of Construction Contracts above, this is immaterial. It is well-settled that an act of prevention renders the liquidated damages clause inoperable even if the contractor himself was also in delay. This is because the effect of the act of prevention is to set time at large. Therefore, even if the contractor is in delay, there is no completion date from which to calculate the liquidated damages due from the contractor.

For these reasons, the liquidated damages clause in the Contract is rendered inoperable. As such, the defendant cannot claim for liquidated damages against the plaintiff. The defendant also cannot claim general damages against the plaintiff as the third party, his agent, had issued the CC on 15 May 2013 to take effect on 17 April 2013. Thus, the plaintiff is not liable to the defendant for any damages, liquidated or otherwise, in respect of the premature issuance of the CC.

(3) Maintenance period

The premature issuance of the CC resulted in a cascading effect on the maintenance period. As explained above at [29], based on the CC that the third party issued, the maintenance period of the Project commenced on 18 April 2013 (ie, the day after the certified completion date) and ended on 17 April 2014. Had the CC been properly issued on 28 May 2013, the maintenance period of the Project should rightly have commenced on 28 May 2013 and ended on 27 May 2014.

However, I disagree with the defendant that the premature issuance of the CC by the third party resulted in him being unable to get the plaintiff to rectify the defects. The third party issued the MC on 7 July 2014. The MC certified that the defects within the Project had been satisfactorily rectified and was properly issued, as stated below at [669]–[671]. Given that the MC was issued after the end of the original maintenance period (ie, 17 April 2014), it is clear that the third party was not limited by the maintenance period in deciding when to issue the MC. Even under the revised maintenance period of up till 27 May 2014, there would be no difference as the MC was still issued after the end of the revised maintenance period. Hence, the premature issuance of the CC in no way deprived the defendant of the opportunity to get the plaintiff to rectify the alleged defects.

In any event, the plaintiff had at all times been willing to rectify the alleged defects in the Project. It was, in fact, the defendant who did not allow this to happen, denying the plaintiff and the third party entry to the Project repeatedly beginning from around July 2014. Therefore, the defendant cannot now turn around and allege that he had been unable to request the plaintiff to rectify the alleged defects due to the premature issuance of the CC.

Maintenance certificate

I also find that there was no conspiracy in relation to the third party’s issuance of the MC on 7 July 2014. As held by Prakash J in Liew Ter Kwang ([258] supra), the court will not lightly disturb the third party’s assessment, as long as it is made fairly and rationally. The defendant has failed to show that the third party did not exercise its discretion objectively, impartially and professionally.

In the circumstances, there is no basis to conclude that the third party issued the MC without proper due diligence, or in concert with the plaintiff. The evidence reveal that the third party issued the MC only after the defects raised by the defendant through BAPL had been satisfactorily rectified. I note that the defendant had, by this point in time (ie, 2014), embarked on his campaign against the plaintiff and the third party, going out of his way to fastidiously uncover minute defects with the help of BAPL. In such circumstances, particularly when the defendant was highly unreasonable and made extraordinary and hyperbolic demands, the third party was well-entitled to exercise its own independent judgment and conclude that the defects were satisfactorily rectified, and thereafter issue the MC. This led the defendant to suspect that the third party and the plaintiff were in a conspiracy to defraud him.

Furthermore, the third party formed its opinion that the defects had been properly rectified together with the other Consultants, strengthening the inference that the MC was properly issued. I, therefore, dismiss the defendant’s claims in relation to the MC.

Summary on conspiracy claim

Having dealt with each of the individual issues, I now summarise my overall findings in relation to the defendant’s conspiracy claim. The defendant claims that the conspiracy against him began at the start of the Project, from as early as March or April 2011, as mentioned at [104] above. In effect, his allegation of conspiracy tainted and seeped into each and every step of the construction process of the Project.

However, having thoroughly analysed the contemporaneous evidence and having heard the testimonies of the witnesses, I find that the defendant’s conspiracy allegations hold no water. In particular, the following allegations made by the defendant in relation to the alleged conspiracy are utterly devoid of merit:

(a) Beginning with the tender process, the defendant claims that the third party “pushed” for the plaintiff to be appointed over other contractors, making “life difficult” for the other contractors and asking them to “stay away”. However, the evidence shows that the entire tender process was conducted transparently, fairly and thoroughly, as explained above at [160]–[179].

(b) The defendant’s allegations that the various EOTs granted by the third party to the plaintiff were pre-determined are based on the defendant’s own erroneous imagination. There is simply no evidence to back up such spurious claims. All the parties involved in the processing of the EOTs acted with utmost professionalism and independence, as explained above at [180]–[295].

