Court preferred objective evidence when confronted with conflicting expert evidence

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Royal & Sons Organisation Pte Ltd v Hotel Calmo Chinatown Pte Ltd [2024] SGHC 248

Background

Royal & Sons Organisation Pte Ltd (Royal), a Singaporean property investor, owns premises at 25 Trengganu Street. Hotel Calmo Chinatown Pte. Ltd. (Calmo), a hotel operator, leased the premises for six years starting in May 2021.

In October 2022, Royal found the premises in poor condition and issued Calmo a notice to fix the defects. Calmo claimed it had addressed the issues but Royal later discovered an unauthorised use of the property by a third party, MoNo Foods. This led Royal to terminate the lease in March 2023.

Royal filed a lawsuit in April 2023, seeking to end the lease and claim double rent. Despite this, Calmo still occupies the property.

Expert evidence

An inspection was conducted on 12 January 2024, attended by building survey experts from both sides: Mr YCY for Royal and Mr EL for Calmo.

Royal argues that the inspection revealed additional breaches by Calmo and presented Mr YCY to assess whether these breaches were resolved. Mr YCY had the chance to confirm whether the defects from the Cure Notice (i.e., breaches based on the evidence provided to Calmo) were fixed during the inspection. However, Mr YCY did not provide evidence showing that the defects remained unresolved. While Royal’s Head of Hospitality claimed that Mr YCY was instructed to check the defects, Mr YCY testified that this was not part of his brief from Royal.

In contrast, Mr EL confirmed the defects had been rectified. He stated that visual inspections and physical checks (like feeling for dampness) were sufficient to verify the repairs and that detailed method statements or plans were unnecessary, unless dealing with complex issues. Since Mr YCY did not assess the repairs, there was no opposing evidence from Royal’s side.

The court accepted Mr EL’s testimony that the defects were straightforward and his inspection method was adequate for verifying the work.[71]

The main disagreement between Mr YCY and Mr EL lies in their opinion on the adequacy of Calmo’s evidence proving the rectifications. Mr EL’s report included before-and-after photos of the affected areas, along with explanations of the repairs. He concluded that the breaches were fixed, based on these photos and his on-site inspection. However, Mr YCY argued that it wasn’t possible to determine from the photos alone if the breaches were resolved, since they lacked method statements and detailed rectification plans outlining the repair steps. He also raised additional concerns not addressed by Calmo’s photos, though he admitted these concerns were never communicated to Calmo or Mr EL. Despite this, Mr YCY believed Calmo should have provided more detailed information to support its claim of rectification. Mr EL disagreed, stating that such documents are only necessary for more complex defects.

The court said that in choosing between conflicting expert evidence, it will have regard to their consistency, logic and coherence, with a powerful focus on the objective evidence (Armstrong, Carol Ann (executrix of the estate of Peter Traynor, deceased, and on behalf of the dependents of Peter Traynor, deceased) v Quest Laboratories Pte Ltd and another and other appeals [2020] 1 SLR 133 at [92]).[95]

After evaluating both experts’ testimonies, the court accepted Mr EL’s view that method statements and rectification plans are not always necessary and are only required for complex defects. The issues identified by Royal, such as replacing floor traps and fixing cable trays, could be verified through photos and visual or physical inspections. Mr EL’s explanations were seen as logical and reasonable.[96]

In contrast, Mr YCY’s concerns, such as the strength of cable trays and the fit of DB box covers, could have been easily checked during an inspection, which he did not conduct. He also failed to request the additional information he said was missing. He admitted that he had no evidence to show whether the defects were properly fixed because he did not revisit the site.[97]

Additionally, some of Mr YCY’s responses were seen as less objective, particularly when he questioned the thoroughness of a licensed electrical worker without evidence and avoided answering certain questions. Mr EL, on the other hand, was more objective and readily acknowledged that certain legal determinations were for the court to decide, not for him.[98]

The court found Mr EL’s evidence more credible and ruled that Royal had not proven that Calmo breached the Tenancy Agreement by failing to fix the defects. As a result, except for the MoNo issue, Royal did not establish sufficient grounds for claiming a repudiatory breach and the court denied Royal’s request for lease forfeiture.[99]-[100]

Key Takeaways:

Experts should ensure that the scope of their instructions is clear from the outset. Experts should clarify and confirm their responsibilities before conducting inspections or assessments.