Skip to content
laws.sgby aturio
Grounds publishedDecided 27 May 2022
Contents

General Division of the High Court

RMD Kwikform Singapore Pte Ltd v Ehub Pte Ltd

[2022] SGHC 129Case no. Suit No 701 of 2019

What happened, in plain English

There is no plain-English summary of this judgment yet.

Ask about this judgment

Laws this judgment relies on

Grounds of decision

Official text from eLitigation

  1. Introduction

  2. [1] The present dispute centres on the plaintiff’s claims for unpaid sums allegedly owed by the defendant in relation to equipment that the plaintiff hired out to the defendant for use in five construction projects. The defendant denies the plaintiff’s claims and advances various counterclaims against the plaintiff which arise out of these same five projects.

  3. Facts

  4. [2] The plaintiff is a company incorporated in Singapore and is in the business of the hire and sale of equipment for formwork, falsework, access and safety. It is fully owned by RMD Kwikform Holdings Ltd, a company registered in the United Kingdom. The plaintiff is also part of the “RMD Kwikform” global group of companies. The RMD Kwikform group of companies conducts its business principally in the United Kingdom, the Philippines, the Asia-Pacific region, the Middle East, India, and North and South America.

  5. [3] The defendant is a company incorporated in Singapore and has been in the business of erecting scaffolding systems for construction projects since its incorporation in 2002. The managing director of the defendant is Mr Choo Wei Fern, also known as Mr Edward Choo (“Mr Choo”).

  6. [4] Between 2011 and 2014, the defendant engaged the plaintiff to supply scaffolding systems and equipment on hire for use in the following residential housing construction projects (collectively, the “Projects”):

  7. The parties’ cases

  8. The plaintiff’s case

  9. [5] According to the plaintiff, the parties had entered into written agreements for each of the Projects, pursuant to which the plaintiff supplied, among others, scaffolding and equipment to the defendant. Details of the written agreements (collectively, the “Agreements”) are as follows:

  10. (collectively, the “Nassim Hill Agreement”).

  11. [6] The plaintiff’s case is that for each of the Projects, the plaintiff issued a quotation to the defendant setting out the agreed terms between the parties, after the parties had negotiated the terms of their business engagement. These quotations make up the Agreements detailed above at [5]. For the One Canberra, Forestville, Sea Horizon and Twin Fountains Agreements, the express terms contained therein were accepted by the defendant when its representatives countersigned on the respective quotations. While the defendant’s representatives did not countersign on the quotations which formed the Nassim Hill Agreement, the plaintiff contends that those quotations were nonetheless issued in accordance with the terms and conditions agreed between the parties.

  12. [7] Broadly speaking, each of the Agreements contained, among other things:

  13. [8] Based on the terms contained in the Agreements and the plaintiff’s internal records of equipment hired or sold to the defendant, the plaintiff claims that the defendant owes it outstanding sums in relation to each of the Projects. The plaintiff’s claims can be categorised into the following four categories:

  14. [9] A breakdown of the plaintiff’s pleaded claims is set out below:

  15. Project

  16. Hiring Fees

  17. Purchase Fees

  18. Shortage Fees

  19. Damage Fees

  20. One Canberra

  21. S$16,832.48

  22. S$1,878.68

  23. S$80,055.91

  24. S$89,280.23

  25. Forestville

  26. S$91,270.20

  27. S$15,366.98

  28. S$9,116.37

  29. S$103,032.24

  30. Sea Horizon

  31. S$13,651.81

  32. -

  33. S$88,417.80

  34. S$119,719.29

  35. Twin Fountains

  36. S$70,189.51

  37. S$857.64

  38. -

  39. S$40,793.86

  40. Nassim Hill

  41. S$13,924.46

  42. -

  43. S$198,625.50

  44. S$112,175.72

  45. Sub-total

  46. S$205,868.46

  47. S$18,103.30

  48. S$376,215.58

  49. S$465,001.34

  50. Total

  51. S$1,065,188.68

  52. [10] As noted at [8] above, the plaintiff relies on its own internal records to quantify its claims. These are documentary records extracted from “Axapta”, a computer software that the plaintiff uses to help keep track of equipment on hire and fees payable. These documents or records consist of hire return notes, delivery notes, hire tax invoices, tax invoices, credit notes, damage documents, and project movement and balances. I will refer to these documents collectively as the “Axapta Records”. In addition, the plaintiff relies on the expert report of Mr Colin A Williamson (“Mr Williamson”) to argue that the quantification of its claims has been verified as accurate and should therefore be accepted by the court.

  53. The defence

  54. [11] The defendant denies that it owes the plaintiff any outstanding fees. Its defence can broadly be divided into five prongs. First, the defendant challenges the authenticity of the Axapta Records. The defendant had, pursuant to O 27 r 4(2) of the Rules of Court (2014 Rev Ed) filed a notice of non-admission with regard to the authenticity of almost all of the Axapta Records that had been disclosed in the plaintiff’s List of Documents filed on 2 January 2020. More than 6,500 documents that form the bulk of the Axapta Records were objected to by the defendant on the grounds of authenticity. The defendant argues that the plaintiff failed to discharge its burden of proving the authenticity of the Axapta Records, and accordingly that the Axapta Records are inadmissible. Given that the plaintiff relies heavily on the Axapta Records to quantify and prove its claims, the defendant argues that there is no basis for the plaintiff’s claims to be allowed if the Axapta Records are not admitted into evidence.

  55. [12] Second, the defendant argues that in any case, the Axapta Records do not support the plaintiff’s quantification of its claims. In this regard, the defendant disputes the expert report produced by Mr Williamson, and instead urges the court to rely on the report of its expert, Mr Chin Pay Fah @ Chin Bay Fah (“Mr Chin”). Based on a review of the Axapta Records, Mr Chin concluded that the defendant had in fact paid more than what the plaintiff was owed. The defendant contends that therefore, it is not liable to pay any further sums to the plaintiff.

  56. [14] The fourth prong of the defendant’s case consists of miscellaneous defences that the defendant raises in response to specific categories of the plaintiff’s claims, or specific Projects. These miscellaneous defences comprise contentions that: (a) the plaintiff has double-counted certain items in the invoices it issued to the defendant; (b) the plaintiff reached settlement agreements with the defendant in respect of some claims; or (c) that the plaintiff is time-barred from pursuing some claims. Given that these defences pertain to specific parts of the plaintiff’s claims, I do not intend to set out these defences in detail at this juncture. Instead, I will address these defences in greater detail when I consider the merits of the plaintiff’s claims at [74]–[172] below.

  57. [15] The fifth and final prong of the defendant’s case is that there are implied terms in the One Canberra, Forestville, Sea Horizon and Twin Fountains Agreements that: (a) the equipment supplied would be fit for purpose and free from damage or defects; and (b) the equipment would be supplied within a reasonable time of between six and eight weeks from the date of the Agreement concerned. However, this defence was not canvassed or developed in the defendant’s closing submissions or reply submissions.

