1 This dispute concerns a development known as Northstar @ AMK (the “Building”). ¹ The management corporation of the Building brings this action against both the developer of the Building and the main contractor in respect of a number of alleged defects. The claim against the developer is brought on behalf of the subsidiary proprietors of strata title lots in the Building ² and alleges various breaches by the developer of the sale and purchase agreements (“SPAs”) between the developer and the subsidiary proprietors. The claim against the main contractor is a claim in tort which the management corporation brings in its own capacity. The management corporation also pursues a claim in contract against the main contractor based on alleged breaches of various warranties given by the main contractor to the developer and later assigned to the management corporation.

2 The Building is a nine-storey commercial building. ³ It comprises a total of 654 light industrial units and offices.

3 Management Corporation Strata Title Plan No. 3556 (the “MCST”) is the management corporation of the Building and the plaintiff in this action. ⁴

4 Orion-One Development Pte Ltd (“Orion-One”) is the developer of the Building and is the first defendant in this action. It has been in members’ voluntary liquidation since May 2014. ⁵

5 Sanchoon Builders Pte Ltd (“Sanchoon”) was Orion-One’s main contractor in the construction of the Building ⁶ and is the second defendant in this action. Sanchoon in turn engaged various sub-contractors. ⁷

6 Sanchoon and its sub-contractors jointly provided several warranties to Orion-One (the “Warranties”). The Warranties covered various aspects of the Building, such as its cladding, waterproofing and roof. ⁸ Orion-One purports to have assigned the Warranties to the MCST by a deed of assignment dated 22 November 2013 (the “Deed”). ⁹ As I explain later (see [87]–[89] below), the effect of the Deed is disputed.

7 The Temporary Occupation Permit for the Building was issued in July 2009. The Certificate of Statutory Completion was issued in December 2009. ¹⁰ Orion-One handed over management of the Building to the MCST in November 2010. ¹¹

8 In or around February 2012, the chairman of the MCST, Mr David Ong, began to notice defects in the Building. These defects included cracks in the walls, water seepage, and water ponding. ¹² Mr David Ong instructed the MCST’s managing agent to compile a list of defects. ¹³ This list of defects was then sent to Orion-One. ¹⁴ A joint inspection of the Building was conducted in October 2012. ¹⁵

9 Following the joint inspection, Sanchoon carried out works to rectify the defects. ¹⁶ The MCST and certain subsidiary proprietors remained dissatisfied even after the rectification. The MCST passed a special resolution in January 2014 authorising litigation against Orion-One. ¹⁷ The MCST commenced this action in June 2014.

10 The issues to be decided in this action are:

11 The MCST’s claim against Orion-One is a contractual claim founded on the SPAs between Orion-One and those subsidiary proprietors of the Building who are participating in this action. ¹⁸ The MCST represents these subsidiary proprietors in a claim against Orion-One as permitted under s 85(1) of the Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed) (the “BMSMA”).

12 The effect of s 85(1) is purely procedural. It does not confer upon a management corporation any cause of action in its own right. All that s 85(1) does is to facilitate an action by a large number of subsidiary proprietors in a development by allowing the management corporation to sue on their behalf, thereby avoiding having to name all of the participating subsidiary proprietors as parties to the action. The substantive parties to an action brought by a management corporation in reliance on s 85(1) remain at all times the individual subsidiary proprietors who have authorised the management corporation to act on their behalf. A management corporation which relies on s 85(1) is therefore required to identify the specific subsidiary proprietors whom it claims to represent in the action by naming them individually in an annex to its statement of claim: Management Corporation Strata Title Plan No 3322 v Mer Vue Developments Pte Ltd [2016] 4 SLR 351 at [18]–[19] and Management Corporation Strata Title Plan No 2297 v Seasons Park Ltd [2005] 2 SLR(R) 613 (“Seasons Park”) at [14]–[18].

13 The MCST has duly identified the specific subsidiary proprietors whom it claims to represent in this action in an annex to its statement of claim. I shall refer to that group of subsidiary proprietors as the “participating subsidiary proprietors”. The MCST has attempted to prove its authority to represent the participating subsidiary proprietors by adducing letters of authorisation (“LOAs”) signed by each of them. The MCST closed its case at trial without calling any of the participating subsidiary proprietors, other than Mr David Ong, to give evidence.

14 Orion-One took the following objections to the LOAs:

(a) The LOAs are hearsay and therefore inadmissible. ¹⁹

(b) 28 of the LOAs are not signed by all of the joint subsidiary proprietors of the unit in question. ²⁰

(c) 76 of the LOAs are either undated or are dated after the MCST commenced this action. ²¹

(d) 123 of the LOAs are signed by employees or directors of subsidiary proprietors who are corporations but without adducing any proof of the employees’ or directors’ authority to sign those LOAs on behalf of the corporate subsidiary proprietor. ²²

(e) The jurats of the affidavits of evidence in chief of eight subsidiary proprietors does not record that the affidavits were translated to their deponents, even though those deponents do not understand English. ²³

(f) Two LOAs contain certain discrepancies. ²⁴

15 Orion-One also took issue with the standing of certain participating subsidiary proprietors to bring an action in contract against Orion-One for the following reasons: ²⁵

(a) The names of the participating subsidiary proprietors for 13 units do not match the names of the purchasers set out in the SPAs for those 13 units.

(b) Eight of the participating subsidiary proprietors have since transferred their units to third parties, who have no contract whatsoever with Orion-One.

(c) The SPA for #07-27 is incomplete.

I deal with these objections in turn.

16 As I have mentioned, the MCST included the LOAs in the agreed bundle, but closed its case at trial without calling any of the subsidiary proprietors who executed the LOAs to prove the LOAs and give evidence. Orion-One consistently took the point, both before and after the MCST closed its case at trial, that the LOAs were inadmissible hearsay. ²⁶ In response, the MCST applied in the course of the closing submissions: ²⁷ (i) for permission to reopen its case and to file affidavits of evidence in chief from the participating subsidiary proprietors exhibiting their respective LOAs; and (ii) to dispense with cross-examination of the participating subsidiary proprietors.

17 At the hearing of the MCST’s application, I accepted Orion-One’s argument that the LOAs were inadmissible hearsay. I nevertheless granted the MCST leave to reopen its case and to file affidavits of evidence from the participating subsidiary proprietors exhibiting their respective LOAs. ²⁸ I now set out the reasons for my decision.

18 In the discussion which follows, I leave aside the LOAs executed by Mr David Ong. He filed an affidavit of evidence in chief and testified at trial, before the MCST closed its case. He therefore gave direct evidence of the contents of his LOAs within the meaning of s 62(1) of the EA. His LOAs are not inadmissible hearsay.

19 In response to Orion-One’s hearsay objection, the MCST argued that the LOAs were not hearsay because:

(a) The MCST relied on each LOA only to prove that the statement in the LOA (that the subsidiary proprietor signing the LOA had authorised the MCST to bring this action on his behalf) was made, and not as proof of the truth of the statement in the LOA. ²⁹

(b) Further or in the alternative, the LOAs fell within the exception to the rule against hearsay which is set out in s 32(1)(b)(iv) of the Evidence Act (Cap 97, 1997 Rev Ed) (the “EA”). ³⁰

(c) Further or in the alternative, the LOAs fell within the exception to the rule against hearsay which is set out in s 32(1)(k) of the EA. ³¹

(d) In any event, Orion-One had waived its right to object to the admissibility of the LOAs. ³²

20 I did not accept any of the MCST’s arguments on this point.

21 First, it is true that evidence which is adduced to prove that an out-of-court statement was made (and not to prove the truth of the contents of that statement) is not within the hearsay rule: Saga Foodstuffs Manufacturing (Pte) Ltd v Best Food Pte Ltd [1994] 3 SLR(R) 1013 at [11]. But the MCST adduced the LOAs not to prove that the out-of-court statements in the LOAs were made. For the MCST to represent a subsidiary proprietor in this action, it has to prove that it has authority from that subsidiary proprietor to do so. In other words, the MCST has to prove the truth of the statements in that subsidiary proprietor’s LOA, i.e. that that subsidiary proprietor did authorise the MCST to represent him. It is not sufficient for the MCST simply to prove that the subsidiary proprietor made a statement to that effect. The MCST has to prove that the subsidiary proprietor in fact authorised the MCST to represent them in this action.

22 Second, the LOAs did not fall under s 32(1)(b)(iv) of the EA. Section 32(1)(b) of the EA renders a hearsay statement admissible if it is made by a person in the ordinary course of a trade, business, profession or other occupation. To fall within this exception, the statement must have been made in the course of transactions performed in one’s habitual relation with others and as a material part of one’s mode of obtaining a livelihood: Bumi Geo Engineering Pte Ltd v Civil Tech Pte Ltd [2015] 5 SLR 1322 (“Bumi Geo”) at [105]. The rationale for this hearsay exception is that a statement made in the ordinary course of a trade, business, profession or other occupation is a record of historical fact made from a disinterested standpoint and may therefore be presumed to be true: Bumi Geo at [104]. The LOAs do not fall within s 32(1)(b)(iv) of the EA. Preparing the LOAs was not a material part of the MCST’s mode of business. Further, the rationale underpinning s 32(1)(b)(iv) does not apply to the LOAs. The LOAs were prepared for the sole purpose of this litigation. They were therefore not a record of historical fact made from a disinterested standpoint.

23 Third, the LOAs do not fall within s 32(1)(k) of the EA. Section 32(1)(k) renders a hearsay statement admissible if the parties so agree. The MCST argues that Orion-One agreed that the LOAs would be admissible within the meaning of s 32(1)(k) because it agreed to include the LOAs in the agreed bundles prepared for trial. ³³ But agreement to include a document in an agreed bundle is an agreement only to dispense with formal proof of the document (ie, proof of the document by primary or permissible secondary evidence). It is not agreement as to the truth of the contents of the document: Jet Holding Ltd and others v Cooper Cameron (Singapore) Pte Ltd and another and other appeals [2006] 3 SLR(R) 769 (“Jet Holding”) at [44].

