Close | Tunnell & Shaft Specialist Engineering Pte Ltd v Choong Choon Yean [2009] SGDC 501 |
| DC Suit 3871/2006, DA 47/2009 | |
| 23 Dec 2009 | |
| District Court | |
| Kathryn Low | |
| Chin Ming Liong Patrick (Chin Patrick & Co) for the plaintiff, Leonard Loo (Leonard Loo LLP) for the defendant |
Judgment
23 December 2009 District Judge Low Lye Fong Kathryn Background 1 The plaintiff Tunnell & Shaft Specialist Engineering Pte Ltd’s claim against the defendant Choong Choon Yean is premised on an undertaking dated 10 January 2004 signed by the defendant whereby he agreed to be personally liable for the sum of $160,000 owed to the plaintiff by a company DTG Pte Ltd (“DTG”). 2 The plaintiff claimed that they were the sub-contractors of DTG, a company in which the defendant was a director and shareholder. The sub-contract was an oral contract made around July 2002 at the plaintiff’s site office at Margaret Drive. The initial contract price was $195,000 with variation works to be billed. The plaintiff claimed that the works were completed sometime in May 2003 and they also made payments to suppliers of goods at DTG’s requests. The total amount due from DTG to the plaintiff was $281,440.56. DTG had paid a sum of $103,183.35, leaving a balance of $178,257.56. The plaintiff rounded the figure down to $160,000. The plaintiff made various demands to DTG but DTG was unable to pay the said sum. The plaintiff told DTG that they were contemplating legal proceedings to recover the sum. The figure was made known to the defendant personally by the plaintiff’s director Sim Chong Bing, PW1 who is also known as Ben Sim (“Ben Sim”). The defendant proposed and gave the plaintiff the letter of undertaking dated 10 January 2004 at PBD37. By the letter of undertaking the defendant agreed to be personally liable for the sum of $160,000, payable by 2 instalments of $80,000 each on 9 January 2005 and 9 July 2005 respectively in consideration of the plaintiff giving time to DTG to discharge the debt and allowing DTG to continue as a going concern. The defendant failed to make any payment pursuant to the undertaking. 3 The defendant denied that the plaintiff were sub-contractors of DTG for the project at Upper Aljunied Road (“the Aljunied project”). He claimed that plaintiff had agreed with DTG around July 2002 to engage in the project together and share the profits equally. He denied that a sum of $160,000 was owing by DTG to the plaintiff or that the plaintiff were contemplating legal proceedings. He claimed that in fact, the plaintiff owed DTG $180,000, being the price for the lease of concrete blocks for 2 months in February and March 2003. He denied that the plaintiff had demanded payment of the sum of $160,000 from DTG and that he had approached the plaintiff with the proposal or requested the plaintiff to give DTG time to pay the said sum. He therefore claimed that the letter of undertaking is unenforceable for want of consideration. He pleaded in the alternative that the letter of undertaking is void as he had signed it under duress. He claimed that one Alan Tan had threatened him and his family with bodily harm if he did not sign the letter of undertaking at a meeting on 10 January 2004 held at the plaintiff’s site office at Margaret Drive. The plaintiff’s Ben Sim and David Sim were also present at the meeting. He particularised the threats allegedly uttered by Alan Tan in Paragraph 9 of his defence. 4 The plaintiff replied that they had carried out most of the work under the project and that the defendant acted as manager for the project. The defendant was liaising with the main contractor Antara Koh Pte Ltd (“Antara Koh”) for payment and other administrative matters. The plaintiff also denied that they owe DTG the sum of $180,000 or that they have received any invoice from DTG. 5 They claimed that Ben Sim and Sim Chong Keow had demanded payment from the defendant as director of DTG over the telephone. The plaintiff had by allowing the defendant to pay the sum over one and a half years and forgoing all profits from the project given valuable consideration for the defendant’s undertaking. They further denied that there was any duress on the defendant to execute the letter of undertaking. They claimed that another director of DTG, Pang Yap Fatt, DW2 who is also know as Alan Pang (“Alan Pang”) was also present at the meeting. The defendant only made a police report with regard to the alleged threats after proceedings were commenced. The police had investigated the allegations and no action was taken. Apart from the Aljunied project, the parties had also agreed for monies owing by DTG on other projects to be settled in instalments and payments on these instalments were honoured up till the point the plaintiff commenced the present suit. 6 At the end of the two-day trial, counsel requested time to prepare written submissions. After considering the evidence and the written submissions, I entered judgement for the plaintiff against the defendant in the sum of $160,000; interest at the rate of 6% per annum on $80,000 