(c) The defendant alleges that the premature issuance of the CC gives rise to the inference of a conspiracy. I have found that the CC should only have been issued on 28 May 2013 after the completion of rectification works on the steps and risers which were raised in TOP Inspection 1 instead of on 15 May 2013 and taking effect on 17 April 2013. This was an error of judgment as the third party, at the material time, did not realise that Item 72 applied, or that Item 72(a) required him to consider whether the failure to obtain the TOP was due to any faults in the construction attributable to the plaintiff. I accept that this was an honest mistake. This oversight has nothing to do with any conspiracy to injure the defendant. Furthermore, Item 72(b) was satisfied by 17 April 2013 as the requisite T&C had been conducted and the handover of the relevant documents requirement is de minimis (see [336]–[382] above). Although there were certain incomplete rectification works such as the trellis beams, intumescent paint, the screed in the swimming pool and the grouting of the swimming pool wall (summarised above at [383]–[576]) none of these show that there was a conspiracy to injure the defendant. The third party may have overlooked some issues, but it consistently acted in good faith, based on its experience, commercial understanding and practical reality, as explained above at [298]–[668].

(d) The issuance of the MC by the third party was done fairly, rationally and in consultation with its team of professionals as explained above at [669]–[671]. There was no conspiracy to injure the defendant in relation to the issuance of the MC.

(e) The payment certificates were issued in accordance with the contractual terms, as explained above at [589]–[656].

It seems that when the plaintiff sought to enforce its certified payment claims the defendant tried to avoid his own contractual liability by coming up with the conspiracy allegation. This underscores and aptly reflects the general findings I made earlier in this judgment, at [79]–[119] above, in relation to the conspiracy claim that:

(a) The defendant had a propensity to recklessly make allegations and speculations based on his own suspicions. All of these were highly tenuous and unsupported by any evidence whatsoever, and in fact were based on his own “feelings”.

(b) The defendant’s version of events was highly incredible. He alleged that he knew about the conspiracy from the very beginning but had chosen to remain silent. Despite such knowledge, he took no action, did not inform any of his hand-picked Assistants of such conspiracy, and did not make a police report or lodge a complaint to the respective professional bodies.

(c) The defendant maintains a highly hyperbolic claim and takes an unreasonable position, refusing to mitigate any of his losses despite clear and reasonable opportunities for him to do so. He had the financial means to rectify the defects but refused to do so. He also insisted on absolute rectification of any type of defects, even those that were extremely minute in nature.

The defendant refused to call any of his hand-picked Assistants as witnesses to support his case. They would have been best placed to bolster his conspiracy allegations, if these were in fact true. His refusal to call any of them suggests that his allegations of conspiracy were likely fabricated and an afterthought, conceived after the plaintiff demanded for the last three outstanding payments. Furthermore, Mr Yong testified that throughout the entire construction of the Project, the plaintiff had not threatened, offered a reward, compensation or bribe to the third party to gain an advantage. The defendant failed to adduce any persuasive evidence to the contrary.

Finally, these observations are also reflective of those I made in relation to the defendant and his case generally, at [120]–[135] above. In summary, having observed the defendant throughout the multiple days of cross-examination, I find that he was an unreliable witness. He constantly made excessive and unreasonable demands of the plaintiff and the third party, becoming infuriated when neither agreed to accede to his demands or take his side. He then embarked on a campaign against them, utilising the generous financial resources at his disposal and enlisting the help of Mr Chin in an attempt to expose as many flaws as he could in the Project. Beyond the fact that Mr Chin himself was not a credible witness, such actions only exposed the incredulity and inaccuracies in the defendant’s allegations, demolishing the last vestiges of his conspiracy claim.

The defendant’s claim in negligence against the third parties

In addition to its claim for unlawful means conspiracy, the defendant submits that the third parties breached their duty of care in tort owed to the defendant. This extends to the third parties’ roles in certification and supervision. According to the defendant, the third parties breached their duty of care by the following:

(a) failing to read the Contract;

(b) granting EOT 2 and EOT 3;

(c) issuing the CC on 15 May 2013 certifying completion on 17 April 2013;

(d) failing to issue a Delay Certificate;

(e) failing to account for non-compliant and/or defective work in the interim payment certificates and FC;

(f) failing to supervise the Project; and

(g) failing to design the pavilion of Unit 12A in accordance with the BCA Regulations.

The third parties do not dispute that the first third party owes a duty of care towards the defendant in relation to the scope of services set out in Part 2 of the MOA. However, the third parties contend that the second third party does not owe the defendant a duty of care, as the defendant refused to sign the deed of novation.

I have already dealt with the issues concerning the grants of EOTs, the alleged irregularities in the interim payment certificates and FC, and the design of the pavilion of Unit 12A. As explained above, I reject the defendant’s submissions as regards those issues. I shall now consider (a) whether the second third party owed the defendant a duty of care; (b) the third party’s duty of supervision; and (c) the premature issuance of the CC and failure to issue a Delay Certificate, both of which relate to the third party’s failure to read the Contract.

Whether the second third party owed the defendant a duty of care

I do not accept the defendant’s submission that the second third party owed the defendant a duty of care. The law regarding when a duty of care arises is well-settled. In Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR(R) 100 (“Spandeck”), the CA set out the two-stage test of proximity and policy considerations, preceded by the preliminary issue of factual foreseeability. The first stage of proximity includes physical, circumstantial and causal proximity, as well as the twin criteria of voluntary assumption of responsibility and reliance (see Spandeck at [81]).

