1    This action arises out of a lump sum contract  which  the plaintiff and the defendant  entered into in  June  2014  (the “Subcontract”). ¹  Under the  Subcontract, the defendant as subcontractor undertook to  design, supply and  install  various  furnishings for the plaintiff as main contractor  (the “Works”). The  Works  included a  glass curtain wall system,  aluminium  and glazing works  and a feature wall  for a freehold industrial development (the “Project”).  The Subcontract price was $2.19m.  ²  

2    The Temporary Occupation Permit (“TOP”) for the Project was issued  in  June 2016. The architect issued the  Certificate of Completion  (“CoC”) in  November 2016, but with  retrospective  effect  from July 2016. ³  From July 2016  to December 2016, the plaintiff handed  over completed units to individual  subsidiary  proprietors. The Building and Construction Authority of Singapore (“BCA”) issued  the Certificate of Statutory Completion  (“CSC”) in  August 2017. ⁴

3    The  plaintiff’s case is  that the defendant has breached the  Subcontract  by: ⁵  

(a)    installing  defective glass in  the glass curtain wall;

(b)    failing  to submit as-built drawings and the 10-year warranty;  

(c)    failing  to ensure the  water-tightness of the  glass curtain wall and/or the aluminium and glazing works;

(d)    failing  to install  compliant  doors at the seventh-storey; and

(e)    failing  to construct the feature wall in compliance with approved shop drawings.

4    The  defendant  rejects the plaintiff’s claim  and brings a  counterclaim  for  the following: ⁶  

(a)    an order that  cll  2.6 and 2.12 of the Subcontract be struck out on the basis of both clauses being  unenforceable  for uncertainty;

(b)    rectification of the Subcontract to add the word “certificate” after the words “main contract completion” at line 2 of  cl  20.2  of the Subcontract;

(c)    the following sums:

(i)    $327,333.75 as the  unpaid balance due to the defendant  under the Subcontract;

(ii)    $24,717 for costs  which the defendant incurred in  Adjudication Application No 334 of 2016 arising out of the parties’ dispute  (“the  adjudication application”);

(iii)    $54,750 being 50% of the  5% retention sum  which the plaintiff holds under  cl  20.2 of the Subcontract; ⁷  and

(d)    an  alternative  claim  for damages to be assessed in respect of  the  items  at  (c)  above.

5    This action has been bifurcated. Accordingly, I am in this trial concerned only with liability. There will be a separate assessment of damages to fix quantum.  

6    The issues  on liability  which I have to determine  on the plaintiff’s claim  are:

(a)    Whether  the alleged  defects  in the glass curtain wall  amount  to a breach of  the Subcontract  (“Glass Defects Issue”)?

(b)    Whether the defendant breached the Subcontract by failing to submit as-built drawings and the 10-year joint warranty (“Outstanding Submissions Issue”)?

(c)    Whether the  defendant  breached the Subcontract by failing to ensure that the  aluminium and glazing works  were sufficiently watertight  (“Water Tightness Issue”)?

(d)    Whether the defendant breached the Subcontract by failing  to ensure sufficient headroom for  the doors at the seventh storey, as well as  failing  to  orient  the  thresholds for the  balcony  doors at the seventh storey  to ensure water tightness  (“Doors Issue”)?

(e)    Whether the defendant breached the Subcontract by  installing non-compliant  panels in  the feature wall  and by failing to supply a certificate of conformity for certain aluminium composite panels which the defendant installed in the Feature Wall  (“Feature Wall Issues”)?

7    The issues  on liability which  I have to determine on the defendant’s counterclaim  –  insofar as those issues  have  not  otherwise been  dealt with in determining the plaintiff’s claim  –  are:

(a)    Whether the defendant  completed the  Works, thereby entitling it to  be paid the unpaid balance  of the Subcontract price (“Completion Issue”)?

(b)    Whether the  defendant  is  entitled to have the plaintiff  release  to the defendant  50% of the 5% retention sum  under the Subcontract (“Retention Issue”)?

(c)    Whether  the defendant  is  entitled to recover  from the plaintiff  the costs of the adjudication  (“Adjudication Costs Issue”)?

8    Having considered the  evidence and the  parties’ submissions, I have arrived at the following findings on  the defendant’s  liability  on the plaintiff’s claim:  

(a)    The defendant is liable to the plaintiff  on  the Glass Defects  Issue, though not in respect of all of the breaches alleged by the plaintiff;

(b)    The defendant is liable to the plaintiff on the Outstanding Submissions issue;

(c)    The defendant is not liable to the plaintiff on the Water Tightness Issue;

(e)    The defendant is liable to the plaintiff for the Feature Wall Issues.

9    I have also arrived at the  following  findings on  the plaintiff’s liability on the defendant’s counterclaim:

(a)    The defendant did complete the Works and is entitled to be paid the unpaid balance of the lump sum which has fallen contractually due under the Subcontract;  

(b)    The defendant is entitled to be paid 50% of the retention sum of 5% of the price of the Subcontract, amounting to $54,750;  

(c)    The defendant is not entitled to recover the costs it incurred in the adjudication application as damages in this action for the plaintiff’s breach of contract.  

10    The Glass Defects Issue concerns white spots, specks and bubbles  which  appeared  on  the  glass panels (collectively,  the  “Glass Defects”)  which the defendant  installed as part of the glass curtain wall  for the Project. ⁸   It is  common ground  that the Glass Defects were not  present when the glass was installed  and began to appear  only  after TOP was issued in June 2016. ⁹  

11    The parties carried out a  series of joint inspections  on-site  from July 2016 to October 2016. They were unable to resolve the  issue.  ¹⁰  

12    The  plaintiff  initially employed the term “Delamination Defects”  to describe  the Glass Defects  in its statement of claim. However,  the plaintiff  confirmed  at  a pre-trial conference  that  “delamination”  was  used as  a shorthand term to refer to the Glass Defects  and not in its  technical sense  to mean a defect  such as the Polyvinyl Butyral (“PVB”) layer between the sheets of laminated glass  becoming detached. ¹¹  I  shall  proceed to determine the Glass Defects  Issue on this basis.

13    The plaintiff  argues that the  appearance of the  Glass Defects  constitutes  breaches of various terms  of  the Subcontract.  The plaintiff  accepts  that  it is the  white spots and specks  which  form the bulk of the Glass Defects. ¹²  

14    The plaintiff’s case is that  the  Glass Defects  are a  failure to comply with  cll  2.2.1(a) and 2.2.8(b) of the Architectural Specifications  (“AS”)  in the  main contract  as well as  with  cll  3.3.7(b) and 3.3.7(c) of the National Productivity and Quality Specifications (“NPQS”) in the  main contract  (collectively, “Glass Specifications”). ¹³  These Glass Specifications  are  incorporated into the Subcontract  by cll  8.1  and/or 2.2  of the Subcontract. ¹⁴  The Glass Defects are  also a failure to meet  the specification  contained in Appendix A of the Subcontract  (“Appendix A Specification”).  

15    The defendant  submits that  it  has not  failed to meet  any of the Glass Specifications  and the Appendix A Specification. First, the Glass Specifications  and Appendix A of the Subcontract are of no contractual force between the plaintiff and the defendant because they  were never validly incorporated into the Subcontract. Second,  even if the Glass Specifications have been incorporated  into the Subcontract  by express reference: (a) the  Glass Specifications  are concerned  only  with the surfaces of the glass  panels rather than the coating  applied to them; and (b) the white spots have not caused any obstruction of vision  and  there is no suggestion that the  emissivity function of the  glass  coatings  is impaired. ¹⁵   Third, the plaintiff refused to  allow  the defendant  an  opportunity to rectify and replace the glass panels. ¹⁶

16    I begin by considering a preliminary objection raised by the defendant.  The defendant  argues that the plaintiff is not entitled to claim  substantial  damages against the defendant because the  Glass Defects caused no actual loss to the  plaintiff. With the exception of  a few  replacement works that the plaintiff allegedly carried out in units #03-07, #05-05, #05-06 and #06-03  of the Project, ¹⁷  the plaintiff has suffered no loss as a result of the Glass Defects. Further,  neither the  owner nor the individual  subsidiary  proprietors of  any of the  units  in the Project  have commenced any legal proceedings against the plaintiff or have sought to recover any  damages from the plaintiff for the Glass Defects. ¹⁸  The plaintiff thus  has  not suffered any loss.  It should therefore not be entitled to  recover damages from the defendant for the Glass Defects.  

17    The general rule is, of course,  that a plaintiff is entitled to  recover  damages only for loss  which  a breach of contract causes  the plaintiff itself  to suffer.  The plaintiff, however, relies on the exceptions to that rule  recognised by the Singapore Court of Appeal in  Chia Kok Leong and another v Prosperland Pte Ltd  [2005] 2 SLR(R) 484 (“Prosperland”)  and  Family Food Court (a firm) v Seah Boon Lock and another (trading as Boon Lock Duck and Noodle House)  [2008] 4 SLR(R) 272  (“Family Food Court”). 

18    In  Prosperland, the Court of Appeal considered whether  a  developer  was entitled to  recover  substantial damages  from  the architect  it  engaged  to design and supervise the construction of a condominium.  By  the time of the action, the developer  had  divested ownership  of the condominium  to the MCST and the subsidiary proprietors. The developer had not  spent  any  of its own  money to  repair the defects. And the  MCST  had not sued the developer  in respect of the defects.  

19    The Court  of Appeal  held that  the developer  was  nevertheless  entitled  in principle  to  recover substantial damages from  the architects.  In arriving at this holding,  Chao Hick Tin JA recognised two exceptions to the general rule  set out at [17] above.  

20    One exception is the “narrow ground”. This  allows a plaintiff to recover substantial damages on behalf of a third party. The narrow ground  is applicable  where it is in the contemplation of the parties  at the time of contracting  that  the plaintiff will transfer its  proprietary interest in the subject-matter of the contract  to  a  third party after  contracting and  before the  defendant’s breach occurs.  If that is within both parties’ contemplation at the time of contracting, the plaintiff is to be  treated in law as having entered into the contract for the benefit of all persons who have or may acquire an interest in the  property which is the subject-matter of the contract  before  it is  lost or damaged (Prosperland  at [12], citing  The Albazero  [1977] AC 774; Family Food Court  at [58]). 

21    The  second  exception  to the general rule is  the “broad ground”. This ground  allows  a  plaintiff  to recover substantial damages for the loss of  its  performance interest in not receiving the  benefit of the  bargain for which  it  contracted.  The measure of damages  is  the cost of securing the performance of that bargain (Prosperland  at [17]  and [19], citing  St Martins Property Corporation Ltd v Sir Robert McAlpine Ltd  [1994] 1 AC 85).

22    The plaintiff  submits that  it  is  entitled to  recover substantial damages from the defendant  under both the “narrow ground” and the “broad ground”. ¹⁹   In response,  the defendant points to  three  distinguishing features of Prosperland. ²⁰  

23    First,  this  action is not  one between an owner and its architect, as  in  Prosperland.  This  action is one  between a  main contractor  and a  subcontractor. To extend the exceptions in  Prosperland  to the present case would be unwarranted. The  matrix of legal relationships is such that there  is no real risk  that  a main contractor  will be  found  liable to  subsidiary proprietors or their tenants.  