from the date of issue of the writ to judgment and interest at the rate of 5.33% on the balance sum of $80,000 from 4 October 2006 to judgment. I also awarded the plaintiff costs fixed at $18,000 with reasonable disbursements to be taxed, if not agreed. Dissatisfied with my decision, the defendant has appealed against the whole of my decision. I now give my reasons for the decision. The plaintiff’s case The evidence of Sim Chong Bing, PW1 7 Sim Chong Bing, PW1 who is also known as Ben Sim, is one of the directors of the plaintiff. His evidence was that he had on behalf of the plaintiff and the defendant on behalf of DTG entered into an oral sub-contract in July 2002 whereby the plaintiff supplied machinery, manpower and money for the Aljunied project while the defendant acted as the manager of the project liaising with the main contractor and dealing with other administrative matters. The profits were to be shared between the plaintiff and DTG. PW1 stated that the contract was for $195,000. However there were additional and variation works and by the time the plaintiff completed the works in May 2003, the amount due from DTG to the plaintiff was $281,440.56. DTG had paid a sum of $103,183.35, leaving a balance of $178,257.56. This figure is reflected in the summary of accounts in his affidavit of evidence-in-chief at BA 11 and the documentary evidence in support of the expenses for materials and manpower incurred by the plaintiff are at BA 12 to BA 608. BA 11 was prepared by the plaintiff’s accounts staff upon completion of the Aljunied project. 8 PW1’s evidence was that the details of the amount were always available to the defendant but he did not want to check or verify them as he said that he trusted the plaintiff. He stated under cross-examination that he had a copy of the statement at BA 11 at the meeting which took place on 10 January 2004 at the plaintiff’s site office at Margaret Drive. The plaintiff had made oral demands for the sum from DTG but DTG claimed that they were unable to pay the plaintiff as they had not been paid by the main contractor. The plaintiff did not make written demands to the defendant of DTG as the parties were known to each other and the defendant’s co-director Alan Pang was also trying to mediate and resolve the matter amicably. The plaintiff contemplated legal proceedings against DTG thereafter as they had borne the costs of the project upfront and PW1 informed the defendant accordingly sometime between November and December 2004. Alan Pang then arranged a meeting between the parties in order to settle the matter on 10 January 2004. His evidence in re-examination was that he was not aware that Alan Pang was a co-director of DTG as the defendant was running DTG at the time. 9 At the meeting the defendant proposed that in consideration of the plaintiff giving DTG time to discharge the debt and continue as a going concern, he would agree to be personally liable for the payment of the sum of $160,000, which shall be payable in 2 equal instalments of $80,000 each on 9 January 2005 and 9 July 2005 respectively. The plaintiff agreed to the proposal and PW1 prepared the first draft of the letter of undertaking. The defendant signed the letter of undertaking at PBD 37 after he had amended it in his own handwriting at PBD38. In breach of the agreement, the defendant has failed to make any payment to the plaintiff . 10 PW1 denied that the plaintiff owed DTG a sum of $180,000 for the lease of concrete blocks. He claimed that there was no agreement for the lease, hire or rental from DTG of the concrete blocks. The blocks were in fact loaned from the main contractor Antara Koh through the defendant and it was agreed that there shall be no payment on the condition that the blocks be returned after use and the plaintiff would dispose of all damaged blocks at their own cost. PW1 claimed that the plaintiff had also agreed with the defendant for DTG to pay the plaintiff various sums that were owing by DTG in relation to other projects by instalments at the same meeting on 10 January 2003. The payments stopped when the plaintiff issued their letter of demand to the defendant before the commencement of the present suit. PW1’s evidence was that the price for the lease of such blocks would have been at most $5,000. He has attached the various quotations for the rental of such blocks at exhibit SCB-4 of his affidavit at BA 613 to BA 618 to support his contention. 