Information
Suit No: MC 5102/2005, RA 141/2009, RAS 128/2009
Decision Date: 09 Nov 2009
Court: Magistrates Court
Coram: Foo Tuat Yien
Counsel: Vijay Kumar Rai (Arbiters’ Inc Law Corporation) counsel for the plaintiff, Kenny Khoo (Ascentsia Law Corporation) counsel for the defendant
Up
Judgment
9 November 2009
District Judge Foo Tuat Yien:
Introduction
1. The Plaintiff has appealed against my decisions on 28 September and 7 October 2009 affirming the decision of the learned Deputy Registrar on the substantive merits of the case and her order for costs. The Deputy Registrar had assessed damages at $5, 985 for replacement of missing accessories in connection with a sale of three cars by the Defendant to the Plaintiff; interest at the rate of 6% from the date of writ, that is 4 March 2005 till date of judgment; costs of $5,500 plus reasonable disbursements up to 22 January 2008 to be agreed or taxed to be paid by the Defendant to the Plaintiff; and costs of $2,500 plus reasonable disbursements from 23 January 2009 to 8 July 2009 being the date of the Deputy Registrar’s order, to be agreed or taxed to be paid by the Plaintiff to the Defendant.
2 The Plaintiff has appealed to the High Court for damages in the sum of $20,000 or such other reasonable sum for loss of profit, the sum of $30,000 or such other reasonable sum for the dimunition in value[note: 1] and the sum of RB2232 or such other reasonable sum being the storage costs of the three cars at the Port Kelang warehouse in Malaysia.
Facts
3. The Plaintiff contracted with the Defendant in November 2004 to buy three Mercedes Benz cars, one E240 model and two 350SL models for $270,000. The Plaintiff intended to resell them through export. The Plaintiff’s action is for damages caused by the Defendant’s breach of their undertaking to provide certain missing items being one spare key and owner’s manual for one Mercedes Benz 350SL and a spare key for the other 350SL model before Friday 10 December 2004. It is not disputed that the Defendant failed to fulfil this undertaking.
4. The Plaintiff is a sole proprietorship trading as Tradelink Euroauto, a business dealing in motor vehicles. The Defendant is a trading company, whose principal business, according to a Company search, is said to be general contractors and building construction and general wholesale trade including importers and exporters. The Defendant had appointed another company, Exotic Motor Pte Ltd (hereinafter referred to as “Exotic”) as their marketing agent, who had advertised to sell the three cars at a “package deal”. These cars were shipped to Singapore at various times from December 2002 to March 2003.
5. The advertisement came to the attention of one Kevin Ng Seng Keong (hereinafter referred to as “Ng”), Managing Director of Benzline Auto Pte Ltd, a company dealing with the import and export of automobiles, parts and accessories for vehicles. Ng had, in his affidavit evidence, said that as his company was not keen on the deal, he passed the information to the Plaintiff’s export manager, one Albert Tey Chin Huat (hereinafter referred to as “Tey”).[note: 2] Thereafter in November 2004, Tey informed Ng that the Plaintiff had found a Malaysian buyer, who was prepared to pay $290,000, which Ng felt was a fair price for the open market in West Malaysia for the three car package.
6. Ng had, at Tey’s request, accompanied Tey, to inspect the three cars at the Keppel Distripark. On 10 November 2004, the Plaintiff paid a deposit of $45,000 towards the purchase of the cars[note: 3]. On 19 November 2004, Tey, accompanied by Ng, went to take delivery of the three cars. It was then that they found that a spare key and an owner’s manual for one 350SL model and one spare key for the other 350SL model were missing. At their insistence, the Defendant’s representative, one Tang Siu Tong (hereinafter referred to as “Tang”) signed an undertaking to provide these missing items within 3 weeks before 10 December 2004. Tey then concluded the deal by paying the balance $225,000.
7. Tey said in his affidavit evidence that he alerted the Malaysian buyer, Prestigious Autoworld Sdn Bhd (hereinafter referred to as “Prestigious”) on the missing items, before the Plaintiff sent their invoice for $290,000 dated 21 November 2004 for the sale of the three cars to Prestigious[note: 4]. Hence the Plaintiff had included in their invoice a payment term: “Full payment upon presentation of the original Bill of Lading and Manual/service books and spare keys”.
8. The three cars, which were shipped to Port Kelang on 24 November 2004 arrived on 26 November 2004. They were stored in a freight forwarder’s warehouse at the rate of RM5/- each for the three vehicles per day from 29 November 2004 to 28 January 2005[note: 5].
