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

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

3 Instead, the defendant counterclaims against the plaintiff for the sum of $12,752,651 ² and took out a third party claim against the third parties for the sum of $10,853,718.63. ³ The defendant asserts that the plaintiff and the third parties had conspired to injure him and are liable to him under the tort of unlawful means conspiracy. As a corollary of that conspiracy, the defendant claims that the first third party had, inter alia, granted extensions of time improperly, works which were deficient were certified as satisfactory, defects were not rectified and the Project was certified to have been completed when it was clearly not safe for occupation. The defendant further claims against the third parties for breach of their contractual and tortious duties owed to the defendant. The defendant also has a counterclaim against the plaintiff for rectification of defective works and liquidated damages for the delay in the completion of the Project. The defendant also claims an indemnity from the third parties for any liability arising on the part of the plaintiff to the defendant, and also for all the legal costs incurred by the defendant in defending the summary judgment application initiated by the plaintiff against the defendant.

4 The first third party, Chan Sau Yan Associates, was a sole proprietorship wholly owned by Mr Chan Sau Yan Sonny (TPW2, “Mr Chan”). I shall refer to both Chan Sau Yan Associates and Mr Chan, interchangeably, as the “first third party”. The second third party is CSYA Pte Ltd, which is a conversion of the first third party into a private limited company in or around October 2011. ⁴ I note that there is some dispute between the parties as to whether the defendant has legal recourse against the second third party, as there was no contractual relationship between them. For reasons which I shall elaborate below, I find that the defendant has no legal recourse against the second third party. Hence, all subsequent references to “third party” shall refer to the first third party, unless otherwise specified.

5 By a Memorandum of Agreement dated 16 June 2009 (the “MOA”), the defendant and his wife engaged the first third party to provide professional architectural services for the Project. ⁵ Further, the first third party was also authorised by the defendant and his wife to act as their agent in the matters set out or implied in the MOA and the contracts adopted for the Project (see cl 1.1(2) of the MOA).

6 After a full tender process that was coordinated by the defendant’s quantity surveyor (“QS”) Faithful+Gould Pte Ltd (“F+G”), ⁶ the plaintiff, a Singapore-incorporated company carrying on the business of general building and construction works, was appointed as the main contractor responsible for building the Project and carrying out works thereunder (“Works”). ⁷ The terms of engagement between the defendant and the plaintiff were governed by the Letter of Acceptance dated 13 May 2011 (“LOA”), which incorporated the SIA Conditions. ⁸ I shall refer to all the documents comprising the contract between the plaintiff and the defendant as the “Contract” and this comprises the LOA, the SIA Conditions and all the documents cited in cl 7 of the LOA. ⁹ This also includes Volumes 1A, 1B and 2 of the formal contract documents prepared by F+G and the defendant’s mechanical and engineering (“M&E”) consultant, Chee Choon & Associates (“CCA”). ¹⁰ Although there are some disputes regarding this last category of documents, I find that they are part of the Contract and I shall elaborate further on this issue in my judgment below.

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

(a) CCA, the M&E consultant;

(b) F+G, the QS;

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

(d) Mr Leong Kien Keong (TPW4), the Resident Technical Officer (“RTO Leong”). ¹¹

8 Apart from the Consultants, the defendant also engaged a group of his hand-picked individuals, comprising Mr Wilson Cheung (“Mr Cheung”), Mr Chow Kum Wai (“Mr Chow”), Mr Ng See Wah, and Dr Anand Jude Anthony (“Dr Anand”), to assist him in overseeing the Project. ¹² I shall refer to them collectively as the defendant’s “Assistants”.

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

10 The defendant in his pleadings and affidavit of evidence-in-chief (“AEIC”) did not make any allegations against the tender process. However, in the course of his testimony in court, the defendant alleged that the conspiracy to injure and defraud him by the plaintiff and the third party started from the tender process of the Project. The defendant also asserted in court that the plaintiff had bribed the third party in the course of the Project (the “Bribery Allegation”), although this particular allegation was later retracted. ¹³ As the allegations of conspiracy and fraud are very serious and would seriously affect many other major issues before this court, I allowed these allegations to be ventilated during the trial notwithstanding that they were not pleaded by the defendant. I shall now summarise the defendant’s case with reference to the events in chronological order.

11 The defendant alleges that the third party conspired with the plaintiff during the tender process for the tender to be awarded to the plaintiff. The tender was called on 13 October 2010 and there were initially five tenderers. ¹⁴ Thereafter, Soil-Build Pte Ltd (“Soil-Build”) was invited to participate in the tender at the defendant’s request. ¹⁵ The three lowest tenderers, Soil-Build, Daiya Engineering & Construction Pte Ltd (“Daiya”) and the plaintiff, were subsequently shortlisted. The defendant asserts that the third party had “push[ed]” for the plaintiff to be selected over the other tenderers. Therefore, he was unable to select Soil-Build, who was his preferred contractor. ¹⁶ In addition, Soil-Build was also not treated equally during the tender process as the third party had “[made] life difficult” for them. ¹⁷

12 The defendant submits that the third party and the plaintiff conspired regarding the three requests for extension of time (“EOT”), thereby preventing the defendant from claiming liquidated damages from the plaintiff for EOT 2 and EOT 3. Furthermore, the defendant submits that the EOTs were granted by the third party in breach of the contractual and tortious duties owed by the third party to him. ¹⁸

13 The original completion date under the LOA is 21 February 2013. ¹⁹ Pursuant to cl 23(1) of the SIA Conditions, EOTs can be granted by the third party to the plaintiff. Clause 23(1) states: ²⁰

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

(a) The plaintiff’s first request of 60 days of EOT was made on 4 October 2012 due to, inter alia, delays relating to the delivery of marble to the Project (“EOT 1”). ²¹ EOT 1 was rejected by the third party. ²²

(b) The plaintiff’s second request of 45 days of EOT was made on 20 December 2012 due to, inter alia, SP PowerGrid Ltd’s (“SPPG’s”) delay in connecting the main incoming power supply and SPPG’s late notice of the requirement to install the overground distribution box (“OG Box”) (“EOT 2”). ²³ The third party granted EOT 2 on 7 February 2013 for 40 days from 21 February 2013 (the original completion date) to 2 April 2013. ²⁴

(c) The plaintiff’s third request of 40 days of EOT to complete the testing and commissioning (“T&C”) for M&E works and the installation of light fittings was made on 1 April 2013 (“EOT 3”), in view of SPPG’s delay. ²⁵ The third party granted EOT 3 on 10 April 2013 for 15 days from 2 April 2013 to 17 April 2013. ²⁶

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

16 The defendant asserts that the plaintiff and the third party conspired to injure him in relation to EOT 1, which concerned the delay in marble delivery. ²⁷ He alleges that the third party would have proceeded to grant EOT 1 but for the intervention of Mr Cheung, one of the defendant’s Assistants, ²⁸ when he enquired during a site meeting whether the delay in marble delivery was on the critical path, ie, an event that may delay the completion of the Project. Since the delay in marble delivery was a non-critical activity, it did not contractually entitle the plaintiff to an EOT. Faced with Mr Cheung’s objections, the third party had no choice but to reject EOT 1. Thus, the defendant submits that EOT 1 supports his allegation that the third party had conspired with the plaintiff to grant EOTs.

17 In relation to EOT 2, the defendant submits that the third party had no basis to grant EOT 2. Among other things, this was because the plaintiff had failed to exercise due diligence, a pre-condition required by cl 23(1) of the SIA Conditions and, thus, was not entitled to any EOT. ²⁹ While the third party took into account SPPG’s delay in electrical turn-on, it failed to consider the plaintiff’s own delay in the electrical installation works which had to be done before SPPG could connect the incoming power supply. Pursuant to the Project’s Master Programme, the plaintiff was required to complete the construction of the electrical meter compartments by or prior to 9 July 2012. ³⁰ However, the electrical meter compartment doors for Units 12 and 12B were only installed on or around 1 December 2012. ³¹ Due to this delay of more than four and a half months, the defendant claims that the plaintiff should not have been given any EOT.

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

(a) The third party had “directed” the plaintiff to include further details in its request in EOT 2 and had also given the plaintiff “further directions to regularise various errors made in its substantiation of the said EOT request”. ³²

(b) When the plaintiff’s request in EOT 2 was circulated to CCA for “confirmation”, a pre-drafted approval was enclosed and CCA was only given one day to respond to the plaintiff’s request. ³³

(c) Prior to the third party’s grant of EOT 2, F+G had recommended in its cost report an estimated $65,000 additional costs due to the plaintiff on the basis of EOT 2. ³⁴

19  In court, the defendant further alleged that the plaintiff, CCA and the third party had colluded or conspired to grant EOT 2. The defendant also alleged that the plaintiff had applied improper pressure on or interfered with the third party. ³⁵

20 In relation to EOT 3, the defendant likewise submits that the third party had no basis to grant EOT 3. Prior to electrical turn-on, SPPG had to conduct testing and inspection on-site. The first round of testing and inspection was conducted on 14, 20 and 21 March 2013 (the “First Testing and Inspection”) for Units 12B, 12 and 12A respectively. ³⁶ The Project failed the First Testing and Inspection. The defendant’s position is that the reasons for the failure were due to construction-related issues caused by the plaintiff. ³⁷ Consequently, the plaintiff had to rectify these construction-related issues before the Project passed the second round of testing and inspection conducted on 27 March, 2 April and 8 April 2013 (the “Second Testing and Inspection”). ³⁸ Accordingly, the plaintiff had again failed to exercise due diligence and was not entitled to any EOT. ³⁹

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

(a) The plaintiff made its request for EOT 3 on 1 April 2013 and the third party had immediately issued an “in-principle” entitlement the next day without prior consultation with CCA. ⁴⁰

(b) CCA had initially refused the plaintiff’s request for EOT 3. However, the third party eventually managed to persuade CCA to change its recommendation. ⁴¹

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

23 On 15 May 2013, the third party issued a CC certifying completion of the Project on 17 April 2013 pursuant to cl 24(4) of the SIA Conditions. ⁴² Clause 24(4) of the SIA Conditions states that the CC “shall be issued by the [third party] when the Works appear to be complete and to comply with the Contract in all respects”. ⁴³ Further, cl 24(4) must also be read with the all-important Item 72 of the “Preliminaries”. The relevant portion of Item 72 of the Preliminaries states as follows: ⁴⁴

24 The defendant submits that all three preconditions in Item 72 of the Preliminaries were not satisfied when the third party issued the CC. The CC was issued prematurely and without basis. Accordingly, this gives rise to an inference that the CC was issued by the third party pursuant to a conspiracy between the third party and the plaintiff. ⁴⁵

25 In relation to Item 72(a) of the Preliminaries, the defendant argues that the Project was not “ready for occupation and for use” as the temporary occupation permit (“TOP”) for the Project had not been obtained. According to the defendant, it is an implied term of the Contract that the TOP must be obtained before the third party can issue the CC. ⁴⁶

26 Furthermore, the Project failed the TOP inspection conducted by the Building and Construction Authority (“BCA”) on 30 April 2013 (“TOP Inspection 1”). ⁴⁷ This was prior to the date the CC was issued on 15 May 2013. The Project had also failed the BCA’s second TOP inspection on 18 June 2013 (“TOP Inspection 2”). ⁴⁸ Although the TOP for the Project was eventually obtained on 16 September 2013 by way of photographic submissions, ⁴⁹ the defendant alleges that this was the result of the plaintiff’s and the third party’s fraud and/or misrepresentation. ⁵⁰ In particular, the steps and risers in the Project remain non-compliant with statutory requirements and the Project is therefore still not “ready for occupation and for use” as of today.

27 As for Item 72(b) of the Preliminaries, the defendant submits that this was not satisfied as the operating instructions and warranties were only handed over by the plaintiff to the defendant on 22 June 2014, while the test certificates have not been handed over at all. ⁵¹ In addition, the T&C for gas, ⁵² electricity, ⁵³ air conditioning and mechanical ventilation (“ACMV”) ⁵⁴ and swimming pool services ⁵⁵ had not been carried out as of the date when the Project was certified to be complete.

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

(a) The gas pipe along the driveway at the front gate of Unit 12A of the Project was punctured. ⁵⁶

(b) There were numerous cracks, scratches, and other forms of damage to the Volakas marble flooring in the Project. ⁵⁷

(c) There were numerous cracks and splinters in the ironwood used for the installation of the timber decking in the Project. ⁵⁸

(d) There were dents and tonality differences in the Indian rosewood timber floor finish. ⁵⁹

(e) The aluminium cappings on the rooftops of all three units of the Project were dented, scratched and finished with patchy and splotchy paintwork. ⁶⁰

(f) The steps and risers of the Project were non-compliant with the statutory and contractual requirements. ⁶¹

(g) The swimming pools in the Project were leaking. ⁶²

(h) There were only seven trellis beams constructed at Unit 12B of the Project, instead of eight as required by the Contract. ⁶³

(i) The coating of the intumescent paint on the steelworks at the Project did not have a fire resistance of two hours, as required by the Contract. Furthermore, the trellis beams had only been coated on three sides, instead of on all four sides. ⁶⁴

(j) The external boundary wall was finished in plaster and paint, instead of an “off-form” finish, as required by the Contract. ⁶⁵

(k) The grouting at the swimming pools disintegrated easily. ⁶⁶

(l) Loamy soil was not used for the Project as required by the Contract. ⁶⁷

(m) The foldable glass doors did not slide smoothly and could not be properly locked. ⁶⁸

29 The maintenance period of the Project commenced on 18 April 2013 (ie, the day after completion) and ended on 17 April 2014. Clause 27(5) of the SIA Conditions states, inter alia, that the third party shall within 14 days issue a maintenance certificate (“MC”) when all defects notified by the third party to the plaintiff have been made good by the plaintiff in compliance with the third party’s directions or instructions. ⁶⁹

30 The MC was issued by the third party on 7 July 2014 when the third party was satisfied that all the defects at the Project were rectified by the plaintiff, ⁷⁰ and the premises were handed over to the defendant on 21 and 23 July 2014. ⁷¹ However, the defendant contends that as of 7 July 2014, there were still many defects which had yet to be rectified (see [28] above). The defendant, therefore, alleges that the MC was also issued pursuant to the conspiracy between the plaintiff and the third party.

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

(a) Firstly, the defendant was allegedly only given three days by the third party to prepare his list of outstanding defects. ⁷²

(b) Secondly, the third party also failed to issue the “Schedule of Defects” within 14 days of the expiry of the maintenance period, in accordance with cl 27(2) of the SIA Conditions. ⁷³

(c) Thirdly, although the defendant submitted photographs of the defects to the third party on or around April 2014 and 27 July 2014, the plaintiff allegedly wrote to the third party to urge them not to accept these photographs. ⁷⁴

(d) Finally, the third party issued the MC without having regard to BAPL’s report. ⁷⁵

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

(a) Interim Certificate No 25 dated 3 September 2013 (“IC25”) was issued pursuant to the plaintiff’s Payment Claim No 25, certifying a sum of $390,951.96 (excluding goods and services tax (“GST”)). ⁷⁶

(b) Interim Certificate No 26 dated 6 November 2013 (“IC26”) was issued pursuant to the plaintiff’s Payment Claim No 26, certifying a sum of $189,250.21 (excluding GST). ⁷⁷

(c) Final Certificate dated 22 June 2015 (“FC”) was issued pursuant to the plaintiff’s final payment claim of $451,494.54 (excluding GST). ⁷⁸ This sum is the balance between the final measurement and valuation of the Works in accordance with the Statement of Final Account and the sums that were previously certified by the third party.

33 The defendant alleges that the third party failed to independently verify that the Works claimed by the plaintiff had been executed in accordance with the Project’s contractual requirements. In particular, the third party failed to withhold the costs of outstanding works stated in the schedule of the CC until such time as the outstanding works were completed (see cl 24(5) of the SIA Conditions). ⁷⁹ The third party also ought to have certified liquidated damages in either IC25 or IC26 given the outstanding works and unrectified defects. ⁸⁰ The third party also should have taken into account in the FC the sums that the defendant was entitled to deduct from the moneys due to the plaintiff because of the outstanding works and unrectified defects. ⁸¹

34 The defendant also asserts that the release of the first half of the retention moneys in IC25 was certified by the third party without basis, given that the plaintiff had not satisfied the requirements in cl 24(4) of the SIA Conditions and Item 72 of the Preliminaries for the issuance of the CC. ⁸²

35 Finally, the defendant argues that the third party failed to properly account for the Prime Cost Sums (the “PC Sums”) and Prime Cost Rate items (the “PC Rate items”) claimed by the plaintiff under the Project. Under Section No 2 of Section F – Schedule of Prices and Section F1 of the Preamble of the Contract, the actual quantum of PC Sums due should be valued and approved via the issuance of the architect’s instructions, which cannot be issued without proper documentation. The defendant avers that to date, he had made payment of $787,742.09 for the PC Sums to the plaintiff, which was the alleged amount of PC Sums due under Architect’s Instructions No 2-R1, No 6, No 17, No 24-R1 and No 26. As for the PC Rate items, the defendant had made payment of $1,757,835 for the PC Rate items to the plaintiff being the alleged total amount for PC Rate items due for works pertaining to “marble”, “granite”, “homogenous tiles”, “glazed mosaic”, “slate”, “cobblestone”, “Indian Rosewood” and “engineering wood”. ⁸³ However, to date, the defendant avers that he has not received any supporting documents (including but not limited to the M&E contract, quotations, purchase orders, delivery orders and invoices) for the PC Sums and PC Rate items. ⁸⁴

36 In totality, the defendant makes the following counterclaim against the plaintiff: ⁸⁵

(a) liquidated damages of $3,600 per calendar day from 21 February 2013 (the original completion date) to the present day; ⁸⁶

(b) as an alternative claim to liquidated damages, loss of rental income due to the delay by the plaintiff in the completion of the Project (although the defendant subsequently indicated he was no longer pursuing this head of claim); ⁸⁷

(c) costs of rectifying all defective works, quantified at $1,632,415.20; ⁸⁸

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

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

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

(g) interest and costs.