24 Fourth, Orion-One did not waive its right to object to the admissibility of the LOAs. The MCST argues that Orion-One did waive its right to object because: ³⁴

(a) Orion-One consented to the MCST including the LOAs in the agreed bundle.

(b) Orion-One did not file a notice of non-admission of document under O 27 r 4(2) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (the “Rules”).

(c) Orion-One did not aver or disclose any evidence to suggest that the LOAs should not be taken at face value, e.g. evidence which suggests that the subsidiary proprietors were unaware of the consequences of signing the LOAs or did so under duress or in ignorance.

(d) Orion-One did not cross-examine Mr David Ong, the only subsidiary proprietor whom the MCST actually called as a witness, on the accuracy or the contents of his LOAs.

25 These arguments are without merit. Orion-One’s agreement to the MCST including the LOAs in the agreed bundle does not constitute Orion-One’s agreement that the LOAs be admitted in evidence without calling the makers. Neither does Orion-One’s failure to file a notice of non-admission under O 27 r 4(2) of the Rules constitute agreement that the LOAs be admitted at trial. Order 27 rule 4 states:

A party’s failure to file a notice of non-admission results only in the party being deemed to admit the authenticity of the document. It has no bearing on the right of the party to object to the admissibility of the document, as expressly stated in the portion of O 27 r 4(1) italicised above.

26 I further reject the MCST’s objection that Orion-One cannot take the admissibility point because it did not aver or disclose any evidence to suggest that the LOAs should not be taken at face value. The burden of proving the MCST’s authority to represent the subsidiary proprietors rests on the MCST. To discharge this burden, the MCST has to adduce admissible evidence of its authority. It is not Orion-One’s duty to inform or remind the MCST that it cannot discharge this burden by attempting to rely on inadmissible evidence. And Orion-One’s omission to do so is most definitely not a waiver of its right to object to the LOAs as hearsay.

27 In any case, Orion-One consistently indicated that it objected to the LOAs as being inadmissible hearsay before the MCST closed its case at trial. First, in its pleaded defence, Orion-One put the MCST to “strict proof” of its authority to act for the subsidiary proprietors. ³⁵ There is, of course, no difference between a plea which puts a party to “proof” as to a particular fact and a plea which puts a party to “strict proof” of that fact. Be that as it may, this plea put the MCST on notice that Orion-One would require the MCST to prove its allegations of authority at trial. And the MCST could not have understood Orion-One’s plea as agreement that MCST could meet the plea by inadmissible evidence. Second, Orion-One stated in its opening statement that “[g]iven that the subsidiary proprietors have not given evidence on these LOAs, [Orion-One] will show that these LOAs are purely documentary hearsay”. ³⁶ In these circumstances, Orion-One cannot be said to have waived its right to object to the admissibility of the LOAs.

28 Finally, I reject the MCST’s objection that Orion-One did not cross-examine Mr David Ong, the only subsidiary proprietor called by the MCST as a witness, on the contents of his LOA. Orion-One is perfectly entitled to hold the view that the Mr David Ong’s LOA is admissible while also holding the view that the other subsidiary proprietors’ LOAs are inadmissible, lacking “the sanction of the tests applied to admissible evidence, namely the oath and cross-examination”: Jet Holding at [74] citing Sir John Woodroffe & Syed Amir Ali’s Law of Evidence (Butterworths, 17th Ed, 2001) vol II at p 1726.

29 I granted the MCST leave to reopen its case and to file an affidavit of evidence in chief for each participating subsidiary proprietor. In effect, this gave the MCST an opportunity to rectify its case by adducing fresh evidence after it had closed its case in order to render the LOAs admissible. I did not, however, dispense with their attendance for cross-examination.

30 It was common ground between the parties that I had the discretion to allow the MCST to adduce additional evidence even after it had closed its case: ³⁷ see, for example, Prince Court Medical Centre Sdn Bhd v Germguard Technologies (M) Sdn Bhd [2016] 4 MLJ 1 at [9] and Sykes v Sykes (1995) 6 BCLR (3d) 296 at [9]. I exercised my discretion in favour of allowing the additional evidence for the following reasons.

31 First, Orion-One’s objection to the admissibility of the LOAs was a highly technical objection. I have found that the objection was well-founded. And it no doubt resulted from a fundamental error by counsel for the MCST. However, the objection carried very little in terms of substance. More importantly, it seemed to me that the objection, well-founded as it was, was not conducive to determining the real matter in controversy in this action, which is whether Orion-One breached the SPAs. In my view, it was appropriate to exercise my discretion in favour of the MCST in order to allow the real matter in controversy in this action to be decided. As Bowen LJ stated in his dissenting judgment in Cropper v Smith (1884) 26 Ch D 700 at 711:

32 Second, although Orion-One’s objection was well-founded and resulted from counsel’s error, the consequence to the MCST of shutting out the additional evidence was out of all proportion to the gravamen of the objection and to the seriousness of the error. If I had declined to allow the MCST to reopen its case, the LOAs would be inadmissible hearsay. The MCST would thus have been unable to prove its authority to act for the subsidiary proprietors (other than the 58 subsidiary proprietors who voted in favour of the special resolution authorising the MCST to commence litigation against Orion-One: ³⁸ see Seasons Park at [19]–[20]). The MCST’s entire claim against Orion-One would fail solely because of counsel for MCST’s error in failing to render the LOAs admissible. I did not think it just for the subsidiary proprietors to be deprived of their entire claim against Orion-One solely by reason of counsel’s error. Nor did I think it just to shift the economic burden of that claim, insofar as it was well-founded, from Orion-One to the MCST’s solicitors’ professional indemnity insurers.

33 Third, allowing the MCST to reopen its case in these circumstances raised only a single, narrow issue relating to the MCST’s authority to represent the subsidiary proprietors. Doing so did not expand the range of issues to be determined at trial. In particular, doing so did not require the pleadings to be amended and did not require discovery to be re-visited. It also appeared to me that, with proper use of the notice to admit procedure, the MCST could ensure that Orion-One was judicious in choosing which of the subsidiary proprietors it wished to cross-examine on their affidavits of evidence in chief. The entirely justified concerns about the effect of allowing a party to reopen its case on the judicial goal of disposing of civil litigation justly and expeditiously, as highlighted in Wee Soon Kim Anthony v UBS AG [2003] 2 SLR(R) 554 (“Anthony Wee”) at [17]–[18], were therefore attenuated in this case.

34 Finally, I was not satisfied that Orion-One would suffer any prejudice for which it could not be compensated by costs if I were to allow the MCST to reopen its case. Orion-One argued that it would suffer irremediable prejudice because: (i) there would not be a just and expeditious disposal of this action; (ii) the MCST would be allowed to tailor its evidence to meet Orion-One’s case; and (iii) the MCST would be given a second bite of the cherry because its claim against Orion-One would otherwise have been dismissed. I did not accept any of these three arguments. First, as I have stated above, allowing the MCST to reopen its case involved only a single, narrow issue which was very easily addressed. The delay caused by allowing the MCST to reopen its case would thus not be so severe that Orion-One could not be compensated for it by costs. Allowing the MCST to reopen its case would also not allow it to tailor its evidence to meet Orion-One’s case. The MCST was not seeking an opportunity to put in additional evidence of primary, historical fact to fill in gaps in its substantive case which had been exposed at trial by cross-examination or by the evidence of Orion-One’s factual or expert witnesses. The MCST was seeking an opportunity only to put in evidence of secondary, procedural fact which was necessary under s 106 of the EA to allow evidence which the MCST had already placed before the court to be rendered admissible. Finally, although allowing the MCST to reopen its case would give it a chance to rectify a potentially fatal defect in its claim against Orion-One, like Bowen LJ in Cropper v Smith (see [31] above), I did not consider depriving Orion-One of a technical advantage arising from a procedural defect caused by a genuine error to be a form of prejudice for which it could not be compensated by costs.

35 The MCST thus arranged for 151 subsidiary proprietors to file affidavits of evidence in chief. ³⁹ Orion-One dispensed with the cross-examination of 127 subsidiary proprietors. It sought to cross-examine only the remaining 24. ⁴⁰ Of these 24, two (Foo Su Mei and Leong Kay Peng) did not attend for cross-examination. ⁴¹ It is not necessary for me to decide whether the LOAs of these two subsidiary proprietors are admissible despite their failure to attend for cross-examination, because the MCST’s authority to represent them is flawed for other reasons (see Annex A).

36 The MCST argues that, because Orion-One did not ask to cross-examine 127 out of the 151 subsidiary proprietors, it cannot challenge the affidavits of evidence in chief of these 127 subsidiary proprietors pursuant to the rule in Browne v Dunn (1893) 6 RJ 67 (“Browne v Dunn”). I disagree. The rule in Browne v Dunn is not a rigid, technical rule. It is not to be applied mechanically in order to require every single point in a party’s case to be put to every opposing witness. The rule is ultimately a rule of fairness to the witness, nothing more. The rationale of the rule is to give a witness an opportunity to offer a response to allegations made against the witness: Asnah bte Ab Rahman v Li Jianlin [2016] 2 SLR 944 at [115]. Orion-One’s objections to the LOAs of these 127 subsidiary proprietors are primarily that these LOAs either: (i) were not signed by all joint subsidiary proprietors; or (ii) were signed by employees or individual directors of company-subsidiary proprietors with no evidence of their authority to do so. It would not have served any purpose whatsoever for the defendants to have insisted on these 127 subsidiary proprietors taking the time and expense to attend court, taking the stand and taking the oath or affirmation simply to put formally these points to the 127 subsidiary proprietors. This is because, at best, each subsidiary proprietor could respond only by saying that he was given authority to sign the relevant LOA by his joint subsidiary proprietor or by the company-subsidiary proprietor. But an assertion of this nature coming from the party signing the LOA is valueless. An agent cannot give himself authority (Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd and another and another appeal [2011] 3 SLR 540 (“Skandinaviska”) at [59]). And an agent can give only hearsay evidence that the principal has clothed him with authority.