11 PW1 denied that any threats were made to the defendant at the meeting on 10 January 2003. He pointed out that the defendant only made a police report more than a year after the alleged event and after the plaintiff had commenced the present action. The police have investigated the defendant’s allegations and no action was taken on the matter. The evidence of Tan Yew Meng, PW2 12 Tan Yew Meng, PW2 who is also known as Alan Tan, is also a director of the plaintiff. He claimed that he was a sleeping director and was called by PW1 to attend a meeting at the plaintiff’s site office at Margaret Drive on 10 January 2004. The defendant was present and the parties discussed about some outstanding payments due to the plaintiff. Apart from PW1, Alan Pang and David Sim were also present at the meeting. The meeting went smoothly and the letter of undertaking was altered before it was signed. His evidence was that the defendant was willing to undertake to settle a sum that was owing to the plaintiff. He denied that he had threatened the defendant and his family at the meeting. After he received a letter from the defendant’s lawyers on the allegations, he made a police report. He subsequently gave a statement to the police on the defendant’s allegations but no police action was taken. The evidence of Tan Choon Ngee Albert, PW3 13 Tan Choon Ngee Albert, PW3 was formerly employed as a logistics supervisor by the plaintiff. He was also tasked to collect monies owing to the plaintiff. It was his evidence that he collected monies amounting to about $10,000 from the defendant which DTG owed to the plaintiff from March 2004 to April 2005. The sums due were for work done by the plaintiff for projects other than the Aljunied project. He had collected about half of the sums due when the defendant stopped making the payments. The payments were recorded in the document at PBD35 and PBD 36. The defendant had told him that he stopped making further payments because the plaintiff had commenced action against him. The defendant’s case The evidence of Choong Choon Yean, DW1 14 The defendant Choong Choon Yean, DW1 was a Director of DTG from 2000 to 2006. He was involved in the Aljunied project in 2003 as the project manager. He claimed that the project was a combination of a partnership or contract between the plaintiff and the defendant. He stated that the plaintiff have failed to show that DTG owed them a sum of $160,000 although they have been paid a sum of $110,000. He further claimed that the plaintiff owed DTG a sum of $180,000, being the cost for rental of concrete blocks at $90,000 per month for a period of two months. He claimed to have sent the plaintiff the invoices for the sums and several letters of demand between September 2003 and November 2004 and on 20 May 2006. According to him, the plaintiff have never disputed the said invoices or correspondence from DTG. 15 He further claimed that he was forced to sign the letter of undertaking at PBD 37 on 10 January 2004 as he feared that he and his family would be harmed. He claimed that Alan Tan had made threats of bodily harm to him and his family in the presence of Ben Sim and David Sim. He felt at the time that the matter was beyond his control and that he had to sign. He had signed the undertaking even though the plaintiff have not provided any supporting documents to show how the figure of $160,000 was derived. He claimed that the witness named in the letter of undertaking Alan Pang was not present when he was forced to sign the undertaking. His evidence was that the letter of undertaking was taken out of the room after it was signed. He had called Alan Pang over the telephone and shared with him his experience while he was driving home. He also told his wife about the matter when he reached home. He claimed that he subsequently wrote a letter dated 15 January 2004 to the plaintiff to state that he had signed the undertaking under duress. He made a police report on 3 May 2005 with regard to the alleged threats that were made by Alan Tan in order to force him to sign the undertaking. The evidence of Pang Yap Fatt, DW2 16 Pang Yap Fatt, DW2 is also known as Alan Pang and is a director of DTG. He has been a director of the company since 2002. He stated in his affidavit of evidence-in-chief that DTG did not owe any sum of money to the plaintiff for the Aljunied project and that the plaintiff in fact owed the defendant a sum of money for the lease of concrete blocks and defective works for the project and other businesses. He claimed that the concrete blocks belonged to Antara Koh and that the blocks have been returned to them. However, he did not adduce any documentary evidence in support of his claim. He was also unable to state the amount the he claimed was owed by the plaintiff to DTG. He merely estimated the amount to be about $100,000 to $200,000. He eventually admitted that since he was not involved in the Aljunied project, he did not know if the plaintiff owed DTG any money. His statement was based solely on what the defendant had told him. He was also not aware of the claims for additional and variation works made by the plaintiff. He was of the view that there would be variations in all contracts. The contractor would just ask the sub-contractor to put up the claim for variation and additional works to submit to the client. He claimed that DTG’s account with Antara Koh for the Aljunied project had not been finalized although the project was completed 5 years ago. 17 He stated in paragraph 7 of his affidavit of evidence-in-chief that he did not witness the signing of the letter of undertaking dated 10 January 2004 by the defendant. He claimed that the letter of