37 The defendant also submits that by reason of the unlawful conspiracy, the third party should be made jointly liable with the plaintiff for the abovementioned losses suffered by the defendant. ⁸⁹ The third party is also liable for the breaches of its contractual and tortious duties, ⁹⁰ and the legal expenses incurred by the defendant in the summary judgment application, the details of which are set out at [718]–[724] below. Finally, the defendant avers that the third party is liable to indemnify the defendant from and against the claim brought by the plaintiff against the defendant. ⁹¹

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

39  The third party avers that the tender was conducted fairly and the EOTs, CC, MC and payment certificates were issued properly, honestly and in good faith based on its independent and professional judgment. ⁹²

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

41 The third party denies the defendant’s allegation that it had “pushed” for the plaintiff to be awarded the tender over the other tenderers. The third party maintains that it was simply performing its professional duties to the defendant by recommending the most suitable contractor for the Project. Furthermore, there were valid grounds for the third party’s recommendation. For example, CCA had also recommended that the plaintiff be appointed, as it had the most competitive bid for the M&E installations. ⁹³ The third party stresses that ultimately, the defendant alone was responsible for making the decision on which contractor to appoint. ⁹⁴

42 The plaintiff and the third party contend that there was no conspiracy for the third party to grant EOTs to the plaintiff. The plaintiff also did not apply improper pressure on or influence the third party to secure the EOTs. The third party issued the EOTs strictly in accordance with cl 23(1) of the SIA Conditions and the EOTs were reasonable, made properly, honestly and in good faith. ⁹⁵

43 At the trial, the third party’s counsel, Mr Thio Shen Yi SC, pointed out to the defendant that his characterisation of the events surrounding EOT 1 is flawed. ⁹⁶ The contemporaneous documents, particularly the minutes of the site meetings, do not support the defendant’s assertion that it was Mr Cheung who had raised the issue of the critical path, thereby preventing EOT 1 from being granted. Instead, it was the third party who first raised the issue of the critical path, within a week of the plaintiff’s request. ⁹⁷ This request was made repeatedly at the following site meetings, as reflected in the minutes. Accordingly, far from supporting the defendant’s conspiracy allegation, the third party’s evaluation process in EOT 1 illustrates its professional and independent assessment of the plaintiff’s EOT requests.

44 Further, the plaintiff contends that there were indeed genuine and legitimate reasons for its application for EOT 1 on account of the delay by the defendant in marble selection and confirmation, thereby affecting marble delivery. According to the plaintiff, the screeding work progress includes various areas for laying marble, ceramic tile and timber parquet and the sequence of work started from the laying of the marble. At the material time when the plaintiff applied for EOT 1, it had yet to receive 70% of the marble required to complete the Project. ⁹⁸ Furthermore, the arrival of the marble slabs in the warehouse of the supplier did not automatically mean that it was ready for delivery because the marble slabs needed to be processed for the Project before they were ready to be sent to the work site. This included quality checks, defect rectification such as pin-hole patching, fissure or open vein patching, polishing, cutting to size as per shop drawing, colour tone matching, and finally the packing of the marble pieces for delivery to the worksite. ⁹⁹

45 The plaintiff and the third party deny the defendant’s allegation that the third party had no basis to grant EOT 2 and EOT 3. The plaintiff and the third party submit that the delays for which EOT 2 and EOT 3 were granted were solely caused by SPPG and not the plaintiff. There was an inordinate delay by SPPG in arranging for the power connection. Furthermore, SPPG had by way of a letter dated 21 November 2012 introduced a new and unexpected requirement for an OG Box at a very late stage in the Project. ¹⁰⁰ Since the plaintiff had acted with due diligence at all times, it was entitled to EOTs for the delay in electrical turn-on by SPPG, which would in turn cause delay to the T&C of the M&E works at the Project.

46 In so far as EOT 2 is concerned, the plaintiff argues that the electrical meter compartments were ready as of 8 October 2012. ¹⁰¹ The third party similarly accepts that the electrical meter compartment, including the doors, were only made ready by the plaintiff in or around October 2012. ¹⁰² Accordingly, the plaintiff was in delay pursuant to the Master Programme. But the timelines in the Master Programme were not peremptory, instead they were flexible with built-in buffer time. The third party had assessed that but for the delay events by SPPG, the Project could still be completed on schedule, notwithstanding the plaintiff’s delay in installing the electrical meter compartment doors. ¹⁰³ The plaintiff’s delay in installing the electrical meter compartment doors and SPPG’s delay in electrical turn-on were entirely independent of one another. Thus, it could not be said that the plaintiff’s failure to exercise due diligence, if any, contributed to SPPG’s delay in electrical turn-on.

47 The plaintiff and the third party disagree with the defendant that the plaintiff had failed to exercise due diligence in relation to the delay in installing the electrical meter compartment doors. They contend that the purpose of the Master Programme is primarily to monitor the reasonable progress of the Works. The Master Programme does not stipulate contractual deadlines for the plaintiff to strictly adhere to, failing which it would have failed to act with due diligence. ¹⁰⁴

48 The plaintiff and the third party also deny that the circumstances surrounding EOT 2 suggest that the result was pre-determined. The third party denies that it “directed” the plaintiff to submit further details for EOT 2. The third party merely sought further substantiation in order to determine fairly and impartially whether the plaintiff was entitled to an EOT. ¹⁰⁵ CCA was also given sufficient time to provide its views on EOT 2. Finally, although F+G had recommended additional costs in respect of EOT 2 before it was granted, this figure was expressly stated in the remarks column to be “pending justification and Architect’s assessment”, and was subsequently removed in a later cost report. ¹⁰⁶

49 For EOT 3, the plaintiff and the third party deny that the failure of the First Testing and Inspection is evidence of the plaintiff’s lack of due diligence. Although the Project failed SPPG’s First Testing and Inspection because certain mechanical and electrical items did not comply with SPPG’s safety and connection requirements, these were not construction faults. ¹⁰⁷ The plaintiff had constructed the electrical installation works fully in accordance with the M&E construction drawings for the Project. ¹⁰⁸ The comments arising from SPPG’s First Testing and Inspection required the plaintiff to make some amendments on the single line diagram. There were also comments for the plaintiff to rectify some signage, earthing and minor statutory non-compliance issues. Accordingly, the plaintiff could not be said to have acted without due diligence.

50 In addition, the plaintiff and the third party deny that the circumstances surrounding EOT 3 suggest that the result of EOT 3 was pre-determined. Although CCA had initially refused to support the plaintiff’s request for EOT 3, CCA acknowledged that their initial refusal was “too hasty”. ¹⁰⁹ In any event, it was the third party who had to make the ultimate decision of whether or not to grant EOT 3. The third party honestly believed that the plaintiff was entitled to EOT 3 as the request for EOT 3 arose from the same set of issues in EOT 2.

51 The third party asserts that the CC was issued properly, honestly and in good faith based on its independent and professional judgment. ¹¹⁰ The plaintiff agrees that the third party was entitled to certify completion on 17 April 2013. ¹¹¹

52 Firstly, the third party was of the honest opinion that the Project was “ready for occupation and for use”. Therefore, Item 72(a) of the Preliminaries was satisfied. In this regard, both the plaintiff and the third party are of the opinion that it is not a condition precedent for the TOP to be awarded by the BCA before the CC can be issued. The Project “was for all practical intents and purposes, physically ready for occupation and use”. ¹¹² The third party was of the opinion that any further work on the Project, including the rectification of the steps and risers, were “minor outstanding works”. ¹¹³

53 Secondly, the plaintiff and the third party also submit that Item 72(b) of the Preliminaries was satisfied as, save for the gas supply, all the services at the Project were tested, commissioned and operating satisfactorily at the time the CC was issued. The gas supply was not tested and commissioned prior to the issuance of the CC due to safety concerns raised by CCA and the defendant consented to this. ¹¹⁴

54 As for the requirement for all test certificates, operating instructions and warranties to be handed over to the defendant before the issuance of the CC, the third party took a “practical approach” and decided that these documents could be prepared during the maintenance period. The focus was to deliver on the “key deliverable”, which was the construction of the Project. ¹¹⁵ The plaintiff also states that the defendant refused to take over the Project after the CC and the TOP were issued. This further resulted in the late handing over of the test certificates, operating instructions, and warranties. ¹¹⁶

55 Thirdly, Item 72(c) of the Preliminaries was also satisfied as all the alleged defects identified by the defendant had been properly rectified by the plaintiff during the maintenance period. Furthermore, some of the alleged defects were due to the natural characteristics of the materials chosen by the defendant, while others were due to a lack of maintenance or wear and tear. The third party also asserts that the plaintiff and the third party cannot be liable for the full costs of rectifying the defects due to the defendant’s complete failure to mitigate his alleged losses, for example, by leaving the premises unattended since July 2014 when the Project was handed over to him.

56 The third party submits that it issued the MC on 7 July 2014 as it was satisfied that all the defects, including those validly raised by the defendant through BAPL, had been rectified. ¹¹⁷ Furthermore, the third party avers that there was sufficient time given to the defendant and BAPL to prepare their list of defects. In addition, there was no need to issue a Schedule of Defects as the MC was only issued when the third party was satisfied that all the valid defects had been rectified by the plaintiff. The plaintiff agrees with the third party. Furthermore, the plaintiff adds that even as late as 30 April 2014, the list of defects highlighted by BAPL continued to expand and most of the items identified were repetitive and some were merely photographs without any proper indication of the exact locations of the defects. ¹¹⁸ The plaintiff also denies that it requested the third party not to accept the list or photographs of the alleged defects.

57 The plaintiff and the third party argue that IC25, IC26 and the FC were issued by the third party properly, honestly and in good faith based on the third party’s independent and professional judgment. The third party had exercised reasonable skill and care in issuing the three payment certificates. ¹¹⁹

58 With regard to the retention sum, the third party withheld it until such time as the outstanding works stated in the schedule of the CC were completed. After the issuance of the CC, the plaintiff made a claim for the release of the first half of the retention sum. The third party only certified the release of half of the retention sum in IC25 when it was satisfied that the corresponding amount of works was completed. The other half of the retention sum was withheld and certified for release only in the FC. ¹²⁰

59 The third party also avers that it exercised its professional judgment in coming to the conclusion that there was no delay to the Project. Accordingly, there was no basis to issue a delay certificate for liquidated damages payable by the plaintiff to the defendant. ¹²¹

60 Finally, the third party argues that it properly accounted for the PC Sums and the PC Rate items claimed by the plaintiff. The third party was provided with all the necessary supporting documents to verify and approve the amounts claimed. Copies of these supporting documents were provided by F+G to the defendant’s solicitors on 23 June 2014. The supporting documents were again given to the defendant on 28 October 2014. In any event, the third party submits that the Contract does not mandate the provision of supporting documentation by the plaintiff to the third party before an architect’s instruction can be issued. ¹²²

61 The plaintiff also points out that with regard to the PC Sum and the PC Rate items, these sums were quoted by the Nominated Subcontractors (“NSC”) or Nominated Suppliers (“NS”) who were selected and approved by the defendant and with whom the plaintiff was directed by the defendant to contract with and/or were assigned to the plaintiff by the defendant. The defendant, therefore, approved the NSCs and the NSs and so must have known and approved their costs. ¹²³ Hence, the plaintiff was not responsible to submit any supporting documents to the defendant. ¹²⁴

62 Under the MOA, the defendant was to pay the third party for the provision of professional services for the Project. Clause 2 of the MOA states: ¹²⁵

63 The amount of fees payable to the third party (“Architect’s Fee”) is set out in the Schedule of Architect’s Fee in the MOA. ¹²⁶ The relevant clauses are cll 2.2(m) and 2.2(n) read with cl 2.1(5)(b) of the MOA, which stipulate how and when the portions of the Architect’s Fee become progressively payable. Under cl 2.2(m), 3% of the Architect’s Fee became payable when the Project obtained a TOP while under cl 2.2(n), 2% of the Architect’s Fee became payable when the Project obtained a Certificate of Statutory Completion (“CSC”).

64 The TOP for the Project was obtained on 16 September 2013 and the CSC for the Project was obtained on 12 May 2014. ¹²⁷ Thus, the third party is now claiming from the defendant 5% of their Architect’s Fee, which is in the sum of $60,990 with interest.

65 Having provided the relevant background to this dispute, it is now necessary to highlight that the plaintiff had filed an application to enter summary judgment against the defendant for the non-payment of IC25 and IC26 under O 14 r 1 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“Rules of Court”). The plaintiff argued that cl 31 of the SIA Conditions entitled it to full payment of the claimed sums. The relevant portions of cl 31 state as follows: ¹²⁸

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

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

68 It must be emphasised that the CA expressly acknowledged at [105] that its “findings at [the] enforcement stage … will necessarily be prima facie and non-conclusive at the substantive and final determination of the disputes between the parties”. ¹²⁹ This general principle in summary judgment applications must apply with greater force when one considers the following facts. The third party was not a party to the summary judgment application and did not make submissions in Ser Kim Koi (Court of Appeal). It had only filed a brief affidavit in support of the plaintiff’s application. This was also acknowledged by the CA, who stated at [77] that the third party ought to have provided more detailed explanations about the certificates in question. In addition, given that the summary judgment application was not concerned with the merits of the certificates, but only with enforcement, the relevant and complete documents were not produced before the CA. Furthermore, the parties were not cross-examined. I shall elaborate on the CA’s judgment in greater detail below.

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

70 The CA in EFT Holdings, Inc and another v Marinteknik Shipbuilders (S) Pte Ltd and another [2014] 1 SLR 860 (“EFT Holdings”) at [112] sets out the following requirements to establish the tort of unlawful means conspiracy: ¹³⁰

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

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

(c) the acts were unlawful;

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

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

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

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

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

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

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

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

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

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

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

75 The defendant was the only factual witness who testified in support of his claim in unlawful means conspiracy. Although he had engaged Assistants who were his personal private advisers to closely monitor the progress of the construction of the Project, he did not call them as his witnesses. In his pleadings he alleged that the plaintiff and the third party had conspired to: ¹³¹

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

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

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

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

80 The defendant had a propensity to make reckless and speculative allegations, despite knowing that these allegations and suspicions were tenuous and unsupported by evidence. To use the defendant’s own expression, these allegations were based on his mere “feelings”. ¹³² There was no direct or even circumstantial evidence to support these allegations. In most instances, these allegations were not even pleaded or included in the defendant’s AEIC.

81 For instance, when he was cross-examined by the plaintiff’s counsel, Mr Thulasidas s/o Rengasamy Suppramaniam, the defendant made the Bribery Allegation and alleged unequivocally that the plaintiff had bribed the third party in order to be awarded the tender. ¹³³ Notably, this was the first instance in which the court was apprised of this enormously serious allegation. The Bribery Allegation was not pleaded or included in the defendant’s AEIC.

82 The Bribery Allegation was later retracted by the defendant on the same day after he conceded that he did not have any evidence that the plaintiff had bribed the third party. ¹³⁴ However, this retraction was equivocal, in so far as the defendant later re-surfaced the allegations of bribery and corruption in cross-examination. The defendant expressly acknowledged that these allegations were only speculative: ¹³⁵

83 The defendant also alleged that the Consultants, apart from Web, were parties to the conspiracy to injure him. When asked by the third party’s counsel what motivation or reason the Consultants had to injure him, the defendant again raised allegations of bribery and corruption. The premise of the defendant’s allegations was his observation that the Consultants had changed to “bigger and better car[s]”: ¹³⁶

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

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

(a) The defendant’s allegation that RTO Leong, the plaintiff and the third party had deliberately sabotaged the hard drive of RTO Leong’s laptop in order to prevent the defendant from retrieving relevant information. ¹³⁷ However, the defendant later conceded that just because RTO Leong’s hard drive was damaged did not mean that it was sabotaged. ¹³⁸

(b) The defendant’s allegation that there were tenders which were submitted late, possibly including the plaintiff’s tender. This was based on what he apparently heard from a lady at the third party’s office, which was in any event hearsay. ¹³⁹

(c) The defendant’s allegation that Soil-Build was discriminated in the way the tender process was implemented. This was based on what Soil-Build purportedly told him, which was also hearsay. ¹⁴⁰

(d) The defendant’s allegation that CCA’s statement in its final tender report that “[t]he [plaintiff’s] tender submission is generally complete and in compliance with the tender specifications” was incorrect. ¹⁴¹ However, the defendant could not explain why he disagreed with CCA’s statement. ¹⁴²

(e) The defendant’s allegation that Daiya had submitted the schedule for deviations, contrary to what CCA had stated. The defendant’s allegation was based on what Daiya’s boss had apparently told Ms Linda Chua Hwee Hwee (TPW7, “Ms Chua”) of CCA, which was in any event hearsay. ¹⁴³

(f) The defendant’s allegation that Soil-Build must have complied with the tender given that it is a listed company. ¹⁴⁴

86 When questioned on the numerous inconsistencies in his evidence, the defendant also sought to shy away from responsibility. On occasion, when he was caught or cornered with inconsistent statements in cross-examination, he went as far as to state: ¹⁴⁵

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

88 In his testimony in court, the defendant claimed to have knowledge of the conspiracy as early as between March and May 2011, when the tender was awarded to the plaintiff. ¹⁴⁶ Yet, the defendant refused to take any action after he supposedly was convinced that there was a conspiracy by the plaintiff and the third party to plot against him. This can only be described as bizarre if he had, indeed, known that he was a victim of a conspiracy to defraud him at the nascent stage of the Project. This aspect of the allegations he made in court is not in the defendant’s pleadings or in his AEIC. It is unbelievable that the defendant, an experienced, shrewd and very wealthy businessman, would sit idly by and allow the plaintiff and other professionals to conspire to defraud him of millions of dollars.

89 The defendant also claims that he is a man of principle. He explained that he does not intend to seek alternative settlement of this case as he wishes to contest this case as a matter of principle. ¹⁴⁷ Yet when he purportedly discovered the conspiracy against him by the third party, the plaintiff, and the Consultants at the early stage of the Project, he claimed that he did not do anything as he just wanted the Project to be completed. ¹⁴⁸ This is deeply inconsistent with the behaviour one would expect from a man of principle. This suggests that there is no truth in the defendant’s allegations that he knew there was a conspiracy to injure or defraud him.

