1 Centennial Tower (“the Building”), a 35-storey Grade A office building, stands in the central business district of Singapore. Upon the completion of the Building in 1997, it was considered “the fastest building structure ever built in Singapore”. ¹ The façade of the Building (“the Façade”) was clad in granite stone panels (“the Cladding”).

2 On 10 September 2004, some seven years after practical completion of the Building, a stone panel of significant size and weighing over 100kg (“the 1st Panel”) fell off the Façade from the 29th storey, and landed near a bus stop in front of the Building (“the 1st Fall”). In 2006, the owner of the Building commenced a suit against the main contractor and its subcontractor who had installed the Cladding for defects in the Cladding. The parties subsequently settled their dispute by entering into a settlement agreement (“the Settlement Agreement”) in 2007.

3 However, on 10 February 2011, a second stone panel (“the 2nd Panel”) fell off the Façade from the 25th storey (“the 2nd Fall”). The debris of the 2nd Panel injured two passers-by and caused significant property damage.

4 The owner of the Building now brings this action against the main contractor, its subcontractor, and various engineers who became involved after the 1st Fall for defects in the Cladding. After the commencement of this suit, the owner decided to remove the Cladding and replace the same.

5 Unsurprisingly, the case was hard-fought. 31 witnesses were called, of which 15 were witnesses of fact and 16 were expert witnesses on façade, vibrations, geotechnical engineering, structural dynamics and quantum aspects. Apart from the breadth and depth of the factual disputes, the present proceedings raise legal issues pertaining to the compromise of claims under a settlement agreement and the duty of care in tort in relation to pure economic loss.

6 It was ordered by consent that the trial would be birfurcated, albeit with one issue relating to quantum – whether the owner is entitled to claim the cost of a reclad of the Facade – to be determined at the liability stage of the proceedings. ² This judgment therefore deals with liability and the issue of whether the owner is entitled to recover the cost of a reclad of the Façade.

7 The plaintiff, Millenia Pte Ltd (“Millenia”), formerly known as Pontiac Marina Pte Ltd, is a Singapore-incorporated company that was, at all material times, the owner of the Building. ³ Lead counsel for Millenia is Mr Davinder Singh SC (“Mr Singh”).

8 The first defendant, Dragages Singapore Pte Ltd (“Dragages”), formerly known as Dragages et Travaux Publics (Singapore) Pte Ltd, is a Singapore-incorporated company in the business of designing and constructing high-rise office buildings. ⁴ Lead counsel for Dragages is Mr Ho Chien Mien (“Mr Ho”).

9 The second defendant, Builders Shop Pte Ltd (“Builders Shop”), is a Singapore-incorporated company in the business of installing stone panels on high-rise office buildings. ⁵ Lead counsel for Builders Shop is Mr Philip Ling.

10 The third defendant, Meinhardt (Singapore) Pte Ltd (“Meinhardt Singapore”), is a Singapore-incorporated company in the business of providing engineering consulting services in, among other things, civil and structural engineering. ⁶ Meinhardt Singapore were the structural engineers for the Building, ⁷ although they have not been sued here in that capacity.

11 The fourth defendant, Meinhardt Façade Technology (S) Pte Ltd (“Meinhardt Façade”), is a Singapore-incorporated company in the business of providing façade engineering services. ⁸ I shall refer to Meinhardt Singapore and Meinhardt Façade as “the Meinhardt Parties”. Lead counsel for the Meinhardt Parties is Mr Philip Jeyaretnam SC (“Mr Jeyaretnam”)

12 The fifth defendant and third party, Arup Singapore Pte Ltd (“Arup”), is a Singapore-incorporated company in the business of, inter alia, providing engineering consulting services in relation to façades. ⁹ Mr Adrian Tan and Mr Daniel Chia (“Mr Chia”) are lead counsel for Arup.

13 Meinhardt Façade and Arup are two of the largest façade consultants in Singapore. ¹⁰

14 By a contract dated 4 December 1995, Millenia engaged Dragages to design and build a 35-storey office building located at 3 Temasek Avenue, Singapore 039190 for a sum of S$142,044,590 (“the Contract”). ¹¹ The Contract was a heavily modified version of the Joint Contracts Tribunal Standard Form of Building Contract with Contractor’s Design (1981), an oft-used standard form design and build contract. It is not in dispute that the entire design and construction obligation, and therefore responsibility and liability, rested on Dragages to design and erect a building that would suit Millenia’s requirements and purpose. The design life of the Building was 50 years. ¹²

15 From a plan view, the Building is an oval-shaped building, much like a generously shaped oval conference table, with truncated straight ends, except that the middle and sides contained indented portions for aesthetic reasons (see the diagram at [357] below).

16 The Façade was clad with a total of approximately 16,277 granite stone panels. ¹³ A typical panel measured 1.6m (in height), 1m (in width) and 30mm (in thickness), and weighed over 100kg (the largest panels weighed around 140kg). ¹⁴ By an agreement dated 11 September 1996, Dragages entered into a domestic subcontract with Builders Shop (“the Sub-contract”) to supply brackets and fittings and to install the granite stone panels on the Façade for the sum of S$1,270,000 (“the Sub-contract Works”). ¹⁵

17 The Cladding can be divided into what was referred to as “drops”. The concept of a drop is based on the operation of the rail-mounted gondola roof hoist or davit, to which a cradle (“the BMU”) was attached. The BMU could be positioned at one particular point of the roof and then descend (or ascend) along a vertical column of the Cladding containing granite panels. ¹⁶ A vertical column of panels was referred to as a “drop”. ¹⁷

18 In these proceedings, the parties generally adopted a numbering system used by Arup which divided the Cladding into 80 drops. Each drop covered 34 levels, and had two rows of four panels per level, except for column drops which had one row of four panels per level. ¹⁸ Drop 1 started to the right of the Façade above the entrance. The numbering then moved anti-clockwise around the building until Drop 80, which was to the left of Drop 1 as one looked at the Building from the entrance (see the diagram at [357] below).

19 I note that Meinhardt Façade claims it used a different numbering system of “drops” in its inspection of the Cladding in 2007. This is relevant to the issue of whether Meinhardt Façade inspected the whole of the Cladding (excluding eight of the 80 drops) in 2007. I address this at [97]–[101] below.

20 Three main types of bracket systems – types A, B and C brackets – were used on the Cladding. ¹⁹ (There were further variants of each type: types A1 and A2, B1–B8 and C1 and C2.) The standard bracket used was a Type B bracket, which was a U-shaped bracket with one side of the ‘u’ being longer than the other. The following diagram shows the design of a Type B bracket: ²⁰

21 For this bracket system, panels were generally installed as follows. ²¹

(a) One end, the longer end, of the bracket was attached to the reinforced concrete wall (“the RC wall”) of the Building with an anchor bolt, nut and a spring washer. The longer end had a vertical slot cut into it to accommodate site adjustment in the vertical plane. The spring washer prevented the bracket from moving downwards. ²²

(b) A shaft was inserted through the other, shorter end of the bracket, and secured by a conical bolt and nut which were restrained by washers. ²³ This end of the bracket had a horizontal slot to accommodate site adjustment along the horizontal plane.

(c) The installation or fixing of the stone panels was generally as follows. A panel would be rested on the shafts of two brackets along its lower edge. It would be secured against lateral movement by a pin through each shaft which protruded into two pre-drilled holes along the lower edge of the panel. This lower panel was put into position and aligned with the shafts along its upper edge. When this was accomplished, a pin was then dropped through each of the holes of those two shafts into pre-drilled holes along the top edge of the panel, thereby securing the top of that panel against lateral movement. The pre-drilled holes along the top edge of the panel contained PVC sleeves to hold the pins more snugly, cutting down excess lateral movement. (By contrast, the holes along the bottom edge of the panel above did not contain PVC sleeves but contained epoxy glue. ²⁴ ) After being dropped into the top edge of the panel, the 70mm pins would protrude through the hole in the shaft, thereby providing the anchor points for the next panel to be installed above it. The panel above would then be lowered into position and placed onto the protruding pins on the shafts along its lower edge, and the process would be repeated.

22 A thermal insulation layer (not shown in the diagram above) was installed on the outer face of the RC wall before the Cladding was installed. ²⁵ There was thus an insulation layer between the RC wall and the panels.

23 Each panel was subject to forces owing to dead load and wind load. ²⁶ Dead load refers to the load due to the weight of the panel. Wind load refers to the load due to wind impact and changes in air pressure. The bracket system transferred the dead loads and wind loads of the panels back to the RC wall. ²⁷

24 In general, each panel was to be supported by two brackets and restrained by four pins on opposite edges of the panel. ²⁸ Where a Type B bracket was used, the pins were at the top and bottom edges of the panel. Where a Type A or C bracket was used, the pins were inserted into the sides of panels. ²⁹ This “side fixed system” was used for panels near windows, where it was not easy to fix top pins because the window frames would impede the insertion of top pins. ³⁰

25 Most of the pins were “full pins”, 70mm long and 6mm in diameter, and inserted into 40mm deep pin holes. ³¹ But there were also half pins which were 40mm long and inserted into a single panel, unlike full pins which spanned two panels. ³²

26 The design specifications provided for movement joints, ie, empty space between the panels, of 10mm inclusive of a 4mm shaft (at installation). ³³ Thus, the gap between the bottom of the shaft and the panel below was to be 6mm (at installation). Movement joints ensured that the panels were not excessively restrained and could expand and contract without loss of structural integrity. They also prevented panels from weighing on and transferring their loads onto the panels below (“stacking”).

27 I now set out the key events surrounding this dispute. Insofar as these facts are disputed, the following paragraphs constitute my findings of fact.

28 Dragages began the works under the Contract (“the Works”) in January 1996. ³⁴

29 On 19 September 1997, Millenia, Dragages and Builders Shop executed a deed of warranty (“the Deed”). ³⁵ In brief, the Deed provided as follows:

(a) By cll 1–3, Dragages and Builders Shop provided warranties to Millenia for the Works and Sub-Contract Works (see [407] below). Clause 5 provided that the warranty period (“the Warranty Period”) was 15 years “from the date of the latest Written Statement of Practical Completion” under the Contract (“the Written Statement”). Since the Written Statement was issued on 27 September 1997 (see [30] below), the Warranty Period was 27 September 1997 to 26 September 2012.

(b) Clause 6 of the Deed provided that if the Works or Sub-contract Works were discovered to be damaged or defective, or a breach of the warranties in the Deed were discovered, Millenia would be entitled to issue a notice to Dragages and Builders Shop directing them to effect remedial and replacement work and to make good defects or damage. Under cl 8, if Dragages and/or Builders Shop failed to perform their duties under cl 6, Millenia would be entitled to remedy the defects and Dragages and Builders Shop would be obliged to indemnify Millenia for the expenses it incurred in making good the defects.

30  Millenia subsequently issued the Written Statement certifying that on 27 September 1997, with the exception of items listed in appendices, the Works had been completed. ³⁶ This was the date of practical completion. In due course, tenants moved into and occupied the Building.

31 On 10 September 2004 at 4.35pm, the 1st Panel suddenly fell from the 29th storey of the Building. ³⁷ The panel was identified as panel 26 on drop 21. ³⁸ It was one of four panels between the 29th and 30th storey (the panels were numbered from the top). In the course of falling down, the 1st Panel damaged panels 28 and 29 on drop 21. The 1st Panel landed near a bus stop. ³⁹ Fortunately, there was no one in the vicinity and thus no one was injured.

32 By a letter to Millenia dated 13 September 2004, the Building and Construction Authority (“the BCA”) stated that “the conditions of the building are likely to be dangerous”. The BCA ordered Millenia to engage a professional engineer (“PE”) to prepare an investigation report, to be submitted within four weeks, on the cause of the 1st Fall. The report was to include “a detailed assessment of the conditions of the remaining cladding”. Millenia was also to submit a proposal for rectification works as recommended by the PE within six weeks. I will refer to this order from the BCA as “the 1st BCA Order”. ⁴⁰

33 Millenia appointed Arup as its PE by a letter dated 27 September 2004 (the “2004 Appointment Letter”), ⁴¹ which enclosed Arup’s proposal to Millenia (the “2004 Proposal”) and a letter of undertaking by Arup (the “2004 Letter of Undertaking”). These three documents formed the contract between Millenia and Arup (the “2004 Contract”). In gist, under the 2004 Contract, Arup agreed to investigate the 1st Fall and the integrity of the Cladding, and to then produce two reports: an interim report to meet the BCA’s requirements (see [32] above) and a final report containing inspection results, Arup’s assessment of the Façade and advice on remedial works and future action (see [583(b)] below). Arup contracted to perform these services for a fixed fee of $101,000. ⁴²

34 To fully appreciate the disputes between the parties, it is important to bear in mind certain actions taken by Dragages after the 1st Fall. One person played a leading role in the events that were to unfold: Ms Audrey Perez (“Ms Perez”), the Head of Department, Corporate Quality, Safety, Environment and Maintenance of Dragages. ⁴³ Ms Perez was in charge of, among other things, managing Dragages’ legal exposure to claims. ⁴⁴ Significantly, she admitted that in the immediate aftermath of the 1st Fall, the prospect of Dragages’ liability to Millenia crossed her mind, and it also crossed her mind that she should protect Dragages’ legal interests, because that was part of her job. ⁴⁵

35 I digress from the narrative to say more about Ms Perez. Her hand is seen in much of what was to follow after the 1st Fall. She was the sole witness of fact called by Dragages – notwithstanding that others, in particular Mr Cillius Adrianto (“Mr Adrianto”), were involved in the events that I recount below, and were still employed by Dragages at the time of the trial. ⁴⁶ I found Ms Perez to be an intelligent person with powerful powers of persuasion. As will become clear, she wielded a not insignificant influence over Builders Shop and Meinhardt Façade; Ms Perez testified that she had “very good relation[s] with [her] consultant, contractor and any business partners”. ⁴⁷ I note the following in relation to Ms Perez’s influence over Builders Shop and Meinhardt Façade:

(a) In relation to Builders Shop, Mr Tan Kay Sing (“Mr Tan”), the managing director of Builders Shop until April 2009, ⁴⁸ and the project director for the Sub-contract Works, ⁴⁹ testified that after receiving a letter from Millenia dated 26 October 2004, he left the matter of Millenia’s claims against Builders Shop in the hands of Ms Perez. ⁵⁰ After Millenia sued Dragages and Builders Shop (see [61] below), he also left it to Dragages to (1) decide how to respond to the suit on the basis that Builders Shop would follow Dragages’ position and (2) subsequently, to negotiate the Settlement Agreement with Millenia on Builders Shop’s behalf. ⁵¹ Finally, Mr Tan left the implementation of the Settlement Agreement to Ms Perez in the sense that he complied with her instructions. ⁵² Dragages did not challenge Mr Tan’s evidence and I accept it accordingly.

(b) In relation to Meinhardt Façade, Ms Perez became friends, sometime after 2005, with Mr Mathieu Serge Meur (“Mr Meur”), the managing director of Meinhardt Façade (see [59] and [133] below). According to her, in a discussion about the Building, Mr Meur promised to “help her [till] the end” and that “he would not let [her] down”. ⁵³

36 The evidence shows that Ms Perez was willing to mould the truth to protect Dragages’ legal interests. I will give but two examples:

(a) In a letter to Millenia dated 28 September 2004 (see [44(a)] below), Ms Perez stated that Maxbond, an adhesive, had been applied to the Façade “under the supervision of our PE” [emphasis added]. She admitted at trial that the PE was not in attendance when Maxbond was applied to the Façade; nor did he even know where it had been applied. ⁵⁴

(b) In a letter to Millenia dated 16 November 2004, Ms Perez stated that there was “no basis for claiming that [infill panels] were installed in a manner which were in breach of our obligations”. Infill panels were panels that were installed out of the usual sequence because they were located at a point of tie back for the hoist used to install the panels. Both the 1st and the 2nd Panels were infill panels. Ms Perez also stated in this letter that the use of epoxy to install infill panels was “part of the method of installing replacement panels”. ⁵⁵ Yet she admitted that she knew, as of the date of this letter, that (1) the 1st Panel had not been installed in accordance with the design and specifications and (2) epoxy did not form part of the method of installing replacement panels. ⁵⁶ I therefore find that these two statements made by Ms Perez in this letter were false.

37 I now turn to my assessment of Ms Perez as a witness. I note that English was not her first language: ⁵⁷ Ms Perez was French, ⁵⁸ as was Mr Meur. However, Mr Singh tendered three articles which Ms Perez had written on various aspects of construction law which demonstrated her impressive command of the English language. ⁵⁹ Ms Perez also agreed that she had obtained a graduate certificate in international arbitration from the National University of Singapore, in 2007, ⁶⁰ and took a module on contract, tort and evidence. ⁶¹ It was thus evident that Ms Perez had a strong command of English and various aspects of the law.

38 In this light, I found some of Ms Perez’s answers, to say the least, difficult to understand. I will give just two out of many examples:

(a) First, in an email to Millenia dated 12 February 2009, Ms Perez stated that “Meinhardt ha[s] the full liability for the repair works” (see [121(b)] below). When cross-examined by Mr Jeyaretnam on why she had stated this, Ms Perez said that “liability” was “maybe … not the correct word … an overstatement, knowing better now what ‘liability’ means” [emphasis added]. ⁶² The suggestion was that she did not know at the time of the email what liability meant. Yet by the time of this email in 2009, Ms Perez had obtained her graduate certificate in international arbitration (see [37] above). She must have known what liability meant. Upon cross-examination by Mr Singh, she admitted this. ⁶³ Mr Singh suggested, and I accept, that Ms Perez was seeking to reassure Millenia about the rectification works performed under the Settlement Agreement (“the Rectification Works”) by alluding to the potential liability of Meinhardt (Façade) to Millenia. ⁶⁴ Notably, Ms Perez admitted that this email was not copied to Mr Meur or Mr Ong Ching Pau (“Mr Ong”) of Meinhardt Façade and they would not have been aware of this email. ⁶⁵

(b) Secondly, when cross-examined about her statement in her letter dated 28 September 2004 that Maxbond was applied to the Façade under the supervision of Dragages’ PE (see [36(a)] above), Ms Perez maintained that the statement was true. She claimed there had been “supervision” because the engineer opined on the appropriateness of applying Maxbond to the Façade. ⁶⁶

Ms Perez was frequently evasive in her answers and I had to intervene in cross-examination on several occasions to get her answers to the questions on record. ⁶⁷ Altogether, I did not find her to be a credible witness. I was therefore unable to accept her evidence on most points.

39 I now return to the narrative. On 10 September 2004, after the 1st Fall, Dragages contacted Mr Lauw Su Wee (“Mr Lauw”) and asked him to inspect the Façade and prepare a report. Mr Lauw was a PE engaged by Dragages who had engineered, verified and certified the bracketing system for the Cladding. ⁶⁸ It is evident, therefore, that he was not an entirely independent expert. Ms Perez admitted that at the time of the trial, Dragages was continuing to work with Mr Lauw. However, Dragages did not call Mr Lauw as a witness. Nor did it produce correspondence between itself and Mr Lauw in September 2004, although Millenia requested for discovery of such documents. ⁶⁹

40 On 11 September 2004, Mr Lauw inspected the elevation from which the 1st Panel had fallen during the afternoon. He then prepared a report issued on 27 September 2004 (“Mr Lauw’s Report”), ⁷⁰ where he stated the following:

(a) First, he noted that the 1st Panel had not been restrained with top pins. Instead, epoxy was used to bond it to the panel above it. This was “an alternative method of securing such panels by stone cladding installers in Singapore”. The 1st Fall “was not caused by the deficiency in design or installation of the mechanical supporting system”.

(b) Secondly, Mr Lauw stated that the method of installation used for the 1st Panel was also used for other panels that were installed out of sequence, ie, for other “infill panels” (see [36(b)] above).

(c) Thirdly, he noted four possible causes of the 1st Fall: prolonged exposure to weathering and turbulence caused by wind, impacts from gondolas used to clean walls and the Façade, vibrations from tremors from Sumatra and vibrations from nearby construction activities. Hence, according to Mr Lauw, the cause of the 1st Fall was an external factor or a combination of external factors. There was no suggestion that the 1st Fall was caused by defective workmanship.

41 More specifically, Mr Lauw’s Report did not suggest that the primary cause of the 1st Fall was the use of epoxy rather than pins to restrain the 1st Panel. The report did not suggest there was anything inappropriate about this “alternative method of securing [stone] panels” (see [40(a)] above). Mr Stuart Clarke of Arup (“Mr Clarke”) opined that as a PE, Mr Lauw should have come to the same conclusion as Arup: the main cause of the 1st Fall was the use of epoxy, instead of pins, to restrain the 1st Panel (see [47(b)] below). The parties do not dispute this in these proceedings (see [48] below). Mr Clarke’s evidence, which I accept, was that Mr Lauw’s Report was “drafted from the perspective of laying blame elsewhere”. ⁷¹ Notably, Ms Perez stated that she had discussions with Mr Lauw after he inspected the Façade and before he produced his report. ⁷² It is evident why Dragages did not call Mr Lauw even though it put his report into the evidence. His report was indefensible on almost all counts.

42 On 12 September 2004, Dragages agreed to carry out an inspection of the Façade, which began on that date and concluded on 22 September 2004. ⁷³ Dragages engaged Mr David Rodrigues (“Mr Rodrigues”), a “specialist granite installer”, who reported directly to Ms Perez, to perform the inspection. ⁷⁴ Ms Perez instructed Mr Rodrigues to apply Maxbond (see [36(a)] above) to “any stone or anything in the granite fixing that [looked] suspicious or that [required] further investigation”. ⁷⁵ Ms Perez asserted during cross-examination that the purpose of the inspection was not to identify defects in the Cladding, but to ensure the Façade would be safe in the short term to allow a thorough investigation of the Cladding to be performed. ⁷⁶ She therefore instructed Mr Rodrigues to apply Maxbond as a temporary fixing.

43 The application of Maxbond to the Cladding is a point of controversy. Millenia claims it did not know of or agree to the application of Maxbond, and that Dragages applied Maxbond to cover up defects in the Cladding. ⁷⁷ Dragages denies this, alleging that Millenia agreed to the use of Maxbond, and that it was applied for the sole purpose of ensuring the safety of the Façade. ⁷⁸ I have my suspicions about the application of Maxbond in view of the following points:

(a) First, I find that Maxbond had the effect of hampering the identification of defects in the Cladding.

(b) Secondly, I do not accept Ms Perez’s account of the purpose of the inspection (see [42] above). I find, based on the minutes of a meeting on 16 September 2004, that Millenia had requested, and Dragages had agreed to, an inspection that would identify defects in the Cladding. ⁷⁹

(c) Thirdly, Mr Rodrigues did not take any notes or photographs during his inspection of the Cladding. ⁸⁰ I find this strange. A panel had fallen off the Building. Mr Rodrigues was applying Maxbond to panels he considered presented a safety risk. In the circumstances, it would have been logical to note down, at least, the panels to which Maxbond was applied. Ms Perez could not satisfactorily explain why this was not done. She initially said that Mr Rodrigues had no time to take notes: he was required to inspect the 80 drops within a very short time. ⁸¹ Mr Singh then brought Ms Perez to her letter to Millenia dated 28 September 2004, where she gave a different explanation why Dragages did not have records of panels to which Maxbond was applied, viz, Millenia had not asked for such records. ⁸² Ms Perez could not explain this discrepancy.

These points clearly raise questions about why Maxbond was applied to the Façade. If I had to make a finding, I would find that Dragages applied Maxbond to make it very difficult to identify defects in the Cladding without first removing the Maxbond.

44 I note further that Ms Perez did not tell the whole truth, in two respects, in her letter to Millenia dated 28 September 2004:

(a) Ms Perez stated in this letter that Maxbond was applied “under the supervision of our PE”. This was untrue (see [36(a)] above).

(b) Ms Perez also stated that Dragages found all of the stone panels on the Façade to be “firmly secured without risk of dislodging”. ⁸³ This statement gives the impression that Dragages did not find any panels that were at risk of falling, whereas the truth was that there were some panels that presented a safety risk thus necessitating the application of Maxbond. I brought this to Ms Perez’s attention during the trial. She admitted that she understood the difference between what she conveyed and what Dragages in fact discovered in the inspection of the Façade. ⁸⁴

45 The picture which emerges is this, and I so find. In September 2004, after inspecting the Façade, Dragages was less than candid with Millenia about the state of the Cladding. Dragages took this approach out of concern of its potential liability to Millenia. As I have noted, Ms Perez agreed that she had Dragages’ potential liability to Millenia in mind after the 1st Fall occurred (see [34] above).

46 In 2004, Arup issued two reports on the Cladding (the “1st 2004 Report” and the “2nd 2004 Report” respectively and the “2004 Reports” collectively).

47 On 28 October 2004, Arup issued the 1st 2004 Report. ⁸⁵ Arup made the following observations regarding the 1st Panel and the 1st Fall:

(a) The 1st Panel was an infill panel (see [36(b)] above).