In my view, the defendant’s case fails at both the first and second stages of proximity and policy considerations. The case of Man B&W Diesel S E Asia Pte Ltd and another v PT Bumi International Tankers and another appeal [2004] 2 SLR(R) 300 (“PT Bumi”) is instructive. In that case, the CA found that no duty of care was owed by two subcontractors to a shipowner. In reaching this decision, the CA considered that the contract between the shipowner and the main contractor made the main contractor solely responsible for any defect that arose (see PT Bumi at [36]). Furthermore, it was the shipowner’s “deliberate choice that there was no direct contractual relationship” with the subcontractors (see PT Bumi at [38]). As such, the CA found that the shipowner had relied only on the main contractor, and not the two subcontractors; conversely, there had been no assumption of duty by the subcontractors vis-à-vis the shipowner. In these circumstances, to “infer such a duty [of care] would run counter to the specific arrangement which [the shipowner] had chosen to make with [the main contractor]” (see PT Bumi at [48]).

In this case, by refusing to sign the deed of novation, the defendant elected not to enter into a contractual relationship with the second third party (see [154] above). This was a deliberate choice, signifying the defendant’s lack of reliance on the second third party. For the same reason, it cannot be said that the second third party assumed any responsibility towards the defendant. Turning to the second stage, policy considerations similarly militate against the imposition of a duty of care. As in PT Bumi, imposing a duty of care would run counter to the contractual arrangement between the defendant, the first third party and the second third party. It would not be fair for the court to allow the defendant a backdoor remedy in tort for something he could not obtain in contract. Therefore, the defendant has no claim against the second third party in the tort of negligence, as no duty of care arises. I shall now consider whether the defendant has a case against the first third party.

The duty of supervision

It is not disputed that the tortious duty of care owed by the first third party to the defendant includes a duty to supervise (see Sim & Associates v Tan Alfred [1994] 1 SLR(R) 146 (“Sim & Associates”)). The defendant claims that the third party failed to supervise the Project. The defendant focuses in particular on the steps and risers. According to the defendant, Mr Chan was not present at the pre-TOP inspection on 17 April 2013, where the defects in the steps and risers were first discovered. Further, the third party did not supervise the rectification works conducted in relation to the steps and risers.

I begin with the applicable law in respect of the duty of supervision. I am mindful of the observations made by the CA in Sim & Associates at [40], as follows:

The CA further cited the following proposition, at [43]:

Similarly, Vinodh Coomaraswamy J in Wei Siang Design Construction Pte Ltd v Euro Assets Holding (S) Pte Ltd [2019] 4 SLR 628 explained at [97]:

I also find helpful the observations of the English High Court in Ian McGlinn v Waltham Contractors Ltd and others (No 3) [2007] EWHC 149 (TCC) at [218(a)] and [218(e)]:

Applying these principles to the present case, I do not find that the third party was negligent in the supervision of the rectification works of the steps and risers. I also find that the third party supervised the Project to the standard of a reasonably competent architect. This is evident from the following:

(a) Ms Chiyachan, the third party’s employee, would attend site meetings and site walks. She would thereafter update Mr Yong on what transpired during these meetings. Mr Yong would also call her to clarify parts of the minutes for these meetings, if necessary.

(b) Mr Yong would supervise the third party’s employees and update Mr Chan, seeking his advice and input for more complicated issues. Mr Yong would also visit the Project site often.

(c) Mr Chan also visited the site about once a month, for instance, to attend site meetings. He also made informal visits to the Project as he had to pass the Project on his way home. Mr Chan acknowledged that he relied on Mr Yong and Ms Chiyachan, whom he had put in charge of the Project, to report the relevant matters to him. He read the minutes of the site meetings. He also had access to the email account used for the Project and would read all the emails sent to that email account by clients and other parties. Thus, Mr Chan was always kept updated on the current state of the Project and he knew what was happening in the Project.

The above shows that Mr Chan, as well as the other employees of the third party, were involved in supervising the progress of the Project. It was not necessary for Mr Chan himself to personally supervise the Project. He was entitled to delegate tasks to his employees under his supervision. In fact, this is envisioned in the Contract itself. Article 3 of the SIA Conditions states that the design of the Works will be carried out under the architect’s supervision or administrative control. This is also supported by authority. In East Ham Corporation v Bernard Sunley & Sons Ltd [1966] AC 406 (cited with approval by the CA in Sim & Associates ([683] supra) at [56], Viscount Dilhorne observed at 427F that:

In relation to the steps and risers, specifically, I do not find any lapses in the third party’s supervision for the following reasons. First, the defendant himself acknowledges that the defects in the steps and risers were discovered by the third party at an inspection conducted on 17 April 2013. Although Mr Chan was not present at that inspection, the inspection was attended by the third party’s representatives. This shows that the third party was adequately supervising the Works.

Secondly, although the third party’s representatives were not physically present when the rectification works were carried out, this does not mean that the third party was not supervising the Works. The authorities cited above make clear that the duty of supervision does not require the architect to be present on-site at all times. As Ms Chiyachan explained, the third party would ask the plaintiff for updates, request for photos or request to go to the site to verify the plaintiff’s progress. The evidence shows that the third party inspected the steps and risers after the rectification works were carried out by the plaintiff, and provided photographs of the rectified steps and risers to the BCA through a letter dated 6 September 2013. Furthermore, I have found that the steps and risers were eventually properly rectified. This attests to the adequacy of the third party’s supervision.

