By way of the letter dated 27 December 2019 sent by the Plaintiff’s then solicitors to the Defendants, the Plaintiff accepted the Defendants’ repudiation of the Agreement and/or otherwise terminated the Agreement.

In the circumstances, TAKE NOTICE that our Client demands that you do, within fourteen (14) days hereof, pay the Monthly Lease Back Payment in arrears, the All-in Purchase Price for the five (5) properties, failing which our Client shall commence litigation in respect of the same, in which case you may be liable for the attendant costs thereof.

[emphasis in original]

The Plaintiff terminated the Lease on 27th December 2019 via her then lawyer and confirmed the termination through her present lawyer via an email on 23rd Jul 2021. The Defendants have accepted and agreed on the termination of the lease with effective from 27th Dec 2019.

As you know, our client had on 27 December 2019 terminated the agreements between yourselves and her because you failed to transfer the units to her and had subjected the units to mortgages. Our client’s claim against you stands at S$1,771,552.97, statutory interest thereon at 5.33% per annum, and legal costs. Our client is under no obligation to and will not be completing the Buyer Information Sheet.

The rule of the common law is that where a party sustains loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation with respect to damages as if the contract had been performed.

23  When a contract is terminated pursuant to a repudiatory breach and damages are awarded, the court seeks to place the innocent party in the position he would have been in if the contract had been performed. In respect of a case where a contract is terminated pursuant to a repudiatory breach, the court held in Hong Fok Realty Pte Ltd v Bima Investment Pte Ltd and another appeal [1992] 2 SLRI 834 (“Hong Fok v Bima”) at [24]:

The object of the award of damages in this type of situation is not to restore the parties to their respective positions as if the contract had not been made, but rather, in recognition of the existence of the contract and the subsequent breach, to compensate the innocent party, as far as money can do so, for the loss, damage and injury which he has suffered as a result of the breach. It is to place the innocent party, so far as money can do so, in the same position as if the contract had been performed.

24  Following this principle, damages for breach of contract are ordinarily assessed in terms of the claimant’s expectation loss, which refers to the value of the benefit that the claimant would have obtained but for the breach of contract, or, to put it another way, the gains the claimant expected as a result of the full performance of the contract: Andrew Phang Boon Leong, The Law of Contract in Singapore (Academy Publishing, 2012) (“The Law of Contract”) at para 21.033. On occasion, damages for breach of contract may be quantified in terms of the claimant’s reliance loss – that is, the costs and expenses the claimant incurred in reliance on the defendant’s contracted-for performance, but which were wasted because of the breach of contract: The Law of Contract at para 21.034. The basis for awarding reliance loss is the assumption that were the contract performed, the claimant would have at least fully recovered the costs and expenditure incurred: Van Der Horst Engineering Pte Ltd v Rotol Singapore Ltd [2006] 2 SLR(R) 586 at [54]–[55]. Indeed, in cases where a claimant enters into a bad bargain and would not have recovered all his costs/expenditure even if the contract had been performed, his losses may not be quantified by reference to his reliance expenditure: C & P Haulage v Middleton [1983] 1 WLR 1461 at 1468. Thus, the underlying principle, even in cases where reliance loss is awarded, is to place the innocent party in the position he would have been in had the contract been performed.

[emphasis in original]

36  It follows from the principle in Robinson v Harman 1 Exch 850 that the language of election is not appropriate in a discussion of the quantification of damages for breach of contract. The objective of compensating the claimant for the loss sustained as a result of non-performance (an expression used here in a broad sense, so as to encompass delayed performance and defective performance) makes it necessary to quantify the loss which he sustained as accurately as the circumstances permit. What is crucial is first to identify the loss: the difference between the claimant s actual situation and the situation in which he would have been if the primary contractual obligation had been performed. Once the loss has been identified, the court then has to quantify it in monetary terms.

