Vim Engineering v Deluge Fire Protection: Construction Contract Dispute over Variation Works and Back-Charges

Vim Engineering Pte Ltd appealed against the High Court's decision in a dispute with Deluge Fire Protection (S.E.A.) Pte Ltd concerning a construction project at 5 Shenton Way. Vim, the appellant, claimed for variation works, while Deluge, the respondent, counterclaimed for rectification works and back-charges. The High Court had ruled against Vim on the variation works claim and largely in favor of Deluge on its counterclaims. The Appellate Division allowed the appeal in part, upholding Vim's claim for variation works, dismissing Deluge's claim for rectification works, and reducing Deluge's claim for back-charges. The court found Deluge liable to Vim for a net sum of $800,552.14.

1. Case Overview

1.1 Court

Appellate Division of the High Court

1.2 Outcome

Appeal Allowed in Part

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Construction dispute over subcontract for plumbing works. Appeal concerns variation works, rectification costs, and back-charges. Judgment partly allowed the appeal.

1.7 Decision Date

11 January 2023

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
Vim Engineering Pte Ltd	Appellant, Plaintiff	Corporation	Appeal Allowed in Part	Partial	Jasmine Thng Khai Fang of Rajah & Tann Singapore LLP Avinash Pradhan of Rajah & Tann Singapore LLP
Deluge Fire Protection (S.E.A.) Pte Ltd	Respondent, Defendant	Corporation	Counterclaim Partially Allowed	Partial	Namazie Mirza Mohamed of Mallal & Namazie Tay Jing En of Mallal & Namazie

3. Judges

Judge Name	Title	Delivered Judgment
Woo Bih Li	Judge of the Appellate Division	No
See Kee Oon	Judge of the High Court	No
Quentin Loh	Senior Judge	Yes

4. Counsels

Counsel Name	Organization
Jasmine Thng Khai Fang	Rajah & Tann Singapore LLP
Avinash Pradhan	Rajah & Tann Singapore LLP
Namazie Mirza Mohamed	Mallal & Namazie
Tay Jing En	Mallal & Namazie

4. Facts

UIC Investments engaged Samsung as the main contractor for a building redevelopment project.
Samsung engaged Deluge as a subcontractor for plumbing, sanitary, and gas work.
Samsung complained of delays in Deluge's work.
Deluge engaged Vim to carry out a limited scope of plumbing works.
Vim and Deluge entered into a subcontract for specified plumbing and sanitary works.
Disagreements arose, and Vim left the project site before completing all work.
Deluge claimed costs for completing Vim's work and rectifying defects.

5. Formal Citations

Vim Engineering Pte Ltd v Deluge Fire Protection (S.E.A.) Pte Ltd, Civil Appeal No 29 of 2021, [2023] SGHC(A) 2

6. Timeline

Date	Event
2015-07-01	Samsung engaged Deluge as a subcontractor.
2016-02-23	Samsung complained of severe schedule delay in Deluge’s work.
2016-03-01	Deluge engaged Vim to carry out a limited scope of plumbing works.
2016-04-08	Purchase Order (No. P020017880) issued.
2016-07-25	Tender Clarifications were dated.
2016-07-30	Vim's Quotation (VIM/QU/1408/Rev 3) was dated.
2016-08-03	Subcontract was dated.
2017-10-20	Temporary occupation permit obtained.
2018-02-05	Vim left the project site.
2018-10-19	Defects liability period expired.
2021-08-27	Arguments heard.
2021-09-10	Arguments heard.
2023-01-12	Judgment reserved.

7. Legal Issues

Breach of Contract
- Outcome: The court found that both parties had breached the contract to varying degrees.
- Category: Substantive
- Sub-Issues:
  - Failure to comply with contractual requirements
  - Defective workmanship
  - Delays in project completion
Variation Works
- Outcome: The court allowed Vim's claim for variation works, finding that Deluge had waived the requirement of written notice.
- Category: Substantive
- Sub-Issues:
  - Requirement of written instructions
  - Waiver of contractual terms
  - Scope of original contract
Back-Charges
- Outcome: The court significantly reduced Deluge's claim for back-charges, finding insufficient evidence to support many of the charges.
- Category: Substantive
- Sub-Issues:
  - Defective workmanship
  - Delays in project completion
  - Notice requirements
Rectification Works
- Outcome: The court dismissed Deluge's claim for rectification works, finding insufficient evidence to support the claim.
- Category: Substantive
- Sub-Issues:
  - Defect liability period
  - Notice requirements
  - Proof of expenses
Waiver
- Outcome: The court found that Deluge had waived the requirement of written notice for variation works.
- Category: Substantive
- Sub-Issues:
  - Waiver by election
  - Authority to waive contractual terms
Condition Precedent
- Outcome: The court held that the written notice requirement in clause 16 was not a strict condition precedent.
- Category: Substantive
- Sub-Issues:
  - Written notice
  - Strict compliance
Evidentiary Burden
- Outcome: The court emphasized the importance of the evidentiary burden in establishing claims for back-charges and rectification works.
- Category: Procedural
- Sub-Issues:
  - Burden of proof
  - Sufficiency of evidence