(b) Critically, the 1st Panel did not have pins fixed into its top edge. From inspection, it appeared that the 1st Panel was placed on the lower brackets with pins used to provide the lateral support but the top pins, which were crucial to restrain the panel from rotating or moving forwards and falling off, were not installed. Instead, a half pin had been welded to the shaft and used to restrain the panel above, while epoxy resin was used to bond the top of the 1st Panel to the brackets supporting the panel above. This method of restraining the panel was, according to Arup, “wholly inappropriate”. ⁸⁶ The epoxy had come cleanly away from the top edge of the 1st Panel. This could have been due to:

(i) the panel’s lower brackets moving downwards over time;

(ii) repeated thermal expansion and contraction; and

(iii) vibrations from the nearby Mass Rapid Transit (“MRT”) construction site. (In this regard, I note that when the 1st Fall occurred, the Circle Line works for Promenade Station (“the Circle Line Works”) were in progress. The Circle Line Works took place from around 2003 to 2008. ⁸⁷ )

Of these factors, the most likely cause of the failure of the epoxy was factor (i). ⁸⁸ Nonetheless, according to Arup, regardless of what was “the deciding or catalytic factor”, the 1st Fall would not have occurred if the panel had been properly installed and/or restrained.

(c) Arup also observed that the lower bracket pins of the 1st Panel were “bent outwards due to a prying action of a rotating panel about its bottom edge”. ⁸⁹ Arup noted that once the bond between the epoxy and the stone had failed, the 1st Panel would have been in a state of unstable equilibrium and could have rotated inwards or outwards. Arup concluded that the lower pins had been bent outwards as the 1st Panel rotated outwards before falling from the Cladding.

48 The parties do not dispute the conclusions in Arup’s 1st 2004 Report, ie, that the critical reason why the 1st Panel fell was that it was not installed with two top pins. ⁹⁰ According to Mr Peter Lalas (“Mr Lalas”), Dragages’ façade expert, the method used to install the 1st Panel was “outrageous and not acceptable”. ⁹¹ I could not agree more.

49 The key recommendation proposed in Arup’s 1st 2004 Report was the rectification of all the infill panels. The basis of this recommendation was the hypothesis that all infill panels had been installed without their top pins like the 1st Panel. Arup arrived at this hypothesis in the following way. Arup noted that the “as built details and calculations provided that the design was signed off without the provision of details for [infill] panels to be installed.” ⁹² In other words, Arup could not find, within the documentation provided, any strategy or method statement for dealing with infill panels. Arup then observed that based on the documentation it had reviewed, it would not have been possible to install infill panels with top pins. This was because when an infill panel was installed, the panel and bracket above the panel would already have been installed. It would thus have been impossible to drop a pin into the top of the infill panel, in accordance with the usual method of installing panels (see [21(c)] above).

50 I pause here to note that Dragages challenges Arup’s hypothesis that all infill panels were installed without top pins. According to Dragages, apart from the 1st Panel, infill panels were installed with top pins using a “drop-pin” method. ⁹³ This involved inserting full pins into the lower pin holes of the panel above the infill panel, which had been specially drilled twice as deep as was typical to accommodate the insertion of the full pins within the pin holes. The full pins were then held within the specially drilled deeper pin holes with masking tape. Once the infill panel was set in position, the masking tape was removed and the pins would drop into the top pin holes of the infill panel. Having considered the evidence, I accept Dragages’ submission. The key reason is that no other panel was found installed without top pins over the course of several inspections of the Cladding. I elaborate on this at [388] below. The hypothesis advanced in Arup’s 1st 2004 Report was thus incorrect. However, Arup could hardly be blamed for this for two reasons. First, the 1st Panel was not secured by two top pins as required by the design and, as noted above, Arup had not found documentation, drawings or method statements for the securing of infill panels. Secondly, the theory that infill panels were installed without top pins was advanced in Mr Lauw’s Report, ie, the report by the PE who had engineered, verified and certified the brackets (see [39] above), which was issued on 27 September 2004, ie, before Arup’s 1st 2004 Report (see [40(b)] above). I note that during the trial, I was not shown any documentation, drawings or method statements issued during the construction of the Building dealing with infill panels or Dragages’ “drop-pin” method.

51 Apart from its observations in relation to the 1st Panel and infill panels, Arup also made the following points regarding the Cladding: ⁹⁴

(a) Arup noted that the joint widths between stone panels varied tremendously throughout the Façade. Arup was concerned that this was a sign that the spring washers that were supposed to provide friction between the brackets and the RC wall were not serving their intended purpose, thus allowing brackets to slide downwards (see [21(a)] above).

(b) Arup recorded its observations of deviations from the design of the Building. These included the use of galvanised or standard mild steel washers instead of stainless steel washers, brackets being installed at 90 or 180 degrees to their intended orientation, foreign objects in joints, the spalling of panels, hairline cracks and the loosening of shafts.

(c) Arup noted that repairs had been performed to some panels, by attaching the corners of some panels with epoxy to other panels. Arup assumed that this had been brought to the attention of Millenia’s consultants and that the repairs were approved. However, Arup had not seen any evidence to confirm this.

(d) Arup observed that hard metal spacers installed between panels had transmitted (dead) load from some panels to other panels, causing the stone of the latter panels to fracture and spall. The spalling was “a serious issue when located at the position of the pins”, because it reduced the capacity of the stone to withstand the necessary applied loads. Further, there were instances where the inside surface of the panel had spalled or had been chipped at the position of the pin. Arup noted that this was a serious issue because if the stone behind the pin was not intact, the panel would not be able to withstand suction loads adequately. If, therefore, a lateral force acted on the panel outwards from the Building, the affected pin or pins may not have been able to restrain the panel from falling off the Façade. If only one top pin was so affected, then there would only be one top pin providing that important restraint.

(e) Arup also noted the following:

(i) visible hairline cracks on some stone panels;

(ii) some nuts that should have been securing shafts had become loose, thus allowing some panels at these locations to move outwards; and

(iii) the PVC sleeves to be inserted into the holes along the top edge of panels had been omitted in several instances. Consequently, certain panels rattled and felt loose.

(f) Arup also noted that many brackets they observed relied on “post-drilled anchors” rather than “cast-in anchors”. In other words, holes had been drilled into the RC wall on site to accommodate the anchor bolts. Arup hypothesised that the expected tolerance of the cast-in sockets for fixing the anchor bolts had not been achieved. Holes had therefore been drilled into the RC wall for the anchor bolts. ⁹⁵

(g) Arup noted that the design of the bracketing system was in general “well above average” and “sophisticated”. ⁹⁶

52 Arup’s 1st 2004 Report also mentioned vibration readings taken by the Land Transport Authority (“the LTA”) from instruments placed in the Building. As I have noted, the Circle Line Works to Promenade Station were in progress at the time of the 1st Fall (see [47(b)(iii)] above). Arup stated that further analysis would have to be done once further data from the LTA was provided. Arup also noted anecdotal reports from building occupants that they could feel vibrations from the adjacent excavation works.

53 Arup’s 1st 2004 Report was sent to Dragages. In her letter to Millenia dated 16 November 2004, Ms Perez made the two statements noted above which I have found were false (see [36(b)] above).

54 On 28 December 2004, Arup issued its 2nd 2004 Report. The report was based on eight drops which it inspected, ⁹⁷ viz, drops 17, 21, 38, 46, 57, 61, 78 and 80 (“the 8 Drops”). ⁹⁸ Arup stated that “the installed stone cladding system is of a high quality in terms of materials and design”; however, the onsite implementation of the system was not in complete agreement with the design. ⁹⁹ The issues arising from the deviation from the design ranged in severity from insignificant to critical and there were a range of rectification procedures that Arup recommended. Arup listed 17 items for rectification of differing severity (16 of these items were “noted deviations from the design condition”, and the remaining item pertained to the application of Maxbond):

(a) Five were of high severity: local spalling of stone panels at pin locations, loosening of shafts, brackets where a welded strap or stiffener connecting the U-shaped portion of the bracket (not shown in the diagram at [20] above) had broken, stacking of stones, and issues regarding the configuration of fixings to stone (it was unclear whether some pins were restraining some panels: see [55(a)] below).

(b) One was of low to high severity: namely, hairline cracks in stones. Arup recommended a full investigation to establish the integrity of the stone panels.

(c) Three were of medium severity: incorrect washers at conical bolts (some of which were beginning to corrode), certain repairs to stone panels (Arup noted that certain panels had to be replaced) and the application of Maxbond to the panels.

(d) Two were of medium to low severity: brackets that were incorrectly installed and built up stone sections to be replaced.

(e) Five were of low severity: spacers in joints, missing PVC sleeves, fungal growth on panels, staining of panels and debris at flashing.

55 In Arup’s 2nd 2004 Report, apart from the observations made in its 1st 2004 Report (see [51] above), Arup noted the presence of brackets with broken straps and stacking of panels and two further matters:

(a) First, some fixings had pins running between panels that did not connect to the shaft and therefore did not appear to have lateral restraints from the RC wall. Epoxy was covering the end of the shafts at these locations so Arup could not ascertain if there were actually pins at these locations or if there was only epoxy providing lateral restraint. ¹⁰⁰

(b) Secondly, Dragages had, in the course of their inspection after the 1st Fall, applied Maxbond to panels that were reportedly of concern (see [42] above). Arup did not know the reason for this but stated that Maxbond would not be acceptable without further justification if it were meant to be a permanent remedy. Arup noted that Maxbond was “best used as a filler and not for adhesion”. ¹⁰¹ Arup noted in particular that Maxbond had been applied to a panel with a crack or chip near a pin. ¹⁰² Arup observed that this “in engineering terms is not considered to be a proper and permanent solution to the mechanical defects”.

56 Arup also observed that “it was not unreasonable to suggest that the remaining parts of the [Building] also have issues similar to the issues [noted in the 2nd 2004 Report]”, and that “[t]he possibility of other issues can also not be ruled out within these un-inspected zones”. ¹⁰³

57 Another aspect bears mention. Arup’s 2nd 2004 Report made no mention of the vibrations from the Circle Line Works. Similarly, in a subsequent report by Arup including rectification proposals for infill panels dated January 2005, ¹⁰⁴ no reference was made to vibrations. Mr Chin Tze Kiang (“Mr Chin”), one of Arup’s witnesses, explained this as follows: ¹⁰⁵

(a) After Arup raised the issue of vibrations in the 1st 2004 Report, Millenia requested the LTA to provide records of vibrations. Arup then reviewed the records and concluded that there was little evidence of any vibrations exceeding the threshold beyond which damage would have been caused to the Building. Arup concluded that vibrations were “not an issue”: it was “too highly improbable” that vibrations were a cause of the 1st Fall.

(b) Mr Chin added that after inspecting the Building, Arup inspected Millenia Tower. Millenia Tower is located very close to the Building and was also constructed by Dragages, using the same type of granite and the same fixings. ¹⁰⁶ Arup found no defects on Millenia Tower and noted that the quality of the works to Millenia Tower were “far better”. Arup therefore concluded that vibrations did not cause the defects.

These two pieces of evidence – the vibration records and the absence of defects on Millenia Tower – are of critical importance to the issue of the cause of the defects. I elaborate on these points below (see [336]–[350] below).

58 In January 2005, Millenia sent Arup’s 2nd 2004 Report to Dragages, and Dragages subsequently sent the report to Builders Shop. ¹⁰⁷

59 In early 2005, Builders Shop contacted Mr Meur of Meinhardt Façade, apprised him of the events surrounding the 1st Fall, and indicated that it wished to appoint Meinhardt Façade to review and respond to Arup’s 2004 Reports. ¹⁰⁸ Builders Shop engaged Meinhardt Façade in April 2005. ¹⁰⁹ Sometime thereafter, Mr Meur met Ms Perez for the first time. ¹¹⁰ Subsequently, they became friends.

60 Meinhardt Façade produced two method statements pursuant to its engagement by Builders Shop: ¹¹¹

(a) The first method statement was for the replacement of the 1st Panel and the two panels damaged during the 1st Fall (see [31] above). This was subsequently approved, and the 1st Panel and two damaged panels were replaced on or around 20 August 2005. ¹¹²

(b) The second method statement pertained to various issues raised by Arup in its 2004 Reports, including rusting washers, spacers between joints, spalling of panels, cracks on panels, and the stacking of panels.

61 Unsurprisingly, disputes arose between Millenia, Dragages and Builders Shop over the state of the Façade, whether there were defects in the first place, and even if so, whose responsibility it was to rectify them. The parties sought to resolve their disputes amicably and began to negotiate a settlement agreement from around September 2005. ¹¹³ However, the parties were unable to resolve their disputes at this stage. On 27 July 2006, Millenia commenced proceedings against Dragages and Builders Shop in Suit No 480 of 2006 (“Suit 480”). ¹¹⁴ In Suit 480, Millenia alleged that Dragages and Builders Shop had breached the warranties in the Deed, and sought specific performance of the Deed (and in the alternative, damages to be assessed) and a mandatory injunction for Dragages and Builders Shop to carry out rectification works to the Cladding.

62 In December 2006, Millenia engaged Arup to conduct a non-destructive inspection of approximately 48 to 55 drops of the Building. ¹¹⁵ By 30 March 2007, Arup had inspected a total of 20 drops: drops 22–36 and 41–45. ¹¹⁶

63 In December 2006, Millenia also engaged Earth Arts Pte Ltd (“Earth Arts”) to re-inspect the 8 Drops and to perform temporary restraining works to panels that Earth Arts assessed to be at a high risk of failing. ¹¹⁷ In total, Earth Arts performed restraining works to a total of 46 panels. ¹¹⁸

64 In early 2007, Ms Perez informed Mr Meur that Millenia, Dragages and Builders Shop had agreed on the terms of a settlement agreement. According to Mr Meur, he understood from his discussion with Ms Perez that as part of the Settlement Agreement, Meinhardt Façade was to do the following: ¹¹⁹

(a) First, Meinhardt Façade was to inspect the Façade, excluding the 8 Drops that Arup had inspected in 2004 (see [54] above). Specifically, the Inspection would cover drops 1–16, 22–37, 41–56 and 62–77.

(b) Secondly, Meinhardt Façade was to prepare a report summarising its findings and proposing rectification methods for the defects it found. Additionally, Meinhardt Façade was to advise on any area of the Façade which represented a significant safety risk and to outline temporary measures that would make the Façade safe.

Importantly, an inspection of the Rectification Works was not part of the scope of works outlined by Ms Perez.

65 I pause here to note why Meinhardt Façade came to have a role under the Settlement Agreement. According to Ms Perez, she considered that Arup had behaved in an “irrational and utterly irresponsible” manner in its dealings with Dragages after the 1st Fall. ¹²⁰ She desired a settlement of the disputes in Suit 480, and was agreeable, to that end, to Dragages rectifying defects in the Cladding. But she was concerned that Arup, as Millenia’s consultant, would be the sole judge of “technical matters”, ie, what the defects were and how they were to be rectified. ¹²¹ She wanted a third party to play a “counterbalancing” role vis-à-vis Arup, “to keep the reasonableness going”. ¹²² The reason for Ms Perez’s appointment of Meinhardt Façade was that she had dealt with Meinhardt Façade, and Mr Meur in particular, since 2005 and was thus comfortable with Meinhardt Façade. As we shall see below, she also wielded considerable influence over Mr Meur.

66 Meinhardt Façade then prepared a fee proposal dated 20 April 2007 for the works that Dragages had requested (“the April 2007 Proposal”). ¹²³ I note the following two pertinent aspects of the April 2007 Proposal:

(a) Meinhardt Façade proposed two options. The first involved an inspection of 30% of the Façade. The second involved an inspection of the entire Façade excluding the 8 Drops, and would be adopted if the 30% inspection did not yield enough information. Notably, Meinhardt Façade stated that the full inspection would take around four months to complete. The same four-month timeline was repeated in the proposal that was eventually accepted (see [67] below).

(b) Meinhardt Façade quoted a fee of $95,000 for the first option (ie, on the basis that a 30% inspection would be conducted) and a fee of $212,000 for the second option (ie, on the basis that a full inspection of the Façade excluding the 8 Drops would be conducted).

67 However, after discussions between Mr Meur and Ms Perez, Meinhardt Façade prepared a revised fee proposal dated 1 June 2007 (“the June 2007 Proposal”). ¹²⁴ This proposal provided for “experienced manpower supplied by Dragages” to inspect the Cladding after a “training period” by Meinhardt Façade. Meinhardt Façade quoted the same fee of $95,000 for the first option involving a 30% inspection of the Façade (see [66(b)] above). Yet the fee quoted for the second option (a full inspection excluding the 8 Drops) under the revised proposal fell sharply from $212,000 to $112,000. The June 2007 Proposal also indicated that the full inspection would take four months. Importantly, the scope of works did not include an inspection of the Rectification Works.

68 Mr Meur claimed that the “main reason” for this revised proposal was “efficiency”, because the Meinhardt Façade team at the time was small and the rectification works had to be completed quickly. ¹²⁵ I do not accept this claim for two reasons. First, as things transpired, only two Builders Shop employees carried out the inspection of the Façade (see [94] below). Secondly, Meinhardt Façade had initially proposed that it would do the inspection by itself.

69 I find that the key reason for the revised proposal was the desire on the part of Dragages to cut costs. Mr Meur admitted that this was “definitely a consideration”. ¹²⁶ During oral submissions, Mr Jeyaretnam candidly accepted that the revision in the proposals was “obviously … a cost issue”. ¹²⁷

70 Dragages and Builders Shop accepted the June 2007 Proposal. Builders Shop thereafter engaged Meinhardt Façade and paid for the works Meinhardt Façade performed under the June 2007 Proposal. ¹²⁸ It is not clear exactly when Builders Shop engaged Meinhardt Façade. However, Ms Perez accepted during cross-examination that it had “more or less [been] explored and agreed” by 7 August 2007 (see [71] below) that workers from Builders Shop would inspect the Façade. She further admitted that neither Dragages nor Builders Shop informed Millenia of this during the negotiations leading up to the Settlement Agreement and upon execution of that agreement. ¹²⁹

71 On 7 August 2007, one week before the Settlement Agreement was executed, Dragages and Builders Shop executed a deed of settlement (“the Settlement Deed”). ¹³⁰ The Settlement Deed annexed a draft of the Settlement Agreement. Under cl 3.2, the parties agreed to use best efforts to limit Builders Shop’s costs arising from the performance of its obligations under the Settlement Agreement to a sum not exceeding $200,000. Clause 3.3 provided that in the event the costs were between $200,000 and $250,000, Builders Shop and Dragages would share in those costs; and in the event that the costs exceeded $250,000, a dispute resolution mechanism that the Settlement Deed provided for would apply.

72 On 14 August 2007, Millenia, Dragages and Builders Shop entered into the Settlement Agreement. ¹³¹ The provisions of the Settlement Agreement are of fundamental importance in these proceedings. I now turn to these provisions.

73 The Settlement Agreement began with several recitals setting out details pertaining to the parties thereto, the Building, the Contract and the Deed. It then referred to the 1st Fall, Arup’s 2004 Reports and the fact that Dragages had proposed rectification methods to remedy defects identified by Arup.

74 There then followed the following recitals, which are significant because they are a window to the immediate context of the Settlement Agreement:

These recitals make clear that the parties entered into the Settlement Agreement to fully and finally settle their disputes concerning the 1st Fall, Suit 480, Arup’s 2004 Reports and the rectification methods to remedy the defects. The parties shared the common intention that their disputes would be resolved through the rectification of all the defects in the Cladding. To this end, they sought to set out in the Settlement Agreement the works required to rectify the defects and how the costs of such works would be shared.

75 I now turn to the clauses of the Settlement Agreement. In essence, the Settlement Agreement provided for three phases of works which I shall call “the Inspection Phase”, “the Rectification Phase” and the “Confirmation Phase”.

76 First, cl 1 provided as follows:

In short, cl 1 provided for Dragages and Builders Shop to appoint “Meinhardt” to conduct a full inspection of the entire Façade, excluding the “areas already dealt with in [Arup’s 2004 Reports]”, that is, the 8 Drops, to identify defects in the Cladding, prepare a list of defects, and then propose rectification methods for them (“the Rectification Works Method Statement”). On first reading, cl 1 might appear to require an inspection of the entire Façade including the 8 Drops. But critically, Millenia does not dispute that cl 1 did not require an inspection of the 8 Drops. Mr Singh made this clear during his opening statement, ¹³² and Ms Chee Tiong Choo (“Ms Chee”), Millenia’s Senior Vice President (Legal), ¹³³ who was involved in preparing the Settlement Agreement, ¹³⁴ confirmed this during the trial. ¹³⁵ I therefore proceed on that basis in my analysis below.

77 Two points are pertinent here:

(a) The Settlement Agreement defined “Meinhardt” as Meinhardt Singapore. Ms Perez claimed that this was an error: according to her, the parties to the Settlement Agreement had intended to refer to Meinhardt Façade. ¹³⁶ But Ms Chee, who as noted above was involved in preparing the Settlement Agreement, denied that there was an error. ¹³⁷ This dispute feeds into the issue of whether Meinhardt Singapore carried out the roles that the Settlement Agreement envisioned it would perform, or whether the roles were performed by Meinhardt Façade on its own account. This issue is central to Millenia’s claims against Meinhardt Singapore. I discuss this at [499]–[506] below. In discussing the Settlement Agreement, I will use its terminology by referring to the Meinhardt party as “Meinhardt”.

(b) Irrespective of whether the Settlement Agreement was meant to refer to Meinhardt Singapore or Meinhardt Façade, it plainly envisioned that a Meinhardt party would inspect the Façade. It did not contemplate that the inspection would be carried out by Builders Shop. This is obvious because Builders Shop had installed the Cladding, and was therefore by no means, given the allegations of defective work, a party whom Millenia would have trusted to prepare an objective and complete record of the defects. In this regard, the Settlement Agreement departed significantly from the June 2007 Proposal under which Builders Shop was to conduct the inspection. As I have noted, Ms Perez admitted that Dragages, Builders Shop and Meinhardt Façade had “more or less … agreed” on the June 2007 Proposal before or at the time the Settlement Deed was executed, on 7 August 2007. However, this was not disclosed to Millenia (see [70] above). It was clearly disingenuous for Ms Perez to sign the Settlement Agreement having agreed on a different scope of work with Meinhardt Façade. The evidence of Mr Foo Say Chiang (Mr Foo”), the Senior Vice President, Property Management of Marina Properties Private Limited (“MPPL”), a subsidiary of Millenia that provides maintenance and property management services, ¹³⁸ which I accept, was that he only learnt that Builders Shop had carried out the inspection after the present suit was commenced. ¹³⁹

78 I now turn to cl 10 of the Settlement Agreement, which dealt with what were called “Schedule C Defects”. Clause 10 stated that Schedule C Defects were “possible defects” that Earth Arts and Arup had identified “which in Earth Arts’ and Arup’s opinion require urgent attention”. These were defects that Earth Arts and Arup identified in their inspections of the Façade beginning in December 2006 (see [62]–[63] above). These defects were cracks across panels and around pins. ¹⁴⁰ Clause 10 provided that in Meinhardt’s inspection of the Façade under cl 1, Meinhardt was to inspect the Schedule C Defects in priority and to propose measures as Meinhardt deemed necessary.

79 Clause 2 provided for Millenia to appoint Arup as its consultant for the purpose of reviewing and commenting on the Rectification Works Method Statement. Arup was entitled to raise reasonable queries or seek clarifications on the Rectification Works Method Statement, which Meinhardt was required to respond to, to Arup’s reasonable satisfaction. Under cl 3, once Meinhardt had addressed Arup’s queries and clarifications to Arup’s reasonable satisfaction, the parties would be deemed to have accepted and agreed to be bound by the matters contained in the Rectification Works Method Statement.

80 Clause 4 provided that approvals, confirmations and consents by Arup “in connection with and/or for the purposes of this Agreement shall be deemed to bind [Millenia]”. Importantly, however, cl 5 provided as follows:

I make the following points about cl 5, which has two parts:

(a) The second part of cl 5 provided that Millenia and Arup would not assume liability to Meinhardt, Dragages or Builders Shop for their comments on, inter alia, the Rectification Works Method Statement and/or its implementation. I find that cl 5 reflects the parties’ intention to exclude the liability of Millenia and Arup in tort for these matters.

(b) By contrast to the second part of cl 5, the first part envisioned and sought to preserve the liability of Dragages, Builders Shop and, critically, Meinhardt for, inter alia, the adequacy and integrity of the Cladding. It is clear that the reference to Meinhardt here was a reference to the Meinhardt party who inspected the Cladding and proposed the Rectification Works Method Statement. The liability contemplated was plainly liability to Millenia. The Settlement Agreement did not provide for Millenia to contract with Meinhardt. Hence the liability of Meinhardt that the first part of cl 5 sought to preserve must have been Meinhardt’s liability in tort. This point is vital to Meinhardt Façade’s submission that it did not owe Millenia a duty of care in tort (see [543]–[544] below).

81 Clause 6 provided for Dragages and Builders Shop to rectify:

(a) the defects Meinhardt identified in its inspection of the Façade (“the Identified Defects”) and the Schedule C Defects (see [78] above), in accordance with the Rectification Works Method Statement; and

(b) “Schedule A Defects”: these were defects identified in Arup’s 2004 Reports which were agreed between the parties, and were to be rectified in accordance with rectification methods Meinhardt was to propose. Arup was entitled to raise reasonable queries and clarifications concerning these rectification methods, to which Meinhardt was obliged to respond to Arup’s reasonable satisfaction, upon which the rectification methods would bind the parties.

Significantly, it is undisputed, and I so find, that the 2nd Panel was not identified as a panel with a defect in either Schedule A or Schedule C to the Settlement Agreement.