24    Second,  Prosperland  concerned residential  property,  whereas the present case deals with industrial  property.  Therefore, the  consumer-protection considerations  in the  Prosperland  case are not readily applicable  to this action.  

25    Third,  the decision in Prosperland  rested on a proprietary base. The plaintiff in  Prosperland  had a proprietary interest in the subject-matter of the contract and  entered into the contract under a larger transaction in which it intended in due course to  convey  its  proprietary interest to  third parties.  The fundamental point  in  Prosperland  was that both parties contemplated that  the contract  they entered into would  be for the benefit of  those third parties who would  ultimately acquire and hold the  proprietary interest in the subject-matter of the contract. ²¹  

26    I agree with the defendant. In so far as the “narrow ground” exception is concerned,  Prosperland  is distinguishable  from the  present case. It suffices to rely only on the final ground advanced by the defendant. In this case, the plaintiff is  merely  a  main contractor  who has no proprietary interest in the subject-matter of the contract let alone an intent to transfer any such  proprietary interest to third parties. I  therefore hold  that the plaintiff is unable to rely on the “narrow ground” exception to recover substantial damages from the defendant in this action.

27    However, I  accept that the  plaintiff  is entitled to rely on the “broad ground” exception.  The “broad ground” exception “constitutes an integral part  of the common law  of  contract where protection of the performance interest –  ie,  the plaintiff/promisee’s interest in the contract being performed and (consequently) his receiving the benefit which he had contracted for – is concerned” (Family Food Court  at [34]).  Indeed, the Court of Appeal in  Prosperland  went  so  far as to  characterise  the “broad ground” exception as “probably more consistent with principle” (at [52]). 

28    In  Family Food Court, Andrew Phang JA explained that the performance interest claimed by the plaintiff/promisee must be a genuine one. The court will  “apply an  objective test of reasonableness  to the performance interest claimed so as to curb what would otherwise be a windfall accruing to the plaintiff/promisee” (at [53], citing  Ruxley Electronics and  Construction  Ltd.  v Forsyth  [1996] 1 AC 344).  

29    Given that  it is  “broad ground”  which  entitles the plaintiff to recover substantial damages for the loss  it has suffered  in not getting  the benefit it  contracted for, it  should not  be a prerequisite  for the plaintiff to show that it  has already carried out the repairs or intends to do so  in order to recover  substantial damages (Prosperland  at [57]).  

30    In other words, the plaintiff has an  expectation interest  arising from the Subcontract  that the defendant  will  carry out the Works in accordance with the Subcontract.  The law of contract will vindicate that interest with an  award of substantial damages.  The corollary  is  that  the defendant’s breach of contract in itself  entitles the plaintiff to recover substantial damages  for  the  loss of  its  performance interest.  The plaintiff’s entitlement to recover substantial damages does not require a proprietary base, whether at the time of contracting, at the time of breach or at the time of action. The Court of Appeal in  Prosperland  comprehensively considered concerns  about  the defendant being exposed to  multiple  liability  for the same breach and deemed them to  be more apparent than real (at [29] and [52]).  

31    Hence, the plaintiff is entitled to  recover substantial damages from  the defendant  if the defendant is found to be in  breach of the Subcontract.  

32    The defendant submits  that the Glass Specifications  were not  incorporated into the Subcontract. It advances  three  arguments. First, the allegation that the Glass Specifications are incorporated into the Subcontract is an afterthought. The plaintiff  made no  reference to the Glass Specifications  as  being incorporated into the Subcontract  until  it amended its pleading  almost two years after commencing  this  action. Second,  the plaintiff never gave the defendant a copy of the  main contract. Finally,  the Glass Specifications came into existence  only  after  the  Subcontract. ²²  Hence, the  Glass Specifications  are of no contractual force between the plaintiff and the defendant,  and the defendant cannot be liable for any  failure to meet those specifications.  

33    The plaintiff  submits  that  the Glass Specifications are incorporated,  by express reference,  into the Subcontract from the main contract. The  incorporating  clauses  are cll  8.1  and 24.1(b)  of the Subcontract, which  provide that  the terms of the  main contract which  relate to, affect or apply to the Works are  incorporated into the Subcontract: ²³

34    The principles  on the  incorporation of contractual terms are well-established.  The  approach to determine whether terms are incorporated is the  orthodox  objective approach: the  law  “adopts an objective approach towards questions of contractual formation and the incorporation of terms” (R1 International Pte Ltd v Lonstroff AG  [2015] 1 SLR 521 (“Lonstroff”)  at [51]).

35    Whether a set of terms has been incorporated into a contract thus turns on ascertaining  the parties’ objective intentions from their correspondence and conduct  assessed  in light of the relevant background. The relevant background includes the  particular  industry in which the parties  operate, the character of the document which contains the terms in question as well as the course of dealings between the parties (Lonstroff  at [51]). 

36    The first point that the defendant makes is that the plaintiff’s reliance on the Glass Specifications is an afterthought, raised in bad faith and without proper basis. The defendant  points out  correctly  that  the  plaintiff’s  statement of claim  originally  did not  plead any  failure to meet the  Glass Specifications.  The plaintiff  referred to the Glass Specifications only  when it  amended its statement of claim  in March 2019. The defendant submits that the plaintiff amended  its statement of claim  to include this plea  as an afterthought,  only because the experts’  joint  report  confirmed  that the white spots affected only the coating on the dark green panels  and  that  there was no delamination  as originally pleaded. ²⁴  The  belated  amendment  is  a “significant factor”  which the court should consider in  determining  whether the Subcontract  incorporated the  Glass Specifications. ²⁵

37    I reject this submission.  The timing of the plaintiff’s amendment  or the motivation for the amendment  has no  direct  bearing  on whether the Glass Specifications were incorporated into the Subcontract. The defendant cites  no authority  to support this argument. The parties’ objective intention  at the time of contracting is  the only relevant criterion for incorporation. Even if the plea is an afterthought, it has been raised by the appropriate procedure,  ie  amendment. I  must determine  it  on its merits.

38    The second  point that the defendant makes is that the plaintiff never gave the defendant a copy  of  the main contract.  The defendant  refers to the  evidence of the  plaintiff’s contracts manager, Mr Danny Cheng  (“Mr Cheng”),  at trial.  Mr Cheng said  that the  main contract did not accompany the letter of  award  which was eventually issued to the defendant. ²⁶  

39    I do not  consider  this  submission to be relevant  on the issue of incorporation.  

40    Clause 8.1 of the Subcontract provides that the defendant shall be “deemed to have full knowledge of the provisions of the  Main  Contract”. It  also explicitly gives the defendant a right to inspect the  main  contract at the plaintiff’s office.  As a matter of law, it is well-established that in the absence of fraud or misrepresentation, a party is bound by all the terms of a contract that it signs, even if that party did not read or understand those terms (Bintai Kindenko Pte Ltd v Samsung C&T Corp and another  [2019] 2 SLR 295 at [58]).  The defendant is therefore bound by cl 8.1.  

41    I also find  to be reasonable  Mr Cheng’s  explanation  that the  main contract did not accompany the  letter of  award because  the  documents  were too bulky.  It was always within the defendant’s power to exercise its right under  cl 8.1 to inspect the  main contract  at the plaintiff’s office.  The defendant  cannot now rely on the plaintiff’s failure to  supply a copy of  the  main contract to  disclaim  the clear effect of cl 8.1 and to  argue  that the Glass Specifications  were not incorporated into the Subcontract.  

42    The defendant’s final argument is that  the Glass Specifications came into existence  only  after  the plaintiff  and the defendant entered into  the  Subcontract.  Therefore, despite the effect of cll 8.1 and 24.1 of the Subcontract, the Glass Specifications  are not  incorporated into the Subcontract.  

43    In support of  this,  the defendant  refers to  the  date  “JULY 2014”  which appears  at the bottom of the  cover  pages  of Volumes 1 and 2 of the  main contract. ²⁷  The  AS  are contained in Volume 2 of the  main contract.  The defendant  argues  that  July 2014  reflects the date of the creation of the  main contract, including the AS, and therefore  suggests that the main contract  came into existence after the Subcontract.

44    I start by pointing out that  there is no  principle of law that  a document  which  comes  into existence  only  after  a  contract  is formed cannot be  incorporated  by  reference into that  contract. It all depends on the parties’ intention, objectively ascertained from the terms of their contract.  Indeed, “it is not uncommon for parties to first agree on a set of essential terms which the parties may be bound  by  as a matter of law and on the basis of which they may act, even while there may be ongoing discussions on the incorporation of other usually detailed terms” (Lonstroff ([34]  supra) at [52]). 

45    Lonstroff  was, of course,  considering ongoing  discussions  of more detailed terms  between the contractual counterparties  themselves.  But there is no reason in  principle  why  the contractual counterparties may not also agree to  incorporate  by  reference  the terms of a  future  contract which  one of the contractual counterparties will negotiate and  then  enter  into with a third party.  Whether  the terms of that later contract are in fact  incorporated into the  parties’  earlier  contract  is simply a matter of contractual construction.  

46    Thus, for example, the Court of Appeal  in  Lonstroff  had to consider whether  an arbitration clause  in a detailed contract note  which  the  appellant sent  to the respondent  was incorporated into  a  contract  which the parties had  concluded earlier by an exchange of email confirmations. The Court of Appeal held that  the arbitration clause was incorporated into the parties’ earlier contract. That  took place  because both parties contemplated that the basic terms of the email confirmations would be supplemented by additional terms  coming later  (at [59]).  The Court of Appeal  also found that  it  was the practice  in the parties’ industry to  discuss  and  reach binding  agreement  only  the key terms of each trade and for  the  remaining terms to be  agreed and incorporated  later  (at [60]).  In the final analysis, it was clear from the parties’ objective intentions  at the time they concluded their contract  that more detailed terms  would follow  and  would in fact  be  incorporated  into their contract  via the contract note.

47    I am satisfied that  cll  8.1 and 24.1(b)  of the Subcontract  reflect  the parties’ objective intention to incorporate  into the Subcontract  the  specifications relating to the Works  which were  contained in the  main contract, whenever  that might  come into existence.  The plaintiff subcontracted the Works to the defendant  as  glazing  specialists. ²⁸   The clear reference to  “all provisions of the  main contract … applicable to the Sub-contract works” and “all main contract … specifications” in  cll  8.1 and 24.1(b) of the Subcontract respectively puts  it beyond doubt that the parties did intend for certain specifications  further  to  govern the specialised nature of the Works, namely, the design, supply and installation of the glass curtain wall.  

48    Indeed, the Glass Specifications were clearly more detailed terms than those found in the Subcontract that would conceivably govern the Works carried out by the defendant.  The Glass Specifications  consist of  a variety of elements relating generally to glass components and specifically to the glass curtain wall including the quality, appearance of the glass panels, as well as its emissivity coating.  It  is  improbable  that the parties intended to exclude from their  Subcontract  the whole host of  specifications and terms  relating to the glass curtain wall  set out in the Glass Specifications. If  they had  intended  the specifications for the glass curtain wall to be confined to that which was set out in the Subcontract, the Works would be  uncommercially  bereft of  sufficiently  detailed specifications. This simply could not have  been the objectively ascertained  intention of  commercial  parties.  