37 Orion-One objects to 28 of the LOAs on the basis that they are not signed by all of the joint subsidiary proprietors of a particular unit. The MCST argues that there is no requirement for all joint subsidiary proprietors to sign a LOA. ⁴² It is instead sufficient for one joint subsidiary proprietor to sign the LOA, because “[e]ach individual [subsidiary proprietor], be it held as joint tenancy or tenancy in common, has a full legal right/ownership over the property”. ⁴³ Further, according to the MCST, the parties to each SPA intended for joint subsidiary proprietors to have joint and several rights and obligations under the SPA. ⁴⁴ A single joint subsidiary proprietor can therefore exercise his personal contractual rights under the SPAs. Alternatively, the MCST argues that the joint subsidiary proprietors who signed the LOAs had implied authority from the other joint subsidiary proprietor to do so. ⁴⁵

38 I reject the MCST’s arguments. The MCST relies on s 85 of the BMSMA as its basis to represent the subsidiary proprietors in this action. ⁴⁶ Section 85 of the BMSMA allows a management corporation to represent “subsidiary proprietors” in proceedings. “Subsidiary proprietor” is defined in s 2(1) of the BMSMA as having the same meaning as is ascribed to that term in the Land Titles (Strata) Act (Cap 158, 2009 Rev Ed) (the “LTSA”). Section 3(1) of the LTSA defines a subsidiary proprietor as, inter alia, “the registered subsidiary proprietor for the time being of the entire estate in a lot” [emphasis added]. A single tenant in common is not a proprietor of the entire estate. The definition of “subsidiary proprietor” in the LTSA thus does not include a single tenant in common: Goh Teh Lee v Lim Li Pheng Maria and others [2010] 3 SLR 364 (“Goh Teh Lee”) at [16]. It is thus not sufficient for a single tenant in common to authorise the MCST.

39 Similarly, although a joint tenant owns the whole of the estate together with the other joint tenants, “each and every joint tenant must partake in any dealings with the whole legal estate before such dealings may effectively bind the entire estate”: Goh Teh Lee at [17]. It is thus also not sufficient for a single joint tenant to authorise the MCST.

40 Given that the MCST’s basis for bringing this action on behalf of the subsidiary proprietors is s 85 of the BMSMA and is not contractual, ⁴⁷ it is irrelevant whether the SPAs created joint rights or several rights where Orion-One’s counterparty was more than one purchaser. In any event, the MCST has not proven that the SPAs created several rights for co-owners. The MCST relies on cl 1.1.5 of the SPAs as evincing such an intention. Clause 1.1.5 states “[i]f there is more than one vendor or more than one purchaser, the obligations which they undertake under this Agreement can be enforced against them all jointly or against them individually”. ⁴⁸ At most, cl 1.1.5 indicates an intention for the parties to the SPA to be liable severally in addition to being liable jointly. It says nothing about rights vesting in the purchasers severally rather than or in addition to rights vesting in them jointly.

41 Finally, I do not accept the MCST’s submission that each joint subsidiary proprietor who signed an LOA had implied authority from the joint subsidiary proprietors who did not sign the LOA. The MCST relies on the testimony of some of the signing joint subsidiary proprietors that the non-signing joint subsidiary proprietors gave authority to execute the LOAs on their behalf. ⁴⁹ The MCST further argues that “the relationship between co-owners may also imply the agency relationship between co-owners, such that any one of the co-owners will be the agent to the other(s) and hence may have the usual and ostensible authority”. ⁵⁰

42 As noted earlier, an assertion by a joint subsidiary proprietor that another joint subsidiary proprietor authorised him to execute the LOAs on behalf of their other co-owners is either valueless as an agent cannot give himself authority: Skandinaviska at [59] or is inadmissible hearsay.

43 As for the MCST’s argument on the relationship between joint subsidiary proprietors, the MCST has cited no authority to support its assertion that there is an agency relationship between them. A relationship of agency is a fiduciary relationship that arises when one person (the principal) manifests assent to another person (the agent) acting on the principal’s behalf, and the agent manifests assent so to act: Alwie Handoyo v Tjong Very Sumito and another and another appeal [2013] 4 SLR 308 at [147]. I cannot see how the relationship between joint subsidiary proprietors necessarily creates such assent for all the joint subsidiary proprietors inter se. Further, unlike s 5 of the Partnership Act (Cap 391, 1994 Rev Ed) which statutorily prescribes a relationship of agency between partners, there is no equivalent provision governing the relationship between joint subsidiary proprietors. The MCST points to para 2(3) of the First Schedule to the BMSMA, ⁵¹ which states:

Even if para 2(3) creates a relationship of agency between joint subsidiary proprietors, this relationship is clearly limited to the context of voting at a meeting held by a management corporation.

44 Orion-One argues that LOAs must be executed before a MCST commences action, relying on Seasons Park and Management Corporation Strata Title Plan No 3322 v Mer Vue Developments Pte Ltd and others (King Wan Construction Pte Ltd and others, third parties) [2016] SGHC 28 (“Mer Vue (HC)”). ⁵² It thus argues that I should disregard the LOAs which are undated or which are dated after the MCST commenced this action. ⁵³

45 There is no requirement for a subsidiary proprietor to execute an LOA before the management corporation commences action on behalf of that subsidiary proprietor. What is required when a management corporation commences action is the means by which it is possible specifically to identify each subsidiary proprietor whom the management corporation represents: Seasons Park at [18]. This is necessary for two related reasons. First, to inform the defendants of the identity of each subsidiary proprietor who has authorised the management corporation to institute the claim on his behalf, allowing the defendant to meet the case against it. Second, it is necessary to ensure that there is no doubt as to whom the eventual judgment binds.

46 An LOA is not authority: it is simply evidence of authority. There is therefore no reason to require an LOA to be executed before a management corporation commences action, provided that the management corporation makes clear to the defendant whom the management corporation claims to represent. For its own protection, a management corporation may want to ensure that it has in hand documentary evidence of authority from each subsidiary proprietor it claims to represent before it commences action on that subsidiary proprietor’s behalf. But that is a matter between the management corporation and the subsidiary proprietor. As against the defendant, there is no basis to require the documentary evidence of authority to be executed before the management corporation commences action. As an example, it would be entirely legitimate for a management corporation to name in its statement of claim a subsidiary proprietor who has given it oral authorisation to represent him, and to document that oral authorisation later by a LOA which is executed after the commencement of the action. This is in fact what the MCST claims it did in this case: that it is merely using the LOAs as evidence of its authority, and that it obtained authority from the subsidiary proprietors before commencing this action. ⁵⁴ I do not understand the defendants to dispute this.

47 Further, neither Seasons Park nor Mer Vue (HC) require LOAs to be executed before the commencement of an action. Both Seasons Park and Mer Vue (HC) state that a management corporation must obtain authorisation from its subsidiary proprietors before commencing action. They do not go further to prescribe that authorisation must take the form of LOAs which must therefore be signed before the action is commenced. The Court of Appeal in Seasons Park (at [20]) agreed with the trial judge’s observation that:

Similarly, the court in Mer Vue (HC) said (at [42]):

I note that the court in Mer Vue (HC) highlighted the fact that some of the LOAs in that case were undated and that some others were dated “after the fact”. But I do not understand the court in Mer Vue (HC) to be laying down a rule that a management corporation must obtain a LOA before it may claim to represent a subsidiary proprietor in an action. As the court in Mer Vue (HC) noted, what is important is that authorisation be obtained from a subsidiary proprietor before the management corporation claims to represent it. This authorisation may be evidenced by a LOA executed later, “after the fact”.

48 Orion-One submits that LOAs signed by employees and individual directors of subsidiary proprietors who are companies should be disregarded. According to Orion-One, this is because an employee is not authorised to act for a company simply by virtue of being an employee. ⁵⁵ And the directors of a company are empowered to authorise a company to commence legal proceedings only if the directors act collectively as a board, unless the board has delegated such authority to an individual director. ⁵⁶ The MCST submits that it is entitled to rely on the “indoor management rule” laid down in Royal British Bank v Turquand [1843-60] All ER Rep 435 to assume that employees and directors were properly authorised to execute the LOAs on behalf of their companies. ⁵⁷

49 The indoor management rule is a presumption of regularity to be applied in concert with the rules of apparent authority. In other words, the indoor management rule entitles an outsider to rely on an agent’s apparent authority even if there is in fact some internal irregularity that vitiates the agent’s actual authority: Walter Woon on Company Law (Tan Cheng Han, ed) (Sweet & Maxwell, Revised 3rd Ed, 2009) at paras 3.38–3.40 and SAL Industrial Leasing Ltd v Hydtrolmech Automation Services Pte Ltd and others [1997] 3 SLR(R) 676 at [43]–[44].

50 The MCST is not entitled to rely on the indoor management rule in relation to the LOAs signed by employees and individual directors. This is because the employees and individual directors do not even have apparent authority to act on behalf their companies. The decision to bring an action in the name of a company falls within the purview of the company’s board of directors: Chan Siew Lee v TYC Investment Pte Ltd and others and another appeal [2015] 5 SLR 409 at [59]. Therefore, in the absence of proof to the contrary, an employee and an individual director do not have apparent authority to sign an LOA. The MCST relies solely on the fact that the employees and individual directors signed the LOAs to argue that they had apparent authority to do so. But an agent cannot give himself authority: Skandinaviska at [59]. The indoor management rule thus does not apply to permit the MCST to rely on the LOAs signed by employees and individual directors of company subsidiary proprietors.

