1 HC/OC 343/2024 (“OC 343”) is a claim by Fujifilm Business Innovation Singapore Pte Ltd (“Fujifilm”) against Federal Marketing & Printing Pte Ltd (“Federal”), Mr Lim Peng Huat (“Lim”) and Ms Ng June Fong (“Ng”) (collectively, the “Defendants”). Fujifilm claims against Federal for: (a) 55 months of unpaid rental charges for the hire of a printer, totalling S$715,093.01, pursuant to a rental agreement; (b) eight months of unpaid maintenance charges in relation to the printer, totalling S$10,754.37, pursuant to a service agreement; and (c) S$69,996.51 of late charges under both agreements. Fujifilm also seeks to hold Lim and Ng liable for the same sums pursuant to a guarantee, under which Lim and Ng had agreed to guarantee the obligations of Federal under the rental and service agreements.

2 The Defendants deny their liabilities under the rental and service agreements in full. Their defence, broadly, is that Fujifilm had agreed to waive, or otherwise forego, its entitlement to the rental charges under the rental agreement pursuant to a new agreement that it had entered into with Federal subsequently. The Defendants also counterclaim against Fujifilm for various misrepresentations, breach of the express terms of the rental and service agreements and certain implied terms under the Supply of Goods Act 1982 (2020 Rev Ed) (“SGA”). Federal submits that it is entitled to a refund of rental payments already made, an award of damages for the misrepresentations, breaches of contract and loss of profits.

3 Having considered the parties’ submissions and the evidence, I allow Fujifilm’s claims in full and dismiss the Defendants’ counterclaims in their entirety.

4 Fujifilm is a company incorporated in Singapore which carries on a business of renting and servicing office machinery and equipment. ¹ Federal is a company incorporated in Singapore carrying on the business of manufacturing cards, envelopes and stationery. ² Lim is a director of Federal. ³ Ng is Lim’s wife and an accounts assistant employed by Federal. ⁴

5 Quite apart from cards, envelopes and stationery, Federal often manufactured products such as “Product Catalogues” and “Wallpaper Books” for its clients. ⁵ Its senior graphic designer and manager, Mr Vikneshwaran Muniyandi Subramani (“Viknesh”) explained that the manufacture of these products required the use of a “special printer” that is able to engage in “Large-Sized Printing”. Large-Sized Printing refers to a printer’s ability to print on materials with a dimension larger than 48 cm by 33 cm. ⁶ Printers which can only print on materials with a dimension not larger than 48 cm by 33 cm, on the other hand, would only be able to engage in “Small-Sized Printing”. ⁷ Therefore, manufacture of the Product Catalogues, usually a six- or nine-page product which measures up to 90 cm in length, would require the use of a printer capable of engaging in Large-Sized Printing. ⁸ Similarly, manufacture of the Wallpaper Books, which is a product that is approximately 68 cm in length and 30 cm in width, would also require the use of a printer capable of engaging in Large-Sized Printing. ⁹

6 Viknesh explained that Federal would often mass-produce products such as the Product Catalogues in batches of hundreds (or even thousands) for its clients. Before committing to mass-production, however, Federal would often produce a product in smaller batches (of 50 or 100) as a sample of sorts to enable its client to conduct a quality check. ¹⁰ Viknesh also explained that, in the event that Federal’s clients are dissatisfied with the quality of the samples produced, they would request that Federal “recreate” the given product until their “requirements and standards” have been met. ¹¹ Some examples of these “requirements and standards” that Federal’s clients may demand that it meet included: ¹²

(a) First, the products, when “put and stacked together in a row”, would have to be “aligned and uniform”.

(b) Second, the words (if any) along the spine of a given product would have to be aligned to the surface which it is printed on.

(c) Third, there may be requests that certain parts of a product be embossed. For example, a client may request that its name and/or logo on the cover page of the relevant product be embossed. ¹³ The embossing process involves feeding the printed product, along with input of the specifications of the product “alignment” (ie, the “width and length of the product design”), into an embossing machine. ¹⁴ Precision in the alignment of the printed product would therefore be crucial in ensuring that only the specific part of the printed product, which bore the relevant logo and/or name, is embossed.

(d) Fourth, the pages of a product would have to be “uniform and aligned accurately” so as to ensure that any sample materials pasted thereon would not be out of alignment.

7  According to Federal, therefore, accuracy in product alignment is crucial in ensuring client satisfaction in the “printing industry”, which it described as “highly competitive”. ¹⁵ While clients would “generally allow some leeway” in respect to errors in alignment, Viknesh explained that this is ordinarily limited to those situations where the misalignment is “not visible to the naked eye, typically within a tolerance of plus or minus 1mm”. ¹⁶

8 Fujifilm and Federal share a long and checkered business relationship which, in the main, involved the former leasing printers to the latter and providing various ancillary services in relation to the upkeep and maintenance of those printers. ¹⁷ The earliest set of agreements which are of relevance to this dispute are those entered on 4 August 2015. On that date, Fujifilm and Federal entered into a written contract under which Federal agreed to “rent” two pieces of equipment (“C1000iP5EL@” and “C1000iEFI@”, collectively, the “C1000i Printer”) from Fujifilm for a term of 60 months in consideration for a monthly fee of S$8,333 (“C1000i Rental Agreement”). ¹⁸ Concurrently, on the same date, Fujifilm and Federal also entered into an agreement whereby Fujifilm agreed to, amongst other things, provide services pertaining to the maintenance and upkeep of the C1000i Printer. ¹⁹

9 Federal’s position is that there had been issues with the C1000i Printer which made them unsuitable for its operations. It asserts that there had been “colouring issues” with the C1000i Printer as the colours of the output which it produced “would change after around every 25 sheets [of] paper being printed”. ²⁰ Additionally, Lim asserts that the C1000i Printer could only perform “Small-Sized Printing”, resulting in it having to outsource tasks which required “Large-Sized Printing” to external vendors (see [5] above). ²¹ Lim claims that he had raised complaints pertaining to these issues with the C1000i Printer on Federal’s behalf to Fujifilm’s customer support team. ²² These allegations as to the C1000i Printer’s limitations are denied by Fujifilm, which asserts that the C1000i Printer performed, at all material times, “according to specifications”. ²³

10 According to Lim, the complaints which he had raised on behalf of Federal prompted Fujifilm to send Ms Rowena Cheang Pei Wen (“Rowena”), one of Fujifilm’s representatives and a member of its sales and customer relationship team, to discuss the issues with the C1000i Printer with Federal. ²⁴ Sometime in November 2017, Rowena is alleged to have made multiple on-site visits to Federal’s previous office, during which Lim informed her about the issues that Federal was facing with the C1000i Printer. ²⁵ In response to these complaints, Rowena is alleged to have proposed that Federal “upgrade” its printer by leasing an “Iridesse” model printer (“Iridesse Printer”) from Fujifilm. ²⁶ Rowena is also alleged to have claimed that this “new machine”: (a) is capable of supporting “a wider range of colours”; (b) has “superior specifications” as compared to the C1000i model; and (c) would improve Federal’s “overall profit margins” as it would enable Federal to conduct Large-Sized Printing in-house (as opposed to outsourcing such tasks). ²⁷

11 Sometime in the same period, Rowena prepared and submitted a proposal titled “Iridesse Colour Production Press Proposal” (“Proposal”) to Federal. ²⁸ The Proposal, which is addressed to Lim, touted the capabilities of the Iridesse Printer in broad strokes while setting out its “specifications” in some detail. ²⁹ It also stated that the Iridesse Printer would contribute to “customers’ business expansion” by: (a) increasing “print volume with increased productivity and increased operating rate”; and (b) bringing “[u]nmatched value with unsurpassed expressions realized with improved image quality and use of multiple colours”. ³⁰ It also proposed a “special pricing package” for Federal, under which Federal would pay a monthly rental of S$10,590 for a term of 60 months for the hire of the Iridesse Printer. ³¹

12 In the same period, Lim was extended a copy of a “Customer Expectation & Installation Guide” dated November 2017 for the Iridesse Printer (“Nov 2017 CEI Guide”). ³² The purpose of the Nov 2017 CEI Guide was to: (a) assist customers to “understand the performance and capabilities” of the Iridesse Printer; and (b) provide information on the “accessories” and “specifications” of the Iridesse Printer. ³³ Annexed to the Nov 2017 CEI Guide was a “Customer Expectations Agreement” signed by representatives from Fujifilm and Federal, where the latter acknowledged that it had reviewed and understood “the product specifications for each of the modules that will be installed”. ³⁴ These “modules” were: (a) the Iridesse Printer; (b) a “High Capacity Feeder”; and (c) an “Offset Catch Tray”. ³⁵ Federal also acknowledged that it had “viewed a representative output sample” from the Iridesse Printer and that “the image quality” of said sample was “acceptable for the needs of [its] organization”. ³⁶

13 On 29 November 2017, Federal and Fujifilm entered into a written agreement whereby the latter agreed to let, and the former agreed to hire, an Iridesse Printer (“Equipment”) for a term of 60 months at a monthly rent of S$10,590 (“Rental Agreement”). ³⁷ The Rental Agreement also provided that Fujifilm would be licensing its “Software” for the Equipment to Federal. ³⁸ As the term of the C1000i Rental Agreement had not expired as at the date of the Rental Agreement, the parties agreed that the remaining rental period for the C1000i Printer would be “rolled over” into the rental period for the Equipment. ³⁹ The effect of such an arrangement was to replace the C1000i Printer with the Equipment. The Rental Agreement contained the following clauses:

(a) Clause 1 provided that the rental of the Equipment and the license of the Software would start on the “Commencement Date” (defined as 1 April 2018) for the “Minimum Period” (defined as 60 months). Both the rental and the license would be automatically renewed after the Minimum Period, “unless terminated by 2 months’ prior written notice expiring on a date after the Minimum Period”. ⁴⁰

(b) Clause 5, which set out Federal’s obligations in detail, contained the following sub-clauses:

(i) Under clause 5.1, Federal undertook to pay: (a) the “Initial Payment”; (b) “all Period Payments for the whole Minimum Period”; and (c) the “Final Payment” (collectively, the “FXS Payments”). The terms “Initial Payment”, “Period Payments” and “Final Payment” were not defined in the Rental Agreement but were expressed to be in the quantum of S$0, S$10,590 (monthly) and S$90,000 respectively. ⁴¹

(A) Each Period Payment was stipulated to be payable on the “Rental/Fee Payment Day” throughout the Minimum Period (and thereafter, if the Rental Agreement “continue[d]”). The term “Rental/Fee Payment Day” was not defined in the Rental Agreement. ⁴²

(B) If the Rental Agreement was terminated before the end of the Minimum Period, all Period Payments for the balance of the Minimum Period would become “due and payable immediately” in accordance with clause 7.3. ⁴³

(C) The Final Payment was stipulated to be payable together with the last due Period Payment occurring during the Minimum Period, or “immediately” in the event of “early termination”. ⁴⁴

(ii) Under clause 5.2, all FXS Payments were to be paid to Fujifilm “free from any withholding, deduction, set off, reduction, defence, deferment and counterclaim, whether on account of taxes or otherwise”. Federal’s obligations under the Rental Agreement to pay the FXS Payments were also expressed to be “absolute” and “not [to] be affected by any matter, event or contingency whatsoever, whether such matter, event or contingency result[ed] in the damage, destruction or loss of use of the Items or any of them or otherwise”. ⁴⁵ The word “Items” referred collectively to: (a) the Equipment; (b) the Software; and (c) certain unspecified “tangible materials” which Fujifilm would supply to Federal under the Rental Agreement. ⁴⁶

(iii) Under clause 5.3, Federal agreed, in the event that it defaulted on any payment due under any invoice issued by Federal, to “pay interest at the rate of 15% per annum (which rate will apply before as well as after judgment) from the due date of [Fujifilm’s invoice] until the date of full payment”. ⁴⁷

(c) Under clause 6, Fujifilm warranted that the Equipment would be “free from defects in materials, workmanship and installation for a period of 90 days from the date of installation”. ⁴⁸ Clause 6 also contained the following sub-clauses:

(i) Under clause 6.1, in the event that Fujifilm received a written notice from Federal of any breach of the warranty in clause 6 during the warranty period, Fujifilm would come under an obligation to, “within a reasonable time, repair or at its option, replace the [Equipment] or such parts of it as may be defective”. ⁴⁹ Fujifilm’s obligation under clause 6.1, however, was made subject to Federal having “used and maintained the [Equipment] in accordance with the terms of [the Rental Agreement]” and not being in breach of the same. ⁵⁰

(ii) Under clause 6.2, the warranty in clause 6 was expressed to “not apply where the defect is caused by any default or wilful or negligent act or omission of [Federal], its employees, servants or agents”. ⁵¹

(d) Clause 7, titled “Termination”, provided that the Rental Agreement could not be “terminated or cancelled except as expressly set forth” in the Rental Agreement.

(i) Specifically, under clause 7.2, Fujifilm had a general right to terminate the Rental Agreement by giving notice in writing should Federal be in breach of any of the terms of the Rental Agreement, and such breach remained unremedied for seven days following notice by Fujifilm specifying such breach. ⁵²

(ii) Upon the termination of the Rental Agreement pursuant to clause 7.2 or “otherwise howsoever arising”, Fujifilm would be entitled under clause 7.3 to, amongst other things, enter any of Federal’s premises to “take immediate possession” of all its Items and “exercise any right or remedy that may be available to [it] under applicable laws”. ⁵³

(iii) Clause 7.4, on the other hand, conferred on Federal the right to terminate the Rental Agreement “by giving notice in writing if [Fujifilm] is in breach of any of the material obligations set out under Clauses 6 and 6.1”, and “such breach remains unremedied for thirty (30) days following notice by [Federal] specifying such breach”. ⁵⁴

(iv) In the event that the Rental Agreement was terminated by Federal pursuant to clause 7.4, it would immediately come under an obligation under clause 7.5 to return all of the Items to Fujifilm. Further, the fact of Federal’s termination of the Rental Agreement was stated not to affect any liability on its part in relation to sums due under the Rental Agreement. ⁵⁵

(v) Clause 7.7 provided that Federal “shall be liable for all costs and expenses incurred by [Fujifilm] (including legal fees on a full indemnity basis) flowing from the breach by [Federal] of [the Rental] Agreement and/or [its] termination and/or the exercise of [Fujifilm] of its rights and remedies” thereunder. ⁵⁶

(e) Clause 9 stated that no “failure or delay” on Fujifilm’s part in “enforcing any term or condition of [the Rental] Agreement or to exercise any right or remedy (whether in whole or in part) under [the Rental] Agreement shall be deemed a waiver of [its] rights [t]hereunder nor prejudice [Fujifilm’s] right to take subsequent action”. ⁵⁷

(f) Clause 10 provided that the Rental Agreement would constitute “the entire agreement” between Fujifilm and Federal, and that “[n]o representation, statement, warranty not contained in [the Rental] Agreement” or any “waiver, alteration or modification” of the terms of the Rental Agreement shall be binding on Fujifilm “unless recorded in writing and signed by a Director or General Manager” and a person authorised by Federal. ⁵⁸

14 Concurrently, on 29 November 2017, Federal and Fujifilm entered into another written agreement whereby Fujifilm agreed to sell “materials and supplies” to Federal in relation to the Equipment, as well as to provide maintenance for the same (“Service Agreement”). ⁵⁹ The Service Agreement contained the following terms:

(a) Clause 1 stipulated that the services which Fujifilm would be providing to Federal would commence on the “Service Commencement Date” of 1 April 2018 and continue for the Minimum Period of the Equipment. The provision of services for the Equipment would continue beyond the Minimum Period of the Rental Agreement, unless the Service Agreement was terminated by “90 days prior written notice expiring on a date after the [Minimum Period]”. To that end, Federal had the option of terminating the Service Agreement before the Minimum Period by giving written notice to Fujifilm in the aforesaid manner and paying “an administrative fee”. ⁶⁰

(b) Under clause 2, Fujifilm undertook to: (i) “replace parts necessary for the efficient working of the Equipment”; (ii) “service (i.e. inspect, adjust and repair) the Equipment”; (iii) “provide xerographic supplies necessary for the operation of the [Equipment] other than colour toners” and “output copy material”; and (iv) provide “any patches or bug fixes” for the Software as and when available”. ⁶¹

(c) Under clause 3.2, Fujifilm also undertook to provide “Technical Support Services” (left undefined) for the Equipment in the following manner. In the event that there was “any suspected problem” with the Equipment, Federal would at the first instance be required to notify Fujifilm of the relevant problem “via telephone”. Specifically, Federal was required to “have used reasonable efforts to check that the method of use or operation of the [Equipment] is in accordance with any operating or user instruction or manuals provided” by Fujifilm. If the problems with Equipment could not be resolved, Fujifilm would “attend on site to diagnose” any issues with the Equipment. ⁶²

(d) Under clause 5.1, Federal undertook to pay all “Maintenance Charges” for the Equipment and the Software for the whole Minimum Period. These Maintenance Charges would be payable monthly upon the issuance of the relevant invoice by Fujifilm. By clause 6.1, Federal’s obligation to pay the Maintenance Charges was expressed to be “absolute” and to not be “affected by any matter, event or contingency whatsoever, whether such matter, even or contingency result[ed] in the damage, destruction[,] loss of use of the Items or any of them or otherwise”. ⁶³ Under the Service Agreement, the only form of “Maintenance Charges” that were payable by Federal to Fujifilm were what the parties referred to as the “click charges”. These click charges referred to the price that Fujifilm would charge its customers (including Federal) per print on a sheet of A4 paper. ⁶⁴ The quantum of these charges would depend on whether Federal wished to print its materials in “Black & White” (S$0.08 per “click”) or “Full Colour” (S$0.012 per “click”). ⁶⁵ They would also depend on the size of the paper on which they wished to print. For example, Fujifilm would charge a single “click” for printing on a side of A4 and A3 paper, but charge double “clicks” when printing on a side of “large size” paper with dimensions of 480 mm by 330 mm (ie, Large-Sized Printing). ⁶⁶ The specific number and type of prints conducted by Federal using the Equipment would be tracked by way of a meter affixed thereto. ⁶⁷ Specifically, under clause 5, Federal had an obligation to notify Fujifilm of the “output copy material consumption as reflected on the Meter on or before the 25th day of each month”, whereupon Fujifilm would render an invoice for the same. ⁶⁸

(e) Similar to clause 5.3 of the Rental Agreement, clause 7 of the Service Agreement provided that, in the event of a default by Federal in making payment of the amounts due under any invoice issued by Fujifilm, Federal would have to “pay interest at the rate of 15% per annum (which rate will apply before as well as after judgment) from the due date of the [relevant invoice] until the date of full payment of the amount due”. ⁶⁹

