IMPORTANCE OF MUSTERING EVIDENCE TO PROVE ONE’S CASE
While the recent High Court case of Calpeda Asia Pacific Pte Ltd v Chew Construction & Plumbing Pte Ltd [2023] SGHC 102 may not make new law, it makes clear the importance of mustering evidence to prove one’s case. We set out two examples from the case below.
Brief facts. In Calpeda Asia Pacific Pte Ltd v Chew Construction & Plumbing Pte Ltd [2023] SGHC 102 (“Calpeda v Chew”), Chew Construction & Plumbing Pte Ltd (“Chew Construction”) engaged Calpeda Asia Pacific Pte Ltd (“Calpedia”) to supply and install pumps in five different projects ([3]).
After completing the supply and installation of pumps, Calpeda sought payment from Chew Construction ([4]). Calpeda commenced the suit claiming that Chew Construction owed Calpeda $683,147.92 ([4]). Chew Construction disagreed and counterclaimed against Calpeda for breaches of contract for the sum of $683,664.73.
And to support their respective cases:
Calpeda called as witnesses its Managing Director, Mr. Quek Yew Chye (“Ken”), its Admin and Finance Director, Ms. Tan Lee Lee (“Tan”), and the director of its sub-contractor who installed pumps for the projects, Mr. Khoa Weilong Geoffrey (“Geoffrey”).
Chew Construction called as witnesses its Managing Director, Mr. Chew Chee Chiang (“Chew”) and an accountant in Chew, Ms. Lee Bee Fen (“Lee”).
In the interests of brevity, we will focus on Calpeda’s claim for work done for the Punggol NorthShore C1 & C2 (“C1&C2”), including Variations 1 and 2, as well as Calpeda’s claim for the return of retention for the Sembawang project (“Sembawang”).
C1 & C2: Unfit for purpose. In defending against Calpeda’s claim for C1 & C2, Chew Construction claimed that the pumps installed by Calpeda were “unfit for purpose”" ([13]).
Yet Chew Construction’s witness, Chew, testified that he did not say that the pumps were “unfit for purpose”; rather, the pumps were correctly installed, only that there were many incidents of alarms going off ([15]).
However, evidence was given by Calpeda showing that Calpeda was willing to respond to the incidents and rectify any issues, and that the incidents did not involve defects in the pumps installed by Calpeda ([17]). This was not rebutted by Chew Construction, including the evidence from Ken that if there were manufacturing defects in the pump systems, Calpeda could have submitted a claim under the warranty for the pumps ([17]).
Calpeda also showed that the pumps were handed over by Calpeda to either Chew Construction or the main contractor for the project and the Temporary Occupation Permits were issued, which contradicted Chew Construction’s allegation that there was no “actual handover” ([18]).
Lastly, while Lee sought to say that there were outstanding defects in Calpeda’s works, Lee was unable to identify the list of defects where such defects were recorded when asked during the hearing, and counsel for Chew Construction also conceded that no such list existed ([19]).
These led to Kwek Mean Luck J finding that Calpeda had proven its claims as “there was no evidential foundation for [Chew Construction’s] submission that the pumps were “unfit for purpose“…“ ([20]).
Sembawang: Return of retention. As Chew Construction had retained a sum amounting to 10% of the sum payable to Calpeda as retention monies, Calpeda sought a return of this on the basis that the Defects Liability Period (“DLP”) had expired ([63]).
In response, Chew Construction said that that is incorrect as at the date of Calpeda’s commencement of the suit, the DLP had not expired yet and per Saga Foodstuffs Manufacturing (Pte) Ltd v Best Food Pte Ltd [1994] 1 SLR(R) 505, a cause of action cannot include a claim that does not exist when the originating process is filed ([63] – [64]).
Interestingly, the quotation (i.e., the contract) in question did not identify the length of the DLP, nor when the DLP would commence or expire ([65]). However, it was undisputed that Chew Construction would retain 10% of the sum until the completion of the DLP (see [63]).