51 Having said that, I note that Orion-One has not only objected to LOAs signed by employees and individual directors of company subsidiary proprietors, but also to LOAs stamped with the rubber stamps of company subsidiary proprietors. Orion-One’s objections to the stamped LOAs are unfounded. The company stamp represents the company signing the LOA. The MCST can rely on these LOAs as the companies have the authority to authorise the MCST to represent them in litigation. And any lack of actual authority on the part of the persons who stamped the LOAs can be defeated by the indoor management rule, as persons with access to the company stamp have apparent authority to represent the company.

52 Orion-one seeks to invalidate eight affidavits of evidence in chief on the basis that their jurats do not record that they were translated to their deponents, who do not understand English. ⁵⁸ Orion-One argues that these affidavits of evidence in chief do not comply with O 41 r 1(7) and (8) and Form 78 of Appendix A of the Rules and should therefore be rejected, relying on Fung Yuk Lien v Foong Chee Sam (as administrator of the estate of Kong Muk Tei, deceased) [2000] 3 MLJ 543. ⁵⁹

53 It is not necessary for me to decide whether these affidavits of evidence in chief are irregular and should be rejected. The MCST’s claim to represent seven of the eight units (ie #B1-05, #01-04, #01-23, #01-52, #05-01, #09-93, and #09-95) is already defeated by the fact that the LOAs for those units were not signed by all of the joint subsidiary proprietors (see Annex A). Whether the affidavits of evidence in chief of the subsidiary proprietors in respect of each of those units is irregular is thus immaterial. As for the remaining unit (ie #04-10), the affidavit of evidence in chief in question was affirmed by Mr Lee Wee Foon, who took the stand to be cross-examined. ⁶⁰ Because Mr Lee appeared as a witness, the LOA in respect of #04-10 has been proven and is admissible. In light of his direct, oral evidence, it is no longer necessary for the MCST to rely on Mr Lee’s affidavit of evidence-in-chief to render his LOA admissible. As a result, whether Mr Lee’s affidavit of evidence-in-chief is irregular is also immaterial.

54 Orion-One has highlighted certain discrepancies between the names of the participating subsidiary proprietors as listed in the annex to the statement of claim and as set out in the LOAs. First, the subsidiary proprietor for #03-46 is listed in the annex to the statement of claim as FS-3D Support Solutions Pte Ltd. But the LOA for the unit was executed by FS-3D Project Supplies Pte Ltd. ⁶¹ Second, the subsidiary proprietors for #08-107 are listed in the annex as Ng Eng Huat and Ng Hui Enn. But the LOA for the unit is executed by Lim Lee Huat. ⁶²

55 These discrepancies are immaterial. Order 20 rule 5(3) of the Rules allows an amendment to correct the name of a party at any stage of the proceedings. Such an amendment may be made even if the effect of the amendment would be to substitute a new party and even if the claim is time-barred, provided the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or did not cause any reasonable doubt as to the identity of the person intending to sue. Both discrepancies highlighted by Orion-One constitute mere misnomers and are within the scope of this rule.

56 FS-3D Support Solutions Pte Ltd is the former name of FS-3D Project Supplies Pte Ltd. Under s 28(6) of the Companies Act (Cap 50, 2006 Rev Ed), this change of name does not “affect the identity of the company or render defective any legal proceedings by or against the company”. A reference to a subsidiary proprietor by its former name is no different in law from a reference to it by its current name and is a reference to the same legal person. That suffices in itself to neutralise this alleged discrepancy. However, it is also the case that this change of name took place before ⁶³ the MCST commenced this action. The use of the former name for the proprietor of #03-46 is therefore clearly a mistake. Further, all the relevant documents such as the MCST’s strata roll ⁶⁴ and the land title transfer record ⁶⁵ (“LTT”) show the subsidiary proprietor of this unit under its current name. The LTT even states that FS-3D Project Supplies Pte Ltd was formerly known as FS-3D Support Solutions Pte Ltd. There thus could not have been any reasonable doubt as to the identity of the legal person whom the MCST represents in this action. That legal person is the subsidiary proprietor of #03-46, i.e. FS-3D Project Supplies Pte Ltd which is the same legal entity as FS-3D Support Solutions Pte Ltd.

57 Similarly, the discrepancy in respect of #08-107 is also a curable misnomer. The relevant documents such as the MCST’s strata roll ⁶⁶ and the LTT ⁶⁷ show the relevant subsidiary proprietor to be Lim Lee Huat. There thus could not have been any reasonable doubt as to the identity of the person whom the MCST represents in this action. That person is the subsidiary proprietor of #08-107: Lim Lee Huat.

58 In respect of 13 of the subsidiary proprietors, Orion-One argues that the MCST has failed to prove that Orion-One contracted with those subsidiary proprietors because the names of the subsidiary proprietors as set out in the annex to the statement of claim do not match the names as set out in the SPAs and the LTT. ⁶⁸

59 I reject Orion-One’s argument. The names as they appear in the annex to the statement of claim and in the SPAs are as follows: ⁶⁹

60 The inconsistencies in the names between the annex to the statement of claim, the SPAs and the LTTs arise mainly because details have been included such as the capacity in which the parties entered into the SPAs (eg as trustees or beneficiaries) or different Romanisations of Chinese names. The inconsistencies are so minor as to be de minimis. It is patent that the parties named in the annex to the statement of claim are the same as those in the SPAs and LTTs.

61 Orion-One argues that the MCST cannot represent subsidiary proprietors who have transferred their units to third parties. According to Orion-One, this is because s 85 of the BMSMA allows a management corporation to represent only a “registered subsidiary proprietor for the time being of the entire estate in a lot” [emphasis added] (see [38] above). ⁷⁰

62 I accept Orion-One’s argument. Once a subsidiary proprietor has transferred his unit he can no longer be considered to be a subsidiary proprietor “for the time being” of any estate in a lot, let alone the “entire estate”: see Seasons Park at [20]. Although some of the transfers were effected after the MCST commenced this action, ⁷¹ locus standi can be reassessed at any time before the court reaches a final determination: Vellama d/o Marie Muthu v Attorney-General [2013] 4 SLR 1 at [14].

63 Nevertheless, I do not accept that all eight of the units identified by Orion-One (ie, #03-46, #03-54, #04-09, #06-07, #06-08, #07-06, #08-64, #08-107) have undergone a change of ownership. ⁷² Specifically, I do not accept that the ownership of #03-46 and #08-107 has changed. Orion-One says that ownership of #03-46 was transferred from FS-3D Support Solutions Pte Ltd to FS-3D Project Supplies Pte Ltd. As explained earlier, FS-3D Project Supplies Pte Ltd is merely the new name of FS-3D Support Solutions Pte Ltd (see [56] above). There has been no change in ownership.

64 Similarly, Orion-One is wrong to say that ownership of #08-107 has been transferred from Ng Eng Huat and Ng Hui Enn to Lim Lee Huat. As the MCST admits, the annex to the statement of claim erroneously set out Ng Eng Huat and Ng Hui Enn as the subsidiary proprietors of #08-107. ⁷³ I have earlier corrected this mistake to reflect Lim Lee Huat as the subsidiary proprietor for #08-107 in the annex to the statement of claim (see [57] above). Lim Lee Huat has a SPA with Orion-One. ⁷⁴

65 Orion-One takes issue with the SPA for #07-27 as the MCST has disclosed only the first two pages of the SPA. ⁷⁵ Orion-One argues that it is not possible to discern, from those two pages, whether the SPA was for #07-27.

66 I reject this argument. The footers of the two pages shows that the two pages are part of the SPA for #07-27. ⁷⁶ This is consistent with the other SPAs, which also include the relevant unit numbers in their footers. ⁷⁷

67 After taking into account the objections raised by Orion-One which I accept, the MCST represents 186 subsidiary proprietors. The reasons for allowing or disallowing the MCST’s claim to represent the individual subsidiary proprietors can be found at Annex A.

68 Sanchoon argues that the MCST has no locus standi to sue Sanchoon because the subsidiary proprietors did not authorise the MCST to sue Sanchoon in their LOAs. ⁷⁸

69 I do not accept this argument. The MCST does not require authorisation from the subsidiary proprietors in order to sue Sanchoon. The MCST is suing Sanchoon: (i) in tort; and (ii) for breach of the Warranties. The MCST brings these claims in its own right and not on behalf of the subsidiary proprietors. A management corporation may bring claims in tort in respect of defects in common property pursuant to s 24(2)(b) of the BMSMA: RSP Architects Planners & Engineers v Ocean Front Pte Ltd and another appeal [1995] 3 SLR(R) 653 (“Ocean Front”) at [13]–[15]. ⁷⁹ Similarly, the Warranties were given to the MCST, ⁸⁰ which thus brings the claim for breach of the Warranties in its own name. The MCST brings these claims against Sanchoon in its own right. No authorisation to do so from the subsidiary proprietors is required.

70 The MCST’s capacity to sue Orion-One on behalf of the subsidiary proprietors and Sanchoon in tort is limited to proceedings in respect of common property: s 85(1) and s 24(2)(b) of the BMSMA. ⁸¹ The parties disagree on whether the following six areas constitute common property:

(a) balconies of the units; ⁸²

(b) railings mounted on the air-conditioning ledges of the units; ⁸³

(c) windows of the units; ⁸⁴

(d) pipes in the units; ⁸⁵

(e) walls dividing the units from the common corridors; ⁸⁶ and

(f) walkways between the balconies of the units. ⁸⁷

I shall refer to these six areas as the “Disputed Areas”.

71 An area that is demarcated as common property on a strata title plan is presumed to be part of the common property. It is for the party contending otherwise to prove that the strata title plan is erroneous, and that the area is not part of the common property as it does not fall within the definition of common property under s 2(1) of the BMSMA. Section 2(1) of the BMSMA defines common property as any area: (i) not comprised in any lot or proposed lot in that strata title plan; and (ii) which is used or is capable of being used or enjoyed by occupiers of two or more lots or proposed lots. These two requirements are to be read conjunctively: Sit Kwong Lam v Management Corporation Strata Title Plan No 2645 [2018] 1 SLR 790 (“Sit Kwong Lam”) at [37] and [42].

