Case Details
- Citation: [2021] SGCA 98
- Case Title: Nambu PVD Pte Ltd v UBTS Pte Ltd and another appeal
- Court: Court of Appeal of the Republic of Singapore
- Decision Date: 20 October 2021
- Court Number(s): Civil Appeals Nos 2 and 16 of 2021
- Coram: Andrew Phang Leong JCA; Judith Prakash JCA; Tay Yong Kwang JCA
- Judgment Author: Andrew Phang Boon Leong JCA (delivering the judgment of the court)
- Plaintiff/Applicant: Nambu PVD Pte Ltd (“Nambu”)
- Defendant/Respondent: UBTS Pte Ltd (“UBTS”) and another appeal
- Parties’ Roles in Appeals: CA/CA 2/2021: Nambu appellant; CA/CA 16/2021: UBTS appellant
- Counsel for Nambu (CA/CA 2/2021) / UBTS (CA/CA 16/2021): S Magintharan and Liew Boon Kwee James (Essex LLC)
- Counsel for UBTS (CA/CA 2/2021) / Nambu (CA/CA 16/2021): Yee Mun Howe Gerald and Jonathan Lim Shi Cao (Premier Law LLC)
- Legal Area: Contract — Contractual terms (including exclusion clauses)
- Lower Court Decision: Appeals from the High Court decision in [2021] SGHC 20
- Judgment Length: 15 pages, 9,556 words (as stated in metadata)
- Statutes Referenced: None specified in the provided extract
- Cases Cited (as provided): [2020] SGHC 129; [2021] SGCA 98; [2021] SGHC 20; [2021] SGHC 20 (and related references as shown)
Summary
This Court of Appeal decision arose from a dispute over damage to a prefabricated vertical drain machine (“the Machine”) during transport. Nambu contracted with UBTS for UBTS to transport the Machine. During carriage, the vehicle caught fire, and the Machine was damaged. Nambu sued UBTS for the fire damage, and the High Court found that the fire was due to UBTS’s negligence. The High Court also held that UBTS could not rely on its own standard terms and conditions (“UBTS T&Cs”) or the Singapore Logistics Association’s standard terms and conditions (“SLA T&Cs”) to limit liability because neither set of terms was incorporated into the contract.
On appeal, two issues dominated. First, Nambu appealed against the High Court’s assessment of damages and costs (CA 2/2021), contending that the judge erred in the quantum analysis. Second, UBTS appealed against the High Court’s finding that the SLA T&Cs were not incorporated (CA 16/2021), arguing that incorporation could be inferred from a previous course of dealing evidenced by invoices and delivery orders. The Court of Appeal dismissed both appeals, agreeing with the High Court’s reasoning on quantum and on the incorporation of terms.
What Were the Facts of This Case?
Nambu and UBTS entered into a contract under which UBTS would transport a prefabricated vertical drain machine. The Machine was carried by a UBTS vehicle. During the course of carriage, the vehicle caught fire. As a result, the Machine sustained damage. This factual matrix is important because it frames the legal analysis as one involving liability for negligent carriage and the extent to which contractual exclusion or limitation clauses could apply.
Following the incident, Nambu pursued claims against UBTS for the damage to the Machine. The High Court judge (“the Judge”) found, among other things, that the fire was due to UBTS’s negligence. That finding of liability was not the subject of the Court of Appeal’s decision in the excerpt provided; rather, the appeals focused on (i) damages (Nambu’s appeal) and (ii) incorporation of the SLA T&Cs (UBTS’s appeal). The case therefore illustrates how, even where liability is established, the parties may still litigate the contractual architecture governing remedies and limitation of liability.
On damages, Nambu’s claims were substantial. 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 judge’s approach reflected a view that the Machine could have been repaired for less than replacement cost and that Nambu should have acted to repair within a reasonable period (identified as within six months of the accident, ie, by March 2017). The judge also allowed certain heads of loss, including loss of use and storage/relocation charges, but restricted them to the six-month period.