  58. The defendant’s counterclaims

  59. [16] The defendant’s counterclaims are as follows:

  60. (a) In respect of the One Canberra and Twin Fountains projects, the defendant claims that it carried out an assessment of lost or damaged equipment and prepared a final account summary at the plaintiff’s request. This allegedly resulted in the defendant incurring an administrative and management cost of S$15,000 per project, which it now claims from the plaintiff.

  61. (b) In respect of the Forestville project, the defendant claims that it overpaid the plaintiff by S$41,708.13, and that it is entitled to the return of this sum.

  62. (c) In respect of the Nassim Hill project, the defendant claims that as a result of the plaintiff’s delayed delivery of equipment, the defendant incurred a back charge of S$41,400, which the plaintiff (through its representative in Singapore at the time, Mr Noel Kennedy (“Mr Kennedy”)) agreed to indemnify the defendant for. In addition, the defendant claims that due to the plaintiff’s late delivery of minima plywood for this project, the defendant incurred a back charge from the main contractor Shimizu Corporation (“Shimizu”), amounting to S$71,300. The defendant also alleges that it had no choice but to use the existing plywood on site, which subsequently resulted in a further cost of S$10,000 to change the plywood.

  63. Issues to be determined

  64. [17] Based on the background facts summarised above, I consider that the following issues arise to be determined:

  65. (a) Has the plaintiff proven the authenticity of the Axapta Records (“Issue 1”)?

  66. (b) Are the parties bound by the terms contained in the five Agreements (“Issue 2”)?

  67. (c) Do the Agreements contain the implied terms contended for by the defendant (“Issue 3”)?

  68. (d) If Issues 1 and 2 are answered in the affirmative, do the Axapta Records and the other available evidence support the plaintiff’s claims (“Issue 4”)? In determining this issue, I will first address the expert reports produced by both sides, and then consider the evidence marshalled by the plaintiff in support of its claims together with the miscellaneous defences raised by the defendant (see [14] above).

  69. (e) Finally, is the defendant entitled to its counterclaims (“Issue 5”)?

  70. Issue 1: Has the plaintiff proven the authenticity of the Axapta Records?

  71. [18] As noted above at [11], the defendant argues that the plaintiff has not proven the authenticity of the Axapta Records. Where the authenticity of a document is disputed, the steps that a party needs to take to prove the authenticity of the disputed document were summarised by the Court of Appeal in CIMB Bank Bhd v World Fuel Services (Singapore) Pte Ltd and another appeal [2021] 1 SLR 1217 (“CIMB”) at [54] as follows:

  72. [19] In other words, the test for proving the authenticity of a document is twofold. The first step to proving authenticity is to adduce the original document for the inspection of the court, or if one of the exceptions under the Evidence Act (Cap 97, 1997 Rev Ed) (“EA”) applies, secondary evidence of the disputed document (eg, a copy of the document). The second step is to adduce evidence that the document is what it “purports to be”. With this framework in mind, I turn to the facts of the present case.

  73. Step 1: Has the plaintiff produced primary or secondary evidence of the Axapta Records?

  74. [21] In this regard, while the plaintiff has not expressly referred to s 67A of the EA, I note that this section provides as follows:

  75. [22] While it was not expressly submitted on by either side, it is clear to me that the Axapta Records (assuming their authenticity is proven) would be admissible by virtue of s 32(1)(b)(iv) of the EA, commonly known as the “business records exception” to the rule against hearsay. As noted above at [10], the Axapta Records comprise documents such as hire return notes, delivery notes and invoices pertaining to the five Projects. In my view, these are documents that clearly form part of the records of “a trade, business, profession or other occupation that are recorded, owned or kept by any person, body or organisation carrying out the trade, business, profession or other occupation”, within the meaning of s 32(1)(b)(iv) of the EA.

  76. [23] Where a statement in a document is admissible by virtue of one of the exceptions to the hearsay rule under s 32(1) of the EA, the net effect of s 67A of the EA is that the document may also be proven by way of secondary evidence, rather than primary evidence. Indeed, this is clear from the plain wording of s 67A itself, which states that in such situations, the relevant statement may be proven by “the production of a copy of that document … authenticated in a manner approved by the court” [emphasis added in bold italics]. The net effect of s 67A of the EA is also illustrated by the case of Columbia Asia Healthcare Sdn Bhd and another v Hong Hin Kit Edward and another [2016] 5 SLR 735 (“Columbia Asia”). In Columbia Asia, the defendants (“the Hongs”) argued that six invoices adduced by the plaintiffs were not admissible in evidence, as the plaintiffs had produced copies but not the originals. Woo Bih Li J (as he then was) held at [21]–[25]:

  77. [24] Separately, I note that there appears to be no discussion in local jurisprudence of what it means for a copy of a document admitted under s 67A of the EA to be “authenticated in a manner approved by the court”. Nonetheless, I am of the view that this phrase is not inconsistent with the test for proving authenticity set out in CIMB at [54], nor should it be read as an additional hurdle to proving authenticity. In my judgment, the phrase “authenticated in a manner approved by the court” simply confers a discretion upon the court to determine the appropriate level of rigour to which authenticity must be proved, based on the facts of the particular case before it. Accordingly, where a party seeks to admit a copy of a document under s 67A of the EA and there is no challenge to authenticity, the court may correspondingly require little or no proof of the authenticity of the copy. Conversely, where there is an objection to the authenticity of the copy, the court may require authenticity to be proven in accordance with the test laid down in CIMB.

  78. [25] In my view, such a reading would be consistent with the legislative history behind s 67A of the EA. Section 67A was introduced as part of amendments to the EA in 2012, under which more flexible exceptions to the hearsay rule were introduced: Singapore Parliamentary Debates, Official Report (14 February 2012) vol 88 at p 1128 (K Shanmugam, Minister for Law). It could therefore be argued that the enactment of s 67A was meant to complement the widening of the hearsay exceptions, by permitting documents containing hearsay statements to be proven by both primary and secondary evidence. Accordingly, the reference to a need for a copy of a document to be “authenticated in a manner approved by the court” should not, in my view, be read as imposing additional requirements, over and above the requirements in relation to proof of authenticity where no hearsay evidence is involved.

  79. [26] The long and short of the analysis above is that under s 67A of the EA, where a statement in a document is otherwise admissible under s 32(1) of the EA, the document in which the statement is contained may, if necessary, also be proved by secondary evidence thereof, for purposes of satisfying the first stage of the CIMB test. Turning back to the present case, given my finding above at [22] that the Axapta Records would otherwise be admissible under s 32(1)(b)(iv) of the EA, the plaintiff is also entitled to prove the Axapta Records by adducing copies thereof, which it did by way of the Affidavits of Evidence in Chief (“AEICs”) of two of its witnesses, Mr Wilfred Cuperus (“Mr Cuperus”) and Mr Adrian De Los Santos (“Mr De Los Santos”). As such, I find that the plaintiff has satisfied the first step of the CIMB test.