72 I find that the Disputed Areas are not part of the Building’s common property, save for any window in a unit: (i) which is located on one of the exterior walls of the Building; and (ii) which cannot be opened. The MCST has failed to prove that the other Disputed Areas are common property because it has failed to adduce the strata title plans in evidence. ⁸⁸ The effect of the MCST’s failure is twofold. First, the MCST cannot rely on the presumption that areas demarcated as common property in the strata title plans are common property. Second, whether the Disputed Areas satisfy the first limb of the definition in s 2(1) of the BMSMA – that the area is not comprised in any lot in the strata title plan – cannot be ascertained. As a result, the MCST has failed to prove that the Disputed Areas are common property.

73 The MCST argues that it is not required to adduce the strata title plans. It argues that it has discharged its burden by adducing registered surveyor’s certificates on strata area, ⁸⁹ found in the SPAs. ⁹⁰ I do not accept this argument for three reasons.

74 First, s 2(1) of the BMSMA stipulates that “strata title plan” in the BMSMA has the same meaning as in the LTSA. Section 3(1) of the LTSA defines a strata title plan as a plan of registered land which:

The certificates adduced by the MCST do not even satisfy the first statutory requirement: that the plan is described in its title or heading as a strata title plan. They therefore cannot assist the MCST in establishing that the Disputed Areas are part of the common property. The first limb of s 2(1) of the BMSMA requires that the area not be comprised in any lot or proposed lot in the relevant strata title plan.

75 Second, as highlighted in Sit Kwong Lam at [35], strata title plans are official documents which statutory significance, approved by the Chief Surveyor. Strata title plans are thus reliable, as they must be in order to create rights of property which bind the world. The same cannot be said for the certificates, which contain warnings that they are “for agreement only”, ie that they are only of contractual effect and even then only for the purposes of the SPAs. Further, cl 19 of the SPAs indicate that the certificates are not conclusive but are expressly subject to the strata title plans: ⁹¹

76 In any event, the certificates do not indicate that the Disputed Areas are common property. The certificates indicate only that the areas other than the units are common property, as can be seen from an example of the certificates set out at Annex B.

77 The MCST further relies on the definition of the units in the SPAs to argue that the railings mounted on the air-conditioning ledges of the units are common property. ⁹² I reproduce an example of the definitions: ⁹³

According to the MCST’s interpretation of this definition, because the registered surveyor’s certificates do not indicate that the air-conditioning ledges are part of the unit, they must therefore be part of the common property, as are the railings mounted on the air-conditioning ledges.

78 I reject this interpretation. The registered surveyor’s certificates are meant to indicate only the estimated floor area of the units, not whether the unit includes an air-conditioning ledge, carpark or terrace. This is obvious from the fact that the registered surveyor’s certificates do not even depict the different parts of the units such as their doors, windows, air-conditioning ledges, carparks or terraces. As can be seen from an example of the certificates set out at Annex B, the certificates are merely simple, rough sketches of the layout of the Building. The main purpose of the certificates is to indicate the floor area of the unit being sold and purchased, as is evident from cl 19.1 of the SPAs, reproduced at [75] above. In the example reproduced at [77] above, the SPA should thus be read as defining the unit to be the factory on the 6th floor comprising an estimated floor area of 181 square meters (as shown in the registered surveyor’s certificate on strata area, including air-conditioning ledge, carpark and terrace, where applicable).

79 Although the MCST has failed to adduce the strata title plans, I note that s 2(9) of the BMSMA creates a presumption that windows of a unit which are located on the exterior walls of the Building and which cannot be opened are common property, unless otherwise described in the strata title plans. The burden of proof of rebutting this presumption lies on the defendants. The strata title plans are lodged with the Registrar of Titles (see Sit Kwong Lam at [35]) and are publicly accessible upon payment of the prescribed fee. By omitting to adduce the strata title plans, the defendants have failed to discharge their burden on this particular subset of the Disputed Areas. I therefore find that windows of units which are located on the exterior walls of the Building and which cannot be opened are thus common property.

80 Finally, the MCST argues that it is entitled to recover compensation for damage to common property which is caused by defects within a strata title lot. ⁹⁴ I agree that s 85(1) and 24(2)(b) of the BMSMA are phrased broadly enough to allow the MCST to do so. Sections 85(1) and 24(2)(b) provide that the MCST may bring claims “with respect to the common property” and “in respect of any matter affecting common property”, respectively. They do not require that the defect be in the common property. There would also be no sense in requiring the defects to be in the common property before the MCST may pursue a claim. As the Court of Appeal noted in Ocean Front at [13]–[15], a management corporation has certain statutory obligations in respect of common property, such as the obligation properly to maintain the common property and to keep it in a state of good and serviceable repair (see s 29(1)(b) of the BMSMA). A management corporation should therefore be able to recover compensation for the cost and expense incurred in rectifying damage to common property, whether that damage is caused by a defect in the common property or a defect in a strata title lot.

81 What the MCST is most emphatically not permitted to do is to recover compensation from the defendants either for the cost of rectifying a defect in a strata title lot or of rectifying damage caused within the strata title lot by that defect. The MCST has attempted to invoke the inherent jurisdiction of the court to allow it to make such claims. It argues that the MCST must be allowed to recover compensation for this loss because the subsidiary proprietors “do not have any legal recourse against [Orion-One] and/or [Sanchoon] any more [sic]”. ⁹⁵ The first point I make is that the court has no inherent jurisdiction to disapply doctrines of the substantive common law, such as the doctrine of privity of contract, simply because of hardship in particular case. To suggest that it does is to subvert the whole framework of the common law and the doctrine of stare decisis. The further point I make is that that position must be a fortiori when the doctrine sought to be disapplied by an appeal to the court’s inherent jurisdiction is a statutory creation. The mere fact that a limitation period has expired cannot, obviously, be a sufficient justification to invoke the court’s inherent jurisdiction to circumvent it. If it were, the entire statutory body of law on limitation periods would be rendered otiose at a stroke. Finally, it is not at all clear why the MCST considers the subsidiary proprietors’ hardship in finding their claims time-barred outweighs the defendants’ hardship in being confronted by a stale claim by the back door. As the Court of Appeal noted in Lian Kok Hong v Ow Wah Foong and another [2008] 4 SLR(R) 165 at [2], citing Lord Scott of Foscote in Haward v Fawcetts [2006] 1 WLR 682 at [32]:

The MCST’s attempt to invoke the court’s inherent jurisdiction is misconceived fundamentally and on multiple levels.

82 The MCST argues that Orion-One has breached cl 10.1 of the SPAs: ⁹⁶

83 The parties disagree on what the standard of “good and workmanlike manner” requires. The MCST argues that it requires that: (i) the Building be safe for its occupants and visitors; ⁹⁷ (ii) the workmanship and materials used be reasonably fit for purpose; ⁹⁸ and (iii) the Building be free from defects or any defects be rectified to the satisfaction of the MCST. ⁹⁹ Orion-One argues that in respect of the common property, the standard of good and workmanlike manner requires merely that the common property be constructed according to the Specifications. ¹⁰⁰ It argues that there is no requirement that the common property be fit for purpose. ¹⁰¹ In the alternative, Orion-One argues that the standard of good and workmanlike manner requires that the works be carried out with care and skill. ¹⁰²

84 I find that the standard of good and workmanlike manner requires that the Building be constructed with proper care and skill: Stephen Furst and Vivian Ramsey, Keating on Construction Contracts (Sweet & Maxwell, 10th Ed, 2016) (“Keating”) at para 3-071. Where the Building is unsafe, is not reasonably fit for purpose, or is defective, it cannot be said to have been constructed with proper care and skill.

85 I reject Orion-One’s argument that its duty in respect of common property was merely to construct it according to the Specifications. According to Orion-One, the standard of good and workmanlike manner requires only that the common property be constructed in accordance with the Specifications because cl 1.1.1 of the SPAs, which are statutorily prescribed pursuant to s 7(1) of the Sale of Commercial Properties Rules 1999 (GN No S 4/1085) (the “SCP Rules”), defines a defect as “any fault in the Unit which is due to defective workmanship or materials or to the Unit, the Building or the common property, as the case may be, not having been constructed according to the Specifications”. ¹⁰³ Orion-One contrasts this definition with the definition found in the statutory contract for sale and purchase of residential properties (cl 1.1.1 of Form 4 of the First Schedule to the Housing Developers Rules 2008 (GN No S 2/1985) (the “HD Rules”)):

Orion-One thus argues that by providing different definitions of “defect” in the SCP Rules and the HD Rules, parliament intended to create a distinction between the obligations of developers of commercial property and residential property. ¹⁰⁴

86 I do not agree. The two definitions of “defect” provided in the SCP Rules and HD Rules respectively are included for the purposes of the provisions on the defect liability period. Throughout the SCP Rules and HD Rules, the word “defect” is only used in relation to provisions on defect liability periods. The definition of “defect” is not meant to define the scope of a developer’s duty under cl 10.1 of the statutorily prescribed SPAs. In other words, the fact that something does not fall within the definition of a “defect” under the SCP Rules means only that it does not engage the developer’s obligations within the defect liability period. It does not mean that it does not constitute a breach of the developer’s duty to build the property in a good and workmanlike manner. As stated in Halsbury’s Laws of Singapore vol 2 (LexisNexis, 2010 Reissue) at para 30.163, unless stated otherwise, a defect liability clause confers an additional right; it does not operate to remove liability for breach of contract at general law.