(f) Clause 9 stated that in the event Fujifilm was “under any circumstance liable for any defect or deficiency in the services or any performance of or lack of or delay in performance with respect to the services” to be provided under the Service Agreement, Fujifilm’s “only liability shall be (at the election of [Fujifilm] in its sole discretion) to repeat the performance of the services to the best of its ability or to replace or repair the item on which the services were performed or required to be performed within a reasonable time”. ⁷⁰

(g) Under clause 10.1, Fujifilm had a right to terminate the Service Agreement by giving notice in writing if, amongst other things, Federal were to breach “any” of its terms. On the other hand, under clause 10.2, Federal had a right to terminate the Service Agreement by giving notice in writing if Fujifilm fell in breach of its obligations under clauses 2 and 3 and such breach remained unremedied for 30 days following the issuance of a notice from Federal to Fujifilm “specifying such breach”. ⁷¹

(h) Similar to clause 7.7 of the Rental Agreement, clause 10.4 stated that Federal would be liable for “all costs and expenses incurred by [Fujifilm] (including solicitors and clients costs on a full indemnity basis) as a result of the breach by [Federal] of this Agreement and/or the termination and/or the exercise by [Fujifilm] of its rights and remedies” thereunder. ⁷² Clause 11 of the Service Agreement also contained an entire agreement clause which was identical in its wording to clause 10 of the Rental Agreement. ⁷³

15 On 29 November 2017, in consideration for Fujifilm entering into the Rental and Service Agreements with Federal, Lim and Ng executed a “Guarantee & Indemnity” in favour of Fujifilm (“Guarantee”). ⁷⁴ By clause 1 of the Guarantee, Lim and Ng agreed “jointly and severally to irrevocably and unconditionally guarantee” the “due and punctual payment of all monies and liabilities which are or may become payable by or recoverable” from Federal under the Rental and Service Agreements. ⁷⁵ Lim and Ng also agreed to jointly and severally guarantee the “due observance and performance of all other obligations” of Federal under the Rental and Service Agreements, such that they would be liable to pay Fujifilm on demand “all loss and damages which [it] may suffer or sustain as a result” of any default by Federal. ⁷⁶ Lastly, Lim and Ng also agreed to keep Fujifilm “fully and completely indemnified from and against all losses damages costs expenses liabilities of whatsoever nature or description” which may be incurred or sustained by Fujifilm in the event that Federal failed, refused or neglected to perform its obligations under the two Agreements. ⁷⁷

16 On 28 December 2017, Fujifilm installed the Equipment at Federal’s premises. ⁷⁸ Fujifilm’s representatives also trained Viknesh, the person designated by Federal as the Equipment’s operator, so that he would be able to operate and troubleshoot the Equipment. ⁷⁹ On 20 February 2018, the Equipment was formally commissioned. ⁸⁰

17 Fujifilm’s claim is straightforward. It asserts that, in breach of the Rental Agreement, Federal defaulted in the payment of monthly rentals from 1 July 2018 to 1 March 2023, as well as the Final Payment on 1 April 2023. The total outstanding amount claimed to be due and owing under the Rental Agreement as at 19 April 2024, less a partial payment received of S$5,646.19, is S$715,093.01. ⁸¹ Fujifilm also asserts that, in breach of the Service Agreement, Federal has defaulted in the payment of Maintenance Charges from 26 March 2023 to 24 October 2023. The total outstanding amount claimed as due and owing under the Service Agreement as at 19 April 2024 is S$10,754.37. ⁸² Fujifilm also seeks payment of a sum of S$69,996.51 as “late charges” on the payments due under the Rental and Service Agreements. ⁸³ In support of its claims, it relies on the series of invoices issued from July 2018 to October 2023, ⁸⁴ and a statement of account generated by its accounting system. ⁸⁵ Finally, Fujifilm also seeks to hold Lim and Ng jointly and severally liable for the same amounts pursuant to the Guarantee. ⁸⁶

18 The Defendants acknowledge the invoices issued under the Rental Agreement and the Service Agreement. ⁸⁷ However, they say that they are not obliged to pay for the following reasons: ⁸⁸

(a) By way of conduct and during “parties’ meeting sometime in mid-2019”, Fujifilm had allegedly agreed that Federal was not required to pay for the Equipment’s rental, and only had to pay for the click charges given the alleged issues with the Equipment (“New Agreement”). ⁸⁹ As the issues with the Equipment were never resolved and Federal had repeatedly informed Fujifilm of its refusal to pay anything but the click charges, ⁹⁰ Fujifilm was not entitled to, had waived its right, or is estopped from, claiming that there was a breach of the Rental Agreement. ⁹¹

(b) Fujifilm failed to mitigate any losses and damages suffered, ⁹² in that Federal was permitted to continue using the Equipment for more than 5 years after the first alleged breach of the Rental Agreement, ⁹³ and almost 7 months after the first alleged breach of the Service Agreement, ⁹⁴ when termination of those Agreements and repossession of the Equipment were options open to Fujifilm. ⁹⁵

19 Finally, on Lim and Ng’s defence to Fujifilm’s claims on the Guarantee, their position is that “they do not recall any Guarantee made on 29 November 2017”. ⁹⁶ Nevertheless, when Lim was confronted with the Guarantee during cross-examination, he conceded that he had in fact signed it. ⁹⁷ In closing submissions, the Defendants only maintained that Ng could not recall signing the Guarantee. ⁹⁸

20 Federal has also mounted a litany of counterclaims against Fujifilm, the claimed effect of which is that it is “not obligated” to pay the S$715,093.01 under the Rental Agreement and S$10,754.37 under the Service Agreement owed to Federal. ⁹⁹ I note for completeness that Federal does not appear to dispute the quantum payable. By reason of these counterclaims, Federal also asserts that it is entitled to a refund of the rental payments already paid to Fujifilm (amounting to S$33,993.90), as well as loss of profits and damages to be assessed. ¹⁰⁰

21 First, Federal alleges that Fujifilm, through Rowena, made the following representations to Federal: ¹⁰¹

(a) that the Equipment “could perform large paper printing services” (“1st Representation”);

(b) that the Equipment’s “printing speed and colour quality was much faster and better in comparison” with the C1000i Printer (“2nd Representation”);

(c) that the Equipment’s “margin of error was plus / minus 2mm to 3mm” (“3rd Representation”); and

(d) that “[a]ny and/or all colour correction for the Equipment would only need to be recalibrated after a minimum of 1,500 printed pages” (“4th Representation”)

(collectively, the “Representations”).

22 Federal alleges that the Representations had the effect of representing to it that, among others, “[t]he Equipment would be able to adequately cater to [Federal]’s business needs”. ¹⁰² According to Federal, these Representations were untrue as it discovered the following issues with the Equipment sometime in or around June 2018: ¹⁰³

(collectively, the “Issues”).

23 Despite several requests by Federal and site visits by Fujifilm’s personnel, the Issues were not resolved. ¹⁰⁴ Federal’s case is that it was induced by the false Representations to enter into the Rental Agreement and the Service Agreement. ¹⁰⁵ I shall refer to this as the “1st Misrepresentation Counterclaim”.

24 Federal also relies on the same factual basis for its 1st Misrepresentation Counterclaim to claim for a breach of clauses 6 and 6.1 of the Rental Agreement, and clauses 2 and 3.2 of the Service Agreement. On this, Federal asserts that Fujifilm had “failed to repair or replace the Equipment or resolve the [Issues] within a reasonable time for the efficient working of the Equipment”. ¹⁰⁶ I shall refer to these as the “Rental Agreement Counterclaim” and the “Service Agreement Counterclaim” respectively.

25 Federal further alleges that Fujifilm had represented, by way of verbal promises made during “various meetings between 2019 to 2020”, that the latter “would resolve the Issues in a timely manner and requested for more time to do so” (“Further Representations”). ¹⁰⁷ Federal says the Further Representations were made fraudulently ¹⁰⁸ and it was induced by the Further Representations to continue making payments for the Equipment’s click charges. The Further Representations were untrue as Fujifilm “never intended to resolve the Issues” and Federal was “still unable to utilise the Equipment to perform its main function of [Large-Sized Printing] as promised by” Fujifilm. ¹⁰⁹ I shall refer to this as the “2nd Misrepresentation Counterclaim”.

26 Fujifilm filed OC 343 on 9 May 2024 and served it on the Defendants’ solicitors on 14 May 2024. On 18 February 2025, Fujifilm filed HC/SUM 490/2025 (“SUM 490”), which was an application to strike out, amongst other things, paragraph 87 of Federal’s Defence and Counterclaim dated 13 June 2024 (“D&C”) on the grounds that the facts pleaded therein were protected by without prejudice privilege. Paragraph 87 set out two sentences from an email sent by Mr Julian Wong (“Julian”) – Fujifilm’s “collection manager” – to Lim on 22 September 2022 (“22 Sep 2022 Email”). The context and contents of the 22 Sep 2022 Email is explained at [159]–[160] below. For present purposes, it suffices to say that a learned Assistant Registrar (“AR”) granted Fujifilm’s application and struck out paragraph 87 on the grounds that the contents of that email were covered by without prejudice privilege. ¹¹⁰ On 26 March 2025, Federal filed HC/RA 63/2025 (“RA 63”) appealing against the AR’s decision in SUM 490. ¹¹¹ On 21 April 2025, I affirmed the AR’s decision to strike out paragraph 87 of the D&C on the grounds that the contents of the 22 Sep 2022 Email was covered by without prejudice privilege. ¹¹²

27 Curiously, the 22 Sep 2022 Email – as well as a chain of later emails with the 22 Sep 2022 Email as its head – found its way into the parties’ agreed bundle of documents filed by Fujifilm on 29 December 2025. On 7 January 2026, the first day of the trial, counsel for Fujifilm, Mr Chang Yen Ping Ian (“Mr Chang”) informed the Court that those emails had inadvertently been filed as part of the agreed bundle due to his firm’s “oversight”. ¹¹³ Mr Chang then intimated that he “may” be making an oral application to expunge those emails from the agreed bundle. ¹¹⁴ On 8 January 2026, however, Mr Chang indicated that he was no longer proceeding with the application. ¹¹⁵

28 During the trial, counsel for both Fujifilm and Federal cross-examined the respective witnesses on the contents of the email chain, of which the 22 Sep 2022 Email was a part. Further, in its closing reply submissions, Fujifilm raised no objections to Federal relying on the contents of the 22 Sep 2022 Email to prove the existence of a New Agreement, and had itself made reference to the chain of emails stemming from the 22 Sep 2022 Email in its closing submissions to make the point that steps were taken to mitigate its losses. ¹¹⁶ In these circumstances, I find that Fujifilm has impliedly waived its without prejudice privilege over not just the 22 Sep 2022 Email, but also the whole chain of email correspondence triggered by the 22 Sep 2022 Email: Krishna Kumaran s/o K Ramakrishnan v Kuppusamy s/o Ramakrishnan [2014] 4 SLR 232 at [23].

29 Apart from Fujifilm’s application to expunge the emails from the parties’ agreed bundles, Federal also made an oral application on the first day of trial to amend its Defence and Counterclaim to include a pleading that the Equipment was of “unsatisfactory quality”. ¹¹⁷ The purpose of this amendment was said to clarify Federal’s position that the Fujifilm was in breach of the requirements of the Rental and Service Agreements, as well as certain conditions implied by s 9 of the SGA. ¹¹⁸ I dismissed this application as I did not find that the circumstances amounted to a “special case” under O 9 r 14(3) of the Rules of Court 2021, and the new argument sought to be introduced was not accompanied by any specific particulars. ¹¹⁹

30 On Fujifilm’s counterclaims for misrepresentation, the requirements for fraudulent and negligent misrepresentation are well-established and I set them out below to identify the issues which arise for my consideration.

31 For fraudulent misrepresentation, the following requirements must be satisfied (Chan Pik Sun v Wan Hoe Keet [2024] 1 SLR 893 (“Chan Pik Sun”) at [66]–[67]):

32 For negligent misrepresentation under the common law, the requirements are (Lim Bee Lan v Lee Juan Loong [2021] SGHC 234 at [70]):

33 For claims under s 2(1) of the Misrepresentation Act 1967 (2020 Rev Ed) (“MA”), the representee (a) must have entered into a contract after (b) an actionable misrepresentation was made to him. The representee need not establish that the representor owed him a duty of care, and the burden is on the representor to show that “he had reasonable ground to believe and did believe up to the time the contract was made that the facts represented were true.” An actionable misrepresentation under s 2(1) of the MA also requires that the representation induced the other party to enter into the contract: Liberty Sky Investments Ltd v Goh Seng Heng [2020] 3 SLR 335 (“Liberty Sky”) at [33].

34 Therefore, flowing from the parties’ cases as set out above and the applicable legal principles, the following issues arise for my determination:

35 I deal first with Lim and Ng’s defence to Fujifilm’s claims against them on the Guarantee. As I noted at [19] above, Lim conceded that he had signed the Guarantee. Ng, on the other hand, maintained that she “could not recall” whether she had signed the Guarantee.

36 In my judgment, Ng’s defence is a non-starter. To begin, as Fujifilm is suing on a guarantee which is claimed to have been signed by Ng, the legal burden of proving that Ng had signed the guarantee lies with Fujifilm: see ss 103 and 105 of the Evidence Act 1893 (2020 Rev Ed) (“EA”) and Cooperative Centrale Raiffeisen-Boerenleenbank BA v Motorola Electronics Pte Ltd [2011] 2 SLR 63 at [30]–[31]. Coincident with this legal burden was the evidential burden on Fujifilm to adduce “some (not inherently incredible) evidence” that Ng had signed the Guarantee which, if discharged, would shift the evidential burden to Ng to adduce some evidence in rebuttal. If no evidence in rebuttal is adduced, this Court would be entitled to conclude, from the evidence adduced by Fujifilm, that it has discharged its legal burden of proving that Ng had in fact signed the Guarantee: Britestone Pte Ltd v Smith & Associates Far East, Ltd [2007] 4 SLR(R) 855 (“Britestone”) at [60].

37 In support of its claim that Ng had signed the Guarantee, Fujifilm produced the Guarantee itself, to which Ng’s signature, NRIC and address were appended. ¹²⁰ Fujifilm also produced the following, all of which had been signed by Ng: (a) a “Guarantee & Indemnity” dated 4 August 2015 by which Ng undertook to guarantee Federal’s obligations under the C1000i Rental Agreement; ¹²¹ (b) an instrument of transfer for her previous residence (“Transfer Instrument”); ¹²² and (c) her affidavit of evidence-in-chief dated 4 August 2025. ¹²³ Notably, there was a striking similarity in the signature on the Guarantee on the one hand, and the signatures on the Transfer Instrument and her affidavit of evidence-in-chief, which she acknowledged to be her signature, on the other hand. ¹²⁴ In those circumstances, I am of the view that Fujifilm has proved, at least on a prima facie basis, that Ng had in fact signed the Guarantee on 29 November 2017.

38 The Defendants submit that Ng had maintained throughout the proceedings that she could not recall signing the Guarantee, and this testimony was not contradicted by any other factual witness. ¹²⁵ This defence, however, misses the point. Ng’s inability to recall does not address whether she had in fact signed the Guarantee: Super Group Ltd v Mysore Nagaraja Kartik [2019] 4 SLR 692 at [117]. The Defendants have not alleged that the signatures contained in the Guarantee was forged or offered any alternative explanation as to why a mark, which prima facie appeared to be her signature, appeared in the Guarantee. If fraud or forgery is alleged, the burden rests upon the Defendants to prove such fraud or forgery as the party alleging it: Yogambikai Nagarajah v Indian Overseas Bank [1996] 2 SLR(R) 774 at [39].

39 I turn then to consider what Ng offers as evidence in rebuttal. In her affidavit of evidence-in-chief, Ng asserts that she “do[es] not recall seeing and/or signing any Guarantee & Indemnity for the Rental Agreement and Service Agreement made on 29 November 2017.” ¹²⁶ In cross-examination, Ng accepted that the signature affixed to the Guarantee “looked like [her] signature”. ¹²⁷ Her only explanation as to why she could not confirm whether the signature in the Guarantee was hers was that it was “many years ago” and she could not remember. ¹²⁸ Yet, she was able to confirm that a signature nearly identical to that in the Guarantee, affixed on the instrument of transfer dated 15 October 2019, ¹²⁹ was her signature. ¹³⁰ Her evidence boiled down to the assertion that she “[could] not confirm it is [her] signature”. ¹³¹ This, in my view, was effectively a bare denial which went nowhere towards casting serious doubt on Fujifilm’s case that Ng had in fact signed the Guarantee.

40 The state of the evidence is therefore that the Guarantee contained a signature which appeared nearly identical to other signatures confirmed as Ng’s. In this context, the absence of any direct evidence by Fujifilm that Ng signed the Guarantee means little – Ng herself did not even deny that the signature was hers. In my judgment, Fujifilm has discharged its evidential burden by putting before the court the signed Guarantee, and Ng has failed to adduce any credible evidence to rebut the proposition that she had executed the Guarantee. Consequently, I find that Ng (and, for the avoidance of doubt, Lim) did sign the Guarantee.

41 There was one final difficulty with the Guarantee. Although it was expressed to be executed as a deed, there was no seal affixed on the copy of the Guarantee presented to court. ¹³² I invited parties to make submissions as to the enforceability of the Guarantee in light of the absence of a seal, which is a requirement for its enforceability as a deed: Lim Zhipeng v Seow Suat Thin [2020] 2 SLR 1151 at [37]–[40]. As both parties agreed that the Guarantee could remain enforceable as an ordinary contract if it was properly executed by both Ng and Lim, ¹³³ I proceed on this basis. Given my finding that both Ng and Lim signed the Guarantee, it was therefore enforceable against both as a contract in lieu of its purported status as a deed. Therefore, to the extent that Federal is liable to pay any sum under the Rental and Service Agreements or that Fujifilm had suffered any damages or liabilities by reason of Federal’s actions, Lim and Ng are jointly and severally liable under the Guarantee (see [15] above).