  80. [27] For completeness, I note that the plaintiff makes two arguments in support of why it has satisfied the first step of the test laid down in CIMB. First, the plaintiff argues that the defendant is wrong to complain that no “original” documents have been produced, because the Axapta Records are themselves primary evidence of their contents per Explanation 3 to s 64 of the EA. This provision states that:

  81. [28] Second, the plaintiff argues that even if the Axapta Records are secondary evidence, the plaintiff should be allowed to rely on the exception in s 67(1)(g) of the EA. This provision provides that:

  82. [29] Following from my conclusion above at [26] that the plaintiff has satisfied the first step of the CIMB test, it is not strictly necessary for me to consider the plaintiff’s arguments. Nonetheless, if necessary as an alternative basis for my decision, I am prepared to find that the plaintiff is also entitled to rely on s 67(1)(g) of the EA to prove the Axapta Records by way of secondary evidence.

  83. [30] The Axapta Records span 45 volumes in the Agreed Bundle of Documents and are well in excess of 6,000 documents. In my judgment, this is a case where the original documents would consist of “numerous accounts or other documents which cannot conveniently be examined in court”. Moreover, the facts to be proved (namely, the amounts of outstanding fees that the defendant owes the plaintiff) are essentially a general result of the Axapta Records. The plaintiff has also adduced evidence of the Axapta Records through Mr Cuperus and Mr De Los Santos (as noted at [26] above), who are both representatives of the plaintiff and are therefore acquainted with the Axapta software. I find that they are therefore persons skilled in the examination of the Axapta Records, within the meaning of s 67(5) of the EA.

  84. [31] In reaching this conclusion, I also bear in mind the observations of the Court of Appeal in Jet Holding Ltd and others v Cooper Cameron (Singapore) Pte Ltd and another and other appeals [2006] 3 SLR(R) 769 (“Jet Holdings”), that there should not be an “overly punctilious insistence” on compliance with the EA such that “a party has to rely upon thousands of documents to establish his or her case in complex litigation” (at [49]–[50]). In my view, given the sheer volume of the Axapta Records, the present case is one such case where requiring the plaintiff to produce primary evidence of the Axapta Records would simply be putting the plaintiff through an “unnecessary procedural treadmill” (Jet Holdings at [49]).

  85. [32] Therefore, if necessary for my decision, I would conclude that the plaintiff is also entitled to rely on s 67(1)(g) of the EA, such that the Axapta Records can be proven by secondary evidence.

  86. Step 2: Has the plaintiff proven that the Axapta Records are what they purport to be?

  87. [33] At the second stage of the CIMB test, the party tasked with proving authenticity must adduce proof relating to the “genuineness and execution” of the document, such as proof of the handwriting, signature and execution of the document (CIMB at [50]). As the defendant observes, this may be done by way of direct evidence, eg, calling the maker of the document as a witness. However, there is no rule that a party can only prove that a document is what it purports to be by adducing direct evidence. As the Court of Appeal held in CIMB at [57], the omission to adduce direct evidence where it is available is not necessarily fatal to proving a document’s authenticity. The impact of not adducing direct evidence depends on the facts of each case. Relevant but non-exhaustive factors will include the strength of the indirect or circumstantial evidence adduced, the reasons given by the relevant party for not adducing direct evidence, and the probative value of the direct evidence if it had been adduced.

  88. [34] This is illustrated by the facts of CIMB itself, which concerned a challenge to the authenticity of a debenture that the plaintiff (“CIMB”) sought to admit into evidence. CIMB did not call as witnesses any signatories or witnesses to the debenture, to attest that the debenture was what it purported to be. Nonetheless, the Court of Appeal found that there was sufficient circumstantial evidence to prove the authenticity of the debenture. In this regard, the Court of Appeal noted that: (a) the parties to the debenture had not disowned the debenture; (b) CIMB had, since the purported date of the debenture, operated on the belief that the debenture was validly executed; (c) it could be inferred that the debenture was registered with the Accounting and Corporate Regulatory Authority on the instructions of the defendant; and (d) the common seal of the defendant was affixed to the debenture (at [62]–[66]).

  89. [36] At trial, Mr De Los Santos described the process he undertook to compile the Axapta Records. He had first collected some original hard copy documents in Singapore. Mr De Los Santos then brought these hard copy documents to the Philippines, where he made a list of them. He then ran a search on the Axapta system, by looking at all documents relating to the defendant. He then cross-checked the list of hard copy documents against his search results and downloaded any records that he did not have a hard copy of. These downloaded files, combined with the hard copy documents, make up the Axapta Records.

  90. [37] It is undisputed that the plaintiff has not adduced any direct evidence that the Axapta Records are what they purport to be. For instance, the plaintiff did not call as witnesses the makers of the individual hire return notes, delivery notes, invoices and similar documents that make up the Axapta Records. Nonetheless, in my judgment, I find that the plaintiff has adduced sufficient circumstantial evidence to prove that the Axapta Records are what they purport to be.

  91. [39] Moreover, as noted above at [33], the impact of not adducing direct evidence will depend in part on the reasons given for not adducing direct evidence. Given the sheer volume of the Axapta Records, I accept the plaintiff’s submission that it would be extremely impractical, if not impossible, to call the maker of every document that forms part of the Axapta Records. In my view, while direct evidence will usually be the strongest evidence available of a document’s authenticity, the plaintiff’s failure to adduce direct evidence in the present circumstances cannot be the hamartia of its claim.

  92. [40] While the defendant contends that some of the delivery notes or hire return notes are unsigned or signed by third parties, and that there appear to be photos that are duplicates, I find that this does not take anything away from the overall complexion of the Axapta Records as genuine documents. I note that when Mr Williamson was cross-examined on these alleged irregularities, he explained that certain manual notes may be unsigned, as “the signature goes on the system-generated [note] instead”. In any case, I note that the defendant only identified and put five instances of such alleged irregularities to Mr Williamson in cross-examination. In my judgment, these must be considered as isolated instances when viewed against the entirety of the Axapta Records. For completeness, while the defendant also contends that there are irregularities in the amounts charged in invoices INS001442 and INS001466 , I will address this argument in detail at [76]–[78] below when I consider the plaintiff’s claim for hiring fees for the One Canberra project. For now, it suffices to say that I disagree with the defendant that there are errors in these invoices.

  93. [41] Finally, while the plaintiff makes much about the fact that the defendant has not produced its own records, this clearly does not relieve the plaintiff from its burden of proving the authenticity of the Axapta Records. Nonetheless, in my view, the absence of any alternative set of documentation that contradicts the contents of the Axapta Records bolsters the conclusion that the Axapta Records are authentic.

  94. [42] Accordingly, I find that the plaintiff has adduced sufficient circumstantial evidence to prove the authenticity of the Axapta Records. I therefore find that the Axapta Records are admissible and reject the first prong of the defendant’s defence.