87 Orion-One argues that its obligation under the SPAs was discharged pursuant to cl 7 of the Deed. ¹⁰⁵ Clause 7 of the Deed states that the assignor, defined as the MCST, “releases and discharges [Orion-One] from any and all obligations relating to all matters arising out of or in connection with matters covered by the Warranties”.

88 The MCST argues that cl 7 does not apply because: (i) the purpose of a deed is to confer benefits, not obligations; ¹⁰⁶ and (ii) the MCST did not sign and deliver the Deed to Orion-One. ¹⁰⁷

89 It is unnecessary for me to decide whether cl 7 has any effect. This is because even if cl 7 applies, it applies as between Orion-One and the alleged assignor, the MCST. It cannot apply to discharge Orion-One of its obligations under the SPAs to the subsidiary proprietors, who are not even parties to the Deed. As noted earlier, in its contractual claim against Orion-One, the MCST merely represents the subsidiary proprietors in this action; the substantive parties to the contractual claim against Orion-One remain the subsidiary proprietors.

90 The defects alleged by the MCST fall into 13 broad areas:

I now consider whether the alleged defects in the above 13 areas constitute breaches of Orion-One’s obligation under the SPAs.

91 The MCST argues that the plasterwork at various areas in the Building is defective because there is:

92 The MCST argues that the shrinkage cracking is caused by incorrect plaster mix. ¹⁰⁸ Orion-One contends that the shrinkage cracking is common and can be painted over; ¹⁰⁹ and in any event, no tests were conducted to prove that the shrinkage occurred at the time of construction. ¹¹⁰ Sanchoon argues that no tests were conducted to prove that incorrect plaster mix was used. ¹¹¹

93 I accept that the shrinkage cracking is caused by lack of proper care and skill in the construction of the Building. First, Sanchoon’s own expert opines that the shrinkage cracking is a form of long-term drying shrinkage. ¹¹² The reference material relied upon by Sanchoon’s expert states that: ¹¹³

Errors in the “fundamental design or construction” of the Building constitute lack of proper care and skill at the time of construction. Second, even if shrinkage cracking is common and can be rectified by painting, shrinkage cracks are still defects, as is evident from the extracts from the reference material reproduced above.

94 The MCST argues that the dissimilar movement cracking in the Building is caused by the failure to follow the Specifications during construction. The Specifications require surfaces of dissimilar backgrounds which abut each other to be reinforced with galvanised steel strip mesh. ¹¹⁴ Orion argues that the Specifications require mesh only for surfaces of dissimilar backgrounds, and thus does not apply to parapet walls. ¹¹⁵ In any event, Orion contends that there is no evidence that no mesh was included. ¹¹⁶ Sanchoon argues that the use of metal mesh would only reduce but not eradicate dissimilar movement cracks. ¹¹⁷ Sanchoon further argues that no tests were carried out to prove that the cracks were caused by the lack of metal mesh. ¹¹⁸

95 I accept that the dissimilar movement cracks at surfaces with dissimilar backgrounds are caused by lack of proper care and skill in the construction of the Building. The Specifications expressly provide for these surfaces to be reinforced with metal mesh. ¹¹⁹ I do not consider it necessary for the MCST to remove the Building’s plasterwork to prove that metal mesh was not used. It is apparent from the photographs of the areas where the plaster has debonded that metal mesh was not used. ¹²⁰

96 The MCST has not, however, discharged its burden of proving that the dissimilar movement cracks at surfaces without dissimilar backgrounds are caused by a lack of proper care and skill. The MCST relies only on the Specifications to argue that metal mesh should have been inserted. But the Specifications require metal mesh to be inserted only for areas with dissimilar backgrounds. The MCST’s claim for the dissimilar movement cracks at the parapet walls (which are not dissimilar backgrounds) thus fails. ¹²¹

97 The MCST argues that the diagonal panel cracking at the roof area of the Building is caused by the use of aerated light concrete non-reinforced blocks instead of precast concrete blocks, as stipulated in the Specifications. ¹²² Orion argues that there was no such change of material and in any event, there is no difference between the two materials. ¹²³

98 I agree that there was no departure from the Specifications here. The change in material referred to by the MCST was in respect of the internal walls of the Building’s eighth and ninth storeys, and not the external walls at the roof. This is evident from Architect’s Instruction No 042. ¹²⁴ The MCST has thus failed to prove that the diagonal panel cracking was caused by a lack of proper care and skill.

99 The MCST argues that the debonded and debonding plaster is caused by: (i) poor workmanship; (ii) insufficient bonding between the plaster and the surface of the substrate material; and (iii) insufficient thickness of the plaster. ¹²⁵ Orion argues that no tests have been carried out to prove that the plaster was insufficiently bonded or was of insufficient thickness. ¹²⁶

100 I agree that the MCST has not proven that the plaster was insufficiently bonded or of insufficient thickness. The MCST does not even have an exact measurement of the thickness of the debonded plaster. It instead relies on a crude estimate, derived by reference to a person’s fingers in a photograph. ¹²⁷ As the reference material adduced by the MCST shows, there are multiple possible causes of debonded plaster, not all of which are related to lack of proper care and skill in construction. ¹²⁸ The MCST must therefore prove that the debonding was caused by a lack of proper care and skill in construction in order to succeed on this part of its claim. It has failed to do so.

101 The MCST argues that the cracks in the plasterwork have led to water ingress beneath the paint and plaster, resulting in flaking paint and discolouration. ¹²⁹ Orion argues that the paint finishes are satisfactory and in any event it is the duty of the MCST to carry out repainting of the Building at intervals of not more than 5 years. ¹³⁰ Sanchoon similarly argues that the paint finishes are satisfactory and in any event the current state of the paintwork is caused by wear and tear. ¹³¹

102 I agree that the MCST has not proven that the state of the paintwork is attributable to lack of proper care and skill in the construction of the Building. As the reference material adduced by the MCST shows, the primary cause of staining and discolouration of building façades is water. Water may originate from many sources: rain, ground water, embedded services and water introduced during the construction process. ¹³² For the MCST to succeed on this part of its claim it must therefore prove that the current state of the Building’s paintwork was caused by water introduced due to a lack of proper care and skill in construction. It has not done so.

103 The MCST argues that the various cracks in the plasterwork have caused water ingress and egress, resulting in moisture staining. ¹³³

104 The defendants are liable for the moisture staining caused by cracks which I have found to have been the result of a lack of proper care and skill (see [92]–[98] above).

105 The MCST argues that the dirt staining on the plasterwork is caused by poor detailing. ¹³⁴ Specifically, the MCST contends that a reasonably competent contractor would not construct horizontal ledges as they are more prone to dirt accumulation.

106 I reject the MCST’s argument. The construction of horizontal ledges, although less ideal than inclined ledges, ¹³⁵ cannot be said to be the result of lack of proper care and skill. As the reference material adduced by the MCST indicates, even inclined ledges are prone to dirt accumulation. ¹³⁶ It is the responsibility of the MCST to ensure that the ledges are routinely maintained to prevent dirt staining: s 29(1)(b) of the BMSMA.

107 The MCST has identified certain areas of the Building where the plasterwork and paintwork is patchy. ¹³⁷

108 The patching is the result of debonded plaster and paint, which I have dealt with above (see [99]–[100] above).

109 The MCST argues that the creation of grooves in the plaster of the Building’s walls has created points of weakness as the plaster is thinner there. ¹³⁸ According to the MCST, because the plaster is thinner in the grooves, it is more likely to crack and absorb rainwater there.

110 I reject the MCST’s argument. I accept Orion-One’s expert’s opinion that the grooves were included to control the cracking of the plasterwork. ¹³⁹ This function of the grooves is also supported by the reference material adduced by the MCST. ¹⁴⁰ The grooves are not the result of a lack of proper care and skill in construction.

111 The MCST argues that the paintwork on metal items (such as ductwork and pipework) at various areas in the Building is defective because the paintwork is flaking off. That, the MCST says, indicates either that no or incorrect primer was used. ¹⁴¹ Orion-One argues that the MCST should have carried out repainting works pursuant to reg 4 of the Building Maintenance and Strata Management (Lift and Building Maintenance) Regulations 2005. ¹⁴²

112 I accept the MCST and Orion-One’s experts’ evidence that the flaking paintwork on the metal items is a result of lack of proper care and skill. ¹⁴³ Although the MCST was obliged to carry out repainting works, the MCST’s obligation to do so does not negate the lack of proper care and skill in the painting of the metal items.

113 The MCST argues that the openings at various areas in the Building are defective because:

114 The MCST argues that flashings, projections, drainage tracks or canopies should have been installed at the Building’s openings. According to the MCST, the lack of such flashings, projections, drainage tracks or canopies has caused rainwater ingress, leading to corrosion and staining. ¹⁴⁴ The defendants argue that the lack of flashings, projections, drainage tracks or canopies is a design issue and the fault thus lies with the architects of the Building. ¹⁴⁵

115 It is common ground that the lack of flashings or projections requires rectification. ¹⁴⁶ I thus accept that the lack of flashings, projections, drainage tracks or canopies is the result of lack of proper care and skill, bearing in mind that drainage tracks and canopies perform similar functions to flashings and projections. ¹⁴⁷ It is irrelevant whether the lack of flashings, projections, drainage tracks or canopies is a design issue. Orion-One is liable under the SPAs for defects caused by lack of proper care and skill in the construction of the Building. This includes lack of proper care and skill on the part of the architects in designing the Building, as noted by the Court of Appeal in Seasons Park at [42]:

116 The MCST argues that the kerbs for the doors are poorly constructed as they are built outside the doors, encouraging rainwater ingress. ¹⁴⁸ According to the MCST, the kerbs should have been built inside the doors, as demonstrated by the architect’s design. ¹⁴⁹ The defendants again argue that the position of the kerbs is a design issue, within the purview of the architects of the Building. ¹⁵⁰

117 It is common ground that the position of the kerbs requires rectification. ¹⁵¹ I thus accept that the position of the kerbs is the result of lack of proper care and skill. As explained earlier (see [115] above), it is irrelevant whether the position of the kerbs is a design issue.