49    In any event, I am not  satisfied  that the Glass Specifications came into existence after  June 2014.  I accept  Mr Cheng’s explanation  as to  why the “JULY 2014” date appears on the  cover pages of volumes 1 and 2 of the main contract.  He explained  that the words “JULY 2014” were likely typed by  the  quantity surveyor and that it did not indicate the date of creation of the document. ²⁹   Instead,  that was  the date on which the  main contract  was  bound,  as there had been some delay in the  quantity surveyor  binding  it. ³⁰  The owner and the plaintiff had entered into the main contract in March 2014. ³¹

50    Mr Cheng’s explanation is further supported by the fact that even on the page where  cl  2.2.1(a) of the AS is located, the date  which appears  at the bottom of the page reads “AUGUST 2013”. This is consistent with his evidence that he sent an  email attaching specifications  to the defendant  on  30 October 2013. The August 2013 date precedes Mr Cheng’s email.  It  is  highly  unlikely that  when  the  owner and the plaintiff concluded their contract  in March 2014, the  main contract  and its extracts were not already drafted. Accordingly, I am  satisfied  that the  defendant was already aware of the Glass Specifications  by the date of the Subcontract.  

51    I therefore find that the Glass Specifications have been  incorporated into the Subcontract.  

52    The  plaintiff and the defendant  both  engaged  expert witnesses. The experts  prepared individual expert reports.  The plaintiff’s expert  witness was  Ms Christina Metia Gadis Lestiana  (“Ms Lestiana”)  of Setsco Consultancy International Pte Ltd.  Her  report  is  dated 5 October 2018.  The defendant’s  expert witness  was Mr Victor Temkin  (“Mr Temkin”).  His report is  dated  28 November 2018.  The experts also prepared a joint  report dated  1 February 2019.

53    The glass curtain  wall consisted of tinted glass panels  in three colours: grey, light green and dark green.  In their  joint report, both experts agreed on the following: ³²

(a)    The bubbles on the glass panels are distinguishable from the white spots and specks.  The white spots and specks appearing on the glass panels were found  only  on the dark green  panels.  Specifically, the white spots and specks were discolorations of the coloured solar coating found on the  outer side of the external  dark green panels. ³³  The light green and grey  panels were entirely free from any white spots and specks.  In  her report, Ms Lestiana  said  that that “[m]ost of the defect occurred on the dark green panel”. ³⁴  Likewise, in his report, Mr  Temkin  observed that “[m]ultiple white spots appeared due to corrosion of the coating” ³⁵ , affecting only the “Type 3” dark green panels.  

(b)    The white spots  and specks did  not affect the structural integrity and safety of the glass panels.  

(c)    While the colour coating  applied to  the dark green panels  carried  solar properties, it  was  unclear the extent to which, if any,  the  solar  properties  if the coating  had  been compromised as a result of the white spots  and specks. 

54    With respect to (a), Ms Lestiana elaborated at trial that the bubbles found on the glass panels, while considerably fewer  than  the white spots and specks,  were true delamination defects in the technical sense, ie,  they arose from the  loss of adhesion between the assembly of laminated glass bonded with the PVB sheets. ³⁶   However, the solar properties would not be compromised because the solar (or heat reflection) properties of the glass panel originate from the colour coating. The bubbles  occurred only  on the PVB layer of the glass. ³⁷   The delamination arose because of air trapped within the glass and the PVB and where air has been trapped,  causing the bonding to give way. ³⁸  

55    With respect to (c), Ms Lestiana  elaborated in  her report that  it would also be reasonable to conclude that the solar properties of the dark green panels would be compromised  due to the corrosion observed even though no tests were carried out. ³⁹   At trial, Ms  Lestiana  did  say  that the extent of deviation could only be determined with a further test,  without which  she could not conclude quantitatively how much the white spots would compromise the solar properties of the glass panels. ⁴⁰  

56    Mr Temkin on the other hand, was more circumspect in his assessment. He said  that measuring the difference in the solar properties of the dark green  panels affected by the white spots would be an immensely complex task, given the three types of glass present  and  the possibility of measuring  the solar properties  in different places and times. Overall, Mr Temkin could neither confirm nor deny whether the solar properties of the dark  green  panels would be affected. In his opinion, it  was simply not possible to tell. ⁴¹

57    The primary areas of disagreement  between the two experts  related  to: (a)  first, whether or not the white spots and specks  would grow  larger over time; (b) second, whether the white spots and specks were  only  aesthetic defects;  and  (c)  third, the actual cause of the white spots  and specks.

58    As to whether the white spots would  grow  larger  over time, Ms  Lestiana said  that she was unable to  express a  definitive  opinion on this. To do so, she would have to break the glass panels to conduct  a microscopic  examination. However, she noted that it was unlikely for the white spots to appear  suddenly. Instead, it was likely that they started  smaller than would be visible to the naked eye  and  grew larger over time  to the point where they became visible. This is because  the  cause  of the defect was a chemical reaction that would  require  time  to take place. ⁴²

59    Mr Temkin’s opinion was that the white spots  and specks were in fact stable and  would not  grow larger over time.  At trial, he was asked the basis for his opinion. He  explained  that  he  had found that  scratching  the glass panels did not enlarge the white spots  and specks. Thus,  it  was  reasonable to  conclude  that  the spots  would remain stable. ⁴³  

60    I  observe  that in cross-examination,  the defendant’s Project Manager,  Mr Tan Eng Hooi  (“Mr Tan”), agreed that during the joint inspection on 17 October 2016, more white spots had appeared  on the glass panels  and  that  white spots that had been previously observed had  grown larger. ⁴⁴

61    As to whether the white spots and specks affect the  solar properties  of the glass panels, both experts agreed that  they  would not. However, Ms Lestiana emphasised that the white spots were unsightly and thus aesthetically unacceptable. Mr Temkin was of the view  too  that these were aesthetic defects, albeit only visible from within the building and not from outside the building. ⁴⁵  

62    At trial, Mr Temkin explained that an occupant’s  vision through the glass  would inevitably be  affected  as a result of the white spots and specks. He  declined to elaborate any further,  however, saying that  he was not an expert in architecture or aesthetic aspects of  construction. ⁴⁶

63    As to the  root  cause of the white spots and specks,  neither expert was able to express a definitive opinion. ⁴⁷  The tenor of their evidence, though, was that it was likely to be  a manufacturing defect  and not due to poor installation.

64    The plaintiff argues that the Glass Defects  are a  breach  of cll  2.2.1(a) and 2.2.8(b) of the AS.  Clause 2.2.1(a) of the AS should be interpreted as covering both the surface and  the  interior of the glass panels. In this respect, the coating  applied to  the glass panels are inextricably linked with the glass panels. The coating and the glass should thus be treated as an integral whole. ⁴⁸  Additionally, the presence of numerous white spots and specks on the glass panels of the glass curtain wall would necessarily interfere with an occupant’s  vision  through the glass panels.  Thus, by virtue of the Glass Defects, the defendant breached  cll  2.2.1(a) and 2.2.8(b) of the AS. 

65    The defendant’s position is that it  did  not breach either  cl  2.2.1(a) or  cl 2.2.8(b) of the AS.  The defendant argues that  cl  2.2.1(a) of the AS is concerned only with  the glass and specifically, the  surface of the glass panels  rather than  the coating  applied to  the panels,  which  is the location of  the Glass Defects.  The plain words of  cl  2.2.1(a)  concern the  edges and the portion of the glass exposed and do not make any reference to the  coloured  coating  applied to  the glass panels. Because the Glass Defects arise from the coating and not the glass panels, there can be no breach of  cl  2.2.1(a). ⁴⁹  Clause 2.2.8(b) of the AS is concerned  exclusively with whether there has been any obstruction of  vision through the glass panels. There has been no such obstruction occasioned by the Glass Defects. ⁵⁰  

66    Clauses 2.2.1(a) and 2.2.8(b) of the AS  provide  as follows:  ⁵¹

67    I  reject the defendant’s interpretation of  cl  2.2.1(a)  of the AS  as  being  unduly narrow.  

68    First,  I do not think that  cl  2.2.1(a)  of the AS  is concerned solely with the surface, as opposed to the interior, of the glass panels. While the defendant  points out that  cl  2.2.1(a)’s reference  to  “undamaged edges, ground smooth when exposed, and surfaces” necessarily confines its operation to the surface of the glass panels,  this should be read in its full context. Clause 2.2.1(a)  goes on  to  provide  that that the panels should be “free of bubbles,  waves,  air holes, scratches and all other defects”.  

69    “Bubbles,  waves,  air holes [and], scratches” must  necessarily intrude into  the interior of a glass panel, however minor the  intrusion  might be. It is difficult to conceive how any one of those defects could be confined to the surface  of a glass panel. As  defendant’s  counsel  conceded,  quite fairly, even  his  example  of a bubble on the exterior would mean  that  the glass panel would not be smooth. The corollary of  that would be that  the bubble could dip into the interior of the glass panel. ⁵²  So too, even  a  hairline scratch would dip into the interior of the glass panel.  And an “air hole” obviously goes beyond the surface.  

70    Second, I accept the plaintiff’s submission  that it would be artificial  to  treat  the glass panel  and the coating applied to it as different  components. In my view, the  glass panel  and the coating  operate as a single system and  should be seen as  an integral whole. 

71    Mr Cheng  gave  evidence that the  defendant’s  delivery  obligation  comprised  both the glass panels and its coating. ⁵³  Furthermore, this  is supported by the evidence given by both expert witnesses. Ms Lestiana explained that it would be appropriate to view the glass panel  holistically, as a system  consisting of tempered glass sheets, with or without coating, held in place by an interlayer of PVB. ⁵⁴  

72    Similarly, Mr Temkin explained that the coloured coating, through numerous layers of metal oxide,  would be applied  by  the magnetron technique  before  the glass together with the coating was  subjected to the tempering process. ⁵⁵   The coating itself  is not available as an individual component. No glass manufacturer sells  coating  separately. It  can be applied  only by  using  the  specialised  magnetron process. ⁵⁶  Commercially, both the coating and the glass  are  invariably  sold together  as a system.  I  therefore  find that the  word “glass” in  cl  2.2.8(b) of the AS should be read to comprise the glass panel  and  its coating.  

73    Glass panels  with bubbles clearly do not meet  the specifications in  cl 2.2.1(a) of the AS. That specification  explicitly requires the glass to be free  of  bubbles.  Further, I accept that the white spots and specks  fall within the  catch-all words “all other defects” in  cl  2.2.1(a). I interpret the word “defects” broadly to encompass imperfections or flaws. After all, it is undisputed that both experts consider these white spots and specks to be  – at the very least –  aesthetic  imperfections or flaws, as  set out  at  [61]  above.  This of course does not  address  the further issue of the appropriate measure and quantum of damages. That issue  will  be  central in  the assessment of damages.  

