Management Corporation v Mer Vue: Independent Contractor Defense & Statutory Duty in Construction Defect Case
The Management Corporation Strata Title Plan No 3322, representing the condominium at 29 to 41 Amber Road known as “The Seaview Condominium”, sued Mer Vue Developments Pte Ltd (developer), Tiong Aik Construction Pte Ltd (main contractor), RSP Architect Planners & Engineers (Pte) Ltd (architect), and Squire Mech Private Limited (M&E engineer) in the High Court of Singapore on January 29, 2016, for building defects based on contract, tort, and breach of statutory duty under the Building Maintenance and Strata Management Act. The court addressed preliminary issues regarding the independent contractor defense and the availability of a private right of action under the BMSMA. The court found that Tiong Aik and RSP were independent contractors of Mer Vue, the DSCs and NSCs were independent contractors of Tiong Aik, Squire Mech and Sitetectonix were independent contractors of RSP, Tiong Aik and RSP had limited statutory non-delegable duties under the Building Control Act with no apparent implications on their independent contractor defenses, RSP had not unreasonably delegated any of its professional duties, Mer Vue, Tiong Aik and RSP had taken proper care in the selection and appointment of their respective independent contractors, and that no private right of action is available to the Plaintiff for the alleged breach of statutory duty by Mer Vue under the BMSMA.
1. Case Overview
1.1 Court
High Court1.2 Outcome
The court found that Tiong Aik and RSP were independent contractors of Mer Vue, the DSCs and NSCs were independent contractors of Tiong Aik, Squire Mech and Sitetectonix were independent contractors of RSP, Tiong Aik and RSP had limited statutory non-delegable duties under the Building Control Act with no apparent implications on their independent contractor defenses, RSP had not unreasonably delegated any of its professional duties, Mer Vue, Tiong Aik and RSP had taken proper care in the selection and appointment of their respective independent contractors, and that no private right of action is available to the Plaintiff for the alleged breach of statutory duty by Mer Vue under the Building Maintenance and Strata Management Act.
1.3 Case Type
Civil
1.4 Judgment Type
Judgment
1.5 Jurisdiction
Singapore
1.6 Description
Condominium Management Corporation sues developer, contractor, and architect for building defects. Court addresses independent contractor defense and statutory duty.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| TIONG AIK CONSTRUCTION PTE LTD | Defendant | Corporation | Judgment for Defendant | Won | |
| RSP ARCHITECTS PLANNERS & ENGINEERS (PTE) LTD | Defendant | Corporation | Judgment for Defendant | Won | |
| MANAGEMENT CORPORATION STRATA TITLE PLAN NO 3322 | Plaintiff | Corporation | Claims dismissed | Lost | |
| MER VUE DEVELOPMENTS PTE LTD | Defendant | Corporation | Judgment for Defendant | Won | |
| Squire Mech Private Limited | Defendant | Corporation | Judgment for Defendant | Won | |
| King Wan Construction Pte Ltd | Third Party | Corporation | |||
| BASF South East Asia Pte Ltd | Third Party | Corporation | |||
| Heng Boon Seng Construction Pte Ltd | Third Party | Corporation | |||
| Kohup Sports Pte Ltd | Third Party | Corporation | |||
| Jason Parquet Specialist (Singapore) Pte Ltd | Third Party | Corporation | |||
| Powen Electrical Engineering Pte Ltd | Third Party | Corporation |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Chan Seng Onn | Judge | Yes |
4. Counsels
4. Facts
- The Plaintiff is the management corporation of The Seaview Condominium.
- Mer Vue Developments Pte Ltd was the developer of the condominium.
- Tiong Aik Construction Pte Ltd was the main contractor for the construction.
- RSP Architect Planners & Engineers (Pte) Ltd was the architect.
- Squire Mech Private Limited was the mechanical and electrical engineer.
- The Plaintiff alleged numerous defects in the common property of the Development.
- The Plaintiff sought S$32 million in compensation for damages.