82 Clause 12 set out the standard for the Rectification Works:

In brief, the Rectification Works were required to be performed in a “good workmanlike manner”, to be in compliance with the specifications in the Contract, and to be of a “permanent nature”.

83 Clause 13 provided for the terms and conditions of the Deed to apply to the Rectification Works for the remainder of the warranty period:

84 Clause 14 provided that Dragages and Builders Shop would do all things reasonably necessary to ensure the Rectification Works were carried out and completed in accordance with statutory provisions and regulations.

85 The third phase of works was the Confirmation Phase. The key provision is cl 11 of the Settlement Agreement, which states:

In short, in the Confirmation Phase:

(a) Dragages and Builders Shop would first provide a written notification that the Rectification Works were completed.

(b) Meinhardt would then inspect the Cladding to ensure the Rectification Works complied with, inter alia, the Rectification Works Method Statement and cll 12 and 14 of the Settlement Agreement.

(c) Subsequently, Meinhardt would provide Millenia with a written confirmation of its approval of the Rectification Works.

(d) Arup would thereafter be entitled to inspect the Rectification Works to satisfy itself that they were in accordance with the Settlement Agreement. The Rectification Works would be deemed completed upon Arup’s written confirmation of the same.

86 I now set out other pertinent provisions of the Settlement Agreement.

87 First, cll 25 and 26 provided for the effect of the Settlement Agreement on Suit 480 and the rights and obligations of the parties. These provisions are relevant to the issue of whether some of Millenia’s claims against Dragages and Builders Shop have been compromised. I discuss them at [445]–[446] below.

88 Secondly, cll 2 and 16 of the Settlement Agreement provided that Arup was Millenia’s consultant. Clause 19 of the Settlement Agreement provided that Meinhardt was Dragages’ consultant.

89 Thirdly, cll 17 and 18 provided for the costs of the Rectification Works and other incidental costs to be apportioned between the parties. Under cl 18, Millenia was to make a contribution of $70,000 in two payments of $35,000; the second $35,000 payment was to be made within 14 days after Meinhardt issued its written confirmation under cl 11 (see [85(c)] above).

90 Fourthly, cl 34 provided that in the event disputes between the parties to the Settlement Agreement arose, they would first be resolved by meeting(s) between the chief executive officer/managing director/equivalent of the parties.

91 By a letter dated 14 August 2007 (the “2007 Appointment Letter”), ¹⁴¹ Millenia appointed Arup as its consultant to advise it on the Rectification Works. Under the 2007 Appointment Letter, Arup agreed to review the proposed rectification methods (during the Inspection Phase), to hold meetings with Millenia and Dragages concerning the progress of the Rectification Works (during the Rectification Phase), and to inspect the Rectification Works (during the Confirmation Phase), albeit cl 6 provided that “it is not expected that [Arup’s] specialist inspectors will review the entire façade”. ¹⁴² I note two further points about the 2007 Appointment Letter:

(a) First, cl 7 stated that in providing its services, Arup would “exercise the degree of skill, care and diligence normally exercised by consulting engineers in similar circumstances”.

(b) Secondly, the agreement stipulated a fixed fee of S$40,000.

92 As I have noted (see [70] above), Meinhardt Façade was engaged by Builders Shop on the terms of the June 2007 Proposal.

93 On 28 August 2007, Mr Meur sent a letter to Dragages which enclosed a drawing describing Meinhardt Façade’s intended investigation methodology. The drawing reflected four zones – Zones A to D – which Meinhardt Façade proposed to inspect and eight zones – Zones 1 to 8 – which had been inspected previously (the 8 Drops). Mr Meur stated that Zones A to D would each require “approximately 16 drops to complete”. ¹⁴³ Dragages and Meinhardt Façade then agreed to start the inspection, which I shall refer to as “the 2007 Inspection”.

94 Meinhardt Façade divided Zones A to D into 45 “drops”. ¹⁴⁴ Mr Ong of Meinhardt Facade, a senior engineer and façade consultant, spent about one week inspecting five of these “drops”. ¹⁴⁵ Mr Ong then trained two employees of Builders Shop, Mr Liew Wai Chan and Mr Zhang Jun Jian, to inspect the rest of Zones A to D. ¹⁴⁶ These workers were the “experienced manpower” supplied by Dragages under the terms of the June 2007 Proposal (see [67] above). Mr Ong asked the two workers about their background and they told him that they worked in construction and had experience with stone. But Mr Ong did not make any further inquiries. He assumed that the workers were qualified because they were the workers who had been supplied. ¹⁴⁷ When questioned on this point, Mr Meur confirmed that Meinhardt Façade did not check whether the workers had experience in façade inspections. ¹⁴⁸

95 Mr Ong trained the Builders Shop workers by taking them to the Façade in the BMU, informing them of the defects he had seen, showing them drawings or mark ups from his inspection, teaching them how to note defects, and showing them how to use a borescope. ¹⁴⁹ A borescope is a fibre-optic device that was inserted into the joints between the panels for brackets and their components to be inspected and photographed. ¹⁵⁰ Importantly, it could only be used if it could be inserted into the joints; yet some joints were too narrow to permit insertion of the borescope (see [681(a)] below).) I find that the training was not extensive. As I note below, the entire inspection took about one month (see [96] below). According to Mr Ong, he met one of the workers on the Friday of the first week, ie, the week that he inspected five drops (see [94] above), and met the other worker on Monday. The workers began their inspection on Tuesday. ¹⁵¹ They were provided with inspection worksheets which they filled in during the inspection. ¹⁵² The workers also took photographs of panels they inspected.

96 The entire inspection, including Mr Ong’s inspection, lasted about one month, from 4 September to 6 October 2007. ¹⁵³

97 It is disputed whether the entire Façade excluding the 8 Drops was inspected in the 2007 Inspection. The evidence was as follows:

(a) The evidence of Mr Peter Hartog (“Mr Hartog”), Arup’s façade expert, was that the 2007 Inspection only covered 45 of the 80 drops: drops 6–17 (Zone D), 22–32 (Zone A), 46–56 (Zone B) and 62–72 (Zone C). ¹⁵⁴ His evidence seems to have been based on a layout plan in the report by Meinhardt Façade dated 24 December 2007 (“Meinhardt’s 2007 Report”), which suggests that only 45 drops were inspected. ¹⁵⁵ It is not in dispute that drops 6–16, 22–32, 46–56 and 62–72 were inspected. Mr Hartog added, and I find, that drop 17 was also inspected.

(b) However, Meinhardt Façade submits that one drop under its numbering system did not equate to one drop under Arup’s system, and that the layout plan was not meant to accurately represent all of the drops that were inspected. Meinhardt Façade claims that the inspection sheets from the 2007 Inspection and investigation statistics from its report dated 20 March 2008 (“Meinhardt’s 2008 Report”) show that the entire Façade except the 8 Drops was inspected during the 2007 Inspection. ¹⁵⁶

98 Having considered the evidence, I do not accept that only 45 of the 80 drops were inspected during the 2007 Inspection. First, the investigation statistics indicate, and I find, that a total of 13,484 panels (3384 panels in Zone A, 3495 panels in Zone B, 3227 panels in Zone C and 3378 panels in Zone D) were inspected. ¹⁵⁷ If Mr Hartog was correct, only 56% of the Cladding (45 out of 80 drops) was inspected. This would amount to around 9156 panels (based on the total number of 16,277 panels on the Cladding: see [16] above), far less than the 13,484 panels which were inspected. Secondly, the inspection sheets show that many of Meinhardt Façade’s drops had three or four horizontally adjacent panels: in other words, they were larger than the drops under Arup’s classification which were generally two panels wide (see [18] above). ¹⁵⁸ This indicates that the 45 “drops” inspected during the 2007 Inspection covered a greater area than 45 drops under Arup’s numbering system.

99 However, it does not appear that 72 drops (or 90% of the Cladding) were inspected either. A total of 13,484 panels were inspected, which amounts to about 83% of the panels (based on the total figure of 16,277 panels).

100 Mr Meur stated that he understood from Ms Perez that the inspection was to cover 64 drops: drops 1–16, 22–37, 41–56 and 62–77 (see [64(a)] above). Dragages and Builders Shop do not dispute that the 2007 Inspection was only to cover these drops. I thus find that the 2007 Inspection was to cover drops 1–16, 22–37, 41–56 and 62–77.

101 If the 2007 Inspection covered 65 out of 80 drops – the 64 drops noted above as well as drop 17 (see [97(a)] above) – it would have covered around 81% of the Cladding. This percentage roughly accords with the investigation statistics which indicate that 83% of the Cladding was inspected (see [99] above). Moreover, Dragages and Builders Shop do not claim that Meinhardt Façade did not fulfil its scope of works. I thus find that drops 1–16, 22–37, 41–56, 62–77, as well as drop 17 (see [97(a)] above), were inspected during the 2007 Inspection, ie, a total of 65 drops.

102 I note the following two points:

(a) First, as things transpired, two of the 8 Drops were covered in the inspection (drops 17 and 46) (see [54] above). Notably however, Drop 80, from which the 2nd Panel fell (see [150] below), was not inspected.

(b) Secondly, the inspection took just over a month whereas it had been contemplated in both the April 2007 Proposal and the June 2007 Proposal that a full inspection would take four months. This raises questions over the thoroughness of the inspection that was performed.

103 Returning now to the chronology of events, on 24 December 2007, Meinhardt Façade issued Meinhardt’s 2007 Report. ¹⁵⁹ This set out remedial proposals relating to observations about glue, pins, cracks, foreign objects, gaps between panels, shaky panels and brackets.

104 Arup provided comments on Meinhardt’s 2007 Report by a revised letter dated 29 January 2008. ¹⁶⁰ In its letter, Arup noted the following points:

(a) Meinhardt’s 2007 Report did not mention infill panels. Arup sought “a list for the locations and the conditions of these panels”. (Arup was proceeding on the basis that all infill panels had been installed in the same way as the 1st Panel, ie, without top pins but with the use of epoxy to bond the panel to the panel above: see [49] above).

(b) In relation to cracked panels, which Arup considered required “immediate attention”, Arup sought “full details on the findings and justification of the integrity of these panels”.

(c) The report did not propose a clear strategy to deal with stacking.

(d) Arup expressed concerns regarding the proposed use of structural silicone as a rectification method.

Additionally, Arup proposed that the parties hold a technical meeting to clarify and follow up on the outstanding issues. Arup and Meinhardt Façade attended this meeting on 14 February 2008. During this meeting, Meinhardt Façade “highlighted that the location of … infill panels have been identified” but added that it would consult with Dragages before revising Meinhardt’s 2007 Report to include details regarding infill panels. ¹⁶¹

105  On 20 March 2008, Meinhardt Façade issued Meinhardt’s 2008 Report. ¹⁶² I note the following points about Meinhardt’s 2008 Report:

(a) First, the report stated that about 40% of the panels inspected had at least one observed defect. ¹⁶³

(b) Secondly, and notably, a table in the report indicates that there were (potential) issues with the pins securing 192 panels: there were 61 cases of “3-pins insertion”, 118 cases of “2-pins insertion” and nine cases of “1-pin insertion”. ¹⁶⁴ This table was only referred to once during the trial, during Mr Chia’s re-examination of Mr Chin. ¹⁶⁵ On first sight, the table suggests that a total of 61 panels were found to be secured by three pins, 118 panels secured by two pins and nine panels secured by one pin. This impression is bolstered by a section in the report stating: ¹⁶⁶

But it is reasonably clear, and I find, that the initial impression produced by this table cannot be correct. It is undisputed that a panel would only have been adequately restrained if it was secured by at least three pins (see [246] below). Therefore, if there were 118 panels secured by two pins and nine panels secured by one pin, many if not all of these panels would have fallen off the Façade. Millenia and Arup would have been extremely alarmed, and significant follow-up work would have been carried out immediately after they learnt of this finding. But this did not occur. The comments in another section of the report reveal why. The comments indicate that these 192 panels were panels that may not have been properly restrained by four pins, not panels that in fact were not properly restrained by four pins. These 192 panels comprised (1) panels with less than four pins inserted into the stone, (2) panels with four pins inserted into the stone, but with at least one pin possibly not attached to a shaft, (3) panels with pins inserted shallowly into the stone and (4) panels where the shafts showed signs of corrosion. ¹⁶⁷ Notwithstanding this, such an observation should have set off alarm bells.

106 Arup provided further comments on Meinhardt’s 2008 Report by a letter dated 18 April 2008. ¹⁶⁸ Arup noted, among other things, that the location of infill panels had not been identified in Meinhardt’s 2008 Report, and stated that any panel with less than four (functioning) restraining pins needed to be reinstated to its original four-pin configuration, notwithstanding calculations indicating a three-pin configuration was structurally safe. Arup also raised issues about the remedial methods and reiterated its concerns about use of structural silicone.

107 On 25 April 2008, Mr Ong sent an email to Mr Adrianto, copying Ms Perez and Mr Meur, seeking Dragages’ assistance in locating the infill panels. ¹⁶⁹ Later that day, Ms Perez replied rather disingenuously stating, among other things, that “the location [of the infill panels] will be provided in [detail] during the rectification works. There is no need to give an exact layout now”. ¹⁷⁰

108 On 28 April 2008, Mr Meur sent an email to Ms Perez containing Meinhardt Façade’s proposed replies to Arup’s letter dated 18 April 2008. On 29 April 2008, Ms Perez replied to this email stating: ¹⁷¹

It appears that this was the first time that Dragages informed any of the other parties to this suit that there was no list of infill panels, and I so find.

109 Meinhardt Façade replied to Arup’s comments on Meinhardt’s 2008 Report in a letter dated 2 May 2008 stating, among other things, that the issue of infill panels “has been settled [and] resolved previously between [Dragages] [and] [Millenia] … there is [no] such tracking list record [of infill panels]”. ¹⁷² The statement that the issue of infill panels had been resolved was not true.

110 Arup then provided additional comments on Meinhardt’s 2008 Report on 5 May 2008, ¹⁷³ reiterating that panels with less than four functioning pins had to be reinstated to the original four-pin configuration. Meinhardt Façade replied to these comments on 22 May 2008. ¹⁷⁴ Notably, in its reply, Meinhardt Façade finally accepted that panels with less than four functioning pins would be reinstated to their original four-pin configuration.

111 In the interim, Arup sent a letter to Millenia dated 8 May 2008 (“the 8 May 2008 letter”) stating that the rectification proposals were “acceptable and have sufficiently addressed most of the issues raised apart from the structural silicone method”. ¹⁷⁵ Arup recommended that the Rectification Works proceed while matters relating to the structural silicone method were put on hold.

112 On 12 May 2008, Mr Foo sent an email to Ms Perez stating that Millenia had no objections to Dragages proceeding with the Rectification Works using the methodologies accepted by Arup, other than structural silicone. ¹⁷⁶

113 The Rectification Works began in June 2008. ¹⁷⁷ The Rectification Works were, at any one time, carried out by two Builders Shop workers, albeit it was not the same two workers who carried out all of the Rectification Works. ¹⁷⁸ The Builders Shop workers worked under the supervision of a supervisor, Mr Md Shah Alam Md Sultan Ahmed (“Mr Shah Alam”). While the Rectification Works were being carried out, Mr Ong would inspect the works. When he was not satisfied with the workmanship, he would direct the workers to improve the works and re-inspect the works thereafter. ¹⁷⁹ Apart from Mr Ong, Mr Adrianto also supervised, but did not inspect, the Rectification Works. ¹⁸⁰

114 During the Rectification Works, Mr Ong inspected every single stone panel that was rectified by Builders Shop on all of the 80 Drops. ¹⁸¹ It is thus not in dispute, and I find, that Meinhardt Façade inspected some panels on drop 80, the drop from which the 2nd Panel fell, during the Rectification Phase. But the parties dispute whether Mr Ong inspected the 2nd Panel itself during the Rectification Phase. I now set out the relevant evidence on this point.

115 During the trial, Mr Chia brought Mr Shah Alam to a marked-up layout of the façade. ¹⁸² This was a final report which Dragages prepared, based on Builders Shop’s records of the Rectification Works, which ostensibly showed the panels to which Builders Shop had performed works and the nature of those works ("the Final Progress Report”). Drop 80 was described as Corner C6 in this document. Mr Shah Alam admitted that, according to the Final Progress Report, dead load rods were inserted in the gaps between panels 41 and 42, and panels 42 and 43, and a twisted rod was embedded at the top of panel 42. ¹⁸³ Panel 42 was the 2nd Panel. During the trial, Mr Ong admitted that if rectification works had been performed to the 2nd Panel, he would have inspected the 2nd Panel. ¹⁸⁴

116 However, Mr Ong then testified that rectification works were not carried out to or near the 2nd Panel: the Final Progress Report was inaccurate. He explained that when he inspected the location from which the 2nd Panel fell on 13 February 2011 (see [154] below), he did not see evidence of any rectification works. He referred me to a photograph which indicated the same. ¹⁸⁵ Mr Ong also stated that he did not find any dead load rods or twisted rods in the debris of the 2nd Panel when he inspected the debris (see [382(c)] below). ¹⁸⁶ Mr Ong’s evidence here was corroborated by photographs, and I accepted it accordingly. Moreover, I note the following points concerning the Final Progress Report:

(a) First, as Mr Jeyaretnam noted, the Final Progress Report was inconsistent with an earlier report prepared by Dragages, a weekly report that appears to have been prepared soon after the Rectification Works to drop 80 were completed (“the Weekly Progress Report). ¹⁸⁷ The Weekly Progress Report showed that no works were performed to panel 42.

(b) Secondly, Mr Jeyaretnam also pointed out that the Final Progress Report indicated that there was a long crack on panel 40 of drop 80 that was rectified by “stitches” (see [136] below). Yet Arup did not find any crack or stitches on panel 40 when it inspected it after the 2nd Fall: the photograph of panel 40 showed that there were no cracks or stitches. ¹⁸⁸

117 Further, as I have noted, the 2nd Panel was not identified as a panel with a Schedule A or a Schedule C Defect (see [81] above). Again, Meinhardt Façade did not inspect drop 80 during the Inspection Phase (see [102(a)] above) and thus would not have identified the 2nd Panel as requiring rectification. In short, the evidence indicates that the need for the 2nd Panel to be rectified was not brought to Meinhardt Façade’s attention. This supports the conclusion that no rectification works were carried out to the 2nd Panel.

118 I accordingly find that the Final Progress Report contained inaccuracies. More specifically, I find that no rectification works were performed to the 2nd Panel. Mr Ong’s evidence was that during the Rectification Phase, he inspected panels that had been rectified (see [114] above). I therefore find that Meinhardt Façade did not specifically inspect the 2nd Panel during the Rectification Phase.

119 In late 2008, the works for the construction of the Downtown Line Promenade Station (“the Downtown Line Works”) commenced. ¹⁸⁹

120 On 12 February 2009, Mr Vincent Chua (“Mr Chua”) of MPPL, an engineer who was Mr Foo’s subordinate, ¹⁹⁰ sent an email about the Rectification Works to Ms Perez. ¹⁹¹ Mr Chua, who does not seem to have been familiar with the Settlement Agreement, asked Ms Perez, inter alia, the following:

(a) whether Meinhardt (Façade) required approval from Pontiac or MPPL in respect of the rectification methods; and

(b) whether MPPL, as Millenia’s representative, was able to request for mock-up samples showing the rectification methods.

121 In her reply later that day, Ms Perez stated the following: ¹⁹²

(a) In reply to the query noted in [120(a)] above, she stated: “No. [Millenia] or MPPL do not need to approve the methods … It is Meinhardt that recommend, review and approve repair methods” [emphasis added]. This was misleading. Ms Perez knew the Settlement Agreement provided for Arup to approve the Rectification Works Method Statement. Tellingly, when cross-examined on this, she could only say: “… he asked a general question, I gave a general answer. If he needed more clarifications, I am sure that he would have asked …”. ¹⁹³

(b) In reply to the query noted in [120(b)] above, Ms Perez stated, inter alia, that “[only] Meinhardt has the full liability for the repair works, including recommendations, material approval, supervision, review and approval of works, inspections, [aesthetics], etc” [emphasis added]. As I have noted, Ms Perez sought to resile from this in her testimony, stating that “liability” was “maybe … not the correct word to use … an overstatement, knowing better now what liability means”. For the reasons given above, I find Ms Perez’s evidence difficult to accept. I find that Ms Perez was seeking to reassure Millenia about the Rectification Works by misleadingly alluding to the potential liability of Meinhardt (Façade) for the same (see [38(a)] above).

122 On 26 August 2009, a representative of MPPL wrote to Mr Adrianto to inquire whether Arup could inspect the Rectification Works, stating that Arup would require about a week to do so. ¹⁹⁴ Mr Adrianto replied to reject this request, stating that the works needed to be completed without interruption. ¹⁹⁵ Thus, Arup was not able to inspect the Rectification Works while they were in progress.

123 The Rectification Works were completed in October 2009. ¹⁹⁶ I note that there is some dispute over whether structural silicone was used during the Rectification Works. As I have noted, Arup did not accept the use of structural silicone (see [111] above). I accept Mr Ong’s evidence that structural silicone was not used during the Rectification Works. ¹⁹⁷ Notably, Mr Foo also testified that, to the best of his knowledge, structural silicone was not used. ¹⁹⁸ Mr Ong explained that structural silicone may have been confused with a different kind of silicone sealant, which was used on the Cladding as a weather seal.

124 In June 2009, Builders Shop told Meinhardt Façade about the need for a completion certificate from the latter in respect of the Rectification Works. ¹⁹⁹ According to Mr Meur, this was the first time it was made known to Meinhardt Façade that such a certificate was required under the Settlement Agreement. Meinhardt Façade did not have a practice of issuing such certificates. Mr Meur checked the June 2007 Proposal and realised that inspection of the Rectification Works and issuance of a completion certificate was not part of Meinhardt Façade’s scope of works. I accept Mr Meur’s evidence on this score and find that Meinhardt Façade knew, as of June 2009, that it was not contractually required to issue a completion certificate. ²⁰⁰

125 In November 2009, Dragages requested Meinhardt Façade to issue a certificate to certify that the Rectification Works were completed in accordance with the Rectification Works Method Statement. ²⁰¹ Mr Ong prepared a draft of this certificate and sent it to Mr Adrianto for review. ²⁰² Ms Perez agreed that Dragages was “involved in giving some pointers for [the] drafting” of the certificate. ²⁰³

126 On 17 December 2009, Meinhardt Façade issued the certificate (“the 17 December 2009 Certificate”). It was addressed to Builders Shop and Dragages and stated that, “to the best of our knowledge, the enhancement works … to the external perimeter of the [Cladding] has been completed in accordance with the approved method of statement” [emphasis added in italics and bold italics]. ²⁰⁴ I note that the qualification “to the best of our knowledge” is unusual: it is not a phrase commonly found in certificates issued by construction professionals. Ms Perez admitted that she had never seen the qualification “to the best of our knowledge” in all her time as an engineer dealing with building contracts. ²⁰⁵

127 On 18 December 2009, Ms Perez sent a letter to Millenia that enclosed the 17 December 2009 Certificate stating that it “certifies the completion of the works as per the Settlement Agreement”. ²⁰⁶ The letter further sought payment of $35,000 from Millenia pursuant to cl 18 of the Settlement Agreement.

128 On 25 January 2010, Arup began to inspect the Rectification Works. ²⁰⁷

129 On 5 February 2010, Millenia sent an email to Dragages highlighting two aspects of the 17 December 2009 Certificate. ²⁰⁸ First, it did not confirm that “Meinhardt” had inspected and satisfied itself that the Rectification Works were completed in accordance with cl 11 of the Settlement Agreement. (Millenia did not distinguish between Meinhardt Singapore and Meinhardt Façade here.) Secondly, the letter was not addressed to Millenia as required under cl 11.

130 On 10 February 2010, the following events transpired pertaining to the completion certificate issued by Meinhardt Façade.

(a) Mr Adrianto emailed Mr Ong to request that, “[as] a matter of paperwork”, Mr Ong reissue the completion certificate, with the same content, but with the certificate addressed to Millenia. ²⁰⁹

(b) Mr Ong replied that he would discuss this with Mr Meur “as business wise & contractual wise we are engaged by [Builders Shop]”. ²¹⁰ During the trial, Mr Ong testified that he did not think that changing the name of the addressee was just “a matter of paperwork”. He knew there would be implications if the certificate was addressed to Millenia. ²¹¹

(c) Ms Perez responded to Mr Ong’s email, copying Mr Meur, stating that the revised certificate was “a wording matter” that “doesn’t add anything to your scope and/or obligations to [Builders Shop/Dragages/Millenia]”. ²¹² She explained that the revised certificate would allow Dragages to get Millenia to release a payment to Dragages. As I have noted, under cl 18 of the Settlement Agreement, Millenia was required to make a second payment of $35,000 to Dragages upon Meinhardt’s issuance of its written confirmation under cl 11 (see [89] above).