In addition, the High Court declined to award Nambu loss of profits from a contract that Nambu had given up in March 2017 because the Machine was not operational. This refusal became part of the quantum dispute on appeal. Nambu’s appeal thus challenged both the factual and evaluative components of the damages assessment, including the judge’s reliance on expert evidence and the judge’s findings about when Nambu could have retrieved the Machine from UBTS’s custody.
What Were the Key Legal Issues?
The first key legal issue concerned appellate intervention in findings of fact and the assessment of damages. Nambu argued that the High Court judge erred in the quantum analysis, including by allegedly misapplying or misweighing expert evidence and by making findings that Nambu could have retrieved the Machine earlier than it did. The Court of Appeal therefore had to consider the threshold for disturbing a trial judge’s factual findings and the proper approach to expert evidence in damages quantification.
The second key legal issue concerned incorporation of contractual terms—specifically, whether the SLA T&Cs were incorporated into the contract by a previous course of dealing. UBTS’s appeal (CA 16/2021) was premised on the argument that invoices and delivery orders issued in prior transactions demonstrated that the SLA T&Cs had contractual effect. The Court of Appeal had to decide whether such documents and prior dealings could establish incorporation of standard terms, and whether the High Court was correct to conclude that the invoices and delivery orders were not intended to have contractual effect for the earlier contracts.
Although the excerpt notes that there was no appeal against the finding that the UBTS T&Cs were not incorporated, the SLA T&Cs incorporation issue required the Court of Appeal to clarify the legal principles governing incorporation by course of dealing and the evidential basis needed to show that standard terms were intended to bind the parties.
How Did the Court Analyse the Issues?
On Nambu’s appeal (CA 2/2021), the Court of Appeal emphasised the high threshold for appellate interference with a trial judge’s findings of fact. It referred to the principle articulated in Tat Seng Machine Movers Pte Ltd v Orix Leasing Singapore Ltd [2009] 4 SLR(R) 1101 at [41], namely that appellate intervention is generally warranted only where the trial judge’s assessment is plainly wrong or manifestly against the weight of the evidence. The Court of Appeal observed that Nambu’s arguments largely repeated what had already been argued before the High Court and that the High Court had dealt with them meticulously.
The Court of Appeal then examined two of Nambu’s strongest arguments. The first was whether the Judge should have relied on UBTS’s expert, Mr Melvin Lum (“Mr Lum”), to make deductions from the repair costs. The second was whether the Judge was correct to find that Nambu could have retrieved the Machine from UBTS’s custody with effect from 3 January 2017. By focusing on these arguments, the Court of Appeal demonstrated that even where parties contest expert evidence and factual inferences, the appellate court will not substitute its own view absent clear error.
Regarding the expert evidence, the Court of Appeal explained the repair-cost methodology. The manufacturer, FM Electro-Hydraulic (“FM”), provided a quotation for repair at $197,460 (“FM Quotation”). The Judge used the FM Quotation as a starting point but removed several items listed in it. The Judge accepted Mr Lum’s expert opinion that some items were not justified because certain parts of the Machine were not sufficiently damaged to warrant repair. Nambu argued on appeal that Mr Lum did not cite evidence to support his opinion and that his qualifications were inadequate for valuation.
The Court of Appeal rejected these submissions. It noted that Mr Lum had physically inspected the Machine, and that expertise can be acquired through study or experience. It cited Tan Mui Teck v Public Prosecutor [2003] 3 SLR(R) 139 at [11] for the proposition that expertise is not confined to academic credentials. While Mr Lum’s academic background (a degree in mechatronics) and lack of formal valuation credentials were not ideal, the Court of Appeal accepted that his extensive experience—over twenty years—and his work “hand-in-hand” with assessors provided a reasonable basis for his assessment. The Court also stressed that expert evidence is assessed not only by qualifications but by the reasons offered for the opinion.