9. The Defendant failed to supply the missing items by 10 December 2004 and only tendered one spare set of keys for one of the Mercedes Benz 350SL on 7 February 2005. The Plaintiff’s pleaded case is that on 6 January 2005, Prestigious informed her that because they had not received the spare keys and manual and could not sell the cars and as the value of the cars had depreciated because the New Year 2005 had begun, they would like to cancel the order. The Plaintiff claims for the loss of the $20,000 profit on the deal with Prestigious. The Plaintiff says that when the spare keys and manual did not arrive by end December 2004, these cars, in the minds of potential buyers technically became a year older. When a date of registration in the new year is entered in the vehicle log book for hire-purchase or resale purposes, the value of the vehicles would drop drastically. The Defendant had put the Plaintiff to strict proof of the alleged contract with Prestigious as well as the alleged loss of $20,000 profit. The Defendant says that there was no breach of the Plaintiff’s agreement with Prestigious because there was no time specified in the contract for the missing items to be produced and that the Plaintiff had allowed Prestigious to back out of the deal.
10. The Plaintiff says that as the Approved Permits for import of cars into Malaysia would expire on 24 March 2005, they then mitigated their losses by selling the cars on 26 January 2005 for $240,000 to Falcon Speed Automobile Sdn Bhd (hereinafter referred to as “Falcon”), a Malaysian company in Kuala Lumpur. The Plaintiff claims a ”mitigational loss” of $30,000, this being the difference in the price of $270,000 paid by the Plaintiff to the Defendant and the sale price of $240,000 they received from Falcon. The Defendant had put the Plaintiff to strict proof of the alleged sale to Falcon and the alleged loss of $30,000.
11. The Deputy Registrar assessed damages of $5,985 to the Plaintiff, this being the costs claimed by the Plaintiff to replace the spare keys and manual. The replacement keys and manual were supplied by Ng’s company, Benzline Auto Pte Ltd as stated the company’s invoice dated 16th April 2005. The Deputy Registrar did not assess any damages for loss of profit or “mitigational loss”.
Witnesses
12. The Plaintiff’s witnesses were the Plaintiff herself (Belinda Lee Choon Cheng), Tey, the Plaintiff’s export manager, Ng, the Managing Director of Benzline Auto Pte Ltd, who had alerted the Plaintiff to the deal with the Defendant, Adam Ng Chin Leng, director of Prestigious, the Malaysian car buyer and one Robert Khan, a licensed motor vehicle appraiser. The Defendant’s sole witness was Tang, a director of Exotic, the Defendant’s marketing agent.
13. In assessing the evidence, I formed the view that the Plaintiff had failed to establish her claims. Ng was not the disinterested neutral witness that he sought to portray and there were material inconsistencies in the evidence of the Plaintiff’s witnesses, Tey, Ng and Adam Ng Chin Leng in relation to the alleged contract for sale of the cars to Prestigious for $290,000 and the gaps in the evidence of the Plaintiff and Tey in relation to the alleged contract for sale of the cars to Falcon for $240,000.
Further Facts relevant to the case
14. On 26 January 2005, the Plaintiff’s then lawyer, had written to the Defendant to say that when the 3 cars arrived in Port Kelang, Prestigious had discovered to their dismay, that there were no spare keys and no owner’s manuals for the 2 Mercedes Benz S350 SLs and therefore rejected the whole package deal[note: 6]. The cars had arrived in Port Kelang on 26 November 2004. The content of this letter is a contradiction of the Plaintiff’s pleaded case and Tey’s affidavit evidence that the Plaintiff through Tey had alerted Prestigious on the missing items before sending the invoice dated 21 November 2004 to Prestigious thus leading to the inclusion by the Plaintiff of the term that full payment was to be made by Prestigious only upon presentment of the original bill of lading and the manual/service books and spare keys[note: 7]. The contents of the letter are also inconsistent with the Plaintiff’s pleaded case that it was only on 6th January 2005, that Prestigious had sought to back out of the transaction after the Defendant had failed to supply the missing items by 10 December 2004[note: 8]. Tey’s statement that he had alerted Prestigious to the missing items before sending the invoice dated 21 November 2004 to Prestigious was contradicted by Adam, Ng Chin Leng, who confirmed in his oral evidence that although Prestigious received the faxed invoice on 21 November 2004, before the cars arrived at Port Kelang on 26 November 2004, he knew of the missing items only one or two days after the bill of lading was faxed to him on 24 November 2004[note: 9]. This is but one in a series of inconsistencies in the Plaintiff’s pleaded case, the affidavit evidence and the oral evidence of her witnesses.
Ng’s Evidence
15. Ng, the managing director of Benzline Auto Pte Ltd (one of the Plaintiff’s witnesses) had, in his affidavit evidence, tried to give the impression that he was a disinterested and neutral witness, as his company was not keen on buying the cars marketed by Exotic, that he had simply passed on the information on the deal to the Plaintiff[note: 10] and that he had been surprised when Tey later told him that the real vendor of the cars was the Defendant and not Exotic[note: 11].