42 I turn to Federal’s 1st Misrepresentation Counterclaim. To assess whether the Representations were made, it is important to understand Federal’s precise case. I begin by noting certain developments which occurred prior to and during trial. In the D&C, the Defendants pleaded as follows: ¹³⁴

43 In the Defendants’ opening statement, it was alleged that Rowena had made the Representations in the Proposal itself. I again reproduce the relevant section: ¹³⁵

This was also the evidence of Lim and Viknesh in their respective affidavits of evidence-in-chief. ¹³⁶ During the course of the trial, both Lim and Viknesh sought to change their evidence to suggest that the Representations did not arise out of the Proposal alone. ¹³⁷ In their closing submissions, the Defendants then submitted that the pleaded case was that “the Representations were made by Ms Rowena in the process of securing the agreement, whether in the proposal document and/or orally”, ¹³⁸ and that “the Defendants’ case has therefore always included oral representations made during the sales process and was not confined to the written Proposal alone.” ¹³⁹

44 It bears recapitulating the applicable principles in pleading a claim in misrepresentation as set out by the Court of Appeal in JTtrust Asia Pte Ltd v Group Lease Holdings Pte Ltd [2020] 2 SLR 1256 at [116]:

45 The Defendants’ pleadings have not been faithful to these principles. The D&C did not make clear whether the Representations were said to have been made orally or in writing, and the affidavits of evidence-in-chief of Lim and Viknesh, ¹⁴⁰ as well as the language in the Defendants’ Opening Statement, ¹⁴¹ had confined the Representations to those which were made “in” the Proposal. The Defendants’ last-minute attempt during trial to amend their sworn statement did little to remedy the deficiencies in their evidence.

46 What is perhaps more concerning is that Viknesh’s testimony, when asked how the amendments to their affidavits of evidence-in-chief came about, suggested that he and Lim had corresponded after the trial had commenced. ¹⁴² This also dented the credibility of Lim and Viknesh’s evidence that the Representations were made in part orally. The circumstances suggested to me that Federal’s witnesses changed their position only when they came to the realisation that their earlier evidence forced Federal to reckon with the limits of the language used in the Proposal (see [48] and [53] below).

47 Nevertheless, I accept that Fujifilm was able to cross-examine Federal’s witnesses on this point. ¹⁴³ On balance, I do not think that Fujifilm suffered irremediable prejudice which could not be compensated by an order of costs: How Weng Fan v Sengkang Town Council [2023] 2 SLR 235 (“How Weng Fan”) at [28]. It was at least sufficiently clear by the time of the cross-examination of Federal’s witnesses and closing submissions the case that Fujifilm had to meet, and Fujifilm had also made submissions in relation to this point. Therefore, I do not think that this prevented me from considering Federal’s case that the Representations was made, at least in part, orally by Rowena.

48 I deal first with the 1st and 2nd Representations, which I find to have been made by Rowena in the Proposal. Fujifilm, quite rightly, accepted that the 1st Representation (that the Equipment “could perform large paper printing services”) was contained in the Proposal. ¹⁴⁴

49 The 2nd Representation was that the Equipment’s “printing speed and colour quality was much faster and better in comparison” with the C1000i Printer. While the Proposal does include references to “Increased Volume”, ¹⁴⁵ “increased operating rate”, ¹⁴⁶ “Longer life consumables and parts”, ¹⁴⁷ and “Added Value”, ¹⁴⁸ it does not directly mention the subject of this comparison. There are also no direct comparisons drawn between the C1000i Printer and the Equipment in the Proposal. References to the C1000i Printer, however, are made at the fifth and last pages of the Proposal, which stated that: (a) the Equipment was meant to “replace the ageing C1000 at Federal Marketing”; and (b) the deal on offer was the “C1000 upgrade package”. ¹⁴⁹

50 Nevertheless, the meaning of a particular representation is to be assessed from the perspective of a reasonable person in the position of the representee, based on the objective construction of the impugned statement and the surrounding circumstances: Lam Wing Yee Jane v Realstar Premier Group Pte Ltd [2024] 5 SLR 51 at [42]. The backdrop to this Proposal included the parties’ long-standing relationship. Federal had previously rented a C1000i Printer from Fujifilm, for which it had complained of issues, including as to the colour and Large-Sized Printing (see [9] above). ¹⁵⁰ It was in this context that the Proposal was prepared and that Federal had decided to “upgrade” from the C1000i Printer to the Equipment. Thus, against this backdrop, and together with the references at the fifth and last pages of the Proposal, Federal would have reasonably understood the comparisons made in the Proposal to be with reference to the C1000i Printer. I therefore find that the 2nd Representation had in fact been made in the Proposal.

51 However, I do not think the 3rd and 4th Representations can be made out on the face of the Proposal. Nothing in the Proposal suggested that the Equipment’s “margin of error was plus / minus 2mm to 3mm” or that “[a]ny and/or all colour correction for the Equipment would only need to be recalibrated after a minimum of 1,500 printed pages”. The closest reference to alignment in the Proposal was the Equipment’s capacity for “Automated Adjustments”. I reproduce the relevant section of the Proposal here: ¹⁵¹

52 Additionally, the “Specifications” of the Equipment in the Proposal makes no reference to the alignment margin of error being 2 mm to 3 mm, or anything about the need for recalibration of the Equipment’s colour correction. I reproduce the Specifications of the Equipment here: ¹⁵²

53 As can be seen, the Specifications only refer to “Front-to-Back Registration” and “Paper Capacity/Weight”. Mr Wong Tet Cheong (“Peter”), Fujifilm’s Chief Financial Officer (“CFO”), explained that “Front-to-Back Registration” in the Specifications referred to alignment, and the value of “±0.5mm” meant that he “would not expect it to run off more than plus/minus 0.5mm”. ¹⁵³ It was further explained in the evidence of Mr Goh Chye Lye (“Goh”), Fujifilm’s Customer Service Manager (“CSM”), that this referred to the tolerance in alignment for duplex printing. ¹⁵⁴ Clearly, this value was not the Equipment’s general alignment margin of error, nor was it directly related to Large-Sized Printing. The “Paper Capacity/Weight” category also makes no reference to a figure of 1,500 pages, nor to the need for colour recalibration. In fact, Viknesh conceded that the four Representations “[were] not in the proposal” and he could not “put this wording in it”. ¹⁵⁵ Lim also conceded that the Representations cannot be found in the Proposal. ¹⁵⁶ I therefore find that the 3rd and 4th Representations were not made in writing in the Proposal.

54 Further, I have difficulties with Federal’s submission that Rowena had made the Representations orally. I would agree that Rowena, as Fujifilm’s sales representative, would likely have spoken about the Equipment in a complimentary manner, and may have even explained certain technical specifications of the printers. ¹⁵⁷ It is also not inherently incredible that Rowena, having serviced Federal’s business for some time, would have been aware of Federal’s business needs, including its complaints about the C1000i Printer.

55 However, what is more difficult to accept is that Rowena would make representations as to the technical specifications of the equipment which were untrue, or representations which did not align with the Proposal prepared by her. Peter’s evidence was that if Fujifilm’s sales staff were asked about the specifications in detail, particularly for technical aspects which they were not equipped to answer, these questions would be directed to Fujifilm’s technical team. ¹⁵⁸ Further, Peter took the position that the making of false or misleading representations would be “against company policy”, something which Fujifilm’s salespersons had been trained to avoid. ¹⁵⁹ According to Peter, Fujifilm’s standard protocol was for Rowena to present a copy of the Nov 2017 CEI Guide to Federal for its consideration prior to deciding on whether to accept the Proposal. ¹⁶⁰ Technical specifications of the Equipment were set out in the Nov 2017 CEI Guide (although not as to the Equipment’s limitations in terms of Large-Sized Printing). The CEI Guides would set out, “[a]s complete as possible”, the specifications of the Equipment so that the customer is aware of “what can be done [and] what cannot be done”. ¹⁶¹ Further, the technical specifications which customers would be interested in depended on the requirements of each individual customer. ¹⁶² I accept Peter’s evidence. In my view, the likely and reasonable thing for Rowena to have done, if she had been asked specifically about the variance in alignment for Large-Sized Printing, was to direct the customer to the Nov 2017 CEI Guide which Lim had acknowledged, and/or make enquiries with the technical team at Fujifilm. Given the company policies which Peter had attested to in his evidence, I find it unlikely that Rowena would have gone on a frolic of her own to make specific representations about the Equipment’s capabilities, especially when these matters would have been beyond her expertise as a salesperson.

56 There is yet another hurdle to Federal’s case that the 3rd Representation was made – its case is inconsistent with its previous correspondence with Fujifilm. In a letter sent by Lim on behalf of Federal to Fujifilm sometime (at the earliest) in October 2019 (“Oct 2019 Letter”), ¹⁶³ Federal complained of, among other matters, the following: ¹⁶⁴

The implication of this complaint is that Federal did not understand any representation to have been made about the acceptable alignment. If Rowena had in fact represented that the alignment margin of error would be within 2 mm to 3 mm, it is curious why Federal had not referred to this alleged representation in the Oct 2019 Letter, instead stating that it had not been informed at the point of sale.

57 Additionally, in an email to Julian dated 17 October 2022 (“17 Oct 2022 Email”), which was following a proposal for payment of the outstanding invoices by Fujifilm, Viknesh wrote that: ¹⁶⁵

The conclusion I draw from this email is that Federal had never been informed about any details concerning alignment at the time of signing the Rental and Service Agreements. Additionally, based on the 17 Oct 2022 Email, it would appear that the representation made (if any) was that the margin of error was ±1.5 mm, and not ±2 mm to 3 mm as per the 3rd Representation. This was buttressed by the evidence of Mr Clement Boo Inn Kee (“Boo”), Federal’s Customer Service Engineer, who confirmed that Federal’s demands went beyond a 2 mm margin of error for alignment. On 27 November 2018, Boo explained that he had gone down to Federal’s premises following Viknesh’s complaint that there were issues with the alignments of the output printed by the Equipment. His evidence was that, despite having confirmed by way of tests that the Equipment was functioning within a “specified tolerance of ±2mm”, Federal “remained dissatisfied with the alignment”. ¹⁶⁶ If it were truly the case that Rowena had made a representation to Federal that the Equipment’s margin of error was ±2 mm to 3 mm which induced it to enter into the Rental Agreement, it was difficult to explain why Federal was complaining about an alignment error of ±1.5 mm. This, in my view, supports the view that the 3rd Representation had not in fact been made.

58 Finally, in a letter dated 18 October 2022 addressed to Julian (“18 Oct 2022 Letter”), Federal made the following complaint, in response to the same proposal for payment: ¹⁶⁷

Yet again, what is noticeably absent is any reference to the Representation said to have been made by Rowena. On the face of this 18 Oct 2022 Letter, Federal was only informed of the Equipment’s specifications on the alignment margin of error for Large-Sized Printing after its installation, and not in 2017.

59 I also note that, in a letter from Federal’s former solicitors to Fujifilm dated 24 March 2020, Federal had taken the position that “the margin of error represented to [it] was plus minus 1mm when printing using the [Equipment]”. ¹⁶⁸ This was yet again inconsistent with the position taken by Federal in these proceedings that Rowena had represented the Equipment’s alignment margin of error to be ±2 mm to 3 mm prior to entering into the Rental Agreement.

60 In the face of these inconsistent positions, the Defendants submitted that even if the “precise numeric formulation” of the Equipment’s alignment margin of error differed, “the objective complaint remained the same throughout: the machine failed to maintain the tight alignment needed and represented for large-paper printing work.” ¹⁶⁹ That may be so, but the burden was on Federal to prove that the 3rd Representation had been made by Rowena in the manner pleaded in its D&C. They did not plead this other “objective complaint”. Any consideration of this point would be impermissibly determining an unpleaded claim when the evidence at trial was led on the basis of the 3rd Representation as pleaded, ¹⁷⁰ to the prejudice of the Claimant: How Weng Fan at [29(b)]. For the reasons above, I find that the 3rd Representation had not been made by Rowena to Federal in 2017.

61 The discussion above would have revealed an obvious gap in the evidence. Rowena, the person who had allegedly made the Representations, was no longer under Fujifilm’s employ by June 2022, ¹⁷¹ and did not attend the trial to give evidence. This was despite permission having been granted by consent on 25 August 2025 vide HC/SUM 2336/2025 for Rowena’s affidavit of evidence-in-chief to be dispensed with, and an order to attend court having been issued to Rowena under O 15 r 4 of the Rules of Court 2021 vide HC/SBP 67/2025 (“Subpoena”). Fujifilm set out the steps which it had taken to effect service of the Subpoena and to secure Rowena’s attendance at trial:

(a) Fujifilm’s solicitors spoke with Rowena on 1 December 2022. ¹⁷²

(b) On 30 June 2025, Fujifilm’s solicitors contacted Rowena to inform her of the trial dates scheduled in October 2025, but Rowena indicated that she was reluctant to meet with them, was very busy and would be travelling for work during the trial dates. ¹⁷³

(c) On 25 July 2025, Fujifilm’s solicitors contacted Rowena, but she indicated that she would be overseas and did not wish to be involved in the proceedings or provide evidence. ¹⁷⁴

(d) Multiple attempts were made to contact Rowena via the Fujifilm solicitors’ office line and a solicitor’s personal line. ¹⁷⁵

(e) Personal service of the Subpoena was attempted on 3 October 2025 at her last known address. ¹⁷⁶

(f) Searches were performed but none yielded any other address other than her last known address. ¹⁷⁷

62 The Defendants urge me to draw an adverse inference from Rowena’s absence pursuant to s 116, illustration (g) of the EA. ¹⁷⁸ They say that Fujifilm failed to take reasonable efforts to secure Rowena’s attendance at trial, as despite her no longer being within Fujifilm’s employ, Fujifilm had her phone number and her email address but failed to communicate with her through these means. ¹⁷⁹ Fujifilm, on the other hand, submits that no adverse inference should be drawn against it, but should be drawn against the Defendants instead for their failure to call Rowena, “who is a material witness in their case”. ¹⁸⁰

63 The law on adverse inferences under s 116 of the EA is summarised in Chong Jorina v Ritz Property Investimentos Imobiliarios Ltda [2026] SGHC 120 at [153]. The starting proposition is that there must be some evidence, even if weak, on the issue in question for an adverse inference to be drawn, and the court must apply its mind to the specific inference said to arise from the absence of the evidence. Further, in ECICS Ltd v Capstone Construction Pte Ltd [2015] SGHC 214 (“ECICS”) at [48], the court cited Cheong Ghim Fah v Murugian s/o Rangasamy [2004] 1 SLR(R) 628 at [42] for the rule that “if the reason for the witness’s absence or silence satisfies the court, then no such adverse inference may be drawn”: see also Sudha Natrajan v The Bank of East Asia Ltd [2017] 1 SLR 141 at [20(d)] and [21]. Much would therefore turn on the explanation for the witness’s absence to be provided by the party to whom the witness’s evidence was material.

64 In so far as Federal relies on Teo Wai Cheong v Crédit Industriel et Commercial [2013] 3 SLR 573 (“Teo Wai Cheong”) to suggest that Fujifilm did not expend sufficient effort to locate and secure Rowena’s attendance, such reliance does not take Federal far. ¹⁸¹ First, as Fujifilm points out, ¹⁸² Teo Wai Cheong was a decision in relation to s 33 of the EA on admitting evidence by a witness given in a previous judicial proceeding. Further, the Court of Appeal, in considering the “cannot be found” requirement pursuant to the language of s 33 of the EA, had concluded that the measures taken, including visiting the witness’s last known workplace in Dubai and sending letters by courier to Dubai, were sufficient: Teo Wai Cheong at [30]. Therefore, this case does not provide any clear threshold which has to be crossed in so far as s 116 of the EA is concerned, nor does it substantively assist Federal beyond setting out that reasonable efforts ought to be made to secure a material witness’s attendance at trial.

65 The Defendants then fault Fujifilm for not having attempted communication by way of electronic messages, which were readily available channels of communication. ¹⁸³ While such attempts may have been desirable, this cannot form the basis for the court to draw any adverse inference. Unlike in ECICS at [49] where there was a conscious decision by a party not to call an expert witness, there is no suggestion of any such conscious decision to preclude Rowena’s evidence. I was satisfied that reasonable attempts were made by Fujifilm to secure Rowena’s attendance at trial. In fact, multiple efforts were made, including by seeking and obtaining the Subpoena and attempting personal service of it on Rowena, to secure her attendance. I accept Fujifilm’s evidence that Rowena had indicated that she was overseas and unwilling to cooperate. It must also be kept in mind that, unlike a current employee, Fujifilm would have little to no control over Rowena after leaving its employ. In these circumstances, I do not think the use of electronic messaging would have altered the outcome.

66 For completeness, there is also room to argue that the Defendants ought to have also sought Rowena’s attendance at trial. Beyond her evidence on whether the Representations were made, she was also the witness to Ng’s signature on the Guarantee and would likely have given material evidence on whether Ng signed the Guarantee. Just as I decline to draw any adverse inference against Fujifilm in respect of whether the Representations were made, I similarly do not draw any against the Defendants in respect of whether the Guarantee was signed by Ng.

67 The state of the evidence is thus that the only direct evidence of the Representations was from Lim and Viknesh. However, it became clear at trial that Viknesh and Lim had consulted each other prior to the drafting of their respective affidavits of evidence-in-chief, and that was the reason why paragraph 37 and paragraph 16 of Viknesh’s and Lim’s respective affidavits of evidence-in-chief on the Representations were identical. ¹⁸⁴ Ostensibly, parties did not heed the court’s caution that each witness’s evidence in their affidavit of evidence-in-chief must be their “independent testimony”, and witnesses should not collaborate or be informed of the specific contents of other witnesses’ evidence: see Goh Bin Seng v Yeo Neng Jian Stephen [2026] SGHC 157 at [109], citing Registrar’s Circular No. 1 of 2025; Ernest Ferdinand De La Sala v Compania De Navegacion Palomar SA [2018] 1 SLR 894 (“Ernest Ferdinand”) at [136]–[140]. Viknesh also testified that, at the relevant meeting where the oral representations were supposedly made, he had been “go[ing] here and there”, and Lim had explained to him things he did not manage to catch. ¹⁸⁵ Therefore, Lim was the only witness who had complete and direct evidence of the Representations, and little corroborative weight can be accorded to Viknesh’s evidence in this regard.