(d) Mr Meur then approved the issuance of a revised version of the certificate addressed to Millenia. During the trial, Mr Meur agreed that he knew Mr Ong was concerned that changing the name of the addressee would give rise to an assumption of responsibility to the party to whom the certificate was addressed. He maintained, however, that he did not think that addressing the certificate to Millenia would have changed the liability of Meinhardt Façade. ²¹³ He therefore approved the issuance of the revised certificate addressed to Millenia. However, I do not accept Mr Meur’s evidence on this point for the following reasons:

(i) First, it was inconsistent with his evidence in his affidavit of evidence-in-chief (“AEIC”). Mr Meur did not depose that he approved the revised certificate because he did not think it would affect Meinhardt Façade’s liability. He stated that he did so because “discussions had been dragging on for several months, and the change of addressee did not affect our assessment regarding the [Façade] and the [Rectification Works]”. ²¹⁴

(ii) Secondly, I find it very difficult to accept that Mr Meur believed that addressing the certificate to Millenia would not have affected Meinhardt Façade’s liability. Mr Meur admitted that as of February 2010, he had been practising (as an engineer) for about 11 years. ²¹⁵ He also agreed that he knew what a completion certificate signified and that the owner would rely on the certificate. ²¹⁶ Further, Mr Ong had directly raised the issue of Meinhardt Façade’s potential liability to Millenia to Mr Meur’s attention.

For these reasons, I do not accept that Mr Meur approved the issuance of a revised certificate addressed to Millenia on the basis that it would not affect Meinhardt Façade’s liability. I find that he knew that it would do so. I further find based on his evidence in his AEIC that nonetheless, he approved the issuance of the revised certificate because (1) he wanted to expedite the process to please Ms Perez and Dragages and (2) he was satisfied that the Rectification Works were carried out properly. In short: Mr Meur knew that by issuing the letter to Millenia, Meinhardt Façade was incurring a potential liability to Millenia. Still, he issued the letter because he believed the Rectification Works were carried out properly, and therefore liability to Millenia would never arise.

(e) After obtaining approval from Mr Meur, Mr Ong sent a revised version of the certificate, which was addressed to Millenia and copied to Dragages and Builders Shop (“the 10 February 2010 Certificate”), to Mr Adrianto. ²¹⁷ Ms Perez replied to this email stating: ²¹⁸

Mr Adrianto subsequently forwarded the 10 February 2010 Certificate to Millenia. ²¹⁹

131 On 17 February 2010, Millenia emailed Mr Adrianto pointing out that the 10 February 2010 Certificate did not contain the necessary confirmation as the phrase “to the best of our knowledge” was used. ²²⁰

132 On 22 February 2010, Ms Perez responded stating that the 10 February 2010 Certificate was “perfectly in line” with the Settlement Agreement but that she would ask for it to be reworded in line with Millenia’s suggestions.

133 On 22 February 2010, Ms Perez also sent an email to Mr Meur. This email illuminates the approach Ms Perez was taking at the time and in particular her dealings with Mr Meur: ²²¹

When shown this email, Mr Meur admitted that he was on friendly terms with Ms Perez. He explained that the reference to “Centralians” was a reference to the engineering university that he had attended: a colleague of Ms Perez, with whom he had lunches with Ms Perez, went to the same university. ²²²

134 On 5 March 2010, Millenia replied to Ms Perez’s email and suggested how the 10 February 2010 Certificate could be reformulated. ²²³ Ms Perez replied to indicate that she was not agreeable with the proposed reformulation as it made reference to the Settlement Agreement which “Meinhardt are not privy to”. ²²⁴

135 On 25 March 2010, Arup issued a report on the Rectification Works (the “1st 2010 Report”). ²²⁵ Importantly, the cover page stated that the report “is not intended for and should not be relied upon by any third party and no responsibility is undertaken to any third party”. ²²⁶ The report was based on a “representative inspection” of eight drops from 25 to 27 January and 1 to 3 March 2010. According to Mr Hartog, these were drops 17, 21, 57, 61 and 78 and three other drops which do not correspond to any of the 80 drops. ²²⁷ Mr Yang’s evidence, however, which I accept, is that the three other drops were drops 1 (called “Drop 7” in Arup’s 1st 2010 Report), 30 (called “Drop 2” in the report) and 49 (called “Drop 3” in the report). Importantly, Arup did not inspect drop 80 (the drop from which the 2nd Panel fell: see [150] below).

136 Arup’s 1st 2010 Report stated as follows:

The “totally new method of repair” referred to in Section 3 of Arup’s 1st 2010 Report is known as “stitching”. I will refer to this method of repair used on the Cladding as “the Stitching Procedure”.

137 Dragages claims that the words in Section 2.1 of Arup’s 1st 2010 Report (see [136] above) satisfied the requirement under the Settlement Agreement for Arup to provide written confirmation that the Rectification Works were carried out in accordance with the Settlement Agreement (see [85(d)] above). ²²⁸ I do not accept this submission. First, Section 2.1 itself states an exception, characterised as “crucial”, in Section 2.2. Secondly, in Section 3, Arup clearly stated that the Rectification Works were “inadequately done”, the issue of cracked panels was not sufficiently addressed and was a potential safety issue and the Stitching Procedure, an unapproved rectification method, was used on the Cladding. I therefore find that Arup’s 1st 2010 Report did not amount, in full or in part, to a written confirmation in accordance with cl 11 of the Settlement Agreement.

138 On 12 April 2010, Meinhardt Façade issued a reply to Arup’s 1st 2010 Report (“Meinhardt’s April 2010 Reply”) stating as follows: ²²⁹

(a) From Meinhardt Façade’s inspection, the hairline cracks did not “go across and through the stone thickness”.

(b) In terms of hairline cracks on stone without evidence of remedial works, a new method involving dead load rods was used to restrain some panels. Under this method, a rod was drilled into the RC wall at one end and inserted into the stone panel at the other end. Such works were aesthetically clean and had therefore probably escaped detection by Arup. Also, some panels with minor cracks were not rectified.

(c) In terms of cracks with restraints installed within the crack lines, the rectification methods had to be adjusted to deal with site issues such as tenant complaints about noise and vibrations due to drilling in carrying out the rectification methods. The Stitching Procedure was “a common industry practice”, and was therefore not covered in earlier reports. Further, the application of the Stitching Procedure had been combined with the installation of wind load restraints and/or dead load rods where necessary.

I do not accept that the Stitching Procedure was employed for the sole reason of accommodating tenant complaints (see [(c)] above). Mr James Phillip Mann (“Mr Mann”), one of Meinhardt Façade’s façade experts, noted that his client had advised that the Stitching Procedure “was developed on site in response to the decision not to use structural silicone … along with the decision to minimize the number of cracked panels that would need replacement” [emphasis added]. ²³⁰ I find that one important reason, if not the principal reason, why the Stitching Procedure was used on the Façade was to cut costs.

139 On 24 May 2010, after re-inspecting a drop it inspected in preparing the 1st 2010 Report, Arup issued a second report (the “2nd 2010 Report”). ²³¹ The 2nd 2010 Report stated that Arup had not observed that restraints had been added to the stitched panels as averred in Meinhardt’s April 2010 Reply.

140 On 15 June 2010, Ms Perez sent an email to Millenia stating: ²³²

By this email, Ms Perez informed Millenia that she was instructing Mr Adrianto and Meinhardt (Façade) not to respond to queries by Millenia or Arup until Millenia made full payment of monies (allegedly) due to Dragages under (cl 18 of) the Settlement Agreement. Ms Perez threatened legal proceedings regarding the same. She also threatened to create bad publicity about Millenia. ²³³

141 On 28 June 2010, Mr Foo sent a letter to Dragages stating as follows: ²³⁴

(a) The 10 February 2010 Certificate was not in accordance with cl 11 of the Settlement Agreement for three reasons:

(i) it was issued by Meinhardt Façade and not by Meinhardt Singapore;

(ii) it referred to “enhancement works” and not “rectification works” as defined under the Settlement Agreement; and

(iii) it did not contain a confirmation that the Rectification Works complied with cll 12 and 14 of the Settlement Agreement.

(b) However, Millenia was prepared to pay a sum of $37,450 to Dragages upon written confirmation from Meinhardt Singapore that the 10 February 2010 Certificate was issued pursuant to and in compliance with cl 11. Nonetheless, this was not be construed as an acceptance by Millenia or Arup that the Rectification Works had been completed.

142 In July 2010, Ms Perez informed Mr Meur of Millenia’s concerns as set out in [141(a)(i)] and [141(a)(iii)] above. ²³⁵

143 Mr Meur then approached Dr Juneid Qureshi (“Dr Qureshi”), Meinhardt Singapore’s Group Design Director of Structural Engineering. ²³⁶ He explained that there was a dispute regarding the Façade and that one of the parties had engaged Meinhardt Façade, and asked for a letter to explain that, in the Meinhardt Group, façade engineering was Meinhardt Façade’s and not Meinhardt Singapore’s expertise. ²³⁷ Dr Qureshi agreed to do so, and issued a letter dated 19 July 2010 for Meinhardt Singapore (“the 19 July 2010 Letter”) stating as follows: ²³⁸

144 Mr Meur also obtained a copy of the Settlement Agreement from Ms Perez. I find that this was the first time Meinhardt Façade saw the Settlement Agreement. Mr Meur confirmed during the trial that he read the Settlement Agreement, and in particular cll 11, 12 and 14. He also confirmed that he knew Millenia would only pay Dragages (the second $35,000 payment under cl 18) upon receiving the written confirmation from Meinhardt under cl 11. ²³⁹ He then re-issued the certificate by a letter to Millenia dated 20 July 2010 copied to Dragages and Builders Shop (“the 20 July 2010 Certificate”). This states: ²⁴⁰

145 On 20 July 2010, Ms Perez sent a letter to Millenia enclosing the 19 July 2010 Letter and the 20 July 2010 Certificate, ²⁴¹ stating that the enclosures “thoroughly address all your concerns accordingly” and requesting that Millenia release the payment under cl 18(b) of the Settlement Agreement.

146 On 6 August 2010, Millenia sent a letter (“the 6 August 2010 Letter”) to Dragages enclosing a cheque for the sum of $37,450. The letter states: ²⁴²

I make the following points about the 6 August 2010 Letter. It is clear that the 20 July 2010 Certificate was not in complete compliance with the requirements of cl 11 of the Settlement Agreement. It contained the phrase “to the best of our knowledge”, which Millenia had objected to (see [131] above). However, it appears that after being threatened by Ms Perez (see [140] above), Millenia decided to yield to Dragages’ demands for payment. But Millenia sought to protect its position. It did this by making clear that it was paying out on a without-prejudice basis, and without accepting that Meinhardt had issued the necessary written confirmation under cl 11 of the Settlement Agreement. As we shall see, the unequivocal statements to this effect in the 6 August 2010 Letter are important. This is because they undercut the argument that the 20 July 2010 Certificate caused Millenia to suffer the losses it is claiming for in this action. I elaborate on this point at [535(a)] and [575(c)] below.

147 On 7 September 2010, Arup and Meinhardt Façade conducted a joint inspection of the Cladding. Arup then sent an email to Millenia stating that, upon the inspection, it was confirmed that the additional restraining pins were not installed in cases where panels with cracks had been stitched. ²⁴³

148 On 28 September 2010, Meinhardt Façade issued a report (“Meinhardt’s September 2010 Reply”). ²⁴⁴ This stated that dead load rods were not installed to secure all panels with hairline cracks, but were used on a case by case basis. Arup did not accept this. On 11 October 2010, Arup sent an email to Millenia on Meinhardt’s September 2010 Reply to reiterate its recommendation that all cracked panels be replaced or restrained with dead load pins. ²⁴⁵

149 It does not seem that there was any further development thereafter in the discussions between Arup and Meinhardt Façade on the Rectification Works. The dispute regarding the cracked panels was not resolved. Arup did not ultimately issue written confirmation that the Rectification Works were carried out in compliance with the Settlement Agreement (see [85(d)] above). Notably, although Dragages submits that Arup did issue such confirmation (see [137] above), Ms Perez, its sole factual witness, accepted that (1) Arup did not do so and (2) the Rectification Works were thus not deemed completed under the terms of the Settlement Agreement, and I so find. ²⁴⁶

150 On 10 February 2011 at 8.43pm, the 2nd Panel fell from the 25th storey of the Building. ²⁴⁷ The panel fell from drop 80, ²⁴⁸ a drop that Arup had inspected in 2004 (see [54] above). As the 2nd Panel fell, it hit another panel (panel 81) on the 15th storey. The 2nd Panel landed on a concrete canopy one floor about the ground floor and broke into many fragments upon impact. ²⁴⁹ Some of the fragments spread onto the ground floor. Two passers-by were injured by the debris of the 2nd Panel, and significant property damage was caused.

151 On 11 February 2011, the BCA issued a second order to Millenia (“the 2nd BCA Order”). ²⁵⁰ The BCA ordered Millenia to immediately appoint a PE to assess the structural integrity and stability of the Cladding, and to immediately take precautionary measures to obviate any danger. In addition, the BCA ordered Millenia to submit an investigation report prepared by the PE, which was to recommend plans for rectification works, and to subsequently perform the works recommended by the PE and approved by the BCA. The 2nd BCA Order concluded by stating that the BCA “may direct a closure of the building subject to the conditions of the building”.

152 On or about 11 February 2011, Millenia engaged Arup as its PE. ²⁵¹ Arup then began to inspect the Cladding. I will refer to this inspection as “the 100% Inspection”. In doing so, Arup followed a protocol (“the Aurecon Protocol”) developed by Mr Yang Li (“Mr Yang”), Millenia’s façade expert in this case. ²⁵² The Aurecon Protocol required Arup to record observations of various items listed therein. Notably, two of Arup’s witnesses, Mr Derrick Yap Chong Yeow (“Mr Yap”) and Mr Chin, testified, and I find, that in inspecting the Cladding, Arup was, in general, simply recording observations in accordance with the Aurecon Protocol. Arup did not perform the further evaluative task of assessing whether its observations amounted to defects, ²⁵³ with one exception: in identifying some panels to be in immediate danger of falling in the near future, Arup assessed those panels to be defective. ²⁵⁴ Having recorded its observations, Arup prepared reports which it sent to Millenia (“the 100% Inspection Reports”). ²⁵⁵ Arup also created spreadsheets (“the 100% Inspection Spreadsheets”). There were 20 of such spreadsheets, each of which identified the panels on which one category of observation was found. ²⁵⁶

153 On or around 11 February 2011, Millenia engaged Cementone (S) Pte Ltd (“Cementone”) to carry out restraining works on the panels which Arup identified were in immediate danger of falling.

154 On 13 February 2011, Mr Ong inspected the location from which the 2nd Panel had fallen in the presence of an Arup representative. ²⁵⁷

155 On 25 February 2011, Arup issued a report (“Arup’s 2011 Report”). ²⁵⁸ In brief, Arup stated the following:

(a) The 2nd Panel was an infill panel which, similar to the 1st Panel, had been installed without pins fixed into its top edge. ²⁵⁹ Arup noted one difference: the panel above the 1st Panel had been restrained with a half pin welded to the shaft. However, Arup did not find such a half pin restraining the panel above the 2nd Panel. ²⁶⁰

(b) Arup noted that while the original drawings for the Works did not include a detail for the installation of infill panels, there was a sketch of the detail in construction stage documentation. However, Arup had not found evidence that this intended method of installing infill panels had been adopted on site. Arup reiterated that it would not have been possible for infill panels to be installed with top pins (see [49] above). ²⁶¹

(c) Arup noted that, as was the case with the 1st Panel (see [47(c)] above), the lower bracket pins of the 2nd Panel, which were still in place, had “bent outwards due to a prying action of a rotating panel about its bottom edge”. ²⁶² In other words, the lower pins had been bent as the 2nd Panel rotated outwards before falling from the Cladding. This evidence is of vital importance because, as I explain at [399]–[401] below, it indicates what the cause of the 2nd Fall was.

(d) Arup recommended the rectification of all infill panels, and a full 100% inspection of all the panels on the Building.

156 On or around 8 August 2012, Arup issued a letter to Pontiac Land Pte Ltd (“the 8 August 2012 Letter”). ²⁶³ This letter is important in relation to the issue of whether Millenia is entitled to claim the cost of a reclad of the Façade:

(a) Arup first noted that it had found “16 typical defects”, three of which were “critical”, in its inspection of the Cladding. I note that most of these 16 defects appear to be reflected in the 16 categories of defects identified in Arup’s 100% Inspection Reports (see [230] below), but the 16 types of defects noted in this letter do not correspond exactly with the 16 categories of defects noted below. The three critical defects were:

(i) cracks through the face and/or across the thickness of panels;

(ii) panels with two or more defective pins; and

(iii) spalling around pins areas “causing the effective number of pins to be 2 or less on the panel”.

(b) The letter then stated:

(c) The letter then set out “three basic strategies available for the repair of the façade”. Arup noted the following in relation to the first strategy, which was called “Piecemeal repair of the existing façade”:

(d)  Arup then set out two strategies, “Total replacement of the stone cladding with cladding” and “Total replacement of the stone cladding and glazing with an overcladding curtain wall”. The difference between them was that the first involved retaining the existing glazing.

(e) Arup stated that, “[from] the assessment above, we believe that it would be prudent to strip the entire façade and reclad, either option 2 or 3” [emphasis added]. Arup also noted that a reclad would provide an opportunity to improve the Façade with, eg, improved thermal performance, improved durability and an improved building image.

(f) Arup then proposed to carry out a study to review the options for the Façade, and stated the following:

In short, in the 8 August 2012 Letter, Arup recommended that Millenia reclad the Façade. I accept that Arup noted in this letter that a reclad would provide Millenia with an opportunity to improve the Façade. Yet reading the letter as a whole, it is clear, and I find, that the recommendation to reclad was made for three reasons: (1) safety (to eliminate the risk of future failures of the Façade); (2) speed (to ensure safety risks were addressed swiftly) and (3) aesthetics (to avoid the prospect that rectification works would make the Façade unsightly).

157 During cross-examination of Ms Chee, Mr Ho relied on the 8 August 2012 Letter to suggest that Millenia had decided to reclad the Façade in bad faith. According to Mr Ho, Millenia’s motive for recladding the Façade was to better it: there were no genuine safety concerns justifying a reclad of the entire Façade. ²⁶⁴ Mr Singh objected to this line of cross-examination, on the basis that Dragages did not plead that Millenia was opportunistic in recladding the Façade and Millenia had thus not brought forward evidence to refute this allegation. ²⁶⁵ Mr Singh emphasised that the 8 August 2012 Letter was disclosed in discovery (on 10 June 2013); yet Dragages had not amended its pleadings to allege bad faith by Millenia. ²⁶⁶ I agreed with Mr Singh, and indicated to Mr Ho that while it was open to Dragages to challenge the need for a reclad, the suggestion that Millenia was opportunistic in recladding the Façade was not part of its case. ²⁶⁷

158 In any event, Ms Chee testified that the decision to reclad was made purely on safety reasons, ²⁶⁸ and I accept her evidence. Millenia submits that it decided to reclad the Façade based on Arup’s advice. ²⁶⁹ I note that Ms Chee did not expressly testify that Millenia relied on Arup’s advice to reclad the Façade. But it is difficult to conceive that Millenia did not do so given that (1) Arup was Millenia’s consultant, (2) Arup recommended a reclad for safety reasons and (3) Millenia decided to reclad the Façade on safety grounds. I thus find that Millenia relied on Arup’s advice in deciding to reclad the Façade.

159 On 28 August 2012, Millenia commenced this action against Dragages, Builders Shop and Meinhardt Singapore. ²⁷⁰ After Meinhardt Singapore filed its defence, Millenia added Meinhardt Façade as a defendant to the suit. ²⁷¹

160 On or about 10 October 2012, Arup completed its inspection of the Cladding. ²⁷²

161 On or about 15 November 2012, Cementone completed its restraining works. ²⁷³ According to the 100% Inspection Reports, 630 panels which were in immediate danger of falling were restrained. Arup informed the BCA of this by an email dated 7 December 2012. ²⁷⁴

162 By a letter to Arup dated 27 November 2012 (“the 27 November 2012 Letter”), the BCA requested Arup to clarify the following matters: ²⁷⁵

(a) the nature and number of temporarily restrained panels;

(b) whether follow-up action was recommended for the defective panels which had not been restrained; and

(c) “the safety of the building façade with panels which are both restrained and not restrained in the short term (for the next 1 year)” [emphasis added]. In other words, the BCA sought clarification on the safety of the Façade within the next one year.

163 On 4 December 2012, Mr Yap drafted a reply to the 27 November 2012 Letter (“the 4 December 2012 Draft”) stating, inter alia, the following: ²⁷⁶

(a) the restraints were “constructed of materials that are intended to give a service life in excess of two years”;

(b) it was “Millenia’s intent to carry out a replacement of the entire stone cladding …”; and

(c) Arup’s opinion was that the Façade “with panels both restrained and not restrained and in their original condition are safe and not in immediate danger of falling” [emphasis added]. It is important to note, however, that in stating this opinion, Arup was replying to a query about the safety of the Façade in the immediate future (see [162(c)] above). The statement in the 4 December 2012 Draft that the Façade was “safe” must be read in this context: I do not understand it to be a statement that the Façade was safe for its design life. This could not have been what Arup meant given their earlier advice in the 8 August 2012 Letter.

164 On 7 December 2012, however, after a discussion with Ms Chee, Mr Yap prepared a revised draft of the reply to the BCA (“the 7 December 2012 Letter”), ²⁷⁷ which he sent to the BCA later that day after making a minor edit which is inconsequential. ²⁷⁸ The 7 December 2012 Letter differed from the earlier draft in the following ways:

(a) first, the sentence referred to at [163(a)] above was deleted;

(b) secondly, the sentence referred to at [163(b)] above was deleted and replaced with the following: “We will not comment on the follow up action of the panels which have not been restrained since Millenia is considering carrying out a replacement of the stone façade”; and

(c) thirdly, the words “safe and” were deleted from the sentence referred to at [163(c)] above, such that the sentence states that “panels both restrained and not restrained and in their original condition are not in immediate danger of falling” [emphasis added].

165 During oral submissions, Mr Ho submitted that (1) Millenia decided to reclad the Building in late 2012 and (2) this decision was not made for safety reasons. Mr Ho also submitted that Millenia suggested the changes reflected in the 7 December 2012 Letter because Millenia “didn’t want anything that could be issued, that could be used against them later to say that they replaced it under certain circumstances”. ²⁷⁹ I do not accept this submission:

(a) First, I do not accept that Millenia decided to reclad the Façade to improve it rather than on the basis that it was unsafe. As I have noted, Dragages did not plead this claim and I have found that Millenia decided to reclad the Façade for safety reasons (see [157]–[158] above). It is important to note that if the decision to reclad was made in late 2012, as Mr Ho submitted, it was taken after the 8 August 2012 Letter where Arup recommended a reclad for safety reasons (see [156] above).

(b) Secondly, I also do not accept Dragages’ allegations regarding Ms Chee’s motives for the changes she (may have) suggested to the 4 December 2012 Draft. Importantly, as Mr Singh noted, Mr Ho did not ask Ms Chee questions about the 7 December 2012 Letter. In particular, Mr Ho did not suggest that Ms Chee had caused Arup to change the wording for Millenia’s purposes. ²⁸⁰ In the circumstances, I do not accept that Mr Ho is entitled to raise this allegation against Ms Chee in submissions. Further, as I have explained (see [163(c)] above), I do not understand Arup to have been stating in the 4 December 2012 Draft anything more than that the Façade was safe in the short term. Any suggestion that Millenia suppressed an unequivocal statement by Arup that the Façade was safe is therefore without force.

166 On 6 December 2012, Dragages began third-party proceedings against Arup. ²⁸¹ Builders Shop, Meinhardt Singapore and Meinhardt Façade followed suit and joined Arup as a third party. ²⁸² Subsequently, on 18 October 2013, Millenia added Arup as a defendant to this action. ²⁸³

167 In or around March 2014, Millenia started the tender process for the reclad of the Façade (“the Reclad”). Millenia’s solicitors informed the court and the defendants of this during a pre-trial conference (“PTC”) on 5 March 2014, and offered the defendants an opportunity to inspect the Cladding before the Reclad began. ²⁸⁴ It should be noted that this opportunity was not taken up by the other parties.

168 On or about 22 May 2015, Millenia began works to declad and reclad the Façade. ²⁸⁵ Mr Yang prepared a report on, inter alia, the state of the Façade behind the stone panels (“the Reclad Report”).

169 Millenia’s case is that the defendants breached their contractual and/or tortious duties owed to Millenia and thereby caused it loss and damage.

170 Millenia’s case is that Dragages and Builders Shop breached:

(a) the Deed and/or their duties of care in tort, in performing the Works and/or the Sub-contract Works;

(b) the Deed, because the Cladding was not free of defects and deteriorated or failed within 15 years from the date of practical completion, and the Building was not fit for its purpose;

(c) the Settlement Agreement and/or their duties of care in tort, in undertaking the Rectification Works; and

(d) the Settlement Agreement, by appointing Meinhardt Façade to undertake Meinhardt Singapore’s roles under the Settlement Agreement and failing to ensure that Meinhardt Singapore performed those roles. ²⁸⁶

Additionally, Millenia claims that Dragages breached the Contract and/or its duty of care in tort in performing the Works. ²⁸⁷

171 Millenia’s case is that the Meinhardt Parties breached their duties of care in tort to Millenia in the following ways:

(a) failing to fully inspect the Cladding with due care, in particular:

(i) failing to identify (1) panels resting on shafts that failed to sufficiently protrude beyond the conical bolts, ie, they were too short and (2) panels restrained by brackets which were not perpendicular to the RC wall;

(ii) failing to identify all panels with temporary spacers, nuts and washers or rods between them; and

(iii) failing to identify all panels that were shaky because the holes into which the pins were inserted were too large;

(b) approving the rectification works performed using the Stitching Procedure;

(c) failing to propose remedial and/or rectification works to ensure that the Building would be fit for its purpose; and

(d) making negligent representations that the Rectification Works carried out by Dragages and Builders Shop complied with rectification methods proposed by the Meinhardt Parties, were of a permanent nature and were carried out in a good workmanlike manner pursuant to, among other things, cl 12 of the Settlement Agreement. ²⁸⁸

Notably, Millenia avers that Meinhardt Singapore was engaged to perform the Meinhardt’s roles under the Settlement Agreement, and Meinhardt Singapore carried out those roles by its agent or nominee, Meinhardt Façade. ²⁸⁹ This is a crucial plank of Millenia’s case against Meinhardt Singapore.