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

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

92 From the defendant’s pleadings and AEIC, it is clear that the parties to the alleged conspiracy to injure him were only the plaintiff and the third party. This was also the position taken in the defendant’s opening statement. There was not the slightest hint that the Consultants, excluding Web, were co-conspirators as well. However, when cross-examined by the third party’s counsel, the defendant then expanded the number of conspirators to almost every professional involved in the Project. The only individuals who were spared were Jessie Tan (TPW8, “Ms Tan”) from Web, the defendant’s wife and his Assistants. The defendant took the position that eight other professionals involved in the Project were all lying and he was the only factual witness that was telling the truth. ¹⁴⁹ The list of conspirators is as follows:

(a) in relation to the tender process, Mr Dennis Tan (PW1, “Mr Tan”) and Mr Angamuthu Manoosegaran (PW2, “Mr Manoosegaran”) (from the plaintiff), Mr Phillip Yong (TPW1, “Mr Yong”), Ms Pakawadee Chiyachan (TPW3, “Ms Chiyachan”) and Mr Chan (TPW2) (from the third party), and Ms Chua (TPW7) (from CCA); ¹⁵⁰

(b) in relation to EOT 1, Mr Tan and Mr Manoosegaran (from the plaintiff), Mr Yong, Ms Chiyachan and Mr Chan (from the third party), and Mr Daniel Ng Pak Khuen (TPW6, “Mr Ng”) from F+G; ¹⁵¹

(c) in relation to EOT 2 and EOT 3, Mr Tan and Mr Manoosegaran (from the plaintiff), Mr Yong, Ms Chiyachan and Mr Chan (from the third party), Ms Chua (from CCA) and Mr Ng (from F+G); ¹⁵²

(d) in relation to the CC and the MC, Mr Tan and Mr Manoosegaran (from the plaintiff), Mr Yong, Ms Chiyachan and Mr Chan (from the third party), Ms Chua (from CCA), Mr Ng (from F+G) and RTO Leong; ¹⁵³ and

(e) in relation to IC25, IC26 and the FC, Mr Tan, Mr Manoosegaran and the plaintiff’s QS (from the plaintiff), Mr Yong, Ms Chiyachan and Mr Chan (from the third party), Ms Chua (from CCA), Mr Ng (from F+G) and RTO Leong. ¹⁵⁴

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

94 This allegation of conspiracy was vehemently objected to by Mr Ng, on behalf of F+G, as follows: ¹⁵⁵

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

96 Furthermore, if F+G was one of the conspirators with the plaintiff and the third party, why did the defendant through Mr Cheung, on 31 December 2013, engage F+G to “prepare a valuation of the defective works found in the Units”? ¹⁵⁶ Going by the defendant’s allegations, in December 2013 the relationship between the defendant, the plaintiff and the third party was not working out well and the defendant was already highly suspicious of the plaintiff and the third party. If F+G truly was a party to the conspiracy, the defendant would not have trusted F+G to conduct a valuation of the defective works.

97 The defendant’s allegations of conspiracy on the part of RTO Leong are equally incredible. His speculations of such conspiracy are captured in the following exchange in court between the defendant and the third party’s counsel: ¹⁵⁷

98 When RTO Leong was questioned about this in court, he testified as follows: ¹⁵⁸

99 I note at this point that RTO Leong’s evidence must be treated with caution. There was one instance in which he revealed candidly that he signed that he had witnessed the testing and commissioning of the swimming pools for the Project on 15 July 2013 when he did not do so. He said he was asked to do so by Mr Sankar (one of the plaintiff’s staff), who informed him that Ms Chua had asked him to sign. As Ms Chua was the M&E engineer and his superior in the Project, RTO Leong felt pressured to comply. ¹⁵⁹ However, this was contradicted by Ms Chua on the stand who denied making such a request to RTO Leong through Mr Sankar. ¹⁶⁰

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

101 Similar to what the defendant had done with F+G, he had in fact employed RTO Leong directly to work for him, after RTO Leong was released from the Project on 1 July 2013. He wanted RTO Leong to identify more defects and to monitor the defect rectification on his behalf because of RTO Leong’s familiarity with the Project. This was reflective of the defendant’s relationship with RTO Leong at the time of the Project, as RTO Leong testified: ¹⁶¹

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

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

104 The defendant claims that he was aware of the purported conspiracy between the plaintiff and the third party from as early as March to May 2011, which was when the tender for the main contractor of the Project was processed. ¹⁶² This was at the start of the Project. However, in spite of this knowledge, the defendant did not protest or even entertain the idea of replacing the plaintiff and the third party. The defendant claimed that he still wanted to “trust” the plaintiff and the third party, even though he knew that they were defrauding him of millions of dollars. ¹⁶³ The defendant’s explanation is unconvincing and unbelievable. Any reasonable individual, let alone an experienced and principled businessman, as the defendant claimed he was, would have dismissed the plaintiff and the third party if he knew that he was indeed a victim of fraud.

105 Further, the defendant did not even tell anyone, including his wife and his trusted Assistants, about his knowledge of the alleged conspiracy. ¹⁶⁴ It is strange that he did not even alert his hand-picked Assistants who he personally employed to safeguard his interests in the Project about the alleged conspiracy. The defendant has also, to date, not made a police report in relation to the conspiracy, nor has he made complaints about the conspiracy to injure him against the professionals involved in this Project to the respective professional bodies. ¹⁶⁵ The defendant, by his own account, essentially did nothing when he purportedly suspected the alleged conspiracy. There are also no records in the contemporaneous correspondence and documents, including the minutes of the site meetings, to suggest even the slightest hint of any conspiracy between the plaintiff and the third party.

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

107 For the purpose of his case, the defendant relied on nine experts in order to defend and counterclaim against the plaintiff and the third party. However, he did not call any of his Assistants to testify as to the presence of the conspiracy that has tainted most of his defence and the basis of his counterclaim. ¹⁶⁶ I have earlier at [8] made reference to the defendant’s Assistants, who were a group of individuals whom the defendant had hand-picked and paid to assist him in monitoring the Project. However, when the defendant was cross-examined on their exact role in the Project, the defendant sought to significantly downplay their roles. The inference is clear. Should he call these Assistants to testify, his case, particularly the serious allegations of conspiracy and fraud on the part of the plaintiff and the third party, would be severely undermined. The Assistants were the very individuals best placed to establish the presence of a conspiracy, as they would have been well-apprised of the development of the Project and could bear witness to everything alongside the defendant.

108 I begin with Mr Chow, who attended most of the site meetings. According to the defendant, Mr Chow’s “main job” was to “make sure that the waterproofing when they are putting up the membrane, he take a look and make sure that it is fully covered [sic]”. ¹⁶⁷ In fact, he had been brought in by the defendant as an additional check on the progress of the plaintiff and the Consultants: ¹⁶⁸

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

110 Similarly, in the case of Dr Anand, although he was involved in the Project for a short duration, he attended the site meetings fortnightly during the period of his involvement. According to the defendant, Dr Anand’s role was as follows: ¹⁶⁹

111 Dr Anand’s role was, thus, to meticulously place on record every occurrence and discussion at the site meetings. He had been brought in to do this and was remunerated well, because the defendant was of the opinion that the plaintiff and the third party had refused to keep proper records. In fact, it appears that Dr Anand attended the site meeting on behalf of the defendant when the defendant was on holiday. ¹⁷⁰ Both Mr Chow and Dr Anand were well positioned to provide evidence as to the existence of any conspiracy, given their heavy involvement in the Project. This fact raises the irresistible and obvious question of why the defendant refused to call them as his witnesses.

112 Mr Cheung was the general manager and director of BKAsiaPacific (Singapore) Pte Ltd, a claims consultancy which specialises in infrastructure and construction claims. According to his curriculum vitae, which was tendered by the third party, ¹⁷¹ Mr Cheung regularly provides expert reports and advice in relation to construction and infrastructure projects. Mr Cheung also has vast experience in giving evidence in court as an expert witness.

113 Notwithstanding Mr Cheung’s significant expertise and experience, the defendant claimed that he paid Mr Cheung a $5,000 “token sum” monthly to perform “only administrative” work. ¹⁷² Specifically, the defendant alleged that Mr Cheung was apparently engaged only to send and receive e-mails on behalf of the defendant and to record minutes of the site meetings. ¹⁷³ The defendant strongly disagreed with the third party’s counsel that Mr Cheung was his “adviser”, “main agent”, or that he was heavily involved in the Project.

114  However, nothing could be further from the truth. Unbeknownst to the defendant, the third party’s counsel was in fact simply using the defendant’s own description of Mr Cheung’s role in the Project from the defendant’s earlier affidavits dated 20 March 2017 ¹⁷⁴ and 20 April 2017 ¹⁷⁵ as his adviser and main agent for the Project. The defendant was unable to explain the clear and obvious contradictions in his evidence, as revealed in the following excerpt: ¹⁷⁶

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

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

117 In response to my question, the defendant again maintained his incredible story that his Assistants (including Mr Cheung) merely played minor roles, and that he (ie, the defendant) was the only one who knew about the conspiracy against him: ¹⁷⁷

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

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

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

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

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

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

124 To further his campaign against the plaintiff and the third party, the defendant sought the help of Mr Chin Cheong (DW7, “Mr Chin”), the managing director of BAPL and the defendant’s expert witness, to identify as many defects as possible in the Project. In December 2013, Mr Chin was engaged by the defendant to identify all defects and suggest methods of rectification. Subsequently, Mr Chin compiled his first findings in Building Appraisal Pte Ltd Report December 2013 (the “2013 BAPL Report”). ¹⁷⁸

125 Based on, inter alia, the findings in the 2013 BAPL Report, the plaintiff carried out rectification works seeking to appease the defendant. This proved to be of no avail as the defendant repeatedly directed Mr Chin to carry out further investigations on the properties. These further investigations occurred in the following months: ¹⁷⁹

(a) April 2014;

(b) June to November 2014, resulting in the Building Appraisal Pte Ltd Report November 2014 (the “2014 BAPL Report”); ¹⁸⁰

(c) April 2016;

(d) June 2016;

(e) June to July 2017;

(f) May 2018;

(g) August 2018; and

(h) September 2018.

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

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

128 Mr Chin agreed that he was the defendant’s representative, ¹⁸¹ but in response to cross-examination, Mr Chin vehemently insisted that he was “independent and impartial” and that he had “no interest in … any of the parties in this dispute”. ¹⁸² He again reiterated this point as follows: ¹⁸³

129 Mr Chin alleged that his duties were to the court when he prepared his first report, ie, the 2013 BAPL Report. At that time, however, the present Suit had not yet commenced. It was only on 13 January 2014 that a writ of summons was filed by the plaintiff. Mr Chin was told in cross-examination that he could not have been an expert to assist the court as this Suit had not started when he was first engaged by the defendant. In response, he steadfastly stuck to his story that he had prepared his 2013 BAPL Report as an independent expert to the court. ¹⁸⁴

130 It is clear from the evidence that Mr Chin intended to further the defendant’s interest. Mr Chin sought to comment on every disputed defect regardless of its severity. He also overreached and provided his opinion on defects that he later conceded he had no experience in (eg, the gas pipe, the alleged leakages in the swimming pools, Volakas marble, iron wood, etc). In his reports, he gave the impression that he had the prerequisite knowledge and expertise in all matters that he commented on. It was only in court that he disclosed that he was a charlatan as he did not have the expertise in those areas: ¹⁸⁵

131 Mr Chin also vacillated in his evidence. These are some examples of his contradictory evidence in relation to his testimony on the swimming pool: ¹⁸⁶

132 He also gave contradictory evidence on the Volakas marble flooring. Initially, he testified as follows: ¹⁸⁷

133 Later when he was asked again, he retracted from his earlier answer: ¹⁸⁸

134 Furthermore, Mr Chin’s recommendations for rectification works were generally highly excessive and unreasonable. For instance, in relation to the Volakas marble flooring, he stated in his AEIC that the marble had to be completely replaced as laying new tiles alongside old tiles would only create a “‘chessboard’ effect”. ¹⁸⁹ In his 2014 BAPL Report, Mr Chin also provided a mapping of the Volakas marble, identifying those with deficiencies and imperfections. ¹⁹⁰ However, his mapping listed almost the entire marble plan as being defective. I observed that this meant that effectively, the entire marble flooring had to be replaced, which Mr Chin agreed with: ¹⁹¹

135 However, when asked again in court, he conceded that it was not necessary to replace the Volakas marble, much less all of the Volakas marble, as there were alternative methods of rectification: ¹⁹²

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

A: Yes.

Q: For all three units, correct?

A: Yes.

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

A: Yes.

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

A: Yes.

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

A: Yes.

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

A: Yes.

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

137 The Project’s original contract lump sum value was $13,130,000. As I have mentioned earlier, the defendant counterclaims against the plaintiff for the sum of $12,752,651 ¹⁹³ and has taken out a third party claim against the third parties for the sum of $10,853,718.63. ¹⁹⁴ The defendant’s claims against the plaintiff and the third party are excessive. If the defendant’s claims were allowed, he would essentially be getting three two-storey good class bungalows for almost free or at a very small fraction of their original contract price. ¹⁹⁵ It is clear that the equity of the case is not with the defendant’s claims against the plaintiff and the third party.

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

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

140 Till this date, the defendant has made no efforts to mitigate his losses by carrying out defect rectification works. He testified that he only carried out maintenance of the swimming pools and gardening works, ¹⁹⁶ opting to leave any defects unattended to “for evidence”. ¹⁹⁷

141 When the defendant was cross-examined by the plaintiff’s counsel, the defendant stated that as of the handover date (ie, 23 July 2014), he had intended to rectify the defects but was unable to find a contractor to perform the rectification works. ¹⁹⁸ This cannot be the truth, as the evidence shows that after the defects were discovered, the defendant called for a tender to repair the defects. Three separate companies submitted tenders as they were interested to rectify the defects but the defendant failed to award the contract. ¹⁹⁹ Furthermore, it was revealed when the defendant was cross-examined by the third party’s counsel that the defendant in fact had no intention to rectify the premises as he wanted to “preserve evidence”. This was his true intention which was formed shortly after the CC was issued and before the handover date (ie, 23 July 2014): ²⁰⁰

142 Therefore, it is clear that it was the defendant who chose not to make an award to one of the three contractors whom he had invited to tender to rectify the defects. ²⁰¹ Instead, he opted to leave the defects unrectified and chose to go about collecting evidence against the plaintiff and the third party, essentially fiddling while Rome burned. He inexplicably maintains this unreasonable position until today, despite the plaintiff indicating that it was willing to rectify certain defects even after litigation had commenced. ²⁰²

143 The defendant has also persistently refused to rent out the Project after it was completed and obtained the TOP and the CSC, if that was his intention. ²⁰³ The defendant explained that he had not rented the houses out because they were not in “rentable condition”. ²⁰⁴ He further opined that the houses are, in his view, unsafe for rental as, among other things, the steps and risers are unsafe. ²⁰⁵ However, based on the evidence from his own expert witness, Mr Teo Yik Weng (DW3, “Mr Teo”), this cannot be further from the truth. The defendant engaged Mr Teo to give evidence regarding the market rental value of the three units of the Project. Mr Teo examined the three units on 27 February 2018 to assess their market rental value. Mr Teo acknowledged that there were defects in the units. ²⁰⁶ However, he said that these defects did not affect the rental prospects of the units. ²⁰⁷ In fact, he candidly acknowledged that the units were “fit for occupation” and that he would be able to rent them out. ²⁰⁸

144 At the trial, the defendant consistently maintained that the units of the Project were unsafe for tenants because of the unevenness in the height of the steps and risers. When the defendant was questioned on why he thought the units were not in rentable condition, the defendant replied, “The step and riser is one of them. If people get injured, we will be in big trouble. …” ²⁰⁹ However, the defendant’s assertion that the units are unsafe clearly holds no water, given that the units had been awarded the TOP as early as 16 September 2013. In fact, one of the non-compliances required by the BCA to be rectified before TOP could be issued was precisely the uneven steps and risers. The fact that the BCA subsequently issued the TOP, after the steps and risers were rectified, demonstrates that the BCA found them to be compliant and, therefore, safe. Furthermore, the defendant’s claim was clearly rebutted by his own witness, Mr Teo, who testified that he was able to climb the stairs of the three units safely to inspect the unit, despite his age: ²¹⁰

145 This shows the unreasonableness of the defendant’s assertion and his economy of the truth that he could not rent out the units due to safety concerns. Even if he held the view that the defects substantially reduced the rental value of the units, this did not mean that he could simply refuse to mitigate his losses by not renting out the units. The units could still fetch a high rent, as Mr Teo testified: ²¹¹

146 It is not in dispute that the units have been left vacant by the defendant since July 2014 when the Project was handed over to him. ²¹² However, I emphasise that the crucial time of assessment of damages remains in the year 2014. This was the year in which the Project was handed over to the defendant. It would be grossly unfair if the plaintiff and the third party were found liable for any defects not arising from the plaintiff’s construction error which may have occurred since that date, especially the purported defects reported in 2018, when the defendant deliberately allowed the units in the Project to deteriorate. The defendant attempted to introduce certain defects discovered at various points in time from 2014 to date. This attempt by the defendant is not equitable as the defects could have been the result of the defendant’s deliberate refusal to maintain the Project, rather than due to the plaintiff’s construction errors. Therefore, the defendant’s reliance on expert reports and photographs of alleged defects after 2014 must be treated with extreme caution.

147 The defendant also unreasonably insists on total and absolute rectification of all the defects alleged by him. For example, the defendant claims that the plaintiff should compensate him for the defects in the Volakas marble on the basis of a full replacement of the Volakas marble in the Project, which costs $528,578.20. ²¹³ Similarly, the defendant claims that he should be awarded the costs of replacing all the foldable glass doors in the Project, which would amount to $246,160. ²¹⁴ The defendant also claims that the aluminium cappings at the rooftop of the Project should be completely replaced with powder coated aluminium cappings, the cost of which is $142,175. ²¹⁵ If one were to adhere to the defendant’s expert’s opinion in respect of the ironwood timber decking, that would also entail essentially a complete replacement of the decking. ²¹⁶

148 In his insistence on total and absolute rectification, the defendant has failed to consider and implement more cost-effective and value-added options to remedy the alleged defects. First, despite having been provided various warranties in respect of the Project (eg, waterproofing systems/additives, aluminium and glazing works, external spray coatings/silicate painting, tiling, ironwood, rosewood), the defendant has not called upon any of them to remedy the alleged defects. ²¹⁷ Calling upon these warranties would not cost the defendant very much. In fact, the very purpose of such warranties is to allow the defendant to obtain rectification of defects that may arise after the completion and handover of the Project. Secondly, the defendant persistently refused the plaintiff’s offers to rectify the alleged defects at no cost to the defendant. ²¹⁸ As such, the defendant is clearly being unreasonable in his insistence on total and absolute rectification despite having the options of calling on the relevant warranties to rectify the alleged defects and/or allowing the plaintiff to carry out rectification works.

149 Before examining the defendant’s allegations more closely, I first consider the preliminary issue of whether the defendant has legal recourse against the second third party in respect of any claim arising out of the MOA. The second third party was incorporated in or around October 2011, as stated at [4] above. This was after 16 June 2009, the date on which the MOA between the defendant and his wife and the first third party was concluded. Since the first third party and the second third party are separate legal entities, ²¹⁹ there was no privity of contract between the defendant and the second third party in relation to the MOA. As such, the second third party would not owe any obligations to the defendant under the MOA unless there had been a novation of such obligations.