Kwek Mean Luck J thus turned to the evidence given by the parties. This was a highly factual issue, as can be seen from [66] – [69] which we excerpt below:
“66 Ken testified that Calpeda would commence its quarterly maintenance schedules immediately following the testing and due commissioning of the pumps system. Upon the conclusion of these schedules, or one year from the date of issue of their tax invoice(s), the DLP will expire. In other words, Calpeda’s evidence was that the DLP was 12 months’ long. On the other hand, Chew Construction’s evidence was that the DLP was 14 months’ long. Chew testified that the Sembawang retention sum was due and payable upon the completion of 14 months of maintenance.
67 During trial, Chew Construction submitted that the DLP period was from 15 December 2020 to 14 December 2021. In support of its submission, Chew Construction referred to a letter which it claimed stated the DLP to be as it submitted. However, this letter did not relate to Calpeda’s claim as it was addressed to one “Nanjing Dadi Construction (Group) Co., Ltd” and there was no mention of Calpeda or its sub-contractors. Further, although Calpeda had done an additional maintenance of the pumps at Sembawang on 14 December 2021, this was done at Chew Construction’s request. There was no evidence of a contractual obligation between the parties that the DLP was until 14 December 2021. Nor was the fact that Calpeda agreed to do this additional maintenance, evidence that the DLP period was until this date.
68 Calpeda adduced several “3 monthly maintenance checklists”. Each checklist verified that three months of monthly maintenance had been performed by Calpeda. It is undisputed that these three checklists were also signed off by a representative of the main contractor of the Sembawang Project, Jeffrey. The first of these checklists were signed off on 5 February 2020 and consequently, Calpeda’s maintenance of the Sembawang Project would have started three months prior, ie, sometime on or around 5 November 2019. This is consistent with Ken’s testimony that Calpeda completed its work obligations in relation to Sembawang in 2019, after the relevant HDB blocks were constructed and built, and the DLP period would have commenced soon after. The last of the checklists was signed off on 2 November 2021. While there is no evidence on why Calpeda continued with maintenance till 2 November 2021 when it started around 5 November 2019 (given that Ken testified that the DLP period is one year long), on the basis of the “3 monthly maintenance checklists”, Calpeda would have completed the maintenance by November 2021.
69 I note that even if the maintenance only commenced on 5 February 2020 (instead of 5 November 2019) and the DLP was to be 14 months’ long, as Chew had testified, the DLP would have concluded by April 2021 at the latest. Accordingly, even on Chew’s evidence, the Sembawang retention sum would have been due and payable by April 2021, several months prior to Calpeda’s commencement of this Suit. Chew also agreed during cross-examination that he did not have any documents to refute that the retention sum for the Sembawang project was due and payable.”
(our emphasis added)
Accordingly, based on the evidence, Kwek Mean Luck J found that the retention was due and payable and allowed Calpeda’s claim for retention.
Conclusion. If you wish to assert that your counterparty has breached the contract, you need to be prepared to prove the same with relevant evidence.
So, if you claim that your sub-contractor’s works are defective, it is vital that you have the documents necessary to prove the same. Punch lists recording the defects, contemporaneous WhatsApp messages recording what transpired on Site, emails / letters complaining of the sub-contractor’s defects, etc. These are all documents which are important to muster and present to the court / tribunal. And, of course, this means that you should be punctilious in ensuring that such defects are recorded. After all, you cannot present a non-existent document.
The same applies if you claim that there exists a particular contractual obligation. If it is express, then there should be an express term. If it is to be implied, then you need to show why it should be implied, and whether it is to be implied in fact or to be implied in law.
So, in a nutshell, he who asserts must prove (by way of relevant evidence).
This publication is not intended to be, nor should it be taken as, legal advice; it is not a substitute for specific legal advice for specific circumstances. You should not take, nor refrain from taking, actions based on this publication. Chancery Law Corporation is not responsible for, and does not accept any responsibility for, any loss or damage that may arise from any reliance based on this publication.