172 Millenia’s case is that Arup breached:

(a) Arup’s 2004 Appointment Letter and/or its duty of care in tort:

(i) by failing to advise Millenia to

(A) undertake proper and/or adequate maintenance of the Building, and/or

(B) implement proper and/or adequate safety and/or risk management measures to guard against adverse effects to the Building caused by deep underground works in the vicinity; and

(ii) by failing to properly identify defects in the 8 Drops;

(b) Arup’s 2007 Appointment Letter and/or its duty of care in tort:

(i) by negligently providing written confirmation that the defects in the Cladding were rectified satisfactorily; and

(ii) by failing to ensure that the Building would be fit for its purpose upon the completion of the Rectification Works. ²⁹⁰

173 Millenia claims that the defendants’ breaches of their duties to Millenia caused the Cladding to contain serious and substantial defects. ²⁹¹ Consequently, stone panels were (at risk of) cracking, chipping and/or becoming “shaky”, and so in danger of falling off the Cladding. Therefore, the Cladding or a substantial part thereof was structurally unsafe and in need of rectification/replacement; and the Building was no longer fit for its purpose.

174 Millenia avers that the defendants’ breaches of their duties caused it to suffer loss. Broadly, the loss which Millenia pleads falls within two categories. First, the loss which allegedly resulted from the 2nd Fall. Secondly, the loss of rectifying or replacing the Cladding, which loss allegedly resulted from the Cladding being structurally unsafe. Millenia seeks an indemnity from Dragages, Builders Shop and Arup against all loss and damage suffered by Millenia; and damages, interests and costs on an indemnity basis from the defendants. ²⁹²

175 Importantly, in its closing submissions, Millenia states that it is not pursuing a claim for the cost of rectifying or replacing the Cladding from the Meinhardt Parties or Arup. This is subject to a caveat. In respect of the Meinhardt Parties, Millenia submits that if it has lost remedies against Dragages or Builders Shop due to the negligence of the Meinhardt Parties, it is entitled to recover the full sum it claims in this suit from the Meinhardt Parties. In respect of Arup, Millenia submits that if it has lost remedies against Dragages, Builders Shop and the Meinhardt Parties due to Arup’s negligence, it is entitled to recover the full sum it claims in this suit from Arup. ²⁹³ In oral submissions, Mr Singh confirmed that this was Millenia’s position, stating the following: ²⁹⁴

Millenia’s claims against the Meinhardt Parties and Arup fall to be considered in this light.

176 Dragages and Builders Shop mount broadly similar defences:

(a) First, they deny that they breached their contractual duties or duties of care in tort (which duties of care are denied). ²⁹⁵ Moreover, they aver that Millenia is estopped from alleging the breach at [170(d)] above; Builders Shop also claims that Millenia waived any requirement that Meinhardt Singapore was to perform its roles under the Settlement Agreement instead of Meinhardt Façade. ²⁹⁶ Builders Shop also avers that Millenia is estopped from alleging that it did not perform the Rectification Works, and waived any duty for it to rectify any defects. ²⁹⁷

(b) Secondly, Dragages and Builders Shop aver that, even if they breached their duties, these breaches did not cause any defects in the Cladding nor cause Millenia to suffer any loss. ²⁹⁸

(c) Thirdly, they claim that, even if Millenia had otherwise valid causes of action against them for breaching their contractual duties and duties of care in tort, their causes of action in relation to the defects were compromised by and/or merged into the Settlement Agreement. ²⁹⁹

(d) Fourthly, they plead that any cause of action under the Contract (against Dragages) and for negligent performance of the Works and/or the Sub-Contract Works (against them both) is time-barred under the Limitation Act (Cap 163, 1996 Rev Ed) (“Limitation Act”). ³⁰⁰

177 Builders Shop also brings a counterclaim against Millenia. This is conditioned on a finding that Builders Shop did not complete the Rectification Works, and was responsible for the defects relied upon by Millenia. On that premise, Builders Shop avers that Millenia breached the Settlement Agreement by failing to highlight that the Rectification Works were incomplete and, on the contrary, confirming that the Rectification Works were complete. Builder Shop seeks a declaration that Millenia is liable to fully indemnify it for the costs of completing the Rectification Works and/or rectifying the defects. ³⁰¹

178 The Meinhardt Parties deny that they owed any duty of care in tort to Millenia. ³⁰² In particular, Meinhardt Singapore denies that it was engaged to perform the roles assigned to Meinhardt under the Settlement Agreement. According to Meinhardt Singapore, it did not owe any duty of care to Millenia because it was not involved in any inspection of the Façade and did not request Meinhardt Façade to do anything on its behalf. ³⁰³

179 Meinhardt Façade further avers that, even if it owed such duties to Millenia, it did not breach them. ³⁰⁴ Additionally, the Meinhardt Parties aver that, even if they breached duties to Millenia, they are only liable for the costs of re-inspecting the Cladding which they (allegedly) inspected, and not for any relief claimed by Millenia. ³⁰⁵

180 Arup’s defence is that it did not owe some of the duties which Millenia contended for; ³⁰⁶ moreover, it did not breach any duty to Millenia; ³⁰⁷ and any such breach did not cause Millenia any loss. ³⁰⁸ Millenia’s claims under Arup’s 2004 and 2007 Appointment Letters are also time-barred and subject to limitation of liability clauses. ³⁰⁹

181 Arup counterclaims for two declarations or orders, interest and costs on an indemnity basis. ³¹⁰ First, it seeks a declaration or order that Millenia’s claims against it are time-barred, an abuse of process and should be struck out. Secondly, it seeks a declaration or order that Millenia, at all times, indemnify it against all loss arising from the proceedings and the third party action. In this regard, Arup expressly pleads cl 2 of the 2007 Appointment Letter and states that it will rely on the terms of, among other things, the 2007 Appointment Letter for their full effect at trial. ³¹¹ Arup also claims that Millenia breached an implied term of Arup’s 2007 Appointment Letter that it would fully communicate Arup’s concerns about the Rectification Works to the other defendants, thereby causing the latter parties to initiate third party proceedings against Arup. ³¹²

182 In response to Dragages’ and Builders Shop’s defences, Millenia avers that it relied on them to carry out their duties under the Settlement Agreement (and, in respect of Dragages, its duties under the Contract). ³¹³ Millenia denies that its claims arising out of the 1st Fall and the defects subject to the Settlement Agreement had been compromised by and/or merged into, or settled under, the Settlement Agreement, such that Dragages and Builders Shop are not liable in respect of those claims. ³¹⁴ Millenia also denies that its claims are time-barred. ³¹⁵

183 Millenia did not reply to the Meinhardt Parties’ defences.

184 In response to Arup’s defence, Millenia denies that its claims against Arup are time-barred or subject to the limitation of liability clauses which Arup invokes. ³¹⁶ Millenia avers that, even if the limitation of liability and time-bar clauses which Arup invokes were incorporated into the 2004 and 2007 Appointment Letters, they breach the Unfair Contract Terms Act (Cap 396, 1994 Rev Ed) (“UCTA”) and thus Arup cannot rely on them. ³¹⁷

185 Millenia’s defence to Builders Shop’s counterclaim is that it does not disclose a cause of action; it also did not breach the Settlement Agreement. ³¹⁸

186 Millenia’s defence to Arup’s counterclaim is that:

(a) it does not disclose a cause of action;

(b) the indemnity clause which Arup invokes does not apply or falls afoul of the UCTA;

(c) in any event, Millenia had no duty to communicate Arup’s concerns about the Rectification Works to the other defendants; and

(d) even if Millenia had such a duty, it fulfilled it. ³¹⁹

187 Dragages’ case against Arup has two prongs:

(a) First, Arup breached its duties in contract and/or tort to Millenia by failing to undertake and/or advise Millenia to undertake proper maintenance of the Building and failing to implement and/or advise Millenia to implement proper safety and/or risk management measures in respect of adverse effects to the Building caused by deep underground works near the Building. These breaches caused the 2nd Fall and the alleged defects. ³²⁰

(b) Secondly, even if Dragages is liable to Millenia for the 2nd Fall and the alleged defects, Arup contributed to these consequences by negligently accepting the Rectification Works as satisfactory and in accordance with the Settlement Agreement, in breach of its contractual duty or its duty of care in tort. ³²¹

In the event that Dragages is held to be liable to Millenia, Dragages claims a contribution from Arup in respect of the partial amounts due from it to Millenia (including costs) and its costs in this suit and the third party proceedings. ³²²

188 Builders Shop broadly adopts Dragages’ case against Arup. ³²³ It also avers that, if it is liable to Millenia, Arup breached its duty of care in tort to Builders Shop and/or committed negligent misrepresentation, by confirming that the Rectification Works were completed, and failing to inform and/or warn Builders Shop that its works were inadequate or defective. ³²⁴ Builders Shop seeks damages for Arup’s breach of its duty of care, contribution for its liability (if any) to Millenia and its costs in this suit and the third party proceedings. ³²⁵

189 The Meinhardt Parties’ case against Arup is as follows:

(a) First, Arup breached its duties in contract and/or tort to Millenia by failing to properly identify defects in the 8 Drops, properly satisfy itself that Meinhardt’s 2008 Report was adequate, properly satisfy itself that the Rectification Works were carried out correctly, and/or by committing the breaches pleaded by Millenia against Arup. Due to these breaches, Arup is wholly responsible for the 2nd Fall and the alleged defects in the Cladding. ³²⁶

(b) Secondly, even if the Meinhardt Parties negligently caused the 2nd Fall and the alleged defects, Arup’s breaches (see [(a)] above) wholly caused or contributed to Millenia’s loss and damage. ³²⁷

In the event that the Meinhardt Parties are held liable to Millenia, they seek an indemnity or, in the alternative, a contribution from Arup, in respect of, inter alia, sums due from them to Millenia (including costs) and their costs in this suit and the third party proceedings. ³²⁸

190 Arup’s defences to Dragages’ and Builders Shop’s claims are as follows:

(a) first, it did not breach its duties to Millenia; and

(b) secondly, in respect of Builders Shop’s case, it did not owe a duty of care to the latter; ³²⁹ moreover, it did not give written confirmation that the Rectification Works were satisfactorily carried out. ³³⁰

191 Arup’s defence to the Meinhardt Parties’ case is that it did not breach its duties to Millenia; moreover, even if it did, its breaches did not cause the 2nd Fall or the alleged defects in the Cladding. ³³¹

192 Moreover, Arup alleges that Arup’s 2004 and 2007 Appointment Letters were subject to time-bar, limitation of liability, and net contribution clauses and required Millenia to indemnify Arup for claims against it. ³³²

193 Dragages denies that the clauses and requirement contended for by Arup (see [192] above) were part of Arup’s 2004 and 2007 Appointment Letters; further, even if they were, they fell afoul of the UCTA. ³³³ Dragages further avers that Arup provided written confirmation that the Rectification Works were completed; and, further, had an implied duty not to unreasonably refuse or fail to issue such confirmation, the breach of which had the consequence of the Rectification Works being deemed to be completed and properly carried out. ³³⁴

194 The other replies to Arup’s defences are brief. Builders Shop states that it did not know of Arup’s 2004 and 2007 Appointment Letters and would rely on their terms, meaning and effect at trial. ³³⁵ The Meinhardt Parties aver that, as they were not party to Arup’s 2007 Appointment Letter, the clauses therein did not apply to their claims against Arup. ³³⁶

195 Millenia’s case is that the defendants’ breaches of their duties caused (1) the 2nd Fall and (2) serious and substantial defects in the Cladding, by virtue of which the Cladding was structurally unsafe.

196 No one disputes, nor can it be disputed, that the 2nd Fall occurred. Yet, it was at least initially disputed whether the Cladding contained serious and substantial defects that affected its safety and structural integrity, before the Façade was reclad; and the nature and extent of those defects are disputed. The cause of the 2nd Fall and the alleged defects is also disputed. There are therefore two overarching issues which have to be determined.

(a) First, did the Cladding contain serious and substantial defects which rendered it structurally unsafe, before the Façade was reclad; and if so, what was the nature and extent of the defects (“the Defects Issue”)?

(b) Secondly, what caused:

(i) the 2nd Fall; and

(ii) if the answer to [(a)] is in the affirmative, the defects in the Cladding (“the Causation Issue”)?

197 In respect of Millenia’s claims against Dragages and Builders Shop, the following issues fall to be determined:

(a) First, what duties did Dragages and Builders Shop owe to Millenia in contract and in tort?

(b) Secondly, did Dragages and Builders Shop breach these duties?

(c) Thirdly, did any breaches by Dragages and Builders Shop of their duties to Millenia cause the latter to suffer loss?

(d) Fourthly, if Millenia has otherwise valid causes of action against Dragages and Builders Shop, are any of these compromised by and/or merged into the Settlement Agreement?

(e) Fifthly, if Millenia has otherwise valid causes of action against Dragages and Builders Shop, are any of these time-barred?

198 In relation to Millenia’s claims against the Meinhardt Parties, the following issues fall to be determined:

(a) First, did Meinhardt Singapore carry out the roles assigned to Meinhardt under the Settlement Agreement?

(b) Secondly, did the Meinhardt Parties owe any duty of care to Millenia in tort?

(c) Thirdly, did the Meinhardt Parties breach any such duties?

(d) Fourthly, did any such breach cause Millenia to suffer loss?

199 Millenia’s claim against Arup raises the following issues:

(a) First, did Arup breach any duty to Millenia?

(b) Secondly, did any such breach caused Millenia to suffer loss?

(c) Thirdly, are Millenia’s claims against Arup time-barred or subject to limitation of liability clauses?

200 In respect of the counterclaims against Millenia, the key issue is whether they disclose any cause of action against Millenia and whether, even if they do, Millenia breached the duties alleged by Builders Shop and Arup.

201 In relation to the third party actions against Arup, the following issues fall to be determined:

(a) First, did Arup breach the duties to Millenia which Dragages, Builders Shop and the Meinhardt Parties alleged?

(b) Secondly, did any such breach cause the 2nd Fall or the alleged defects in the Cladding?

(c) Thirdly, do the time-bar, limitation of liability and net contribution clauses which Arup relies on apply?

202 Finally, a central issue is whether if the defendants are liable to Millenia, Millenia is entitled to recover the costs of the reclad of the Façade (“the Reclad Issue”).

203 I shall now examine these issues in turn.

204 The first issue is whether the Cladding contained serious and substantial defects which rendered it unsafe, before the Façade was reclad; and if so, what was the nature and extent of the defects. Before delving into the evidence, I address two preliminary issues which arise from the parties’ submissions: the nature of the evidence on the defects and the credibility of the façade experts.

205 The evidence on the defects consists primarily of:

(a) the photographs of panels and comments in the 100% Inspection Reports and the evidence of the façade experts regarding the same;

(b) the expert reports of the defendants’ façade experts based on their inspections of representative sections of the Cladding; and

(c)  the Reclad Report and the supplementary reports prepared by the defendants’ façade experts on the Reclad Report.

Reference was also made to the 100% Spreadsheets and two other spreadsheets prepared by Millenia (“the 68% Spreadsheet” and “the 66% Spreadsheets”), reports by Earth Arts, Arup and Meinhardt Façade of their inspections of the Façade and records by Cementone of the panels it restrained after the 2nd Fall.

206 During the trial, there was much controversy over the evidence on the defects, some of which has found its way into the parties’ submissions. I will therefore express my views on the relevant points.

207 As noted at [152] above, Arup did not assess the panels noted in the 100% Inspection Reports and the 100% Inspection Spreadsheets to be defective (with the exception of panels that Arup assessed to be in danger of falling in the near future). Rather, Arup made observations in accordance with the Aurecon Protocol and left it to Mr Yang to assess whether its observations were observations of defects. Dragages submits that Millenia therefore cannot rely on the 100% Inspection Reports and the 100% Inspection Spreadsheets as evidence of defects without more, because what was recorded therein was not assessed by Arup to be defects. ³³⁷ According to Dragages, this means that “[t]he cornerstone of [Millenia’s] case is missing”.

208 In my view, it is important to distinguish two different questions:

(a) First, is there evidence that each and every panel recorded in the 100% Inspection Reports and the 100% Inspection Spreadsheets had the (alleged) defects recorded therein? The answer is plainly no. Millenia did not seek to establish that each and every panel recorded by Arup had the (alleged) defects Arup observed. On the contrary, as I note below, Millenia adduced the 66% Spreadsheets during the trial, which reflected Mr Yang’s view (see [215] below) that Arup’s records were both over-inclusive (some panels did not have the alleged defects Arup observed) and under-inclusive (some panels had defects which Arup did not record). (To be clear, I note that Mr Singh emphasised that the 66% Spreadsheets were not being adduced as evidence and I did not admit the 66% Spreadsheets as evidence. ³³⁸ I therefore do not treat the 66% Spreadsheets as evidence. This has implications: see [217] below.)

(b) Secondly, is there evidence that some (alleged) defects recorded by Arup were defects? The answer is clearly yes. The 100% Inspection Reports and the 100% Inspection Spreadsheets do not stand alone. Over 14 days of witness conferencing, the façade experts gave detailed evidence on the contents of the 100% Inspection Reports and assessed many stone panels to be defective. There was thus ample expert evidence on the observations recorded by Arup; and critically, ample evidence that many panels Arup observed were defective.

Ultimately, I do not consider it material that Arup did not generally assess the observations it recorded to be defects. It was not incumbent on Millenia to prove that each and every observation noted by Arup was a defect. What Millenia had to show was that there were serious and substantial defects that rendered the Cladding unsafe. Expert evidence to that end was adduced at trial.

209 I note, however, that there are limitations with the evidence in the 100% Inspection Reports. A number of photographs that Mr Yang showed me during the trial were unclear: they did not disclose the extent or nature of the alleged defect. However, I was generally able to form a view on the nature and prevalence of the alleged defect in question. I relied not only on the 100% Inspection Reports, but on the expert evidence of the defendants’ façade experts which was based on their inspections of portions of the Cladding (see [205(b)] above). I went through hundreds of photographs and, where available, accompanying documents and evidence.

210 The Reclad Report was prepared based on photographs taken during the Reclad, which began on 22 May 2015 (see [168] above). Millenia applied for the Reclad Report to be admitted into the evidence, before the witness conferencing of the façade experts. In its submissions, Dragages emphasises that the Reclad Report was filed on 21 September 2015, after the factual witnesses and most of the other experts had given evidence. ³³⁹ I note, however, that at the very latest, the possibility that the Reclad Report might be introduced into evidence was raised during the trial on 22 April 2014. ³⁴⁰

211 Dragages objected to the admission of the Reclad Report. After hearing the parties, I allowed Millenia’s application for the Reclad Report to be admitted into the evidence for two main reasons. ³⁴¹ First, I was satisfied that the evidence in the Reclad Report was credible and very relevant to the issues to be determined in this trial, in particular the Defects Issue and the Reclad Issue. Secondly, I considered that no prejudice would be caused to the defendants through the admission of the Reclad Report that could not be remedied by costs orders. I was fortified in these views in the course of the trial. It became apparent that the photographs in the Reclad Report (“the Reclad Photographs”) showed many defects that had been hidden before the Reclad, such as corroding washers securing type A brackets, which Arup and Meinhardt Façade did not observe in their inspections of the Façade, and improperly embedded anchor bolts and brackets (see [681(b)] below). The Reclad Report was therefore very useful. Further, I observed that the defendants’ façade experts were well able to meet the evidence in the Reclad Report in their supplementary reports and during the witness conferencing. It was thus evident that the defendants did not suffer any prejudice through the admission of the Reclad Report that could not be remedied by appropriate orders on costs.

212 In their supplementary reports, the defendants’ façade experts noted that the decladding works may have damaged the panels and bracketing systems. ³⁴² I bore this in mind in assessing the Reclad Photographs and Mr Yang’s evidence on the same. I note, however, that at the PTC on 5 March 2014, Millenia stated that it was proceeding with the tender for the Reclad and offered the defendants an opportunity to inspect the Cladding before the Reclad began (see [167] above). On 22 April 2014, Millenia stated that it would be looking into preparing the Reclad Report (see [210] above). The defendants thus knew (1) that the Façade was going to be reclad and (2) that a report would be prepared based on what was observed during that process. Any concerns over the nature of the decladding works may have been avoided or alleviated if the defendants had requested to observe the decladding works. No such request was made.

213 The 68% Spreadsheet refers to a spreadsheet adduced by Millenia. ³⁴³ This spreadsheet depicts all the panels from levels 3 to 35 of the Building and reflects Mr Yang’s view on which panels were defective. The panels in the 68% Spreadsheet are coloured green, red and purple. ³⁴⁴ Mr Yang’s evidence was that he reviewed all of the panels in the 100% Inspection Reports and came to the view, on that basis, that 66% of the panels from levels 3 to 35 of the Building were defective. ³⁴⁵ I note, however, that Mr Yang did not inspect the Façade but relied on photographs and documents in the 100% Inspection Reports in arriving at this view. The panels that Mr Yang assessed to be defective based on the 100% Inspection Reports were the red panels in the 68% Spreadsheet. Mr Yang then assessed an additional 2% of the panels from levels 3 to 35 of the Building to be defective based on the Reclad Photographs. These were the purple panels in the 68% Spreadsheet. ³⁴⁶ The red and purple panels thus constituted 68% of the panels from levels 3 to 35 of the Building. Mr Yang assessed these panels to be defective. The remaining panels, which were not defective, are coloured green in the 68% Spreadsheet. There were 14,180 panels from levels 3 to 35 of the Building. ³⁴⁷ 68% of 14,180 panels would amount to around 9,642 panels.

214 The 68% Spreadsheet does not show the individual defect(s) that the red or purple panels had. In relation to the individual defects in the 100% Inspection Reports, on which basis Mr Yang assessed 66% of the panels from levels 3 to 35 of the Building to be defective, Millenia relies on the 66% Spreadsheets.

215 The 66% Spreadsheets consist of one summary spreadsheet and 21 other spreadsheets. ³⁴⁸ Each of the 21 spreadsheets concern one specific type of alleged defect, and purport to show which panels had that particular alleged defect. The panels are shaded in four colours: green (the panel did not have the alleged defect), blue (Arup observed that the panel had the alleged defect, but Mr Yang assessed that it did not), pink (Arup did not observe that the panel had the alleged defect, but Mr Yang assessed that it did) and red (Arup observed that the panel had the alleged defect, and Mr Yang assessed that it was defective).

216 The 100% Spreadsheets and the 66% Spreadsheets do not identify the same defects on the same panels: the blue and pink panels reflect where Arup and Mr Yang disagreed. I had a number of concerns in this regard:

(a) First, in further and better particulars, Millenia stated that its case on the location of the defects was based on, amongst other things, the 100% Spreadsheets. ³⁴⁹ Mr Singh made clear that Millenia would not be amending its pleadings to rely on the 66% Spreadsheets rather than the 100% Spreadsheets. ³⁵⁰ The 66% Spreadsheets therefore did not sit well with Millenia’s pleaded case on the location of the defects.

(b) Secondly, in his first expert report, Mr Yang took the view that about 75% of the Cladding was defective (see [220(a)] below). When Mr Yang took the stand, he amended his report to state that based on the 100% Inspection Reports alone, ie, not accounting for the additional 2% of allegedly defective panels he found based on the Reclad Photographs, approximately 66% of the Cladding was defective (see [213] above). But it was only when the 66% Spreadsheets were introduced on 2 March 2016, during the witness conferencing of the façade experts, that I learnt that Mr Yang’s view was not just that Arup had recorded observations that were not defects (hence the drop from 75% to a lower figure), but that Arup had failed to record some defects. The 66% Spreadsheets reflected not just blue panels, but pink panels as well. The defendants submitted that their experts would not have had an adequate opportunity to consider and evaluate the pink panels if the 66% Spreadsheets were admitted as evidence. I considered that this submission had some force.

Eventually, I dealt with the 66% Spreadsheets in the following way. Mr Singh confirmed that he was not relying on the 66% Spreadsheets as new evidence (see [208(a)] above), ³⁵¹ and I allowed Mr Yang to refer to them on that basis with one important caveat. ³⁵² I made clear that I did not wish to hear Mr Yang in relation to pink panels. ³⁵³ Counsel agreed that this was a sensible way forward and the trial proceeded accordingly.

