Stuttgart Auto Pte Ltd v Ng Shwu Yong

Kan Ting Chiu J:

[1] This is an exceptional case arising out of rather unexceptional beginnings. A car was damaged in a road accident, after which it was towed to a workshop for repairs. Then matters became contentious. No repairs were done for five years while the car owner and the workshop argued over the conditions for the repairs. The workshop asked the owner to remove the car and even had the car towed back to the owner’s residence, but the owner refused to take it, and the car was brought back to the workshop. The workshop took action to compel the owner to remove the car from the workshop, and the owner filed a counterclaim for loss arising from the deterioration of the car and the loss of use of it.

[2] The plaintiff, Stuttgart Auto Pte Ltd, the agent for Porsche cars, was the workshop in question. The car was a Porsche 964, registration number SBY8919S (“the car”). The defendant, Dr Ng Shwu Yong, was the registered owner of the car. However, she left her husband, Mr Dennis Chee Boon Keng (“Chee”), to deal with the repairs and the workshop.

[4] The action was filed by the plaintiff in the District Court in April 2000. In the Statement of Claim, the plaintiff alleged that the defendant had not given the necessary authorisation to carry out the repairs,[1] and had refused to remove the car. The plaintiff sought an order that it be allowed to tow the car to the defendant’s residence, and it sought to recover towing and storage charges from her.

[5] The defendant filed her defence on 9 May 2000, and amended it two and a half years later on 28 September 2002 to make a counterclaim. The size of the counterclaim caused the action to be transferred to the High Court.

[6] In the Amended Defence and Counterclaim, the defendant denied that she had not authorised the repairs and asserted that:

(a) She had instructed the plaintiff verbally through Chee to proceed with the repairs;

(b) She had confirmed those instructions in writing; and

(c) When she deposited $60,000 with the plaintiff’s solicitors, that was confirmation that she wanted the car to be repaired by the plaintiff.[2]

[7] In the Counterclaim, the defendant alleged that:

(b) The plaintiff had refused to send the car to Germany to be repaired by the manufacturers, and she was unable to send the car to Germany herself without the plaintiff’s clearance in writing.[4] (The defendant led no evidence to support these allegations);

(c) On 28 August 1998, the plaintiff had issued a quotation for the repair of the car. The defendant had accepted it “subject to surveyors [sic] approval” and had instructed the plaintiff to proceed with the repairs, but the plaintiff did not do so;[5]

(d) On 11 May 2000, the defendant wrote to the plaintiff’s solicitors, M/s Colin Ng & Partners (“CNP”), to authorise the plaintiff to commence repairs and paid a deposit of $60,000,[6] and

(e) On 11 July 2000, the plaintiff sent another estimate for the cost of repairs. The defendant instructed the plaintiff to commence repairs. When the plaintiff requested the estimate to be signed, she faxed that to the plaintiff’s solicitors on 29 November 2000, but the plaintiff still failed to carry out the repairs.[7]

[8] From the Amended Defence and Counterclaim, the contract to repair the car was alleged to be constituted by (a) the acceptance of the quotations of 28 August 1998; (b) the letter to CNP of 11 May 2000 and the payment of $60,000; or (c) the return of the estimate of 11 July 2000 or 29 November 2000.

[9] The defendant pleaded in the alternative that:

[10] In her counterclaim she claimed:

1. Loss due to depreciation of the Porsche at (S$670,000.00 cost of car – S$80,000.00 scrap value of car) / 10 years life of car x 4 years repair time delay, or to the date of repair; total estimated at S$236,000.00

2. Loss of use based on S$300.00 per day x 365 days x 4 years, (This is based on market rental rate of about S$200.00 per day for a 2.5 litre capacity car. The Porsche is about 3.6 litre capacity) Total estimated at S$438,000.00

[11] The hearing of the action spread over eight days in three tranches on 7 and 8 April 2003, 15 September to 22 September 2003 and 16 April 2004.

[12] On the first day of the hearing, the defendant applied to amend the Amended Defence and Counterclaim further, mainly to add a further cause of action of bailment to the counterclaim. I disallowed the application because it was plainly unjustified for the defendant to add a new cause of action a year and a half after she had filed her counterclaim, and leaving it to the commencement of the trial to do it when all the facts she was relying on were known to her from the time she made the counterclaim.

[13] The hearing did not proceed smoothly. This was due partly to Chee being argumentative and evasive in the witness box. To compound that, he was unable to continue with his evidence after his first attendance on grounds of his health. This led to my direction after several delays in continuing with the hearing that the defence was to close if he continued to be unavailable, after which he returned and resumed his evidence with no apparent difficulty. Counsel also contributed by not confining themselves to the pleadings. As a consequence, the case lost focus on occasions, and matters not pleaded were brought into contention. I will, however, confine my decision to the issues pleaded.