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

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

152 In this case, a deed of novation was forwarded to the defendant on 20 December 2011. This deed of novation would have contractually transferred to the second third party all of the first third party’s rights, duties and obligations vis-à-vis the defendant arising from the MOA . However, the defendant failed to sign and return the deed of novation. This was done at his own choice, as he explained in court: ²²⁰

153 As in Schindler Lifts, it is notable that an express deed of novation was proposed in this case but ultimately unsuccessful. Given that the defendant himself had rejected the deed of novation, it is now disingenuous for him to turn around and seek to bind the second third party to the first third party’s obligations under the MOA. Furthermore, there is no evidence to show that there was an oral or implied novation. In this respect, the defendant contends that the representatives of the second third party continued to deal with the defendant in relation to the Project under the second third party’s electronic signature and the defendant made payment for services rendered for the Project directly to the second third party. ²²¹ This is clearly insufficient to amount to an implied novation. In Schindler Lifts, the subcontractor also continued to deal with the owner, and retention moneys were released to the subcontractor. Yet, Prakash J held that there was no implied novation. The position here is no different.

154 Therefore, by virtue of the defendant’s failure to sign this deed of novation, as well as the lack of evidence otherwise showing a novation of the MOA, the rights, duties and obligations arising from the MOA remained with the first third party. ²²² The defendant himself admits that the MOA was not novated from the first third party to the second third party because the defendant did not agree to the novation. ²²³

155 In reply submissions, the defendant clarified that he was not asserting that the second third party had a contractual relationship with him. Rather, his claim against the second third party was based on the second third party’s role as an agent of the first third party. ²²⁴ The third parties agree that the second third party acted as the first third party’s agent. ²²⁵ However, it is trite that a principal is liable for its agent’s acts when such acts are within its agent’s actual or apparent authority. There is no claim to be brought against the agent unless it can be shown that the agent entered into the contractual relationship (which, as I have concluded above, the second third party did not), or the claim is based on a breach of warranty of authority (see eg, Fong Maun Yee and another v Yoong Weng Ho Robert [1997] 1 SLR(R) 751), which is not the case here. Therefore, the first third party, as the principal, bears the liability (if any) for the second third party’s dealings with the defendant. ²²⁶ Thus, the defendant has no legal recourse against the second third party in respect of any claims arising out of the MOA. Hence, the defendant’s claim against the second third party cannot succeed and must be dismissed.

156 As between the defendant and the first third party, there is also a principal-agent relationship, with the defendant being the principal and the third party being the agent. This is evident from cll 1–8 of the SIA Conditions, as well as cl 1.1(2) of the MOA. None of the parties seriously disputes this. ²²⁷

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

158 As the CA in Banque Nationale de Paris v Tan Nancy and another [2001] 3 SLR(R) 726 explained at [67]–[68]: ²²⁸

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

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

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

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

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

162 The defendant alleges that the third party had “pushed” for the plaintiff to be appointed, instead of Soil-Build or Daiya. Specifically, the defendant relies on the following statements made by the third party in the e-mails dated 4 May 2011 and 9 May 2011: ²²⁹

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

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

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

164 The third party was simply performing its duties to the defendant by recommending which contractor to appoint for the Project. There is not an iota of evidence to suggest that the third party did not perform its duty honestly and independently in the exercise of its professional judgment. The third party informed the defendant that the plaintiff had submitted the lowest tender. The third party also took into account CCA’s final tender report for M&E installations. CCA made an independent assessment that the plaintiff had the most competitive bid for M&E installations and that its tender submission was “generally complete and in compliance with the tender specifications”. ²³⁰ In contrast, Soil-Build’s tender submission was incomplete in so far as M&E installations were concerned, while Daiya had deviated on the air-con equipment and monthly air-con maintenance.

165 Additionally, as Mr Yong testified, there was no preferential treatment given to the plaintiff. In fact, on the contrary, preferential treatment appears to have been granted to Soil-Build, to accommodate the defendant’s various requests: ²³¹

166 Furthermore, the third party had a prior positive working experience with the plaintiff. The plaintiff was also the contractor with the lowest and most compliant tender, as reflected in the Tender Summary Report No 3 dated 29 April 2011 prepared by F+G. ²³²

167  The third party expressly stated in its e-mail dated 9 May 2011 that the “final decision” on which contractor to appoint was for the defendant to decide. ²³³ The third party did not state that the plaintiff must be appointed. It was always open for the defendant, the owner of the Project, to reject the third party’s recommendation and proceed to appoint Soil-Build. The evidence further shows that the defendant applied his mind to the selection of the plaintiff and participated in the tender interview. He also requested the financial information of the plaintiff as part of this process. At any point in time, the defendant was free to ask for further documents had he not been satisfied with the selection of the plaintiff. ²³⁴ Ultimately, the selection of the plaintiff had really been done at the defendant’s own behest. The defendant himself acknowledged this: ²³⁵

168 Mr Yong similarly testified that it was the defendant who had selected the plaintiff: ²³⁶

169 The defendant also asserts that the tender process was improper because the third party had asked Soil-Build to “stay away”. ²³⁷ I observe that this was not pleaded and neither was it in the defendant’s AEIC. The defendant also did not subpoena someone from Soil-Build as a witness to establish his allegation. Be that as it may, this is contradicted by the contemporaneous documents which show that Soil-Build was invited to tender, as per the defendant’s instructions, and Soil-Build did submit a tender based on the same tender documentation as all other tenderers. ²³⁸ Soil-Build also attended a tender interview held on 19 April 2011. ²³⁹

170 The defendant also alleges that the third party had made “life difficult” for Soil-Build. When pressed by the third party’s counsel during cross-examination, the defendant elaborated that this referred to the third party telling Soil-Build that items not included in the quote would be treated as part of the lump sum. ²⁴⁰ This was speculative and hearsay as Soil-Build did not testify in court. In any event, there is no evidence to show that this was not told to all the tenderers. The defendant also admitted that he had no evidence to show that Soil-Build was deliberately disadvantaged in the tender process. ²⁴¹

171 In contradistinction, I accept Mr Yong’s evidence that no such actions were taken against Soil-Build: ²⁴²

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

173 Mr See also prepared tender documents for the rectification works. Three contractors showed interest and submitted their tenders for the rectification works, namely, Maple Builders Pte Ltd, Forum Construction Pte Ltd and Bethnal Construction Pte Ltd. The defendant suggested to Mr See to invite Bethnal Construction Pte Ltd to tender for the rectification works. ²⁴³ The defendant had not suggested Soil-Build. This was despite him purportedly wanting Soil-Build to undertake the Project. If it were true that he had confidence in having Soil-Build to do the Project, I would expect the defendant to have invited Soil-Build to tender for the rectification works. But this was not done.

174 The defendant also alleges that CCA conspired with the third party to grant the plaintiff the tender award. However, this was again entirely speculative and baseless. This is encapsulated by the following exchange between the third party’s counsel and the defendant during cross-examination: ²⁴⁴

175 At the material time, the defendant was also concurrently the owner of a construction project at Coronation Road West (the “Coronation Project”). The Coronation Project was eventually awarded to Daiya. Although the Coronation Project is not directly relevant to this Suit, the defendant similarly alleges that there was a conspiracy between the third party and Daiya to wrongfully favour Daiya. The purported “basis” for this allegation was that Daiya had built Mr Yong’s house, but this was again entirely speculative: ²⁴⁵

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

177 Firstly, all interested contractors were made to go through the same pre-qualification exercise, of which the defendant was kept informed via e-mail. ²⁴⁶ F+G, who coordinated the tender process and conducted the pre-qualification exercise, disclosed the shortcomings of the plaintiff as early as in the pre-qualification report. It was expressly stated that the plaintiff had no experience in building bungalows that were similar to the Project. It was also disclosed in F+G’s pre-qualification report that the plaintiff had been involved in litigation or arbitration. ²⁴⁷

178 Secondly, CCA also raised issues found in the plaintiff’s tender, such as the price for installation of the filtration system. ²⁴⁸

179 Thirdly, the third party also asked the defendant for permission to extend the tender date, in order to obtain more competitive quotations. I note that the plaintiff’s initial quotation of $15.2m was eventually reduced by approximately $2m in the final contract sum. ²⁴⁹ For these reasons, I find that there is no evidence to suggest that there was a conspiracy to award the Project to the plaintiff.

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

181 Under cl 23 of the SIA Conditions, which forms part of the Contract, the power to grant EOTs to the plaintiff is vested in the third party. ²⁵⁰ The facts surrounding the grants of the EOTs have also been summarised at [12]–[21] above.

182  During cross-examination the defendant alleged that EOT 1 supported his conspiracy claim although he did not mention this in his pleadings and AEIC. ²⁵¹ Accordingly, it is necessary for me to address the plaintiff’s request and the third party’s evaluation process in EOT 1.

183 EOT 1 concerned the delay in the delivery of marble by the defendant’s supplier, in relation to which the plaintiff made a request on 4 October 2012 for an extension of 60 days. This was eventually rejected by the third party on the basis that the delay in marble delivery was a “non-critical” activity. ²⁵²

184 The defendant claims that the third party had already agreed with the plaintiff to grant EOT 1 and that this request would have been approved but for the intervention of Mr Cheung. According to the defendant, it was Mr Cheung who questioned the basis for the request for EOT 1 during a meeting, given that the delay in marble delivery was a “non-critical” activity which did not contractually entitle the plaintiff to an EOT. ²⁵³

185 I note that this version of Mr Cheung’s role in the Project is inconsistent with the defendant’s earlier characterisation of Mr Cheung at the trial as an individual who only had administrative duties, including the forwarding and receiving of e-mails (see [113] above). ²⁵⁴ For the purpose of establishing that there was a conspiracy to injure him, the defendant conveniently enhanced the role of Mr Cheung for this Project, in relation to EOT 1.

186 Be that as it may, the events surrounding the grant of EOT 1 do not support the defendant’s allegation that the plaintiff and the third party conspired to grant the plaintiff EOT 1. On the contrary, the evaluation process for EOT 1 is evidence of the third party’s professional and independent assessment of EOT requests. In the minutes of Site Meeting No 34 dated 8 October 2012, it is recorded that the plaintiff raised the issue of the delay in the marble delivery and said that they would submit an EOT request. The plaintiff then sent the request for EOT 1 on the same day (ie, 8 October 2012). Between 8 October 2012 and 16 October 2012 (when the minutes for Site Meeting No 34 were circulated), the third party requested the plaintiff to submit the critical path schedule for the third party’s assessment. ²⁵⁵ The third party’s request was repeated in Site Meeting No 35 dated 22 October 2012, Site Meeting No 36 dated 5 November 2012 and Site Meeting No 37 dated 19 November 2012. ²⁵⁶

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

188 EOT 2 and EOT 3 were granted on the premise that SPPG had delayed the power connection, which therefore caused delay in the T&C of M&E works. It is helpful to first set out the steps required to achieve electricity turn-on which are relevant for this issue. This procedure was explained in the expert report of Mr Lee Keh Sai (DW2, “Mr Lee”), who was instructed by the defendant: ²⁵⁷

189 In deciding whether the plaintiff was entitled to an EOT, the third party had to satisfy itself that the relevant pre-conditions in cl 23 of the SIA Conditions were complied with. The substantive pre-conditions are: ²⁵⁸

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

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

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

190 The defendant’s case is that SPPG’s delay did not constitute one of the delay events stated in cl 23(1). Further, the delays for which EOT 2 and EOT 3 were granted were caused by the plaintiff’s own failure to exercise due diligence and/or take all reasonable steps to avoid or reduce the same. This is derived from cl 23(1) of the SIA Conditions, which states as follows: ²⁵⁹

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

192 The first issue in relation to both EOT 2 and EOT 3 is whether SPPG’s requirement of an OG Box (the “OG Box requirement”) and its delay in power connection works constituted one of the delay events under cll 23(1)(a) to 23(1)(q). The plaintiff and the third party submit that cl 23(1)(a) applies in this case. The third party further submits that cl 23(1)(o) also applies. ²⁶⁰ Clause 23(1)(a) stipulates that delay caused by force majeure is a delay event, whereas cl 23(1)(o) read with cl 7(1) pertains to where the alleged delay event resulted in a “variation of the works”. In response, the defendant submits that both cl 23(1)(a) and 23(1)(o) are inapplicable. I shall deal with each of these clauses in turn.

193 The plaintiff and the third party submit that SPPG’s delay in carrying out power connection works and the OG Box requirement amounted to a force majeure event because it was unforeseeable and/or out of the control of all parties. ²⁶¹ In response, the defendant submits that cl 23(1)(a) is “meaningless, unenforceable and cannot be relied on” because the Contract does not contain a definition of what constitutes force majeure. The defendant further submits that even if cl 23(1)(a) were operative, SPPG’s delay in carrying out power connection works did not amount to a force majeure event as they were foreseeable. ²⁶² Having considered the parties’ submissions, I find that cl 23(1)(a) is operative and applies in this case.

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

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

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

196 The concept of force majeure was explained in some detail by the CA in RDC Concrete Pte Ltd v Sato Kogyo (S) Pte Ltd and another appeal [2007] 4 SLR(R) 413 (“RDC Concrete”) at [54] and [57]: ²⁶³

197 Thus, a force majeure event generally refers to an event that impedes or obstructs the performance of the contract, which was out of the parties’ control and occurred without the fault of either party. Whether a force majeure event arises is ultimately a matter of construction based on the facts of each case, with a view to giving effect to the parties’ intentions. Furthermore, the element of unforeseeability is not strictly necessary. As the CA in RDC Concrete observed at [56], a force majeure clause is “an agreement as to how outstanding obligations should be resolved upon the onset of a foreseeable event” [emphasis in original]. ²⁶⁴ In this regard, the CA distinguished the concept of force majeure from the related doctrine of frustration, in which the element of unforeseeability is critical. However, a force majeure event is typically “radical” (see RDC Concrete at [57]). Borrowing from the doctrine of frustration, this refers to where “the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract” (see Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696 at 729, cited by the CA in Glahe International Expo AG v ACS Computer Pte Ltd and another appeal [1999] 1 SLR(R) 945 at [27]).

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

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

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

(a) CCA made the request to SPPG for SPPG to lay the cable to the electrical meter compartments between 8 October 2012 (when the plaintiff informed that the electrical meter compartments were ready) and 22 October 2012 (when CCA informed that it had made the relevant arrangements with SPPG). ²⁶⁵

(b) By way of a letter dated 21 November 2012, SPPG informed the defendant that it was necessary to install an OG Box for the Project. ²⁶⁶ This letter was forwarded by CCA to the plaintiff and the third party on 26 November 2012. ²⁶⁷ This was the first time the OG Box requirement was raised by SPPG. The OG Box requirement was neither mentioned nor included in SPPG’s initial quotation dated 22 November 2010 which was two years ago. ²⁶⁸

(c) Consequently, between 3 December 2012 and 17 December 2012, CCA had to work with Web to ensure that the National Parks Board (“NParks”) had no issues with the proposed location of the OG Box. ²⁶⁹ This entailed making amendments to plans and drawings for the Project. CCA also had to rely on the third party to expedite the defendant’s approval for the location of the OG Box. ²⁷⁰

(d) Despite the fact that the issue of the proposed location of the OG Box had been resolved at the very latest by 17 December 2012, ²⁷¹ SPPG only started its works for incoming power supply on or around 25 February 2013. ²⁷² There were many e-mails and telephone calls from CCA and the plaintiff to SPPG pleading with it to start its works expediently. However, SPPG gave various reasons for its delays, such as adverse weather conditions and low morale on the part of the subcontractors due to fatalities at other sites. ²⁷³ On one occasion, SPPG’s workers simply failed to turn up despite prior arrangements made with CCA. ²⁷⁴

(e) SPPG eventually completed its works on 7 March 2013. ²⁷⁵

201 There were, thus, two aspects of the delay: (a) the delay occasioned by the need to determine a location for the OG Box; and (b) the delay occasioned by the time taken by SPPG to install the OG Box and complete its power connection works. Both the installation of the OG Box and the laying of the cables constituted part of SPPG’s power connection works. Mr Lee, the defendant’s expert, explained as follows: ²⁷⁶

202 In my view, the delay occasioned by SPPG was out of the parties’ control and occurred without either party’s fault. The last-minute requirement to install an OG Box was not mentioned in SPPG’s initial quotation two years ago. Furthermore, the construction of the OG Box did not fall within the scope of responsibility of either the plaintiff or the defendant. This is evident from Ms Tan’s testimony, as follows: ²⁷⁷

203 Similarly, Mr Lee, the defendant’s expert, explained as follows: ²⁷⁸

204 Therefore, not only was the OG Box requirement entirely unexpected, the delay thereby caused by the OG Box requirement occurred without the fault of either party and was out of their control. ²⁷⁹

205 Similarly, the time taken by SPPG in carrying out power connection works was also out of the control of both parties and occurred without either party’s fault. This can be seen from the reasons given by SPPG for its delay, for instance, adverse weather conditions and low morale. These reasons were not attributable to either the plaintiff or the defendant. ²⁸⁰ Mr Lee acknowledged that the time taken by SPPG to complete its power connection works was outside of the plaintiff’s and the defendant’s control, as follows: ²⁸¹

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

207 The defendant submits that the delay on SPPG’s part was foreseeable and, therefore, cannot constitute a force majeure event. ²⁸² This is based on the fact that, according to the Master Programme, the plaintiff had planned for SPPG to begin its incoming power supply connection on 9 July 2012, about six months before TOP. Ms Chua explained that this “allowance of six months” had been specifically planned to “cater for delays” by the plaintiff and/or SPPG. Indeed, Ms Chua acknowledged that “delays by SPPG in general was fore[seen] by CCA”. ²⁸³

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

209 In any case, as I have observed above, the element of foreseeability is not critical to the concept of force majeure. Instead, the true question is whether the event was such that it rendered performance of the contract “radically different” from what was originally undertaken. In my view, it was. SPPG had initially estimated that it would take about four to six weeks to complete its power connection works. ²⁸⁴ According to Ms Chua from CCA, SPPG would typically take a much shorter time of about two weeks. ²⁸⁵ However, the actual time between when SPPG was first notified (between 8 October 2012 and 22 October 2012) and when power connection works were eventually completed (7 March 2013) was around 19 to 21 weeks. ²⁸⁶ While parties did anticipate some delay to be possible, this was significantly longer than what all parties had expected. ²⁸⁷ Although the plaintiff and CCA had catered for a buffer period of six months, this included time required by the plaintiff to carry out other works that it needed to do after power connection, such as T&C of the M&E works. ²⁸⁸ In other words, SPPG had not been expected to take up the entirety of the six months buffer period. To put the extent of delay into perspective, the Project had been expected to take less than two years to complete (from the time of the signing of the LOA on 13 May 2011 to the original completion date of 21 February 2013). Thus, the four to five months taken by SPPG would constitute almost a quarter of the original estimated time required to complete the Project. Therefore, although some delays were expected from SPPG, the extent of the delay in this case was so protracted that it rendered the performance of the Contract radically different from what had initially been undertaken. The same can be said for the last-minute introduction of the OG Box requirement.