217 I make a final point regarding the 66% Spreadsheets. They show the basis of Mr Yang’s evidence that 66% of the panels from level 3 to 35 were defective (based on the 100% Inspection Reports). Because the 66% figure was partially based on the pink panels, and I did not admit evidence regarding the pink panels into the evidence, I do not accept Mr Yang’s evidence that the 100% Inspection Reports show that 66% of the Cladding was defective. I accept Dragages’ submission that at most, only the red panels in the 66% Spreadsheets, as opposed to the pink panels, could be considered defective. ³⁵⁴ Dragages further submits, and I accept, that there were 4,481 red panels (31.6% of the 14,180 panels on levels 3 to 35 of the Building). The pink panels formed the remaining 34.4% of the 14,180 panels (around 4,878 panels) which Mr Yang assessed to be defective based on the 100% Inspection Reports.

218 I now come to my assessment of the credibility of the façade experts. The evidence on the defects was complex and complicated. Unfortunately, the façade experts could not reach a consensus on many issues. I therefore had to choose between competing opinions on many points.

219 Of all the experts, I found Mr Hartog the most objective and credible although I do not accept his evidence on every point. I also found the evidence of Mr Mann and Mr Hugh Keithly (“Mr Keithly”), the façade experts engaged by the Meinhardt Parties, generally credible, though I had to caution Mr Keithly on one occasion not to advocate his client’s case. ³⁵⁵ I found Mr Mann’s report useful as it was based on his inspection of 28 drops, about 36% of the Cladding. ³⁵⁶ I bore in mind, however, that Mr Mann did not inspect the whole Façade and that his inspection was carried out relatively swiftly, over 17 days. ³⁵⁷

220 I now turn to Mr Yang. The defendants strenuously attack his credibility. The following points are not in dispute:

(a) Mr Yang filed his first expert report on 15 January 2014. In this report, he opined that around 75% of the Cladding was defective. ³⁵⁸

(b) However, when Mr Yang stated this opinion in January 2014, he had not reviewed all the photographs in the 100% Inspection Reports. He had only reviewed around 10% or 20% of the photographs therein. ³⁵⁹ He based his opinion on these photographs, and on a table prepared by Arup which he received from Millenia’s solicitors. ³⁶⁰ That table was a table of the observations recorded by Arup when Arup had inspected only about 25% of the Façade, ³⁶¹ stating that 76.6% of the panels inspected had defects of various types. ³⁶²

221 In my view, Mr Yang should have been more careful in giving evidence in his first report. However, he explained that he did not have sufficient time to review all of the evidence in the 100% Inspection Reports before he filed his report, because it was due one or two months after he received all of the information he required from Arup. ³⁶³ He had focused on the causes of the 2nd Fall and the cracks on the Façade in his first report. ³⁶⁴ While he stated that 75% of the Cladding was defective, he had qualified this claim by stating that this figure was based on information obtained from Arup. ³⁶⁵ He only came to understand the importance of the number of defects when the 75% figure was challenged during the expert conclave of the quantity surveyors in May 2014. ³⁶⁶ He then reviewed all the photographs in the 100% Inspection Reports and came to the view that they showed that 66% of the panels from levels 3 to 35 of the Building were defective (see [213] above).

222 After carefully considering Mr Yang’s explanation, his evidence over the course of 14 days of witness conferencing, and his demeanour, I came to the view that he was not a dishonest witness. Significantly, this was the first time that Mr Yang had served as an expert witness and I considered his evidence and his conduct in that light. ³⁶⁷ However, I struggled to follow his evidence on certain points and treated his evidence with some care. I also note that Mr Yang, unlike Mr Mann and Mr Lalas, did not conduct a personal inspection of the Cladding but primarily relied on photographs in forming his opinions on the defects (see [213] above). I bore this in mind in assessing Mr Yang’s evidence.

223 I now come to the credibility of Mr Lalas. I found Mr Lalas to be the least credible façade expert. I had to caution him more than once to be careful in giving evidence. ³⁶⁸ I note three especially disquieting aspects of his evidence:

(a) First, there was an unfortunate episode where Mr Lalas showed me a bracket which he claimed was used on the Building. ³⁶⁹ Mr Hartog examined the bracket quietly and carefully, and then said that he doubted it came from the Building because on close examination, there were no signs of scratches or cement or epoxy on the bracket. All the other façade experts then examined the bracket and agreed. Mr Lalas was then queried. He said, rather abashedly, that Ms Perez had given him the bracket and said it was from the Building and he had accepted her claim. ³⁷⁰ I examined the bracket and it was obvious that there were no nicks or scratches and its surface was shiny. I find that the bracket was not used on the Building.

(b) Secondly, Mr Lalas stated in his report that although Earth Arts inspected the Façade, “the reports [of that inspection] are Arup reports including Arup headings and logos”. ³⁷¹ Under cross-examination, Mr Lalas admitted that he was so advised by Dragages (probably by Ms Perez) and had never seen the relevant reports before. Upon being shown them, he admitted that his statement was wrong: the reports were issued by Earth Arts, not by Arup. He agreed that he had been “asked to put this into an expert affidavit to be placed before the court, and [did not] even verify whether [the] statement [was] correct” [emphasis added]. ³⁷²

(c) Thirdly, certain paragraphs of Mr Lalas’ report contain star (*) markings. ³⁷³ Mr Lalas explained that he had intended to substitute the markings with cross-references to correspondence to support the points he was making, some of which were allegations against Arup. ³⁷⁴ However, he could not find the references. Mr Lalas agreed that in the circumstances, he should have edited the text of his report to remove the points that he could not find references for. However, he did not do so. ³⁷⁵

Apart from all this, there was the same limitation noted above in relation to Mr Mann’s report, namely, that Mr Lalas did not inspect the entire Façade. He only inspected 10 drops, ie, 12.5% of the Cladding. ³⁷⁶

224 I find that the Cladding contained serious and substantial defects which rendered it structurally unsafe, before the Façade was reclad. The defendants do not seriously dispute this. Dragages accepts that the Façade was unsafe until the Reclad “because of the presence of a number of panels [with] significant cracks”. ³⁷⁷ Dragages claims that the Façade was safe when the Rectification Works were completed in October 2009, but then became unsafe due to external factors for which it cannot be held liable. ³⁷⁸ Similarly, Meinhardt Façade acknowledges that the Façade contained defects. However, it claims that the defects were construction defects caused by Dragages and Builders Shop, ie, the parties who constructed the Building, for which it cannot be held liable. ³⁷⁹

225 My reasons for my finding at [224] above are as follows:

(a) First, all of the façade experts ultimately did not dispute that the Façade was unsafe before the Reclad. Mr Yang and Mr Hartog gave clear evidence that the Façade was unsafe. ³⁸⁰ During the trial, Mr Lalas eventually agreed that the Façade was unsafe before the Reclad because “there [were] a number of panels that [were] unsafe”. ³⁸¹ Similarly, during the trial, Mr Mann and Mr Keithly accepted that there were panels that were unsafe and needed to be rectified.

(b) Secondly, in the course of its inspection of the Façade after the 2nd Fall, Arup found 630 panels at risk of falling in the near future (see [161] above). I thus find that after the 2nd Fall, there were a substantial number of panels in risk of falling in the near future. The evidence of Mr Chin and Mr Yang, which I accept, was that most of these were panels with cracks (which had not been adequately rectified). ³⁸²

(c) Thirdly, while Mr Lalas disputed many of the alleged defects raised by Millenia, his evidence was that around 250 panels on the Façade posed safety issues before the Façade was reclad. ³⁸³ Further, Mr Lalas concluded that approximately 160 panels were so defective that they could not simply be rectified but had to be replaced entirely. These 160 panels were panels with cracks. ³⁸⁴

(d) Fourthly, I find that:

(i) most of the types of observations recorded by Arup in the 100% Inspection Reports, some of which the defendants denied were defects, were in fact defects;

(ii) several defects gave rise to safety risks; and

(iii) there were many cases of these defects, ie, defects giving rise to safety risks on the Cladding.

I shall now expand on my finding at [(d)] above with detailed findings on the individual defects alleged by Millenia. Since the parties dispute the definition of a defect, I will first clarify the definition of a defect.

226 Dragages claims a defect did not arise in every case where there was a departure from contractual specifications. Rather, a departure from contractual specifications had to compromise the safety and structural integrity of the Façade and its fitness for purpose to amount to a defect. ³⁸⁵ I do not agree. What exactly is a construction defect is something on which there can be considerable disagreement. It can mean a great many different things depending on the context in which it is discussed or examined. It can range from the adequacy or otherwise of complex foundations or structural integrity of parts of a building, to aesthetic considerations of form, design or intent down to the nuisance of a squeaking wooden floorboard or the uneven staining of doorframes. Generally, defects can be grouped into design deficiencies, material deficiencies, specification problems or workmanship deficiencies: see Jeremy Glover, “Liability for Defects in Construction Contracts – who pays and how much?” (2008) (accessed 6 September 2018) at para 3. In my judgment, the concept of a defect is correctly defined in the following passage from Nicholas Dennys QC and Robert Clay, Hudson’s Building and Engineering Contracts (Sweet & Maxwell, 13th Ed, 2015) at para 4-071:

In other words, a defect obtains in every case where work does not comply with contractual requirements. It is important to distinguish two types of defects:

227 First, there were specific contractual requirements for some matters, eg, the size of pin holes (see [297] below). In relation to these matters, it sufficed for Millenia to prove a departure from the specifications to establish a defect. Millenia contends, however, that each alleged defect created or contributed to a safety risk either individually or in combination with others. The defendants challenged Millenia’s arguments. I will give my findings on these points below.

228 Secondly, in relation to matters such as the minimum embedment depth of anchor bolts (see [279] below), I was not shown any specifications, drawings or product literature that stated what the contractual requirements were. Whether these alleged defects are defects turns on whether more general contractual requirements – eg, reasonable care and diligence in designing and installing the Cladding and ensuring the Building was fit for its purpose – were satisfied. It is thus necessary to examine whether these alleged defects gave rise to safety risks, for that is relevant to whether the general contractual requirements were fulfilled. To this extent, I accept Dragages’ submission that whether certain alleged defects amounted to defects depends on whether they gave rise to safety risks (see [226] above). In my judgment, where Millenia sought to establish that an alleged defect was a defect because it led to safety concerns, Millenia had to prove real, non-speculative safety risks. It was not necessary for Millenia to prove that these risks were very serious or immediate. But the risks had to be real risks grounded in evidence.

229 I will thus approach the alleged defects in the following general manner:

(a) I first consider if the alleged defects involved breaches of specific contractual requirements. If so, they amounted to defects.

(b) I then examine whether the alleged defects created or contributed to safety risks.

(c) If there were any real safety risks, I then consider whether these were adequately addressed by the Rectification Works.

I now turn to the alleged defects.

230 The 100% Spreadsheets identified 16 categories of alleged defects: ³⁸⁶

Further, in the Reclad Report, Mr Yang identified a 17th category of alleged defects, ie, pins of insufficient embedment depth. ³⁸⁷ I shall refer to each of these 17 categories of alleged defects as “DT1”, “DT2” etc. Apart from DT1–DT17, Millenia also raised three alleged design defects in its closing submissions and I will consider them below.

231 I have referred to DT16 at [225(b)] above, and will not consider it separately below. Mr Chin’s evidence, which I accept, was that DT16 refers to panels that were adjudged, on the basis that they had one or more of the alleged defects noted in DT1 to DT15, to be in danger of falling in the near future. ³⁸⁸

232 The two defects which had the most direct connection to the safety and structural integrity of the Façade were certain cracks on panels (certain cases of DT13) and cracks/chips at pin areas (DT14a). Dragages accepts that certain cracks – cracks which spanned across the face of the panel and cut through the thickness of the stone – and cracks/chips at pin areas undermined the safety and structural integrity of the Façade, ³⁸⁹ and I so find (I elaborate below). I note that DT13 and DT14a were the Schedule C Defects identified by Earth Arts and Arup as requiring urgent attention (see [78] above) and were identified by Arup as critical in the 8 August 2012 Letter (see [156(a)(i)] and [156(a)(iii)] above). I will consider DT13 and DT14 before turning to the other alleged defects.

233 In relation to the other alleged defects, Millenia’s case appears to be that, in general, they gave rise to a safety risk because they led to a risk that DT13 and DT14a would eventuate. Millenia argues that many of the alleged defects gave rise to a risk of stacking, ie, a risk that the load borne by one panel would be transferred to another panel (see [26] above), which in turn gave rise to a risk that cracks on panels and cracks/chips at pin areas would form. This is because, according to Mr Yang, stacking would cause stress to build up on the panels. When the concentration of stress on the panels exceeded their flexural strength, cracks across panels and cracks/chips at pin areas would arise. ³⁹⁰ Mr Mann agreed that cracks would form on panels where the load on panels exceeded their flexural strength: he explained that this was the cause of the long cracks and full-width cracks he observed (see [240(b)] below). Mr Hartog agreed that stacking would cause cracks/chips at pin areas. ³⁹¹ I thus find that stacking would cause cracks on panels and cracks/chips at pin areas of the panels.

234 However, the evidence was that the brackets were strong enough to take the weight of two panels. Stacking would thus only present a clear and present safety risk where more than two panels were stacked together (“multiple stacking”). ³⁹² I accept this evidence. However, in my judgment, so long as an alleged defect gave rise to a real risk of stacking, it gave rise to a real safety risk because, in combination with other defects, on the same and/or adjacent panels, multiple stacking or the risk of the same might arise over the design life of the Building, which was 50 years (see [14] above). My view here is consistent with the rectification proposals agreed upon between Meinhardt Facade and Arup. To take one example, after observing that nuts and washers stuck between panels could give rise to stacking, Meinhardt Façade recommended that all such objects be removed, without limiting this proposal to cases where multiple stacking might arise (see [259] below). ³⁹³ Meinhardt Façade clearly considered that a risk of stacking, without more, was a safety risk requiring remediation.

235 I will now address the alleged defects in the following order:

(a) I will first discuss DT13 and DT14 (see [232] above).

(b) I will then address the alleged defects that Millenia claims gave rise to a risk of stacking. The alleged defect which most directly gave rise to a risk of stacking is DT10. The other alleged defects which Millenia claims gave rise to a risk of stacking involve:

(i) components installed between panels (DT8 and DT9);

(ii) corroding components (DT4 and DT7); and

(iii) improperly installed components (DT3, DT5 and DT6).

(c) I then turn to the alleged defects which Millenia claims gave rise to a risk of cracks/chips forming at pin holes: DT1 and DT15, DT2 and DT17 (albeit in respect of DT2, although Millenia claimed DT2 would cause cracks/chips to form at pin holes, the primary safety risk brought to my attention was of pins disengaging from pin holes: see [306] below).

(d) Finally, I deal with two miscellaneous groups of alleged defects:

(i) DT11 and DT12, which pertain to “stitching”; and

(ii) the alleged design defects raised by Millenia.

236 DT13 refers to panels with cracks. There is some dispute over what the contractual specifications required: ³⁹⁴

(a) Mr Yang and Mr Hartog claimed that the panels were to be free of all cracks. They relied on the stonework specifications, cl 3.3.5 of which provided for the stone panels to be “free from … fissures, cracks … spalls … or other defects which would impair the strength, durability and appearance of the Work” [emphasis added], and cl 6.2.1 of which provided for the stone to be “free from cracks … of any kind”. ³⁹⁵

(b) Mr Mann and Mr Lalas observed that stone contains micro-cracks, and it would thus be impossible to supply stone which was free of all cracks. They opined that the panels were only required to be free from cracks that impaired their structural integrity for their intended use.

I accept that a stone panel would not have been defective merely because it had micro-cracks. Such cracks may well be inherent in granite. But provided the granite in question possesses the required characteristics (like hardness on the Mohs scale) and passes the requisite compressive, flexural, tensile and other tests, it is a suitable material with which to clad buildings. Many buildings in Singapore have granite cladding and do not have panels that fall off them. However, I find on the basis of the provisions cited by Mr Yang and Mr Hartog that all perceptible cracks impairing the appearance of panels were defects. Therefore, what Mr Mann described as short and moderate cracks, which were perceptible, as well as the long and full-width cracks he described, amounted to defects (see [240(a)]–[240(b)] below).

237 I now turn to consider whether panels with cracks presented a safety risk. I first make findings regarding panels with cracks spanning across the face of the panel and cutting through the thickness of the stone (see [232] above):

(a)  The façade experts agreed, ³⁹⁶ and I find, that such panels were unsafe: they were in danger of falling off the Façade.

(b) I find that there were some such panels which were not rectified and only restrained by Cementone after the 2nd Fall. For example, the photographs of panel 38-05-119 show a crack across the face of the panel and through the thickness of the stone. ³⁹⁷ No rectification works were performed to this panel, which was restrained by Cementone. ³⁹⁸

(c) I also find that such panels were not rendered safe for the rest of the design life of the Building even after Cementone’s works:

(i) I find, based on the evidence of Mr Yang and Mr Keithly, that Cementone only installed temporary wind-load restraints and not permanent dead load restraints, to restrain the panels. ³⁹⁹

(ii) I find that dead load restraints were necessary to rectify panels with full-width cracks. In this regard, I note that the rectification method Mr Lalas proposed for this defect was the insertion of four dead load rods through the panel. ⁴⁰⁰

Further, even if Cementone’s restraints were able to serve as dead load restraints, I find that they would not have rendered panels to which they were applied safe for the design life of the Building. Mr Yap opined that the restraints had a service life of around five to ten years. ⁴⁰¹ Cementone completed its restraining works in 2012 (see [161] above). At that time, there was about 35 years left in the design life of the Building.

238 I was also shown panels with cracks across the full width or height of the panels (“full-width cracks”), but it was unclear whether the cracks were through the thickness of the stone. Several such panels presented safety risks that were not addressed during the Rectification Works. Four examples of this are as follows:

(a) Panel 8-28-30-R: There was a crack across the middle of this panel. ⁴⁰² A single stitch was applied to the crack, on the right side of the panel. Mr Yang’s evidence was that most probably, there had only been a (small) crack on the right side of the panel at the time of the Rectification Works, which explained why only one stitch had been applied there, but the crack had then propagated across the face of the panel, despite the stitch. Mr Keithly agreed with Mr Yang. ⁴⁰³ This indicates that the Stitching Procedure did not effectively stabilise cracks, a point I return to at [319] below. Cementone applied four restraining pins and three stitches to this panel. ⁴⁰⁴ Mr Yang and Mr Hartog agreed that, without Cementone’s works, the panel was unsafe; Mr Lalas and Mr Keithly acknowledged that it was “possibly unsafe”. ⁴⁰⁵

(b) Panel 24-26-38-R: I was shown a photograph which reveals that there was a crack across the face of this panel, ⁴⁰⁶ albeit the crack was stitched and four restraining pins were inserted into the panel. Mr Lalas stated that the stitches and the pins amounted to “an adequate repair”. ⁴⁰⁷ Mr Chia then pointed out that the four pins had been installed by Cementone: the panel had only been stitched during the Rectification Works. ⁴⁰⁸ Mr Lalas admitted that there “may [have] be[en] a concern” if the “the dead load rods [were] not there”. ⁴⁰⁹

(c) Panels 1-27-31-R and 1-28-27-L: The photographs show cracks across the face of these panels. ⁴¹⁰ Four restraining pins were also inserted into each panel. However, these were only inserted by Cementone after the 2nd Fall: ⁴¹¹ the panels were not rectified during the Rectification Works. When asked about panel 1-28-27-L, Mr Lalas agreed that there was a “possibility” that it was unsafe without the restraining pins. ⁴¹²

I find that these panels were unsafe until they were restrained by Cementone, and even then, they were not made safe for the design life of the Building (see [237(c)] above). More generally, in view of the evidence on these four panels, I find that panels with full-width cracks which were not rectified were unsafe.

239 Apart from panels with full-width cracks, there were other panels with less extensive cracks which presented safety risks. Two examples of this are as follows:

(a) Panel 38-05-120: This panel had several vertical cracks, one of which was close to the top right pin of the panel. ⁴¹³ It does not appear that the panel was rectified in any way. Mr Lalas stated that this panel was “a candidate for replacement”, and Mr Mann, Mr Keithly and Mr Hartog agreed that the cracks were of concern. ⁴¹⁴

(b) Panel 38-07-114: There were cracks near the left edge of this panel extending from the middle of the panel to the top and the right. ⁴¹⁵ The façade experts agreed that the panel should be monitored. ⁴¹⁶ Again, this panel was not rectified during the Rectification Works.

240 I now turn to Mr Mann’s evidence on the cracks. Mr Mann divided the cracks into four groups: short, moderate, long and full-width cracks. ⁴¹⁷

(a) Short and moderate cracks: According to Mr Mann, short cracks (across less than 30% of the face of a panel) and moderate cracks (across between 30% and 60% of the face of a panel) were most likely “pre-installation” cracks that formed while the granite was in the quarry. ⁴¹⁸ Except for cracks at pins (DT14a), short cracks were stable and did not pose a “significant safety risk”. ⁴¹⁹ I note that Mr Mann’s report is silent on whether moderate cracks posed a safety risk.

(b) Long and full-width cracks: Long cracks were cracks across between 60% and 90% of the face of a panel. According to Mr Mann, long cracks, unlike short and moderate cracks, were not pre-installation cracks. Rather, they arose from the same source as full-width cracks: flexural failure, arising where the load on the panel exceeded the stone’s flexural strength. ⁴²⁰ Mr Mann’s evidence in this regard was in accordance with Mr Yang’s (see [233] above). On the evidence, it seems more likely than not that further flexural failure would have caused long cracks to propagate into full-width cracks. I therefore find that panels with long cracks also presented a real safety risk.

241 How many cracked panels were unsafe? It is difficult on the evidence to arrive at an exact number. However, I note the following points:

(a) First, Mr Lalas opined that there were around 160 cracked panels that were not only unsafe, but were so unsafe that they could not be rectified but had to be replaced entirely (see [225(c)] above).

(b) Secondly, as noted above, Arup recorded 588 instances of DT13 (see [230] above). Mr Mann inspected 221 of these panels and found that 26% of the panels he inspected (57 panels) had full-width cracks, and another 5% (11 panels) had long cracks. ⁴²¹ In other words, almost a third (31%) of the cracked panels inspected by Mr Mann had full-width cracks or long-width cracks, which presented a safety risk (see [238] and [240(b)] above).

Bearing in mind this evidence, I find that there were at least around 200 panels with long or full-width cracks and which were thus unsafe. A substantial number of these panels were not rectified during the Rectification Works and were only restrained by Cementone after the 2nd Fall (see [238] above).

242 DT14 refers to cracks/chips at pin areas (DT14a) and chips at panel edges (DT14b).

243 I turn first to DT14b. The specifications provided that the panels were to be free from chipped edges. ⁴²² I thus find that panels with chips at panel edges were defective. However, I find that chips at panel edges did not give rise to any real safety risk. Mr Yang admitted that he did not have evidence of a chip at a panel edge that might have propagated into a full-width crack or given rise to any safety risk. ⁴²³ The façade experts ultimately agreed that DT14b was simply an aesthetic issue that did not give rise to a safety risk. ⁴²⁴

244 I turn now to DT14a. I make the following findings:

(a) I find that there were many cases of DT14a. Mr Mann inspected 285 of the 968 panels which Arup claimed had DT14a and found that around 92% of the 285 panels had a crack/chip at a pin area. ⁴²⁵

(b) More specifically, I find that there were many cases of DT14a where the crack/chip was on the back of the panel. These cases of DT14a presented a safety risk (see [245] below). Mr Mann and Mr Keithly considered 12 cases of DT14a in reviewing the Reclad Report, and noted that eight of these were on the back of the panel. ⁴²⁶ They opined that such cracks/chips may have been caused by the decladding works. But they were careful to observe that this only applied to some of the cracks or chips. ⁴²⁷ I find that some cracks or chips at pins areas on the back of panels arose before the decladding works.

245 All of the façade experts agreed, and I find, that cracks or chips at pin areas on the back of panels gave rise to a safety risk. ⁴²⁸ If a crack or chip formed around a pin on the back of the panel, the pin might not adequately restrain the panel and there was thus a risk that the panel would fall out.

246 I note that the defendants’ façade experts emphasised that even if one of the pins restraining a panel had failed, the panel would have been adequately restrained by the remaining three pins. ⁴²⁹ Mr Keithly relied on a calculation in Meinhardt’s 2008 Report which indicated that a panel restrained by three pins would have been structurally safe. ⁴³⁰ I accept that a panel would not have been in immediate danger of falling if one of the pins restraining it had failed. However, I do not accept that a panel had to be in immediate danger of falling for a safety risk to arise, because the design life of the Building was 50 years (see [14] above). The point is similar to the one concerning the risk of stacking (see [234] above). Where one pin on a panel was compromised, one of the four points of restraint for the panel was lost. This would have been especially so if that pin was a top pin. The two bottom pins and their shafts (and their brackets) supported the weight of the panel. The two top pins did not support the weight of the panel. Rather, they restrained the panel from falling inwards or outwards and the two bottom pins on their own, as shown by the two panels that fell off the Building, were unable to restrain the panel. I therefore find that the loss of one pin, especially a top pin, would have given rise to a safety risk. Notably, Meinhardt’s 2008 Report did not provide for panels with less than four pins to be rectified such that they had four pins. However, after correspondence with Arup, Meinhardt Façade agreed that the panels should be rectified to their original four-pin configuration (see [110] above). This suggests that Meinhardt Façade considered that it was a safety risk for any panel to have less than four functioning pins. This is the view I have reached.