Finally, although the third party instructed the plaintiff not to rectify the steps and risers until after TOP Inspection 1, this does not pertain to supervision. Rather, it is a separate issue which I shall consider below. Indeed, the fact that instructions were given by the third party to the plaintiff regarding the rectification of the steps and risers points towards there being supervision by the third party.

For these reasons, I reject the defendant’s submission that the third party breached its duty of supervision, whether generally or specifically in relation to the steps and risers.

The premature issuance of the CC and failure to issue a Delay Certificate

As I have found above, the CC should have been issued on 28 May 2013. I find that the third party was negligent in issuing the CC prematurely. Mr Chan candidly admitted that when issuing the CC, he had only considered cl 24(4) of the SIA Conditions. He was not aware of Item 72 of the Preliminaries and therefore did not consider whether the requirements set out in Item 72 had been met. This fell below the standard of a reasonably competent architect. I note that cl 31(13) of the SIA Conditions requires the architect to “certify strictly in accordance with the terms of the Contract”. In order to be able to certify strictly in accordance with the terms of the Contract, the architect must have read the terms of the Contract and must have been reasonably familiar with them. As such, the third party’s failure to do so constituted a breach of its duty of care, albeit that such a breach was not ill-intentioned.

As for the delay in obtaining the TOP, I find that the third party was not negligent for the failure of TOP Inspection 2 on 18 June 2013 and the eventual granting of the TOP on 16 September 2013. This is because the reasons for such failure did not arise from its breach of duty of care. Instead, as I have observed above, it arose from a difference in opinion between the third party and the BCA (see [330] and [333] above).

I turn now to the damages for the third party’s negligence. The defendant submits that by prematurely issuing the CC, the defendant was prevented from recovering liquidated damages from the plaintiff. Having found that the EOTs were correctly granted, the rightful completion date would have been on 17 April 2013. There was, therefore, a delay from 17 April 2013 to 28 May 2013. However, the defendant claims against the third party for liquidated damages of $3,600 per calendar day of delay from 21 February 2013 (the original completion date) up till today, amounting to a total of $9,842,400 as at the date of the written submissions.

I do not accept the defendant’s claim. First, I note that the amount claimed is inaccurate and excessive, given that I have found that the CC should have been issued on 28 May 2013. Any claim in liquidated damages, therefore, should only run from 17 April 2013 to 28 May 2013. Secondly and more importantly, the claim for liquidated damages is one that should be made against the plaintiff, not the third party. The liquidated damages clause is contained in the Contract between the defendant and the plaintiff (specifically, cl 24(2) of the SIA Conditions), to which the third party is not a contracting party. In this regard, Lee Seiu Kin J’s observations in Store+Deliver+Logistics Pte Ltd v Chin Siew Gim (trading as S G Chin and Associates) [2012] SGHC 89 at [26] are apposite:

Furthermore, cl 31(1) of the SIA Conditions stipulates that all of the certificates issued by the third party have only “temporary finality”. Thus, it is open to the court hearing the substantive proceedings to “open up and revise” these certificates “with a view to the final resolution of the dispute” and the parties’ rights vis-à-vis each other (see the CA’s decision in Chin Ivan ([66] supra) at [33]). In this respect, I have disallowed the defendant’s claim against the plaintiff for liquidated damages at [665] above. It is therefore not open to the defendant to claim for liquidated damages against the third party.

Thirdly, the CA’s decision in PPG Industries (Singapore) Pte Ltd v Compact Metal Industries Ltd [2013] SGCA 23 relied upon by the defendant can be distinguished as the facts are vastly different. In that case, the CA upheld the High Court’s decision that the respondent was entitled to claim from the appellant liquidated damages that were paid to the main contractor by the respondent’s subsidiary as a result of the appellant’s breach of contract. The CA explained at [19] that the subsidiary’s liability for liquidated damages constituted “ordinary damage” falling within the first limb of the rule in Hadley v Baxendale (1854) 165 ER 145. Therefore, the respondent could claim damages for such loss. It is notable that in that case, the respondent had already incurred the liquidated damages and made payment for the same (see Compact Metal at [12]). This is vastly different from the present case, where the defendant is claiming for a hypothetical sum of liquidated damages which he claims he was deprived the opportunity of claiming. I have explained that in this case the defendant cannot claim liquidated damages from the plaintiff. Therefore, I find Compact Metal to be inapplicable to this present case.

Hence, the defendant is limited to general damages in respect of the third party’s negligence in issuing the CC prematurely. However, the defendant has not adduced any evidence to quantify his loss. In the course of the proceedings, the defendant stated that he was no longer pursuing a claim in loss of rental income and I rejected his subsequent attempt to re-introduce this head of claim. In so far as the defendant claims that the delay in obtaining TOP was due to the third party’s breach in its design duties, this is a separate issue which I shall address at [703] below. The defendant has neither pleaded nor adduced evidence showing any other losses he might have suffered by the third party’s premature issuance of the CC. Accordingly, the court can only award nominal damages of $1,000 to the defendant.