5. Formal Citations
- Management Corporation Strata Title Plan No 3322 v Mer Vue Developments Pte Ltd and others, Suit No 563 of 2011/L, [2016] SGHC 38
6. Timeline
| Date | Event |
|---|---|
| Construction of the Development commenced | |
| Temporary Occupation Permit issued (stage 1) | |
| Temporary Occupation Permit issued (stage 2) | |
| Certificate of Statutory Completion issued | |
| Plaintiff constituted as the management corporation | |
| Plaintiff commenced suit against the Defendants | |
| Trial date | |
| Trial date | |
| Trial date | |
| Trial date | |
| Trial date | |
| Trial date | |
| Trial date | |
| Trial date | |
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| Judgment reserved | |
| Judgment date |
7. Legal Issues
- Independent Contractor Defence
- Outcome: The court found that Tiong Aik and RSP were independent contractors of Mer Vue, the DSCs and NSCs were independent contractors of Tiong Aik, Squire Mech and Sitetectonix were independent contractors of RSP.
- Category: Substantive
- Related Cases:
- [2005] 2 SLR(R) 613
- Breach of Statutory Duty
- Outcome: The court found that no private right of action is available to the Plaintiff for the alleged breach of statutory duty by Mer Vue under the BMSMA.
- Category: Substantive
- Non-Delegable Duties
- Outcome: The court found that Tiong Aik and RSP had limited statutory non-delegable duties under the BCA with no apparent implications on their independent contractor defenses.
- Category: Substantive
8. Remedies Sought
- Monetary Damages
9. Cause of Actions
- Breach of Contract
- Negligence
- Breach of Statutory Duty
10. Practice Areas
- Construction Law
11. Industries
- Construction
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Management Corporation Strata Title Plan No 2297 v Seasons Park Ltd | Court of Appeal | Yes | [2005] 2 SLR(R) 613 | Singapore | Authoritatively applied the principle of independent contractor in the context of a developer delegating its duty to build a condominium in a good and workmanlike manner to an independent contractor. |
| BNM (administratrix of the estate of B, deceased) on her own behalf and on behalf of others v National University of Singapore and others and another appeal | Court of Appeal | Yes | [2014] 4 SLR 931 | Singapore | Clarified the overarching and fundamental test in the inquiry is whether the contractor was performing services as a person of business on his own account. |
| Market Investigations Ltd v Minister of Social Security | Queen's Bench | Yes | [1969] 2 QB 173 | England and Wales | Identified relevant factors that may point to a contractor being an independent contractor as opposed to an employee. |
| Lee Ting Sang v Chung Chi-Keung | Privy Council | Yes | [1990] 2 AC 374 | United Kingdom | Approved Cooke J’s remarks in the decision of Market Investigations Ltd v Minister of Social Security. |
| Queensland Stations v Federal Commissioner of Taxation | High Court of Australia | Yes | (1945) 70 CLR 539 | Australia | Stated that even a reservation of a right to direct or superintend the performance of work cannot transform into a contract of service what is in essence an independent contract. |
| Hygeian Medical Supplies Pte Ltd v Tri-Star Rotary Screen Engraving Works Pte Ltd (Seng Wing Engineering Works Pte Ltd, third party) | High Court | Yes | [1993] 2 SLR(R) 411 | Singapore | Delegating duties to an independent contractor without first exercising reasonable care to ascertain if it is competent to do the job would result in an employer being vicariously liable for the negligence of its independent contractor. |
| Woodland v Swimming Teachers Association and others | UK Supreme Court | Yes | [2014] AC 537 | United Kingdom | Lord Sumption’s survey of the law on non-delegable duties is instructive. |
| Penny v The Wimbledon Urban District Council and another | Queen's Bench Division | Yes | [1899] 2 QB 72 | England and Wales | Highway cases included in the category of cases where an employer appoints an independent contractor to perform a function that is inherently hazardous or liable to become so in the course of work. |
| Honeywill & Stein Ltd v Larkin Bros (London’s Commercial Photographers) Ltd | King's Bench Division | Yes | [1934] 1 KB 191 | England and Wales | Broad principle relating to “extra-hazardous” operations had since been circumscribed by the UK House of Lords in Read v J Lyons & Co Ltd [1947] AC 146. |