247 I find that not all cases of DT14a where the crack/chip was on the back of the panel were rectified during the Rectification Works. Two examples of this are as follows:

(a) Panel 17-22-51: Mr Yang, Mr Hartog and Mr Keithly agreed that there was a chip around the top left pin on the back of this panel. ⁴³¹ This was not rectified during the Rectification Works.

(b) Panel 69-25-44L: There was also a chip around the top left pin on the back of this panel, which was also not rectified during the Rectification Works. ⁴³² Mr Lalas, Mr Keithly and Mr Hartog agreed that this should have been rectified soon after the photograph was taken. ⁴³³

248 DT10 refers to panels which were found to have narrow or no movement joints between them. What is at issue here is not the gap between the panels per se, which was designed to be 10mm (at installation), but the gap between the bottom of the shaft, which was 4mm thick, and the panel below, which gap was to be 6mm (see [26] above). This gap was the “movement joint” for the purpose of DT10; I will hereinafter refer to this gap as the “movement joint”.

249 It appears that under Mr Yang’s direction – Arup carried out the 100% Inspection following the Aurecon Protocol developed by Mr Yang (see [152] above) – Arup recorded every movement joint less than 4mm as an instance of DT10. ⁴³⁴ Notably, Arup did not distinguish between cases of no movement joints and cases of narrow movement joints. Thus, some cases of DT10 were cases of no movement joints; others were cases of narrow movement joints.

250 As I have noted, the specifications provided for the movement joint to be 6mm (see [26] and [248] above). However, the evidence of Mr Mann and Mr Keithly was that the contractual specifications allowed for 2.3mm fabrication tolerance in the size of the panels; and thus, a movement joint of 3.7mm at installation would have accorded with contractual specifications. ⁴³⁵ Mr Yang did not challenge this evidence. I accordingly find that movement joints of less than 3.7mm at installation would have amounted to defective work.

251 Yet the evidence of DT10 was not obtained at the time of installation but from 2011, when Arup began the 100% Inspection. Between the installation of the panels, and the date of inspection of the movement joints, the movement joints would have reduced; and critically, this would have been in accordance with the design. The evidence of Mr Lalas, Mr Keithly and Mr Hartog, which I accept, was that movement joints are designed bearing in mind that the joints would be reduced by several factors after installation. ⁴³⁶ Mr Yang accepted this: this is why he only deemed movement joints of less than 4mm to be defective (see [249] above), although the design provided for movement joints to be 6mm at installation.

252 Mr Lalas’ evidence, which I accept, was that two factors, beam creep and column creep, would have occurred after installation and reduced the joints, albeit these factors would have ceased to have effect two years after the construction of the Building. ⁴³⁷ Nonetheless, he testified that beam creep and column creep would only have reduced the movement joints to a very limited extent. He said beam creep would have been “very, very small”. Column creep would have been about 1mm per floor; since there were four panels and thus four movement joints per floor; I find that column creep would have been about 0.25mm per movement joint. On this basis, it seems safe to conclude that any movement joint found in 2011 and thereafter to be less than around 3mm would not have accorded with contractual specifications: the joint would not have been 3.7mm when the panels were installed. I therefore find that movement joints which were found to be less than 3mm in 2011 and thereafter were defects.

253 I now make the following findings:

(a) I find that there were numerous cases of movement joints which were found to be less than 3mm in 2011.

(b) I further find that there were many cases in which there was no movement joint between two panels at all.

(c) I also find that there were cases where there were no movement joints between (at least) three adjacent panels. Dragages accepts that there were 12 such cases and that these “posed a genuine concern” (these defects were not rectified during the Rectification Works). ⁴³⁸

254 The safety risk posed by DT10 was that of stacking. I first discuss the cases referred to at [253(b)] and [253(c)] above.

(a) The cases noted in [253(c)] above posed a real risk of multiple stacking, and therefore a clear and present safety risk (see [234] above).

(b) The cases noted in [253(b)] above posed a real risk of stacking, and thus a real safety risk (see [234] above).

255 I now address whether any safety risk was posed by narrow movement joints which were found to be of less than 3mm (see [253(a)] above).

(a) Mr Yang testified that various factors acting together – slippage of brackets or shafts, differential settlement of columns, building sway, thermal expansion of panels and the absorption of moisture by panels – could have eliminated a movement joint of less than 4mm. ⁴³⁹ This is relevant because if true, narrow movement joints of less than 4mm would have been unsafe, in view of the risk that they could have been eliminated altogether and thus given rise to stacking.

(b) I accept that slippage, due to, eg, insufficiently embedded anchor bolts (see [281(a)] below) may have reduced movement joints. But I do not accept that the other factors that Mr Yang relied on would have materially reduced movement joints. Mr Lalas, Mr Keithly and Mr Hartog agreed that these factors would not eliminate a movement joint of 4mm. ⁴⁴⁰ Differential settlement would have been insignificant at the material time; and Mr Lalas and Mr Mann performed calculations showing that building sway, thermal expansion and absorption of moisture would have reduced movement joints by less than 1mm. Mr Yang did not accept this, but he did not provide me with calculations of his own or any material in support of his position. It thus seems safe to conclude, and I find, that leaving slippage aside, there was no real safety risk associated with any movement joint of more than 1mm. I therefore find that cases of DT10 involving movement joints of more than 1mm did not pose a real safety risk.

256 I find that not all instances of DT10 which presented a safety risk were rectified. Dragages accepts this (see [253(c)] above).

257 Nuts or washers were mounted onto the shafts supporting some panels, to ensure that the panels and the movement joints appeared to be aligned. ⁴⁴¹ In other words, these objects were positioned on top of the shafts (instead of in the movement joints). Arup recorded the panels where it observed nuts or washers on top of shafts as cases of DT8.

258 Millenia submits that the mounting of nuts or washers onto shafts eliminated movement joints between panels. ⁴⁴² I do not agree. I find that the mounting of nuts or washers onto shafts did not eliminate, or even narrow, movement joints. As Mr Mann noted, nuts or washers were placed on top of the shafts and therefore could not reduce the movement joint, the gap between the bottom of the shaft and the panel below (see [248] above). ⁴⁴³ Mr Yang suggested that placing a nut or washer on a shaft might move the shaft lower, bringing it into contact with the panel below; ⁴⁴⁴ but there was scant evidence of this.

259 However, Mr Mann’s evidence, which I accept, was that nuts or washers might lead to stacking – the transfer of load from upper to lower panels – where the shaft was installed in contact with the panel below. ⁴⁴⁵ If the shaft below was not in contact with the upper panel, and a nut or washer was mounted onto the shaft and came into contact with the upper panel, the load of the upper panel might transfer down through the nut or washer onto the shaft and thus to the lower panel. I find on this basis that the mounting of nuts or washers onto shafts, in cases where the shaft was installed in contact with the panel below, gave rise to a risk of stacking and, for that reason, posed a real safety risk. I note that the issue of nuts and washers in movement joints was identified in Arup’s 1st 2004 Report (see [51(d)] above). It was also highlighted in Meinhardt’s 2008 Report, where the following was stated: ⁴⁴⁶

Moreover, at trial, all the experts agreed that the nuts and washers should have been removed because of the risk that the load of the upper panel would not be transferred onto the shaft but onto (the bracket supporting) the panel below. ⁴⁴⁷ In view of this real safety risk, I find that the mounting of nuts or washers onto shafts installed in contact with the panel below was defective work. Notably, Mr Mann and Mr Keithly “agree[d] categorically” that DT8 was a defect. ⁴⁴⁸

260 I find that there were cases where nuts and washers were mounted onto shafts in contact with the panel below, thus giving rise to a risk of stacking. In their review of the Reclad Report, Mr Mann and Mr Keithly found 26 cases of DT8; in 16 cases, there appeared to be contact between the upper and lower panels through the shaft and the nut or washer (and hence a risk of stacking). ⁴⁴⁹ Further, there were two sets of panels that may have reflected multiple stacking, panels 52-32-12-L to 53-32-14-L and panels 53-31-17-L to 53-31-19-L. ⁴⁵⁰

261 I now consider whether cases of DT8 were rectified. I was shown one case of stacking arising from the mounting of a washer onto a shaft which was rectified, through the insertion of four dead load rods into the affected panel. ⁴⁵¹ But I find that not every case of stacking arising from the mounting of nuts or washers on shafts was rectified. In their supplementary report, Mr Mann and Mr Keithly observed that further rectification work might have been necessary to address instances of DT8 which led to stacking. ⁴⁵²

262 DT9 refers to silicone-based setting blocks (DT9a) and dead load rods (DT9b) that were inserted between the panels during the Rectification Works.

263 Millenia submits that temporary spacers or rods were used to create movement joints between stone panels. However, they were not removed and thus there were no or narrow movement joints between the panels. ⁴⁵³ DT9 therefore gave rise to stacking or a risk of stacking.

264 I first address DT9a. The defendants’ principal submission on DT9a is that the insertion of setting blocks was an agreed rectification method, and thus could not amount to a defect. ⁴⁵⁴ I find that the insertion of setting blocks was an agreed rectification method. It was identified as a remedial proposal in Meinhardt’s 2008 Report. ⁴⁵⁵ The purpose of inserting the setting blocks was to ensure that when nuts, washers or other foreign objects between panels were removed, the panels above, which may have been supported by the objects, did not bed or sag (in the terminology used in Meinhardt’s 2008 Report). Arup accepted the use of setting blocks as a rectification method in the 8 May 2008 letter (see [111] above). I therefore find that the mere insertion of setting blocks did not amount to defective work.

265 However, Meinhardt’s 2008 Report provided that the insertion of setting blocks was “allowed for one to one panel stacking only”. ⁴⁵⁶ In other words, they were not to be used across more than two vertically adjacent panels in a row. However, in his inspection of the Cladding, Mr Mann found a total of 126 cases where setting blocks were used “in groups of up to twelve vertically-adjacent panels” [emphasis added]. ⁴⁵⁷ I therefore find that there were many cases where setting blocks were not installed in line with the agreed rectification measures: these were cases of defective work.

266 Moreover, and more fundamentally, Meinhardt’s 2008 Report did not state that the setting blocks were to be permanently installed on the Façade. According to Mr Yang, the failure to remove the setting blocks resulted in no or narrow movement joints, ie, a risk of stacking. ⁴⁵⁸ Importantly, Mr Keithly accepted that the retention of setting blocks between the panels gave rise to a risk of stacking. He testified that setting blocks that might have given rise to multiple stacking should have been removed after some time: according to him, “there was just one last step not followed through to come back and knock these things out” [emphasis added]. ⁴⁵⁹

267 Dragages contends, however, relying on Mr Lalas’ evidence, that the setting blocks would stop transferring load after they had settled. ⁴⁶⁰ However, Mr Lalas ultimately accepted during the trial that a setting block in contact with an upper and a lower panel could transfer load from the former to the latter if the upper panel was not resting on the shaft intended to support it. ⁴⁶¹ The rest of the experts agreed. ⁴⁶² I therefore find that the continued presence of setting blocks gave rise to a risk of stacking at least in cases where there was no movement joint (ie, where the setting block was in contact with an upper and a lower stone panel), and thus a real safety risk. I note Mr Mann’s evidence that the setting blocks he inspected did not exhibit any sign of deformation indicating load transfer. ⁴⁶³ However, I cannot discount the safety risk presented by setting blocks because apart from Mr Hartog, all the experts (including Mr Mann) agreed that a setting block that was transferring load might not exhibit bulging or any other form of deformation. ⁴⁶⁴ Mr Mann explained that this was because the setting blocks were made of a reasonably stiff rubber. ⁴⁶⁵

268 I now consider whether instances of DT9a was rectified. Mr Mann noted that in some cases of DT9a, dead-load rods were installed to mitigate the risk of stacking. ⁴⁶⁶ I find that some cases of DT9a were rectified, but others were not.

269 I now address DT9b. The defendants contend that instances of DT9b could not amount to defects because the use of dead load rods was an agreed rectification method. ⁴⁶⁷ As Mr Mann noted, ⁴⁶⁸ Meinhardt’s 2008 Report did not list dead load rods as a rectification method. However, the use of dead load rods was explained in Meinhardt’s April 2010 Reply (see [138(b)] above). Arup did not challenge this rectification method; on the contrary, Arup subsequently recommended that panels with cracks be replaced or restrained with dead load pins (see [148] above). I therefore find that Arup approved the use of dead load rods as a rectification method; and I further find that the presence of dead load rods on the Cladding did not, without more, amount to a defect.

270 Millenia contends, however, that the use of dead load rods narrowed or eliminated movement joints and thus gave rise to stacking or a risk of stacking (see [263] above). I do not agree. Stacking, as I use the term in this judgment, refers to the transfer of load between panels (see [26] above). Mr Yang admitted, and I find, that dead load rods were tied back to the RC wall and their function was to take the weight of the panels above the rods (if necessary). ⁴⁶⁹ In other words, if the brackets supporting the panel above were overloaded or defective, the rods would take up the load of the panel. ⁴⁷⁰ Therefore, even if dead load rods eliminated movement joints, I find that there would have been no transfer of load from the upper panel to the lower panel, ie, no stacking, because the load of the upper panel would have been taken up by the dead load rods. For this reason, I find that the use of dead load rods did not give rise to a risk of stacking, and thereby a safety risk, by narrowing or eliminating movement joints.

271 I now turn to DT4 and DT7, the alleged defects involving rusty components which Millenia claims gave rise to a risk of stacking.

272 DT4 refers to anchor bolts, nuts and/or washers used to secure brackets to the RC wall. DT7 refers to washers used to secure the shafts. Although DT4 and DT7 were described as “corroding” components in Arup’s 100% Inspection Spreadsheets, Mr Yap, who prepared these spreadsheets, testified that the word “rusty” would have been more appropriate as not all of the components noted by Arup were corroding. ⁴⁷¹ Hence, I refer to DT4 and DT7 as rusty components.

273 I make the following findings:

(a) I find that the contractual specifications required the components to be made out of AISI Type 316 stainless steel. This was undisputed. ⁴⁷²

(b) I find, based on Mr Yang and Mr Mann’s evidence, that the bracket components would not have been rusty if they had been made of AISI Type 316 stainless steel. ⁴⁷³

(c) I find that there were many rusty anchor bolts, nuts and washers on the Façade. ⁴⁷⁴ Mr Lalas opined, based on a review of the photographs in the 100% Inspection Reports, that there were 260 cases of DT4 and 268 cases of DT7. ⁴⁷⁵ I therefore find that there were at least 260 cases of DT4 and 268 cases of DT7. The 100% Spreadsheets indicate that these defects were distributed over the Façade, although there were clusters of these defects on certain drops: drops 17–18, 20–21, 38, 40 and 46–50. ⁴⁷⁶

(d) I find that there were cases of significant or severe corrosion. Mr Yang showed me a photograph of a corroded nut at panel 37-34-6-L, which Mr Mann and Mr Keithly agreed was significantly or severely corroded. ⁴⁷⁷ There was also a severely corroded anchor bolt, nut and washer at panel 38-21-55, ⁴⁷⁸ and severely corroded washers and nuts at panels 24-34-6-L and 24-33-7-L. ⁴⁷⁹

Given my findings above, I find that DT4 and DT7 were defects, and there were numerous instances of these defects distributed over the Façade.

274 I now consider whether DT4 and DT7 gave rise to a real safety risk. Millenia claims that rusty components would not have been able to secure brackets (DT4) and shafts (DT7), ⁴⁸⁰ which would have slipped downwards and thus led to stacking. However, the defendants submit as follows: ⁴⁸¹

(a) Millenia’s case that rusty components would cause brackets or shafts to slip downwards is weak. Mr Mann inspected 36% of the panels of the Façade; ⁴⁸² and upon review of these panels, not a single instance of DT4 coincided with an instance of DT10. ⁴⁸³

(b) Mr Lalas performed calculations that indicated that the bracket components, if made out of mild steel, would “perform adequately for their expected life of around 50 years”. ⁴⁸⁴

(c) Rusty components were rectified: corrosion inhibitors and cold galvanising paint were applied to the same, in accordance with the proposal in Meinhardt’s 2008 Report. ⁴⁸⁵ Further, brackets with rusty components could be rectified with dead load rods and twisted rods. ⁴⁸⁶

275 I find that DT4 and DT7 gave rise to a real safety risk, viz, that rusty components would not have been able to hold brackets or shafts securely, though I am unable to find that the risk was severe or immediate:

(a) First, the very fact that remedial proposals were proposed and implemented shows that DT4 and DT7 gave rise to a real safety risk. While no cases of DT4 corresponded with cases of DT10 on the panels Mr Mann inspected, it suffices that DT4 gave rise to a risk of stacking. In my view, the risk of stacking cannot be discounted on the basis that it had not been realised at the time of Mr Mann’s inspection. As I have emphasised earlier, the design life of the Building was 50 years (see [14], [234] and [246] above). At the time of Mr Mann’s inspection, less than 20 years had elapsed since the Building was completed.

(b) Secondly, Mr Yang’s evidence was that Mr Lalas’ calculations were not accurate because they did not account for bimetallic corrosion. Mr Yang referred me to the British Standard 8298:1994, the applicable code of practice for the design, installation and maintenance of stone cladding (“the British Standard”). ⁴⁸⁷ This indicates that stainless steel components should not be used in contact with components made of mild steel, and only with zinc components under dry conditions. Mr Yang showed me photographs of components made of galvanised steel, ie, mild steel coated with zinc, ⁴⁸⁸ in contact with stainless steel brackets. ⁴⁸⁹ He said that there would be water at some of these regions; and they would corrode much faster than at the rate Mr Lalas postulated. ⁴⁹⁰ In response, Mr Lalas did not dispute Mr Yang’s evidence except to claim that the relevant components would be dry “most of the time” and so less bimetallic corrosion would occur. ⁴⁹¹ I find that there would have been bimetallic corrosion; and it was thus not safe to rely on Mr Lalas’ evidence that the components would “perform adequately” for “around 50 years” (see [274(b)] above).

(c) Thirdly, the specifications clearly required the components to be made out of stainless steel. There must have been a reason for this. I find that the reason was that if stainless steel were not used, components would rust and this would give rise to a safety risk (of stacking).

276 I also find that while some rusty components were rectified, others were not as (1) they could not be detected until the Façade was reclad (see [681(b)(i)] below), ⁴⁹² or (2) it was not possible to apply corrosion inhibitors to some areas. ⁴⁹³

277 I now turn to DT3, DT5 and DT6. These were components that Millenia claims were improperly installed, thus giving rise to a safety risk.

278 DT3 pertains to anchor bolts that were used to attach brackets to the RC wall (see the diagram at [20] above). Millenia submits that some anchor bolts were insufficiently or excessively embedded in the RC wall. There was thus a lack of engagement between the anchor bolt and the nut. The bracket was therefore in danger of becoming loose and slipping downwards, reducing or eliminating movement joints. ⁴⁹⁴ Hence, DT3 gave rise to a risk of stacking.

279 It does not appear that there were specifications for the minimum embedment depth of anchor bolts. Mr Yang was not aware of such a drawing. ⁴⁹⁵ I was shown one drawing which indicated that the minimum embedment depth of a Trubolt stud anchor was 50mm. However, this was not a design document but a drawing regarding proposed rectification methods after the 1st Fall. ⁴⁹⁶

280 The issue is thus whether the anchor bolts were installed in a way that gave rise to a real safety risk; and consequently, were defective. In this regard, Millenia relies on British and Australian standards to contend that the anchor bolts were excessively or insufficiently embedded in the RC wall. All the façade experts agreed that the British and Australian standards were good practice. ⁴⁹⁷ However, Dragages argues that the mere departure from international standards did not render a panel unsafe, and emphasises that Mr Yang did not produce calculations to prove that the embedment of the bolts created a safety risk. ⁴⁹⁸

281 Ultimately, this disagreement is moot given the evidence at trial that some anchor bolts were simply not safely embedded into the RC wall. I found several examples of insufficiently and excessively embedded anchor bolts, but it will suffice to refer to one example each where the experts agreed:

(a) DT3a (insufficient embedment): I was shown a photograph of an anchor bolt protruding some way out of the RC wall at an angle (panel 27-35-1-R). ⁴⁹⁹ Mr Lalas and Mr Keithly admitted that this was “not best practice”. ⁵⁰⁰ Mr Lalas agreed that he had safety in mind when he spoke of “best practice”. ⁵⁰¹ Mr Hartog also said that he would be concerned about the anchor bolt. ⁵⁰² I find that this bolt was not safely installed: it was insufficiently embedded into the RC wall, and there was thus a risk of the bracket slipping downwards. Significantly, the photograph indicated that the risk had materialised: it showed a scratch mark which Mr Yang and Mr Keithly agreed showed the bracket had slipped. ⁵⁰³ I find on the basis of their evidence that the bracket in question did slip down.

(b) DT3b (excessive embedment): Mr Yang showed me a photograph of an anchor bolt that was barely engaged, if at all, with the nut because it was embedded very far into the RC wall (panel 37-33-7-R). ⁵⁰⁴ Mr Lalas agreed that he would not accept workmanship of this nature, as did Mr Mann. ⁵⁰⁵ I thus find that this anchor bolt was not safely installed because it was excessively embedded into the RC wall.

Two other panels with improperly embedded anchor bolts were panel 38-34-3-R and panel 22-35-02-R. ⁵⁰⁶ I find that some anchor bolts were installed in an unsafe and thus defective way, and thereby gave rise to a real risk of stacking, albeit this defect was not widespread (Arup found 17 instances of DT3a and 2 instances of DT3b: see [230] above).

282 I also find that at least some cases of DT3 were not rectified: Meinhardt Façade did not propose remedial measures for this defect. ⁵⁰⁷ While Dragages submits that the panel referred to at [281(b)] above was rectified by means of a twisted rod, ⁵⁰⁸ I note that twisted rods were proposed as a remedial method only for panels requiring wind load restraint, eg, shaky panels and/or panels with cracks at the pins (see [322(a)] below). ⁵⁰⁹ It therefore does not appear that this defect was rectified.

283 DT5 concerns brackets that were not attached perpendicular to the RC wall, but were installed in other orientations.

284 Having reviewed the design documents, ⁵¹⁰ I find that they provided for the brackets to be attached perpendicular to the RC wall. Therefore, brackets that were not attached perpendicular to the RC wall were defective.

285 I find that there were numerous instances of DT5 across the Façade:

(a) Mr Lalas opined, based on a review of the photographs in the 100% Inspection Reports, that there were 141 cases of DT5. I therefore find that there were at least 141 cases of DT5. ⁵¹¹

(b) Mr Mann inspected 239 brackets. He observed that Arup’s figure of 701 affected panels (see [230] above) may have been inflated because the design for type A and type C brackets (see [24] above) provided for them to be oriented at 90 degrees and 180 degrees respectively to type B brackets. ⁵¹² For this reason, according to Mr Mann, brackets that were recorded as instances of DT5 could in fact have been properly installed type A or type C brackets. ⁵¹³ Nonetheless, out of the 239 brackets which he inspected, 87 were not installed at 0, 90 or 180 degrees. Mr Mann concluded that these “could therefore be considered misaligned to some degree”. ⁵¹⁴ I find that these 87 brackets were cases of DT5.

286 I find, however, that DT5 did not give rise to a real safety risk. Millenia argues that DT5 gave rise to a risk of stacking in two ways. ⁵¹⁵

(a) First, brackets that were not attached perpendicular to the RC wall could not hold their shafts securely in position. The shafts were thus in danger of becoming loose.

(b) Secondly, brackets that exhibited DT5 were unable to withstand their current load and would deflect downwards.

In either case, the shafts of the brackets would almost touch or touch the panel below, ⁵¹⁶ thus narrowing or eliminating the movement joints. ⁵¹⁷

287 I do not accept these contentions for the following reasons:

(a) First, in relation to [286(a)], I find it difficult to understand why the shafts in brackets that were not attached perpendicular to the RC wall were in danger of becoming loose. Mr Mann’s evidence, which I accept, was that each shaft was “held in place in position by the conical bolt which is independent of the bracket orientation”. ⁵¹⁸ In other words, it was the conical bolt, not the orientation of the bracket, which determined whether the shaft was held securely in position.

(b) Secondly, in relation to [286(b)], the evidence of Mr Mann and Mr Keithly was that a bracket’s orientation did not affect its ability to support a stone panel. On the contrary, as a (type B) bracket was rotated towards 90 degrees of its intended orientation, its ability to withstand dead load and wind load would increase. ⁵¹⁹ Mr Mann and Mr Keithly relied in this regard on a calculation by Meinhardt in its reply of 22 May 2008 to comments made by Arup on Meinhardt’s 2008 Report (see [106] above). ⁵²⁰ During the trial, I asked Mr Keithly why, if that calculation were correct, the brackets were not designed to be installed in a rotated orientation. ⁵²¹ Mr Keithly explained that the design accounted for ease of installation and hence did not provide for the brackets to be installed in a rotated orientation because it would be more difficult to install the brackets that way. Mr Hartog agreed with the evidence of Mr Mann and Mr Keithly, adding that if a bracket was installed at 180 degrees of its intended orientation, it would have the same ability to withstand load as if it were installed in the intended orientation. ⁵²² Mr Lalas also agreed that a rotated bracket did not give rise to a safety issue. ⁵²³ I thus find that the orientation of a bracket did not affect its ability to withstand dead load and wind load. While Millenia relied on Arup’s 2nd 2004 Report and an earlier calculation by Meinhardt in 2005 to contend that brackets that were incorrectly oriented were less able to support stone panels, ⁵²⁴ I do not place much weight on this evidence for the following reasons:

(i) First, while Arup’s 2nd 2004 Report stated that brackets that were incorrectly oriented might not have “adequate strength for the predicted load”, this view was stated to be subject to other calculations or test results. ⁵²⁵ Moreover, in any event, as noted at [(b)] above, Mr Hartog, Arup’s expert, did not endorse the view expressed in Arup’s 2nd 2004 Report at trial.