68 Weighing Lim’s evidence against the available documentary evidence, my assessment is that Federal fails to prove on a balance of probabilities that the Representations were made orally. The Defendants’ case on the alleged representations was bereft of particulars. Even after Fujifilm sought further and better particulars from the Defendants, the details provided were vague and circular. I set out below the Defendants’ reply to the request for further and better particulars of the Representations: ¹⁸⁶

69 This assertion was also not borne out by the evidence given at trial. When Lim was first asked about when the alleged oral representations were made, his answer was “nearly 10 years” ago, ie, around 2016, but that he could not recall precisely. ¹⁸⁷ When the Defendants’ pleadings and the reply to the request for further and better particulars of the Representations were put to Lim, his answer was that Rowena spoke to him sometime in November 2017. ¹⁸⁸ Lim went on to say that although he was able to remember the details of the Representations, he could not remember other details of the Proposal or what Rowena had spoken to him about. ¹⁸⁹ While Lim may not be faulted for struggling to remember precise details of matters which transpired, on his account, almost ten years ago, he seemed to also be unsure of critical aspects of the alleged exchange with Rowena, including whether this exchange took place prior to or after he executed the Rental and Service Agreements. I reproduce the relevant portion of Lim’s cross-examination: ¹⁹⁰

70 As is evident from the exchange above, Lim’s evidence on these alleged oral representations made by Rowena is vague, unparticularised and inconsistent. Lim could not offer a firm account of whether the Representations were made before or after he signed the Rental and Service Agreements. Further, Boo also gave evidence that Lim had not known about the specifications of the Equipment in relation to Large-Sized Printing, and that Lim had mentioned to him that at the point of conclusion of the Rental and Service Agreements, no specifications were given to Lim. ¹⁹¹

71 The final difficulty with Lim’s evidence is in his reaction to the Nov 2017 CEI Guide and another CEI Guide dated March 2018 (“Mar 2018 CEI Guide”). Although it is true that the Nov 2017 CEI Guide did not contain the specifications for Large-Sized Printing, it nevertheless contained the limitations that: (a) the “registration accuracy described above [ie, ±0.5mm] may not work to the maximum depending on the stretch characteristics of paper to use, temperature/humidity environment, error of sheet trim, and area coverage”; ¹⁹² (b) “there will be some variation of output quality over time” depending on “frequency of calibration (including calibration to the stocks”; ¹⁹³ (c) “[i]mage quality is strongly influenced by paper surface structure, texture, and colour”; ¹⁹⁴ and (d) “using Fuji Xerox-recommended media maximizes reliability and paper-handling performance.” ¹⁹⁵ Lim, having signed in acknowledgement of the Nov 2017 CEI Guide, must have been aware of these limitations. Further, the Mar 2018 CEI Guide contained an additional section on “Banner Printing”, which clarifies the limitations of the Equipment when performing Large-Sized Printing. These include that the “Auto Alignment Adjustment with FWA is not available for long paper of 729.1 mm or more”, that “[t]he accuracy of alignment/front-to-back alignment will be reduced when using long paper with a length over 660.0 mm” and that “[i]mage loss may occur depending on image size, as a large skew may occur at the time of printing on long paper.” ¹⁹⁶ The potential issues with alignment when performing Large-Sized Printing were thus made plain by the time the Mar 2018 CEI Guide was provided to Federal. Although this would have happened after the Rental and Service Agreements were executed, and the Mar 2018 CEI Guide was not acknowledged by Lim, one would expect some protest from Federal upon receiving the Mar 2018 CEI Guide if the 3rd and 4th Representations had actually been made. The evidence does not bear out any such complaints being made around March 2018.

72 Lim’s account is further weakened by the last-minute departure from his testimony in his affidavit of evidence-in-chief, and my observations thereupon have been noted at [43]–[45] above. Thus, when Lim’s account is contrasted against the account presented by the contents of the Proposal and other available documentary evidence, I find that the Defendants’ have failed to establish, on a balance of probabilities, that the 3rd Representation had been made either in writing or orally by Rowena.

73 I accept that, unlike the 3rd Representation, the correspondence between the parties does not positively imply that the 4th Representation was not made at the time of entering into the Rental and Service Agreements in 2017. However, the Proposal clearly could not have been read to mean anything close to the 4th Representation. I would add that, if the 4th Representation had indeed been made, it is odd that the Oct 2019 Letter never referred to any such representation either in complaining about issues related to “Poor Colour Quality” or that “[t]o print more than 500 copies, the [Equipment] has to be restarted and the colours have to be recalibrated again”. ¹⁹⁷ I have also given my general reasons for doubting that Rowena had made the 3rd or 4th Representations orally at [54]–[55] above.

74 As such, I conclude that while the 1st and 2nd Representations had been made (in the Proposal), the 3rd and 4th Representations had not been made (whether in writing or orally). It follows that Federal’s 1st Misrepresentation Counterclaim fails at the first instance in relation to the 3rd and 4th Representations. Nevertheless, as significant time was expended at trial on the technical aspects of the Equipment and the issue of whether the Representations, assuming they were made, were false, I address this point in relation to all the Representations for completeness.

75 Fujifilm’s case in relation to the 1st Representation was simple: although it was made in writing and contained in the Proposal, it was true. ¹⁹⁸ It bears restating the contents of the 1st Representation as pleaded: that “the Equipment could perform large paper printing services”. ¹⁹⁹ Federal asserts that the 1st Representation is false as there were, among others, the Alignment Issues and the Commercial Acceptability Issues.

76 Logically, the existence of those Issues did not automatically mean that the Equipment could not perform Large-Sized Printing, but only that there were various problems which may be encountered when using the Equipment to do so. Indeed, as Lim conceded at trial, the Equipment was in fact capable of Large-Sized Printing. ²⁰⁰ Federal’s response to this is that the 1st Representation must be considered in its commercial context, including “the site visits” by Fujifilm’s representatives, “the premium rental”, “the upgrade recommendation” and “the specific business needs disclosed” by Federal. ²⁰¹ When that context is taken into account, Federal submits that the 1st Representation would have been understood to mean that the Equipment “would be able to adequately cater to [Federal’s] business needs”. ²⁰² These “business needs” appeared to be an allusion to Federal’s wish to be able to engage in Large-Sized Printing in-house (as opposed to outsourcing such tasks to third parties). ²⁰³

77 The proper interpretation of the 1st Representation was therefore a point of controversy between parties. In assessing whether a particular representation is false, the court will have regard to the sense in which the representation would be understood by a reasonable person in the position of the representee, to be objectively assessed to arrive at the proper meaning that was conveyed by a representation: Banque de Commerce et de Placements SA, DIFC Branch v China Aviation Oil (Singapore) Corporation Ltd [2025] 1 SLR 1146 (“China Aviation Oil”) at [65(a)]. Further, terms or statements made in a commercial context should be generally interpreted in a way that aligns with “business common sense”: China Aviation Oil at [85].

78 On the facts, while I have accepted earlier at [54] above that Rowena was not a complete stranger to Federal’s business and would likely have had some idea as to what Federal would have required, it must also be borne in mind that Rowena had approached Federal as a salesperson employed by Fujifilm tasked to market Fujifilm’s products to Federal, as opposed to a technician tasked with explaining the technical specifications of the Equipment. Lim, on his own evidence, had substantial experience in the printing industry in general, and almost 20 years of experience with digital printing. ²⁰⁴ The Proposal, which contained technical specifications of the Equipment, was specifically prepared by Rowena to be reviewed by Lim. Although Viknesh referred to certain requirements and standards Federal’s customers would have, including that “words along the folders’ spine have to be aligned” and that the “Logo and company names have to be Embossed [sic] directly on the intended Logo and words”, ²⁰⁵ he did not suggest that Rowena knew of these specific requirements. He also did not suggest that he understood the statement that the Equipment “could perform large paper printing services” as a warranty that the customer’s requirements would be met. Thus, even if the 1st Representation was made in the terms as pleaded, a reasonable person would not, in the commercial context, understand it to warrant anything which went beyond the contents of the Proposal. At best, the 1st Representation amounted to a representation that the Equipment could perform as indicated by the Proposal.

79 If this is so, then the 1st Representation is true. The relevant part of the Proposal on Large-Sized Printing is as follows:

Federal did not claim that the Equipment could not print duplex or simplex in the specifications set out above. Therefore, assessing the intended meaning in context and from the perspective of Federal, the Equipment “could perform large paper printing services”. The 1st Misrepresentation Counterclaim thus fails in relation to the 1st Representation.

80 To recall, the 2nd Representation is that the Equipment’s “printing speed and colour quality was much faster and better in comparison” with the C1000i Printer. While, as I concluded at [50] above, the 2nd Representation was made, any contention as to its falsity can be quickly dealt with. It is not seriously disputed by Federal that the Equipment was an improvement from the C1000i Printer. Lim himself admitted that the Equipment was faster than the C1000i Printer which Federal used previously. ²⁰⁶ It is also not disputed that the Equipment has extra colours which were not available to the C1000i Printer, and in this sense, the Equipment’s “colour quality” was also better. ²⁰⁷

81 What is perhaps more important is that, as a matter of law, it is for Federal to prove that the 2nd Representation was false: Trans-World (Aluminium) Ltd v Cornelder China (Singapore) [2003] 3 SLR(R) 501 at [29]. To do so for the 2nd Representation would necessarily require a comparison between the performance of the Equipment as against the performance of the C1000i Printer. However, limited evidence was given on the performance or specifications of the C1000i Printer beyond that there were issues with the former, including that it could only perform Small-Sized Printing, ²⁰⁸ and that the colours printed were inconsistent and would change after around 25 sheets of paper printed. ²⁰⁹ I would then observe that, on Federal’s own case, the Equipment “required [its] colour to be calibrated after printing 50 to 100 pages”. ²¹⁰ If this is true, then it represented an improvement upon the performance of the C1000i Printer.

82 Consequently, I find that the 2nd Representation was true. The 1st Misrepresentation Counterclaim thus also fails in relation to the 2nd Representation.

83 This was the central point of dispute between the parties. Federal alleges that the Equipment’s actual margin of error was “plus minus a total of 5mm to 6mm (skew issues) for large format printing”. ²¹¹ Fujifilm submits that even if the 3rd Representation was made, it was not false as the Equipment had performed according to its specifications save for ordinary wear and tear, usage and user-related factors, at all material times. ²¹² The same argument is made in relation to the 4th Representation – that the Defendants have failed to adduce any evidence to show that the Equipment requiring colour calibration more frequently than 1,500 printed pages cannot be attributed to ordinary wear and tear, usage, or user-related factors. Fujifilm’s evidence is that the tests performed by its personnel, both before and after the Equipment was repossessed, show that the alignment always fell within the specified 2 mm tolerance. Federal, in response, argues that there were various problems with the test results relied upon, and that even if the results were “within specifications”, there could still be misalignment of up to 5 mm. ²¹³ Crucially, Federal’s case was that “the Equipment did not deliver the promised production-grade large-paper printing capability (including alignment tolerance and colour stability) in [Federal’s] real-world production environment”. ²¹⁴

84 My conclusion from the evidence is that the 3rd Representation, if it had been made, would not be true, although Federal could not demonstrate that the Alignment Issues as pleaded existed. In addition, Federal failed to establish that the 4th Representation was false. I elaborate.

85 Boo, as Fujifilm’s Customer Service Engineer, was tasked with the servicing of the Equipment and was the primary service engineer that would attend to the servicing of the Equipment. ²¹⁵ He gave evidence on a number of tests performed and remedial actions taken when service calls were received for various issues with the Equipment, including alignment issues, paper jams, and colour calibration, which were captured in the service call logs. ²¹⁶ It bears noting that Boo’s evidence was not the complete record of all the complaints made by Federal. For example, Federal could be blocked from making service calls as they did not pay on the invoices. It would have to request Fujifilm to reactive the services before making requests for service. ²¹⁷ Further, the service call logs did not include those complaints which were resolved without having to log a service, eg, when they were resolved over the phone or via messaging. ²¹⁸

86 According to Boo, the following service calls relating to alignment and colour issues were attended to:

(a) On 25 June 2018, a complaint was made that the Equipment was printing printouts that were “out of alignment with white patches”. Boo replaced the developer and tested the printer with the same paper and Federal’s print job. Further, Boo instructed Viknesh on the “profile alignment for the paper type and the image shifter on the GX Print Server”. A test done after servicing showed that the Equipment “functioned per specifications”. ²¹⁹

(b) On 2 July 2018, a complaint was made that the finished prints on 870 mm x 317 mm, 300 gsm (grams per square meter) paper stock were misaligned. Boo again instructed Viknesh on the use of the Equipment including “paper profile settings” and printing on “long banner paper”. A test with Federal’s pending print job was performed, and the resulting print was “within specifications”. ²²⁰ It was only sometime between July and August 2018 that the large paper tray which enabled the Equipment to carry out Large-Sized Printing was installed. ²²¹

(c) On 29 August 2018, a complaint was made about an alignment issue and reports of intermittent “dirty” prints. Boo calibrated the Equipment and cleaned parts of the Equipment with glue contamination. A test showed that the Equipment performed “according to specifications”. ²²²

(d) On 22 November 2018, a complaint was made about “skewed printing alignment” on 710 mm x 250 mm, 90 gsm paper (ie, Large-Sized Printing). Boo replaced the “aligner ball bearing” and conducted alignment tests using 120gsm coated paper. The results were within specifications. However, the issue recurred when Federal resumed their print jobs. Boo suggested cutting the paper stock in half, which resolved the issue. ²²³

(e) On 27 November 2018, a complaint was made about “a recurring alignment skew” on 457 mm x 305 mm, 180 gsm car decal paper (ie, Large-Sized Printing). Boo performed “auto-alignment” and conducted a test on “the feeder’s side guide adjustments”. A test showed the margin of error for alignment was within ±2 mm and therefore within the specifications, but Federal remained dissatisfied. ²²⁴

(f) On 3 January 2019, a complaint was made about misaligned prints on 720 mm x 340 mm, 157 gsm stock paper (ie, Large-Sized Printing). After “auto-alignment”, the Equipment operated according to specifications. Federal remained dissatisfied with the alignment. Boo then returned with Mr Lee Hsiao Phing Francis (“Francis”), his Senior Team Lead, to address alignment issues on 720 mm x 330 mm stock paper. Extensive testing was done with 500 copies of Federal’s print jobs, and Boo confirmed that all prints were within the Equipment’s specifications. ²²⁵

(g) On 27 February 2019, a complaint was made about an alignment skew on 457 mm x 355 mm, 180 gsm card decal paper (ie, Large-Sized Printing). Replacement of parts, cleaning and calibration was performed, and testing showed that the Equipment was operating within specifications. ²²⁶

(h) On 11 April 2019, a complaint was made about misalignment when printing on banner-sized paper, and that the prints would occasionally come out “dirty”. Boo’s inspection revealed a damaged component, which was subsequently replaced. Testing showed that the Equipment performed within its specifications. ²²⁷

(i) On 30 July 2019, a complaint was made about alignment issues on 457 mm x 305 mm car decal paper. Boo remedied this by “clearing and flattening the transport paths”. Subsequent testing with Federal’s print jobs confirmed that the Equipment operated within specifications. ²²⁸

(j) On 2 August 2019, a complaint was made about alignment issues, intermittent paper jams and “multi-feed issues”. Boo identified that there was “glue contamination on the paper transport paths”. He cleaned those paths, removed the glue contamination and replaced the roller and cooling belt. A test using Federal’s print jobs confirmed that the alignment was within specifications. The issue was escalated to Francis, and both Francis and Boo returned the following Monday to advise Federal on the Equipment’s specifications and to adjust the “paper feeder position”. ²²⁹

87 There were many other service calls for other issues which Boo attended to, and his evidence remained that the matters complained of were generally resolved and the Equipment continued to perform according to specifications. ²³⁰

88 Goh gave evidence to similar effect. On his account, there were several occasions where Goh and other representatives from Fujifilm attended at Federal’s premises to attempt to resolve the reported issues with the Equipment and to secure payment from Federal. He says that in the first meeting on or around 10 April 2019, the print samples shown to the Fujifilm representatives present were within the Equipment’s specifications. ²³¹ Again, on or around 10 June 2020, Goh visited Federal’s premises to attempt to simulate the Alignment Issues, but the Equipment was found to be performing within its specifications. ²³² Finally, on or around 6 October 2020, Goh attended again to follow up on Lim’s complaints that there were prints for which the alignment would be off by more than 5 mm, but no samples of these prints were shown to him, and Viknesh also failed to produce any sample print which exceeded the Equipment’s specifications. ²³³ As such, the Equipment was found to be performing within its specifications. ²³⁴

89 However, during his cross-examination, Boo clarified that the specifications against which the Equipment was tested were calibrated against “RML Paper” or “recommended media list paper”, ²³⁵ which is paper specifically recommended by Fujifilm for use with the Equipment. ²³⁶ Some of the tests performed as described at [85]–[87] above were done on this RML Paper. ²³⁷ Boo also accepted that, if the RML Paper is not used, there may be issues which would cause the alignment to be off by more than 2–3 mm, but he would still consider the Equipment to be working “within specification”. ²³⁸ This was also confirmed by Lee’s evidence: he accepted that alignment may be off by more than 2 or 3 mm when conducting Large-Sized Printing using non-RML Paper, even though the Equipment may be working “within specification”. ²³⁹ What is more, as Fujifilm’s witnesses explained during their respective cross-examinations, the specifications referred to above, which the Equipment was tested against, were not contained in any of the documents provided to the customer but rather in what Goh termed “e-documents”, and which were only accessible to Fujifilm’s engineers. ²⁴⁰

90 Additionally, Boo himself had observed, from his frequent visits to Federal’s premises to attend to service calls, that Federal was mostly using “art paper”, ie, non-RML Paper, in the course of its business. ²⁴¹ Viknesh also confirmed that they did not use what was specified as RML Paper but what was available in the market, ²⁴² and that there was a noticeable difference in performance when different types of papers were used. ²⁴³ Consequently, the results of Fujifilm’s tests performed both at Federal’s premises and after the Equipment was repossessed were only evidence that the Equipment had performed in accordance with a set of specifications which were not provided to Federal and calibrated under certain conditions other than those under which Federal was operating.

91 I turn back to consider the meaning of the 3rd Representation. If it was made, it must again be understood in its context. Boo and Goh both knew that Federal was not using RML Paper. ²⁴⁴ There was no evidence that Fujifilm had supplied the RML Paper to Federal. Goh testified that, from his experience as a field engineer attending to service calls, there are several types of non-RML papers which were all commonly used in the market. ²⁴⁵ Goh explained that, although the Equipment was designed to be used with the RML Paper, there were other types of paper, including “coated” paper which Federal was using, which customers could “try to use”. ²⁴⁶ While I make no finding as to the actual performance of the C1000i Printer, I accept the Defendants’ evidence that Federal had certain complaints about the C1000i Printer and wished to also do Large-Sized Printing in-house, and these complaints would likely have been raised to Rowena at the point of concluding the Rental and Service Agreements. ²⁴⁷ Therefore, Fujifilm would have been made aware that, at the time the Rental and Service Agreements were signed, Federal would use non-RML paper with the Equipment and wished to undertake Large-Sized Printing in-house.

