1 Cur Adv Vult

2 This was an appeal from a decision of a district court which dismissed an action instituted by the plaintiffs/appellants against the defendants/resfor payment under a contract for service. After hearing the parties I dismissed the appeal and now give my reasons.

3 The appellants were design and advertising consultants. In their re-amended statement of claim the appellants averred that `on or about 27 February, by way of an oral contract, and culminating in a project situation report on 6 March 1985, the (appellants) agreed to design and prepare a Potex publicity brochure and Logo/Logotype designs for the (respondents) estimated at the sum of $60,000.` The appellants said that following that oral agreement, the appellants commenced work and expended much labour and material thereon. On or about 12 March 1985 the respondents wrongfully `refused to allow the (appellants) to continue to prepare or complete the said brochures and designs and wholly repudiated and put to an end the said contract`. The appellants claimed $36,000 for `work done and material supplied`, with particulars furnished, and also for damages for loss of profit which they would otherwise have made if they had been allowed to complete the work. Accordingly, the appellants prayed for these reliefs:

4 In their amended defence, the respondents denied that there was any oral contract between themselves and the appellants. The respondents further contended that the works were `carried out by the (appellants) voluntarily and at their own expense purportedly for the purpose of demonstrating to the (respondents) that the (appellants) were capable of producing the advertising material ... `.

5 On the pleadings, the first question which must be determined was whether there was an oral contract between the parties on 27 February 1985. The appellants called only one witness - one Loy Chin Ah Loy (hereinafter called Loy Chin), the appellants` chief executive. At the close of the appellants` case, the ressubmitted that there was no case to answer, which submission was upheld by the learned district judge. The court below held that the appellants had not discharged the burden on them to establish their claim that there was a contract existing between them and the respondents on 27 February or 6 March 1985.

6 In his evidence Loy Chin said that on or about 27 February 1985 the appellants were requested by the respondents to design and produce a Potex publicity brochure and logotype design. He claimed that before this date the appellants and the respondents had had business dealings. Loy Chin said that on that day he met one Angela Lee, and another, Mathew Chan, at the respondents` premises, who made the request. Both informed Loy Chin that the respondents required the works to be done urgently. He said that they did discuss about price generally.

7 From the agreed bundle I noted that it was only on 29 January 1985 that the appellants introduced themselves to the respondents by way of a telephone conversation. This was followed by a letter dated 30 January 1985 wherein the appellants set out in brief their experience in the advertising and creative fields. There was a meeting on 1 February 1985 between Loy Chin and Angela Lee of the appellants and Connie Lim of the respondents. A presentation was made by Loy Chin and Angela Lee to Connie Lim on 12 February 1985. On that day certain designs were also forwarded by Loy Chin to Connie Lim for the respondents` retention (record of appeal p 79). The letter concluded in these words:

8 It would appear that nothing transpired until 27 February 1985 when there was a meeting between Connie Lim and Mathew Chan of the respondents and Loy Chin and Angela Lee of the appellants. This meeting was recorded in a letter dated 4 March 1985 from the appellants to the respondents (record of appeal p 80). In the letter the appellants stated:

9 and then went on to set out various aspects of work which the appellants would proceed to do.

10 The presentation was brought forward and carried out on 6 March 1985. This was followed by a letter of 8 March 1985 (record of appeal p 82) from the appellants to the respondents which began as follows:

11 The letter also stated that the appellants would expect to `make a preliminary photographic survey of your Potex factory on 9 March 1985, Saturday, to document more information on the range of Potex sanitary ware`. It then went on to quote the sum of $5 [per unit] (qualified by the words `expected to be`) for 10,000 copies of the Potex publicity brochure, inclusive of artwork, photography, printing and all necessary works to produce the brochure.

12 The letter ended with these two paragraphs on Potex logo design:

13 When asked about the professional charges, agency (ie appellants) indicated that our usual charge is $5,000. However, in conjunction with this publicity brochure, we would be happy to reduce the cost accordingly, depending on the amount of work involved.

14 The critical averment in the re-amended statement of claim of the appellants was that on 27 February 1985 there was an oral agreement for the appellants to undertake the tasks relating to the Potex publicity brochure and the design of the Potex logo and logotype for an estimated sum of $60,000. The letter of 4 March 1985 which recorded the meeting of 27 February 1985 did not support that contention at all: there was nothing to suggest that the respondents had engaged/commissioned the appellants to undertake the tasks. It seemed to indicate that the parties were still at an exploratory stage. There was no commitment and there certainly was no agreement on any price. Even taking the evidence of Loy Chin, only some prices were mentioned but that was all. As the re-amended statement of claim was based on an alleged oral agreement of 27 February 1985, the action must accordingly fail.