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

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

212 I turn now to cl 23(1)(o). The third party submits that SPPG’s delay in carrying out power connection works also falls within the ambit of cl 23(1)(o). ²⁸⁹ Given my finding that cl 23(1)(a) applies to the OG Box requirement and SPPG’s delay in commencing power connection works, there is strictly speaking no need for me to determine this point.

213 However, for completeness, I would not have accepted the third party’s submission in this regard. It was not pleaded by the third party, although it was raised in the middle of the trial. ²⁹⁰ Furthermore, it was not borne out by the evidence. The third party’s letter granting EOT 2 did not contain any mention of cl 23(1)(o). ²⁹¹ More importantly, there is no “variation” to speak of in this case. Given that the OG Box fell within SPPG’s purview, the plaintiff was not contractually obligated to construct the OG Box and it was instead constructed by SPPG. Thus, the OG Box requirement could not have amounted to a “variation” of the plaintiff’s contractual Works within the meaning of cl 7(1) of the SIA Conditions. There is also no evidence of any architect’s instructions, or verbal instructions even, for the plaintiff to carry out variation works as a result of SPPG’s delays. ²⁹²

214 When asked regarding this point, the third party’s counsel encouraged the court to adopt a broad interpretation of the word “variation”. While he accepted that there was no variation in the Works themselves, he sought to suggest that the “variation” in this case was a variation in the schedule for the Works. ²⁹³ I do not accept this. There is nothing in the Contract to support such a broad interpretation of the word “variation”. To the contrary, the non-exhaustive definition of “variation” in cl 12(2) of the SIA Conditions suggests otherwise, because the activities set out therein relate to variations in the Works themselves. ²⁹⁴ Therefore, cl 23(1)(o) is not applicable in this case.

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

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

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

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

219 The defendant raises two main arguments to support his submission that the plaintiff failed to exercise due diligence. First, the defendant alleges that because the electrical meter compartment doors for Unit 12 and Unit 12B were only installed on or around 1 December 2012, this meant that the electrical meter compartments were not ready to receive the incoming power supply. Hence, with reference to the timelines in the Project’s Master Programme, the plaintiff was already in delay of more than four and a half months. ²⁹⁵ According to the Master Programme, the time allocated for SPPG to establish power connection was between 9 July 2012 and 11 August 2012. Therefore, the defendant alleges that the plaintiff should have completed construction of the electrical meter compartments by 9 July 2012. Its failure to do so meant that, notwithstanding SPPG’s delay in achieving incoming power supply and subsequent electrical turn-on, the plaintiff itself had failed to exercise due diligence. The defendant also contends that the Project was not ready for SPPG to commence its cable-laying works until 10 January 2013, due to certain ongoing works which would have obstructed the cable-laying works. ²⁹⁶ In support of his submission, the defendant relies on the evidence of Mr Foo Charn Lim (DW6, “Mr Foo”), who conducted a delay analysis on the events leading up to EOT 2. I shall deal with each of these points in turn.

220 On the facts, the plaintiff’s delay in the installation of the electrical meter compartments would not have delayed the completion of the Project. The delay in the completion of the Project was entirely due to SPPG’s OG Box requirement and delay in carrying out power connection works. At the very latest, the electrical meter compartments (except the doors) were ready in or around early October 2012. ²⁹⁷ It was at this point that the electrical meter compartments were ready for survey by SPPG. ²⁹⁸ Although the electrical meter compartment doors were only ready in November 2012 and installed on or around 1 December 2012 at the latest, ²⁹⁹ there was simply no requirement that the electrical meter compartment doors must have been installed before SPPG would be willing to commence work. In SPPG’s letters dated 22 November 2010, ³⁰⁰ there were no requirement for the electrical meter compartment doors to be completed. The only conditions were as follows:

221 The various letters dated 25 August 2011 from SPPG also did not indicate that the electrical meter compartment doors must be ready for incoming power supply. However, SPPG indicated that the following matters should be ready: ³⁰¹

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

223 Further, I find that the presence or absence of the electrical meter compartment doors simply had no bearing on whether SPPG could carry out the installation works, as the electrical meter compartment doors were not essential for the installation of cables to facilitate incoming power supply. This was conceded by the defendant’s own witness, Mr Lee, in cross-examination as follows: ³⁰²

224 He made similar concessions in response to my questions: ³⁰³

225 In fact, based on the answers from Mr Lee, it appears that the electrical meter compartment doors would get in the way of SPPG’s installation works. This was also confirmed by Mr Tan ³⁰⁴ and RTO Leong ³⁰⁵ who both agreed that it was good practice not to install the doors before SPPG commenced its works. The pertinent evidence of RTO Leong, in particular, was as follows: ³⁰⁶

226 There is, therefore, no reason for SPPG to have required the electrical meter compartment doors to be installed before commencing any works. Although Ms Chua initially testified that SPPG required doors to be installed to prevent the tampering of any cables that were installed, ³⁰⁷ she subsequently clarified that what was required by SPPG prior to its installation works was a “temporary structure” to secure the electrical meter compartments. It was only after SPPG completed its installation works and electrical testing was conducted that the actual electrical meter compartment doors needed to be installed: ³⁰⁸

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

228 My findings above were also confirmed by Mr Yong in his evidence, which is useful to reproduce extensively: ³⁰⁹

229 I note that in any case, the plaintiff may appear to have been behind schedule for the installation of the electrical meter compartments vis-à-vis the Master Programme. The electrical meter compartments (except the doors) were ready in or around early October 2012, when the Master Programme provided that they should have been ready by 9 July 2012. However, this in itself cannot mean that the plaintiff was in delay as the Master Programme incorporates the concept of a “float” to allow the plaintiff to catch-up and meet the completion date of 21 February 2013. ³¹⁰ This refers to the period of time in which the execution of an activity which is not on a critical path may be prolonged without affecting subsequent activities or the completion time for the project as a whole (see Construction Contracts Dictionary at p 197). ³¹¹ The float is calculated by subtracting the time actually required to perform an activity from all the time that is available to perform it. In the construction industry, the float is useful in allocating resources, in that those activities which have no or less float allocated can be given higher priority.

230 Therefore, the Master Programme has to be analysed in conjunction with the concept of a float. The purpose of the Master Programme is to provide a general guide to monitor the progress of the work and is not intended to impose strict contractual deadlines for each activity. This is evident from cl 4(2) of the SIA Conditions, which states: ³¹²

231 This is further explained in Chow Kok Fong, The Singapore SIA Form of Building Contract: A Commentary on the 9th Edition of the Singapore Institute of Architects Standard Form of Building Contract (Sweet & Maxwell, 2013) (“Commentary on SIA Standard Form”) at para 6.10, as follows: ³¹³

This is the position taken by the plaintiff, the third party and CCA. ³¹⁴ Indeed, if the defendant genuinely believed that the Master Programme stipulated strict contractual deadlines for each activity, then the onus would be on him and his Assistants to voice their disapproval during the course of the Project if the timelines for the various activities failed to comply with the Master Programme. His Assistants, particularly Mr Cheung, who has vast experience in the construction industry, knew that the plaintiff could not be held strictly to the Master Programme. By choosing to remain silent at the relevant times and site meetings, I can only surmise that the defendant understood that the Master Programme was not a rigid schedule of activities. The defendant’s counsel accepts that the Master Programme is merely a benchmark for judging the progress of the works and the dates provided for in the Master Programme are not peremptory, because the plaintiff is ultimately held to the completion date. ³¹⁵ In the circumstances, the defendant cannot argue that the plaintiff was in delay merely by the fact that it failed to have the electrical meter compartments, including the doors, ready on 9 July 2012 for SPPG to do the incoming power supply connection. This is given that there was an in-built float in the Master Programme to allow flexibility to the plaintiff in relation to the construction of the electrical meter compartments, including the doors.

232 Since the timelines in the Master Programme are not peremptory, the true question is whether the plaintiff was acting with due diligence. Although the plaintiff did not adhere to the timelines in the Master Programme for the installation of the electrical meter compartments, I find that it was still acting with due diligence. In assessing whether the contractor is acting with due diligence, the Master Programme is of evidential value (as observed in Commentary on SIA Standard Form cited at [231] above). However, it is not conclusive. As Simon Brown LJ observed in West Faulkner Associates v London Borough of Newham [1995] 71 BLR 1 at 12 (cited in Compact Metal Industries Ltd v Enersave Power Builders Pte Ltd and Others [2008] SGHC 201 at [82]): ³¹⁶

233 The defendant cites Jurong Engineering Ltd v Paccan Building Technology Pte Ltd [1999] 2 SLR(R) 849 (“Jurong Engineering”) in support of his case that the plaintiff’s delay in installing the electrical meter compartment doors meant that it was not proceeding with due diligence. ³¹⁷ Although the CA observed at [39] that due diligence “can only be determined by pacing the progress of [the subcontractor’s] work against the subcontract programme”, this must be seen in the context of the CA’s entire decision. In particular, the CA observed at [44] that:

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

235 Thus, the critical question is whether the rate at which the plaintiff was proceeding was in accordance with his obligation to act with due diligence. In this regard, Construction Contracts Dictionary at p 153 observes that “any obligation for due diligence has to be interpreted with reference to the completion date stated in the contract”. ³¹⁸ Thus, in assessing whether a contractor has acted with due diligence, the contractor’s ability to meet the stipulated completion date is an important consideration.

236 In this case, I emphasise that even though the electrical meter compartment doors were installed on or around 1 December 2012, the plaintiff, the third party and crucially the M&E consultant, CCA, were still confident that the Project could be completed on schedule, provided SPPG completed its cable-laying works and supplied the requisite electrical turn-on within four to six weeks, following which the T&C of M&E works could be carried out. ³¹⁹ In this regard, Ms Chua testified as follows: ³²⁰

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

238 The defendant relies on the evidence of Mr Foo to argue that the plaintiff was in fact the cause of the delay. ³²¹ Mr Foo is a civil engineer whose work experience is primarily in the areas of programme planning, delay analysis and extension of time claims in various types of construction projects. Mr Foo was instructed by the defendant to provide an expert opinion on the progress, delay and completion of the Project. In his opinion, although the grant of EOT 2 and EOT 3 due to SPPG’s delay and the OG Box requirement was reasonable, the plaintiff was not entitled to the quantum of EOT 2. ³²² Thus, the third party had incorrectly granted the EOT in so far as it was wrong in its computation of the number of days of extension to which the plaintiff had been entitled. In coming to his findings, Mr Foo relied on the Master Programme, performing a delay analysis progressively upon the achievement of certain milestones in the Project. Based on this, he concluded that the Project’s expected completion date was 4 June 2013, which was in delay of 103 days from the original contractual completion date of 21 February 2013.

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

240 Firstly, Mr Foo began the calculation of his delay analysis from 17 November 2012 as he assumed that the application to SPPG for power connection was made on that date. ³²³ In his view, this was the appropriate date and he based this on a letter that the defendant had received from SP Services on 17 November 2012. ³²⁴ Given that the Master Programme had planned for “incoming power supply” to be connected between 9 July 2012 and 11 August 2012, Mr Foo opined that the plaintiff was already in delay as at 17 November 2012. ³²⁵

241 However, it is incorrect for Mr Foo to use 17 November 2012 as the date on which the application to SPPG for incoming power connection was done. As stated above at [200(a)], the request to SPPG for electrical incoming power supply turn-on was done in or around October 2012. The minutes of Site Meeting No 34 dated 8 October 2012 state that as of that date, “GTMS informed that all meter compartments are ready. CCA to follow up for inspection.” ³²⁶ Ms Chua testified that once the plaintiff informed CCA that the electrical meter compartments were ready on 8 October 2012, she “would have called [SPPG] immediately”, and probably on 8 October 2012 itself. ³²⁷ This request to SPPG was reflected in the minutes of Site Meeting No 35 dated 22 October 2012, which state that as of this date, “GTMS informed that all meter compartments are ready. CCA informed that CCA has already arranged with officers. GTMS to follow up.” [emphasis added] ³²⁸ As explained by Mr Tan, this meant that CCA had already contacted SPPG to connect the incoming power supply and this also involved the licensed electrical worker. ³²⁹ As confirmed by Mr Yong: ³³⁰

242 Again, the minutes of the subsequent site meeting dated 5 November 2012 state that as of this date, “[c]urrently, GTMS is arranging with power grid officer for testing date and will submit the schedule of testing for information.” ³³¹ Logically, it would not have been possible for the plaintiff to arrange for a testing date without a prior application having already been made to SPPG. In contrast, as seen from its opening paragraph, the letter that Mr Foo relies on is merely in reference to a “request for the opening of utility account”. ³³² This letter from SP Services dated 17 November 2012 does not make any mention of the earlier initial application date to SPPG and as confirmed by Ms Chua, was not the application to SPPG for power connection. ³³³ Ms Chua further clarified that: ³³⁴

243 Therefore, it would be more accurate to take the actual date of CCA’s submission of its request to SPPG as the starting point of the calculation in Mr Foo’s delay analysis. The earliest possible date when this request was submitted was 8 October 2012, according to Ms Chua’s testimony. As regards the latest possible date, the minutes of Site Meeting No 35 show that the application to SPPG was made by 22 October 2012, which would still have been ahead of the date Mr Foo used (ie, 17 November 2012). In fact, the difference between 22 October 2012 and 17 November 2012 is 26 days and that would have been omitted from the delay calculation. Secondly, Mr Foo also noted in his calculations that SPPG was unable to commence its power connection works on 17 December 2012, because: (a) the doors to the electrical meter compartment were only installed “on or around 1 December 2012”; ³³⁵ and (b) the location of the OG box was only confirmed on 17 December 2012. This assumption of 17 December 2012 is again incorrect as both of the premises upon which it is founded are misguided for the following reasons:

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

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

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

245 Thirdly, Mr Foo opined that the site was not ready for SPPG to lay the subterranean cable as there were ongoing excavation works as of 2 January 2013. In his view, this presented site constraints, preventing SPPG from commencing work any earlier than 2 January 2013. ³³⁶ I am, however, unable to agree with Mr Foo’s interpretation in this regard. Mr Foo’s assumption that there were ongoing excavation works was based solely on a single photograph which he alleged showed some excavation work outside the parameter wall between Units 12 and 12A. ³³⁷ He had never physically been to the site himself. This means that Mr Foo’s interpretation of this photograph and the implication that it hindered SPPG’s works was entirely speculative, as he acknowledged: ³³⁸

246 Even if there were ongoing excavation works, in my view, it is entirely possible that the excavation works could be carried out concurrently with SPPG’s laying of the cables. This was a possibility that Mr Foo also subsequently acknowledged: ³³⁹

247 The excavation works were, therefore, no impediment to SPPG commencing works. In fact, this was confirmed by Mr Yong’s own view of the entire process. Mr Yong explained that the excavator and the earthwork in the photograph mentioned by Mr Foo were within the compound of the Project and would not hinder SPPG’s cable-laying from the OG Box to the three units: ³⁴⁰

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

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

(b) SPPG would have required 11 days to make preparation to commence work, based on Mr Foo’s own calculation, ³⁴¹ bringing the relevant date to 2 November 2012.

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

(d) An additional 40 days would then be required for electrical T&C and M&E works. This was the estimated duration arrived at by the third party, nearer to the date of the planned works. Although Mr Foo initially insisted on using the original estimate of 90 days based on the Master Programme, he eventually conceded in cross-examination that the estimate of 40 days would be more accurate. ³⁴² This would have brought the relevant date to 23 December 2012.

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

250 Even taking Mr Foo’s starting date of 17 November 2012, the plaintiff would still have been able to complete the Project on time if SPPG had not been in delay. According to Ms Chua, the timeline would have been as follows: ³⁴³

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

(b) According to Mr Foo’s estimate, SPPG would have taken 34 days to complete their incoming power supply connection works. As confirmed by Ms Chua, this amount of time was “very typical”. ³⁴⁴ This would bring the relevant date to 21 December 2012.