37  The quantification of economic loss is often relatively straightforward. There are, however, cases in which its precise measurement is inherently impossible. As Toulson LJ observed in Parabola Investments Ltd v Browallia Cal Ltd (formerly Union Cal Ltd) [2011] QB 477, para 22:

“Some claims for consequential loss are capable of being established with precision (for example, expenses incurred prior to the date of trial). Other forms of consequential loss are not capable of similarly precise calculation because they involve the attempted measurement of things which would or might have happened (or might not have happened) but for the defendant s wrongful conduct, as distinct from things which have happened. In such a situation the law does not require a claimant to perform the impossible, nor does it apply the balance of probability test to the measurement of the loss.”

An example relevant to the present case is the situation where a breach of contract affects the operation of a business. The court will have to select the method of measuring the loss which is the most apt in the circumstances to secure that the claimant is compensated for the loss which it has sustained. It may, for example, estimate the effect of the breach on the value of the business, or the effect on its profits, or the resultant management costs, or the loss of goodwill: see Chitty on Contracts, 32nd ed (2015), vol I, paras 26-172 to 26-174. The assessment of damages in such circumstances often involves what Lord Shaw described in the Watson, Laidlaw case 1914 SC (HL) 18, 29—30 as “the exercise of a sound imagination and the practice of the broad axe”.

…

96  Applying these conclusions to the present case, it is apparent that neither the judge [2015] IRLR 215 nor the Court of Appeal [2017] QB 1 applied an approach which can now be regarded as correct. The judge was mistaken in considering that the claimant had a right to elect how its damages should be assessed. He was mistaken in supposing that the difficulty of quantifying its financial loss, such as it was, justified the abandonment of any attempt to quantify it, and the award instead of a remedy which could not be regarded as compensatory in any meaningful sense.

[emphasis added in bold]

Evidential difficulties in establishing the measure of loss are reflected in the degree of certainty with which the law requires damages to be proved. As is stated in Chitty, para 26-015:

“Where it is clear that the claimant has suffered substantial loss, but the evidence does not enable it to be precisely quantified, the court will assess damages as best it can on the available evidence.”

 [emphasis added]

62  … Filobake’s attempt to deploy it here, by saying that the defendant had not essayed such proof, is forensically very unpromising. The defendant did not set about proving that issue at the trial because no-one told them that it had to. It is very unfair to try to place that burden on Rondo now, by amendment after the trial. And, as we shall demonstrate when we address the substance of this application in paragraphs 66 and 67 below, on the facts as found by the judge that burden, even though not known of at the time, has in fact almost certainly been discharged by the defendant.

63  At best, therefore, this amended claim would have to go back for further hearing. When it did so, a series of problems would immediately present themselves.

[emphasis added in bold italics]

“[T]here are formidable objections to running the two claims in the alternative, not the least being that, as we have seen, on the issue of the outturn of the contract the burden under a lost expense claim rests with the defendant; whereas under a lost profits claim the claimant bears the burden of establishing his loss. That conjunction is at least potentially embarrassing for the defendant” (at [64]). This remark is also sound. It would be rather confusing – in a single trial – to hold the defendant to proof that the plaintiff “would not even have generated (x) in revenue” so as to recoup the expenses reasonably undertaken in reliance of the contract, whilst simultaneously holding the plaintiff to proof that it “would not only have generated (x) in revenue, it would have made (x + y)”, with (y) representing the plaintiff’s nett profits. Such a situation would make the fact-finding role of the court quite difficult.

Where then, does this leave us? On one hand, there are objections to allowing a plaintiff to hedge his bets at the outset of a suit. Yet, on the other, it is also undesirable, at the end of a trial, to allow the plaintiff to recover damages on a different basis which shifts the burden of proof. A possible solution might be to require plaintiffs to commit to a measure, and either succeed or fail by that measure. This would, however, effectively create a new rule requiring plaintiffs to specifically plead the measure of damages they intend to pursue. At present, is no such rule (see Singapore Civil Procedure 2021 vol 1 (Cavinder Bull gen ed) (Sweet & Maxwell, 2021) at para 18/8), and without full arguments, I am not prepared to lay one down. Indeed, it would run counter to the observations I made …