Importantly, the Court of Appeal compared Mr Lum’s opinion with other evidence. Nambu’s own expert, Mr Robert Khan (“Mr Khan”), opined that the Machine could not be repaired. That opinion was contradicted by the FM Quotation and by quotations from another manufacturer, Dream Heavy, which contemplated that the Machine could be repaired in Singapore. The Court of Appeal held that the Judge was entitled to prefer Mr Lum’s opinion over Mr Khan’s, especially given that the FM Quotation was not supported by FM personnel called to give evidence, but still provided a concrete technical basis for repair feasibility. The Court therefore found no reason to disturb the High Court’s approach to deductions from the repair costs.
On the second strong argument—retrieval of the Machine—the Court of Appeal addressed the factual finding tied to an email sent by UBTS to Nambu on 3 January 2017 (“the 3 January Email”). The Judge had found that Nambu could have retrieved the Machine from UBTS’s yard as early as 3 January 2017. Nambu argued that the Judge erred in relying on the 3 January Email, pointing to the insurer’s investigations and the timing of the insurer’s conclusion (the excerpt indicates that investigations ended on 20 October 2017, though the remainder of the text is truncated). The Court of Appeal’s approach, however, was consistent with its earlier stance: it would not overturn a trial judge’s factual inference unless plainly wrong or manifestly against the weight of evidence.
Turning to UBTS’s appeal (CA 16/2021), the Court of Appeal addressed incorporation of the SLA T&Cs. UBTS argued that the SLA T&Cs were incorporated by a previous course of dealing, based on invoices and delivery orders issued by UBTS for past contracts. The Court of Appeal described the central point as straightforward: a course of dealing generally assumes that the terms concerned have contractual effect. On the facts, 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.
Beyond that, the Court of Appeal indicated that UBTS’s arguments provided an occasion to clarify the law on incorporation of terms. While the excerpt does not set out the full doctrinal discussion, the Court’s reasoning reflects established Singapore contract principles: for standard terms to be incorporated by course of dealing, the evidence must show that the parties intended those terms to govern their contractual relationship, and that the course of dealing demonstrates consistent acceptance of those terms as binding. If the prior documents were not intended to have contractual effect, the inference of incorporation cannot be sustained.
What Was the Outcome?
The Court of Appeal dismissed both appeals. It dismissed Nambu’s appeal against the High Court’s assessment of damages and costs (CA 2/2021), finding no basis to interfere with the Judge’s detailed factual and evaluative reasoning on quantum. It also dismissed UBTS’s appeal against the finding that the SLA T&Cs were not incorporated into the contract (CA 16/2021), holding that the High Court’s finding on the lack of contractual effect of invoices and delivery orders for prior contracts was sufficient.
Practically, the dismissal meant that Nambu remained entitled only to the damages and costs awarded by the High Court, and UBTS remained unable to rely on the SLA T&Cs to limit liability. The decision therefore reinforces both the deference owed to trial judges on factual assessments and the evidential burden on parties seeking to incorporate standard terms by course of dealing.
Why Does This Case Matter?
This case matters for two main reasons. First, it illustrates the appellate restraint applied to trial judges’ findings of fact and damages assessments. The Court of Appeal’s reliance on Tat Seng underscores that parties should not expect appellate courts to reweigh evidence or substitute their own view merely because they disagree with the trial judge’s evaluation. For practitioners, this highlights the importance of building a robust evidential record at first instance, particularly where expert evidence and causation-linked damages calculations are contested.
Second, the case is significant for contract practitioners dealing with incorporation of standard terms and exclusion clauses. UBTS’s attempt to incorporate the SLA T&Cs by course of dealing failed because the evidence did not support the inference that the invoices and delivery orders were intended to have contractual effect in prior transactions. The decision therefore serves as a cautionary tale: incorporation by course of dealing is not automatic, and parties must demonstrate actual contractual intention and consistent acceptance of the relevant terms.
For lawyers advising on logistics, carriage, and related commercial contracts, the decision reinforces that exclusion or limitation clauses will be scrutinised for incorporation and contractual effect. Where standard terms are to be relied upon, parties should ensure that incorporation mechanisms are clear—such as express contractual references, effective notice, and documentation that evidences intention that the terms govern the transaction.
Legislation Referenced
- No specific statutes were identified in the provided judgment 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] SGHC 20
- [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.