  95. Issue 2: Are the parties bound by the terms contained in the five Agreements?

  96. [44] As a preliminary observation, I note that while the block price defence essentially challenges the rates that the plaintiff has charged the defendant, the defendant has not put forth any alternative calculations of the correct sums that it should allegedly have been charged by the plaintiff. As such, even if I were to accept the defendant’s block price defence, it is unclear exactly how much the defendant should have been charged by the plaintiff, and consequently whether or not there are any remaining sums owing by the defendant to the plaintiff. In other words, even if I were to accept the defendant’s case, it is unclear if the block price defence would constitute a full or partial defence to the plaintiff’s claims.

  97. [45] In any case, I find that on the available evidence, the defendant has not proven the block price defence on a balance of probabilities. As the defendant’s representatives signed the Agreements for the One Canberra, Forestville, Sea Horizon and Twin Fountains projects, but not the Nassim Hill project, I will address the former four projects first before turning to the Nassim Hill project.

  98. [46] In relation to the One Canberra, Forestville, Sea Horizon and Twin Fountains projects, it is a well-established principle that in the absence of fraud or misrepresentation, a party is bound by all the terms of a contract that it signs, even if that party did not read or understand those terms: Bintai Kindenko Pte Ltd v Samsung C&T Corp and another [2019] 2 SLR 295 at [58].

  99. [47] In the present case, the defendant does not dispute that Mr Choo signed the One Canberra, Forestville, Sea Horizon and First Twin Fountains Agreements, while the defendant’s sales manager, Mr Raymond Ng (“Mr Ng”), signed the Second Twin Fountains Agreement. In respect of the Agreements signed by Mr Choo, Mr Choo alleged that he did not agree to the terms contained in the Agreements (despite signing them), because he did not read through the respective Agreements before signing them. However, this clearly does not amount to fraud or misrepresentation. Nor has the defendant made any other allegation that it or its representatives were induced to sign the Agreements by any fraud or misrepresentation. Accordingly, it follows that the defendant is bound by the terms contained in the One Canberra, Forestville, Sea Horizon and Twin Fountains Agreements.

  100. [48] Moreover, it is an equally well-established principle of law that if a court is satisfied that the parties intended to embody their entire agreement in a written contract, then no extrinsic evidence is admissible to contradict, vary, add to, or subtract from the terms of the written contract: Zurich Insurance (Singapore) Pte Ltd v B-Gold Interior Design & Construction Pte Ltd [2008] 3 SLR(R) 1029 (“Zurich Insurance”) at [132(b)].

  101. [49] In my judgment, I am satisfied that the parties in the present case did intend for the One Canberra, Forestville, Sea Horizon and Twin Fountains Agreements to embody all the terms of their contractual agreements for the respective Projects. First, I find that these four Agreements appear on their face to be complete contracts, such that it may be rebuttably presumed that the parties intended the contracts to contain all the terms of their agreement: Zurich Insurance at [132(b)]. In this regard, I note that each of the Agreements comprehensively sets out all the material terms on which the plaintiff would supply equipment to the defendant, such as the types and quantities of equipment to be hired, the quoted price (subject to actual quantities required), the terms of payment, and the rates to be charged for lost or damaged equipment. Crucially, there is nothing in any of the Agreements to suggest that the parties would need to enter into a separate agreement to supplement or vary the terms of the written Agreements. In my view, these four Agreements therefore constitute complete contracts on their face.

  102. [51] In short, none of the available evidence rebuts the presumption that the One Canberra, Forestville, Sea Horizon and Twin Fountains Agreements are complete contracts. Following from my observations at [48] above, the defendant is therefore not entitled to rely on extrinsic evidence to argue that Mr Tan and Mr Choo had reached a separate agreement, which would vary or contradict the terms of the Agreements.

  103. [52] In any event, even if the defendant was entitled to rely extrinsic evidence to vary the terms of the Agreements, the defendant has raised little objective or contemporaneous evidence to corroborate its claim that the parties entered into any such separate agreement. In support of its case, the defendant refers to an e-mail sent by Mr Tan to Mr Choo on 27 June 2013 in respect of the One Canberra project (the “27 June 2013 e-mail”). In my judgment, the 27 June 2013 e-mail does not support the block price defence. For ease of reference, the 27 June 2013 e-mail states:

  104. [53] In cross-examination, Mr Choo claimed that the figure of S$504,874.15 referred to in the 27 June 2013 e-mail was derived by multiplying the fixed weekly rate (ie, the “block price”) that the parties had allegedly agreed upon, by the period of time that the defendant required equipment for. I find this claim to be improbable, given that the text of the e-mail itself shows that the plaintiff was informing the defendant that the “lump sum” price of S$504,874.15 did not include the supply of additional equipment in the form of “infill accessories”. This itself is inconsistent with the defendant’s claim that the parties had agreed on a fixed weekly hire rate, no matter what equipment was hired from the plaintiff. In addition, I agree with the plaintiff that “the lump sum of S$504,874.15 quoted” is a reference to the overall price the plaintiff had quoted in the One Canberra Agreement. It is expressly stated in the One Canberra Agreement that the quotation of S$504,874.15 is “subject to actual delivered quantities and unit rates”. Accordingly, it is clear that the figure of S$504,874.15 was not derived from an alleged “block price”, and that the parties had instead agreed that the defendant would be charged based on actual quantities delivered to it. In the round, the 27 June 2013 e-mail in fact undermines the defendant’s block price defence.

  105. [54] Separately, I note that Mr Choo claimed in cross-examination that the invoices issued by the plaintiff were consistent with a “block price” being used, as the weekly rate in the plaintiff’s invoices matches the weekly rate contained in the Agreements. In my view, this is at best a neutral factor, rather than a factor in the defendant’s favour. As Mr Choo subsequently conceded, there is nothing in the Agreements to suggest that the quoted weekly rate would be a fixed rate. On the contrary, the Agreements expressly state that the quoted weekly hire rate “may vary slightly depending on actual quantities required and actual site conditions”. As such, even if the plaintiff ultimately charged the defendant the same weekly rates as those quoted in the Agreements, this alone does not prove that the parties had agreed that the quoted weekly hire rate would be a fixed rate.

  106. [55] Moreover, although Mr Choo claimed in his AEIC that both the plaintiff’s Mr Tan and RMD Kwikform’s Regional Director, Mr Hamish Bowden (“Mr Bowden”) were aware of the agreement to use a “block price”, the defendant did not seek to call either Mr Tan or Mr Bowden as its witness. Mr Choo’s claim that the parties had agreed to use a “block price” was therefore an uncorroborated assertion.

  107. [56] Finally, the defendant relies on the fact that in a letter of demand from the plaintiff’s solicitors dated 3 May 2017, as well as in an earlier version of the Statement of Claim (Amendment No. 2) (the “Statement of Claim”), the plaintiff had claimed shortage and damage fees on the basis of the actual loss or damage caused. However, I do not agree that this necessarily proves that the parties had expressly agreed that the defendant would be charged on this basis. In cross-examination, the plaintiff’s company representative, Mr Cuperus, explained that this error arose because some of the invoice summaries were prepared on the basis of actual loss or damage caused, “in [an] endeavour to appease the customer to try and reach a settlement”. In my view, this explanation is reasonable and plausible. Accordingly, while the plaintiff initially advanced its claim on the basis of actual loss or damage caused, I do not think this fact alone is sufficient to prove the block price defence.