118 The MCST argues that the waterproofing of the vent pipes was not constructed in accordance with the architect’s design. ¹⁵² According to the MCST, if the architect’s design was complied with, the waterproofing upstand would be visible. Because the waterproofing upstand is not visible, the MCST deduces that the architect’s design was not complied with.

119 I reject the MCST’s argument. It is not true that the architect’s design would result in the waterproofing upstand being visible. As Sanchoon’s witness explained, the waterproofing upstand was to be 300mm. ¹⁵³ More than 300mm of other layers of material was to be placed on top of the waterproofing upstand, resulting in the waterproofing upstand being obscured. ¹⁵⁴ As a result, the mere fact that the waterproofing upstand is not visible does not mean that the waterproofing upstand was not constructed in accordance with the architect’s design. In fact, the lack of evidence of any breach of the waterproofing ¹⁵⁵ suggests that the waterproofing upstand of 300mm was installed.

120 The MCST argues that the lightning conductor strips were wrongly installed at the centre of the parapet wall, instead of at the outer edge of the wall. ¹⁵⁶ The defendants contend that the lightning conductor strips were installed in accordance with the relevant codes and were approved by the relevant qualified persons for mechanical and electrical works. ¹⁵⁷

121 I agree that the lightning conductor strips were not installed with proper care and skill. The relevant code of practice for lightning protection at the time the Building was constructed is known as CP 33. ¹⁵⁸ CP 33 requires lightning conductors to “be installed on parts of the structure most likely to be struck such as the outermost edges of the roof” [emphasis added]. ¹⁵⁹ Sanchoon argues that this requirement needs to be read with consideration of the rolling sphere technique of lightning protection, which forms the basis of CP 33. ¹⁶⁰ But the roof of the building, where the lightning conductor strips in question are found, is exposed to the “rolling sphere” and is thus not protected under the rolling sphere technique. ¹⁶¹ CP 33 thus requires that the roof be protected by lightning conductor strips, to be installed at the outermost edges of the roof.

122 The MCST argues that the fire escape staircases are defective as there is:

123 The MCST argues that rainwater is seeping into the wall at Staircase No 6 because of a lack of waterproofing on the Building’s roof. ¹⁶² The defendants take issue with the fact that no tests were carried out to prove that the seepage is caused by lack of waterproofing at the roof. ¹⁶³

124 All three of the parties’ experts agree that seepage of rainwater is a defect. ¹⁶⁴ Based on the photographs adduced by the MCST, ¹⁶⁵ I find that there is seepage of rainwater into the walls at Staircase No 6. I thus find that there was a lack of proper care and skill in the construction of the walls of Staircase No 6. But I also accept the defendants’ argument that the MCST has not proven that the seepage is caused by lack of waterproofing at the roof.

125 The MCST argues that there was lack of proper care and skill in the handling of the metal staircases, causing the galvanised layers to be damaged. ¹⁶⁶ The MCST also takes issue with the rectification works carried out in respect of the galvanised layers. It argues that the rectification works are haphazard and incomplete. ¹⁶⁷ Orion-One argues that there is no proof that the damage to the galvanised layers was caused by lack of proper care and skill, and that it could have instead been caused by human traffic. ¹⁶⁸

126 I agree with Orion-One’s submission that the MCST has not proven that the damage to the galvanised layers was caused by lack of proper care and skill at the time of construction.

127 The MCST argues that the thinness of the plaster over the staircase fixings has led to corrosion. ¹⁶⁹ According to the MCST, the fixings should not have been plastered over because the plaster traps moisture, causing corrosion.

128 It is common ground between the experts that the fixings should be repaired by removing the corrosion and not by replacing the plaster. ¹⁷⁰ I thus accept that the staircase fixings were not constructed with proper care and skill.

129 The MCST argues that there is inadequate adhesion of tiles and lack of proper movement joints, causing tiles to debond. ¹⁷¹

130 It is again common ground between the experts that the tiles should be repaired and that movement joints were not properly installed. ¹⁷² There was thus a lack of proper care and skill in construction in this respect.

131 I note that some of the debonded tiles are found at the walkways between the balconies of the units. ¹⁷³ Although the MCST has failed to prove that these walkways are common property (see [70]–[78] above), I accept that these defective tiles have caused damage to common property such as the façade of the building, because rainwater ingress under the defective tiles has seeped into the façade of the building, causing it to crack. ¹⁷⁴ The MCST can thus recover compensation for the damage to the common property caused by the defective tiles (see [80] above).

132 The MCST argues that the base of the driveway was not compacted properly before the top layer was applied, making it prone to cracking. ¹⁷⁵ The defendants argue that the cracks are caused by the heavy vehicular usage and traffic in the Building. ¹⁷⁶

133 I accept that the cracking of the driveway is caused by lack of proper care and skill. As the reference material adduced by the MCST states: ¹⁷⁷

The Building was designated for light industrial use. Proper care and skill would thus have required that the heavy vehicle usage and traffic be taken into account in the construction of the driveway, to limit cracking by employing design and detailing techniques.

134 The MCST argues that the carpark ramp is slippery because: (i) the ramp is rough but the horizontal landing is smooth; (ii) the ramp is filled with multiple indented circular grooves which trap water; and (iii) the anti-skid epoxy paint finish required by the Specifications was not applied. ¹⁷⁸ The defendants submit that no tests were conducted to prove that the ramp is slippery and that the indented circular grooves are acceptable. ¹⁷⁹ Sanchoon further argues that anti-skid epoxy paint was not required as the tender documents replaced it with power float concrete floor finish with hardener. ¹⁸⁰

135 I accept the defendants’ submissions that the MCST has not proven that the ramp is slippery. The MCST has adduced only hearsay evidence that there have been crashes or near crashes caused by the ramp. ¹⁸¹ I also accept the evidence from the defendants’ experts that indented circular grooves are acceptable and common in Singapore ¹⁸² and that the requirement for anti-skid epoxy paint was replaced with power float concrete floor finish with hardener. ¹⁸³

136 The MCST submits that the fire hose reel casings obstruct access to the fire escape staircases. ¹⁸⁴ The defendants submit that the casings do not obstruct the access way and that the staircases have a walkway of 1.2m, as required by the Singapore Civil Defence Force Fire Code 2013. ¹⁸⁵

137 From the photographs, it is clear that the casings do not obstruct the access way and that the requirement of a walkway of 1.2m is satisfied. ¹⁸⁶

138 The MCST has identified certain areas of the Building where the floor slab is patchy. ¹⁸⁷ The patching is the result of debonded coating, which the MCST blames on poor workmanship. ¹⁸⁸

139 The MCST has not satisfied me that the debonded coating is caused by poor workmanship and not some other factor, such as wear and tear.

140 The MCST submits that failing road markings are caused by poor workmanship and not wear and tear. ¹⁸⁹

141 The MCST has again only made a bare assertion that the failure of the road markings is caused by poor workmanship and not wear and tear. I am thus unable to accept the MCST’s submission.

142 The MCST submits that the wall signage for firefighting equipment was installed without proper care, using double-sided tape, causing the signage to detach. ¹⁹⁰

143 The defendants do not dispute that the signage was installed using double-sided tape. I thus accept that the signage was not installed with proper care and skill. Double-sided tape cannot be expected to be adequate long-term adhesion for signage.

144 The reasons for allowing or disallowing the MCST’s claim against Orion-One in respect of each item in the Scott Schedule can be found at Annex C.

145 Orion-One argues that the MCST has failed to mitigate its loss by: ¹⁹¹

(a) failing to invoke the Warranties; and

(b) failing to carry out its maintenance responsibilities under s 29 of the BMSMA.

146 For the reasons stated at [173]–[175] below, I reject the submission that the MCST has failed to mitigate its loss by failing to invoke the Warranties. As for the argument on the MCST’s maintenance responsibilities, I accept that the MCST’s duty to maintain extends to rectifying defects: Ocean Front at [73]. However, Orion-One has made only a bare assertion that the MCST’s decision to postpone rectification of the defects until the conclusion of this suit has led to further deterioration of the defects. ¹⁹² I thus reject Orion-One’s submissions that the MCST has failed to mitigate by not performing its maintenance responsibilities.

147 It is common ground that Sanchoon owed the MCST a duty of care in constructing the common property. ¹⁹³ What is disputed is the scope of Sanchoon’s duty of care. Sanchoon submits that its duty of care does not cover the following four broad classes of defects:

I deal with each of these in turn.

148 An employer is not vicariously liable for the negligence of an independent contractor: Seasons Park at [37].

149 Sanchoon is not entitled to defeat the MCST’s claim in tort by arguing that the work complained of by the MCST in this action, even if proven to result from negligence, was the result of negligence by independent contractors engaged by Sanchoon. As the MCST points out, Sanchoon failed to plead this case anywhere in its defence. ¹⁹⁸ The MCST will be prejudiced should Sanchoon be allowed to raise this defence at this late stage. The first indication that Sanchoon intended to rely on this defence came in its opening statement, ¹⁹⁹ filed a mere week before the trial was to commence. The MCST was left entirely unable to address the issue of whether Sanchoon’s sub-contractors were indeed independent contractors.

150 Sanchoon submits that it would be inequitable to allow the MCST to make concurrent claims for the defects both in tort and under the Warranties. ²⁰⁰ As a result, according to Sanchoon, its duty of care should exclude the defects covered by the Warranties. ²⁰¹

151 I reject Sanchoon’s submission. As the Court of Appeal noted in Animal Concerns Research & Education Society v Tan Boon Kwee [2011] 2 SLR 146 (“Animal Concerns”) at [60], it is possible for there to be concurrent liability in both contract and tort. The mere fact that there is a contractual backdrop to the parties’ relationship is not sufficient to exclude a duty of care. Instead, the true principle in determining whether the contractual arrangement has such an effect is whether the parties structured their contract intending thereby to exclude the imposition of a duty of care in tort: Animal Concerns at [71].