The defendant’s claim in contract

The defendant submits that the third parties are liable for breach of contract based on the following:

(a) granting EOT 2 and EOT 3 in breach of the relevant EOT-related provisions in the Contract;

(b) issuing the CC on 15 May 2013 certifying completion on 17 April 2013, in breach of the obligation under cl 31(13) of the SIA Conditions to “certify strictly in accordance with the terms of the Contract”;

(c) failing to issue a Delay Certificate, in breach of cl 24(1) of the SIA Conditions;

(d) failing to account for non-compliant and/or defective work in the interim payment certificates and FC in breach of the obligation under cl 31(13) of the SIA Conditions to “certify strictly in accordance with the terms of the Contract;

(e) failing to act impartially in granting EOT 2 and EOT 3 and in the issuance of the CC, in breach of cl 1.1(10)(a) of the MOA;

(f) failing to supervise the Project, in breach of the obligation under cl 1.1(7) of the MOA;

(g) making unauthorised changes to the Project, in breach of cl 1.1(3) of the MOA, in respect of the intumescent paint, external boundary wall planters finish and timber decking;

(h) failing to design the pavilion of Unit 12A in accordance with the BCA Regulations in breach of cl 1.1(2) of the MOA; and

(i) failing to exercise a reasonable standard of skill and care, in breach of cl 1.1(1) of the MOA.

These grounds are similar to those in the defendant’s claim against the third party in the tort of negligence. I have already dealt with most of these issues in my decision on the defendant’s claim in negligence, as well as the defendant’s claim in unlawful means conspiracy. I shall only make two observations. First, I note that although the defendant made reference to the invisible grille in his pleadings, his specific claim (at [702(h)] above) in relation to the design of the pavilion of Unit 12A was not specifically pleaded. This would have been sufficient to dismiss the defendant’s claim, notwithstanding my further finding that the third party was not in fact negligent in designing the pavilion at Unit 12A. Secondly, I also reiterate that in relation to the premature issuance of the CC, I do not find that there was any improper motive underlying this. Rather, I accept the third party’s explanation that it was an honest mistake. Therefore, as regards the defendant’s claim at [702(e)] above, I find that the third party’s premature issuance of the CC does not support the inference that it was not acting impartially.

I turn now to the defendant’s claim at [702(g)] above in respect of the timber decking. The defendant alleges that the timber decking was not constructed in accordance with the contract drawings. While the contract drawings stipulated that the timber strips were to be removable, they were eventually affixed to the supporting structure of the Project. For this, the defendant claims from the third party the sum of $51,167.

I do not accept the defendant’s claim, as the evidence shows that the defendant in fact agreed to such a change. As Mr Yong and Ms Chiyachan testified, the defendant decided not to proceed with planting trees in the basement. Therefore, the third party directed that the openings in the decking be covered by taking out the removable panels and having the original timber planks cover the entire length of the decking. This was due to safety concerns, which the defendant agreed to. Furthermore, the defendant and his Assistants did not raise any objection, express or implied, during the course of the Project.

For the above reasons, I dismiss the defendant’s claims in contract against the third party, save for its claim in respect of the third party’s premature issuance of the CC, for which I award nominal damages (see [702(b)] above).

The plaintiff’s claim

The plaintiff’s claim revolves around the payment of sums that it avers it is owed following the completed construction of the Project. To recapitulate, the claimed sums are based on and comprise the following:

(a) The IC25 was issued by the third party on 3 September 2013, pursuant to the plaintiff’s PC 25 dated 26 August 2013. On 3 September 2013, the plaintiff issued Tax Invoice No LP025 (“TI25”) to the defendant for the sum certified under IC25 of $390,951.96 plus 7% GST of $27,366.64, totalling $418,318.60.

(b) The IC26 was issued by the third party on 6 November 2013, pursuant to the plaintiff’s PC 26 dated 29 October 2013. On 6 November 2013, the plaintiff issued Tax Invoice No LP026 (“TI26”) to the defendant for the sum certified under IC26 of $189,250.21 plus 7% GST of $13,247.51, totalling $202,497.72.

(c) The FC was issued by the third party on 22 June 2015. On 23 June 2015, the plaintiff issued Tax Invoice No LP-027 (“TI27”) to the defendant for the sum certified under the FC of $451,494.54 plus 7% GST of $31,604.62, totalling $483.099.16.

Each of the payment certificates issued by the third party had been preceded by a recommended valuation issued by F+G to the third party. I note that the sums within the recommended valuations all mirrored the values stated within IC25, IC26 and the FC. However, this is not out of the ordinary, as explained by Mr Goh:

The plaintiff was entitled to payment from the defendant within a specified number of days following the issuance of a tax invoice. As stipulated in cl 31(16) of the SIA Conditions:

Notwithstanding the lapse of 35 days following each of the tax invoices issued, the defendant refused to make the relevant payments. The total sum due as a result of TI25, TI26 and TI27 amounts to $1,103,915.48. As evident from the defendant’s payment response issued to the FC dated 1 July 2015, the defendant refused to make payment to the plaintiff on the basis that he was entitled to make numerous deductions from the plaintiff’s claim, such that the plaintiff was ultimately liable to pay him the sum of $1,282.397.23. Given my findings above regarding the accuracy and propriety of IC25, IC26 and the FC, I find that the plaintiff is entitled to the sums certified therein.

