Case Details
- Citation: [2021] SGCA 98
- Title: NAMBU PVD PTE LTD v UBTS PTE LTD
- Court: Court of Appeal of the Republic of Singapore
- Date of Decision: 20 October 2021
- Judgment Reserved: 6 September 2021
- Judges: Andrew Phang Boon Leong JCA, Judith Prakash JCA and Tay Yong Kwang JCA
- Parties: Nambu PVD Pte Ltd (Appellant/Respondent in different appeals); UBTS Pte Ltd (Respondent/Appellant in different appeals)
- Procedural History: Appeals from Suit No 889 of 2019 (High Court); High Court decision cited as Nambu PVD Pte Ltd v UBTS Pte Ltd [2021] SGHC 20 (“GD”)
- Civil Appeal No 2 of 2021 (CA 2): Nambu’s appeal against quantum of damages and costs
- Civil Appeal No 16 of 2021 (CA 16): UBTS’s appeal against the High Court’s finding that SLA T&Cs were not incorporated into the contract
- Outcome: Both appeals dismissed
- Key Issues (as framed): (1) Whether the Judge should have relied on UBTS’s expert evidence to make deductions from repair costs; (2) Whether Nambu could have retrieved the machine from UBTS’s custody with effect from 3 January 2017 onwards; (3) Whether SLA standard terms and conditions were incorporated by reference or by course of dealing
- Legal Areas: Contract; Carriage/transport; Evidence (expert evidence); Damages (quantum and remoteness/mitigation); Incorporation of contractual terms
- Judgment Length: 34 pages, 10,370 words
- Cases Cited (as provided): [2020] SGHC 129; [2021] SGCA 98; [2021] SGHC 20
Summary
This decision of the Singapore Court of Appeal arose from a dispute over the carriage of a prefabricated vertical drain machine (“the Machine”) and the consequences of a fire that occurred during transport. Nambu PVD Pte Ltd (“Nambu”) sued UBTS Pte Ltd (“UBTS”) for damage to the Machine. The High Court found that the fire was due to UBTS’s negligence, but awarded only a fraction of the damages claimed. Both parties appealed: Nambu challenged the quantum of damages and costs, while UBTS challenged the High Court’s conclusion that UBTS’s standard terms and the Singapore Logistics Association’s standard terms and conditions (“SLA T&Cs”) were not incorporated into the contract.
The Court of Appeal dismissed both appeals. On Nambu’s appeal (CA 2), the Court held that the High Court’s assessment of damages was not plainly wrong or manifestly against the weight of the evidence. In particular, the Court upheld the Judge’s reliance on UBTS’s expert evidence to make deductions from repair costs, and the Judge’s findings on the period during which Nambu could reasonably have retrieved the Machine from UBTS’s custody. On UBTS’s appeal (CA 16), the Court rejected the argument that the SLA T&Cs were incorporated by a course of dealing, emphasising that a course of dealing generally presupposes that the relevant terms had contractual effect in prior transactions.
What Were the Facts of This Case?
Nambu and UBTS entered into a contract for UBTS to transport a prefabricated vertical drain machine. The Machine was carried by UBTS’s vehicle, and during the course of carriage the vehicle caught fire. As a result, the Machine was damaged. Nambu subsequently brought an action against UBTS for the fire damage, and the High Court (in the earlier decision, Nambu PVD Pte Ltd v UBTS Pte Ltd [2021] SGHC 20) found that the fire was attributable to UBTS’s negligence. That finding of liability was not the subject of appeal in the Court of Appeal proceedings summarised in the extract provided.
After liability was established, the dispute shifted to the appropriate measure of damages. Nambu claimed substantial sums based on two alternative approaches: replacement costs and repair costs. Specifically, Nambu made claims totalling $1,226,807.20 on the basis of replacing the Machine, and alternatively $1,279,537.20 on the basis of repairing it. The High Court, however, awarded Nambu only $248,240.00, together with interest and costs of $160,000.00 (excluding disbursements). The Court of Appeal therefore had to consider whether the High Court’s quantification of damages was correct.
In assessing repair costs, the High Court used a quotation from the Machine’s manufacturer, FM Electro-Hydraulic (“FM”), as a starting point. The FM quotation was for $197,460. The Judge then removed certain items from the FM quotation, accepting UBTS’s expert evidence that those items were not justified because parts of the Machine were not so damaged as to warrant repair. This approach reduced the repair figure significantly compared to Nambu’s pleaded position.