92 Seen in this light, a reasonable person in Federal’s position would have objectively understood that the representation made must have been with reference to non-RML papers. If the 3rd Representation was also referring to non-RML Paper, then it was not always true. By Fujifilm’s own admission at [89] above, the alignment margin of error was expected to possibly exceed 2–3mm for Large-Sized Printing on non-RML Paper. The frequency of service calls in relation to alignment issues, which may include those not captured in the service call logs, was itself suggestive that were indeed some problems with alignment, even if these were addressed or rectified upon Fujifilm’s personnel attending at Federal’s premises. Lim also referred to examples where there were alignment issues visible to the naked eye. ²⁴⁸ The foregoing brings me to the conclusion that if the 3rd Representation was made, it would have been false.

93 With that said, however, I do not find that Federal could demonstrate that there were the Alignment Issues as pleaded, ie, that the “Equipment’s actual margin of error was plus minus a total of 5mm to 6mm”. ²⁴⁹ Viknesh, during cross-examination, referred to a margin of about 4 mm to 5 mm for registration. In the 17 Oct 2022 Email, Viknesh complained that “1 side is 3mm to 3.5 sometime 5mm difference”. The reference to 6 mm was when the skews on both sides were added together. ²⁵⁰ However, if the pleading was referring to what was mentioned in the 17 Oct 2022 Email, ²⁵¹ then the figure ought to have been 6–10 mm. Yet, in Federal’s 18 Oct 2022 Letter, the complaint made was that “the actual misalignment is about 6mm-8mm sometimes 9mm”. ²⁵² Federal’s evidence on the alleged Alignment Issues is thus inconsistent as to the exact figure of the margin of error.

94 Further, all the references to a 6 mm margin of error were based on Federal’s own assertions. Federal did not point to any exhibits which demonstrated a skew error of more than 5 mm. The photos Federal produced as evidence of misalignment were not accompanied by any measurement to allow the court to assess the extent of misalignment. I was therefore left with little evidence to determine whether the Alignment Issues as pleaded did in fact exist.

95 Moving on to the 4th Representation, I accept that Federal has given evidence, including via physical exhibits, that there were issues with the consistency of colours and the Equipment leaving certain unwanted marks and other artifacts on the prints. ²⁵³ When the examples of these misprints were presented to Goh and Boo, they accepted that there were auger marks and bending (ie, colour inconsistencies) which were not directly caused by the use of non-RML paper, but “[j]ust something which happens”. ²⁵⁴ There were also other defects pertaining to the colour of outputs printed using the Equipment, and Fujifilm’s witnesses all generally accepted that these defects would have likely rendered the prints unacceptable to Federal’s clients. ²⁵⁵

96 Nevertheless, evidence of the defects did not mean that Federal had proven the falsity of the 4th Representation. First, even if there were these defects, the meter readings of the Equipment made clear that Federal had continued using the Equipment to produce prints. Federal would naturally select the defective or unacceptable prints in support of its claim that the Equipment generally performed poorly. However, at the same time, there would have been equally prints which were acceptable and delivered to Federal’s clients, and the meter readings produced by Fujifilm showed that the Equipment had remained in constant use from July 2018 to September 2023. ²⁵⁶ As an example, in October 2022, while Federal and Fujifilm had been exchanging correspondence on the payment of the rental charges and Federal’s repeated complaints about the Equipment, Federal had printed 24,276 colour “clicks” and 242 black and white “clicks” between 29 September 2022 and 31 October 2022. ²⁵⁷ Each “click” refers to an area printed by the Equipment roughly equivalent to an A4 sheet of paper. It was further explained that for custom sizes and for Large-Sized Printing, they can be charged variously as one, two or four “clicks” depending on the size of the printed area. ²⁵⁸ Therefore, even putting aside the potentially defective copies, it is clear that Federal still managed to utilise the Equipment for its printing jobs. The fact that there were occasional defects did not therefore mean that the Equipment was “not capable of delivering large paper printing quality that would be acceptable commercially”, ie, the Commercial Acceptability Issues.

97 Second, the presence of these auger marks, bending and other issues on some prints did not go directly to contradicting the representation that any colour correction for the Equipment would need to be recalibrated more frequently than 1,500 printed pages. It is not altogether clear how frequently these unsatisfactory prints occurred. Federal points to Goh’s cross-examination to suggest that, on Fujifilm’s own evidence, colour-critical work required recalibration multiple times a day and may be needed after only a few hundred prints. ²⁵⁹ But this evidence also does not render the 4th Representation false. Goh’s evidence was only that there may be some customers who required frequent calibration, and that if the customer was adamant on a consistent colour output, frequent calibration was needed. ²⁶⁰ It is only logical that more frequent calibration would produce more consistent results. Lee’s evidence that “the test print of 50 copies will be best” also did not relate directly to the need for colour recalibration, but only to what is necessary to achieve the best results when loading banner paper. ²⁶¹ Federal therefore cannot rely on this as a straightforward admission by Fujifilm that the 4th Representation was false. ²⁶² When taken together with Federal’s continued use of the Equipment, it was plain that the need for recalibration was not so frequent as to render the Equipment virtually unworkable, or even that there was no “stable production output”. ²⁶³

98 Third, Federal’s position as to how many prints before colour recalibration was required is also somewhat inconsistent. Its pleaded case is that the Equipment required recalibration after printing 50 to 100 pages. ²⁶⁴ However, the complaint made in its Oct 2019 Letter was that it was “unable to achieve a consistency in colour during a print run of more than 500 to 600 copies” and that it had also noticed “the printer settings going haywire after printing 50 to 100 copies”. ²⁶⁵ This is a different complaint from saying that the “Equipment required its colour to be recalibrated after printing 50 to 100 pages”. ²⁶⁶ Federal could have, but did not, provide particulars of when these recalibrations took place, how many prints were produced between these recalibrations, and what defects occurred. There was thus little by way of definitive evidence as to the frequency for which recalibration was done on the Equipment. This also meant that the existence of the Colour Issues is not made out.

99 For completeness, the same reasoning applies to the alleged issue with the Paper Jams. I can accept, on the basis of the service call logs and Viknesh’s evidence, ²⁶⁷ that there were indeed paper jams which occurred, and which often required Fujifilm’s personnel to attend on site to resolve. I can also accept that, on the Defendants’ account, there were 28 paper jam incidents recorded between 2018 and 2022, ²⁶⁸ and that these do not represent all the jams which occurred during that time. ²⁶⁹ However, aside from Lim’s and Viknesh’s assertions in their respective affidavits of evidence-in-chief, there was no evidence that there would be paper jams “1 to 2 times per week during the course of [the Equipment’s] use”. Considering the number of service calls which were logged, ie, 149, ²⁷⁰ even if there were 28 incidents related to paper jams, it does not appear to have been Federal’s most frequent or pressing concern. Some of the jams were also caused by wear and tear or defective parts, which were replaced by Fujifilm. ²⁷¹ It was again plainly within Federal’s power to produce more detailed evidence as to the frequency of paper jams, and whether and how they were resolved. Having failed to do this, there is little to support its pleading that the jams were as frequent as “1 to 2 times per week”. ²⁷²

100 I turn finally to Fujifilm’s reliance on the Technical Report, which was premised on tests conducted by Lee on the Equipment after repossession. ²⁷³ The second test performed was for “colour consistency and paper jam”, where 720 duplex pages of a sample file were printed and the outputs checked both visually and using a spectrometer to measure differences in colour. ²⁷⁴ It was concluded from the test that the “[v]isual checks of colour are ok” and “[c]olour consistency is performing normally since measurement of delta E for 20% and 60% [coverage] patches for YMCK (Yellow, Magenta, Cyan, Black) and RGB (Red, Green, Blue) are well within range”. ²⁷⁵ During cross-examination, Lee clarified that this test was conducted with “A3 [...] 80 gsm uncoated digital paper”, ²⁷⁶ ie, RML Paper. ²⁷⁷ Lee also conceded, quite reasonably, that the test did not simulate real world conditions or that there will be no colour issues if “large format paper” or “coated” paper had been used. ²⁷⁸ Thus, just as with the alleged alignment issues above, Fujifilm’s tests and the Technical Report can only go towards demonstrating that the Equipment performed within its specifications, and not that the 4th Representation was necessarily true when used in the conditions that Fujifilm knew Federal was likely operating in.

101 The court is thus left to contend with this unsatisfactory state of the evidence. In such a situation, reference must be had to the central proposition on the burden of proof found at s 104 of the EA:

102 I accept that Fujifilm’s evidence could not prove conclusively that the 4th Representation, if made, was true. However, contrary to Federal’s submission that the burden of proving lay on Fujifilm to prove that the Equipment performed as represented, ²⁷⁹ it was for Federal to prove that the Representations was false to succeed in its counterclaim for misrepresentation. If falsity is not established, Federal’s counterclaim fails. As I do not think Federal discharged its burden of proof to establish that colour recalibration was necessary, or was in fact done, more frequently than 1,500 printed pages, the 1st Misrepresentation Counterclaim also fails with respect to the 4th Representation.

103 I reiterate that all the foregoing proceeded on the assumption that the Representations were made in the manner pleaded. As I had already found that neither the 3rd Representation nor the 4th Representation had been made by Fujifilm, whether orally or in writing, my conclusions above are strictly obiter. The picture which emerges from the evidence, when viewed holistically, is a customer who became gradually dissatisfied with a product and had to frequently seek assistance and servicing. Yet, such dissatisfaction does not necessarily result from any representations made, and in the absence of good evidence of such representations having been made or, for those that were made, that they were false, Federal’s counterclaim in misrepresentation must fail.

104 Federal also says that clauses 2 and 3.2 of the Service Agreement, and clauses 6 and 6.1 of the Rental Agreement were breached, as Fujifilm failed to repair or replace the Equipment, or otherwise resolve the Issues within a reasonable time for the efficient working of the Equipment. ²⁸⁰ For ease of reference, I reproduce the relevant clauses of the Rental Agreement which Federal alleges Fujifilm has breached: ²⁸¹

105 I similarly reproduce the relevant clauses of the Service Agreement: ²⁸²

106 It becomes obvious that the warranty under clause 6 of the Rental Agreement and the obligation to repair or replace the Equipment under clause 6.1 of the Rental Agreement only arise when there is written notice provided by Federal within the warranty period. Federal’s own case is that the alleged Issues were discovered sometime on or around June 2018. ²⁸³ However, the Equipment was installed on 28 December 2017, ²⁸⁴ and therefore the warranty period as defined under clause 6 of the Rental Agreement would have expired by 28 March 2018. The earliest service call on record of a written complaint being made by Federal to Fujifilm was Viknesh’s WhatsApp message to Boo on 16 November 2018 complaining about bending. ²⁸⁵ Federal did not seek to argue that the warranty period ran from a later date; nor would any attempt to argue otherwise have been successful, since the Schedule of the Rental Agreement defining “Equipment” did not refer to anything else which was to be installed at Federal’s premises. ²⁸⁶

107 In any event, Fujifilm’s obligation under clause 6.1 of the Rental Agreement would have ceased once Federal was in breach of the Rental Agreement by failing to pay the invoice issued on 1 July 2018 for amounts due under the Rental Agreement. ²⁸⁷ This was because the warranty under clause 6 of the Rental Agreement was expressed to be subject to Federal “not [being] in breach of any of the terms of [the Rental] Agreement” (see [104] above).

108 Further, even if complaints had been made within the warranty period, I do not think the warranty was breached. Fujifilm’s service logs and the machine logbook for the Equipment make abundantly clear that various repairs and replacement were performed to remedy Federal’s complaints about the Equipment. ²⁸⁸ For the same reason, I do not think Fujifilm was in breach of its obligation under clause 2 of the Service Agreement to “replace parts necessary for the efficient working of the Equipment”. What is necessary for “efficient working”, by its ordinary meaning, would be a lower threshold than requiring the Equipment to produce prints which were completely defect-free. As I observed at [96] above, the Equipment continued to be used by Federal for its printing jobs. No arguments were made by Federal as to what was required for “efficient working of the Equipment” and how Fujifilm failed to maintain the Equipment to meet that threshold. Consequently, both the Rental and Service Agreement Counterclaims must fail.

109 Federal also submitted that (i) the Representations were either incorporated as terms of the Rental and Service Agreement, or alternatively (ii) that they amounted to collateral warranties. Having concluded that the Representations were either not made, or if made, were true, this argument fails at the outset as there would have been no breach of any such terms or warranties.

110 Nevertheless, I had more fundamental difficulties with Federal’s arguments on this issue. First, I agree with Fujifilm that the inquiry into whether a pre-contractual representation is incorporated as a term of the contract concluded is distinct from an inquiry into whether there was misrepresentation, ²⁸⁹ although the two are not mutually exclusive: see Jurong Town Corp v Wishing Star Ltd [2005] 3 SLR(R) 283 at [76]–[77]. In support of its case that the Representations were incorporated as a term, Federal relies on the following paragraph of the Court of Appeal in Anti-Corrosion Pte Ltd v Berger Paints Singapore Pte Ltd [2012] 1 SLR 427 (“Anti-Corrosion”) at [27], citing Dick Bentley Productions Ltd v Harold Smith (Motors) Ltd [1965] 1 WLR 623 at 627–628: ²⁹⁰

111 As Fujifilm correctly identified, the section above does not represent the complete holding of the Court of Appeal on the applicable test for determining whether a pre-contractual representation was incorporated as a term of the contract. ²⁹¹ Rather, the rule is whether there is evidence of an intention on the part of either or both of the parties that there should be contractual liability in respect of the accuracy of the statement: Anti-Corrosion at [26].

112 Further, in Anti-Corrosion, there was no complete written contract signed by both parties. Rather, the contract was formed in part by delivery orders on which the plaintiff therein had to sign against receipt, together with tax invoices issued by the defendant against which the plaintiff would make payment: Anti-Corrosion Pte Ltd v Berger Paints Singapore Pte Ltd [2010] SGHC 351 at [5]–[7]; Anti-Corrosion at [24]. Further, unlike the contract in that case, both the Rental Agreement and the Service Agreement contain entire agreement clauses. Clause 10 of the Rental Agreement provides as follows:

Clause 11 of the Service Agreement provides as follows:

113 In light of these clauses, it is difficult to conclude that there was an intention on the part of either or both of the parties that there should be contractual liability in respect of the accuracy of any pre-contractual representations. Rather, the entire agreement clauses make explicit reference to “representation, statement, warranty not contained” in the Rental and Service Agreements and aim to deprive any pre-contractual or collateral agreement of legal effect: Lee Chee Wee v Tan Hor Peow Victor [2007] 3 SLR(R) 537 at [35]. While Federal relies on Peter’s alleged concession during cross-examination that the entire agreement clauses did not limit the contract to only “these two pages of the agreement”, ²⁹² this also does not mean that there was any positive intention for the Representations to carry contractual force. By comparison, it is telling that the Rental Agreement, the Service Agreement, the Proposal and the Nov 2017 CEI Guide were all required to be signed by Federal. As Peter testified, the Proposal and the Nov 2017 CEI Guide also “form[ed] part of the documents for finance to make sure that this is a complete deal.” ²⁹³ It must then be asked why, when these other warranties and specifications were reduced into writing and signed by Federal, the Representations were not. The inference to be drawn, at least in respect of the incorporation of terms, is that the Representations (on the assumption that they were made) were never intended to carry contractual force and thus cannot be either incorporated as terms of the contracts or form their own collateral contract.

114 The second difficulty I had with Federal’s argument that Representations had been incorporated in the Rental and Service Agreements is that it had not been pleaded in its D&C. It was, as Federal acknowledged, raised for the first time in Federal’s closing submissions. ²⁹⁴ The general rule, however, is that parties are bound by their pleadings and the court is precluded from deciding matters that have not been put into issue by the parties: How Weng Fan at [18], citing V Nithia v Buthmanaban s/o Vaithilingam [2015] 5 SLR 1442 (“V Nithia”) at [38]. There are two qualifications to this general rule, which are that: (a) only material facts need to be pleaded; and (b) the court may permit an unpleaded point to be raised and determined where there is no irreparable prejudice caused to the other party in the trial that cannot be compensated by costs or where it would be clearly unjust for the court not to do so: How Weng Fan at [19]–[20].

115 Federal asserts that it should be permitted to rely on these qualifications to argue that the Representations had been incorporated into the Rental and Service Agreements. I reject this submission. First, Federal submits that the material facts pleaded in support of its counterclaims in misrepresentation are “sufficient” to consider whether the Representations have been incorporated into the Rental and Service Agreements. ²⁹⁵ As stated at [111] above, the question in determining whether a pre-contractual representation was incorporated as a term of the contract is whether the parties had intended there to be contractual liability in respect of the accuracy of the relevant representation. ²⁹⁶ Federal has not pleaded in its D&C the material facts required for such a finding. ²⁹⁷ Second, Federal submits that no irreparable prejudice would be caused to Fujifilm for the argument to be considered at this juncture, as Fujifilm had been “aware throughout trial of the factual basis for these arguments”. ²⁹⁸ This argument on incorporation, however, was only raised for the first time in Federal’s closing submissions. A pleading that certain misrepresentations were made in order to resile from a contract is different from one which claims that the same representations were incorporated as terms of the contract and those terms were breached entitling the claimant to damages. Separate elements need to be established for each of these causes of action: Anglo-American Corp Sdn Bhd v The London Steam-ship Owners’ Mutual Insurance Association Ltd [2018] SGHC 201 at [29]–[32]. There was no inkling that the incorporation of the Representations as contractual terms was a line of argument which Federal wished to pursue in its D&C or at trial. Unsurprisingly, Fujifilm had no opportunity to cross-examine the Defendants and their witnesses on this issue. ²⁹⁹ Accordingly, I hold that Federal should, in any case, not be permitted to advance the argument that the Representation had been incorporated into the Rental and Service Agreements.