The Architect’s Fee

The third party’s claim against the defendant revolves around the payment of the Architect’s Fee. As mentioned above at [62], pursuant to cl 2 of the MOA, the third party was to be paid for its professional services, in accordance with the stipulations under the Schedule to the MOA.

The third party claims the following two outstanding payments. Firstly, pursuant to cl 2.2(m) of the MOA, 3% of the Architect’s Fees became payable when the Project obtained the TOP. This amounts to $34,200.00 plus 7% GST of $2,394.00, totalling $36,594.00. Secondly, pursuant to cl 2.2(n) of the MOA, 2% of the Architect’s Fees became payable when the Project obtained the CSC. This amounts to $22,800.00 plus 7% GST of $1,596.00, totalling $24,396.00.

In this instance, the TOP for the Project was obtained on 16 September 2013, as explained above at [64]. Hence, there is no basis for the defendant to withhold the payment of $36,594.00. The defendant argues that the TOP was obtained several months after the contractual completion date and after two previous failed TOP inspections. Further, the Project remained unsuitable for occupation even after the issuance of the TOP due to its numerous defects. However, these arguments simply miss the point. The relevant clauses, namely cll 2.1(5)(b) and 2.2(n) of the MOA, are unambiguous. These clauses are as follows:

It is clear from these clauses that no allowance is made for any deviations from the payment mechanism based on the types of arguments that the defendant now raises. This is further underscored by cl 1.3(2) of the MOA that states:

Similarly, the CSC for the Project was obtained on 12 May 2014, as explained above at [64]. Payment of $24,396.00 should, therefore, rightly have been made to the third party by the defendant. Clause 2.2(n) unambiguously states:

It is not in dispute that both of the sums remain unpaid to date. Therefore, in addition to the payment of the above sums, I find that the third party is also entitled to interest on those sums as a result of the defendant’s failure to issue payment. This is pursuant to cl 1.3(6) of the MOA that provides:

Accordingly, the defendant is liable to pay to the third party the sum of $60,990 plus interest of 3% above the prime rate from the amount due date.

Expenses incurred in the summary judgment application

I reject the defendant’s claim against the third party for legal expenses. The defendant did not plead that he suffered loss of $649,082.63 as out-of-pocket legal expenses in defending the plaintiff’s summary judgment application. This was only raised in the defendant’s AEIC, where he exhibited copies of invoices from the solicitors representing him at the time of the summary judgment application. On this ground alone this claim is dismissed. However, for completeness I shall deal with the merits of this claim.

Turning to the substantive merits of the claim, I observe first that there are some discrepancies in terms of the evidence. It is not clear whether the work reflected in these invoices had been undertaken for the purpose of the summary judgment application because no breakdown was provided by the defendant. When asked about this, the defendant insisted that based on his memory, his solicitors had only undertaken work in relation to the summary judgment application. However, he himself acknowledged that his memory might not be accurate, as follows:

It turned out that the defendant’s memory was indeed incorrect. The third party relies on several letters dated 18 July 2014, 23 July 2014, 25 July 2014, 4 August 2014, 25 August 2014, 10 October 2014 and 5 June 2015. These letters were from the defendant’s previous solicitors to the third party’s solicitors and the plaintiff’s solicitors at the time, pertaining to matters separate from the summary judgment application. This was acknowledged by the defendant as follows:

Moreover, the defendant also included invoices which appear to incorporate work done from 27 May 2015 to 12 April 2016. This period was after the summary judgment application was heard by the CA in Ser Kim Koi (Court of Appeal) ([67] supra). That suggests that the work reflected in these invoices could not have been done for the purposes of the summary judgment application. For these reasons, I find that the evidence adduced by the defendant is sorely lacking and unreliable in showing exactly how much he actually spent in relation to the summary judgment application.

The only possible legal leg upon which this claim for expenses against the third party can possibly stand is if the third party had actually conspired against the defendant. However, as established above at [70]–[675], there is no evidence of any conspiracy in this case. Accordingly, the defendant’s claim against the third party for legal expenses incurred in the summary judgment application must fail.

Utility fees

The plaintiff agreed to pay the utility fees when cross-examined in court as follows:

This was also confirmed in a subsequent Agreed Statement of Facts tendered by the parties as follows:

Accordingly, I order the plaintiff to make the necessary payment of $27,916.82 to the defendant for utility fees incurred.

The application for amendment of the defendant’s further and better particulars

In the midst of the final tranche of the hearings, the defendant filed Summons No 871 of 2020 (“SUM 871/2020”) to amend his further and better particulars (the “F&BP”). The F&BP was served on 9 March 2018, pursuant to the plaintiff’s request dated 7 February 2018. The third tranche of the trial started on 18 February 2020 and on 25 February 2020, the defendant filed SUM 871/2020 to amend its F&BP. There was no accompanying affidavit to this application.

