1 
Judgment:

2 Coram: K S Rajah JC

3 GROUNDS OF DECISION

4 

5 Evidence of Plaintiff's Director

6 

7 

8 Court: When was it first explained to you?

9 

10 It was put to him:

11 

12 

13 

14 Answer: I keep it secret. It is my business. I cannot tell others.

15 

16 

17 

18 The business agreement of 8 March 1991 is in the following terms:

19 BLUE STAR CRANE SERVICE PTE LTD

20 No. 36, STAGMONT RING

21 SINGAPORE 2572

22 TEL: 7627786, 7690927

23 PAGER NO: 5007163

24 Your reference:

25 Our reference: SALE & PURCHASE AGREEMENT Date: 8/3/91

26 BUYER:

27 BAN SENG LEE MOBILE PTE LTD

28 17A SURIN AVE, SINGAPORE 1953 (THE BUYER)

29 ATTN:MR SEAH TONG

30 SERIAL NO : J24267

31 YEAR MADE : 1982

32 BOOM : 30M

33 FLY JIB : 12M

34 AGGREGATE PRICE: S. DLRS ONE HUNDRED FORTY-THREE THOUSAND ONLY.

35 

36 OTHER TERMS : NO WARRANCE TERMS WHATSOEVER ARE GIVE.

37 THE BUYER BY

38 Signed

39 THE SELLER BY

40 Signed

41 BAN SENG LEE MOBILE PTE LTDBLUE STAR CRANE SERVICE PTE LTD

42 Delivery Date

43 

44 

45 

46 Question: What did you do when you discovered that there was no fly jib?

47 

48 

49 Your Ref:

50 Our Ref: Date: 25th April 1991

51 Blue Star Crane Service Pte Ltd No. 36, Stagmont Ring Singapore 2572

52 Attention: Mr Lim

53 Dear Sir,

54 Re: Crawler Crane 335AS

55 

56 Kindly take note that you still owe us the fly-zib (sic) of the above truck.

57 Yours faithfully,

58 BAN SENG LEE MOBILE PTE LTD

59 Signed

60 SEAH TONG

61 

62 

63 Mitsuroyo Site

64 Yoneta inspected the crane that was delivered on 25 April 1991 and found no fly jib.

65 

66 

67 

68 

69 

70 Advertisements

71 

72 Insurance

73 

74 

75 

76 

77 ... the Policy does not cover:

78 

79 Hire Purchase Agreement

80 

81 The text of the letter received from the DBS Finance is as follows:

82 DBSF cf 200/TLF/jm

83 26 April 91

84 Blue Star Crane Service Pte Ltd 36 Stagmont Road Singapore 2572

85 Attn:Mr Lim

86 Dear Sirs

87 NAME OF HIRER:

88 Ban Seng Lee Mobile Pte Ltd

89 EQUIPMENT MODEL:

90 1 used (1982) P & H 335AS Crawler Crane c/w 30 m boom and 12 m fly jib

91 Serial No:J24267

92 AMOUNT FINANCED:$117,600

93 

94 

95 Yours faithfully

96 Signed

97 TAN LAN FANG

98 CREDIT OFFICER

99 HP/LEASING DEPT

100 

101 Shimizu Agreement

102 

103 

104 Your Ref:

105 Our Ref: Date: 15th March 1991

106 Shimizu Corporation

107 10 Anson Road, #26-01, International Plaza, Singapore 0207.

108 Attention:Mr Yoneta

109 Dear Sir,

110 Re: Confirmation of 35 tons Crawler Crane Rental at Mitsuroyo Project

111 

112 Description - 35 tons P&H Crawler Crane

113 Boom - 30 m + 12 m fly jib

114 Commencement Date - 1st April 1991

115 Mob/Demob - S$1,000.00

116 Rental Rate with Operator - S$7,500.00

117 Overtime Per hour- S$30.00

118 Duration Period- 8 months subject to renewal

119 Working Hour per weekday - 8 hours (8 am - 12 pm, 1 pm - 5 pm)

120 Working Hour per weekend (Saturday) - 4 hours (8 am - 12 pm)

121 Working day per week - 5+ days (Monday - Saturday)

122 Working day per month - 26 days

123 Term of Payment- 30 days credit

124 Insurance (Operator/Machine) - On Ban Seng Lee A/C

125 Insurance (3rd Third Party/Others) - On Shimizu A/C

126 Cranage (Loading, Unloading,Assy, Disassy - On Ban Seng Lee A/C

127 Fuel, Lifting Gear, Ground Access - On Shimizu A/C

128 Kindly please confirm by signing and returning this letter to us as soon as possible.

129 Thank you.

130 Yours faithfully

131 BAN SENG LEE

132 I agreed the above condition MOBILE PTE LTD SHIMIZU CORPORATION

133 Signed

134 Signed

135 GINA SEAH Mr Yoneta

136 

137 Litigation

138 

139 

140 

141 Buy Back Offer

142 

143 

144 

145 

146 Seller's Rights

147 

148 

149 In Johnson v Agnew (H.L.(E.)) < 1980 > AC 367, Lord Wilberforce said (p. 400):

150 

151 

152 

153 In Clough Mill Ltd v Martin < 1984 > 3 All ER 982, the buyer paid the purchase

price before the seller's repossession and resale. The view was taken that a buyer must be

credited with such part payment for otherwise it would be recoverable by him as money paid

on a total failure of consideration.

154 

155 

156 Exemption Clause

157 

158 In this case, the defendant has done both by the defendant's Lim having read aloud the

8 March 1991 contract to the plaintiff's Seah Tong and the plaintiff who has signed the

contract cannot rely on the fact that the buyer has not understood, or even read the

contract. The issue of Seah Tong's not understanding or reading the contract or the clause

in question is immaterial (see L'Estrange v Graucob < 1934 > 2 KB 394) unless it can

be shown that the seller misrepresented the effect of the clause, fraudulently or

innocently, in which case the seller will not be able to rely on it. I find it difficult

to believe that Seah Tong after having asked for the agreement to be reduced into writing

did not notice the terms of the contract and that no reference was made to the agreement

of 8 March 1991 when the agreement of 15 March 1991 was drawn up by the plaintiff and

Shimizu for the use of the crane with the fly jib on 1 April 1991. The plaintiff had

equipment at his disposal and he was a known sub-contractor of Shimizu. The plaintiff

thought he had time and could manage. Seah Tong made an error of judgment to which the

defendant did not contribute except for the fact of fly jib coming in later but there is

affirmation of the contract at common law.

159 

160 Deliverable State

161 

162 Insurance

163 

164 

165 

166 I find as a fact:

167 (1) that the defendant was not told of the Shimizu contract;

168 (2) that rectification of the contract of 8 March 1991 is unnecessary;

169 (3) that there was no misrepresentation by the defendant;

170 (4) that the plaintiff took delivery of the crane after inspection;

171 (5) that the loss of the Shimizu contract could have been avoided if the plaintiff had

taken reasonable action and obtained a fly jib from Tat Hong. This is a question of fact

and not law (see Payzu Ltd v Saunders < 1919 > 2 KB 581);

172 (6) that the plaintiff was not reasonable;

173 

174 

175 (9) that the defendant's Lim was a more credible witness.

176 

177 

178 2. The plaintiff's claim be dismissed with costs.

179 3. Defendant given leave to withdraw the $15,000 paid into court on 25 May 1993.

180 

181