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

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

252 The next question is whether the plaintiff, upon the knowledge of SPPG’s delay, took reasonable mitigation efforts to reduce the delay. It is pertinent to note that it was not within the plaintiff’s scope of works to arrange for incoming power supply. That was the responsibility of CCA, the M&E consultant who had been engaged directly by the defendant. The defendant himself was of the view that it was CCA’s responsibility to arrange for electrical turn-on with SPPG. For example, on 21 February 2013, Mr Cheung sent the following e-mail to Ms Chua and Mr Ng Chee Choon of CCA on behalf of the defendant (the “21 February 2013 E-mail”): ³⁴⁵

253 Two points ought to be highlighted from the 21 February 2013 E-mail. Firstly, the defendant, through Mr Cheung, a person experienced in the construction industry, accepted that it was CCA’s responsibility to arrange for incoming power supply. Accordingly, short of completing all the necessary installation works, there was nothing further for the plaintiff to do to mitigate SPPG’s delay. Nevertheless, it should be noted that the plaintiff also followed up with SPPG, in conjunction with the efforts of CCA, to persuade SPPG to carry out its power connection works more expediently. ³⁴⁶ In this respect, Mr Manoosegaran testified as follows: ³⁴⁷

254 This was supported by documentary evidence and further confirmed by Ms Chua in the course of the trial: ³⁴⁸

255 Secondly, it is clear from the 21 February 2013 E-mail that Mr Cheung and the defendant recognised that the plaintiff was entitled to claim EOT on the basis of SPPG’s delay. Crucially, at no point of time during the course of the Project did the defendant or any of his Assistants ever object to the issuance of EOT 2 and EOT 3. ³⁴⁹

256 Thus, the plaintiff was entitled to an extension of time in so far as EOT 2 was concerned. The next question is whether the third party’s decision to grant 40 days’ extension for EOT 2 was improper. I note that CCA had only recommended 15 days’ extension to be granted. ³⁵⁰

257 However, the court will not lightly disturb the third party’s assessment, as long as it is made fairly and rationally. As stated by Warren Khoo J in Lian Soon Construction Pte Ltd v Guan Qian Realty Pte Ltd [1999] 3 SLR(R) 518 at [29]: ³⁵¹

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

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

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

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

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

259 I am satisfied that the third party had made a fair and rational assessment with regard to the plaintiff’s request in EOT 2. As Mr Foo himself observed, in the context of extension of time analyses, different people can reasonably and honestly hold different perspectives. As such, despite the difference of opinion between himself and the third party, he believed that the third party “acted reasonably” in granting the EOT. ³⁵² Moreover, in coming to its decision, the third party sought and reviewed a critical path analysis of SPPG’s delay, sought the views of CCA, and requested the relevant information from the plaintiff. ³⁵³ Furthermore, it is crystal clear that when EOT 2 was granted on 7 February 2013, SPPG had not even started works. ³⁵⁴ SPPG also failed to provide an indication of when it would commence works, save that it would be after Chinese New Year, and therefore 18 February 2013 at the earliest. ³⁵⁵ Given that such power connection works would ordinarily take at least two weeks to complete according to Ms Chua’s estimate, four to six weeks by SPPG’s estimate or 34 days according to Mr Foo’s estimate, it would not have been possible to meet the original completion date of 21 February 2013. In fact, SPPG only began its power connection works on or about 25 February 2013 which was after the original completion date. ³⁵⁶

260 For EOT 2, the third party’s decision to grant 40 days’ extension was based on a breakdown of the various works that the plaintiff was required to undertake after the incoming supply of electricity. Mr Yong explained that he estimated 40 days in total as the plaintiff required 15 days for M&E works, ten days for ACMV works and 15 days for lighting installation. ³⁵⁷ The third party also decided that T&C of M&E works for all three units could be conducted concurrently and this would require the plaintiff to increase its manpower in order to meet the extended time limits. ³⁵⁸ Indeed, this was the third party’s justification for granting EOT 2 at the material time. ³⁵⁹

261 The defendant argues that the ACMV and lighting works could be conducted concurrently, thus, only 15 days should have been given for both these works. According to the defendant, the third party had given the plaintiff an additional ten days’ EOT to the plaintiff, even though this was not necessary. ³⁶⁰ Mr Yong explained that the reason why he had assessed each of these works separately was because he had followed the scopes of work set out in the Master Programme: ³⁶¹

262 The defendant also argues that as at 7 February 2013, the third party was not entitled to grant EOT 2 to the plaintiff as the delay event had not completed. This is based on the defendant’s interpretation of cl 23(3) of the SIA Conditions, which provides: ³⁶²

263 According to the defendant, the portion of cl 23(3) italicised above means that the third party was not entitled to grant an EOT until the delay event had “ceased to operate”. The number of days given for extension should then be calibrated against the actual number of days of delay. Further, extensions of time can only be granted if there is an impact on completion. Thus, the defendant argues that the grant of EOT 2 was premature, given that the delay event had not yet ceased at the time of the grant. ³⁶³ At the time when EOT 2 was granted the third party could not have known whether the delay event would have any impact on eventual completion. Furthermore, the plaintiff actually completed the T&C of M&E works in ten days. Hence, the 40 days’ extension granted under EOT 2 unfairly benefitted the plaintiff.

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

265 In this case, Mr Yong explained that the EOT application was submitted on 20 December 2012, which was close to the contract completion date, ie, 21 February 2013. The third party knew that the delay event was SPPG’s delay in carrying out power connection works and that the delay would impact the contract completion date. Instead of delaying its decision on the EOT application till the issuance of the final certificate, the third party processed the EOT application with inputs from CCA as it was certain that the delay caused by SPPG would push back the actual completion date beyond the contractual completion date of 21 February 2013. ³⁶⁴ This expeditious processing of the EOT application under these circumstances cannot be faulted.

266 I shall now turn to EOT 3. EOT 3 was granted by the third party due to SPPG’s protracted delay in carrying out its incoming cable-laying works. This was anticipated even at the time of the granting of EOT 2, when the third party stated that it was granting an extension of 40 days and keeping another 15 days in reserve depending on whether there was “further delay due to [SPPG’s] part”. Since SPPG took longer than the parties expected, the third party granted EOT 3, again on the basis of SPPG’s delay. ³⁶⁵ I have already concluded at [211] above that SPPG’s delay constituted a force majeure event within the ambit of cl 23(1)(a) of the SIA Conditions.

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

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

269 I am satisfied that the plaintiff acted with due diligence in relation to EOT 3. CCA, the M&E consultant, confirmed that the plaintiff had constructed the M&E works fully in accordance with the M&E construction drawings. ³⁶⁶ Although the Project failed SPPG’s First Testing and Inspection because certain mechanical and electrical items did not comply with SPPG’s safety and connection requirements, the issues that were highlighted by SPPG in the First Testing and Inspection were not construction faults. ³⁶⁷ The comments arising from SPPG’s First Testing and Inspection required the plaintiff to amend the single line diagram, and to rectify some signage, earthing and minor statutory non-compliance issues. Moreover, the failure of SPPG’s First Testing and Inspection was expected due to the extremely detailed nature of the inspection. Mr Chan explained as follows: ³⁶⁸

270 This was confirmed by Ms Chua, when she testified: ³⁶⁹

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

271 The defendant also took issue with the fact that although CCA had recommended that EOT 3 be granted for 15 days with effect from 28 March 2013, the third party granted the extension with effect from 2 April 2013. CCA had recommended 28 March 2013 as it was the first re-test and electrical turn-on date conducted for the three units, specifically Unit 12B. Further, CCA was of the opinion that the test dates for Units 12 and 12A, on 2 April 2013 and 8 April 2013 respectively, were not appropriate as the testing defects were similar to that of Unit 12B but had been left unrectified by the plaintiff. ³⁷⁰ However, the third party explained that since EOT 2 was granted until 2 April 2013, EOT 3 should therefore begin from 2 April 2013. ³⁷¹ Further, from the viewpoint of the third party, the 15 days in EOT 3 related to the same issues as in EOT 2, and was distinct from this issue of re-test and electrical turn-on. This is elaborated on below at [290]–[292]. In any case, as stated above at [257], the court will not lightly disturb the third party’s assessment so long as it is one that is made fairly and rationally. The mere fact that the third party decided to have EOT 3 start on 2 April 2013 instead of 28 March 2013 does not suggest that the assessment was made unfairly or irrationally. It should also be emphasised that the plaintiff had requested 40 days’ EOT in EOT 3, but the third party decided to only grant 15 days based on its independent assessment.

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

273 The defendant further alleges that the results of EOT 2 and EOT 3 were pre-determined, based on certain observations he himself had made. On that basis, the defendant claims that there were both a conspiracy amongst the parties and improper pressure or interference exerted by the plaintiff on the third party and CCA. ³⁷²

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

275 Additionally, the defendant’s own expert witness, Mr Foo, contradicted the defendant’s allegations of conspiracy and/or collusion. Even though he strongly disagreed with the third party’s granting of the EOTs, Mr Foo acknowledged in response to my questions that “when you say are they colluding, I don’t see the evidence”. ³⁷³

276 I shall first address EOT 2. The defendant alleges that the third party was coaching or advising the plaintiff to advance the latter’s claim. ³⁷⁴ The defendant highlighted that on 28 January 2013, the third party had requested the plaintiff to include SPPG’s delay in electrical turn-on in its request (the “28 January 2013 E-mail”). ³⁷⁵ The 28 January 2013 E-mail from Ms Chiyachan addressed to Mr Manoosegaran and Mr Kumar of the plaintiff stated as follows:

277 In addition, on 1 February 2013, the third party directed the plaintiff to regularise various errors made in its substantiation of its request (the “1 February 2013 E-mail”). ³⁷⁶ The 1 February 2013 E-mail from Ms Chiyachan to Mr Kumar stated as follows:

278 I find that there is no merit to the defendant’s allegation whatsoever. Clause 23(4) of the SIA Conditions expressly permits the third party to request for further information from the plaintiff to enable it to estimate the period of extension of time to be granted, if any. ³⁷⁷ There is nothing insidious about such a request. In certifying EOT claims, the role of the third party is to evaluate the merits of the EOT application rationally and fairly. It has to exercise its independent and professional judgment and not take sides with either the plaintiff or the defendant. It is, thus, necessary for all relevant information to be placed before the third party so that it can properly exercise its judgment. The information must be complete (which was the third party’s intention in sending the 28 January 2013 E-mail) and must also be accurate (which was the third party’s intention in sending the 1 February 2013 E-mail). Further, the third party’s practice of seeking further substantiation was not a one-off incident. For EOT 1, which was ultimately rejected, the third party had similarly requested the plaintiff to provide further substantiation on four occasions. ³⁷⁸

279 The defendant also alleges that the plaintiff’s amended request for EOT 2 was sent by the third party to CCA for “confirmation” on 5 February 2013 (the “5 February 2013 E-mail”) and a pre-drafted approval from the third party was enclosed. Further, CCA was only given one day to respond. ³⁷⁹ Thus, the defendant suggests that the third party had already pre-determined EOT 2.

280 I find that there is no evidence of a conspiracy involving CCA. There is no obligation on the part of the third party to seek any “confirmation” from CCA, or any party for that matter. ³⁸⁰ The third party explained that it had sought CCA’s views on EOT 2 given that EOT 2 related to M&E works. ³⁸¹ Ultimately, it was the third party alone who was responsible for EOT certification. As Ms Chua herself agreed, the third party was in a better position than CCA to assess whether the plaintiff had carried out its works diligently such that an EOT should be granted. ³⁸² If the result of EOT 2 was indeed pre-determined, then there was no reason for the third party to seek CCA’s input. Further, while the 5 February 2013 E-mail did indeed seek CCA’s response by the next day, CCA was aware of EOT 2 from as early as 20 December 2012 and had commenced its review of EOT 2 on 28 December 2012. ³⁸³ Accordingly, it is clear that the 5 February 2013 E-mail was sent by the third party to seek CCA’s final input on EOT 2. ³⁸⁴

281 There is similarly no evidence of improper pressure being exerted on CCA by the plaintiff. It should be noted that CCA had itself recommended granting EOT 2, albeit for only 15 days. ³⁸⁵ CCA’s reply stated that: “For PG [Power Grid] parts … you are granting 15 days [sic] and we are fine with it”. ³⁸⁶

282 The defendant also contends that the outcome of EOT 2 was pre-determined. This was based on the fact that prior to the issuance of EOT 2, F+G had recommended in Cost Report No 6 an estimated $65,000 additional costs in respect of “Additional compensation to the Contractor due to extension of time”. ³⁸⁷ It is clear that there is no basis for the defendant to cast aspersions on EOT 2 based on Cost Report No 6. The figure of $65,000 was expressly stated in the remarks column to be “pending justification and Architect’s assessment”. ³⁸⁸ Such estimations by F+G as to potential claims by the plaintiff were wholly logical. As explained by Mr Ng in his AEIC: ³⁸⁹

283 This was also corroborated by Mr Yong who stated that the figures were “only an anticipated increase”. ³⁹⁰ The defendant’s assertion that F+G was a party to the conspiracy simply because of this cost report is wholly unmeritorious.

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

285 The defendant relies on the fact that the third party issued an “in-principle” entitlement to EOT to the plaintiff on 2 April 2013. This was only one day after the plaintiff’s request for EOT 3 was made. ³⁹¹ The in-principle entitlement was issued by the third party without consulting CCA. Further, it transpired that CCA had initially refused to support the plaintiff’s request in EOT 3. According to the defendant, CCA was “persuaded” by the third party to change their recommendation. ³⁹²

286 Additionally, the defendant asserts that the plaintiff and the third party had a pre-planned agreement to grant an EOT of 15 days. This agreement entailed the plaintiff pretending to ask the third party for 40 days’ EOT, following which the third party would pretend to consider the proposition. The third party would then reject the request for 40 days’ EOT and gave 15 days’ EOT. ³⁹³

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

288 Be that as it may, I shall consider whether the events set out in [266]–[271] and [285] above support the defendant’s contention that the plaintiff and the third party conspired in relation to EOT 3. It is not disputed that CCA had initially refused the plaintiff’s request for EOT 3. However, CCA itself acknowledged that its initial refusal was “too hasty”. ³⁹⁴ As Ms Chua explained: ³⁹⁵

289 Further, it must again be emphasised that ultimately, even if CCA had persisted in its refusal to support the grant of EOT 3, the third party is still the one who has to make the final judgment call on whether or not to grant EOT 3. ³⁹⁶ As long as the third party exercises its judgment fairly and rationally, it is completely entitled to disagree with CCA and arrive at a different conclusion.

290 Additionally, the circumstances of the third party granting an in-principle entitlement to the plaintiff are not suspicious if one considers that the third party honestly believed that EOT 3 arose from the same set of issues in EOT 2. As stated by Mr Yong in his e-mail to Ms Chua on 2 April 2013 (the “2 April 2013 E-mail”): ³⁹⁷

291 It becomes more improbable that EOT 3 arose out of a conspiracy given that the possibility of granting EOT 3 had previously already been discussed during EOT 2. This heads-up is found in the letter granting EOT 2: ³⁹⁸

292 This was again confirmed by Mr Yong on the witness stand: ³⁹⁹

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

294 What is most revealing and pertinent is that these allegations to injure or defraud the defendant were never raised or suggested by the defendant and his Assistants when the EOTs were considered. If these allegations were indeed true, one would have expected the defendant and his Assistants to have protested or expressed some dissatisfaction over the granting of EOT 2 and EOT 3. However, there were no signs or any indications of unhappiness over the granting of EOT 2 and EOT 3 until the plaintiff commenced this Suit. Neither the defendant nor his Assistants raised any discernible objection to the EOTs at the material time, even though they were copied in the letters and had the opportunity to do so. ⁴⁰⁰ In fact, the defendant could not even remember when he first raised his objections, or whether he had even expressed any objections in the first place. This can be seen from my exchange with him: ⁴⁰¹

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

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

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

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

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

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

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

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

300 In determining whether the CC can be issued, Item 72 of the Preliminaries must be read together with cl 24(4) of the SIA Conditions which provides: ⁴⁰²

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

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

303 The third party submits that Item 72 of the Preliminaries does not form part of the Contract. This submission is based on the fact that the defendant did not sign Volumes 1A, 1B and 2 of the formal contract documents, which contained Item 72 of the Preliminaries. According to the third party, this “evince[d] an intention not to be bound by Volumes 1A, 1B and 2”. ⁴⁰³ Furthermore, cl 7 of the LOA states, among other things, that: ⁴⁰⁴

According to the third party, since Item 72 of the Preliminaries is not found in any of the documents referred to in cl 7 of the LOA, Item 72 of the Preliminaries does not form part of the Contract. Instead, the relevant clauses are contained in the SIA Conditions, which forms part of the Contract via cl 7(a) of the LOA. ⁴⁰⁵

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

305 Looking at the matrix of circumstances in this case, the conduct of both the plaintiff and the defendant evinces an agreement that Volumes 1A, 1B and 2 formed part of the Contract. The formal contract documents had been prepared by F+G and CCA, both of whom were consultants engaged by the defendant. From 29 February 2012 to 15 April 2013, the defendant was repeatedly reminded at site meetings to sign the formal contract documents. However, the defendant testified that he “just put the contract aside”. ⁴⁰⁶ Throughout this time, the plaintiff and the third party continued to work on the Project. On their end, Mr Tan agreed in cross-examination that Volumes 1A, 1B and 2 formed part of the Contract, and that he had signed on various pages of Volume 1B. ⁴⁰⁷ Mr Chan similarly agreed that the Contract included Volumes 1A, 1B and 2, as well as Item 72 in particular. ⁴⁰⁸

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

307 The plaintiff takes a slightly different position from the third party. While the plaintiff accepts that Item 72 of the Preliminaries forms part of the Contract, the plaintiff submits that Item 72 relates to the issuance of the MC, rather than the CC. ⁴⁰⁹ According to the plaintiff, the Preliminaries were drafted with the Public Sector Standard Conditions of Contract for Construction Works (the “PSS Conditions”) in mind, such that the reference to the “Completion Certificate” should be construed as a reference to the “Maintenance Certificate”. ⁴¹⁰ In support of this, the plaintiff points to Items 17, 45 and 60 of the Preliminaries, in which there are several apparent discrepancies between the terminologies used in the Preliminaries and the SIA Conditions. ⁴¹¹ Thus, the plaintiff submits that Item 72 pertains to the issuance of the MC and is irrelevant to the determination of whether and when the CC should have been issued.

308 I do not accept the plaintiff’s submission. First, this was raised for the very first time in the plaintiff’s written closing submissions after the trial had ended. The plaintiff did not mention this point in its pleadings. It did not adduce any evidence of the PSS Conditions and its relevant terms, neither did it put this aspect of its case to any of the witnesses at trial. ⁴¹² The last point is especially significant as it was F+G and CCA who had prepared the formal contract documents, including the Preliminaries. Therefore, the witnesses from F+G and/or CCA could have provided useful evidence as to how the Preliminaries came about and whether they were originally drafted for the PSS Conditions. However, the plaintiff failed to raise this point entirely. In these circumstances, it would not be fair to the other parties, the defendant especially, to permit the plaintiff to raise this new argument at the last minute at the conclusion of the trial after all the witnesses had testified.

309 Secondly, it is not apparent from the evidence before me that the Preliminaries were intended to be used with the PSS Conditions. There are no express references in the Preliminaries to the PSS Conditions. ⁴¹³ The phrase “Completion Certificate” does not even appear in the PSS Conditions, which use the term “Final Completion Certificate”. ⁴¹⁴ In contrast, the SIA Conditions use the exact term “Completion Certificate”.

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

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

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

313 Finally, the plaintiff and the third party both submit that even if Item 72 forms part of the Contract, cl 24(4) of the SIA Conditions supersedes Item 72 of the Preliminaries, such that the latter should be disregarded when determining whether the CC can be issued. ⁴¹⁵ This argument is based on cl 11 of the Supplementary Conditions to the Conditions of Contract, which provides as follows: ⁴¹⁶

314 The plaintiff and the third party contend that as cl 24(4) contradicts Item 72 of the Preliminaries, the effect of cl 11 is that cl 24(4) of the SIA Conditions “prevail[s]” over Item 72 of the Preliminaries. ⁴¹⁷ In support of this, the third party raises several instances of apparent contradictions between cl 24(4) and Item 72. The eventual result is that, in determining when the CC can be issued, the third party only has to refer to cl 24(4) of the SIA Conditions.

315 I disagree with the plaintiff and the third party. Clause 11 states the order of priority “[i]n the event of conflicts and discrepancies”. In this instance, however, cl 24(4) of the SIA Conditions and Item 72 of the Preliminaries are neither in conflict nor inconsistent. There are no discrepancies in these two provisions. In fact, Item 72 of the Preliminaries is complementary or supplementary to cl 24(4) of the SIA Conditions. ⁴¹⁸ Clause 24(4) broadly sets out the circumstances under which the third party can exercise its discretion to issue the CC, as seen above at [300]. Item 72 of the Preliminaries provides further guidelines to the third party on its exercise of the discretion in cl 24(4) of the SIA Conditions. Both provisions have a common purpose, that is, to ensure that the Project is complete, in compliance with the contractual requirements and that the defendant can move in to occupy and use the three units in the Project. In this regard, it is notable that cl 24(4) makes reference to compliance with “the Contract in all respects”. This reference to the Contract means that in determining whether the requirements in cl 24(4) are satisfied, the third party should have regard to the entire Contract, including Item 72 of the Preliminaries.