74    I therefore find that the  presence of the  Glass  Defects  is a failure by the defendant  to meet the specification in  cl 2.2.1(a) of the AS. The defendant  is therefore in  breach of the Subcontract  in this respect.

75    I now turn to consider cl 2.2.8(b)  of the AS. The words “obstruct vision” in cl 2.2.8(b) must be taken to mean  something  more than  de minimis. The word “obstruct” connotes a high degree of impairment or obscuring of vision.  It is true that there is some  delamination  in the panels, at least with respect to the  bubbles. On the whole, however,  I accept the defendant’s submission  with respect to  cl 2.2.8(b). I do not think that the presence of white spots and specks,  even though  numerous on certain panels, can be said to  “obstruct vision”  through the glass.  

76    I note  both experts agree  in their joint report  that the white spots  and specks  do  not affect the  functional  purpose  of the panels, preferring to characterise  the effect of the white spots and specks  as  being  aesthetically unacceptable and unsightly. Notably, neither expert opines that  vision through the glass  panels is  obstructed. ⁵⁷  Indeed, the plaintiff itself employed the terms  “unsightly and/or aesthetically unpleasing to the end-user” ⁵⁸   and “enjoy the view outside the building without any distraction” ⁵⁹ , rather than using  stronger  terms such as  “obscuring”  or  “obstructing”. 

77    Having reviewed the photographs taken by both experts,  I agree with their  observations. ⁶⁰   The white spots and specks  vary in terms of  number,  size and  distribution  in each glass panel. They are  unsightly  and translucent, rather than transparent. But  whether taken alone or on the whole, they  do  not rise to the level of obstructing vision through the glass  panels. An observer  can still  see through the glass panels  with  what would ordinarily be described as  unobstructed  vision. Indeed,  Mr Palaniappan Kannappan (“Mr Kannappan”),  the plaintiff’s Project Manager, candidly admitted  at trial  that  notwithstanding the Glass Defects,  vision through the glass panels was not obstructed. ⁶¹  

78    I therefore find that the presence of the Glass Defects is not a failure by the defendant to meet the specification in cl 2.2.8(b) of the AS. The defendant is not in breach of the Subcontract in this respect.

79    The plaintiff argues that the presence of the Glass Defects, and specifically the white spots and specks  in the  coating of the  glass  panels,  is a failure to meet the specifications in cll  3.3.7(b) and (c) of the NPQS.  

80    The defendant maintains that it  has met the specifications in  cll  3.3.7(b) and 3.3.7(c) of the NPQS. Since the plaintiff has not challenged the emissivity of the glass panels,  it cannot be said that the panels are functionally deficient. Moreover, these clauses, the defendant submits, are of a general nature. The  phrase  “nominally neutral in colour”  in  cl  3.3.7(b) is  a general reference to a particular colour chosen for  a  coating. The  rest of the words of the NPQS refer generally  to the coating. Since the plaintiff relies on both clauses, it is incumbent upon them to plead the meaning of matters of a technical or  specialised  nature, but it failed to do so. ⁶²

81    Clause 3.3.7 of the NPQS provides as follows:  ⁶³  

82    I agree with the  plaintiff  that the white spots and specks  constitute  a breach of  cl  3.3.7(b) of the NPQS.  I am unable to see how the defendant’s submission that  cl  3.3.7(b) is of a general nature  helps  it. While  cl  3.3.7(b) does  provide that  coating  will be uniform in colour, there is no  basis in its words for restricting  its operation to the time the coating is applied  or the time the panels are installed.  Thus, a coating  which complies with cl 3.3.7(b) at the time it is applied  must  not cease to be  “nominally neutral in colour”  or to  be “uniform in tone, hue, texture, pattern and opacity”  after application  by reason of any cause  intrinsic to the coating.

83    It has been established that the white spots and specks arise from a discolouration of the dark green coating.  Coating  which manifests that defect  because of its  intrinsic qualities,  ie  without being acted upon by an external causative agent, fails to  meets  the specification in cl 3.3.7(b)  of the NPQS.  White spots and specks are visibly different from the unaffected  coating on the  panels forming part of the glass curtain wall. White spots and specks the  affected areas of the coating to become translucent instead of transparent.  The coating which manifests this defect is no longer uniform in terms of tone, hue and opacity.

84    I therefore find that the presence of the Glass Defects means that the defendant failed to meet the specification in cl 3.3.7(b) of the NPQS.  The  defendant is therefore in breach of the Subcontract in this respect.

85    Similarly,  it can no longer be said that the “glazed units”  ie,  the dark green panels, have a “consistent appearance” as required by  cl 3.3.7(c) of the NPQS. The numerous white spots and specks that have arisen due to the discolouration of the coating  have  clearly caused an  inconsistent  appearance to the  affected  panels.  

86    Indeed, as Mr Temkin observed, looking through the glass panels –  which also serve as windows that are glazed with laminated glass  –  the white spots and specks would almost certainly affect  an  occupant’s view  of  the outside world. The numerous photographs taken by the experts as well as  by  the plaintiff’s  supervisor ⁶⁴   at the material time, Mr Wong Kwek Min (“Mr Wong”),  show clearly that the affected panels lack a consistent appearance.

87    I therefore find that the presence of the Glass Defects means that the defendant failed to meet the specification in cl 3.3.7(c) of the NPQS.  The  defendant is therefore in breach of the Subcontract in this respect.

88    The defendant submits  that Appendix A  is not incorporated into the  Subcontract. This is because  cl  24.1 of the Subcontract, which refers to a list of documents that form part of the Subcontract,  fails to  refer  to Appendix A  at all. Instead, the only documents that it  refers  to are (a) the  letter of award  and the attached warranties format  in  Appendix C, (b) all main contract documents, drawings and specifications containing, relating and/or concerning the Subcontract works scope and (c) the defendant’s test results, technical data and drawings that are approved by the  architect. As the contracting parties  failed to include  Appendix A  in the list in cl 24.1, it must necessarily mean that the contracting parties did not intend Appendix A to  be incorporated into  the Subcontract.  

89    The defendant’s argument is an overly technical one.  I reject it. I do not think that the omission of the reference to Appendix A in  cl  24.1 of the Subcontract is any  indication  at all  that parties did not intend Appendix A to  be incorporated into  the Subcontract. I accept Mr Cheng’s explanation that the express reference to Appendix C in  cl  24.1 of the Subcontract  is  supplementary and  was  included  in order to specify the format  of  the deed of warranty.  

90    Moreover,  even though cl 24.1  of the Subcontract  makes no reference to Appendix A, it does make express reference to the letter of award and  expressly  incorporates the entire letter of award into the Subcontract by reference.  A closer  review  of the  letter of award reveals  several  objective  indications  that Appendix A  is an integral part of the letter of award and therefore  incorporated  into  the Subcontract by the reference to the letter of award. The applicable legal principles  are once again those  summarised at [34]–[35] above.

91      First, the running page numbers  located at the bottom of each page of the  letter of award  reflects that the entire document consists of 20 pages. Appendix A  appears at  pages 9 to 13. It  clearly  forms part of the 20-page letter of award.

92    Second, the same reference number, GAE/55LOR17/SC/14-09  appears in a running header on  the top  left-hand  corner of each page of the  letter of award, including Appendix A. That  is a strong  objective  indicator that each and every  one of the 20  pages was meant to form part of the  letter of award and thereby to be incorporated by reference into the  Subcontract. In fact, it is undisputed that the  letter of award which the plaintiff sent to  the defendant did include Appendix A.  

93    Third and most importantly, each page of the  letter of award  was signed by  the plaintiff’s and the defendant’s  authorised representatives. Each page was impressed  with each  company’s  official company seal. If  the parties did not intend  for  Appendix A to form part of the  letter of award,  they would not have signed it or impressed their seal upon it. Both parties’ signatures on Appendix A coupled with  their  signatures on  each of the  other pages  of the  letter of award  is highly probative evidence of the parties’ objective intention  that  Appendix A  was to  form an integral part of the  letter of award, and therefore of the Subcontract pursuant to cl 24.1.  

94    I am  therefore  satisfied that Appendix A has been incorporated into the Subcontract.

95    The plaintiff argues that as a result of the Glass Defects, and in particular, the white spots and specks, the defendant breached the Appendix A specification that the glass panels installed have to achieve a shading coefficient value of 0.26.  The function of  the coloured coating  is  to block or control the  amount  of light and heat energy  passing through the glass panels  and into the interior of the building. The white spots and specks  in the coating  have  compromised the coating’s function and  its  ability to block or control  the amount of light and heat energy  passing through the glass panels. ⁶⁵

96    The defendant argues that the  plaintiff  has  failed to discharge its burden of proof by showing how the white spots and specks on the dark green panels  have been compromised, given the experts’  own equivocal  conclusion  on this very  issue.  ⁶⁶  

97    The “Remarks” column of Appendix A  provides as follows: ⁶⁷

98    The reference to “SC value 0.26” refers to  a  shading coefficient value of 0.26. The shading coefficient is a  measure of  a glass panel’s  ability  to  reject light and,  with it, heat. The lower the shading coefficient, the less  light and heat  the glass  panel  will allow  through,  and the greater the glass panel’s shading  ability.  

99    I reject the plaintiff’s submission. Appendix A is clear in specifying that the shading coefficient  of the glass  panels  should be a minimum of  0.26.  Ms Lestiana did not give any evidence on the shading coefficient of the panels manifesting the Glass Defects. ⁶⁸  She said that no tests had been carried out because she did not have the colour coating sample. ⁶⁹  Further, the plaintiff failed to adduce any  other  evidence  to that effect.  There is thus no evidence before me that of  the  actual  shading coefficient  of the glass  panels manifesting the Glass Defects. 

100    The plaintiff  submits that I can infer that  the  white spots and specks  must  have  compromised the  shading coefficient  of the glass panels.  The plaintiff relies on Ms Lestiana’s  observation  that  it is reasonable to conclude that the solar properties of the  affected  panels would be compromised  due to the  Glass Defects, even  though no tests were carried out  to determine this. ⁷⁰   Ms  Lestiana testified, further, that tests were necessary to quantify  the extent of  compromise but not the fact of the compromise. ⁷¹  

101    Mr Temkin  contradicted Ms Lestiana’s evidence.  He was unable to  confirm or deny whether the  shading  coefficient  of the dark glass panels  had been compromised  and  testified that  it was simply not possible to tell  without testing. ⁷²   Further, he added that testing would be an immensely complex task, given the three types of glass present and the possibility of measuring  the shading coefficient  in different places and times of the day.

102    The plaintiff  chose to make it part of its case that  the glass panels supplied by the defendant failed to meet the shading coefficient specified in  Appendix A. The plaintiff has the burden of proving  that failure. It was incumbent on the plaintiff  to carry out the relevant  tests to  supply the necessary proof. It has failed to do so. Given Mr Temkin’s evidence, which I accept,  I have no basis to cure that failure by drawing the inference which the plaintiff suggests  I draw from Ms Lestiana’s evidence.  