As a matter of principle also, it seems to me that a person who has obtained a machine, such as the plaintiff obtained, being a machine which was mechanically in exact accordance with the order given but which was unable to perform a particular function which it was warranted to perform, may adopt one of two courses. He may say, when he discovers its incapacity, that it was not what he wanted, that it is quite useless to him, and he may claim to recover the capital cost he has incurred, deducting anything he can obtain by disposing of the material that he got. A claim of that kind puts the plaintiff in the same position as though he had never made the contract at all. In other words, he is back where he started; and, if it were shown that the profit-earning capacity was in fact very small, the plaintiff would probably elect so to base his claim. But, alternatively, where the warranty in question relates to performance, he may, in my judgment, make his claim on the basis of the profit which he has lost because the machine as delivered fell short in its performance of that which it was warranted to do. If he chooses to base his claim on that footing, it seems to me that depreciation has nothing whatever to do with it.

… while no doubt the plaintiff can at his option claim damages based on the difference between the value to him of the article as actually supplied and the contract price of the article, he cannot claim both that amount, representing his capital expenditure thrown away by reason of the breach, and also the full amount of the profit which he can show that he would have made in the event of the article answering the warranty. …

… It seems to me that a plaintiff in such a case as this has an election: he can either claim for loss of profits; or for his wasted expenditure. But he must elect between them. He cannot claim both. If he has not suffered any loss of profits – or if he cannot prove what his profits would have been – he can claim in the alternative the expenditure which has been thrown away, that is, wasted, by reason of the breach. That is shown by [Cullinane].

I interpret the passage I have just read [ie, meaning the passage by Sir Evershed M.R. in Cullinane] and that cited from Lord Denning M.R.'s judgment in [Anglia Television] as indicating that in these cases the plaintiff has an unfettered choice: it is not only in those cases where he establishes by evidence that he cannot prove loss of profit or that such loss of profits as he can prove is small that he is permitted to frame his claim as one for wasted expenditure. I consider that when Lord Denning M.R. says, "If he has not suffered any loss of profits – or if he cannot prove what his profits would have been – he can claim in the alternative the expenditure which has been thrown away …” and when Sir Raymond Evershed M.R. says in [Cullinane], "if it were shown that the profit-earning capacity was in fact very small, the plaintiff would probably elect so to base his claim," each is describing factors which would be likely to motivate the plaintiff to elect to claim on the lost expenditure basis rather than laying down what must be proved before such a claim can be entertained. In other words, I consider that those cases are authority for the proposition that a plaintiff may always frame his claim in the alternative way if he chooses. I reach this conclusion all the more readily when I reflect that to hold that there had to be evidence of the impossibility of making profits might in many cases saddle the plaintiff with just the sort of difficulties of proof that this alternative measure is designed to avoid.

86  Notwithstanding the primary judge’s characterisation of Cutty Sark’s claim in the manner summarised above, Cutty Sark’s case did not involve the proposition that it was “impossible for it to prove that it would have recouped” its expenditure, or that the Council’s breach had rendered it so; the contention was simply that the Council had not discharged its onus of proving that Cutty Sark would not have recouped its expenditure. Thus arises the question whether it is a precondition to the application of the presumption referred to in Amann Aviation that it be impossible for the plaintiff to prove that it would have recouped its expenditure.

87  Although there are passages in the judgments in Amann Aviation where terminology such as “not possible” is used, in my opinion they do not support the proposition that the presumption can be invoked only where it is impossible to work out lost profits or expectation damages. The context is important. Thus when Mason CJ and Dawson J said:

“Similarly, where it is not possible for a plaintiff to demonstrate whether or to what extent the performance of a contract would have resulted in a profit for the plaintiff, it will be open to a plaintiff to seek to recoup expenses incurred, damages in such a case being described as reliance damages or damages for wasted expenditure.”

that was not a statement that impossibility of assessment of lost profits is a precondition to claiming reliance damages, as is clear from their Honours’ later explanation that reliance damages were not an alternative to loss of bargain damages in the sense of involving an election, as all were but manifestations of the central principle enunciated in Robinson v Harman, rather than discrete and truly alternative measures of damages which a party not in breach may elect to claim. And as their Honours further explained (emphasis added):