In addition to repair costs, the High Court addressed other heads of loss. Nambu sought, among other things, loss of use, storage and relocation charges, and loss of profits arising from a contract that Nambu had given up in March 2017 because the Machine was not operational. The High Court limited certain claims temporally, reasoning that the Machine could have been repaired for less than replacement cost and that repair should have been done within six months of the accident (by March 2017). The Judge also allowed loss of use and storage/relocation charges only for the six-month period between September 2016 and March 2017. Further, the Judge declined to award loss of profits from the contract Nambu had abandoned.
What Were the Key Legal Issues?
The Court of Appeal dealt with two main appeals, each raising distinct legal issues. In CA 2, Nambu’s appeal focused on quantum. The Court had to decide whether the High Court judge was correct to (a) rely on UBTS’s expert, Mr Melvin Lum (“Mr Lum”), to make deductions from repair costs, and (b) find that Nambu could have retrieved the Machine from UBTS’s custody with effect from 3 January 2017 onwards. These issues were framed as challenges to the Judge’s factual findings and evidential assessment, rather than purely legal questions.
In CA 16, UBTS’s appeal concerned incorporation of contractual terms. The central question was whether the SLA T&Cs had been incorporated into the parties’ contract. UBTS argued that incorporation occurred by virtue of a previous course of dealing, based on invoices and delivery orders issued by UBTS for past contracts. The High Court had found that the SLA T&Cs were not incorporated, and UBTS sought to overturn that conclusion.
Although the extract indicates that there was no appeal against the High Court’s finding that UBTS’s own standard terms and conditions (“UBTS T&Cs”) were not incorporated, CA 16 specifically required the Court of Appeal to clarify the law on incorporation by course of dealing and the evidential foundation needed to show that standard terms had contractual effect in prior transactions.
How Did the Court Analyse the Issues?
1) Appellate restraint on factual and evidential findings (CA 2)
The Court of Appeal began by observing that Nambu’s arguments on appeal largely repeated what had been argued before the High Court. The Court emphasised the high threshold for appellate intervention in relation to a trial judge’s findings of fact. Citing the principle articulated in Tat Seng Machine Movers Pte Ltd v Orix Leasing Singapore Ltd [2009] 4 SLR(R) 1101 at [41], the Court noted that appellate intervention is generally warranted only where the trial judge’s assessment is plainly wrong or manifestly against the weight of the evidence.
Applying that standard, the Court concluded that Nambu had not shown that the High Court’s assessment was plainly wrong. The Court characterised the High Court judge as having considered Nambu’s arguments in detail and closely examined the evidence before arriving at the decision. This meant that the Court of Appeal would not substitute its own view merely because Nambu disagreed with the evidential conclusions.
2) Expert evidence and deductions from repair costs
Nambu’s strongest arguments included a contention that the High Court erred in accepting Mr Lum’s expert evidence to make deductions from the repair costs. The background was that the manufacturer’s FM quotation was used as a starting point, but the Judge removed certain items listed in the FM quotation. The Judge accepted Mr Lum’s opinion that those items were not justified because certain parts of the Machine were not sufficiently damaged to warrant repair.
Nambu argued that Mr Lum’s opinion lacked evidential support because he did not cite corroborative evidence. The Court of Appeal rejected the premise that corroboration is always necessary to begin with. Mr Lum had physically inspected the Machine, and the Court reasoned that expertise, in itself, could provide a sufficient basis for the Judge to accept an assessment, depending on the circumstances. The Court then addressed Nambu’s further attack: that Mr Lum’s qualifications were inadequate because he was allegedly only an “accident reconstructionist” with a degree in “mechatronics”, and he lacked formal valuation credentials or membership in an accredited valuation body.
The Court of Appeal held that these misgivings were overstated. While academic credentials may not be ideal, expertise can be acquired through study or through experience. The Court referred to the High Court decision Tan Mui Teck v Public Prosecutor [2003] 3 SLR(R) 139 at [11] for the proposition that expertise may be grounded in experience as well as formal qualifications. Mr Lum had over twenty years’ experience in assessing vehicular damage and had worked “hand-in-hand” with assessors, which the Court considered a reasonable explanation for how he had gained relevant expertise.
Crucially, the Court also evaluated the reasoning offered by the expert. Expert evidence is not assessed solely by qualifications; it is also assessed by the reasons given for the opinion. Mr Lum explained why he believed some parts were not completely destroyed and could be reused. The Court contrasted this with Nambu’s expert, Mr Robert Khan (“Mr Khan”), who opined that the Machine could not be repaired. The Court noted that Mr Khan’s opinion was directly contradicted by the FM quotation and by other manufacturer quotations indicating that the Machine could be repaired in Singapore. In that context, the Court concluded that the High Court was entitled to prefer Mr Lum’s opinion over Mr Khan’s.