  108. [57] I now turn to consider the Nassim Hill project. While the defendant’s representatives did not sign the quotations issued for the Nassim Hill project, I find that on a balance of probabilities, the parties did intend for the Nassim Hill Agreement to reflect the terms of their agreement. In reaching this conclusion, I consider it relevant that both the plaintiff and defendant are commercial parties. As noted at [2]–[3] above, the plaintiff is part of a group of companies with an international presence, while the defendant has been in the business of erecting scaffolding systems since 2002. Mr Choo, the managing director of the defendant, also came across as reasonably articulate in his testimony, and is an experienced businessman in the construction industry. Against this backdrop, I accept the plaintiff’s submission that it is improbable that the parties were content to enter a contractual relationship solely based on an oral agreement reached between Mr Tan and Mr Choo. This is especially so when: (a) the Nassim Hill project was the first collaboration between the parties; and (b) the alleged oral agreement contradicted the terms of the written quotation issued by the plaintiff.

  109. [58] Moreover, given my conclusion at [47] above that the other four Agreements reflected the terms of the contracts for those Projects, I find that on a balance of probabilities, the parties similarly intended for the Nassim Hill Agreement to reflect the terms of their contractual relationship. In any case, the defendant has not, in my view, adduced sufficient evidence to prove that a separate agreement was reached between Mr Tan and Mr Choo, for the reasons that I have detailed at [52]–[56] above. In my judgment, the Nassim Hill Agreement does reflect all the terms of the parties’ contractual relationship for the Nassim Hill project, and the parties are accordingly bound by the terms contained therein.

  110. Issue 3: Do the Agreements contain the implied terms asserted by the defendant?

  111. [60] As noted above at [15], part of the defendant’s pleaded case is that the One Canberra, Forestville, Sea Horizon and Twin Fountains Agreements contain implied terms that:

  112. While this argument was not pursued in the defendant’s closing submissions, I will address it for completeness.

  113. [61] In my judgment, there is no basis on which the Proposed Terms can be implied into the four Agreements. It is well established that in determining whether to imply a term into a contract, the court will apply the three-step test in Sembcorp Marine Ltd v PPL Holdings Pte Ltd and another and another appeal [2013] 4 SLR 193 (“Sembcorp Marine”), as follows:

  114. (a) First, the court will ascertain if there is a gap in the contract and if so, how the gap arose. Implication will only be considered if the court finds that the gap arose because the parties did not contemplate the gap in the contract (at [94]–[95] and [101(a)]).

  115. (b) Second, the court will consider if it is necessary in the business or commercial sense to imply a term to give the contract efficacy. The threshold for implying a term is therefore necessarily a high one (at [100] and [101(b)]).

  116. (c) Third, the court considers the specific term to be implied. This must be a term which the parties, having regard to the need for business efficacy, would have responded “Oh, of course!” had the proposed term been put to them at the time of the contract. If it is not possible to find such a clear response, then, the gap persists and the consequences of that gap ensue (at [101(c)]).

  117. [62] In the present case, cl 21(f) of the Conditions of Trading annexed to each of the Agreements provides as follows:

  118. [63] Further, cl 9 of the Conditions of Trading provides as follows:

  119. [64] While it appears that cl 21(f) of the Conditions of Trading (as reproduced above) is incomplete, it is nonetheless clear that the substance of both cll 21(f) and 9 is that the plaintiff will not incur liability if any equipment delivered is not fit for purpose, or delivery is delayed. In other words, cll 21(f) and 9 stand in direct contradiction to the Proposed Terms. Accordingly, it cannot be said that there is even a gap in the contract to begin with. As the plaintiff contends, the defendant’s argument therefore fails at the first step of the Sembcorp Marine test.

  120. [65] I therefore decline to imply the Proposed Terms into the four Agreements, as the defendant urges me to. In any case, I also note that the defendant has not explained or particularised how the Proposed Terms, if implied into the four Agreements, would help its case or how the plaintiff has breached these terms.

  121. Issue 4: Is the plaintiff entitled to its claims?

  122. [66] I now turn to consider the merits of the plaintiff’s claims, based on the available evidence. As noted at [10] and [12] above, the plaintiff relies on the expert report of Mr Williamson, while the defendant relies on the report of Mr Chin. Each party claims that their respective expert report represents an objective and reliable assessment of the plaintiff’s claims. I will therefore first address the expert reports.

  123. The expert reports

  124. [67] In my judgment, I do not find either of the expert reports to be particularly helpful in determining the merits of the plaintiff’s claims. I shall first comment on Mr Chin’s report.

  125. [68] Firstly, the calculations in Mr Chin’s report appear to contain errors. As Mr Chin himself conceded in cross-examination, he failed to exclude certain hire return notes, which were in fact summaries of items that had already been returned by the defendant to the plaintiff. This resulted in Mr Chin double-counting certain items that the defendant returned to the plaintiff. While Mr Chin, as a third party, may naturally have been unfamiliar with the plaintiff’s internal documents, it appears that his failure to seek any clarification from the plaintiff regarding the Axapta Records led to him misunderstanding the plaintiff’s internal documents. Indeed, Mr Chin candidly admitted in cross-examination that he did not fully understand some of the plaintiff’s internal documents.

  126. [69] I also find Mr Chin’s overall conclusion improbable, given that he ultimately concluded that it was the plaintiff who owed the defendant at least S$1,759.19 (or a far higher sum of approximately S$2.38m if allegedly excess equipment returned to the plaintiff was taken into consideration), in circumstances where it was the plaintiff who had hired out equipment to the defendant to begin with. I accept the plaintiff’s submission that the improbability of Mr Chin’s overall conclusion is likely symptomatic of errors that Mr Chin made in his calculations. This calls into question the reliability of Mr Chin’s assessment and conclusions.

  127. [70] Moreover, I note that Mr Chin’s assessment also appears to be based on certain assumptions which may not reflect what the parties had agreed. For instance, in assessing the value of the plaintiff’s claim for damage fees, Mr Chin excluded damaged plywood altogether from his assessment, on the basis that plywood is a “perishable material” and should be deemed as “fair wear and tear”. However, as Mr Chin conceded in cross-examination, this was purely his own opinion; there was no correspondence between the parties to suggest that they had agreed that the defendant would not be charged for damaged plywood.

  128. [71] In the circumstances, I disagree with the defendant that Mr Chin’s report can be considered to be a reliable assessment of the plaintiff’s claims.