In SUM 871/2020, the defendant sought to amend his case in relation to the claim for damages arising from the plaintiff’s delay in the completion of the Project. In the defendant’s view, this application was necessary to “correct the errors” in the F&BP. Broadly, there were two key aspects in the application to amend the F&BP which substantially changed the defendant’s counterclaim against the plaintiff:

(a) the claim for loss of rental income; and

(b) the relevant time period for the calculation of liquidated damages.

On 9 March 2020, after hearing the parties’ arguments, I dismissed the defendant’s application in SUM 871/2020. I shall now explain my reasons for not granting this application.

Order 20 r 5(1) of the Rules of Court is the applicable provision relating to the amendment of pleadings. The CA in Review Publishing Co Ltd and another v Lee Hsien Loong and another appeal [2010] 1 SLR 52 (“Review Publishing”) at [110] and [113] reproduced O 20 r 5(1) of the Rules of Court and explained the legal principle as follows:

In my view, this application was made very late into the trial. The first tranche of the trial was from 8 November to 30 November 2018 and the second tranche was from 16 January to 31 January 2019. This application was made after the commencement of the third tranche of the trial and after the defendant had been extensively cross-examined by the plaintiff’s and the third party’s respective counsel. It seems that this application was an attempt to salvage the defendant’s counterclaim against the plaintiff, which I shall elaborate below.

The original F&BP regarding the claim for loss of rental income and liquidated damages was similar to the defendant’s Defence and Counterclaim on his claim against the plaintiff for the plaintiff’s delay in the Project. No attempts were made to amend this aspect of the pleadings since the original Defence and Counterclaim was first filed in February 2014. Subsequently, three amendments were made to the Defence and Counterclaim. The latest was in October 2018. None of the amendments to the counterclaim related to the substance of the application. Hence, there had been no attempts to amend the pleadings on the defendant’s claim for loss of rental income and liquidated damages until now (ie, more than six years later).

In relation to the F&BP, which was lodged on 9 March 2018, the defendant’s answers significantly mirror the Defence and Counterclaim regarding his claim for loss of rental income and liquidated damages. No amendments were made to the F&BP for about two years. I am cognisant that delay per se does not equate to injustice (see Review Publishing at [114]–[115]; Ketteman v Hansel Properties Ltd [1987] AC 189 at 212). In this case, however, it is undeniable that there was inordinate delay. This application arose because of damaging evidence given by the defendant in court when the plaintiff’s and the third party’s respective counsel cross-examined him. The amendments sought were effectively an attempt to get a second bite of the very same cherry that the defendant had earlier given up.

This can be seen from how, under the amendments, the defendant attempted, inter alia, to introduce a claim for loss of rental income as an alternative to liquidated damages. The proposed amendments to the F&BP were as follows (the amendments sought are reflected in underline and strikethrough):

However, the defendant had clearly informed the court during his cross-examination that he did not wish to pursue a claim for the loss of rental income. He categorically stated:

The defendant had unequivocally and irrevocably stated that he did not intend to pursue a claim for the loss of rental income notwithstanding his claim for loss of rental income in his pleadings. It is clear that he is now only claiming for liquidated damages. Therefore, it was not open to the defendant’s counsel to subsequently seek to retract from that position through an amendment to the pleadings that was at odds with what the defendant himself had previously stated in court.

The defendant’s counsel, initially, submitted that in re-examination the defendant had clarified that he was seeking the loss of rental income as an alternative claim. The third party’s counsel challenged his recollection and the defendant’s counsel sought an adjournment to check. This was granted. After the lunch adjournment the defendant’s counsel conceded that he had erred and that he did not re-examine the defendant about the loss of rental income. Thus, on record, the defendant clearly stated in court that he did not wish to claim for the loss of rental income and he is only claiming for liquidated damages. Accordingly, the defendant’s counsel indicated that he was not pursuing the amendment regarding the loss of rental income and that he would remove all references to the loss of rental income in the application. However, the defendant continued to pursue the other aspects of its application to amend his F&BP, in particular, amendments that related to the duration of the liquidated damages.

For this remaining aspect of the amendments, the defendant sought to extend the time period relevant to the calculation of the claim for liquidated damages. As seen from the quote in [736], the period for the defendant’s original claim for liquidated damages was from 22 February 2013 to 21 July 2014 (ie from the contractual completion date to the handover date, a total of 515 days).

The defendant sought to amend the relevant dates, such that the claim for liquidated damages spanned from the contractual completion date (22 February 2013) to today. An example of such an amendment that was sought is as follows (amendments sought are reflected in underline and strikethrough):

As is evident, the amendments sought were extremely drastic. In effect, it multiplied the duration for which liquidated damages were being sought by almost five times, from 515 days to 2558 days and counting. Notwithstanding this drastic disparity, the defendant argued that this would be consistent with the initial pleadings. In particular, he relied on the following paragraph of the Defence and Counterclaim:

The defendant argued that the words “at least” merely indicated a minimum number of days that was relevant to the claim for liquidated damages. It was, therefore, entirely consistent to allow the relevant amendments.