undertaking was passed to him for endorsement by Ben Sim, PW1 after it had been signed by the defendant. He also claimed that he had signed the letter of undertaking on the understanding that it would not impact the business between the plaintiff and the defendant. Under cross-examination, he said that he was at the Margaret Drive site office at the time as he was also using it as his site office at the time. He could not remember the time the meeting between the plaintiff’s representatives and the defendant had taken place although he was sure that it was during the day. He admitted that he had read the letter of undertaking and was aware of its contents before he signed it but was not aware of the nature of the discussion that led to it being signed. He claimed that he did not ask to discuss the matter with the defendant before he signed as a witness. He said that the defendant called him after that and told him the circumstances under which he had signed the letter of undertaking. However he did not advise the defendant to make a police report as both parties were his friends. He admitted that his relationship with the plaintiff had soured since January 2004 as his other investments with them had failed. The Issues 18 In order to determine whether the letter of undertaking dated 10 January 2004 signed by the defendant is enforceable by the plaintiff the court had to determine the following issues: a) Was there consideration for the defendant’s undertaking to pay the plaintiff the sum of $160,000; and b) Did the defendant sign the letter of undertaking under duress. My Findings a) Was there consideration for the defendant’s undertaking to pay the plaintiff the sum of $160,000 19 It was not disputed that the plaintiff had agreed with the defendant on behalf of DTG for the plaintiff to carry out the work on the Aljunied project. The defendant would liaise with the main contractor Antara Koh on behalf of DTG and the plaintiff would do the work and pay the expenses for the project. The plaintiff claimed that they would then claim the amount from the defendant while the defendant claimed that the agreement was that the defendant would manage the project and the plaintiff and DTG would share the profits for the project. The plaintiff claimed that the initial contract was for $195,000 and the total value of works done by the plaintiff, inclusive of additional and variation works amounted to $281,440.56. DTG had paid the plaintiff a total of $103,183.35 leaving a balance of $178,257.56 upon the completion of the project by the plaintiff. The plaintiff had also paid all of DTG’s suppliers for the project in full. Despite verbal demands made to the defendant, DTG failed to pay the balance due to the plaintiff. 20 According to PW1, the defendant claimed that DTG could not pay the plaintiff as Antara Koh had yet to make payment to DTG. Although the accounts were always available to the defendant, the defendant had refused to verify them as he said that he trusted the plaintiff. Alan Pang, DW2 then arranged a meeting for the plaintiff and the defendant to settle the accounts for the project on 10 January 2004 at the plaintiff’s site office at Margaret Drive. PW1 alleged that the defendant had approached the plaintiff with the proposal that he would give a personal undertaking to pay the plaintiff a sum of $160,000 by two instalment of $80,000 which would be payable on 9 January 2005 and 9 July 2005 respectively. The settlement meant that the plaintiff would not take recovery action against DTG, forgo their share of the profit for the project and allow the defendant time to pay the outstanding balance due to the plaintiff. It would also allow DTG an opportunity to recoup outstanding amounts due to them and to continue with their on-going projects. 21 The plaintiff’s counsel submitted that by not taking any action against DTG in respect of the outstanding balance payable for the Aljunied project and allowing the defendant one and a half years to settle the debt, they had given consideration for the defendant’s promise to pay settle the debt on behalf of DTG. It is trite law that forbearance from taking legal action is valid consideration as is the giving of time to settle a debt. In this regard, I refer to Lush J’s formulation of the definition of consideration in Currie v Misa (1875) LR 10 Exch 153, at page 162 as follows: “A valuable consideration, in the sense of the law, may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility, given, suffered, or undertaken by the other …” 22 It was the defendant’s case that there was no debt due from DTG to the plaintiff and that the plaintiff in fact owed DTG a sum of $180,000 for the lease of concrete blocks for testing for a period of two months in February and March 2003. 