  129. [72] On the other hand, I also find Mr Williamson’s report to be of limited assistance in assessing the plaintiff’s claims. The key conclusion of Mr Williamson’s report is that based on his review of various documents provided to him by the plaintiff, he is of the opinion that the plaintiff’s claims are “fully supported” by the relevant documentation. However, I agree with the defendant that it is not entirely clear what documents were provided to Mr Williamson for the purposes of his report. In this regard, Mr Williamson’s report does not contain an itemised list of documents that he referred to, nor has the plaintiff provided any such list. Likewise, when Mr Williamson was shown the list of hire return notes for the One Canberra project that was annexed to his report, his evidence in cross-examination was that he had also viewed “additional documents” that were not included in the list. It was not subsequently clarified what these “additional documents” were.

  130. [73] In the circumstances, the reliability of Mr Williamson’s report is also doubtful, and his report offers, at best, limited support for the plaintiff’s claim. In my judgment, the merits of the plaintiff’s claim ultimately turn on the quality of the factual evidence adduced (both oral and documentary), and not on the opinions of either expert witness, upon which I place little weight. I therefore turn to consider whether the plaintiff is entitled to its claims, based on the available factual evidence.

  131. The One Canberra project

  132. Hiring fees

  133. [74] The plaintiff claims that the defendant incurred S$656,425.85 of invoiced hiring fees, plus S$14,441.22 of hiring fees that were not invoiced. The plaintiff does not dispute that the defendant has made payment of S$654,034.59. Accordingly, the plaintiff claims that it is entitled to an outstanding sum of S$16,832.48.

  134. [75] In my judgment, I find that the plaintiff has established its claim in respect of the invoiced hiring fees. In the absence of any alternative records or documents from the defendant, I find that the Axapta Records are sufficient to prove the plaintiff’s claim for invoiced hiring fees.

  135. [76] In this regard, I disagree with the defendant’s contention that the amounts claimed by the plaintiff in respect of invoices INS001442 and INS001466 are incorrect. In support of its contention, the defendant refers to two invoices also numbered INS001442 and INS001466, which reflect amounts different than what is claimed in the Statement of Claim. For ease of reference, the amounts relied on by either party are as follows:

  136. Invoice number

  137. Amount claimed by the plaintiff (excluding GST)

  138. Amount relied on by the defendant (excluding GST)

  139. INS001442

  140. S$6,049.02

  141. S$4,951.08

  142. INS001466

  143. S$5,229.86

  144. S$4,550.09

  145. [77] However, I note that the plaintiff’s summary of invoices in the Statement of Claim also contains two subsequent credit note adjustments, namely CRS000348 and CRS000350, for the sums of S$1,097.94 and S$679.77 respectively. If these sums are subtracted from the sums claimed by the plaintiff for INS001442 and INS001466, the net figures arrived at are the same amounts relied upon by the defendant:

  146. (a) INS001442: S$6,049.02 – S$1,097.94 = S$4,951.08.

  147. (b) INS001466: S$5,229.86 – S$679.77 = S$4,550.09.

  148. [78] Accordingly, I am satisfied that the sums claimed by the plaintiff in respect of INS001442 and INS001466 do not give rise to an overall error in the sum of hiring fees claimed.

  149. [79] Separately, the defendant also alleges that the plaintiff has claimed an erroneous amount in respect of invoices INS000883 and INS000920. To begin with, I note that this alleged error was not put to any of the plaintiff’s witnesses in cross-examination, and was only raised for the first time in the defendant’s closing submissions. In any case, I note that the amounts claimed by the plaintiff for INS000883 and INS000920 were likewise adjusted by subsequent credit notes. Accordingly, I am of the view that there is no error in the amount claimed by the plaintiff:

  150. Invoice number

  151. Amount claimed by the plaintiff (excluding GST)

  152. Amount relied on by the defendant (excluding GST)

  153. INS000883

  154. S$39,290.75

  155. minus S$1,892.71 (per credit note CRS000168 )

  156. = S$37,398.04

  157. S$37,398.04

  158. INS000920

  159. S$39,290.75

  160. minus S$1,892.71 (per credit note CRS000169 )

  161. = S$37,398.04

  162. S$37,398.04

  163. [80] As for the plaintiff’s claim for hiring fees that were not invoiced, I find that the plaintiff has not established its claim on a balance of probabilities. While Mr Cuperus claims that these additional fees were the result of a negotiation between Mr Bowden and Mr Choo, the plaintiff has not adduced any correspondence or documentary evidence to corroborate this claim. Indeed, Mr Cuperus ultimately conceded in cross-examination that there is no basis for the plaintiff’s claim for the hiring fees that were not invoiced. I therefore dismiss the plaintiff’s claim in this respect.

  164. [81] In sum, I allow the plaintiff’s claim for hiring fees for the One Canberra project in part, in the sum of S$2,391.26 (S$16,832.48 – S$14,441.22).

  165. Purchase fees

  166. [82] The plaintiff claims that the defendant purchased equipment in the sum of S$1,878.68, for which the defendant has not made any payment.

  167. [83] In my judgment, I find that based on the available evidence, the plaintiff has not proven its claim on a balance of probabilities. While Mr Cuperus stated in his AEIC that the tax invoices evidencing the defendant’s purchases are annexed to Mr De Los Santos’s AEIC, it is unclear exactly which invoices Mr Cuperus was referring to. In this regard, I note that the Further and Better Particulars to the Statement of Claim contains a list of items that the defendant allegedly purchased from the plaintiff, and the corresponding delivery note number for each item. However, this list contains far more items than the list of purchases that the plaintiff claims in the Statement of Claim. Neither does the Statement of Claim make reference to any specific invoices. In the circumstances, it is unclear which invoices (or delivery notes) the plaintiff relies on to support its claim.

  168. [84] Further, while Mr Cuperus asserted in his AEIC that the defendant’s purchases are also evidenced by an e-mail sent by Mr Tan to the defendant’s staff in July 2014, the quantities of equipment reflected in this e-mail are far less than what the plaintiff claims it sold to the defendant. In any case, the text of the e-mail does not show that equipment was indeed sold or delivered to the defendant, as the e-mail relates to a planned delivery of equipment to the defendant.

  169. [85] Indeed, I note that in a letter dated 20 April 2016 from Mr Bowden to Mr Choo (“the 20 April 2016 letter”), Mr Bowden admitted that there was a “lack of available substantiation from either [the defendant] or [the plaintiff]” in relation to the items allegedly sold by the plaintiff to the defendant for the One Canberra project. That said, this letter was not referred to by either party in the course of these proceedings, and no evidence has been adduced as to its provenance. In particular, Mr Bowden was not called as a witness. As such, notwithstanding the apparent concession from Mr Bowden in the 20 April 2016 letter, I do not place much weight on this letter in my overall analysis.

  170. [86] Nonetheless, weighing the totality of the evidence detailed above at [83]–[84], I find that the plaintiff has not established its claim for S$1,878.68 of purchase fees for the One Canberra project on a balance of probabilities. I therefore dismiss this claim.

  171. Shortage and damage fees

  172. [87] In respect of the plaintiff’s claim for shortage fees, the plaintiff claims that it is entitled to S$129,266.29 for equipment lost by the defendant. The plaintiff does not dispute that the defendant has made payment of S$49,210.38, and therefore claims the outstanding sum of S$80,055.91.