[14] The defendant had called the plaintiff’s hotline and arranged for the car to be towed to the plaintiff’s workshop on 24 August 1998. In her affidavit of evidence-in-chief, she deposed that:

[15] She was asked about the arrangements made on 24 August 1998:

[19] The defendant accepted that the plaintiff had issued the quotation of 28 August 1998. In para 16 of her Amended Defence and Counterclaim, she claimed that she “accepted the quotation but subject to surveyors [sic] approval”. There was no documentary evidence of this alleged acceptance. When the defendant produced a copy of a letter of authorisation alleged to have been returned, it presented a very different picture (see [30] below).

[20] On the contrary, the plaintiff wrote to the defendant more than a month later on 8 October 1998 that:

[21] There was no record of any retort that the authorisation had been returned previously. It is to be noted that even if there was an acceptance as alleged in para 16 of the Amended Defence and Counterclaim, it was a qualified or conditional acceptance as it was subject to the surveyor’s approval.

[22] The defendant also relied on a $60,000 deposit for the repairs paid to CNP, evidenced by CNP’s official receipt therefor dated 12 May 2000. It was not contended that the payment per se was authorisation.

[23] This payment was referred to in a letter from the defendant to CNP dated 11 May 2000, where she stated that she undertook to pay for the repairs and that “I shall deposit cash cheque $60,000 as security deposit or cash $20,000 and signed credit card” but without stating that she was giving the required authorisation for the repairs. The promised payment was made on 12 May 2000. However, it was not alleged in the Amended Defence and Counterclaim that the defendant also gave the required authorisation at the same time she made the payment. Indeed, if the authorisation were given to the plaintiff and the required payment were made, there would have been no reason for the repairs to be held back, or for the subsequent estimates to be issued.

[25] Chee acknowledged receipt of this estimate and deposed that he had replied to CNP on 7 August 2000, inter alia, as follows:

and alleged that “the Plaintiffs were trying to be difficult and demanded the Estimate Cost of Repair dated 11 July 2000 to be returned”.[10]

[26] He was referring to a letter from CNP dated 16 November 2000, which informed him that the plaintiff wanted the estimate of 11 July 2000 signed and returned by 30 November 2000. He claimed that he wrote to CNP on 30 November 2000 and gave further instructions for repairing the car, and forwarded the signed authorisation. Mr Anthony Chey, the solicitor with CNP then in charge of the matter, denied receiving any authorisation from the defendant at any time.

[28] The defendant’s attitude to the authorisation was clearly shown when Chee was re-examined by defence counsel on the last day of the trial. At that stage, a letter of authorisation[11] signed by the defendant was produced for the first time. According to Chee, the letter was similar in form to the one that came with the estimate of 28 August 1998.[12]

[29] Chee claimed that he returned the signed letter to the plaintiff’s workshop manager Mr Chow Siew Kai (“Chow”) in October 1999,[13] but that was not shown to him when he gave evidence. Indeed, this was never produced by the defendant before that day.

[30] Nevertheless, this letter of authorisation (with handwritten words added thereto denoted in italics and portion cancelled shown) was significant:

[31] If this letter had been returned to the plaintiff, why was that not pleaded or put to Chow? That aside, the significance of the form was immediately obvious and brought on the following exchange with Mr Mohan Singh, counsel for the defendant:

[32] It was very clear that the defendant was only prepared to sign the letter of authorisation that the plaintiff needed with the amendments. That being the case, she had not accepted the plaintiff’s terms, and there was no contract between them.

[33] Mr Mohan Singh addressed this point in his written submissions[15] thus:

[34] The submission is sustainable only if there was a prior concluded contract, but I have found no prior or later contract. The references to contracts of 2000 were out of place because Chee alleged that he returned the authorisation to Chow in October 1999. If that event took place, it must have happened before 2000 as Chow left the plaintiff’s employ in November 1999. Apparently even counsel had difficulty following the defendant’s case. As there was no prior concluded contract, there was nothing to prevent the plaintiff from adding to or modifying its terms when dealing with a difficult customer. The latter had two options: accept the terms offered, or find another repairer.

[35] There being no contract for the plaintiff to repair the car, the counterclaim fails.

[37] The counterclaim fails where it was based on any contract for the repair of the car. It also fails on the alternative basis of negligence in that there was no duty of care on the plaintiff, as the car remained in the workshop against the plaintiff’s wishes.

[1]Statement of Claim para 4

[2]Amended Defence and Counterclaim para 3

[3]Amended Defence and Counterclaim para 12

[4]Amended Defence and Counterclaim para 15

[5]Amended Defence and Counterclaim para 16

[6]Amended Defence and Counterclaim para 18

[7]Amended Defence and Counterclaim paras 19 and 20

[8]Amended Defence and Counterclaim para 22

[9]Notes of Evidence pages 544-545

[10]Affidavit of evidence-in-chief of Dennis Chee of 18/7/2002, paras 11 and 12

[11]D1

[12]Notes of Evidence pages 706, 707 and 710

[13]Notes of Evidence pages 707 and 708

[14]Notes of Evidence pages 718 to 720

[15]At para 171 of the Defendant’s Submissions