103    The  plaintiff has failed  to  discharge its burden of proving  that the presence of the white spots and specks has  compromised the  shading coefficient  of the  glass panels.  I therefore find that the presence of the Glass Defects does not mean that the defendant failed to meet the specification in Appendix A of the letter of award,  which was  incorporated by reference into the  Subcontract. The defendant is therefore in breach of the Subcontract in this respect.

104    The defendant also  submits that the plaintiff has failed to demonstrate on the  balance of probabilities that the white spots and specks on the glass panels were caused by defective  glass  or  by  defective installation. This,  it  argues,  is supported by both the experts’  conclusion that it is impossible to determine  conclusively  the cause of the white spots  and specks.  As causation is an essential element in a contractual claim, the plaintiff’s failure to prove causation  means that I must dismiss the plaintiff’s claim arising from the Glass Defects. ⁷³

105    I reject  the defendant’s submission. The submission  conflates the  cause of  the  defendant’s  breach of contract  with the  cause of the plaintiff’s  loss.  Liability in contract is strict. The cause of the defendant’s breach of contract is irrelevant.  A plaintiff  claiming damages for breach of contract  need prove  only  the  fact  of the  defendant’s breach. The plaintiff is not required to go further and prove the  cause  of the defendant’s breach of contract.  The  only causation burden which lies on a plaintiff  in a contractual claim  is  to show that the  loss  which the plaintiff claims to have suffered was caused by the defendant’s  breach of contract: see  The  Law of  Contract in Singapore  (Andrew Phang Boon Leong gen ed) (Academy Publishing, 2012)  (“The Law of Contract in Singapore”) at paras  17.002  and  17.087. 

106    The  authorities that  the defendant cites to support its  submission  do not assist  it.  For example, the defendant refers to the Court of Appeal’s decision in  Sunny Metal & Engineering Pte Ltd v Ng Khim Ming Eric  [2007] 3 SLR(R) 782 at [63]:

107    However, in the paragraph  above, it is clear that the court was  concerned  there  with whether the breach of contract  had  caused the loss suffered by the  plaintiff  rather than ascertaining the cause of the breach  of contract in the first  place. Thus Andrew Phang JC (as he then was)  observed at [64] that  “[f]or the determination of whether a defendant’s wrongful conduct is a cause  in fact of the damage to a claimant,  the test, which has almost universal acceptance, is the so-called “but for” test”  [emphasis added].  The defendant’s reference to  Anti-Corrosion Pte Ltd v Berger Paints Singapore Pte Ltd and another appeal  [2012] 1 SLR 427 is similarly unhelpful. The Court of Appeal there was  likewise  concerned with  applying  the “but for” test of causation to demonstrate the  necessary causal link between the breach and the  loss claimed  by the plaintiff  (at [39]). 

108    It has not been suggested that the cause of the Glass Defects is anything other than the features intrinsic to the glass itself.  Since the defendant’s obligation under the Subcontract is to supply, deliver and install glass panels for the glass curtain wall that  meet the contractual specifications, its failure to do  is  a breach of the Subcontract.  It does not matter why the defendant is in breach.  Determining the cause, or  more  specifically the mechanics  of  the Glass Defects, is not an element that the plaintiff has to demonstrate.  

109    As I have found  at [74],  [84] and [87]  above, I am satisfied that the  defendant has  breached the Subcontract by failing to meet those specifications. The plaintiff is under no burden to prove the cause of its failure to meet those specifications.  

110    I  now turn to  consider  the defendant’s argument that the plaintiff prevented the defendant from rectifying the Glass Defects on various occasions. The defendant’s argument is two-pronged. First,  the plaintiff  would not allow the defendant to  rectify the  glass panels  without first  providing  documents that  it was not contractually obliged to provide such as purchase orders, shipment documents, rectification schedules and a confirmation of the number of glass panels to be ordered.  Second,  the plaintiff failed to cooperate with the defendant by not allowing the defendant to obtain glass samples for testing and investigation. ⁷⁴  By making the defendant jump through an unnecessary  series of hoops, it  is  the plaintiff’s own fault  that  the  Glass Defects  were left  unrectified. ⁷⁵  

111    I do not accept the defendant’s argument. The critical point to my mind is that the Glass Defects began to appear soon after the TOP was issued and when the subsidiary proprietors were beginning to take possession of their units.  It is true that  the plaintiff did not have  a  contractual basis  for the requests which they made of the defendant. But the plaintiff  did  not, in  all  the circumstances,  act  unreasonably by making these requests.  An overview of the  correspondence between the parties  suffices  to  establish this.  

112    I start with the  plaintiff’s emails to the defendant on 19 August 2016 ⁷⁶   and 26 August 2016 ⁷⁷   informing the defendant of the Glass Defects and  asking  the defendant to provide a schedule of rectification works. The defendant did not reply. The  plaintiff’s  follow-up  email dated  17  September 2016  also went without a reply. ⁷⁸  

113    Following a site visit  on 17 October 2016, the plaintiff sent a further email reiterating the urgency of the  rectifications  works as  the subsidiary proprietors had already began taking possession of their  units. By then,  the  defendant had provided  no comprehensive schedule and  no  course of action  to rectify  the Glass Defects. ⁷⁹  

114    The parties conducted a  further joint site inspection on 20 October 2016. The defendant’s expert, Mr Temkin,  was  present. On 24 October 2016, the plaintiff sent yet another  email  to the defendant,  seeking written confirmation  that the defendant agreed to  rectify the Glass Defects and  would propose  a rectification schedule. ⁸⁰  The defendant’s reply on 26 October 2016 merely  said  in vague terms that it would be “replacing bubble panels” and that “[g]lass had been order  [sic] and will arrive and deliver to site 4 weeks from today’s date. The installation will take 2 weeks upon glass arrival at site”. ⁸¹  

115    The plaintiff  replied on 27 October 2016. It did not object to the defendant’s commitment, but merely asked for further confirmation of the quantity of replacement glass panels by way of a purchase order and shipment document. ⁸²   The defendant did not provide any of these documents. In its 4 November 2016 email, the defendant merely  said  that the replacement glass would be delivered to site “in next 2 weeks” and requested access to the units for the replacement works to be carried out. ⁸³  

116    On 8 November 2016, the plaintiff sent yet another email emphasising the need for  a comprehensive rectification schedule. ⁸⁴   Mr Kannappan noted that the plaintiff remained entirely in the dark about the quantity of glass panels that  were ordered. He stressed that having a competent supervisor on-site would be imperative. Despite the defendant’s  ad hoc  and  last-minute  request for access to unit #05-03 on the morning of 8 November 2016, the plaintiff nevertheless granted the defendant access. However, subsequent to the replacement works, Mr Kannappan sent an email enclosing various photographs of the works undertaken. He expressed concern about the defendant’s lack of Personal Protection Equipment or fall prevention plan and the need for a comprehensive schedule for rectification. ⁸⁵   The works carried out by the defendants clearly fell  short  of the worksite safety requirements under cl 14 of the Subcontract. Even  the defendant’s director,  Mr Arulchelvam  Jeyalingam  (“Mr Jeyalingam”), accepted at trial that  the practice  was  unacceptable. ⁸⁶  

117    The plaintiff repeated the same requests  in its email of  11 January 2017. The plaintiff asked the defendant to provide a schedule to enable the plaintiff to make the necessary arrangements in a systematic manner. ⁸⁷   After taking measurements for units #06-05 and #06-06 on 14 January 2017, the defendant still failed to provide a schedule. Instead, it  asked for access to units #02-02, #03-02, #05-02 and #06-02 on the same morning that it intended to carry out replacement works. Although expressing  displeasure, Mr Kannappan nevertheless granted access for units #02-02, #03-02 and #06-02  of the Project. Again, he asked for  a rectification schedule and supporting documents for the replacement glass panels that were to be ordered by 18 January 2017. Once again, the defendant failed to  meet  this deadline. That  prompted  Mr Kannappan to send another email on 19 January 2017 for the defendant to “respond on the  next course of action”. ⁸⁸   Thus, no further replacement works were carried out after 8 November 2016.  

118    I  do not accept  that the plaintiff’s conduct amounts to some form of a  waiver of the defendant’s breach of the Subcontract. A common thread throughout the correspondence between the parties  was  the plaintiff’s reiteration to the defendant that  the defendant  ought  not  to  expect  the plaintiff to approve  a request  for access to carry out  replacement works  which was made on the day of the intended works.  Advance notice  should  to be given, especially in light of the fact that some of the units containing the Glass Defects had already been handed over to the  subsidiary proprietors. Similarly, the request for the defendant to provide copies of purchase orders and shipping advice of the replacement glass panels, a copy of glass measurements, quantities and locations as well as a schedule from ordering to delivery to installation  were  all  perfectly reasonable  requests. This would  invariably help  facilitate the flow of replacement works, especially in light of the fact that by  July  2016, several units had already been handed over to the various  subsidiary proprietors. ⁸⁹   A rectification schedule would be a common sense  and pragmatic way of coordinating the replacement works between the defendant and the  subsidiary proprietors  who had already taken possession  of the individual units. ⁹⁰  

119    As for  the defendant’s requests  to  retrieve  glass samples for testing, this must be seen in the context of  the defendant’s failure to provide a  schedule for such collection, as was candidly admitted to by Mr  Jeyalingam  at trial. ⁹¹   In an email sent by the plaintiff’s solicitors to  the defendant’s solicitors  on 12  September 2017, the plaintiff was clear that it had no objections to  the defendant retrieving  glass panel samples for analysis, provided certain requirements were met. These requirements  included  conditions such as requiring the defendant to  specify  the institution or laboratory  to which  the glass panels would be sent for analysis, ensuring that representatives of the institution or laboratory be present at the building premises to receive the glass panel samples and ensuring that the replacement glass panels conform  to  the contractual specifications. At trial, Mr  Jeyalingam  interpreted the latter requirement as referring to the temporary glass panels that had to be installed. He complained  that  it was  “ridiculous”  for the plaintiff to require  even panels which were purely  temporary  to  conform to the Subcontract specifications. Yet,  the defendant did not make any such  objection at the time the letter was sent. ⁹²  

120    In any event, I am not  persuaded  that this reference to replacement glass panels in fact referred to the temporary glass panels that had to be installed pending the laboratory analysis. To interpret it this way would  render  the need for  additional  replacement works completely otiose.  Most telling is  Mr  Jeyalingam’s own acceptance at trial that all the  other requirements contained in the letter, such as the requirement of an appointment of a supervisor to oversee the works and conducting a risk assessment were all reasonable and in fact,  mandatory. ⁹³   This was contrary to his initial assertion  in his affidavit of evidence in chief  that such requirements were unnecessary. ⁹⁴  If so, there would  have been  no conceivable reason for the defendant to object to the plaintiff’s requests.  

121    As a result, there is no merit to the defendant’s submission that the plaintiff  placed  various obstacles  in the defendant’s way  making  it  unreasonably difficult for the defendant to carry out the replacement works. On the contrary, the plaintiff  acted reasonably  throughout. Its requests for documents were  eminently  reasonable given the defendant’s failure to follow-up on its promises to rectify the Glass Defects. The defendant had however, failed to give proper updates  and  insisted on last minute and  ad hoc  access. The state of the  replacement  works were erratic and unsatisfactory to say the least.  