  173. [88] In respect of the plaintiff’s claim for damage fees, the plaintiff claims it is entitled to S$74,850.09 for equipment returned DR and S$68,392.66 for equipment returned DBR. The plaintiff does not dispute that the defendant has made payment of S$53,962.52, and therefore claims the outstanding sum of S$89,280.23.

  174. [89] The defendant’s case is that the parties had reached a settlement agreement on several of the plaintiff’s claims, including the claims for shortage and damage fees for the One Canberra project. The defendant claims that this settlement agreement is reflected in an e-mail sent by Mr Choo to the plaintiff’s Country Manager, Mr Graham Hartland (“Mr Hartland”), on 13 December 2015 (the “13 December 2015 e-mail”). For ease of reference, the 13 December 2015 e-mail states:

  175. [90] In response, the plaintiff claims that the 13 December 2015 e-mail shows that the parties were still in the midst of negotiations, instead of having concluded precise figures for a settlement.

  176. [91] In my judgment, I accept the defendant’s contention that the parties had reached a settlement agreement, as reflected in the 13 December 2015 e-mail. First, I disagree with the plaintiff that the language of the 13 December 2015 e-mail suggests that negotiations were still ongoing; it is clear from the wording of the e-mail that the parties had “agreed” on specific sums to be paid by the defendant to the plaintiff. In any case, I note that following the 13 December 2015 e-mail, Mr Bowden sent another e-mail to Mr Choo on 21 December 2015, stating as follows:

  177. [92] The figure of S$188,000 referenced by Mr Bowden closely matches the total sum of payments agreed upon by the parties in the 13 December 2015 e-mail (S$40,000 + S$46,011.04 + S$50,568.67 + S$51,701.91 = S$188,281.62). In my view, this is further proof that the parties had agreed that the defendant would pay the sums stated in the 13 December 2015 e-mail to the plaintiff. Given that the parties were discussing the issuance of invoices and collection of a cheque, it is clear that the parties had agreed on the sums to be paid and were not simply in the midst of negotiations.

  178. [93] While Mr Bowden refers to these payments as “partial/progress payment[s]”, I do not think that this undermines the defendant’s case that a settlement agreement was reached. As I detail below, the weight of the remaining evidence shows that the parties had reached a final settlement of the plaintiff’s claims. In any case, I note that it was not part of the case advanced by the plaintiff that the agreement reflected in the 13 December 2015 e-mail was only a partial settlement of the plaintiff’s claims. Neither did the plaintiff call Mr Bowden or Mr Hartland as its witnesses, to rebut Mr Choo’s testimony that a final settlement had been reached per the 13 December 2015 e-mail. In the circumstances, I do not read Mr Bowden’s e-mail of 21 December 2015 to mean that the parties had only reached a partial settlement of the plaintiff’s claims.

  179. [94] Following Mr Bowden’s e-mail on 21 December 2015, the plaintiff issued an invoice to the defendant on 23 December 2015, for the shortage and damage fees for the One Canberra project (“the 23 December 2015 invoice”). This invoice reflected the amounts stated in the 13 December 2015 e-mail. Based on the available documentary evidence, the 23 December 2015 invoice appears to have been the last invoice issued by the plaintiff in respect of the One Canberra project. In my view, this is consistent with the defendant’s contention that the parties had reached a final settlement on the plaintiff’s claims for shortage and damage fees.

  180. [95] Crucially, the plaintiff has also not pointed to any other correspondence between the parties to suggest that the 23 December 2015 invoice was anything other than a final settlement of the plaintiff’s claims. While Mr Cuperus alleged in cross-examination that the amounts stated by Mr Choo in the 13 December 2015 e-mail were contested in a subsequent e-mail from the plaintiff, he was not able to identify this e-mail.

  181. [96] That being said, I note that, in fairness to the plaintiff, in the 20 April 2016 letter, Mr Bowden purports to claim S$61,000 in outstanding shortage fees and S$82,000 in outstanding damage fees, in respect of the One Canberra project. However, as noted at [85] above, this letter was not referred to by either party at trial or in their respective closing submissions, nor was any evidence adduced as to the provenance of the letter or the context in which it was sent. In the circumstances, I decline to place any significant weight on the 20 April 2016 letter.

  182. [97] For completeness, I also note that the plaintiff argues that Mr Hartland had no authority to enter into a settlement agreement with the defendant. Instead, the plaintiff contends that based on the authority matrix of RMD Kwikform at the material time, the requisite authority lay with Mr Bowden and RMD Kwikform’s Divisional Operations Director, Mr Ian Hayes. However, as Mr Cuperus conceded in cross-examination, the fact that invoices were issued by the plaintiff pursuant to the 13 December 2015 e-mail indicates that Mr Hartland had gone through the requisite internal processes of the plaintiff. In any case, as noted at [91] above, Mr Bowden followed up on the settlement agreement entered into by Mr Hartland and Mr Choo. This meant that irrespective of any purported lack of authority on the part of Mr Hartland, his acts were likely to have been ratified in any event by Mr Bowden.

  183. [98] I therefore find that the parties had reached a final settlement in respect of the plaintiff’s claims for shortage and damages fees, as reflected in the 13 December 2015 e-mail. Pursuant to this settlement agreement, the defendant duly made payment of S$103,340.29 (being S$50,568.67 + S$46,011.04 plus GST of 7%). Accordingly, there is no basis on which the plaintiff is entitled to further sums from the defendant and I dismiss these claims.

  184. [99] In any case, and if I am wrong that a settlement agreement was reached between the parties in respect of the One Canberra project, I note that the plaintiff has put forth various sets of figures that it is allegedly entitled to in respect of its claims for shortage and damage fees. While the Statement of Claim states that the plaintiff is entitled to an outstanding sum of S$80,055.91 in shortage fees and an outstanding sum of S$89,280.23 in damage fees for the One Canberra project, the 20 April 2016 letter states that the plaintiff is entitled to a balance sum of S$61,000 (after applying a 5% discount) in shortage fees and S$82,000 in damage fees. These figures are also inconsistent with a letter of demand from the plaintiff’s solicitors dated 3 May 2017, wherein the plaintiff claims S$18,000 in shortage fees and S$55,000 in damage fees. The plaintiff has not provided any explanation for these significantly different sets of figures, or for the disparity between the amounts claimed in the Statement of Claim and in the contemporaneous evidence. As such, if necessary as an alternative basis for my decision, I find that even if no settlement agreement was reached in respect of the shortage and damage fees, the plaintiff has not proven its claim on a balance of probabilities. I would therefore also dismiss the plaintiff’s claims for shortage and damage fees on this basis.

  185. The Forestville project

  186. Hiring fees

  187. [100] The plaintiff claims that the defendant incurred hiring fees of S$787,415.68. The plaintiff does not dispute that the defendant made payment of S$696,145.48 and claims the outstanding sum of S$91,270.20.