23 I noted that the defendant did not dispute that the works for the Aljunied project were carried out by the plaintiff. It was only upon clarification by the court that the defendant alleged that the plaintiff had only done about 60 per cent of the works and that he had engaged other contractors to do the remaining works. However, he was unable to provide the name of any such contractor. The defendant merely stated that the plaintiff have not issued any invoices to DTG and have failed to show how the figure of $160,000 was arrived at. However, PW1 had attached the statement at BA 11 and documents evidencing the expenses, invoices and salaries which the plaintiff claimed they had incurred on behalf of DTG in respect of the project in his affidavit. The defendant did not challenge the documents in support of the alleged payments. He had also submitted claims for additional and variation works for the project on behalf of DTG to Antara Koh at PBD 42 to PBD 46 for more than $215,000, which far exceeded the plaintiff’s claim for the said works from DTG. The defendant has also not disclosed any documents in relation to DTG’s original sub-contract with Antara Koh or the payments that have been received by DTG in relation to the works done by the plaintiff or an account of the plaintiff’s share of the profits for the project which he alleged was agreed to between the plaintiff and DTG. He merely made bare allegations that the accounts for the project have not been settled and that there were claims for defective works that were still pending. He did not produce any documents to support his allegations. As pointed out by the plaintiff’s counsel, the defendant also did not categorically deny that verbal demands have been made by PW1 to him for DTG to settle the outstanding balance due to the plaintiff for the project. 24 The plaintiff’s counsel has submitted that the defendant’s claim that the plaintiff owed DTG money is a total fabrication. The defendant had by his letter of demand dated 20 February 2003 at D3 - page 1, allegedly attached an invoice no. 230203-1 for $90,000 that is dated 23 February 2003, i.e., after the date of the cover letter, for one month’s lease of concrete blocks. There is a second invoice no. 240303-2 dated 24 March 2003 at D3 - page 2, for $90,000 for a second month’s lease. Subsequent statements showed that the sum of $180,000 was outstanding. A fresh invoice no. 150204 was issued on 15 February 2004 at D3 - page 12 and another invoice no. 150804 on 15 June 2004 at D3 - page 13. Several other invoices for the same amount were issued at D3 - pages 14, 17, 18 and 19 respectively. On 20 May 2006, the defendant purported to impose a penalty fee of $25,000 without stating the basis for the fee at D3 - page 20. This was incorporated in a fresh invoice no. 121006 dated 12 October 2006 at D3 - page 21. The defendant has also disclosed demand letters for the alleged outstanding sum dated 10 September 2003, 11 November 2003, 15 January 2004, 18 January 2004, 15 October 2003, 20 November 2004 and 20 May 2006 at D3 - pages 7, 9, 10, 11, 15, 16 and 20 respectively. 25 The plaintiff have disputed receipt of all the invoices and letters at D3 - pages 1 to 21. I noted that the defendant had in his letter dated 10 June 2005 at PBD 40, which the plaintiff acknowledged receipt of, claimed a sum of $192,000 for three months’ use of the concrete blocks. He had also referred to three months’ use of the concrete blocks in his earlier letter of 24 January 2005 at PBD 41. These two letters were sent to the plaintiff’s address at Blk 80 Geylang Bahru #01-2640, unlike the invoices and letter at D3 - pages 17 to 21, which were allegedly sent to the plaintiff’s address at 61 Kaki Bukit Avenue #02-09, Singapore 417943. The plaintiff’s counsel had in cross-examination put to the defendant that the plaintiff were no longer operating at the said address from mid 2005 until February 2007. The defendant’s alleged claim for 3 months’ use of the concrete blocks in the two letters at PBD 40 and PBD 41 is clearly inconsistent with the documents at D3. 26 The plaintiff have also disputed that it would have cost $90,000 for the lease of the concrete blocks for one month and PW1 has attached quotations at BA 614 to BA 619 showing that the cost for the lease of more than two hundred blocks would have been much lower. The defendant has in his letter dated 24 January 2005 at PBD 41 stated that the loan was for only eighty to one hundred blocks. I also noted that none of the invoices or letters in D3- pages 1 to 21 was acknowledged by the plaintiff. The documents at D3 - pages 1 to 9 were dated before the alleged threats made by Alan Tan, PW2 on 10 January 2004 and there should have been no reason for the defendant not to deliver them to the plaintiff’s representative personally and obtain an acknowledgement of receipt. No evidence was adduced as to how these disputed documents were delivered. Under cross-examination, the defendant claimed that the documents were delivered by him at the plaintiff’s office. When it was put to him that the plaintiff were not operating at the Kaki Bukit address from mid 2005, he claimed that he had merely placed the letters in the plaintiff’s letter box. 27 After considering the evidence, I was satisfied on a balance of probabilities that there was a debt owing from