122    The plaintiff  argues that the defendant breached  cll  2.6 and 2.12 of the Subcontract by  failing and refusing  to submit the as-built drawings and the 10-year joint warranty for the Works respectively. This is  despite the plaintiff’s request by emails  to the defendant on  29 June 2016  and  23 August 2016  asking  the defendant to submit  four  sets of as-built drawings by 30 August 2016. ⁹⁵  

123    The plaintiff sent the defendant another  letter  dated 26 August  2016 asking the defendant to submit,  inter alia, the as-built drawings and the 10-year warranty. ⁹⁶  The plaintiff sent a reminder by email on  24 October 2016. ⁹⁷  All this was to no avail.  

124    As a result, the plaintiff incurred time and expense  amounting to approximately $18,500 ⁹⁸   in providing the as-built drawings to the  owner  in  November 2016. ⁹⁹  Both the as-built drawings and the  10-year  joint  warranty  were  required for the  architect to issue the  CoC. ¹⁰⁰   As the defendant did not provide the 10-year warranty to the plaintiff, ¹⁰¹   the plaintiff had to execute a sole warranty in respect of the aluminium and glazing works, causing it to become solely liable to the  owner for any loss or damage resulting from defects in the Works. ¹⁰²   The sole warranty was executed on 10 April 2017. ¹⁰³

125    I begin by considering  the defendant’s  argument that  cl  2.6  of the Subcontract  is void for uncertainty.  The defendant  submits that an interpretation of  cl  2.6 that allows the plaintiff to  ask  for as-built drawings at any time whatsoever  is illogical because  it would allow the plaintiff to  exercise this right even  when goods and materials had  yet to be installed or even  before the defendant had carried out any  works. ¹⁰⁴  The defendant’s argument is that as-built drawings  can,  by definition, be produced only after a contractor  or sub-contractor has completed its construction works. ¹⁰⁵   That is because as-built drawings are drawn up to reflect  the changes made in the specifications and working drawings  during the construction process.

126    The plaintiff on the other hand argues that  cl  2.6 is not void for uncertainty given Mr Jeyalingam’s admission during cross-examination that the defendant was obliged to provide as-built drawings pursuant to  cl  2.6. ¹⁰⁶

127    It is a well-established  principle of law that before there can be a concluded contract,  the  terms  of the contract must be certain and complete. The  Law of Contract in Singapore  says  at  paragraphs  3.145  and 3.146:

128    That being said, the learned authors  of the  Law of Contract in Singapore emphasise at para 3.148  that the  “courts do not expect commercial documents  to  be drafted with the  outmost precision and certainty”. To take  that  approach would  defeat commercial expectations by striking  down bargains reached by two parties who might not  have paid as much attention to precision as parties who were legally advised. Indeed, it is not uncommon for the courts to have recourse to a previous course of dealing or trade practice  to remedy potential uncertainties or gaps in the terms of a contract and to uphold commercial expectations (Grossner Jens v Raffles Holdings Ltd  [2004] 1 SLR(R)  202  and  Gn Muey Muey v Goh Poh Choo  [2000] 1 SLR(R) 704)  or even the general touchstone of reasonableness (Hillas & Co Ltd v Arcos Ltd  (1932) 147 LT 503). It is so as not to defeat commercial expectations that a court strives to  uphold  agreements  where possible rather than to strike them down on the basis of uncertainty (Gardner Smith (SE Asia)  Pte Ltd v Jee Woo Trading Pte Ltd  [1998] 1 SLR(R) 950 at [10]–[11]).  

129    Clause 2.6 of the Subcontract reads as follows: ¹⁰⁷

130    I reject  the defendant’s  argument.  The defendant is right that a literal reading of  cl  2.6  – and  of  the phrase  “as and when required”  within it – suggests  that the plaintiff is entitled to  ask  for as-built drawings at any time. But that does not  in itself  mean  that cl 2.6  is uncertain.  The most that can be said is that cl 2.6 is capable of operating unreasonably or uncommercially.  Even then,  a  contextual  interpretation of  cl  2.6, bolstered by industry practice, suffices  to  alleviate  any  unreasonable or  uncommercial consequences  which  may  arise from a  literal interpretation.

131     As-built drawings reflect the completed state of works in a building and are required for submission to the relevant authorities to obtain statutory approvals. It is  consistent with that commercial purpose  that as-built drawings can and will  ordinarily  be  asked for and prepared  only after construction works  are complete.  Mr Kannappan did  however  accept  that as-built drawings may sometimes be prepared while construction works are ongoing. This is typically in situations where there are changes or variations to the scope of original contractual works. ¹⁰⁸   But he accepted that  this was wholly exceptional.  

132    Simply put, a main contractor acting commercially will not in ordinary circumstances ask for as-built drawings at any time before construction works are complete. The phrase “as and when  required”  can  therefore  easily  be  interpreted, applying the contextual approach,  to refer to any time  after  the construction works are completed, save for circumstances which are  commonly accepted  in the industry  as exceptional.   

133    There is  therefore  no basis  for  the defendant’s  argument that cl  2.6 of the Subcontract is uncertain  and unenforceable. It is a term of the parties’ contract  and  binds  the defendant.

134    The defendant’s alternative argument is that cl  2.6  on its proper interpretation  means  that  the plaintiff is entitled to call for  as-built drawings only  when the  architect requires them in order to  obtain statutory approval and only when the plaintiff has  confirmed that the defendant has satisfactorily  completed its scope of Works. On that interpretation,  and on the facts of this case,  the plaintiff is not entitled  to  call for  the as-built drawings.  The defendant submits that the plaintiff’s conduct was inconsistent. On the one hand, it  asked for  the as-built drawings, suggesting that the Works had been completed to its satisfaction.  On the other hand, it was  at the same time  asking  the defendant to rectify defects,  suggesting that the Works had not yet been completed to its satisfaction. ¹⁰⁹  In addition, the defendant submits that there could be no breach of  cl  2.6 of the Subcontract as the plaintiff was in actual possession of the as-built drawings submitted by the defendant  through a link contained in an email  to the plaintiff dated 29 June 2016 or  in its bundle of documents  prepared  for the purposes of the  adjudication application. ¹¹⁰

135    The defendant’s arguments  cannot succeed.  There is no inconsistency between the plaintiff’s request for as-built drawings for the purposes of seeking statutory approval and the plaintiff’s request for the defendant to rectify the defects. These are two wholly different contractual obligations imposed on the defendant pursuant to the Subcontract. It is entirely plausible for the  plaintiff  to  ask  the defendant to rectify defects arising from its Works while asking  the defendant  at the same time  to submit the as-built drawings in order to obtain the  CoC  from the  architect.  

136    I also  do not accept  the defendant’s submission that it  provided the as-built drawings either via a link in its 29 June 2016 email  or through its bundle of documents submitted for the  adjudication application. 

137    As  to the link “for the C2, C3 status of the ST submissions” contained in the defendant’s 29 June 2016 email ¹¹¹ ,  I accept Mr Kannappan’s evidence that the link did not in fact  lead to the  as-built drawings. Indeed,  this  is clear from Mr Kannappan’s reply on the very same day. He  acknowledged the defendant’s email by  noting the contents but asking again for the defendant to submit the as-built drawings:  “Noted and submit your as-built drawings”. ¹¹²   Mr Kannappan described the link provided by the defendant as a link to the BCA website concerning the status of the ST submissions. I am persuaded that the link did not  lead to the  as-built drawings as is now claimed by the defendant.  

138    First, the contemporaneous evidence  is  that Mr Kannappan  replied to  the defendant’s email on 29 June 2016  by asking again  for  the as-built drawings. That  suggests that the link did not in fact contain the as-built drawings. There was no  contemporaneous  challenge by the defendant at that time suggesting that Mr Kannappan’s repeated request for the as-built drawings was  unfounded or without basis.  

139    Second, I fail to comprehend how the defendant’s actions square with its current position. If the link indeed  led to the  as-built drawings, it would be reasonable to expect the defendant to clarify and re-direct Mr Kannappan to the link provided in the email. And if  the defendant had prepared  the as-built drawings and provided  them at  the link, complying with the plaintiff’s subsequent request would be  a  straightforward  clerical  task  of re-sending the link. Nevertheless, none of this was done.  

140    As the adjudicator also explained in his reasons for the  adjudication application  at para 174: ¹¹³

141    It is telling that at trial, Mr  Jeyalingam  was unable to provide a satisfactory answer when asked why the defendant could not just simply re-send the link if it in fact  led to  the as-built drawings. Rather, his explanation was that  at that point in time, the defendant was trying to rectify things but was not allowed to. ¹¹⁴  If this were an  implicit admission that the as-built drawings were withheld for strategic reasons to impose pressure on the plaintiff, it would nevertheless  not  be  a valid reason to  excuse the defendant from its  performing its  obligations under  cl  2.6 of the Subcontract. Ultimately, Mr Jeyalingam also admitted that he did not know how the link worked and did not know whether it in fact worked. ¹¹⁵

142    I am  also  not persuaded by the defendant’s submission that it had complied with its obligation under  cl  2.6 by enclosing as-built drawings in its payment claim made in support of the  adjudication application  on 22 August 2016. ¹¹⁶  At trial, the defendant pointed to the similarity between the drawings enclosed in its  adjudication application  and  the as-built  drawings contained in Mr Kannappan’s  affidavit of evidence in chief. 

143    However, Mr Kannappan clarified that the  as-built  drawings contained in his  affidavit of evidence in chief, while similar to the drawings submitted by the defendant in support of its payment claim for the  adjudication application, were not the as-built drawings submitted  by  the defendant. In order for the as-built drawings to be prepared, the plaintiff had to convert the structural drawings to AutoCADs and to make several adjustments, such as changing the title blocks and the format. Only then could the drawings be submitted to the  architect as as-built drawings. ¹¹⁷   The process of converting the PDF version of the structural drawings to AutoCAD and printing the as-built drawings  was non-trivial. It  took  the plaintiff close to a week of work. That could have been avoided  had the defendant just provided the as-built drawings pursuant to cl 2.6.  

144    I accept Mr Kannappan’s explanation that the drawings submitted by the defendant  in the adjudication application  were not as-built drawings.  Rather, those drawings were BCA-approved construction drawings, otherwise known as structural submission drawings. Mr Kannappan’s position is  supported by the contemporaneous evidence, namely,  his  email  sent a day later, on 23 August 2016, asking  the defendant to “submit your PE endorsed as-built drawing (hard copy & CD rom)” on or before 30 August 2016. ¹¹⁸  If  the defendant  had  in fact  submitted the as-built drawings  in the adjudication application, it  failed to make this  clear to the plaintiff  as  it  neither replied to  Mr Kannappan’s email nor challenged Mr Kannappan’s request at all. The defendant’s noticeable silence on this matter  continued when the  plaintiff’s  wrote to  the defendant on 26 August 2016 and  emailed the defendant  again  on 24 October 2016.  