  188. [101] The defendant contends that it has been overcharged by the plaintiff, as the plaintiff erroneously double-counted Airodek equipment supplied to the defendant. The defendant alleges that in October 2014, Airodek equipment was moved from the car park area to the main block area of Blocks 40, 42, 46 and 48 of the Forestville project. However, the plaintiff continued to charge the defendant for Airodek equipment in the car park area, in addition to charging the defendant for Airodek equipment in the main block area. The defendant claims that it has therefore overpaid the plaintiff by S$71,742.06 as a result.

  189. [103] The defendant contends that after setting off the amounts it has paid to the plaintiff against the amounts owed to it by the plaintiff, the defendant has in fact overpaid the plaintiff by S$41,708.13:

  190. Hiring fees incurred

  191. S$787,415.68

  192. Less hiring fees paid by defendant

  193. -S$696,145.48

  194. Less overpayments for alleged double-counting of Airodek equipment

  195. -S$71,742.06

  196. Less waived charges for Wallform equipment

  197. -S$81,704.70

  198. Add cost of modifying Wallform equipment

  199. S$20,468.43

  200. TOTAL

  201. -S$41,708.13

  202. The above also forms the basis of the defendant’s counterclaim for S$41,708.13 (see [16(b)] above).

  203. [104] In my judgment, I find that the plaintiff has established its claim on a balance of probabilities. First, in the absence of any alternative records or documents from the defendant, the Axapta Records are sufficient to prove the plaintiff’s claim for hiring fees.

  204. [105] Second, I do not accept the defendant’s contention that it has been double-charged for the supply of Airodek equipment. As Mr Cuperus explained in re-examination, the plaintiff’s Axapta system tracks equipment based on whether it is on hire, and not based on where it is deployed (eg, the car park area versus the main block area). Accordingly, even if the defendant had shifted some Airodek equipment from the car park area to the main block area, this would not result in the defendant being double-charged for the same equipment. Moreover, Mr Cuperus further explained that there may sometimes be errors in the way that charges are separated across blocks in invoices issued by the plaintiff, as the system relies on the plaintiff’s staff manually separating the hire charges into the various blocks. In my view, this is a possible explanation for why it appears that the defendant continued to be charged for equipment in the car park area, despite its claim that it had moved the Airodek equipment to the main blocks. Crucially however, this does not mean that the overall hiring fees that the defendant was charged were erroneous.

  205. [106] Likewise, I reject the defendant’s argument that the parties had agreed to omit charges for the Wallform equipment. In my view, the e-mail correspondence between the parties shows that the plaintiff had at most offered to waive charges for the Wallform equipment for certain months, but that ultimately the parties were still in negotiations over how much the defendant should be charged for the Wallform equipment.

  206. [107] On 5 December 2014, the plaintiff’s commercial manager, Ms Lynna Young (“Ms Young”), e-mailed the defendant’s Mr Ng stating as follows:

  207. [108] Contrary to the defendant’s pleaded case that an agreement had been reached in July 2014 to waive all charges for the Wallform equipment, it is clear from Ms Young’s e-mail above that the plaintiff was only offering to waive charges for the Wallform equipment in relation to specific months. In addition, when Ms Young e-mailed the defendant on 30 December 2014 attaching the invoice for the month of December 2014, I note that the invoice included charges for the Wallform equipment for the month of December. In my view, this goes to show that the parties did not agree that all charges for the Wallform equipment would be waived.

  208. [109] In any case, even if the plaintiff had offered to waive some of the charges for the Wallform equipment, the plaintiff subsequently rescinded this offer through Ms Young’s e-mail of 9 January 2015. In her e-mail, Ms Young informed the defendant that the plaintiff had “under billed” for the Wallform equipment, as the minimum hire period under the Forestville Agreement was 6.5 months. Accordingly, Ms Young informed the defendant that the plaintiff would be issuing an additional hire invoice. On 13 January 2015, Mr Ng replied to disagree that the defendant should be liable for 6.5 months of hiring fees.

  209. [110] In my view, it is clear that the parties were in disagreement over whether the defendant should be charged for the Wallform equipment. This, taken with my finding at [105] above, leads me to conclude that the defendant has not established its defence to the plaintiff’s claim for hiring fees. I therefore allow the plaintiff’s claim for S$91,270.20 in outstanding hiring fees.

  210. Purchase fees

  211. [111] The plaintiff claims that the defendant has incurred purchase fees of S$15,366.98, for which it has not made any payment.

  212. [112] In my judgment, the plaintiff has not proven its claim on a balance of probabilities, for reasons similar to those at [83] above. Similar to the plaintiff’s claim for purchase fees for the One Canberra project, the plaintiff has not identified which documents in the Axapta Records support its claim for purchase fees for the Forestville project. While the Further and Better Particulars to the Statement of Claim lists out items allegedly purchased by the defendant from the plaintiff, the items in this list exceed what is stated in the Statement of Claim. There is also no reference to any specific invoices or documents that may support the plaintiff’s claim for purchase fees, in the Statement of Claim or the plaintiff’s closing submissions.

  213. [113] Accordingly, I find that the plaintiff has not proven its claim on a balance of probabilities and dismiss the plaintiff’s claim for purchase fees in respect of the Forestville project.

  214. Shortage fees

  215. [114] The plaintiff claims that the defendant has incurred S$60,818.29 in shortage fees. The plaintiff does not dispute that the defendant has made payment of S$51,701.92, and accordingly claims the outstanding sum of S$9,116.37.

  216. [115] The defendant’s case is that the parties had reached a settlement agreement as reflected in the 13 December 2015 e-mail, under which the defendant would pay the plaintiff S$51,701.92 in settlement of the plaintiff’s claim for shortage fees.

  217. [116] For reasons similar to those detailed at [91]–[93] and [95] above, I find that the parties did reach a settlement agreement in respect of the plaintiff’s claim for shortage fees. Based on the available evidence, it appears that the plaintiff did not issue an invoice to the defendant in respect of the Forestville project following the 13 December 2015 e-mail. Nonetheless, I note that the defendant made payment of S$51,701.92 to the plaintiff on 23 December 2015. On the other hand, the plaintiff has not pointed to any contemporaneous evidence to suggest that the parties did not reach a compromise agreement. For completeness, while the settlement sum stated in the 13 December 2015 e-mail is slightly different from the sum that the defendant paid to the plaintiff (a one cent difference of S$51,701.91 versus S$51,701.92), this difference is de minimis and immaterial to my decision.

  218. [117] I therefore find that on a balance of probabilities, the parties did reach a binding settlement agreement in respect of the plaintiff's claim for shortage fees as evidenced by the 13 December 2015 e-mail. Given that it is not disputed that the defendant paid an amount equivalent to the settlement sum, there is no basis for the plaintiff’s claim, and I dismiss this claim accordingly.

  219. Damage fees

  220. [118] The plaintiff claims that it is entitled to S$87,918.60 for equipment returned DR and S$15,113.64 for equipment returned DBR. The plaintiff claims that the defendant has not made any payment to date, and therefore claims the outstanding sum of S$103,032.24.

The judgment continues past this page. Read the rest at eLitigation.