DTG to the plaintiff. I was also not satisfied that the plaintiff owed DTG the sum of $180,000 or any other sum, for the lease of the concrete blocks. Although it was not stated in the letter of undertaking that the consideration for the defendant’s undertaking to pay the plaintiff the sum of $160,000 was forbearance to sue DTG, I took into consideration the fact that the undertaking was drafted by the parties without the benefit of legal advice. The giving of the undertaking by the defendant and granting of time to the defendant to settle the sum of $160,000 for the works, including the additional and variation works must mean that the plaintiff would not be able to proceed with their claim against DTG in the meantime. The plaintiff’s claim was also capped at $160,000 although the defendant had made a claim for a much larger sum on behalf of DTG. I agreed with the plaintiff’s counsel that the plaintiff had given valid and sufficient consideration for the defendant’s undertaking dated 10 January 2004. Did the defendant sign the letter of undertaking under duress 28 The defendant has alleged that he had signed the letter of undertaking under duress as he was alone at the meeting on 10 January 2003 with three representatives from the plaintiff company namely Ben Sim, PW1, David Sim and Alan Tan, PW2. He alleged that Alan Tan had threatened him and is family with bodily harm if he did not agree to sign the undertaking. He has particularised the alleged threats in paragraph 9 of his defence at BP 11 that Alan Tan had threatened him in hokkien that if he were to report the matter to the police he would be visited by ‘good brothers’, which the defendant understood to mean ‘gangsters’ and that his family would be ‘inconvenienced’. However, he did not even state any details of the alleged threats in his affidavit of evidence-in-chief at BA 644 to BA 647 nor were the alleged threats put to PW2 specifically by the defendant’s counsel in cross-examination. 29 The defendant claimed that he did not make any police report in relation to the threats that were made by Alan Tan to induce him to sign the letter of undertaking as he feared for his own safety as well as that of his family. Yet he allegedly wrote two letters to the plaintiff following the incident on 15 January 2004 and again three days later on 18 January 2004 at BA 653 and BA 658 objecting to the validity of the undertaking on the basis that he had signed it under duress. He initially said that he had sent them to the plaintiff by fax and by hand but later claimed that he had merely dropped them into the letter box at the plaintiff’s office. 30 I noted that when the plaintiff’s solicitors issued their letter of demand pursuant to the letter of undertaking on 2 February 2005, the defendant’s solicitors did not raise any issue with regard to the validity of the undertaking in their subsequent correspondence. The defendant claimed under cross-examination that he had given instructions to his former solicitors on his defence of duress at the time. However, the issue was only first raised with the plaintiff in the defence filed on 27 May 2005. It then transpired that the defendant had made a police report three weeks earlier on 3 May 2005 at exhibit D1. This report was in fact made by the defendant about sixteen months after the alleged incident. PW2 has testified that he was called to give a statement to the police for their investigation on the report but no action was taken against him by the police. 31 Both the defendant and Alan Pang claimed that Alan Pang was not present in the room when the letter of undertaking was signed by the parties, although Alan Pang had endorsed his signature on the undertaking as a witness. The defendant stated that he met DW2 when he arrived at the Margaret Drive site office and was aware that DW2 was around. DW2 on the other hand claimed that he did not know that the defendant was present at the site office until he was asked to sign as witness on the letter of undertaking. DW2 was also a director and shareholder of DTG but he claimed that he was not involved in the Aljunied project at all. PW1’s evidence was that he was not aware that DW2 was a director of DTG at the time. The defendant claimed that the undertaking was taken out of the room after he signed it and DW2 said that PW1 had brought the undertaking for him to sign after both parties had signed. Yet, DW2 claimed that it did not occur to him to check with the defendant that he had in fact agreed to be liable to the plaintiff for the sum of $160,000 for the Aljunied project. This was clearly not credible as both the defendant and DW2 claimed that the plaintiff owed DTG a sum of about $180,000 for the lease of concrete blocks since March 2003. I have made my findings with regard to the alleged sum that was owed by the plaintiff to DTG above. 