316 In this respect, the CA in Ser Kim Koi (Court of Appeal) ([67] supra) at [66] similarly observed: ⁴¹⁹

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

318 Item 72(a) of the Preliminaries states that the CC shall not be issued until “[a]ll parts of the Works are in the Architect’s opinion ready for occupation and for use”. ⁴²⁰ To recapitulate, the CC was issued by the third party on 15 May 2013, certifying completion on 17 April 2013. The TOP was only issued by the BCA on 16 September 2013. As at 15 May 2013, the Project had already failed TOP Inspection 1, which was held on 30 April 2013.

319 The plaintiff distinguishes between the Project being “physically ready for occupation” and the employer being able to “legally occupy the Project” after the TOP is obtained. The plaintiff submits that the phrase “ready for occupation and for use” in Item 72(a) refers to physical readiness for occupation, not legal readiness. Otherwise, the phrase “Architect’s opinion” would be rendered otiose. The plaintiff also notes that when making a request for the issuance of the TOP, the third party is required to submit a declaration that the “works have been completed in accordance with the provisions of the Building Control Act, the regulations made thereunder and the conditions under which the plans were approved”. ⁴²¹ According to the plaintiff, this means that the third party must be satisfied that the Project is “ready for occupation” before applying for the TOP. ⁴²²

320 Similarly, the third party submits that the issuance of the TOP is not a pre-condition for the third party’s issuance of the CC. The third party notes that pursuant to s 12(4) of the Building Control Act (Cap 29, 1999 Rev Ed) (“Building Control Act”), the TOP is only prima facie evidence that a building is suitable for occupation. Moreover, there is no express reference to obtaining the TOP in Item 72(a) or any other part of the Contract. Thus, Item 72(a) should be read practically from the perspective of the third party who is not legally-trained. ⁴²³

321 The defendant takes a different position. Since it is an offence pursuant to s 12 of the Building Control Act to occupy a building before the TOP or CSC has been issued, the defendant claims that the third party should not have issued the CC for the Project certifying that it was ready for occupation and use. ⁴²⁴ The defendant also relies on the following passages from Ser Kim Koi (Court of Appeal) ([67] supra) at [44]–[45]: ⁴²⁵

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

323 In construing Item 72(a) of the Preliminaries, the court has to first determine the scope of the plaintiff’s Works under the Contract. In this case, the definition of the term “Works” is set out in cl 1 of the Articles of Contract, under the heading “Contractor’s Obligations”: ⁴²⁶

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

325 In relation to TOP Inspection 1, some of the reasons why it failed clearly fell within the scope of the plaintiff’s Works eg, the unequal steps and risers. This shortcoming was already known to the third party before TOP Inspection 1 as it had qualified it in the CC. ⁴²⁷ Both the plaintiff and the third party have stated that they considered some of the non-compliances identified in the TOP inspections as minor works which could be completed post-completion. For example, in relation to the unequal steps and risers, Mr Yong stated as follows: ⁴²⁸

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

327 The third party claims that it acted in good faith based on its experience, commercial understanding and practical reality. But none of these reasons can override the clear and express language of Item 72(a) of the Preliminaries. Further, Mr Yong testified that when he issued the CC on 15 May 2013, he was unaware of Item 72 of the Preliminaries. Instead, he relied on cl 24(4) of the SIA Conditions. ⁴²⁹ As stated above at [300], however, cl 24(4) of the SIA Conditions expressly states that the Works must “comply with the Contract in all respects”. Therefore, this provision requires the third party to refer to the Contract documents between the plaintiff and the defendant, which includes Item 72 of the Preliminaries.

328 It is, therefore, clear that as of TOP Inspection 1 on 30 April 2013, Item 72(a) of the Preliminaries had not been fully complied with by the plaintiff. In fact, the plaintiff itself admits that “there [were] construction errors in the steps that caused [TOP Inspection 1] to fail”. ⁴³⁰ TOP Inspection 1 was before 15 May 2013, when the CC was issued to take effect from 17 April 2013. The third party knew on 15 May 2013 that TOP Inspection 1 failed for several reasons, including the non-compliant steps and risers which was a construction matter within the plaintiff’s scope of responsibility. In fact, the evidence shows that the third party knew that the steps and risers were non-compliant even before the application for TOP Inspection 1. Hence, the third party should not have issued the CC on 15 May 2013 certifying that the Project was completed on 17 April 2013.

329 TOP Inspection 2 was on 18 June 2013. After TOP Inspection 2, the BCA did not comment on the steps and risers inside the three units, including those that they had earlier identified as non-compliant. Thus, those steps and risers were deemed acceptable by the BCA. However, the Project again failed TOP Inspection 2. This second failure to obtain the TOP was due to three issues – the steps at the RC flat roof for all units, the last step at the landscape area of Unit 12A that failed to comply with the requirements for steps and risers, and the height of the barrier at the pavilion in Unit 12A. ⁴³¹ I shall deal with each of these in turn.

330 I start with the steps at the RC flat roof. The steps at the RC flat roof were not part of the contract drawings and had only been added subsequently to ensure easy access at the flat roof, as instructed by the third party pursuant to Architect’s Instruction Number 15. ⁴³² Hence, this is additional work directed by the third party. As Mr Tan explained, these steps were “non-standard and not typical in design”. ⁴³³ The reason for not allowing the steps pertained to design, rather than as a result of a construction fault on the plaintiff’s part. The plaintiff had merely followed the design of the RC flat roof step area provided by the third party. ⁴³⁴ Therefore, this was not a construction error by the plaintiff. I also do not consider this to be a matter of negligent design on the part of the third party. The third party had considered that the steps at the RC flat roof fell within certain exceptions to the BCA’s Approved Document – Acceptable Solutions (July 2011) (the “BCA Regulations”), whereas the BCA officer took a different view. This was a matter of a difference in opinion, rather than the third party being negligent in its design. ⁴³⁵

331 I turn now to the last step at the landscape area of Unit 12A. While this was within the contract drawings and clearly fell within the scope of the plaintiff’s Works, the cause of the defect was not a construction error. Rather, the defect arose due to the settlement of the landscaped soil, which resulted in the height of the last step being higher than permitted under the BCA Regulations. ⁴³⁶ As this was a natural phenomenon, it cannot be attributed to the plaintiff or the third party, nor can it be regarded as a construction error.

332 Finally, I turn to the issue of the height of the barrier at the pavilion in Unit 12A. The TOP was only obtained on 16 September 2013 due to this issue, which eventually necessitated the installation of a glass barrier. According to the BCA Regulations, where a design had a fall of more than one metre in height, a barrier should be constructed for safety purposes. Furthermore, the BCA Regulations state that the “height of a barrier is measured vertically from the finished floor level to the top of the barrier”. ⁴³⁷ In this instance, there was a wall at the pavilion of Unit 12A which was a metre high if measured from the pavilion floor. However, there was a bench built into the wall. During TOP Inspection 1, the BCA officer measured the height of the wall from the top of the bench instead of from the floor of the pavilion. Thus, the height of the wall became less than a metre and the BCA officer was of the view that this posed a safety issue as people could climb onto the bench and potentially topple over the wall onto the level below which would be more than a metre fall. The third party was of the opinion that it was not a safety issue as the wall was a metre tall when measured from the floor of the pavilion. On this view, the term “finished floor level” in the BCA Regulations referred to the floor of the pavilion, rather than the top of the bench. However, the BCA disagreed as the BCA officer measured the height of the wall from the top of the bench to the top of the wall. ⁴³⁸

333 It was this difference in opinion that resulted in the BCA refusing to grant the TOP at TOP Inspection 2. ⁴³⁹ The BCA Regulations did not state where the measurements should begin, ie, from the top of the wall or the top of the bench. It was, thus, a matter of a difference in opinion. The third party could not have foreseen this with certainty before the BCA’s inspections. In fact, prior to the construction of the Project, the third party had obtained approvals for the building plans from the BCA. The building plans included the height of the wall with the built-in bench at the pavilion at Unit 12A being stated as 1000mm from the “finished floor level”. ⁴⁴⁰ Since the BCA had approved the building plans, the BCA should not have faulted this aspect of the design at TOP Inspection 1. Nevertheless, the BCA did. The third party then attempted to resolve the issue by implementing an invisible grille which was, however, rejected by the BCA. Eventually, a glass barrier was used with the approval of the BCA. It would, therefore, not be correct to say that the third party had been negligent in designing the pavilion and the invisible grille. It would also not be correct to say that the issue with the height of the barrier at the pavilion in Unit 12A was a construction error.

334 Thus, while the failure of TOP Inspection 1 was due to construction faults on the plaintiff’s part, the failure of TOP Inspection 2 was not. Rather, it was caused by natural phenomenon and design issues falling within the third party’s purview. Therefore, since the failure of TOP Inspection 2 was not due to defects within the plaintiff’s contractual responsibility, the third party could have issued the CC once the defects highlighted in TOP Inspection 1 were rectified. I accept Mr Yong’s evidence that such rectification works were completed by 28 May 2013, within 28 days from the date of TOP Inspection 1. ⁴⁴¹ The rectification works started on 17 May 2013 and it took 11 days to complete it. I note that there is some dispute amongst the parties in relation to whether the rectification works for the steps and risers had in fact been carried out satisfactorily, which I shall deal with further below. Thus, I find that Item 72(a) of the Preliminaries was satisfied by 28 May 2013.

335 For completeness, I should add that the plaintiff pleaded for the court to grant an extension of time from 17 April 2013 to 16 September 2013, or in the alternative, for a declaration that time had been set at large for the completion of the Contract. This was on the basis that any delay in obtaining the TOP was due to the third party’s failure to produce a design for the pavilion at Unit 12A that was acceptable to the BCA. ⁴⁴² Given my finding that the CC should have been issued on 28 May 2013 (before the issue relating to the pavilion at Unit 12A was resolved), there is no need for the court to consider the issue of any delay occasioned by the invisible grille. Furthermore, for reasons which I shall explain at [661]–[665] below, the relevant act of prevention was not the third party’s design of the invisible grille, but its instructions to the plaintiff to delay rectification of the steps and risers until after TOP Inspection 1. In the circumstances, it was understandable why the plaintiff did not apply for an EOT after the issues relating to the invisible grille arose. At that point in time, the CC had already been issued. There would have been no need for the plaintiff to apply for any EOT and it would not have occurred to the plaintiff to do so.

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

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

338 Item 72(b) of the Preliminaries states that before the third party issues the CC, “[a]ll services [must be] tested, commissioned and operating satisfactorily as specified in the Contract”. The defendant contends that this includes the gas services for the Project, and that T&C of the gas services was not conducted after power turn-on. ⁴⁴³ It is not in dispute that as at 17 April 2013, T&C for the gas services was not completed. The third party submits that the defendant is estopped from strict reliance on Item 72(b) in this respect because it was represented to all parties that, for safety reasons, the T&C for the gas services would be done after the Project was completed and all parties consented to this. ⁴⁴⁴

339 The requirements of promissory estoppel are well-settled, as explained by the CA in Audi Construction Pte Ltd v Kian Hiap Construction Pte Ltd [2018] 1 SLR 317 at [57], [58] and [61]: ⁴⁴⁵

340 I agree that gas services fall within the scope of Item 72(b) of the Preliminaries. However, I accept the third party’s submission that the defendant is estopped from insisting that T&C of the gas services be done prior to the issuance of the CC. CCA was of the opinion that gas turn-on for the Project should only be completed after the TOP was obtained, as it had concerns about the safety of switching on the gas supply for the Project that would be vacant for an extended period of time. ⁴⁴⁶ This was communicated by CCA to the defendant, Mr Cheung, Mr Chow, the third party and the other Consultants on 21 January 2013 during Site Meeting No 41. ⁴⁴⁷ Item 7.4 of the minutes of Site Meeting No 41 states:

341 The defendant, Mr Cheung and Mr Chow did not have any objections to this proposal at the meeting. A copy of the minutes was circulated to all parties present at Site Meeting No 41 by the third party via an e-mail dated 30 January 2013. ⁴⁴⁸ There is also no other evidence to suggest that the defendant or his Assistants had any objections to the proposal at Site Meeting No 42, ⁴⁴⁹ or at any other point of time during the course of the Project. ⁴⁵⁰ This was confirmed by Ms Chua at trial: ⁴⁵¹

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

343 Moreover, T&C was eventually conducted by City Gas as well as by the plaintiff and its subcontractors, both prior to, at the time of, and after gas turn-on. This is confirmed by the documents ⁴⁵² as well as the testimonies of the various witnesses. Mr Chew Beng Wah (PW6, “Mr Chew”) testified that although CCA was of the view that further T&C for the gas services was not required following turn-on, the subcontractors nevertheless carried out further T&C at the Project after gas turn-on. ⁴⁵³ Similarly, Ms Chua testified as follows: ⁴⁵⁴

344 I note that in Ser Kim Koi (Court of Appeal) ([67] supra), the CA also observed at [47] that the documents in the CC suggested that some basic works and services had yet to be tested, commissioned, or checked if they were operating satisfactorily. In particular, the CA referred to the schedule of minor outstanding works attached to the CC, which states: ⁴⁵⁵

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

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

(a) In relation to the T&C of the lighting points and lighting arrester, the Certificate of Supervision of Lighting Protection System dated 7 February 2013 is evidence that T&C of the lighting points and lighting arrestor was completed prior to 17 April 2013. ⁴⁵⁶

(b) In relation to the T&C of the lighting points and built-in equipment, the Certificate of Fitness of Residential Unit dated 7 March 2013 for Unit 12, Unit 12A and Unit 12B show that T&C of the lighting points and built-in equipment was completed prior to 17 April 2013. ⁴⁵⁷

(c) The licensed electrical worker signed the Electrical Installation Inspection Report for Unit 12, Unit 12A and Unit 12B on 5 April 2013, 1 April 2013 and 26 March 2013 respectively, showing that the electrical installation complied with the requirements in accordance with “the Singapore Standard CP5 and the relevant regulations” prior to 17 April 2013. ⁴⁵⁸

(d) SPPG’s officer signed the Statement of Turn-on of Electricity for Unit 12, Unit 12A and Unit 12B on 8 April 2013, 2 April 2013 and 27 March 2013 respectively, showing that the electrical installation was “suitable for connection to the electrical system” prior to 17 April 2013. ⁴⁵⁹

Mr Lee, the defendant’s expert electrical witness, affirmed that once the Certificate of Fitness of Residential Unit, Electrical Installation Inspection Report and Statement of Turn-on of Electricity were duly endorsed, no further T&C was required for the Project. ⁴⁶⁰

347 That addresses T&C prior to electrical turn-on. However, the defendant’s contention is that T&C must have been conducted before and after turn-on. ⁴⁶¹ I turn now to T&C conducted after turn-on. Mr Yong explained that when it came to T&C of certain services conducted by the plaintiff after turn-on and prior to handing over, these might not necessarily be accompanied by formal documentation. Mr Yong explained as follows: ⁴⁶²

348 Given the absence of formal documentation, the most useful evidence to determine whether T&C had in fact been conducted is the evidence of the people who were present at the Project at the relevant time and who had witnessed such T&C taking place. In that regard, Mr Yong confirmed in his evidence that T&C of the electrical services had been carried out: ⁴⁶³

349 Ms Chua similarly confirmed that the requisite T&C had been carried out by the plaintiff: ⁴⁶⁴

350 I note that in the course of cross-examination, Mr Tan testified that the T&C for the electrical services had not in fact been conducted after power turn-on: ⁴⁶⁵

351 The defendant seeks to rely on this portion of Mr Tan’s evidence to show that the T&C of the electrical services was not conducted after power turn-on. ⁴⁶⁶ However, it must be borne in mind that Mr Tan is the plaintiff’s director and was not directly managing the Project. ⁴⁶⁷ When giving evidence on the stand in relation to the T&C of the relevant services, he stated that he would “leave the technical aspect to [his] project manager to explain”. ⁴⁶⁸ In contrast, Mr Yong and Ms Chua were both more closely involved in the running of the Project than Mr Tan. In fact, Ms Chua was the M&E engineer for the Project, therefore, she would have been directly involved in overseeing the plaintiff’s progress in relation to the electrical services. In these circumstances, when it comes to the issue of whether the T&C of the electrical services was in fact carried out after power turn-on, I am more inclined to prefer the evidence of Mr Yong and Ms Chua over that of Mr Tan.

