Toh Her Chiew (Zhuo Huoshu) and another v Grand Isle Holdings Pte Ltd

Choo Han Teck J:

[1] This is yet another case which emphasises the importance of pleadings. The facts and dispute that one can glean from the 19 pages of the Statement of Claim, the 18 pages of the Defence, and the 12 pages of the Reply, are as follows. The plaintiffs signed an option to purchase a property known as #18-21, 32 Segar Road in a condominium (known as “Blossom Residences”) from the defendant who was the developer. The plaintiffs signed the option to purchase on 15 September 2011 and paid the defendant $56,050 at the same time “as consideration for the Option to Purchase (“OTP”)”. The full purchase price for the flat was $1,121,000.00. The plaintiffs claimed that the defendant made various misrepresentations in the sale brochure as well as through its agent, one Gary Ng. The plaintiffs did not complete the purchase of the flat after an extension of three weeks was granted by the defendant for them to do so. They alleged that they did not complete the purchase because of the misrepresentations made by the defendant. The defendant denied making any misrepresentation and averred that they refunded $42,037.50 (being 75% of the option fee) when the plaintiffs decided not to proceed with the purchase.

[2] When the trial judge has read the pleadings in this case he will be older but not wiser, for, despite being 19 pages long, the plaintiffs’ Statement of Claim did not aver to the cause of action to which they are now praying for, and the relief sought, namely a declaration rescinding the option to purchase, a refund of the full option fee ($56,050) and general damages to be assessed. The only explicit cause of action was a claim for fraud, but fraud is not an easy case to prove. On the facts pleaded, fraud seems to be a questionable claim. If, however, the plaintiffs have a cause of action in contract or tort, that is not apparent on the Statement of Claim. The thrust of the plaintiffs’ averments refer to various misrepresentations. They say that by reason of the misrepresentations they “were induced to agree to acquire [the] OTP”. The plaintiffs set out the misrepresentations in paragraph 8 of the Statement of Claim which I now set out verbatim –

[3] The plaintiffs claim that each of the representations in paragraph 8 was false “whether individually or taken together”. This claim is imprecise. Do the plaintiffs mean to say that not only was each representation false in itself, but read collectively, or perhaps, in context, they were false? Where a plaintiff makes such a claim, it behoves him to explain the context and why the representations taken as a whole were false. It is also puzzling that an averment that “Gary Ng also did not make any mention of ‘void area’” can constitute a representation. Furthermore, I am not certain that the plaintiff really intended to say that every representation set out in paragraph 8 was materially false because they included what seem to be innocuous, if not irrelevant, facts, such as, “the sale brochure which was handed to the plaintiffs on 14 September 2011 at the entrance of the show flat”. If such representations were false but immaterial, the plaintiffs must justify pleading them. If, for example, the sale brochure was handed to the plaintiff in the car park and not at the entrance, the plaintiffs must state why this fact was wrong and why it was important to the case. However, the proper time and place to do so would be in their evidence-in-chief. It is clear that the plaintiffs’ real complaint is that they were not warned that the flat’s floor space included 20 square metres of void area. If so, the plaintiff ought to plead that the defendant was obliged to disclose this fact and that the failure to do so amounted to a misdescription of the flat and that that misdescription induced them to pay $56,050 for the option, which they would not otherwise have done. If the defendant disagrees that it was so bound to disclose, all it has to do is to deny such a duty in law. That would be its defence. It may also, for example, plead in the alternative that should the court find that there was a duty to so disclose, that duty had been discharged. Instead, the present pleadings set out a barrage of evidence as to what the parties did without any relation to the cause of action. Without a cause of action, statements and allegations are merely voices crying in the dark. The primary function of pleadings is to set out the cause of action that the plaintiff relies on to maintain his claim, and the defence which the defendant relies on to refute that claim. A defendant is at least entitled to know whether the claim against him lay in contract or in tort or any other cause of action. He is not obliged to infer on his own from the plaintiff’s assertions what the cause of action might be. It is only when the cause of action has been identified and articulated that the parties can proceed to decide what evidence will be necessary for trial. We are not there yet in this case.