15 Even if one were to look at the situation on 6 March 1985, I am afraid the position was no better. Firstly, the appellants in their letter of 8 March 1985 (quoted above) referred to `the possibility of engaging our services`. Loy Chin tried to explain that the word `possibility` only concerned `related matters` and not the Potex publicity brochure. Like the learned district judge, I found this explanation unacceptable as it sought to draw a distinction not warranted at all by the letter. Secondly, the use of these words in the letter of 8 March 1985 `Professional charge could be reduced when this assignment (ie on logo and logotype) is undertaken in conjunction with the design of the brochure`, would again seem to suggest that nothing had been firmed up; not even the design and printing of the brochure. If there had been a firm commitment on the brochure, I would have expected the appellants to say something like this `as this assignment is related to the job on the brochure which we are now engaged to design/produce for you, we would be prepared to reduce our professional charges etc`. Thirdly, I would say that the words ` expected to be $5 per unit cost` in the letter of 8 March 1985 were again suggestive of something under negotiation.

16 Therefore, in my judgment, even as of 6 March 1985 there was no evidence of a concluded contract between the appellants and the respondents covering the design and printing of the Potex publicity brochure and the design of the logo and logotype for an estimated sum of $60,000. To my mind the situation then was still unsettled: the parties were still discussing.

17 Finally, it is not without significance that even as late as on 11 March 1985 the appellants wrote in these terms:

18 Loy Chin tried to explain these words in his re-examination but in my opinion I did not think his explanation had helped to advance their case:

19 By no stretch of the imagination could a discussion amount to a commitment or a contract.

20 The learned district judge had heard the evidence and had in his grounds of decision fully analysed the evidence. There is really no basis for me to disagree with his conclusion that Loy Chin`s evidence was unsaand unreliable. Indeed, I agree with him.

21 In the court below the appellants` counsel, in replying to the respondents` submission of no case to answer, asked for a sum amounting to 60% of $60,000 on the basis of quantum meruit. The respondents` counsel objected to the claim on quantum meruit. He contended that that cause of action was never pleaded. The case as pleaded was based on the oral contract of 27 February 1985 at an estimated price of $60,000. He stressed that he might not have adopted the approach of submitting no case to answer if the claim was based on quantum meruit. Before me, counsel for the appellants had also raised this point. But I am afraid this submission must fail.

22 A party is bound by his pleadings and his case is confined to the issues raised on the pleadings: see London Passenger Transport Board v Moscrop [1942] 1 All ER 97 at p 105 per Lord Russell. I would also rely on this passage of Scrutton LJ in Blay v Pollard & Morris [1930] 1 KB 628 at p 634:

23 Equally pertinent is the statement of Sharma J in Janagi v Ong Boon Kiat [1971] 2 MLJ 196 :

24 There was nothing in the re-amended statement of claim to suggest that the appellants were suing on quantum meruit. Counsel for the appellants submitted that the first relief prayed for for work done and material supplied was in quantum meruit. I did not think that was correct. As formulated in the re-amended statement of claim, the entire action was based on the alleged contract, which the trial judge found never existed.

25 Counsel for the appellants then sought my leave to further amend the re-amended statement of claim to include an alternative claim based on quantum meruit. I had to disallow the amendment made at such a late stage as it would clearly prejudice the respondents to an irreparable extent. Obviously the respondents had made a submission of no case to answer (without calling any evidence) in accordance with the pleadings. I accepted the respondents` counsel`s contention that had the claim for quantum meruit been pleaded in the alternative the respondents would have taken another approach.

26 The question of whether there would have been any ground for the appellants to make a claim for any work done on the basis of quantum meruit was not before the learned district judge; neither was it before me. There are, of course, authorities to suggest that where a defendant requests a plaintiff to perform services in anticipation of a contract which does not materialize, there may be quasi-contractual liability on the defendant`s part to pay quantum meruit: see William Lacey (Hounslow) Ltd v Davis [1957] 2 All ER 712 and Brewer Street Investments Ltd v Barclays Woollen Co Ltd [1954] 1 QB 428. In view of the course the trial had taken, with the respondents electing not to call any evidence, it was certainly not open to me to make any ruling or comment on that question without hearing the other side of the story. This, in essence, was the reason why the amendment sought by the appellants had to be disallowed.

27 Appeal dismissed .