116 Having reached my conclusions on the 1st Misrepresentation Counterclaim, I deal with the 2nd Misrepresentation Counterclaim. On this, Federal pleads as follows: ³⁰⁰

117 All of Fujifilm’s witnesses – Lim, Goh, Francis and Boo – testified that Fujifilm had attempted to “address the concerns raised by Federal” in relation to the Equipment. ³⁰¹ In the face of Federal’s continuing and multiple complaints about the Equipment, I find it more likely than not that Fujifilm had made assurances to Federal that they would try and attempt to resolve the alleged Issues with the Equipment in a timely manner. Indeed, in its closing submissions, Fujifilm did not seriously dispute that its representatives had made assurances to like effect to Federal and its representatives. ³⁰²

118 A problem with Federal’s case on the Further Representations is that any assurance by Fujifilm’s representatives that the Issues with the Equipment would be resolved in a timely manner is “a promise to do something in the future”, which is not in and of itself an actionable representation: see Bestland Development Pte Ltd v Thasin Development Pte Ltd [1991] SGHC 27 at [41] and Ernest Ferdinand at [172]. Therefore, in so far as Federal’s case is that Fujifilm had, by way of the Further Representations, guaranteed that it would resolve the Issues with the Equipment, ³⁰³ such an argument is erroneous as a matter of law.

119 However, a person who makes a representation or promise as to the future may be taken as implicitly making a representation as to his present intention or state of mind, which is “as much a fact as the state of his digestion”: see Edgington v Fitzmaurice (1885) 29 Ch D 459 at 483, cited with approval in Tan Chin Seng v Raffles Town Club Pte Ltd [2003] 3 SLR(R) 307 at [12]. Given that Federal’s case is also that the Further Representations were untrue because Fujifilm “never intended to resolve the Issues” to begin with, ³⁰⁴ Federal must show that Fujifilm and its representatives made the Further Representation with no intention of resolving the Issues with the Equipment in a timely fashion.

120 Federal, however, has made no submission with a view towards proving this fact on a balance of probabilities. In fact, the very evidence marshalled by Federal in support of its contention that the Further Representations had been made shows that Fujifilm’s representatives had a genuine intention to resolve the issues which Federal had complained of in relation to the Equipment. For example, in a set of correspondence on WhatsApp between Viknesh and Mr Timothy Howard (“Howard”) (Fujifilm’s employee) dated 11 October 2021, Howard informed Viknesh that he had “not given up on finding a solution for your [Equipment]” and detailed the various steps would be taking in an attempt to resolve Federal’s problems with the Equipment. ³⁰⁵ In Viknesh’s and Lim’s own words, Howard had “promise[d] to actively continue to find solutions to [Federal’s] Issues”. ³⁰⁶ Additionally, on Lim’s own evidence, Goh had gone down to Federal’s premises sometime in 2021 to assure Federal’s representatives that Fujifilm had been “working hard to find a solution to the Issues”. ³⁰⁷ That Fujifilm had a genuine intention to resolve the Issues with the Equipment was also evidenced by the fact that Boo had gone down to Federal’s premises on at least 34 separate occasions from 4 January 2018 to 24 August 2022, ³⁰⁸ 16 of which were during or after the period when Fujifilm is alleged to have made the Further Representations (ie, 2019 to 2020). ³⁰⁹ In those circumstances, I find that Federal has failed to prove that Fujifilm did not have a genuine intention to resolve the alleged Issues with the Equipment in a timely manner when it made the Further Representations sometime “between 2019 to 2020” (see [116] above).

121 I note Fujifilm’s submission that Federal’s claim on the Further Representations ought to fail on the basis that “[s]tatements made after a contract has been concluded cannot, as a matter of law, constitute actionable misrepresentations”. ³¹⁰ This is true only in relation to Federal’s claim under s 2(1) of the MA, which is limited to pre-contractual misrepresentations: see John Cartwright, Misrepresentation, Mistake and Non-Disclosure (Sweet & Maxwell, 7th Ed, 2025) at para 7–05. This is because the opening words of s 2(1) of the MA provides that the statutory claim may only be brought where “a person has entered into a contract after a misrepresentation has been made to him by another party thereto and as a result thereof he has suffered loss”: see Heinrich Pte Ltd v Lau Kim Huat [2016] SGHC 116 at [50] and William Sindall plc v Cambridgeshire County Council [1994] 1 WLR 1016 at 1037. Federal’s claims in the torts of deceit and negligence, which I gather is what Federal means by the Further Representations having been made “fraudulently and/or negligently”, ³¹¹ are not so limited.

122 Quite apart from Federal having failed to prove that the Further Representations were false, however, there is another problem with Federal’s claims in the torts of deceit and negligence. Federal’s position is that the Further Representations caused it “loss and detriment” in the form of: (a) “continued diversion of time and resources to troubleshooting and re-runs”; (b) “continued payment of click charges during the period the Equipment remained incapable of performing its main function”; and (c) “lost business opportunity / profits from the prolonged inability to deliver large-format production in-house”. ³¹²

123 It is well-established that damage is the gist of the action for both the tort of negligence (ACB v Thomson Medical Pte Ltd [2017] 1 SLR 918 at [47]) and the tort of deceit (Kea Holdings Pte Ltd v Gan Boon Hock [2000] 2 SLR(R) 333 at [39]). In my judgment, assuming I had erred on the falsity of the Further Representations, the 2nd Misrepresentation Counterclaim also fails because Federal has failed to prove that it has suffered any compensable loss in reliance on the Further Representations. First, although the trial was bifurcated for the assessment of damages for the counterclaims to be heard separately vide HC/ORC 6553/2025, no evidence, whether at trial or in the affidavits of evidence-in-chief of Federal’s witnesses, was led to show that these forms of losses at [122] above had in fact been sustained. For example, it is uncertain what kind of tangible financial loss had been caused by virtue of the “time and resources” that Federal allegedly had to continuously divert as a result of the Further Representations. Second, the continued payment of click charges resulted in no loss at all, as payment of those charges discharged an existing liability on the part of Federal under the Service Agreement. Third, Federal’s conclusion that it had lost opportunities and/or profits as a result of its reliance on the Further Representations was reached simply by way of assertions rather than proof. Though Federal prayed for its losses of profits to be assessed, ³¹³ that only goes towards the specific quantum of the lost profits alleged to have been suffered by Federal. It did not obviate the need to prove some kind of compensable loss suffered in reliance on the Further Representation: see Tan Woo Thian v PricewaterhouseCoopers Advisory Services Pte Ltd [2021] 1 SLR 1166 at [6]. In these circumstances, Federal’s 2nd Misrepresentation Counterclaim must fail.

124 I turn next to consider Federal’s claim under the SGA. Federal asserts that Fujifilm has breached the implied terms under ss 9(2) and 9(5) of the SGA. I set out the relevant sub-sections of s 9 of the SGA below:

125 Federal asserts that Fujifilm is in breach of the implied conditions of satisfactory quality and fitness for purpose under ss 9(2) and 9(5) of the SGA respectively. The material facts underlying those claims, however, have not been pleaded by Federal. Instead, Federal attempted to introduce these claims by way of an amendment to its D&C on its first day of trial. I had disallowed this attempt (at [29] above). Indeed, counsel for Federal, Mr Keith Hsu, conceded that Federal’s claim under s 9 of the SGA had not initially been in mind when they had made the application to amend their D&C on the first day of trial. ³¹⁴ Fujifilm objected strenuously to Federal’s arguments on this point on the basis that it had not been adequately pleaded in Federal’s D&C, urging me to find that allowing Federal to advance its arguments on breaches of implied terms under s 9 of the SGA would cause it irreparable prejudice. ³¹⁵

126 Generally, the failure of a party to specifically plead the existence of a term implied in law does not preclude him from raising the same, “given the very nature of such a category of implied terms”: see Jet Holding Ltd v Cooper Cameron (Singapore) Pte Ltd [2006] 3 SLR(R) 769 at [93], Auto Lease (Pte) Ltd v San Hup Bee Motor LLP and others [2024] 5 SLR 1318 (“Auto Lease”) at [78] and Super Continental Pte Ltd v Essential Engineering & Construction Pte Ltd [2010] SGHC 365 at [23]. However, the mere existence of an implied term is hardly sufficient for a claimant to succeed in his claim for breach of contract. Quite apart from the existence of the term itself, the claimant must have pleaded the material facts necessary to make good its claim that the defendant has breached a term of the relevant contract. For example, the pleadings of the third respondent in Auto Lease in support of a claim for the breach of an implied term pursuant to s 12(2) of the Sale of Goods Act 1979 (2020 Rev Ed) (“SOGA”) for a vehicle which was sold to be free from any charge or encumbrance set out all the facts necessary for the third respondent to succeed in its claim. They included: the existence of the Sale Agreement, that full payment had been made, the receipt of the vehicle, that legal title of the vehicle had remained with the sellers, that the sellers “neglected and/or refused” to ensure that legal title was transferred and that the third respondent was consequently deprived of the benefit and rental of the vehicle and suffered loss: Auto Lease at [83]. After all, a claimant bears the burden of pleading, particularizing and proving every essential element of each cause of action which he chooses to pursue: Chandra Winata Lie v Citibank NA [2015] 1 SLR 875 at [34].

127 I accept Federal’s argument that it need not have specifically pleaded the existence of the statutorily implied conditions in ss 9(2) and 9(5) of the SGA for it to be able to rely on the same. ³¹⁶ It has, however, not pleaded any facts independent from those marshalled in support of its 1st and 2nd Misrepresentation Counterclaims, as well as its Rental and Service Agreement Counterclaims, to make good its claim that Fujifilm has breached those implied conditions under ss 9(2) and 9(5) of the SGA. When this was pointed out to counsel for the Defendants during the hearing of Federal’s application to amend its D&C on the second day of trial, he took the position that that Federal was relying only on the facts pleaded in support of its pleaded counterclaims to establish its case under s 9 of the SGA. ³¹⁷ On Federal’s case, therefore, the factual basis for Federal’s claim for breach of the implied conditions under ss 9(2) and 9(4) of the SGA is the same as that on which its 1st and 2nd Misrepresentation Counterclaims and the Rental and Service Agreement Counterclaims are based.

128 Nevertheless, it is not necessary for me to decide on whether irreparable prejudice would be caused to Fujifilm, as, on the evidence, I find that Federal’s claims under the SGA, in the form as submitted in its closing submissions, are unsustainable in any event. It is to that analysis to which I now turn.

129 I start with Federal’s claim against Fujifilm for breach of the implied condition of satisfactory quality under s 9(2) of the SGA. It is not seriously disputed that the Rental Agreement is a “contract for the hire of goods” as defined under s 6(1) of the SGA; nor is it seriously disputed that Fujifilm had bailed the Equipment to Federal in the course of its business. Federal’s case is that Fujifilm is in breach of the condition under s 9(2) of the SGA as the Equipment “could not reliably achieve proper alignment; consistent colour output; and produce reliable and acceptable large-format prints”. ³¹⁸ Consistent with my conclusion above that Federal’s case on the SGA must be limited to the facts pleaded in support of its counterclaims in misrepresentation and breach of the express terms of the Agreements, Federal’s case is thus that the Equipment was not of “satisfactory quality” owing to the Issues with the Equipment and/or the falsity of the Representations which Fujifilm had allegedly made to it.

130 In undertaking this analysis on s 9 of the SGA, I proceed on the basis, as the parties have, ³¹⁹ that the broad principles governing implied terms about quality or fitness under s 14 of the SOGA are similar to the implied terms under s 9 of the SGA. Section 14 of the SOGA concerns terms implied into “a contract of sale” (as defined under s 2(1) of the SOGA), unlike s 9 of the SGA, which concerns “a contract for the hire of goods” (as defined under s 6(1) of the SGA). Save for that difference, the nature and content of the implied terms of satisfactory quality and fitness for purpose under ss 14(2)–(2A) and 14(2C)–14(3) of the SOGA are analogous to those under ss 9(2)–(5) of the SGA. This was because the drafters of the Supply of Goods and Services Act 1982 (c 29) (UK) (“UK SGA”), on which the SGA is based, took the “general approach” that the implied terms in contracts of hire “should be assimilated to the Sale of Goods Act model” in all respects save for those pertaining to title: see United Kingdom, Law Commission, Implied Terms in Contracts for the Supply of Goods (Law Com No 95, 17 July 1979) at para 79). The recommendations, as well as the draft Supply of Goods and Services Bill, were subsequently accepted and implemented by the United Kingdom Parliament in enacting the UK SGA: see United Kingdom, House of Commons, Parliamentary Debates (22 January 1982), vol 16 at col 531. The language as it stood then remains in Singapore’s SOGA and SGA. I therefore find it appropriate to proceed on the basis, as the parties have, that the case law on the principles governing s 14 of the SOGA are instructive in analysing s 9 of the SGA.

131 Under s 9(2) of the SGA, where a bailor bails goods in the course of a business under a contract for the hire of goods, there is an implied condition that the goods supplied are of “satisfactory quality”. The goods are of “satisfactory quality” if they “meet the standard that a reasonable person would regard as satisfactory, taking account of any description of the goods, the consideration for the bailment (if relevant) and all the other relevant circumstances”: s 9(2A) of the SGA. This entails an objective, broad-based inquiry directed at whether the reasonable person placed in the position of the bailee, armed with his knowledge of the transaction and its background, would regard the quality of the goods in question as satisfactory: see Compact Metal Industries Ltd v PPG Industries (Singapore) Ltd [2006] SGHC 242 (“Compact Metal”) at [102(a)]–[102(d)], cited with approval in National Foods Ltd v Pars Ram Brothers (Pte) Ltd [2007] 2 SLR(R) 1048 (“National Foods”) at [58]. In undertaking this inquiry, the court “should consider any and all factors that may be relevant to the hypothetical reasonable person” [emphasis in original] in the position of the bailee: see Compact Metal at [102(e)].

132 In my judgment, Federal’s case on the breach of the implied condition of satisfactory quality fails at the threshold as it has failed to show the Issues with the Equipment existed. As noted at [78]–[79], [80]–[82], [93]–[94] and [95]–[99] above, Federal has failed to show that: (a) the Equipment could not perform Large-Sized Printing; (b) the Equipment had a poorer printing speed and colour quality as compared to the C1000i Printer; and (c) the Alignment and Colouring Issues, or the Paper Jams, existed as pleaded.

133 Even though I found that there may have been other issues with the Equipment, these were not matters that had been pleaded by Federal as the Issues with the Equipment. Federal’s pleaded case was limited to the Alignment Issues, the Colouring Issues, the Paper Jams and the Commercial Acceptability Issues. ³²⁰ When considered together with the fact that Federal’s counterclaim in reliance on the SGA was itself not entirely clear, to allow reliance on issues which Federal itself did not refer to would represent too far a departure from the general rule that “the court is precluded from deciding on a matter that the parties themselves have decided not to put into issue”: V Nithia at [38]. I therefore dismiss Federal’s claim for breach of the implied condition of satisfactory quality under s 9(2) of the SGA.

134 I turn next to Federal’s claim for breach of the implied condition under s 9(5) of the SGA. Under s 9(4) of the SGA, the condition in s 9(5) of the SGA is implied where a bailor bails goods in the course of a business and the bailee, expressly or by implication, makes known to the bailor in the course of negotiations conducted by him in relation to the making of the contract, “any particular purpose for which the goods are being bailed”. The condition implied is that the goods supplied under the contract for hire are “reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied”: s 9(5) of the SGA. Similar to s 14(3) of the SOGA, ss 9(4) and 9(5) of the SGA assumes that where the bailee makes known to the bailor (whether expressly or implicitly) any particular purpose for which the goods are being bailed, there is reliance on the bailor. The onus then falls on the bailor to show that there was no such reliance, or that the reliance was unreasonable in the circumstances: see National Foods at [73], citing with approval Compact Metal at [108].

135 Federal’s case is that Fujifilm had recommended the Equipment after the former had “made known its particular operational requirements” to the latter. ³²¹ Federal asserts that, by virtue of the Representations made by Fujifilm, the latter had additionally represented that the Equipment would be “able to adequately cater to [Federal’s] business operational needs”. ³²² In such circumstances, Federal submits, “the law implies a condition that the Equipment would be reasonably fit for that disclosed purpose”. ³²³ As Fujifilm rightly points out, however, it is totally unclear what these “particular operational requirements”, “business operational needs” or “disclosed purpose” are, who had communicated these purpose(s) to Fujifilm and its representatives and when, and whether these purpose had been made known expressly or implicitly. In as much as these refer to Federal’s requirement that the Equipment be able to engage in Large-Sized Printing in-house (see [76] above), Federal has failed to prove that the Equipment could not perform Large-Sized Printing (see [75]–[79] above). Knowing that Federal was using non-RML Paper (see [90]–[92] above) is also not a complete answer to the question as to the disclosed purpose. The point, simply put, is that even if the Representations could amount to some “disclosed purpose”, they were communicated to Federal by Fujifilm’s representatives, and not the other way around.

136 In those circumstances, I find that the implied condition in s 9(5) of the SGA does not arise for Federal’s failure under s 9(4) of the SGA to prove that its representatives had made known to Fujifilm a particular purpose for which the Equipment was being bailed, or, if it does arise, was not breached. Federal’s counterclaim under s 9 of the SGA is therefore dismissed.

137 As noted at [18(a)] above, Federal’s Waiver and Estoppel Defence is premised on the alleged existence of the New Agreement. Federal’s case is that sometime in July 2018, following multiple failed attempts by Fujifilm to resolve the Issues with the Equipment, ³²⁴ it withheld payment for the rental charges on the invoice issued by Federal for the month of August 2018. ³²⁵ Thereafter, Federal informed Fujifilm that it would “continue to withhold rental payments for the Equipment” until the Issues had been resolved, though it would continue to pay the click charges. ³²⁶ Given the absence of any objections on Fujifilm’s part, Federal asserts that Fujifilm had agreed “by way of conduct” that Federal was not required to pay for the Equipment’s rental. ³²⁷

138 Further, Federal pleads that a meeting had taken place sometime in “mid-2019” between Lim, Viknesh and Fujifilm’s representatives (ie, Goh, Rowena, Howard and one “Ms Jean / Jane”). In that meeting, “Ms Jean / Jane” (who was unidentified) had “confirmed” on behalf of Fujifilm that Federal “did not need to pay the Equipment’s rental charges as the Equipment could not be utilised to perform its main function of [Large-Sized Printing] due to the Issues and [Federal] only had to pay the Equipment’s click charges”. ³²⁸ On this basis, Federal pleads that Fujifilm is no longer “entitled and/or has waived its right and/or is estopped” in claiming that there has been a breach of the Rental and/or Service Agreements. ³²⁹ I should add that there appears to be an inconsistency between Federal’s pleaded position that the meeting had occurred in “mid-2019” on the one hand, and Lim’s position on affidavit that the meeting had taken place in “the last quarter of 2019”. ³³⁰ The inconsistency not being a material one, I will proceed on the basis that the meeting, if any, had taken place sometime in the latter half of 2019.