145    I also note the defendant’s inconsistent positions with respect to the as-built drawings throughout these proceedings. At trial, Mr Jeyalingam  raised the new argument  that the plaintiff already  had  the as-built drawings even before TOP was issued, because the as-built drawings must have been required for the TOP. In Mr Jeyalingam’s view, the plaintiff’s request for the as-built drawings would be superfluous as it would be something that the plaintiff already had at the time. It was on this basis that the defendant was entitled to reject the plaintiff’s request. ¹¹⁹  

146    I am  not satisfied with  Mr  Jeyalingam’s  explanation. This was never expressed as the  defendant’s  position in any of the correspondence between the  parties. As Mr  Jeyalingam  conceded, he  had  never  personally said  that the plaintiff should already  have  the as-built drawings. ¹²⁰

147    As such, by failing to provide the plaintiff with the as-built drawings, the defendant has breached  cl  2.6 of the Subcontract.

148    It is undisputed that the defendant  has failed to  provide  the  10-year  joint  warranty. ¹²¹

149    The defendant argues that  cl  2.12 of the Subcontract  – like cl 2.6 –  is void for uncertainty. This is because  cl  2.12 purports to impose upon the defendant an obligation to provide the 10-year joint warranty as and when required by the plaintiff, the  architect and the consultants. That  means  that  the plaintiff can demand the warranty  at any time, even  before  the Works  are  carried out. As the joint warranty is to remain effective for 10 years from the date of completion of the  main contract, it is imperative that the completion date be known to all parties involved before the warranty can be provided.  According to the defendant, the words “as and when required” in  cl  2.12  are  illogical, incapable of meaning or interpretation  and thus  make  it impossible for the warranty to be furnished if called upon  before that  date being known or  finalised. ¹²²

150    Clause 2.12 of the Subcontract reads as follows: ¹²³

151    I reject the defendant’s argument.  At least in relation to cl  2.6 of the Subcontract, the defendant could argue that the as-built drawings by definition cannot  depict what does not yet exist. But cl  2.12  is entirely different in nature. A  10-year joint warranty can be signed at any time.  It can even be signed before the start date of the warranty is known. It  is  entirely possible for the defendant to warrant  today  but for it to only take effect in the future.  And that future date can either be a specific date or a date defined by the matrix of contracts underlying the Project.  

152    The industry practice of when warranties  like these are called for and signed is a separate matter. It  suffices to note only that a  literal  interpretation  of  cl 2.12 of the Subcontract  does not give rise to insurmountable uncertainty.  Further, a contextual interpretation akin to that employed for  cl  2.6 suffices  to remedy any interpretive gap  between what is possibly meant and what is probably meant in the industry by  the phrase “as and when required” in  cl  2.12.  That contextual approach would lead to the conclusion  that the defendant  is contractually  obliged to furnish the 10-year joint warranty at the request of the plaintiff, the  architect or consultants at any time  after  the defendant  has completed  the  Works.

153    There is simply no merit to the defendant’s argument that  cl  2.12 is illogical and incapable of proper interpretation such as to render it  unenforceable.

154    The plaintiff argues  that the defendant breached  cl  2.12 of the Subcontract by failing to  provide the 10-year joint warranty despite the plaintiff’s repeated requests to the defendant to do so. Moreover, the plaintiff submits  the true reason why the defendant failed to provide the 10-year joint warranty in August 2016 was because the plaintiff had raised issues concerning the Glass Defects and had withheld moneys payable to the defendant.  The defendant thus considered it justifiable to  hold  the warranty  hostage,  as a form of leverage. Indeed, Mr Jeyalingam candidly admitted  this at trial. ¹²⁴

155    The defendant  suggests  an interpretation of  cl  2.12 that makes the defendant’s obligation to provide the 10-year joint warranty conditional upon the plaintiff’s cooperation  in doing so,  by  confirming  and accepting that  the defendant had  completed  the Works.  On that interpretation, the defendant  did  not breach  cl 2.12  because  the plaintiff (a) did not accept and confirm that the defendant had completed its scope of Works, (b) did not cooperate with the defendant  to provide the joint warranty and (c)  was blowing hot and cold by demanding that the curtain wall be rectified and replaced. ¹²⁵  

156    I reject the defendant’s argument. Even if  I accept the  defendant’s interpretation of  cl  2.12, there is no evidence to suggest that the plaintiff was not ready to cooperate and  hold up  its end of the 10-year joint warranty. ¹²⁶  

157    I also do not think that the plaintiff failed to confirm that the defendant had completed  the  Works. Although I consider this in greater detail in respect of the Completion Issue  below  at [226]–[241],  it is clear from the correspondence between the parties and the payment responses from the plaintiff that the plaintiff’s requests to the defendant related only to defects arising from the defendant’s completed  Works  rather than any outstanding  Works.  

158    For example, in its 26 August 2016 letter to the defendant  asking  for the 10-year joint warranty,  the plaintiff also provided a list of  “outstanding” Works. However, the list comprised  only  the  as-built drawings, the water tightness report, the replacement of the seventh storey door and the Glass Defects. ¹²⁷  Apart from this, the plaintiff made no further reference to any works  which had yet to be completed. It would be reasonable to assume that the plaintiff considered the defendant to have completed  the  Works.  The list was referring to the rectification of defects  in the completed  Works, which was  an entirely distinct issue.

159    The defendant’s argument  is  that it is incongruous for the plaintiff to demand on one hand, the replacement of the glass curtain wall, and on the other, to  ask  the plaintiff to provide the 10-year joint warranty. This argument too  is misconceived. The crux of the argument is as follows: if the plaintiff deems the Works to be unacceptable, on what basis  can it ask the defendant to issue  the  joint warranty?  I  accept  the plaintiff’s submission in response  that there is no reason why the plaintiff’s rejection and request for rectification of the defendant’s defective Works should excuse the defendant from its separate and independent obligation to provide the joint warranty  pursuant to cl  2.12 of the Subcontract. ¹²⁸  These are entirely distinct obligations that protect  distinct interests: the joint warranty is to ensure that the plaintiff and the defendant  are  jointly liable for any defects that  may  arise during the 10-year period after completion of the Works whereas the contractual entitlement for the plaintiff to demand rectification of completed Works with defects that have  already  arisen.  

160    Finally, even if the plaintiff had unjustifiably withheld moneys payable to the defendant under the Subcontract, this would not  justify  the defendant’s decision to withhold the 10-year joint warranty  and  somehow  insulate it from  contractual liability  for breach of cl 2.12. Simply put, a party’s breach of a contractual obligation does not excuse the other party’s breach of a separate contractual obligation – the operative word being “separate”  – one breach does not, in itself, justify  another breach.  

161    I  therefore  find that  by failing to provide the plaintiff with the 10-year joint warranty, the defendant breached  cl 2.12 of the Subcontract.

162    The plaintiff  contends  that the defendant’s failure to ensure that the glass curtain wall and/or the aluminium and glazing works were sufficiently  watertight  constitutes a breach of  cl  2.2 and Appendix A of the Subcontract. This is evidenced by  the  water leakage occurring at  the windows and curtain wall. ¹²⁹  The plaintiff submits that earlier attendances to the water leakage incidents by its workers revealed the defendant’s unacceptable waterproofing and shoddy workmanship in its installation of the windows. In this regard, the original grouting at some of the window frames was not applied properly and resulted in its hollowness. ¹³⁰  Grouting refers to the process by which  a  paste  is applied to fill the  gaps  between adjacent tiles and support joints. There are two major  types  of grout: (a) cement-based grout and (b) epoxy-based grout.  

163    The plaintiff’s workers  also  discovered timber blocks in some of the frames. These blocks should have been removed  before grouting was injected into the gaps surrounding the frames to achieve a proper seal and water tightness. In doing so, the defendant had improperly grouted over the temporary frame supports. ¹³¹  Evidence of the water leakage and the faulty grouting are reflected in a series of photographs captured by Mr Wong. ¹³²  

164    Following the grant of the TOP on 28 June 2016, water leakage began to appear at various locations of  the windows and curtain wall. ¹³³   The defendant failed to rectify the water seepage at units  #02-11, #03-09, #03-10, #05-09,  #05-11,  #05-15,  #06-14  and #07-13. ¹³⁴   This was despite the plaintiff’s emails to the defendant on the following dates: 30 November 2017, 8 January 2018, 13 January 2018, 27 January 2018 and 5 February 2018. ¹³⁵   The plaintiff proceeded to notify the defendant of the deduction of $5,587 for the labour costs incurred in its Payment Response No 35 dated 28 March 2018 (“PR No 35”). ¹³⁶  These works were supervised by Mr Wong. ¹³⁷

165    In response, the defendant argues that  the plaintiff has not discharged its burden of proof to demonstrate that the water leakage originated from improper grouting,  as opposed to leakage  from the structure of the building. ¹³⁸   It highlights that no testing  was  carried out  in  respect of the units alleged to have contained water leakage. ¹³⁹  A series of water tests conducted in June and August 2016 also attests to sufficient water tightness.  Additionally,  while  the plaintiff pleaded that eight  units  suffered  water leakage, the plaintiff  only made reference to  a few units at trial. ¹⁴⁰  Finally, the defendant argues that the amount claimed in PR  No 35, while attaching time cards of workers, fails to indicate who the workers are and where the workers are from and the time cards relied upon by the plaintiffs are not endorsed. ¹⁴¹

166    The defendant first highlights the series of water tests. Initially,  a water tightness test  was  conducted on 17 June 2016 by TUV  SUD PSB  Pte Ltd  in which 6 out of 7 test points failed the test.  A subsequent  water tightness test  was  conducted on 12 August 2016. This test was successful  in  that  35 out of 36 points  achieved a pass. This test was signed by Mr Wong. ¹⁴²  I do not find these results useful for the purposes of determining the Water Tightness Issue because the subsequent  water tightness test only tested five  areas  for water leakage rather than the whole building.  ¹⁴³   The test therefore only represents a sample section of the building.  In any case,  I do not place much weight on these tests given that the plaintiff’s claim is that incidents  of  water leakage persisted after 12 August 2016  in respect of specific units. ¹⁴⁴

167    Nonetheless, I  accept the defendant’s submission and find  that the plaintiff  has failed to prove,  on a balance of probabilities, that the defendant failed to ensure sufficient water tightness in respect of the units  pleaded.  Crucially, while the plaintiff pleaded eight specific units affected by water leakage in its statement of claim, ¹⁴⁵   the  photographs taken by Mr Wong relate to  units  #01-08 ¹⁴⁶ , #01-09 ¹⁴⁷ , #01-11 ¹⁴⁸ , #01-12 ¹⁴⁹ , #01-13 ¹⁵⁰ ,  #02-14 ¹⁵¹ ,  #03-12 ¹⁵² ,  #03-14 ¹⁵³ , #05-14 ¹⁵⁴ ,  #06-12 ¹⁵⁵ , #06-14 ¹⁵⁶ , #07-01 ¹⁵⁷ , #07-02 ¹⁵⁸ ,  #07-03 ¹⁵⁹ ,  #07-05 ¹⁶⁰ ,  #07-07 ¹⁶¹ ,  #07-09 ¹⁶² , #07-12 ¹⁶³ , #07-13 ¹⁶⁴   of the Project. The only two units that were pleaded  and  reflected in the photographs contained in Mr Wong and Mr Kannappan’s AEICs were units #06-14 and #07-13. There is a patent lack of  documentary  evidence to support the plaintiff’s claim for the rest of the pleaded units.  