With due respect, I disagreed with the submissions of the defendant’s counsel. The defendant’s pleadings and the F&BP have to be considered in the context of his claim. Considering the entire paragraph quoted above at [742] in full, it is clear that the period for which liquidated damages were being claimed was specifically identified (ie, from the contractual completion date of 22 February 2013 to the handover date of 21 July 2014). To ensure that there was no misunderstanding regarding the period of liquidated damages the defendant’s pleadings further indicated that this was for a total period of 515 days. This period of liquidated damages was consistently prescribed in the initial pleadings as well as the amended pleadings. There was simply no ambiguity or room for a contrary interpretation in this regard. This is emphasized and made even clearer beyond all doubt in a subsequent answer provided in the F&BP:

Therefore, there were two distinct periods of time in the defendant’s claim for liquidated damages and loss of rental income which he was now not pursuing. The first was for liquidated damages for the period beginning on the completion date and ending on the handover date (ie, 22 February 2013 to 21 July 2014). The second was for the loss of rental income from the handover date (ie, 21 July 2014) to today.

What the term “at least” referred to (see [742] above) was not the duration or extent of the claim as now alleged by the defendant, but rather the type or nature of claim that could be brought. For instance, the defendant is claiming other types of damages such as additional utility charges incurred arising from the delay. It would be a significant change to the defendant’s claim for liquidated damages if the court had allowed the amendments proposed in SUM 871/2020. The trial had not only started but the plaintiff had testified and closed its case. This application, if granted, would have been a grave injustice, grossly unfair and highly prejudicial to the plaintiff. To the extent that the defendant is also seeking to make the third party liable for any liquidated damages the plaintiff is liable to pay the defendant, the third party would also be prejudiced. It is evident that the amendments were the consequence of the defendant’s testimony in court when he said that he did not wish to claim for the loss of rental income. If the period for which liquidated damages are being claimed is limited to 515 days, this will reduce his claim significantly. This explained the motive behind the amendments proposed in SUM 871/2020.

Despite the dismissal of SUM 871/2020, the defendant continued to pursue and make submissions that he is claiming from the plaintiff and/or the third party liquidated damages up till today instead of the handover date, ie, 21 July 2014.

Conclusion

For the above reasons, I issue the following orders:

(a) In relation to the plaintiff’s claim against the defendant, I allow the plaintiff’s claim against the defendant for the sums due under TI25, TI26 and TI27, amounting to $1,103,915.48 in total.

(b) In relation to the defendant’s counterclaim against the plaintiff:

(i) I dismiss the defendant’s claim against the plaintiff that there was a conspiracy between the plaintiff and the third party to injure the defendant.

(ii) I dismiss the defendant’s claim against the plaintiff for liquidated damages of $3,600 per calendar day of delay from 21 February 2013 (the original contractual completion date) to present.

(iii) I dismiss the defendant’s claim against the plaintiff for the loss of rental income due to the delay by the plaintiff in the completion of the Project.

(iv) I dismiss the defendant’s claim against the plaintiff for the costs of rectifying the dented/punctured gas pipe.

(v) I dismiss the defendant’s claim against the plaintiff for the costs of rectifying the alleged cracks, tonality, stains and other forms of impurities in the Volakas marble flooring.

(vi) I dismiss the defendant’s claim against the plaintiff for the costs of rectifying the alleged cracks, splinters, stains and differences in tonality in the ironwood at the timber decking.

(vii) I dismiss the defendant’s claim against the plaintiff for the costs of rectifying the alleged variance in tonality of the Indian rosewood timber floor finish and other defects.

(viii) I dismiss the defendant’s claim against the plaintiff for the costs of rectifying the alleged defects in relation to the aluminium cappings at the rooftop.

(ix) I dismiss the defendant’s claim against the plaintiff for damages in relation to the steps and risers, which were in compliance with the statutory requirements as of 28 May 2013.

(x) I dismiss the defendant’s claim against the plaintiff for the costs of rectifying the alleged leakage in the swimming pools. However, I find that there were leaks from the screed at the capping edge of the swimming pools and these have to be rectified. The cost of rectification works for the three swimming pools is estimated at $13,816.40. The plaintiff is to pay this sum to the defendant.

(xi) I allow the defendant’s claim for the costs of rectifying the grouting in the swimming pools as the plaintiff failed to maintain the pH value of the water in the swimming pools before the Project was handed over to the defendant. The plaintiff is to pay the defendant $4,555.20.

(xii) I allow the defendant’s claim against the plaintiff for the amount overpaid in respect of the missing trellis beam, amounting to $708.40.

(xiii) I dismiss the defendant’s claim in respect of the intumescent paint applied to the trellis beams, except for the peeling of the intumescent paint in the three trellis beams of Unit 12A of the Project. However, given that the defendant has failed to adequately quantify the costs of rectification works and failed to mitigate his loss, I order the plaintiff to pay to the defendant nominal damages of $500 for the peeling intumescent paint.

(xiv) I dismiss the defendant’s claim against the plaintiff for damages in relation to the change to plaster and paint finish of the external boundary wall instead of an off-form finish.