3) Retrieval of the Machine and timing of loss (CA 2)
The Court of Appeal also addressed Nambu’s argument that the High Court erred in finding that Nambu could have retrieved the Machine from UBTS’s custody with effect from 3 January 2017. Although the extract does not reproduce the full reasoning on this point, the Court’s approach is clear: it treated the issue as a factual question tied to the evidence and the High Court’s assessment of what was reasonably practicable. The Court held that the high threshold for appellate intervention had not been met.
In upholding the High Court’s approach, the Court accepted that the Machine could have been repaired for less than replacement cost and that repair should have been completed within six months of the accident, by March 2017. This finding drove the limitation of certain heads of damages, including loss of use, storage and relocation charges, to the six-month period between September 2016 and March 2017. The Court also upheld the High Court’s refusal to award loss of profits from a contract Nambu had given up in March 2017 because the Machine was not operational, reflecting the High Court’s view on causation and recoverability.
4) Incorporation of SLA T&Cs by course of dealing (CA 16)
UBTS’s appeal in CA 16 turned on contractual incorporation. UBTS argued that the SLA T&Cs were incorporated into the contract by a course of dealing, relying on invoices and delivery orders issued by UBTS in prior transactions. The Court of Appeal described the “central, albeit simple, point” as follows: a course of dealing generally assumes that the terms concerned have contractual effect. In other words, it is not enough that standard terms were printed on documents; the prior dealings must show that those terms were intended to govern the parties’ contractual relationship.
The High Court had found that the invoices and delivery orders were not intended to have contractual effect for the past contracts for which they were issued. The Court of Appeal held that this finding sufficed to dispose of UBTS’s appeal. Even if the SLA T&Cs appeared on those documents, the absence of contractual effect in the prior dealings meant that a course of dealing could not be established for incorporation purposes.
Beyond disposing of the appeal, the Court indicated that UBTS’s arguments provided an occasion to clarify the law on incorporation of terms. The Court’s reasoning underscores that incorporation by course of dealing is evidence-driven and requires a demonstrable contractual pattern in which the relevant terms were treated as binding. Where the documents were not intended to have contractual effect, the legal foundation for incorporation is absent.
What Was the Outcome?
The Court of Appeal dismissed both appeals. Nambu’s appeal (CA 2) was dismissed in full, with the Court agreeing wholly with the High Court’s reasoning and findings on quantum. The Court found no basis to disturb the High Court’s reliance on Mr Lum’s expert evidence for deductions from repair costs, nor its findings on the timing and extent of recoverable losses.
UBTS’s appeal (CA 16) was also dismissed. The Court rejected the argument that the SLA T&Cs were incorporated by course of dealing, holding that the High Court’s finding that invoices and delivery orders were not intended to have contractual effect in prior transactions was sufficient to defeat incorporation.
Why Does This Case Matter?
This case is significant for practitioners because it illustrates two recurring themes in Singapore contract litigation: (1) the limits of appellate review over trial judges’ evidential and factual assessments, and (2) the evidential requirements for incorporating standard terms by course of dealing.
On quantum and expert evidence, the decision reinforces that appellate courts will not readily interfere with a trial judge’s evaluation of expert testimony. The Court of Appeal’s analysis shows that expert qualifications are not determinative on their own; what matters is the expert’s relevant experience and the cogency of the reasons given for the opinion. Where an expert’s reasoning is supported by inspection and is consistent with other evidence (such as manufacturer quotations), a trial judge’s preference for that expert’s view is likely to be upheld.
On incorporation of terms, the decision is a reminder that “course of dealing” is not a mechanical doctrine based on the existence of standard terms on documents. The party asserting incorporation must show that the terms had contractual effect in prior dealings and that the parties’ conduct demonstrates an intention for those terms to govern. For logistics and carriage contracts—where standard terms are often printed on invoices, delivery orders, and booking documents—this case highlights the importance of ensuring that contractual incorporation mechanisms are properly implemented and evidenced.
Legislation Referenced
- (Not specified in the provided extract.)
Cases Cited
- Tat Seng Machine Movers Pte Ltd v Orix Leasing Singapore Ltd [2009] 4 SLR(R) 1101
- Tan Mui Teck v Public Prosecutor [2003] 3 SLR(R) 139
- Nambu PVD Pte Ltd v UBTS Pte Ltd [2021] SGHC 20
- [2020] SGHC 129
- [2021] SGCA 98
Source Documents
This article analyses [2021] SGCA 98 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.