[4] The plaintiffs here appealed against the assistant registrar’s order compelling them to give further and better particulars of paragraph 22(i), “damages for loss of opportunity to be assessed estimated at between $53,000 and $1,254,700”. The plaintiffs’ Statement of Claim provided six items of what they considered comparable sales as particulars of this head of loss. Counsel for the defendant submitted that the defendant was unable to comprehend how the plaintiffs’ claim under this head could be calculated. In the pleadings, the defendant need only deny that the plaintiffs were entitled to such damages (damages for loss of opportunity and ‘inconvenience’), and, alternatively, if they were, the plaintiffs are put to proof as to the damage. That would have been adequate in the circumstances. If the plaintiffs cannot make their claim understood to a reasonable lawyer, presumably, they would not have fared better before the court. In which event, their claim would fail at trial. I am of the view that no further particulars are needed as to the damages claimed. The defendant was only looking for evidence. If the defendant needs evidence in rebuttal and such evidence can only be identified after it has seen the plaintiffs’ evidence-in-chief, then it is at liberty to apply for leave to adduce rebuttal evidence after the plaintiffs’ evidence-in-chief. It must not make that application in the guise of an application for further and better particulars of a Statement of Claim. Accordingly, the plaintiffs’ appeal on this point was allowed.

[5] The plaintiffs also appealed against the assistant registrar’s order that further particulars be given in respect of paragraph 6 of the Statement of Claim where the plaintiffs had averred:

The defendant had requested “full particulars of how the Defendant was keen to lend its assistance to the Plaintiffs to appeal to the Housing and Development Board”. It has been said many times before, and I had so held in Sharikat Logistic Pte Ltd v Ong Boon Chuan & Others [2011] SGHC 196 (“Sharikat Logistic”) that pleadings are not evidence. Paragraph 6 of the Statement of Claim in this case is a shining example of pleading evidence if an illustration between pleadings fact and evidence is required. The entire paragraph is set out for ease of reference —

Counsel for the defendant referred to Sharikat Logistic but she submitted that nonetheless further particulars were sought in the present case because the defendant would not otherwise know how to respond to the statements made by the plaintiffs in the Statement of Claim. The defendant’s difficulty will not be solved by having more evidence in the pleadings. Its problem is that the pleadings have not identified a cause of action. There is no need for further and better particulars of evidence. In any event, the defendant must know whether it had advised the plaintiffs as alleged. If it did not, a denial would be sufficient. Thirdly, paragraph 6 seems to indicate that Gary Ng might be advising the plaintiffs outside his role as agent of the defendant. The pleadings would not be improved just by adding more evidence on matters that are already unnecessary. The plaintiffs’ appeal was thus allowed. No further particulars should be ordered.

[6] The plaintiffs also appealed against the orders requiring them to furnish further and better particulars in paragraphs 30 and 31 of the Reply. The requests in themselves indicate that what was sought was evidence. In respect of paragraph 30 the defendant asked the plaintiff to give “full particulars of the Plaintiffs’ efforts since 6 December 2011 to seek redress from the Defendant”. In paragraph 31 the defendant requested for the “gist” of a “conversation between the 1 Plaintiff and May Wong by which the 1 Plaintiff spelt out the same concerns of the Plaintiffs regarding the 20sqm void space” and the “gist of the email sent by the Plaintiffs to May Wong on 15 December 2011 at 14:36 hours”. These are prime examples of requests for evidence. The defendant ought to have known that further and better particulars of a Reply are rarely, if at all, necessary. The plaintiffs’ appeals in respect of these two requests were thus also allowed.

[7] Finally, I come to the plaintiffs’ appeal against the assistant registrar’s order striking out passages of the Reply. The defendant’s objections were based on the claim that the passages referred to “without prejudice” communication including text messages sent through cell phone. The Reply consists almost entirely of evidence. Whether that evidence is privileged is not an issue that needs to be decided now. The admissibility of evidence is a function reserved to the trial judge. Evidence does not belong in the Reply. The Reply in pleadings is a reply to any Defence pleaded that might have strayed beyond the facts pleaded in the Statement of Claim. A Reply is generally not necessary where it is clear that the parties are joined in issue through the Statement of Claim and the Defence. In this case, the Reply added nothing of relevance to the pleadings and the appeal against the order striking out parts of it was therefore dismissed. This was also a case which, on the basis of the Statement of Claim and Defence, no Reply was required.