32 PW1’s oral evidence was that he had prepared the draft letter of undertaking at PBD 38 and that the defendant had made the handwritten amendments on the documents. When confronted with the document at PBD 38, the defendant claimed for the first time, that he was also forced to make the handwritten amendments which showed that there were additional and variation works for the Aljunied project. I am of the view that if the plaintiff had indeed wanted to force the defendant to sign the letter of undertaking, PW1 would have included the reference to the additional and variation works in the draft at PBD 38. It would be too fanciful for the plaintiff to make the defendant pen the amendments at PBD 38 and to get a witness who was not present to endorse his signature on the undertaking at PBD 37. 33 Under cross-examination, the defendant claimed for the first time that he had coincidentally called DW2, the alleged witness who was not present and whom he could not have known at the time to have been asked to sign as a witness on the undertaking, on the telephone as he was driving home after he left the meeting on 10 January 2004. According to him, the letter of undertaking was taken out of the room after he had signed it. He said that he had shared with DW2 the circumstances under which he had signed the undertaking but he could not remember if DW2 had given him any advice. Under further cross-examination, he claimed that he could not recall if he had called and told DW2 about the alleged threats on the day itself or one day later. DW2 did not advise him to make a police report. 34 DW2 was equally vague about when the defendant had called and told him about the alleged threats made by PW2. He initially stated that it was after the meeting but subsequently said that it might have been a few days later. He said that he did not advise the defendant to make a police report as both parties were his friends. Under cross-examination, he stated that he could not remember the time when the meeting took place but was sure that it was during the day and not at night. In answer to the court’s questions in clarification, he said that he did not see the defendant and only realised that there was a meeting at the site office when he was asked to sign the undertaking as witness. He claimed that he did not raise any queries when he was asked to sign the undertaking and did not call the defendant to verify his agreement to the terms. DW2 is a rather shrewd and experienced businessman and would surely not have put his signature as witness on the letter undertaking if he did not understand or agree to its contents. The defendant had stated in cross-examination that he met DW2 when he arrived at the site office. DW2 subsequently changed his answer and said that he knew that there was a discussion but was not aware of the nature of the discussion until he saw the letter of undertaking. However, at one point during cross-examination, he said that he didn’t wish to be present during the meeting as he felt sandwiched between the two parties who are his friends. His testimony in this regard was inconsistent and I am of the view that DW2’s evidence was unreliable as a whole. DW2 also had an interest in the matter as it was the plaintiff’s case that a sum of $160,000 was due from DTG to the plaintiff for the Aljunied project and that was the basis for the defendant’s undertaking to the plaintiff. 35 The defendant also claimed that he told his wife about the incident when he reached home and his wife advised him to lodge a police report. However, he did not lodge the police report at D1 until he was advised to do so by his former solicitors. The defendant appeared to be confident and articulate. His alleged fear and uncertainty as to his course of action is not consistent with the image that he presented. 36 The plaintiff’s counsel has submitted that the defendant’s counsel has failed to put the defendant’s case with regard to the alleged threats made by PW2 to both PW1 and PW2 and in accordance with the rule in Brown v Dunn (1894) 6 R 67, must be taken to have accepted the denials in their evidence. I am in agreement that the defendant’s counsel has failed to put to PW2 the words alleged in the particulars in the defence and which the defendant has failed to attest to in his own testimony. The defendant’s counsel has also not replied at all to the plaintiff’s submissions. 37 The defendant did not deny that he signed the letter of undertaking at PBD 37. As he has alleged that he had signed the undertaking under duress, the burden of proof was on him. I am of the view that he has failed to prove that the letter of undertaking is invalid for the reason that it was not executed voluntarily. Conclusion 38 In view of my findings, I entered judgment for the plaintiff against the defendant in the sum of $160,000 with interest at the rate of 6% per annum on $80,000 from the date of issue of the writ to judgment and interest at the rate of 5.33% on the balance sum of $80,000 from 4 October 2006 to judgment. As the trial proceeded for two days with written submissions by counsel, I also awarded the plaintiff costs fixed at $18,000 with reasonable disbursements to be taxed, if not agreed. Judgment entered for the plaintiff against the defendant