139 Fujifilm, on the other hand, takes the position that the Equipment had, at all times, performed according to specifications “save for normal wear and tear in the ordinary and usual course of business”. ³³¹ It denies the existence of the New Agreement, and pleads that it had not “at any time expressly or impliedly waive[d] the Equipment’s rental charges”. ³³² Specifically, Fujifilm relies on: (a) clause 9 of the Rental Agreement (see [13(e)] above); (b) the fact that it had consistently issued monthly invoices to Federal for the rental charges throughout the term of the Rental Agreement; and (c) the fact that Federal had continued to use the Equipment throughout the term of the Rental Agreement. ³³³

140 Variation, estoppel and waiver are alternative defences that a defendant may raise to a claim for breach of contract. The three concepts are broadly similar in that, where successfully invoked, they operate to “relieve a party from, or of, its pre-existing contractual obligations, or rights”: Aero-Gate Pte Ltd v Engen Marine Engineering Pte Ltd [2013] 4 SLR 409 (“Aero-Gate”) at [34], citing Sean Wilken & Karim Ghaly, The Law of Waiver, Variation, and Estoppel (Oxford University Press, 3rd Ed, 2012) at para 2.02. However, as Coomaraswamy J noted in an instructive discussion of the relevant principles in Aero-Gate, there are important differences between the three concepts of variation, estoppel and waiver. For one, variation effects a contractually binding alteration of the terms of a contract. By contrast, estoppel and waiver do not give rise to new substantive obligations and instead “operate to prevent the innocent party from exercising the full range of his rights and/or remedies that have arisen by reason of the other party’s breach”: Aero-Gate at [34]–[35].

141 Parties to a contract may agree to effect a variation of its terms: Ong Chay Tong & Sons (Pte) Ltd v Ong Hoo Eng [2009] 1 SLR(R) 305 at [21]. The formation requirements for a valid enforceable contract apply equally in deciding whether there has been a variation by agreement: Greenhouse v Paysafe Financial Services Ltd [2018] EWHC 3296 (Comm) (“Paysafe Financial”) at [13]. Accordingly, the party alleging variation must show that there was an agreement to vary the relevant contract by showing an offer and acceptance supported by consideration: see Aero-Gate at [36] and Ma Hongjin v SCP Holdings Pte Ltd [2021] 1 SLR 304 (“Ma Hongjin”) at [60] and [93]. A practical or factual benefit (or detriment) constitutes sufficient consideration at law: Gay Choon Ing v Loh Sze Ti Terence Peter [2009] 2 SLR(R) 332 (“Gay Choon Ing”) at [70], citing Williams v Roffey Bros & Nicholls (Contractors) Ltd [1991] 1 QB 1. It is therefore, as a general position, “very easy to locate some element of consideration between contracting parties, especially in a transaction of a commercial nature”: Aero-Gate at [36].

142 The scope or the extent of a contractual power to vary the terms of a contract falls to be ascertained by interpreting the relevant contract in question: Cobalt Data Centre 2 LLP v Revenue and Customs Commissioners [2022] All ER(D) 37 at [53]. Often, in commercial practice, parties may stipulate that, as a term of their contract, a variation will be valid only if it assumes a particular form – for example, by requiring any variations to be recorded in writing and signed on behalf of both parties: Chitty on Contracts (Hugh Beale gen ed) (Sweet & Maxwell, 36th Ed, 2025) (“Chitty on Contracts”) at para 26–042. There are good commercial reasons as to why parties may decide to include such “No Oral Modification” or “NOM” clauses in their contract, one of which is to “ensure the certainty of the terms and existence of any modification, since oral discussions are difficult to prove and may also easily give rise to misunderstandings”: Charles Lim Teng Siang v Hong Choon Hau [2021] 2 SLR 153 (“Charles Lim”) at [36]. Therefore, a NOM clause raises a rebuttable presumption that, in the absence of an agreement in writing, there has been no variation of the relevant contract: see Charles Lim at [38] and [61], citing Comfort Management Pte Ltd v OGSP Engineering Pte Ltd [2018] 1 SLR 979 at [90]. The burden of proof is on the party alleging variation to rebut the presumption that there has been no oral variation, a burden which requires cogent evidence to be discharged: Charles Lim at [56] and [58]. Unlike the approach taken by Lord Briggs JSC (as he then was) in Rock Advertising Ltd v MWB Business Exchange Centres Ltd [2019] AC 119 (at [31]), it is unnecessary in Singapore law to show that the parties had intended, whether expressly or by necessary implication, to depart from the NOM clause. The “test” is whether, at the point when the parties agreed on the oral variation, “they would necessarily have agreed to depart from the NOM clause had they addressed their mind to the question, regardless of whether they had actually considered the question or not”: Charles Lim at [54] and [61].

143 The doctrine of promissory estoppel, also referred to variously in the authorities as “waiver by estoppel” or “equitable forbearance”, protects a party’s reliance on promises not supported by consideration, on the basis that the party has “acted on the promise to his detriment and it is now inequitable for the promisor to go back on his promise”: Oriental Investments (SH) Pte Ltd v Catalla Investments Pte Ltd [2013] 1 SLR 1182 (“Oriental Investments”) at [82]. Therefore, even in the situation where there has been no contractual variation, one may be held to his promise to give up or otherwise not to enforce his rights via the doctrine of promissory estoppel: Paysafe Financial at [14]. The utility of what may otherwise be a potent doctrine is circumscribed in at least two respects. First, the doctrine is understood – at least traditionally – as operating as a “shield” and not a “sword”, in the sense that it operates merely as a defence as opposed to giving rise to a cause of action: see Combe v Combe [1951] 2 KB 214, Oriental Investments at [83] and Gay Choon Ing at [115]. Second, the doctrine, where successfully invoked, generally operates to suspend the enforcement of the original rights of the promisor (as opposed to extinguishing them). Therefore, in the absence of exceptional circumstances, the promisor may revive his rights against the promisee by giving reasonable notice: see The Law of Contract in Singapore (Andrew Phang Boon Leong (gen ed) (Academy Publishing, 2nd Ed, 2022) (“Law of Contract in Singapore”) at paras 4.097–4.098 and Paysafe Financial at [16].

144 To rely on the doctrine of promissory estoppel, the following three requirements must be shown (see Tembusu Growth Fund II Ltd v Yee Fook Khong [2020] SGHC 104 (“Tembusu Growth”) at [105] and Audi Construction Pte Ltd Kian Hiap Construction Pte Ltd [2018] 1 SLR 317 (“Audi Construction”) at [57]):

145 The doctrine of waiver by election concerns a situation where a party has a choice between two inconsistent rights or, more accurately, an existing set of rights and a new set of rights which he has the power to create by his election: Audi Construction at [54]–[55], citing K R Handley, Estoppel by Conduct and Election (Sweet & Maxwell, 2nd Ed, 2016) at para 14–002. Once a party has elected not to exercise one of his rights, that election is final and binding and he will be held to have voluntarily abandoned or “waived” said right: Audi Construction at [54], citing with approval Motor Oil Hellas (Corinth) Refineries SA v Shipping Corporation of India (The “Kanchenjunga”) [1990] 1 Lloyd’s Rep 391 (“The Kanchenjunga”) at 397–978.

146 A waiver by election must be “an intentional act with knowledge”: Earl of Darnley v London Chatham and Dover Railway (1867) LR 2 HL 43 at 57 (per Lord Chelmsford LC). Broken down into its constituent elements, the following must be proved to establish a waiver by election. First, the elector must have communicated his election to the other party in clear and unequivocal terms, whether by words and/or conduct. Second, the elector must have had knowledge of the relevant facts – that is, he must have been aware of the facts which gave rise to the existence of the right he is said to have elected not to exercise: Audi Construction at [54] and Vim Engineering Pte Ltd v Deluge Fire Protection (S.E.A.) Pte Ltd [2023] 2 SLR 468 at [43].

147 I turn first to deal with Federal’s defence that the New Agreement effected a variation to, and thereby “supersede[d]”, the Rental Agreement. ³³⁴ First, sometime in July 2018, given the extant dispute between the parties as to the Equipment, Federal had offered to pay for only the click charges (and not the rental charges) until the Issues with the Equipment had been resolved. This offer had purportedly been accepted by Fujifilm “by way of conduct” given that it “had not objected to it”. ³³⁵ Second, during a meeting “in mid-2019”, Lim (on behalf of Federal) had “highlighted” the New Agreement to Fujifilm’s representatives and “reiterated” Federal’s position that it would not be paying for the rental charges if the Equipment could not be utilised to perform its function of Large-Sized Printing. ³³⁶ Fujifilm’s representatives had, at the same meeting, purportedly “confirmed” that this arrangement was in place between Fujifilm and Federal. ³³⁷

148 The New Agreement, if any, must therefore have been entered into sometime in July 2018, or at the latest, by the middle of 2019 (ie, June 2019). In my view, the mere fact that Fujifilm had failed to object to Federal’s “offer” that it would only be paying for the click charges due under the Service Agreement is insufficient to establish the existence of the New Agreement. It is, after all, a well-established principle that silence per se is unequivocal; it is “always a question of fact whether silent inactivity after an offer is made is tantamount to acceptance”: Midlink Development Pte Ltd v The Stansfield Group Pte Ltd [2004] 4 SLR(R) 258 at [50]–[51] (“Midlink Development”). The focus, therefore, must be on whether, in the circumstances of the case, the conduct of the parties, objectively ascertained, supports the existence of the New Agreement: Midlink Development at [52].

149 Before delving into the analysis proper, I note that there is an ambiguity inherent in the manner in which the contents of the New Agreement had been pleaded. As pleaded, ³³⁸ the New Agreement could be understood to mean that Fujifilm had in fact absolutely and irreversibly relinquished its rights to the rental charges under the Rental Agreement, with these rights only capable of being revived once the Issues with the Equipment had been resolved. It could also be understood to mean that Fujifilm had only postponed or deferred its right to be paid the rental charges until the Issues with the Equipment had been resolved. Given that Federal is relying on the existence of the New Agreement to argue that Fujifilm is “not entitled” to the outstanding rental charges under the Rental Agreement, I proceed on the basis that Fujifilm is advocating for the first of the two possible interpretations of the New Agreement.

150 Instead of leading direct evidence on the existence of the New Agreement, Federal has invited me to infer its existence based on “the parties’ post-dispute conduct” whereby, despite Federal’s non-payment of rental, Fujifilm “continued to provide services [and] maintain[ed] the Equipment” in exchange for Federal’s payment of the click charges. ³³⁹ In support of such a submission, Federal points to how, based on its experience dealing with Fujifilm in the past, Fujifilm would immediately cease the provision of “all ancillary services, such as the supply of toner and ink, service personnel, and other technical support” when Federal failed to make payment as and when they fell due. ³⁴⁰ Federal further points to how, notwithstanding its failure to make payment of the rental charges for the Equipment, Fujifilm had continued to supply all such “ancillary services” in exchange for payment of the click charges. ³⁴¹ Fujifilm’s conduct in omitting to cease (or otherwise restoring Federal’s access to) these ancillary services for the Equipment, Federal says, shows how Fujifilm had agreed “by way of conduct” that it was “not required to pay for the Equipment’s rental fees” until the alleged Issues with the Equipment had been resolved. ³⁴²

151 Peter (Fujifilm’s CFO) and Goh (Fujifilm’s CSM), agreed that Fujifilm had a policy of cutting off ancillary services whenever a customer defaulted on its obligation to pay rent within a 90-day period, and that this was done in order to “compel payment” from the defaulting customer. ³⁴³ Peter also acknowledged that Fujifilm had restored Federal’s access to ancillary services on multiple occasions notwithstanding its failure to pay rent for the Equipment. ³⁴⁴ He, however, denied the existence of the New Agreement. ³⁴⁵ He explained that Fujifilm did not adhere strictly to such a policy, as it was not in Fujifilm’s interests to “cut off the customer’s opportunity to generate revenue to pay [it]”; instead, it would often restore a customer’s access to ancillary services so long as there was “a certain payment arrangement” that could be reached. ³⁴⁶ He also explained that, given the longstanding commercial relationship that Fujifilm had with Federal, the former had extended “goodwill” to the latter – especially during “the COVID period” – by not strictly enforcing its collection policy. ³⁴⁷ Goh’s evidence on this point was largely similar to that of Peter’s. ³⁴⁸

152 In the face of the diametrically opposed positions taken by the parties, I focused on the contemporaneous documents in ascertaining whether Federal had proven the existence of the New Agreement, which formed the factual basis of its defence in variation, waiver by election and promissory estoppel. A careful consideration of that evidence, in my judgment, leads to the conclusion that Federal fails, on a balance of probabilities, to establish the existence of the New Agreement. First, the alleged existence of the New Agreement, under which the parties had purportedly agreed that Federal would no longer be liable for rental charges under the Rental Agreement (at least until the alleged Issues with the Equipment had been resolved), was inconsistent with the fact that Fujifilm had issued to Federal a total of 56 invoices between July 2018 and April 2023 for said rent. Each of those 56 invoices had been issued to Federal on the first day of every month from July 2018 to April 2023 (save for the invoice for the Final Payment of S$90,000.00, which was issued on 15 March 2023), demanding the very payments which the parties had allegedly agreed Federal needed not pay. ³⁴⁹ The very fact that Fujifilm had continued to consistently issue invoices to Federal on a monthly basis from July 2018 to April 2023 was therefore inconsistent with Federal’s assertion that the parties had entered into the New Agreement. Had the parties truly agreed that Federal was no longer required to pay the rental charges under the Rental Agreement from July 2018, there would have been no reason for Fujifilm to have issued invoices for the same to Federal until April 2023.

153 I should add, in relation to this specific point, that counsel for Fujifilm, Mr Chang, appeared to suggest that the very fact that Fujifilm had ceased the provision of ancillary services was probative of the parties not having entered into the New Agreement. ³⁵⁰ I do not, however, think that the point is as persuasive as the learned counsel suggested it to be, for the simple fact that these “services holds” (ie, the cessation of the provision of ancillary services) took place “automatically” at the behest of Fujifilm’s finance department once a customer failed to pay its overdue rental charges within a 90-day period. ³⁵¹

154 Second, I find it striking that the New Agreement had not been mentioned even once in the various emails and letters which had been exchanged between Fujifilm and Federal (as well as their counsel) between July 2018 to April 2023. The first of those correspondences is the Oct 2019 Letter, which was sent after the alleged meeting between the parties. ³⁵² In that letter, Lim set out in detail “the alignment and colour issues with the [Equipment]” as well as Federal’s grievances on how Fujifilm had allegedly failed to “update [Federal] on how these issues could be resolved”. ³⁵³ At the end of the Oct 2019 Letter was the following paragraph: ³⁵⁴

155 I agree with Fujifilm’s submission that Federal’s request to Fujifilm in the Oct 2019 Letter that it “strongly consider a waiver of rental charges” is suggestive of the fact that the New Agreement “was not in force and rental charges continue[d] to be payable by [Federal]”. ³⁵⁵ When questioned on this by Mr Chang at trial, Lim took the position that though the Oct 2019 Letter had been sent out under his name, it was Viknesh who had in fact “prepare[d]” the same. ³⁵⁶ Lim’s position was therefore that he was unable to testify as to the reasons why Federal had requested Fujifilm that the latter “strongly consider a waiver of rental charges” despite the alleged existence of the New Agreement. ³⁵⁷ Viknesh agreed that he was the one who had drafted the Oct 2019 Letter, though Lim had “spent [a] few minutes” going through its contents. ³⁵⁸ Viknesh testified that his reasons for requesting Fujifilm to consider a waiver of rental charges, notwithstanding the alleged existence of the New Agreement, was that: (a) he had “called and informed” Fujifilm of the existence of the New Agreement “many times” and did not wish to “repeat” himself; ³⁵⁹ (b) he believed that Fujifilm was already aware of the existence of the New Agreement; ³⁶⁰ and (c) he “wanted to be polite” with Fujifilm in the Oct 2019 Letter so that Fujifilm would not cease the provision of its ancillary services to Federal. ³⁶¹

156 These explanations, in my judgment, failed to satisfactorily explain the inconsistency inherent in the position that Federal was requesting Fujifilm to consider waiving its rights to the rental charges when, on Federal’s own case, it had been agreed between the parties that Federal was no longer required to pay the rental charges to Fujifilm until the Issues with the Equipment had been resolved. Specifically, I agreed with Fujifilm’s submissions that the contents of the Oct 2019 Letter characterised the waiver of rental charges as an arrangement which Federal “was still seeking”, as opposed to one that had already been agreed on by the parties. ³⁶²

157 The second of the relevant correspondences is a letter from Federal’s former solicitors, B Rao & K S Rajah, dated 24 March 2020 (“Mar 2020 Letter”). ³⁶³ The Mar 2020 Letter contained Federal’s response to a letter of demand sent to it by Fujifilm’s former solicitors, Averex Law Corporation, on 4 March 2020. In that letter of demand, Fujifilm had demanded that Federal immediately pay, amongst other things, S$263,573.52 as the sum representing the rental charges due and owing to Fujifilm under the Rental Agreement. ³⁶⁴ In the Mar 2020 Letter, Federal refused to pay the rental charges claimed by Fujifilm on the ground that the Equipment was defective. ³⁶⁵ It also took the position that it had been induced into entering the Rental and Service Agreements by the fraudulent misrepresentations of Fujifilm’s representatives, and made a counter-demand that Fujifilm “rectify the [Equipment] IMMEDIATELY without delay”. ³⁶⁶ There was no mention, or even an allusion, by Federal of or to the New Agreement which had allegedly been entered into by the parties. Given the significance that such an agreement would have as a defence to Fujifilm’s claim for the rental charges that were due hitherto, I consider its omission in the Mar 2020 Letter as being indicative as to the non-existence of the New Agreement.

158 The third set of correspondence is that of text messages exchanged between Viknesh and Howard (Fujifilm’s employee) on 21 October 2021, where Viknesh informed Howard of Federal’s “strong decision” to “pay only click charges” owing to the Issues with the Equipment. ³⁶⁷ Again, I note that Viknesh had made no reference to the New Agreement that was purportedly in place between Fujifilm and Federal in his texts to Howard.