152 Sanchoon has not shown that the parties, in entering into the Warranties, intended to exclude a duty of care on Sanchoon. In fact, the Warranties themselves appear to suggest that there was no such intention: ²⁰²

In other words, Sanchoon entered into the Warranties with Orion-One with the express intention and purpose of undertaking additional obligations to Orion-One, over and above any other obligations which Sanchoon might have to Orion-One in contract or in tort. There is nothing to indicate that Sanchoon intended that cumulative effect of the obligations it undertook under the Warranties to come to an end when Orion-One assigned the Warranties, as it eventually did, to the MCST.

153 Sanchoon submits that it owes a duty of care to the MCST only in respect of defects which pose a risk to health or safety. For this submission, Sanchoon relies on Robinson v P E Jones (Contractors) Ltd [2011] EWCA Civ 9 (“Robinson”) and Management Corporation Strata Title Plan No 3322 v Tiong Aik Construction Pte Ltd and another [2016] 4 SLR 521 (“Tiong Aik”). ²⁰³

154 I do not accept Sanchoon’s submission. Neither authority supports its argument. Sanchoon relies on the following excerpt from the headnote of the report in Robinson:

155 Robinson is an English case. The general rule in English law is that no damages are recoverable in the tort of negligence for pure economic loss. There are of course exceptions: see Robinson at [68] and [70] and Chu Said Thong and another v Vision Law LLC [2014] 4 SLR 375 at [163]. It is for this reason that the excerpt from Robinson limits the duty of care to physical injury or damage to property (as opposed to pure economic loss).

156 Singapore’s law of negligence differs significantly from English law in this respect. There is no rule in Singapore law which bars recovery of damages in the tort of negligence for pure economic loss: Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR(R) 100 at [69]. There is therefore no reason in Singapore law to limit a duty of care as a duty to avoid only causing injury to a person or damage to property.

157 Similarly, Tiong Aik does not stand for the proposition that a contractor owes a duty of care only in respect of risks to health or safety. Sanchoon relies on the Court of Appeal’s statements in Tiong Aik that the Building Control Act (Cap 29, 1999 Rev Ed) imposes non-delegable duties only in relation to building safety, and not in relation to other aspects of construction, such as workmanship or aesthetic flaws. But the mere fact that a contractor does not owe non-delegable duty of care in respect of workmanship or aesthetic flaws does not mean that the contractor does not owe any duty of care at all in respect of those flaws. As the Court of Appeal said in Tiong Aik at [21] and [50], the common element across the categories of non-delegable duties is that the duty bearer has undertaken responsibility to the claimant in circumstances where the relationship involves a kind of special dependence or a particular vulnerability. It is this relationship which results in a personal duty on the duty bearer. The absence of a relationship of dependence or of a particular vulnerability as between a contractor and a management corporation, for example, does not preclude a relationship of sufficient proximity such as is necessary to found a duty of care.

158 Sanchoon argues that it cannot be held responsible for defects caused by the architect’s design.

159 A contractor’s duty of care includes a duty to warn of design defects which an ordinarily competent contractor would suspect: Keating at paras 3-071 and 3-079. This duty applies only to defects which are obvious, and not to those which could have been discovered only by way of additional inspections or investigations.

160 There is a dispute over whether Sanchoon’s duty to warn was engaged in relation to the following three categories of defects:

(a) the lack of flashings, projections, drainage tracks and canopies; ²⁰⁴

(b) the positioning of the kerbs; ²⁰⁵ and

(c) the fire escape staircase fixings. ²⁰⁶

161 I find that Sanchoon’s duty to warn was engaged only in relation to the defective positioning of the kerbs. To my mind, this is the only defect which was obvious enough to trigger the duty. It is a matter of common sense that a kerb ought to be constructed on the inside of a door to prevent entry of rainwater. A kerb on the inside of a door makes it difficult for rainwater to enter as it could enter only by flowing upwards, over the kerb. In contrast, constructing a kerb on the outside of a door encourages the entry of rainwater because the rainwater is allowed to flow downwards from the kerb and seep behind the doors.

162 The other two categories of defects relate to: (i) the lack of flashings, projections, drainage tracks and canopies; and (ii) fire escape staircase fixings. These two categories require more specialist knowledge that: (i) flashings, projections, drainage tracks and canopies increase the rate of flow of rain runoff, resulting in a stronger washing effect to prevent staining; ²⁰⁷ and (ii) plastering over staircase fixings would trap moisture, causing corrosion. ²⁰⁸ I find that these two categories are not so obvious as to trigger Sanchoon’s duty to warn.

163 In any event, even if I am wrong in finding that Sanchoon’s duty of care required it to warn the architect about the positioning of the kerbs, I find that Sanchoon is nevertheless in breach of its duty as it failed to follow the architect’s design, which called for the kerbs to be positioned on the inside of the doors. ²⁰⁹

164 As an aside, I note that the MCST argues that Sanchoon breached its duty by deviating from the architect’s design in not constructing the canopies. I reject this submission. The evidence shows that the decision not to proceed with the canopies was the architect’s. ²¹⁰ It was not the result of Sanchoon’s unilateral decision to disregard the architect’s design.

165 The reasons for allowing or disallowing the MCST’s claim in respect of each item in the Scott Schedule can be found at Annex C.

166 The MCST’s claim against Sanchoon for breach of the Warranties arises under eight Warranties. ²¹¹ For this purpose, I count the external precast concrete cladding warranty and the tile adhesives and bonding agents warranty as two separate warranties, which they in fact are. ²¹² Under these eight Warranties, Sanchoon warranted that the relevant works “shall be free from any defect, deterioration, failure, lack of fitness, non-satisfaction of performance specifications or other requirements under the Contract or other faults in the Works”, and undertook that it would, upon written notice, “remedy, repair or make good to the absolute satisfaction” of the MCST the defects and any damage arising out of the defects. ²¹³

167 Sanchoon submits that its liability under the Warranties is limited because:

(a) certain defects are not covered by the Warranties; and

(b) the MCST refused to permit Sanchoon to conduct rectification works during the duration of the Warranties. ²¹⁴

168 There are disagreements between the MCST and Sanchoon on whether certain defects are covered by the Warranties. Sanchoon argues that:

(a) the Warranties do not apply to the strata title lots; ²¹⁵

(b) the external precast concrete cladding warranty does not apply to defects relating to plaster and paintwork; ²¹⁶

(c) the waterproofing warranties do not apply to defects caused by rainwater ingress; ²¹⁷ and

(d) the galvanising to metalworks warranty has expired. ²¹⁸

169 I reject all of Sanchoon’s submissions, except for its submission at [168(c) above]. In respect of that submission, I accept that those defects are caused by rainwater ingress and not by failure of waterproofing. I now explain why I reject Sanchoon’s other submissions.

170 First, the Warranties are not limited to defects in the common property. They expressly cover the “Premises”, defined as the “9-storey Building … on Lot 15782PT Mk 18 at Serangoon North Avenue 4 / Ang Mo Kio Avenue 5/ Yio Chu Kang Road”. ²¹⁹ In other words, the Warranties cover the Building as a whole and do not distinguish between the common property of the Building and the strata title lots comprised in the Building.

171 Second, the defects relating to the plaster and paintwork are caused by cracks in the external precast concrete. They are therefore covered by the external precast concrete cladding warranty.

172 Finally, it is irrelevant that the galvanising to metalworks warranty expired before the MCST commenced this action. As long as the defects in the works covered by the warranty occurred (and went unrectified) before the warranty expired, Sanchoon is in breach of the warranty. The MCST is at liberty then to seek compensation for the loss caused by the breach of warranty at any time within the limitation period, even if the warranty has expired by the time the MCST commences action. The defects covered by the galvanising to metalworks warranty were discovered, at the latest, by June 2013, when the MCST’s expert inspected the Building and documented the defects. ²²⁰ At that time, the warranty had not yet expired.

173 The Warranties permit the MCST to bring a claim against Sanchoon for breach of the Warranties if Sanchoon fails to rectify the defects to the MCST’s absolute satisfaction within reasonable time. ²²¹

174 I find that the MCST gave Sanchoon sufficient time and opportunity to rectify the defects before commencing this suit. Sanchoon was allowed to rectify the defects in December 2012. ²²² But Sanchoon failed to rectify the defects to the satisfaction of the MCST. The MCST therefore asked for further rectification. ²²³ Although Sanchoon asserts that its rectifications were reasonable and sufficient, ²²⁴ the Warranties provide expressly that the MCST’s decision on whether the rectifications are satisfactory is “final and conclusive”. ²²⁵ This is a subjective test. Whether the rectifications were unsatisfactory in an objective sense is thus irrelevant.

175 Discussions between the MCST and Sanchoon about further rectifications eventually fell through for two reasons. First, the MCST was unwilling to accept Sanchoon’s disclaimer that it would conduct the further rectifications on a goodwill basis, without admission of liability. Second, Sanchoon took the position that they were not responsible for (and would therefore not rectify) several of the alleged defects. ²²⁶ By the time these discussions fell through, about two years had passed since the defects were discovered, from February 2012 to December 2013. ²²⁷ Bearing in mind that the MCST had to avoid various time-bars, I find that the MCST did give Sanchoon reasonable time and opportunity to rectify the defects.

176 Sanchoon is thus liable for breach of warranty for the defects covered by the Warranties, as set out in Annex C.

177 For the reasons above, I hold in favour of the MCST and the subsidiary proprietors which it represents (see Annex A) in respect of the defects I have found Orion-One and Sanchoon to be liable for (see Annex C). I will hear the parties on costs and on any consequential orders to be made, including but not limited to the assessment of damages.