352 Secondly, the T&C of the ACMV works had already been completed on or around 1 and 2 April 2013 (before electrical turn-on), as well as from 10 to 12 April 2013 (after electrical turn-on). This is supported by the contemporaneous documents, and confirmed by Ms Chua at trial. ⁴⁶⁹ In particular, the T&C of the ACMV works was completed and signed off by the plaintiff and its subcontractor for Unit 12, Unit 12A and Unit 12B on 10 April 2013, 11 April 2013 and 12 April 2013 respectively. ⁴⁷⁰ Ms Chua testified that she had personally conducted the T&C of the ACMV works: ⁴⁷¹

353 Ms Chua further explained that CCA had to conduct the T&C before it could release the Certificate of Supervision required for the TOP application: ⁴⁷²

354 In relation to the T&C of the A/C equipment referred to in the schedule of minor works attached to the CC (which was eventually carried out on 8 July 2013), this was an additional T&C carried out at the defendant’s request, as he wanted the ACMV works to be tested on both sunny and rainy days. ⁴⁷³ Mr Yong testified to this effect: ⁴⁷⁴

355 Ms Chiyachan had corroborated this by explaining that it had been an additional request by the defendant: ⁴⁷⁵

356 This was, again, confirmed by Ms Chua during cross-examination: ⁴⁷⁶

357 As Ms Chua explained, this additional T&C pertained to ascertaining whether CCA’s design for the ACMV works was performing according to purpose, and not whether the ACMV works were constructed by the plaintiff in accordance with CCA’s design: ⁴⁷⁷

When questioned by the court, Ms Chua maintained this position: ⁴⁷⁸

358 In relation to the T&C for the water pipes and hot water, I find that as at 17 April 2013, these services must necessarily have been already working. This is seen from the evidence of Ms Chiyachan: ⁴⁷⁹

359 This was also corroborated by the evidence of Mr Yong, who testified that similar to the T&C of the electrical services, the plaintiff’s internal T&C of the water pipes and hot water was not necessarily accompanied by formal documentation. Mr Yong explained as follows: ⁴⁸⁰

360 Ms Chua similarly confirmed that the requisite T&C for all the relevant works had been carried out before 17 April 2013, save for the T&C of the gas services: ⁴⁸¹

361 I turn now to the defendant’s submission regarding the T&C of the swimming pool. The defendant submits that the T&C of the swimming pool installations was conducted after the certified completion date of 17 April 2013, and that RTO Leong (who signed as a witness to these reports) had not actually been present during the T&C of the swimming pool installations. ⁴⁸²

362 However, this allegation was not pleaded by the defendant. ⁴⁸³ This was pointed out to the defendant’s counsel during the trial. Nevertheless, he maintained that there was no need for the defendant to amend his pleadings as the T&C of the swimming pool fell within his “pleaded case [that] item 72(b) of the [P]reliminaries have not been satisfied”. ⁴⁸⁴ With respect, I find this explanation highly unsatisfactory. As the defendant’s counsel himself pointed out during Mr Ng’s cross-examination, the services falling within Item 72(b) were M&E installations, electrical installations, ACMV works, plumbing, sanitary, gas and filtration. ⁴⁸⁵ However, it was not apparent from the defendant’s pleadings that his case regarding Item 72(b) related to all of the services covered by Item 72(b). The defendant’s case as reflected in his pleadings is that “there was no basis for issuing the CC stating that the Project was complete on 17 April 2013, when gas, electrical services, and ACMV for the Project had yet to be fully tested and commissioned” [emphasis added]. ⁴⁸⁶ There is no mention of the T&C for the swimming pool. The fact that the defendant specifically referred to “gas, electrical services and ACMV” reinforces the understanding that the defendant was only contesting T&C in relation to these particular services. In fact, the defendant’s counsel acknowledged in his oral submissions that the defendant did not “plead the swimming pool”. The defendant’s counsel submitted that nevertheless, the court should consider the issue as it “came out in evidence”. ⁴⁸⁷ This too is not a satisfactory explanation.

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

364 In this case, I find that the defendant’s pleadings were insufficient to bring to the parties’ and the court’s attention that he was also contesting the T&C of the swimming pool. The main focus throughout the trial was on the alleged leakage of the swimming pool. There was no mention of whether the T&C for the swimming pool was conducted in the pleadings. That was raised as an issue only in the last tranche of the trial, when the court sought certain clarifications from the parties on the evidence. ⁴⁸⁸ As such, to consider the issue now would be prejudicial to the plaintiff and the third party, who did not have the opportunity to prepare for this point and adduce from their witnesses the relevant evidence to address this point. In particular, the defendant relies on a document titled “Checklist for Testing & Commissioning of Swimming Pool” dated 16 May 2013, after the certified completion date. ⁴⁸⁹ While this document was referred to by the parties in the course of the trial, it was not for the purpose of asking the witnesses whether and when the T&C of the swimming pool was conducted. Therefore, I disregard the defendant’s submissions on this point as it was not pleaded, and it would be prejudicial to the plaintiff and the third party to consider it now.

365 In any case, even if the issue were considered, I would not have accepted the defendant’s claim that the T&C of the swimming pool was not conducted before the issuance of the CC. To the contrary, the evidence shows that the T&C of the swimming pool was in fact conducted before the issuance of the CC. Specifically, Ms Chua testified that all of the relevant T&C had been conducted (see [360] above). This is supported by the minutes of Site Meeting No 47 dated 15 April 2013, which state that the T&C of the swimming pool was completed as at that date. ⁴⁹⁰

366 A final issue arises in relation to Item 72(b) of the Preliminaries. This condition stipulates that test certificates, operating instructions and warranties (the “Documents”) have to be handed over by the plaintiff to the defendant before the third party can issue the CC. It is not disputed that the operating instructions and warranties were only handed over to the defendant on or about 22 June 2014. The defendant further submits that the test certificates have not been handed over to the defendant even up till today. ⁴⁹¹ However, the Documents were in fact ready earlier than 22 June 2014 as the plaintiff and the third party wanted to hand over the Project to the defendant soon after the TOP was obtained, specifically, on or around 25 September 2013, but the defendant refused to take over the Project. ⁴⁹²

367 The third party explained that the Documents were not handed over because it took a “practical approach” and was of the opinion that the Documents could be prepared during the maintenance period. The third party considered the handing over of the Documents a de minimis issue which had no impact on the practicality of completion. ⁴⁹³ Accordingly, the third party was of the opinion that Item 72(b) of the Preliminaries did not require the Documents to be handed over prior to the issuance of the CC. This position was reiterated by Mr Yong in cross-examination: ⁴⁹⁴

368 When pressed further in cross-examination, his explanation was as follows: ⁴⁹⁵

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

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

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

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

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

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

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

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

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

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

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

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

376 This interpretation is fortified by the commercial background and business purpose of Item 72. The literal interpretation of Item 72(b) would not cohere with the business purpose of the CC. As mentioned at [324] above, the purpose of the CC is, inter alia, to determine the plaintiff’s liability for delay and determine the commencement of the maintenance period. Therefore, in construing Item 72(b), as with Item 72(a), the court must have reference to the scope of the plaintiff’s responsibilities. As Mr Yong testified, the Documents must first be verified by the quality surveyor before they can be handed over the defendant. ⁴⁹⁶ Similarly, Ms Chua testified that after compiling the Documents, the plaintiff had to submit them to CCA for vetting and approval before the Documents could be handed over to the defendant. ⁴⁹⁷ If Item 72(b) were construed literally such that the CC could only be issued after the handover requirement was satisfied, the plaintiff would be exposed to the risk of delay on the part of other parties over whom it had no control.

377 Similarly, to interpret Item 72(b) literally so as to require the Documents to be handed over before the issuance of the CC would have been impracticable, unworkable even, for all parties. As Mr Yong explained: ⁴⁹⁸

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

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

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

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

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

383 The defendant submits that the third party should not have issued the CC certifying completion on 17 April 2013, as there were “many outstanding unrectified construction defects at the Project”. ⁴⁹⁹ Item 72(c) of the Preliminaries provides that the third party shall not issue the CC unless “[a]ll works included in the Contract are performed including such rectification as may be required to bring the work to the completion and standards acceptable to the [third party]” [emphasis added]. Therefore, the defendant asserts that the fact that the CC was issued, notwithstanding the numerous defects, gives rise to the inference that the plaintiff and the third party had conspired in relation to the issuance of the CC. I should also add that the defendant challenges the issuance of the MC on the same basis.

384 The plaintiff disputes this and contends that the remaining outstanding works after the CC was issued were “minor” works. ⁵⁰⁰ Similarly, the third party points to cll 24(4) and 24(5) of the SIA Conditions, which provide that the Works should “appear to be complete and to comply with the Contract in all respects”, and that the third party can list outstanding “minor works” in a schedule to the CC to be rectified thereafter.

385 Preliminarily, I note that the presence of minor defects does not prohibit the third party from issuing the CC. This was explained by Prakash J in Yap Boon Keng Sonny v Pacific Prince International Pte Ltd and another [2009] 1 SLR(R) 385 (“Yap Boon Keng Sonny”) at [134], as follows: ⁵⁰¹

386 The following passage from Commentary on SIA Standard Form at para 24.14 is pertinent in explaining the standards expected of a contractor at the point of completion: ⁵⁰²

This term “practical completion” has been understood as referring to “the completion of all the construction work that has to be done … notwithstanding the existence of latent defects” and “a state of affairs in which the works had been completed free from patent defects other than ones to be ignored as trifling” (see Chow Kok Fong, Law and Practice of Construction Contracts (5th Ed, Sweet & Maxwell Asia, 2018) (“Law and Practice of Construction Contracts”) at para 23.414). ⁵⁰³

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

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

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

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

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

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

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

391 Before turning to deal with each of the specific defects, I would like to refer to Mr Chin’s opinion on cl 11(1) of the SIA Conditions, which he claims required the plaintiff to supply materials of “… the best of their described kinds…” for the Project. He relied on this clause to support his finding of defects in relation to the Volakas marble, the ironwood for the timber decking and the variance in tonality of the Indian rosewood. With respect, Mr Chin must read that provision in the context of the entirety of clause 11(1). It is wrong for him to focus only on that portion of the clause to the exclusion of other parts to support his opinion that the plaintiff furnished poor quality materials in this Project. Clause 11(1) reads: ⁵⁰⁴

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

393 The defendant alleges that there is a defective gas pipe laid across the driveway at the front gate of Unit 12A. ⁵⁰⁵ This defect only relates to Unit 12A. There are two parts to the defendant’s pleadings regarding the alleged defective gas pipe. Firstly, the defendant argues that the gas pipe was punctured and not rectified. He pleads as follows: ⁵⁰⁶

394 Secondly, as part of his claim that the third party demonstrated undue partiality towards the plaintiff, the defendant argues as follows: ⁵⁰⁷

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

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

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

398 The first application to introduce fresh evidence was made on 28 November 2018. The defendant sought to adduce into evidence a video taken on 22 November 2018. The defendant had engaged a contractor to hack the driveway of Unit 12A to expose the allegedly punctured gas pipe. According to the defendant’s counsel, Mr Christopher Chong, the purpose of the video was to prove that the plaintiff did not perform the necessary rectification works on the gas pipe sleeve and that the gas pipe still remained punctured. ⁵⁰⁸

399 It must be emphasised that this new evidence was introduced approximately three weeks after the trial had commenced. The video was only disclosed to the plaintiff and the third party on the evening of 26 November 2018. ⁵⁰⁹ In all fairness to the plaintiff and the third party, the hearing had to be adjourned for them to view the video evidence and to respond to the defendant’s application. The plaintiff and the third party, quite understandably, vehemently objected to this last-minute introduction of new evidence as they were caught by surprise. ⁵¹⁰

400 The defendant’s counsel explained that the video was only filmed on 22 November 2018 as Mr Tan had stated during cross-examination that the gas pipe sleeve was replaced by the plaintiff. However, the defendant’s counsel candidly acknowledged that the defendant had been aware that the plaintiff’s case was that the defects had been rectified. ⁵¹¹ If that was the case, the evidence could have and should have been obtained and introduced at an earlier stage.

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

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

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

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

405 I shall now deal with the defendant’s counterclaim regarding the alleged punctured gas pipe. In this regard, the defendant relies on an email sent by CCA on 7 March 2014 and a corresponding Engineer’s Direction No 1 (“ED 01”) issued by CCA on 24 March 2014 to replace the gas pipe. ⁵¹² The defendant asserts that the plaintiff has not complied with ED 01 to date.

406 However, CCA confirmed that the plaintiff complied with ED 01 by carrying out all the necessary rectification works in relation to the gas pipe as of 1 April 2014. Contrary to the defendant’s allegations, it was the gas pipe sleeve which covers the gas pipe that was dented. ⁵¹³ Furthermore, BAPL, the defendant’s own expert, confirmed that as of 21 November 2013, the gas pressure was fully restored and was not leaking. ⁵¹⁴ This suggests that any issues with the gas pipe, regardless of whether they concern the gas pipe sleeve or the actual gas pipe, had been rectified by the plaintiff.

407 In any event, the defendant has failed to establish, on a balance of probabilities, that the dented/punctured gas pipe was not replaced, and pressure tested as pleaded. The defendant’s allegations are rebutted by the testimony of Mr Lim Shao Lin, (PW7, “Mr Lim SL”), the managing director of GasHub Engineering Pte Ltd and the licensed gas worker for the Project. It transpired that in November 2013, there were complaints from the defendant of low gas pressure at Unit 12A of the Project. ⁵¹⁵ Mr Lim SL suspected that the gas pipes might be waterlogged, preventing gas from flowing through. Accordingly, Mr Lim SL conducted investigations on the same gas pipe that the defendant now alleges was punctured. For the purpose of these investigations, Mr Lim SL hacked the tiles of the driveway at Unit 12A that covered the gas pipe, removed the cement, cut the iron gas pipe sleeve and removed the sleeve. ⁵¹⁶ It was in the course of this process that the gas pipe sleeve was deliberately cut to access the gas pipe. Separately, Mr Lim SL also had to drill and tap a hole in the gas pipe to check if it was waterlogged. He found nothing wrong with the gas pipe and patched up the hole that he had drilled with a steel plug and sealant to prevent any gas leaks. ⁵¹⁷ Thereafter, a semi-circular iron structure was used to replace the part of the iron sleeve that was removed to access the gas pipe so as to protect that portion of the gas pipe. It was subsequently revealed that the cause of the low gas pressure was due to gas pipes laid by external parties at the roadside outside the Project. ⁵¹⁸

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

409 However, the defendant then pointed to the fact that there was a steel plug on the gas pipe as evidence that it was and remains punctured. It was for this very purpose that he sought to introduce the video evidence. However, the video evidence does not advance the defendant’s case in any way, for nothing can be made out from the video disclosed. In fact, the evidence shows that after confirming that the gas pipe was not waterlogged, Mr Lim SL had to seal the hole in the gas pipe with a steel plug. ⁵¹⁹ Accordingly, what is clear is that not only was there no puncture in the gas pipe before Mr Lim SL drilled it to check whether it was waterlogged (and found that it was not, hence, no replacement was required), proper testing that involved drilling into the gas pipe had to be done.

410 I turn next to the evidence of Mr Bernard Lim, which is relied upon by the defendant. ⁵²⁰ Mr Bernard Lim is a project coordinator at City Gas Pte Ltd, which is a retail supplier of gas. He said that the laying of the gas pipe was according to the as-built plan, which had been approved. He further said that the gas pipe protected by the iron sleeve that was laid across the driveway of Unit 12A is proper and acceptable.

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

412 However, I am cognisant of the fact that his evidence related to the issue of gas safety. Thus, I shall nevertheless deal with this matter. In Mr Bernard Lim’s opinion, it was a dangerous practice to drill a hole into the gas pipe and to subsequently seal the hole with a steel plug. This was because there was a possibility of gas leakage as the gas pipe in Unit 12A was made of polythylene. ⁵²¹ The proper practice, in his view, was to cut away a section of the pipe and thereafter insert a T-joint between adjacent parts of the pipe. However, he opined that if the gas pipe were made of ductile iron it would be appropriate to drill a hole and thereafter plug that hole: ⁵²²

413 I recognise that this may certainly have been one viable method of testing and rectification of the gas pipe. However, Mr Bernard Lim also acknowledged that what Mr Lim SL, the certified licensed gas worker, did was not against the Code of Practice for Manufactured Gas Pipe Installation (also referred to as “CP51”) or any regulation or law: ⁵²³

414 As seen from Mr Bernard Lim’s response, he acknowledged that there is no relevant regulation or rule that prohibits the method of rectification used by Mr Lim SL. Furthermore, there is no evidence that the licensed gas workers who legitimately conducted on-site rectification had improperly conducted their works or were negligent in any way. In any case, given that all licensed gas service workers are licensed by the Energy Market Authority, ⁵²⁴ the plaintiff and the third party would have been fully entitled to rely on their method of rectification. Although Mr Bernard Lim disagreed with Mr Lim SL’s method of rectification, this court cannot disregard the method used by Mr Lim SL, who was a qualified licensed gas worker and whose rectification work was accepted by CCA.

415 Similarly, the defendant’s claim regarding the possibility of the gas pipe being dented was a non-starter. Contrary to what the defendant alleges, it was the gas pipe sleeve which covers the gas pipe that was dented. The dent in the gas pipe sleeve did not affect the gas pipe. According to Mr Chew, the purpose of the gas pipe sleeve is to protect the gas pipe from being damaged. ⁵²⁵ That dent in the gas pipe sleeve did not damage or affect the gas pipe itself. The rectification of the pipe sleeve and gas pipe after testing by Mr Lim SL was accepted by CCA. ⁵²⁶

416 Therefore, I find that the defendant has not established his counterclaim in relation to the alleged defects in the gas pipe. In fact, the evidence shows that the defendant went out of his way to identify alleged defects, to the extent of hacking his own property, and then jumped to the conclusion that the plaintiff and the third party must have been responsible for the alleged defect. In this instance, the video evidence was, for all intents and purposes, a fishing expedition for evidence to support the defendant’s case that there was a punctured gas pipe. A considerable amount of the court’s time was wasted to deal with this issue as the defendant is hugely suspicious of the plaintiff and the third party. The cost of rectifying this defect (ie, to replace just the pipe sleeve) is only $1,149.90, ⁵²⁷ and the sum claimed by the defendant to replace the allegedly punctured gas pipe is $3,833. ⁵²⁸ These relatively trivial sums do not justify the considerable and inordinate time and resources that were devoted to try this issue.

417  The defendant alleges that there were “numerous cracks, scratches, and other forms of damage to the marble flooring [in the Project]”. ⁵²⁹ According to the defendant, these defects were due to the plaintiff’s failure to handle, lay and protect the Volakas marble tiles with the requisite care. ⁵³⁰ Furthermore, the plaintiff also made use of a pallet truck on-site without ensuring that there were proper protective measures to prevent damage to the Volakas marble flooring. ⁵³¹ In fact, the defendant raised his concerns about the lack of protection to the Volakas marble flooring over the course of the various site meetings from 19 November 2012 to 4 February 2013. ⁵³² The third party itself also issued an architect’s direction (“AD 01”) on 4 January 2013, noting that “[t]here [were] no proper protection of the installed works …”. The defendant contends that the plaintiff failed to comply with AD 01 as the protection provided by the plaintiff remained unsatisfactory. ⁵³³ The defendant also relies on Mr Chin’s evidence to argue that the Volakas marble was defective. ⁵³⁴ In considering Mr Chin’s evidence it is important to bear in mind that he was not an expert in Volakas marble as he had no prior experience regarding Volakas marble. Although he professed to have dealt with other kinds of marble in general, such experience does not immediately translate to the kind of in-depth knowledge that he professed to have in relation to Volakas marble. Hence, he cannot be considered an expert in Volakas marble.

418 In Mr Chin’s opinion, the marble in the house suffered from extensive defects, including unsightly marble impurities, hole damage, unsightly marble filler and poor patch repair on the floor tiles. ⁵³⁵ These are his personal observations. Further, in his 2014 BAPL Report, he also opined that the marble tiles remained “unsightly and clearly defective”, and that the plaintiff’s repair works utilising marble fillers and stain removers were simply inadequate. This was despite the third party having inspected the repaired works and noting that the rectification works were generally acceptable. ⁵³⁶ The defendant thus claims a full replacement of the Volakas marble in the Project, which would cost $528,578.20. ⁵³⁷

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

420 It should also be noted that RTO Leong testified that he had specifically checked the marble that was delivered to the site at multiple times: ⁵³⁸