| Read v J Lyons & Co Ltd | House of Lords | Yes | [1947] AC 146 | United Kingdom | Circumscribed the broad principle relating to “extra-hazardous” operations in Honeywill & Stein Ltd v Larkin Bros (London’s Commercial Photographers) Ltd [1934] 1 KB 191. |
| Mohd bin Sapri v Soil-Build (Pte) Ltd and another appeal | Court of Appeal | Yes | [1996] 2 SLR(R) 223 | Singapore | Considered non-delegable duties mainly in the area of employee safety. |
| The “Sunrise Crane” | High Court | Yes | [2004] 4 SLR(R) 715 | Singapore | Considered non-delegable duties mainly in the area of employee safety. |
| The Lotus M | High Court | Yes | [1998] 1 SLR(R) 409 | Singapore | Considered non-delegable duties mainly in the area of employee safety. |
| Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd and another | House of Lords | Yes | [1947] AC 1 | United Kingdom | To interpret and apply the Control Test in the independent contractor inquiry. |
| Chua Chye Leong Alan v Grand Palace De-luxe Nite Club Pte Ltd | High Court | Yes | [1993] 2 SLR(R) 420 | Singapore | The car jockeys, who were employees of an independent contractor engaged by a nightclub owner to provide valet parking services, were considered pro hac vice employees of the nightclub owner. |
| D & F Estates Ltd v Church Commissioners for England | House of Lords | Yes | [1989] 1 AC 177 | United Kingdom | There was no legal principle to disentitle developers from relying on the defence of “independent contractor” albeit in the context of liability for a dangerous defect in the work caused by the negligence of an independent contractor, and that such “social policy” would be best left to the Legislature to determine. |
| MCST Plan No 641 v Public Prosecutor | High Court | Yes | [1993] 1 SLR(R) 568 | Singapore | The standard of duty imposed is one of statutory construction. |
| Moresk Cleaners Limited v Hicks | High Court | Yes | [1966] 4 BLR 50 | England and Wales | Held that an architect could not delegate his or her design duties. |
| London Borough of Merton v Lowe | Court of Appeal | Yes | (1981) 18 BLR 130 | England and Wales | Distinguished Moresk v Hicks on the basis that the architect then had virtually handed over to another the whole task of design and that “the architect could not escape responsibility for the work which he was supposed to do by handing it over to another”. |
| Cooperative Group Limited v John Allen Associates Limited | UK Technology and Construction Court | Yes | [2010] EWHC 2300 | England and Wales | The court has to consider all the circumstances in determining whether construction professionals act reasonably in seeking the assistance of specialists to discharge their duties to their clients. |
| Yewens v Noakes | Queen's Bench Division | Yes | (1880) 6 QBD 530 | England and Wales | The Control Test traditionally focuses on the right to control how the work is done, ie, the manner in which the work is to be actually executed by the contractor. |
| X (minors) v Bedfordshire County Council | House of Lords | Yes | [1995] 2 AC 633 | United Kingdom | The approach to the issue of whether an alleged breach of the statutory duty gives rise to a civil right of action. |
| Loh Luan Choo Betsy (alias Loh Baby) (administratrix of the estate of Lim Him Long) and others v Foo Wah Jek | High Court | Yes | [2005] 1 SLR(R) 64 | Singapore | The approach to the issue of whether an alleged breach of the statutory duty gives rise to a civil right of action. |
| Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd and another and another suit | High Court | Yes | [2009] 4 SLR(R) 788 | Singapore | Where criminal sanctions are provided in the event of a breach of statutory duty, there is no private right of action. |
13. Applicable Rules
| Rule Name |
|---|
| No applicable rules |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed) | Singapore |
| Building Control Act (Cap 29, 1999 Rev Ed) | Singapore |
| Architects Act (Cap 12, 2000 Rev Ed) | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Independent Contractor
- Non-Delegable Duty
- Building Defects
- Statutory Duty
- Management Corporation
- Main Contractor
- Architect
- Developer
- BMSMA
- Building Control Act
15.2 Keywords
- construction defect
- independent contractor
- statutory duty
- BMSMA
- Building Control Act
- negligence
- condominium
- Singapore
17. Areas of Law
16. Subjects
- Construction Dispute
- Contract Law
- Tort Law
- Civil Procedure