“Naturally, the categories of case in which a plaintiff is likely to make a claim for the recovery of expenditure incurred are those in which the plaintiff has not suffered a loss of profits and those in which it is impossible to assess what would have been the outcome had the contract been performed or those in which that outcome is otherwise uncertain. So much is acknowledged by Lord Denning in the passage from Anglia Television already cited. The manner in which a plaintiff frames his or her claim for damages will be dictated not so much by a choice of alternatives giving rise to an election but simply according to whether the contract, if fully performed, would have been and could be shown to have been profitable (even if the actual amount of profit is not readily ascertainable). If this can be demonstrated, a plaintiff’s expectation of a profit, objectively made out, will be protected by the award of damages. Otherwise, subject to it being demonstrated that a plaintiff would not even have recovered any or all of his or her reasonable expenses, a plaintiff’s objectively determined expectation of recoupment of expenses incurred will be protected by the award of damages.”

88  Deane J referred to “a case where a plaintiff has incurred expenditure either in procuring the contract or in its performance but it is impossible or difficult (emphasis added) to establish the value of any benefits which the plaintiff would have derived from performance by the defendant”. That does not support the proposition that it must be “impossible” to prove an expectation loss before the presumption arises, let alone that the impossibility be attributable to the defendant’s breach.

89  Similarly, Toohey J characterised reliance damages as (emphasis added) “a means of compensating the plaintiff where there has been no loss of profits or, more likely, where the plaintiff cannot prove loss of profits with any certainty” and said that damages were most appropriately assessed by reference to expenditure incurred where profits are difficult or impossible to quantify or where the outcome of the contract is not predictable. Gaudron J quoted the observation of Lord Denning MR in Anglia Television Ltd v Reed that “if [a plaintiff] has not suffered any loss of profits — or if he cannot prove what his profits would have been — he can claim in the alternative the expenditure which has been thrown away, that is, wasted, by reason of the breach”, and said:

“The present case is one in which the uncertainties are such that it is not possible to make any reliable estimate of the value of Amann's contractual rights. Thus, it is one in which the assessment of damages might properly be approached having regard to Amann's wasted expenditure.”

90  What emerges from the passages discussed in the preceding paragraphs is that reliance damages may be recovered where a plaintiff does not prove an expectation of a profit. None of those expositions of the circumstances in which reliance damages may be claimed, properly understood, requires that it is a precondition to their recoverability that it first be established that it has been rendered “impossible” to prove an expectation loss.

…

93  Meetfresh thus stands as clear authority of this Court that reliance damages may be recovered not only where it is impossible to quantify expectation damages, but also where the plaintiff does not undertake to prove, or the evidence does not establish, any loss of profits. For the reasons stated above, that position is a correct understanding of the dominant reasoning in Amann Aviation. Moreover, it would be quite illogical that a presumption casting the onus on the defendant to prove that the plaintiff would not have recouped its expenditure would arise only where the plaintiff first established that it could not possibly prove the opposite.

[emphasis in original; emphasis added in bold]

So far as Mr Walters' submission on the "fourth proposition" concerning election resurrects itself in these new circumstances I reject it for the reasons explained in para 42 above, which are even stronger when the supposed difference in the comparison to be made is removed. It is true that in Anglia Television v Reed, already referred to in a different connection, the phrase "he must elect" is used, but only as the equivalent of "he cannot claim both", which immediately follows (page 692b). There is no suggestion of some procedural stage by which one basis or the other must be abandoned, and reliance is placed at that point on Cullinane itself, in which no "election" was ever made by the plaintiff; the choice was that of the Court of Appeal.

[emphasis added in bold]

The principal action between the parties from which the AR’s damages assessment followed was Suit No 34 of 2007, PT Panasonic Gobel Indonesia v Stratech Systems Ltd [2009] 1 SLR(R) 470, where Judith Prakash J found at [87] that the plaintiff’s claim was one for damages to be assessed and “not a claim for refund of payments made on the basis of a total failure of consideration”. The learned Prakash J had found at [86] that the plaintiff was entitled “to claim whatever damages it can prove it has sustained by [the defendant’s] breach up to the amount of S$1,830,000 being the total costs of services to be provided by [the defendant] (for all four modules) under the Services Agreement, plus interest”.