8. Remedies Sought

Monetary Damages

9. Cause of Actions

Breach of Contract
Quantum Meruit

10. Practice Areas

Construction Contracts
Commercial Litigation

11. Industries

Construction

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
Comfort Management v OGSP Engineering Pte Ltd	Court of Appeal	No	[2018] 1 SLR 979	Singapore	Cited for the principle that the absence of writing does not invariably disentitle a party from claiming payment for variation works.
Mansource Interior Pte Ltd v CSG Group Pte Ltd	High Court	No	[2017] 5 SLR 203	Singapore	Cited as an example of a case where a strict construction of a written notice requirement was applied to disallow a variation claim.
GIB Automation Pte Ltd v Deluge Fire Protection (SEA) Pte Ltd	High Court	Yes	[2007] 2 SLR(R) 918	Singapore	Cited for the principle that a 'back-to-back' provision is not a term of art and must be construed in light of the factual matrix known to the parties.
Audi Construction v Kian Hiap Construction	Court of Appeal	Yes	[2018] 1 SLR 317	Singapore	Cited for the requirements for waiver by election, where a party unequivocally chooses not to exercise one of two inconsistent rights.
V Nithia (co-administratrix of the estate of Ponnusamy Sivapakiam, deceased) v Buthmanaban s/o Vaithilingam and another	Court of Appeal	Yes	[2015] 5 SLR 1422	Singapore	Cited for the general rule that parties are bound by their pleadings and the court is precluded from deciding on a matter that the parties themselves had decided not to put into issue.
Myers v Sarl	N/A	No	[1860] 3 E. & E. 306	N/A	Cited as an example of an unsigned sketch made by an architect’s assistant which was argued unsuccessfully to be a “direction” by the architect’s hand in writing.
Pearce and High v Baxter	N/A	Yes	[1999] BLR 101	N/A	Cited for the principle that in the absence of clear and express words, the employer’s right to damages in respect of the cost of repairs is not extinguished.
Management Corporation Strata Title Plan No 1933 v Liang Huat Aluminium Ltd	N/A	Yes	[2001] 2 SLRI 91	Singapore	Cited for the principle that in the absence of clear and express words, the employer’s right to damages in respect of the cost of repairs is not extinguished.
Longyuan-Arrk (Macao) Pte Ltd v Show and Tell Productions Pte Ltd and another suit	High Court	Yes	[2013] SGHC 160	Singapore	Cited for the principle that the burden of proof was on the claimant to provide sufficient evidence to establish its claim.
Impact Painting Ltd v. Man-Shield (Alta) Construction Inc	N/A	Yes	[2018] AWLD 582	N/A	Cited for the principle that the onus is on the party claiming a back charge to prove that the back charge is for an expense actually, necessarily and reasonably incurred.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute Name	Jurisdiction
Evidence Act (Cap 97, 1997 Rev Ed)	Singapore

15. Key Terms and Keywords

15.1 Key Terms

Variation Works
Back-Charges
Rectification Works
Subcontract
Written Notice
Condition Precedent
Defects Liability Period
Main Works
Plumbing Works
Sanitary Works

15.2 Keywords

construction contract
variation works
back-charges
rectification costs
plumbing
subcontractor
Singapore law

17. Areas of Law

Area Name	Relevance Score
Building and Construction Contracts	80
Construction Law	75
Scope of Works	70
Variations	65
Breach of Contract	60
Rectification Works	55
Contract Law	50
Back charges	50
Waiver	40
Estoppel	35
Litigation	30
Arbitration	20

16. Subjects

Construction Dispute
Contract Law
Subcontracting
Appeals