159 The last set of correspondence relevant to the present issue is a chain of emails exchanged in September and October 2022 between Fujifilm’s and Federal’s representatives, where the possibility of Federal renewing the Rental Agreement was discussed. ³⁶⁸ The first of those emails was sent on 22 September 2022 (at around 10.31am) by Julian, who held the position of “collection manager” at Fujifilm, to Lim. This is the “22 Sep 2022 Email” to which I had referred to above at [26]. There, Julian proposed the possibility of Federal renewing the Rental Agreement with Fujifilm. He specifically noted Federal’s position that the Equipment was “not up to [its] expectations” but took the position that the Equipment was “working within specification”. ³⁶⁹ He also expressly stated in the email that there was a net outstanding amount of S$627,525.97 payable by Federal to Fujifilm under the Rental Agreement. Julian took the position that, should Federal decide to renew the Rental Agreement, Fujifilm would be willing to provide a S$50,000.00 “goodwill discount” on the outstanding arrears due. ³⁷⁰ The conversation then shifted to Fujifilm’s (alleged) inability to resolve the Issues with the Equipment and whether it was performing in accordance with its specifications. ³⁷¹

160 Notably, on 17 October 2022 (at around 3.00pm), Julian sent an email to Viknesh, claiming that the Equipment was “working within specification” (“Oct 2022 Email”). He asserted that Fujifilm had “provided multiple goodwill gesture[s]” to resolve the issues pertaining to the Equipment, such as offering to give a “huge discount of $50k” to the outstanding arrears under the Rental Agreement, “fulfilling multiple requests and allowing usage of the machine for 4 years without payment” [emphasis added]. ³⁷² A further difficulty to Fujifilm’s case was that, under cross-examination, Peter accepted that Fujifilm had in fact represented to Federal that “no rental payment was required until the issues [with the Equipment] had been resolved”. ³⁷³ Federal, in its closing submissions, emphasised that these pointed towards the existence of the New Agreement. ³⁷⁴ I reject this submission:

(a) First, in relation to the contents of the Oct 2022 Email, Julian’s statement that Fujifilm had “allow[ed] usage of the [Equipment] for 4 years without payment” was likely a description of the factual state of affairs whereby Fujifilm had not enforced its strict legal rights against Federal despite the latter’s non-payment of the rental charges (see [149] above). It should, in my judgment, not be read as an admission on Fujifilm’s part that it had foregone its rights to claim for the overdue rental charges against Federal. As Fujifilm correctly points out, ³⁷⁵ the contents of the Oct 2022 Email should be read in its context. In the 22 Sep 2022 Email, the very first email in the chain of emails leading up to the Oct 2022 Email, Julian had expressly stated that Federal owed Fujifilm a total of S$627,525.97 under the Rental Agreement. ³⁷⁶ The contents of the Oct 2022 Email therefore did not evidence what Federal sought to prove – namely, that Fujifilm had agreed to relinquish its rights to the rental charges under the Rental Agreement.

(b) Second, I find Peter’s acceptance under cross-examination that Fujifilm had in fact represented to Federal that the latter was not required to pay the rental charges until the issues with the Equipment had been resolved to be neither here nor there. To begin with, Peter had not been present at the meeting that had allegedly taken place in the middle of 2019, where Fujifilm’s representatives are alleged to have “confirmed” the New Agreement with Federal. ³⁷⁷ He would therefore not have been privy to what representations, if any, had been made in that meeting. Second, the proposition that Fujifilm had “represent[ed] that no rental payment was required until the issues [with the Equipment had been] resolved” [emphasis added] is not strictly at odds with the non-existence of the New Agreement. Consistent with my observations at [149] above, it might well have been the case that Fujifilm had agreed to temporarily forbear from collecting on the rental charges which were due and owed to it until the dispute between the parties as to the proper functioning of the Equipment had been resolved. That was consistent with the position taken by Peter on multiple other occasions during the trial, where he repeatedly denied Federal’s claims that Fujifilm was “not entitled to rent” owing to the alleged Issues with the Equipment. ³⁷⁸ That was also consistent with Peter’s evidence at an earlier part of the trial, where he drew a distinction between “not paying” and “no need to pay [sic]”. ³⁷⁹ Peter’s position was that he did not strictly insist that Federal pay Fujifilm timeously considering the “goodwill” that had been built up between them over the years. He, nevertheless, took the position that Fujifilm had “still continue[d] charging” Federal and that it was “just a matter of time” before the latter had to pay. ³⁸⁰ Therefore, Peter’s “admission” was not as significant as Federal claimed it to be. ³⁸¹

161 For these reasons, I am of the view that Federal’s defence of variation fails as it has failed to discharge its legal burden of proving that Fujifilm and Federal had in fact entered into the New Agreement. Even if I were to be wrong on this point, I find that the New Agreement is not supported by any consideration on Federal’s part. In its closing submissions, Federal submitted that the New Agreement was supported by consideration in the form of: (a) “forbearance from immediate rejection and/or termination”; (b) “continued payment of click charges”; and (c) “continued cooperation with troubleshooting and access for servicing”. ³⁸² Federal also submitted that Fujifilm had also “obtained the practical benefit of preserving the relationship” with it. ³⁸³ This cannot be correct.

162 First, the position that the New Agreement was supported by consideration – or, more aptly, the material facts underlying such a position – has not been adequately pleaded by Federal: see Ma Hongjin at [34]. For example, Federal has not pleaded that it would have terminated the Rental Agreement or refused to cooperate with Fujifilm in the troubleshooting and the servicing of the Equipment in its Defence and Counterclaim. These assertions have also not been made in the affidavits of evidence-in-chief of Federal’s witnesses, Lim, Viknesh and Ng. Second, even if the issues as to the deficiency of Federal’s pleadings on this point may be overcome (a point on which no submissions were made), there is no evidence to suggest that Fujifilm had requested Federal to forbear from terminating the contract, to continue paying the click charges under the Service Agreement, or to continue cooperating with it in the troubleshooting and servicing of the Equipment. As a matter of law, a benefit conferred, or a detriment incurred, by the promisee on its own volition does not constitute sufficient consideration. The element of request is necessary to establish a link between the parties concerned: Gay Choon Ing at [82], citing Combe v Combe [1951] 2 KB 214; see also Ma Hongjin at [48].

163 Quite apart from the difficulties in Federal’s position that the New Agreement is supported by consideration, clause 10 of the Rental Agreement – which provides that any waiver, alteration or modification of the terms of the Rental Agreement shall not be binding on Fujifilm unless recorded in writing and signed on behalf of the parties – is in the nature of a NOM clause. ³⁸⁴ The existence of clause 10, therefore, gives rise to a rebuttable presumption that there has been no variation of the Rental Agreement by the New Agreement which, if any, is said to have been reached orally and/or by way of conduct (see [147] above). The onus is on Federal to show that, at the point at which the parties had agreed to vary the Rental Agreement, the parties would “necessarily have agreed to depart from the NOM clause had they addressed their mind to the question”: Charles Lim at [54]. Given my findings above that the existence of the New Agreement has not been proven by Federal, the question as to whether it has further rebutted such a presumption does not arise. In the circumstances, I reject Federal’s defence that the parties had agreed to vary the Rental Agreement through the New Agreement.

164 I turn next to Federal’s defence of promissory estoppel. On this, Federal pleads that Fujifilm had “represented that the New Agreement would supersede the Rental Agreement and the Service Agreement”. ³⁸⁵ Had no such representation been made, Federal pleads, Fujifilm would not have permitted it to continue using the Equipment without payment of the rental charges from July 2018 to April 2023. ³⁸⁶ I note, at this juncture, that Federal’s argument on the defence of promissory estoppel and waiver by election overlaps substantially with its defence that there had been a variation of the Rental Agreement. The factual basis pleaded in support of its case that the Rental Agreement had been varied by the New Agreement is again relied upon by Federal to argue that Fujifilm “has waived its right and/or is estopped in claiming that there is a breach of the Rental Agreement”. ³⁸⁷

165 Generally, a party who asserts promissory estoppel as a defence must plead in sufficient detail the material facts necessary to establish each element of the estoppel. For example, in relation to the requirement that there be a clear and unequivocal representation by the promisor that it will not enforce its strict legal rights against the promisee, details such as when and where the representation was made, by whom it was made, and the content of the representation must be made clear so as to give the opposing party fair notice as to the case he has to meet: see Tembusu Growth at [106], citing Low Heng Leon Andy v Low Kian Beng Lawrence [2018] 2 SLR 799 at [49]. Additionally, it is necessary to plead how the promisee had relied on the promise made by the promisor, as well as the detriment that the promisee had suffered in reliance on the promise: see V Nithia at [5] and Tembusu Growth at [107]. Federal, in its Defence and Counterclaim, has not pleaded how it had relied on the representation allegedly made by Fujifilm or the detriment that is has suffered in reliance on such a representation. ³⁸⁸ Nor were these elements of the defence in promissory estoppel elaborated on in Federal’s closing submissions, where the only submission on this point was an assertion that Fujifilm’s “statements and sustained conduct gave rise to clear reliance and detrimental consequences, making it inequitable for [Fujifilm] to resile”. ³⁸⁹ Federal’s deficient pleadings was therefore a ground for dismissing its defence in promissory estoppel alone.

166 I accept that Fujifilm had made a clear and unequivocal representation to Federal that it would not be strictly enforcing its legal rights to the rental charges under the Rental Agreement. After all, that was accepted by Peter under cross-examination and evidenced by the contents of the Oct 2022 Email (see [160] above). ³⁹⁰ However, consistent with my findings on Federal’s defence of variation, I find that this representation is properly understood as one whereby Fujifilm had agreed to temporary postpone or delay its entitlement to be paid the rental charges timeously under the Rental Agreement, as opposed one whereby Fujifilm would be totally foregoing and relinquishing its rights to the rental charges (see [149] above). While Federal alleges the type of representation which had been made by Fujifilm to be the latter, I find – for essentially the same reasons set out above on Federal’s defence of variation – that Federal has failed to prove that such a representation had in fact been made by Fujifilm.

167 In any case, the doctrine of promissory estoppel does not assist Federal in the present case. As noted above at [143], the effect of the doctrine, where successfully invoked, is generally to suspend the enforcement of the original rights of the promisor (as opposed to extinguishing them). Therefore, even if Federal had satisfied the three requirements necessary to give rise to a promissory estoppel in the present case, Fujifilm was entitled to insist on its strict legal rights against Federal upon the giving of reasonable notice (see [143] above). Such notice had been given to Federal on 22 September 2022 by way of the 22 Sep 2022 Email, where Julian expressly brought to Federal’s attention that it owed Fujifilm a sum of S$627,525.97 under the Rental Agreement. ³⁹¹ It was only some three months after, on 5 January 2023, that Fujifilm informed Federal that legal proceedings would be commenced against it for non-payment of the rental charges. ³⁹² Parenthetically, I note that there is English case law indicating that the doctrine of promissory estoppel may, in exceptional cases, have an extinctive effect where events subsequent to the representation make it impossible or highly inequitable for the promisee to perform his original obligations: see Edward Michael Avery-Gee v Marek Zwiefka Sibley [2021] EWHC 798 (Ch) at [32] and Chitty on Contracts at para 7–048, citing Birmingham & District Land Co L & N W Ry (1888) 40 Ch D 268; cf Law of Contract in Singapore at para 4.098. Given no submissions have been made on this point, I leave the contours of this exception to be shaped in a future case where the issue arises squarely for determination.

168 I turn finally to Federal’s defence of waiver by election, by which it appears to be arguing that Fujifilm had elected to forego its rights to the rental charges under the Rental Agreement in favour of its new rights under the New Agreement where “only click charges were payable”. ³⁹³ In my judgment, this argument was fundamentally misplaced for the simple fact that there had been no inconsistent rights between which Fujifilm could elect. An inconsistent “right” in the context of the doctrine of waiver by election refers to “a legal right, ie one carrying a correlative obligation”: Loh Chiang Tien v Saman Dharmatilleke [2020] SGHC 45 at [13].

169 In the present case, prior to the alleged existence of the New Agreement, Fujifilm only had a right to be paid rental charges under the Rental Agreement. If the New Agreement had in fact been entered into between the parties, the terms of which was that Fujifilm would no longer be entitled to the rental charges under the Rental Agreement, its legal effect would have been to vary or otherwise suspend Fujifilm’s specific right to be paid the rental charges (until the alleged Issues with the Equipment were resolved). At no point, therefore, would Fujifilm simultaneously have had the choice of electing between a right to the payment of rental charges under the Rental Agreement on the one hand, and a “right” not to be paid the rental charges under the terms of the New Agreement on the other. In any case, I reject the characterisation of the terms of the New Agreement as conferring on Fujifilm a “right” not to be paid the rental charges. Any “obligation” correlative to such a “right” would be one owed by Federal not to pay any rental charges under the Rental Agreement, which is no obligation at all. In the premises, I find that the doctrine of waiver by election has no application to the facts.

170 I turn to Federal’s next contention, which is that Fujifilm had failed to mitigate its losses. Federal points to how Fujifilm had “continued to allow” its breaches of the Rental and Service Agreements to “remain unremedied” from July 2018 and March 2023 respectively, and permitted it to “maintain possession and use [of] the Equipment” until 18 October 2023. ³⁹⁴ Federal asserts that Fujifilm “failed to minimize the effect” of its breaches of the Rental and Service Agreements by taking the following steps: (a) terminating the Rental and Service Agreements; (b) declaring all costs and expenses incurred at the material time; and/or (c) repossessing the Equipment and all tangible materials. ³⁹⁵ Federal submits that Fujifilm has failed in it “duty” to “take all reasonable steps” to mitigate its losses, and that it is consequently “debarred” from claiming those losses and damages which are attributable to their neglect in taking such steps. ³⁹⁶

171 The basic rules pertaining to mitigation in the context of a claim for damages for breach of contract is well established. The general rule is that “the aggrieved party must take all reasonable steps to mitigate the loss consequent on the defaulting party’s breach, and cannot recover damages for any loss which it could have avoided but failed to avoid due to its own unreasonable action or inaction”: Alvin Nicholas Nathan v Raffles Assets (Singapore) Pte Ltd [2016] 2 SLR 1056 at [17], citing The “Asia Star” [2010] 2 SLR 1154 (“Asia Star”) at [24]. The question is “what a reasonable and prudent man in the trade would have done in the ordinary course of his business if he had been in the aggrieved party’s shoes”: Asia Star at [30], citing with approval Dunkirk Colliery Company v Lever (1878) 9 Ch D 20 at 25. The burden of showing that the aggrieved party has failed to act reasonably to mitigate its losses, one which is ordinarily “not easily discharged”, lies on the defaulting party: Asia Star at [24].

172 The core of Federal’s argument on mitigation is that Fujifilm ought to have terminated the Rental Agreement and Service Agreement once it fell in breach of its obligations to pay rent and maintenance charges under those agreements respectively. The difficulties with Federal’s argument, however, are twofold. First, Fujifilm’s primary claim against Federal was not one for damages for breach but one for debt. The distinction between “damages” and “debts” was explained by Millett LJ in Jervis v Harris [1996] Ch 195 at 203:

173 Though Fujifilm had pleaded an alternative claim for its “loss and damage”, ³⁹⁷ it was clear from a perusal of its pleadings that its primary claim was one for debt – that is, the accrued rental and maintenance charges (and the late interest thereon) under the Agreements. ³⁹⁸ It is, however, well-established that there is no requirement to mitigate where the claim is one for an agreed sum: MP-Bilt Pte Ltd v Oey Widarto [1999] 1 SLR(R) 908 (“Oey Widarto”) at [19]. Federal’s breach in failing to pay those accrued sums did not cause Fujifilm any independent, compensable “loss” which it could mitigate – its breach(es) lay in failing to pay those sums which had crystallised and fallen due under those Agreements. Those sums having fallen due under the Agreements, Federal could not “decide to dishonour and it and convert it into damages”: Oey Widarto at [20]. It follows that Federal’s defence of mitigation fails. The doctrine of mitigation does not apply to Fujifilm’s claim.

174 Second, it did not lie in Federal’s mouth to claim that Fujifilm ought to have mitigated its “losses” by terminating the Rental and Service Agreements when it had continued using the Equipment and requesting Fujifilm to provide maintenance throughout the term of the agreement. It is true that, under clause 7.2 of the Rental Agreement and clause 10.1 of the Service Agreement, Fujifilm had a right to terminate those Agreements on the ground of Federal’s breaches and claim damages for the same (see [13(d)(i)] and [14(g)] above). Fujifilm, however, also had a right to keep the Agreements on foot by continuing to perform its obligations thereunder notwithstanding its right to terminate them for Federal’s breaches. Crucially, Fujifilm was under no obligation to elect between its rights to terminate or affirm the Agreements in a reasonable manner: see Oey Widarto at [18], citing Tredegar Iron and Coal Co (Limited) v Hawthorn Brothers and Co (1902) 18 TLR 716 at 716–717; White & Carter (Councils) Ltd v McGregor [1962] AC 413 (“White & Carter”) at 430; see also Chitty on Contracts at para 30–124 and Law of Contract in Singapore at para 22.141.

175 Federal, therefore, was entitled to affirm the Agreements, continue rendering performance, and claim for the agreed sums as they fell due. There was simply no requirement for Fujifilm to mitigate its losses when its claim against Federal was to enforce the latter’s primary obligations under the Rental and Service Agreements to pay the rental and maintenance charges which had fallen due. A potential argument which Federal may have availed itself of, but did not raise, is that Fujifilm did not have a “legitimate interest, financial or otherwise, in performing the contract rather than claiming damages”: see White & Carter at 428 and 431 and Oey Widarto at [39]. There is some doubt as to whether this element of “legitimate interest” operates as a restriction on the availability of the remedy of the agreed sum or on an aggrieved party’s right to affirm its contract with the defaulting party: see Chitty on Contracts at para 31–007 and MSC Mediterranean Shipping Co SA v Cottonex Anstalt [2017] 1 All ER (Comm) 483 at [40]. Without deciding this point, which is more appropriately reserved for a court with the benefit of full arguments on the issue, it is my judgment that this point would not assist Federal on the facts of this case. Any argument that Fujifilm did not have a legitimate interest in continuing to perform the contract falls away when viewed against the fact that Federal had continued to enjoy the use of the Equipment and request for its maintenance under the Rental and Service Agreements (see [174] above). Federal can hardly say that Fujifilm had no legitimate interest in doing what Federal asked it to do. Federal’s argument on mitigation is therefore dismissed.

176 For the foregoing reasons, I allow all of Fujifilm’s claims against the Defendants in OC 343 and disallow all of Federal’s counterclaims. Federal is therefore liable for: (a) the sum of S$715,093.01 under the Rental Agreement; (b) the sum of S$10,754.37 under the Service Agreement; and (c) the sum of S$69,996.51 as late charges under both Agreements. Lim and Ng are jointly and severally liable for the same sums under the Guarantee.

177 The parties are to file their submissions on pre-judgment interest and costs (limited to ten pages) within 14 working days from the date of the release of this judgment.