(ii) Secondly, Meinhardt’s calculation in 2005 also indicated that rotated brackets had adequate strength to carry their loads, albeit they were allegedly less strong. ⁵²⁶ Therefore, Meinhardt’s calculation in 2005 does not strongly support Millenia’s case that rotated brackets would give rise to a real safety risk.

288 In summary, I find that DT5 was a defect but that it did not give rise to a real risk of stacking (and thus a real safety risk).

289 DT6 refers to “shafts not long enough to completely engage with the conical bolts”. The evidence indicates, and I find, that the yardstick adopted in assessing instances of DT6 was whether the shaft protruded a certain distance (not specified) out of the back of the conical bolts. Some recorded instances of DT6 were shafts that did not protrude out of the back of the conical bolts at all; others were shafts that only protruded beyond the conical bolts a short distance.

290 Millenia submits that the design drawings required the shafts to protrude out of the back of the conical bolts. ⁵²⁷ Having reviewed the relevant drawings, ⁵²⁸ I agree. Dragages claims the drawings for different brackets showed different lengths of shaft protruding past the conical bolts. ⁵²⁹ Dragages further submits that the design provided for shafts to be adjusted in and out, so that the granite panels could be aligned notwithstanding variances in depth in the RC wall. ⁵³⁰ Whilst I can accept Dragages’ submissions here, all of the design drawings showed some level of protrusion of the shaft out of the back of the conical bolts. During the trial, Mr Lalas noted one reason for such a design: if the shafts were installed in this way, one would know that they were fully engaged with the conical bolts. ⁵³¹ This explains why the design had this feature notwithstanding that it did not enhance the extent to which the shaft was held securely by the conical bolt (see [292(a)] below). In sum, I find that the design drawings provided for the shafts to protrude out of the back of the conical bolts. Therefore, any shaft that did not protrude out of the back of its conical bolt was defective.

291 I find that there were several cases of shafts that did not protrude out of the back of the conical bolts or hardly did so. Mr Yang showed me several photographs which illustrated this, ⁵³² eg, the shafts at panels 38-3-133, 64-26-37, and 1-35-05-L. ⁵³³ Further, Mr Mann and Mr Keithly found, in reviewing 13 photographs of alleged instances of DT6 in the Reclad Report, four instances of shafts that did not protrude past the back of the conical bolt. ⁵³⁴

292 Millenia contends that DT6 gave rise to a safety risk because where the shafts were not of the appropriate lengths, they were loose or in danger of becoming loose. ⁵³⁵ The shafts would tilt or be in danger of tilting down; and this would give rise to a risk of stacking. However, I find that Millenia has not proved on the balance of probabilities that where a shaft did not protrude out of the back of the conical bolt, this gave rise to a risk of stacking:

(a) All of the defendant’s experts agreed that, to the extent that a shaft protruded beyond the back of the conical bolt, this did nothing in and of itself to enhance the extent to which the shaft was held securely by the conical bolt. ⁵³⁶ There was a “friction grip connection” between the shaft and the conical bolt, the strength of which “[did] not depend upon the area of the surfaces in contact”. ⁵³⁷ Rather, the strength of the connection depended on the torque that had been applied to the conical bolt when it was installed, which would determine the strength of the grip applied by the compression of the conical bolt on the shaft.

(b) Nevertheless, leaving the amount of torque to one side, all of the experts, including Mr Yang, agreed that there had to be at least 10mm of engagement between the shaft and the conical bolt, ⁵³⁸ which was 20mm in depth. ⁵³⁹ I therefore accept that, to the extent that there were shafts that did not engage with at least 10mm of the conical bolt, a real risk of stacking would have arisen because the shafts would have been loose. However, Millenia has not furnished sufficient evidence that there were any such shafts. I am unable to find on the basis of the photographs and the other evidence that shafts that did not protrude out of the back of the conical bolts did not engage with at least 10mm of the conical bolt. I am therefore unable to find that there were shafts which were not adequately engaged with the conical bolts, and were thus loose or in danger of becoming loose, thereby giving rise to a real risk of stacking.

293 In sum, I find that some cases of DT6, ie, those cases where the shafts did not protrude out of the back of conical bolts, were defects. However, there is insufficient evidence for me to find that they gave rise to a real risk of stacking (and thus posed a real safety risk).

294 I now turn to a separate group of alleged defects. Millenia’s case is that these defects gave rise to a safety risk not because they led to a risk of stacking, but because they led to an independent risk that chips would form at pin holes.

295 DT1 refers to oversized pin holes in the panels. DT15 refers to shaky panels.

296 The 100% Spreadsheets for DT1 and DT15 highlight exactly the same panels. ⁵⁴⁰ Mr Yap, who compiled the 100% Spreadsheets, ⁵⁴¹ explained that DT1 and DT15 were “doubled up”. ⁵⁴² I glean from this that in collating the 100% Spreadsheets, Arup deemed every panel which it identified to be shaky (DT15) to have oversized pin holes (DT1). I pause to note that it is not clear why Arup deemed every case of DT15 to be a case of DT1. First, it is also possible, given my conclusions regarding the 2nd Panel, that some panels were shaky due to undersized pins (see [402(e)] below). Second, the Aurecon Protocol provided that in assessing whether panels were in danger of falling in the near future due to insufficient embedment of pins, Arup’s inspectors were to shake the panels. ⁵⁴³ In other words, shakiness was identified as a symptom of panels with insufficiently embedded pins, a different defect from DT1. One possibility is that only extremely shaky panels would have been indicative of panels with pins of insufficient embedment depth (in danger of falling in the near future), and Arup did not find such panels (I note that Mr Mann did not find panels of severe shakiness: see [300] below). But the evidence is unclear in this regard. What is clear is that Arup deemed every case of DT15 to be a case of DT1, and I so find. I will therefore deal with DT1 and DT15 together. For brevity, I will simply refer to DT1 and not DT15 below.

297 It is undisputed that the contractual specifications were for the pin holes to be 8mm in diameter, with a tolerance of +/-0.75mm. ⁵⁴⁴ Consequently, any pin hole with a diameter of more than 8.75mm would have amounted to a defect.

298 I find that there were many cases of pin holes exceeding 8.75mm, on the Cladding. I note that Arup did not measure the diameter of the allegedly oversized holes. ⁵⁴⁵ Nor did Mr Yang. However, the evidence was as follows:

(a) Mr Mann measured the pin holes on 81 of the 240 panels Arup identified as cases of DT1. He found 27 holes exceeding 8.75mm in diameter, with 13 exceeding 9mm in diameter; the largest pin hole was 10mm in diameter. He opined that extrapolating from this sample, about 80 panels might have been affected by DT1, and I so find. ⁵⁴⁶

(b) Mr Yang testified that one could discern an oversized hole from photographs, because a hole of 8mm would be “very close to the pin”. ⁵⁴⁷ Although some photographs Mr Yang showed me did not clearly show oversized pin holes, a photograph of panel 14-20-61 indicates that there was an oversized pin hole on this panel. ⁵⁴⁸

I therefore find that there were numerous cases of DT1. I note that the pin holes were supposed to be drilled in the factory, and Mr Yang accepted that most of these factory-drilled pin holes would have been of the correct size. However, he explained, and I find, that some pin holes were drilled on site. ⁵⁴⁹ According to Mr Yang, site drilling had been done because there were “cast-in socket locations that [were] not in the right place”, and the workers accommodated this by drilling some pin holes on site. On balance, I accept Mr Yang’s evidence on this.

299 I now turn to the issue of whether DT1 created or contributed to a real safety risk. Millenia submits that oversized pin holes would result in the pins, which were 6mm in diameter (see [25] above), being loose or in danger of becoming loose. The panel would be shaky; it would rattle backwards and forwards. This would cause chips at the pin areas. ⁵⁵⁰ However, Dragages and Meinhardt Façade contend that oversized pin holes would not have resulted in the pins being loose or in danger of becoming loose for the following reasons: ⁵⁵¹

(a) The diameter of holes could have been wider at the surface due to chipping or cracks when the holes were drilled. If the rest of the hole was not oversized, the pin would have fitted securely in the hole.

(b) The design provided for the pin holes (along the top edge of the panels) to be fitted with PVC sleeves that would have filled the gap between the pins and the holes.

300 I find that oversized pin holes caused some pins to become loose. I accept that some pin holes may only have been oversized at the surface; and some may have contained PVC sleeves that filled the gap between the pin and the hole. However, Mr Mann examined 83 of the 240 panels Arup claimed were shaky for shakiness. ⁵⁵² He found 46 of these panels (55%) to be not shaky, but 23 panels (28%) exhibited minor shakiness (“a slight rattle”) and 14 panels (17%) exhibited moderate shakiness (“a knocking”). According to Mr Mann, there were no panels which were severely shaky. Mr Mann deposed that the moderate shakiness of panels “may be attributed to oversized pin holes …”. ⁵⁵³

301 Further, I accept Mr Yang’s evidence that where pins were loose in their pin holes, and the panels were consequently shaky, this led to a risk that chips would form near the pin holes. Mr Yang explained that chips would form due to continuous rattling of the panel backwards and forwards. ⁵⁵⁴ His explanation was consistent with Meinhardt’s 2008 Report, which stated that a “[rattling] panel might be subjected to undue stress if it were allowed to rattle too often” and proposed that structural silicone be applied to address shaky panels. ⁵⁵⁵ Mr Yang’s explanation was also consistent with Mr Hartog’s comment that shaky panels were defective because there was “a potentially dangerous shortcoming in the load path and stone-fixing contact areas [in other words, the pin areas] of the intended design”. ⁵⁵⁶ Mr Hartog expanded on this during the trial by noting that oversized pin holes could lead to half-moon or half circular cracks forming around pin holes, ie, DT14a. ⁵⁵⁷ I accept the evidence of Mr Yang and Mr Hartog.

302 I find that not all instances of DT1 were rectified during the Rectification Works. Mr Mann inspected the panels after the Rectification Works and found shaky panels. It follows that not all instances of DT1, which defect manifested itself in shaky panels, were rectified during the Rectification Works.

303 DT2 pertains to half pins (see [25] above). The parties agree that there were half pins that were not welded. ⁵⁵⁸ They disagree on:

(a) whether the contractual specifications provided for half pins to be welded to the shaft; and

(b) whether the lack of welding gave rise to safety issues, by causing some half pins to be loose or in danger of becoming loose. ⁵⁵⁹

304 In relation to [303(a)], all of the façade experts except Mr Yang said that welding was not a requirement of the original design. ⁵⁶⁰ Mr Yang relied on an as-built drawing in support of his view that half pins were to be welded to the shaft. ⁵⁶¹ However, that drawing was stated to be for “Soffit to 3rd Storey”; ⁵⁶² and Mr Yang eventually agreed that it was for a “non-typical area”. ⁵⁶³ Mr Yang later referred to another drawing, but the evidence was that this drawing only applied to three panels that were reinstated after the 1st Fall. ⁵⁶⁴ Having reviewed other as-built drawings that the defendants highlighted, ⁵⁶⁵ I find that there was no specific contractual requirement for half pins to be welded to the shaft. Whether there should have been such a requirement is another matter (see [309]–[311] below).

305 Whether DT2 was a defect therefore turns on whether it gave rise to a real safety risk. During the trial, I was shown photographs of both vertical and horizontal half pins, ie, pins inserted into the top and bottom edges of panels and pins inserted into the sides of panels. I note at this point that the instances of DT2 reflected in the 100% Spreadsheets were instances of vertical half pins slipping downwards, not horizontal half pins slipping sideways. Nonetheless, the evidence on horizontal half pins was extensively discussed by the façade experts during the trial. I am satisfied that the parties will not be prejudiced by the admission of this evidence. I will therefore consider this evidence as well.

306 The primary safety risk highlighted in relation to vertical pins inserted into the bottom edge of panels, and horizontal half pins, was the risk that the pin would slip out of its hole and thus fail to restrain the panel. The primary safety risk highlighted into relation to vertical pins inserted into the top edge of panels was the risk that the pin would slip downwards and fail to engage with the shaft.

307 I shall first discuss the vertical half pins, beginning with DT2b (half pins inserted up into panels, which slipped down and became exposed). There was evidence of DT2b. ⁵⁶⁶ However, all the experts agreed that half pins exhibiting DT2b would not have completely disengaged from the panels they were inserted into, because there was a stone panel below the half pin. Even if the pin disengaged to the extent that it came to rest on the panel below, it would still have been sufficiently engaged in the upper panel. ⁵⁶⁷ Millenia submits, however, that in cases of DT2b, the panel might have rattled giving rise to chips around pins. ⁵⁶⁸ But I accept Mr Lalas’ evidence that this would not have occured. ⁵⁶⁹ Mr Lalas explained that the dead load of the panel would have been resting on the shaft to which the pin was attached, and thus the friction at the pin hole would have been enormous, impeding the pin from rattling. I thus find that cases of DT2b did not give rise to a real safety risk. Hence, DT2b was not a defect.

308  I now come to DT2a (half pins inserted down into panels, which slipped deeper into the pin holes and were thus not fully engaged with the shaft). The experts agreed there were cases of vertical half pins, inserted down into panels, which were not fully engaged with their shafts. In respect of some pins, it was not clear whether the pin had slipped or was simply installed in the way shown in the photograph. ⁵⁷⁰ But there were examples of pins that would only have been engaged with the shaft, if at all, very minimally. One example is the top right pin of panel 53-33-08, which Mr Yang, Mr Lalas, Mr Keithly and Mr Mann agreed did not protrude out of the shaft at all (indicating that there was minimal engagement, if any, between the pin and the shaft). ⁵⁷¹ The photographs in the Reclad Report of panel 24-33-08-L also show a half pin that was minimally engaged, if at all, with the shaft. ⁵⁷² If the pins were installed in this way, with such scant (if any) engagement with the shaft, this would have been extremely shoddy workmanship. The multiple defects found on the Facade is evidence of shoddy workmanship. Whether the pins were installed in this way, or whether these pins subsequently slipped downwards, points to the same conclusion of poor to shoddy workmanship. On balance, however, it seems more likely that the pins were not installed in this way; I find that they slipped downwards.

309 Further, I find that DT2a led to a real safety risk. Mr Lalas conceded that if there was even one panel where a half pin could slip downwards, that would not be safe. ⁵⁷³ The question is then whether DT2a was therefore a defect, ie, whether the general contractual requirements were breached in virtue of this safety risk (see [228] above). I do not accept Mr Lalas’ evidence that welding was not “practical and safe from an engineering standpoint”: I fail to understand this. ⁵⁷⁴ In view of the real safety risk due to the lack of welding, I find that DT2a (the fact that vertical half pins inserted down into panels were not welded to their shafts) was a defect.

310 I now turn to horizontal half pins. I find that there were horizontal half pins that had disengaged or were very close to disengaging from their shafts, such as a half pin on panel 55-05-123-R. ⁵⁷⁵ (It appears that this occurred because some panels moved sideways; the experts agreed there was evidence of such movement. ⁵⁷⁶ ) I find this gave rise to a real safety risk as there would be one less pin restraining the panel if the pin disengaged (see [246] above). I therefore find that the lack of welding of horizontal half pins was a defect because it gave rise to a real safety risk.

311 In summary, the lack of welding of half pins was a defect in respect of vertical pins inserted down into panels (DT2a) and horizontal half pins inserted into the sides of panels. This was a design defect because the design did not provide for welding.

312 DT17 refers to full pins of insufficient embedment depth. Notably, the 100% Spreadsheets do not include “pins of insufficient embedment depth” as a category of defects (see [230] above). The reason for this omission is unclear. The Aurecon Protocol required Arup to record panels with pins of insufficient embedment depth. ⁵⁷⁷ Arup did so: the 100% Inspection Reports contain photographs captioned “Insufficient embedment of pin” or words to that effect (according to Dragages, there are photographs of 295 such panels). ⁵⁷⁸ Further, the table prepared by Arup after its inspection of 25% of the Façade (see [220(b)] above) contains a category described as “Insufficient embedment of pins”, indicating that there were 71 affected panels. ⁵⁷⁹ Yet this category of defects was not reflected in the 100% Spreadsheets. DT17 was only introduced in the Reclad Report. According to Mr Yang, DT17 only covered pins whose insufficient embedment was not previously observable. ⁵⁸⁰ Pins found to be embedded less than 12mm into the panels were counted as cases of DT17. ⁵⁸¹

313 The design provided for the full pins, of 70mm in length, to be embedded 30mm in the upper and lower stone panels, with a movement joint of 10mm. ⁵⁸² The Reclad Report contained several photographs of full pins that Mr Lalas admitted were embedded only around 6–8mm into their respective stone panels. ⁵⁸³ I thus find that there were several cases of full pins of insufficient embedment depth and that this was defective work, which was not rectified during the Rectification Works.

314 I now consider whether DT17 gave rise to a real safety risk. Two safety risks were identified. First, the risk of cracks forming around the relevant pins (DT14a). Second, the risk of the pins disengaging from the panel.

(a) The risk of cracks forming around the pins: Mr Yang claimed that where pins were insufficiently embedded into panels, cracks might form around the pins. ⁵⁸⁴ Mr Lalas disagreed. He claimed that he had performed calculations that showed that even if the embedment depth of the pin was 1–2mm, the stress in the granite at the pin would have been “acceptably low”. ⁵⁸⁵ The calculations supporting this opinion are not set out in Mr Lalas’ expert report and it is unclear what assumptions they were based on. Having reviewed the relevant drawings, it appears to me that one consideration may well explain Mr Yang’s position. If a pin was embedded, say, 5mm into the pin hole, and the PVC sleeve into which the pin was to be embedded was too short, or had moved downwards, there may have been no PVC sleeve around the pin. The pins were 6mm in diameter (see [25] above); the pin holes were to be 8mm in diameter (see [297] above); and the PVC sleeve was 1mm thick. ⁵⁸⁶ The pin may thus have begun to rattle in the hole, leading to cracks around the pins. I therefore find that if there was no PVC sleeve around an insufficiently embedded pin, this may have led to cracks forming around the pin.

(b) The risk of pins disengaging from the panels: Mr Lalas accepted that a pin had to be sufficiently engaged into a panel so that it would not “pop out” due to, for example, building movements. He claimed that an embedment of 3mm would have been adequate. ⁵⁸⁷ I do not accept this. The British Standard, the applicable code of practice (see [275(b)] above), provided for pins to be embedded to a depth of at least 20mm. ⁵⁸⁸ Mr Lalas’ figure of 3mm was far less than the 20mm stipulated by the British Standard and the 30mm provided for under the specifications. I therefore do not accept the 3mm figure postulated by Mr Lalas. However, there was insufficient evidence for me to make a finding on the precise embedment depth which, if not achieved, would have given rise to a risk of the pin disengaging from the panel.

315 I now turn to DT11 and DT12, both of which were described in the 100% Spreadsheets as involving “stitching”.

316 DT11 refers to the Stitching Procedure, which was used with the aim of stabilising cracks on panels. It involved cutting a slot across cracks and inserting steel plates into the slot which were fixed in place using an epoxy glue. ⁵⁸⁹ I note that the Stitching Procedure was performed using metal plates and not pins.

317 It is undisputed, and I find, that the Stitching Procedure was not an agreed rectification method. Yet it was used on the Façade. I have found that one important reason why it was used was to cut costs (see [138] above). ⁵⁹⁰

318 Millenia submits that the Stitching Procedure was not a proper rectification method: panels to which the Stitching Procedure was applied remained defective. ⁵⁹¹ In other words, Millenia’s case is not that the Stitching Procedure itself gave rise to an independent safety risk, but that it did not mitigate the safety risk that arose due to cracks on panels.

319 Mr Yang and Mr Hartog agreed that the Stitching Procedure was not an appropriate method for rectifying cracks. ⁵⁹² Mr Lalas and Mr Keithly did not dispute, and I find, that the Stitching Procedure was not an appropriate remedial method when used alone for cracks across the face of a panel or for cracks near pins. ⁵⁹³ Yet Mr Lalas claimed that the Stitching Procedure was an adequate remedial method for small cracks. ⁵⁹⁴ I do not accept this evidence. I find that the Stitching Procedure was not an appropriate rectification method even for small cracks. As I have noted, there was one panel (8-28-30-R), where the Stitching Procedure was applied to what was initially a small crack on the right side of the panel (see [238(a)] above). However, the stitch failed to prevent the crack from propagating to the left and across the panel. In other words, the Stitching Procedure failed to serve its purpose of stabilising the crack. Mr Hartog opined that the Stitching Procedure, applied to this panel, was a “highly unsatisfactory repair” creating an “unacceptable risk that the stone would fold”. ⁵⁹⁵

320 Mr Hartog explained that the Stitching Procedure was not a “common industry practice”, as Mr Lalas, Mr Mann and Mr Keithly claimed. ⁵⁹⁶ He explained that conventional stitching repairs involve the use of rods akin to staples, ie, with perpendicular return ends that mechanically anchor or pin the stitch, and which have indented or threaded surfaces, which increase their mechanical attachment to epoxy. ⁵⁹⁷ By contrast, the Stitching Procedure was carried out with straight and smooth rods, which relied disproportionately on the chemical bond between the epoxy and the steel. Mr Lalas, Mr Mann and Mr Keithly all agreed with Mr Hartog that good practice was to use a helical, twisted, indented or even a threaded rod, rather than a smooth-sided rod. ⁵⁹⁸ This would provide, in addition to the chemical bond, a “mechanical interlock”. Mr Hartog further explained that, with a smooth rod, where the epoxy began to fail in adhesion, as Mr Hartog found, ⁵⁹⁹ the stitch would loosen. The crack would thus begin to open up. I accept Mr Hartog’s explanation of why the Stitching Procedure was not an appropriate rectification method for any form of cracking within panels.

321 I also find that there were numerous cases of cracks that were only stitched and not rectified through other means during the Rectification Works. One example was the crack on panel 24-26-38-R; restraining pins were only added to this panel by Cementone after the 2nd Fall (see [238(b)] above). ⁶⁰⁰

322 DT12 does not refer to the Stitching Procedure. Rather, it refers to the installation of pins or plates across the joint between two panels. ⁶⁰¹ During the trial, Mr Yang admitted that DT12 refers to two different remedial measures: the twisted rod and the dead load plate rectification methods. ⁶⁰² Twisted rods and dead load plates were different from dead load rods (DT9b):

(a) A twisted rod was a rod that was installed at one end into the RC wall and had, at the other end, a hole through which a pin was inserted to connect two adjacent panels. This was used to rectify panels with cracks around the pins and/or shaky panels, ie, as a wind load restraint. ⁶⁰³

(b) A dead load plate was a metal plate that was inserted into slots cut into two adjacent panels to transfer the dead load of one panel to the brackets of another panel. This was used to address stacking, by transferring the dead load of panels that were stacking on panels below to the brackets of horizontally adjacent panels. ⁶⁰⁴

Both of these rectification methods were set out in Meinhardt’s 2008 Report, and were approved by Arup in the 8 May 2008 letter (see [111] above). I therefore find that instances of DT12 did not amount to a defect.

323 Millenia contends, however, that DT12 gave rise to a safety risk because it caused (dead) loads acting on panels to be transferred to adjacent panels. ⁶⁰⁵

(a) I find that the twisted rod rectification method did not give rise to this safety risk. The evidence of Mr Keithly, which I accept, was that twisted rods had no capacity to transfer dead load. ⁶⁰⁶ I thus find that this remedial measure, which Mr Yang claimed accounted for about 90% of the cases of DT12, ⁶⁰⁷ did not give rise to a safety risk.

(b) In relation to the dead load plate rectification method, the very point of this remedial method was to transfer dead load between panels (see [322(b)] above). Importantly, the dead load plate rectification method was approved by Arup. I am therefore unable to find that the use of this remedial method in itself gave rise to a safety risk. I accept that a safety risk may have arisen if this remedial method was implemented in an inappropriate way. But there was no evidence of this.

324 I will now address three alleged design defects, which do not feature in the 100% Spreadsheets, but which Millenia has raised in closing submissions.

325 First, Millenia claims that the design of the bracket system was defective because it provided for the bracket to be secured by a frictional grip, ie, torque was applied to the anchor bolt or nut to secure the bracket to the RC wall. ⁶⁰⁸ I do not accept this submission for two reasons.

(a) First, Mr Yang’s view was that this design was defective because it was very dependent on on-site installation workmanship. ⁶⁰⁹ However, I do not accept that the design was defective for this reason. As Mr Lalas, Mr Keithly and Mr Hartog explained, every design depends on workmanship to be properly implemented. ⁶¹⁰ In particular, in relation to bolted connections, Mr Lalas noted that every bolted joint depends on proper workmanship. A designer would rely on proper training of workmen and quality control to implement the design.

(b) Secondly, the defendants’ façade experts agreed that bracketing systems that involved torqueing of bolts and nuts were very common in 1995 to 1997, when the Building was designed. ⁶¹¹