168    I  also  do not agree  with the plaintiff’s submission that  the photographs of the water ponding or water marks coupled with the photographs depicting the hollow frame lead to the “irresistible conclusion” that the grouting works were  manifestly inadequate and/or defective, leading to the water leakage. ¹⁶⁵  In this regard, it is undisputed that no tests were  ever  carried out  by any technical experts or consultants  to determine the source of the  leakage  in the pleaded units. ¹⁶⁶   When pressed on the reason for not testing, Mr Kannappan opined that to do so would be unnecessary as the source of the water leakage  was  clear: ¹⁶⁷

169    I agree with the defendant that given the alleged extensiveness of the water leakage, it  was  incumbent on,  and indeed imperative for the plaintiff properly  to  establish the cause of the water defects. Especially considering the series of water tightness tests that had previously  been  conducted in June and August 2016, it would be reasonable to expect the plaintiff to conduct another series of tests to ascertain the specific  source  of the water leakage before carrying out further rectification works.  

170    I note further that  Mr Kannappan was unable  to point  satisfactorily  to any evidence of water leakage  in respect of unit #06-14 ¹⁶⁸   and was also unable  to recall if rectification works were  actually carried out for said unit. ¹⁶⁹  

171    In respect of unit  #07-13, Mr Wong  said  in his affidavit of evidence in chief that he had detected leakage in the unit on 24 January 2017 after the owner of the unit had reported it to him. ¹⁷⁰   This was preceded by Mr Wong also having performed hacking and rectification works on the same unit on 7 November 2016 in response to a complaint of leaking. ¹⁷¹   If so, I find it hard to believe that  it would leak again on 24 January 2017, even after the plaintiff’s rectification works to patch up the alleged unsatisfactory grouting.  Mr Wong sought to explain that this leakage occurred even after one round of hacking and plastering because there were some problems with the plastering. ¹⁷²   If anything, this would cast some doubt on whether the water leakage was even a result of improper grouting by the defendant in the first place.  

172    Viewed holistically, I find that the plaintiff has not discharged its burden of proof to show that the defendant had breached  cl  2.2 and Appendix A of the Subcontract by failing to carry out grouting to ensure water tightness.  

173    The plaintiff argues that the defendant breached  cll  2.2  and 5.1 of the Subcontract  by: (a)  constructing  aluminium-framed shop-front doors  at the seventh storey units with  insufficient headroom;  and  (b) by installing  thresholds for the balcony doors  in an unsuitable manner. ¹⁷³  

174    Clause 2.2 of the Subcontract  provides: ¹⁷⁴

175    Clause 5.1 of the Subcontract  provides: ¹⁷⁵

176    The  plaintiff argues that the defendant failed to  meet  the contractual dimensions for the seventh storey doors provided in Annex A of the Subcontract: a width of 2.15 metres and a height of 2.40 metres. The  defendant’s  doors also failed to comply with the BCA building regulations stipulating that the headroom  for  every room not be less than 2.0 metres. ¹⁷⁶   This led to the  architect issuing  Direction No 188/AD/004 (“AD 004”)  on 12 July 2016  directing the plaintiff to  rectify  the  insufficient  headroom of the doors. ¹⁷⁷  Despite  the request for the defendant to  rectify  the doors, the defendant failed to do so. The plaintiff  had to  engage a third party contractor, Mantec Engineering Pte Ltd (“Mantec”), to carry out the works.  As a result, the  plaintiff  incurred costs of  $68,480. This was evidenced by  Mantec’s  payment claim  dated  29 December 2016. ¹⁷⁸

177    The defendant submits that it  did not  breach  cl  5.1 of the Subcontract because it installed  the  seventh-storey  doors in accordance with the approved shop drawings  enclosed in an email to the plaintiff on 20 April 2016. ¹⁷⁹  As such,  the “rectifications” were in fact  changes to the  original  scope of the  Works  for  which the defendant ought to be compensated  as variation works.  Moreover, the defendant offered to change the doors but  the plaintiff declined its request.  

178    The defendant submits that cl  5.1 should be interpreted such that, where work is carried out against approved shop  drawings, the defendant  cannot be in breach of contract if it  carries  out those works  entirely in accordance with the shop drawings. As such,  the defendant’s compliance with the relevant shop drawings is sufficient to  deflect  any liability. ¹⁸⁰   Finally, the defendant also submits that there are obvious discrepancies in the costs that the plaintiff has allegedly incurred. ¹⁸¹

179    I  accept  the defendant’s submission  as to  the  correct  interpretation of  cl 5.1 of the Subcontract.  Clause 5.1 obliges the defendant to execute its works “in accordance with the drawings as well as to the satisfaction of the  architect, Developer and/or the Main Contractor/Contractor”. Where drawings have been approved,  the defendant is not in breach of cl 5.1 unless it deviates from the approved drawings.  Commercially speaking, it is clear that  neither  the  architect  nor the plaintiff  should be entitled to allege a breach of contract where the defendant has complied with approved shop drawings. To  interpret cl 5.1  otherwise  would effectively grant the  architect or the plaintiff  an unfettered contractual right  to demand variations disguised as rectifications. This would render  cl  13.1 of the Subcontract, governing variation works, entirely otiose.  

180    The key factual issues for me to decide are thus whether the shop drawings were approved  and  whether the plaintiff unreasonably prevented the defendant from carrying out the replacement works. A further question was raised at trial, which is whether the plaintiff actually incurred  the  costs  which it  claims  to replace the doors.  That question is one which goes to quantum. I therefore leave an analysis of that question to the assessment of damages  should I find the defendant liable for a breach of the Subcontract in this respect.  

181    The defendant’s key argument is that it supplied and installed the  seventh-storey  doors in accordance with approved shop drawings. These drawings were  attached to Mr Tan’s  20 April 2016 email to the plaintiff. ¹⁸²  I am not satisfied that  the architect in fact approved  these shop drawings. 

182    The contemporaneous evidence  is  in the form of Mr Kannappan’s reply on 21 April 2016 to the plaintiff. In that email, he asked the defendant to “extend the approved shop drawing urgently for our review”. That  strongly suggests that the shop drawings  attached to the earlier email  were not approved.  

183    My finding is bolstered by  Mr Tan’s testimony at trial where  he said that the procedure for approving  shop drawings  required that the architect approve them.  The architect could  evidence  its approval  either  by  a  signature on the shop drawings or  by  correspondence to the plaintiff  indicating approval. ¹⁸³

184    Unsurprisingly, this  procedure  was  adopted to  prevent disputes about whether a particular set of shop drawings had or had not been approved. ¹⁸⁴   Yet, the shop drawings  attached to Mr Tan’s  affidavit of evidence in chief  bore  no evidence of approval. There  was also  no documentary evidence  that  the  drawings  had been approved in some other way. ¹⁸⁵  Mr Tan  then  testified  that  the shop drawings had been approved orally,  at a site discussion sometime before April 2016. ¹⁸⁶   Further,  Mr Tan said  that  it was  his ex-colleague Mr Raymond Manano (“Mr Manano”), and not  Mr Tan  himself, who had handled securing the approval for the shop drawings. ¹⁸⁷   The defendant  did not call  Mr Manano as a witness.

185    Given  the paucity of evidence, I am  not  satisfied  that the defendant installed the seventh storey doors in accordance with the shop drawings  which had been approved. It  also  failed to comply with the Annex A specifications.  

186    I  further  reject the defendant’s argument that the replacement of the seventh-storey doors constituted  variation works  for which the plaintiff would have to  compensate the defendant over and above the contract sum.  

187    The defendant’s representative, Mr Andy Kuan  (“Mr Kuan”), failed to point this out in his  contemporaneous email  sent on 19 July 2016  to the plaintiff. ¹⁸⁸   Indeed, the defendant  accepted  the non-compliance and agreed to change the doors. It is  telling  that the defendant  did not  suggest  that the non-compliance was not in fact the fault of the defendant,  and  would constitute a variation work requiring the plaintiff to pay  separately for it.  

188    At trial, Mr Jeyalingam  tried to assert  that  the defendant’s omission was  likely because the parties were rushing to obtain the TOP and Mr Kuan’s email was reflective of the full report the defendant was willing to give the plaintiff at  the material time. I am not persuaded by Mr Jeyalingam’s explanation. One reason is that by 19 July 2016, the TOP had already been issued (ie,  on 29 June 2016). Another reason is that Mr Jeyalingam’s explanation would make sense  only  if  a  subcontractor placed the order to help the main contractor meet the TOP, but  the subcontractor  would not bear the expense.  

189    I accept that it is common in the construction industry for works to proceed without  agreement as to  payment in order not to jeopardise  a  handover date. However, it would be reasonable to expect some form of discussion  between the parties making it clear that one party was  proceeding with the work first but leaving payment for future discussion. ¹⁸⁹  

190    This is also in stark contrast to  Mr Tan’s 20 April 2016 email, where he expressly made it clear that modification works for the door frames would “incur additional cost”. ¹⁹⁰   This shows that the defendant made clear to the plaintiff  when the  proposed work was a variation entitling the defendant to additional  payment.  There is no evidence of the  defendant  taking any such position with respect to the seventh-storey doors.

191    The defendant points out that it was ready and willing at all times to  replace the doors. ¹⁹¹  It was  the plaintiff  who  unreasonably ignored the defendant and  precipitously  engaged  a third party to  replace the doors. The plaintiff, having replaced the doors unilaterally, cannot now hold the defendant  liable for  the plaintiff’s alleged  loss. The defendant  relies, in particular, on  the  contemporaneous  emails exchanged by  the parties. This comprises the plaintiff’s email on 24 October 2016, which the defendant says  the plaintiff asked  the defendant to  agree to replace  the seventh-storey doors  by “the close of business on this Wednesday, 26 October 2016”. ¹⁹²  The defendant  replied that it would replace the doors on 26 October 2016. But  the plaintiff replied  on 27 October 2016  to say  that it had already  engaged a third party to replace the seventh-storey doors, referring to its earlier email dated 27 September 2016. ¹⁹³

192    I do not accept the defendant’s submission. I  arrive at this conclusion for a few reasons.  

193    First, the plaintiff’s email to the defendant on 24 October 2016 did not make  any  mention  of  the seventh storey doors.  It is clear that the plaintiff’s  request in  the  email  for the defendant to provide a “positive response by the close of business on this Wednesday, 26 October 2016”, failing which it would “approach a third party” to carry out replacement works,  was  not a reference to the seventh-storey doors. Rather, the plaintiff  asked the defendant to carry out  rectification and replacement works  for  the glass panels  in  the glass curtain wall that had  begun to show  “glass delamination/glass bubbles/specks/spots/dots issues in the units”. ¹⁹⁴