16. However a letter on the Defendant’s letterhead addressed to Benzline Auto Pte dated 5 November 2004 and marked for the attention of Ng as well as a pro-forma invoice dated the same day and addressed to Benzline Euro Auto Pte Ltd, exhibited in the Plaintiff’s bundle of documents (hereinafter referred to as “PB”) at PB 18 and PB 19, show that Ng had inspected the cars on 5 November 2004 and signed a pro-forma invoice the same day. The letter goes on to say that Ng thereafter instructed the Defendant to change the name of the addressee on the invoice to Benzline Euro Auto Ltd, a company, which Ng in his oral evidence said was owned by Tey[note: 12]. Tang, Exotic’s director, said in his affidavit and oral evidence that Ng had initially expressed interest in the purchase of the cars and negotiated the price of $270,000[note: 13]. Ng admitted in his oral evidence that the pro-forma invoice of 5 November 2004 formed part of the transaction for sale of the three cars[note: 14]. It is clear that Ng was very much involved in the transaction and must have known that he was also dealing with the Defendant and not just Exotic.
17. Ng said in his oral evidence that he was sourcing for cars for Tey. Unlike other cases, where his company, Benzline Auto Pte Ltd, would generally charge a commission, his company did not charge commission for this transaction involving the Plaintiff. As the amount was large, he asked Tey to buy direct[note: 15]. I am unable to accept this evidence in light of the documents referred to in paragraph 16, which shows that Ng was very much involved in the transaction. The documents belie Ng’s claim that he had simply passed on information on the deal to Tey without expectation of an economic return. Ng had also inspected the cars with Tey on the first occasion before Tey paid the deposit and again when Tey went to collect the cars on 19 November 2004.
18. There were also material inconsistencies in the evidence relating to Prestigious given by Ng and Tey. In his affidavit evidence, Ng said that he did not know the identity of the Plaintiff’s two Malaysian buyers (that is Prestigious and Falcon), until after the Plaintiff had paid him the $5,985 for the replacement keys supplied by his company, Benzline Auto Pte Ltd. This would have been in late April 2005[note: 16]. However, in his oral evidence, Ng however said that he knew that Tey was going to sub-sell the cars to Prestigious when he went together with Tey on 19 November 2004 to inspect the cars[note: 17].
Issue of the Replacement cost of the missing keys relative to the Economic costs of foregoing the sale to Prestigious
19. The Plaintiff maintains that the two Mercedes Benz 350SLs were not saleable without the replacement spare keys. When the Defendant did not supply the missing spare keys for these two cars, Prestigious backed out of the deal on 6 January 2005. In Prestigious’s letter of 6 January 2005, they wrote:
“ Refer to the above three (3) units vehicle, we hereby inform your kindness that we would like to cancel the above order.
Reasons being:
1.) The above vehicles had devalued as they have become a year older in view of the year of manufacture;
2.) We have not received any manual/service book and spare key till to-date and thus causing us inconvenience when selling it.
Meanwhile please ignore the above-mentioned invoice.
Thank you for your cooperation and understanding. “
20. It must be noted that the tone adopted by Prestigious in their letter of 6 January 2005 was tentative to say the best. They did not allege breach of contract and they would seem to be appealing for the Plaintiff’s cooperation and understanding to agree to a cancellation of the invoice. Adam Ng Chin Leng in his oral evidence, said that Tey accepted the cancellation and did not ask for more time to provide the missing items[note: 18]. In the letter, Prestigious did not say that they could not sell the cars, rather that the lack of the spare keys and manual was causing them “inconvenience” when selling the cars. This does not square with Adam Ng Chin Leng’s oral evidence on 23 April 2008, where he said that all three cars had been pre-sold by Prestigious’ sales personnel. One Mr Yap Ghin Choy, had agreed to buy the two Mercedes Benz 350SLs while there was another buyer for the Mercedes Benz E240, whose identity he could not recall[note: 19]. He had lost Mr Yap as customer after the spare keys and manual did not arrive in time. If indeed that was the case, one would expect Prestigious’ letter of 6 January 2005 to refer specifically to these aborted deals to give Prestigious justification for not proceeding with the deal, instead of simply stating that the lack of the spare keys and manual was a mere matter of “inconvenience” in effecting a sale. The inconsistency in Prestigious letter of 6 January 2005 and Adam Ng Chin Leng’s oral evidence creates doubt as to his credibility as a witness.
21. Further, Adam Ng Chin Leng had, in his oral evidence, said that the approved permit to import the car would be expiring in middle February 2005 and that he had no choice but to stop, reject the deal and send his letter of 6 January 2005[note: 20]. This reason was not stated by him in Prestigious’ letter of 6 January 2005. The expiry date of the approved permit is also inconsistent with the expiry date of 24 March 2005 stated by Tey in his affidavit evidence[note: 21].
Advertised Price of the Cars for resale in Malaysia
22. Adam Ng Chin Leng, in his oral evidence, had said that he advertised the three cars for sale at RM400,000 for the Mercedes Benz E240 and at RM550,000 for each of the two Mercedes Benz S350 SL[note: 22]. He also said that Cycle and Carriage, the authorised car dealers for Mercedes Benz in Malaysia would charge about RM680,000 for a 350SL model, that was then a current or year old model[note: 23]. When asked why he did not opt to take delivery of the Mercedes Benz E240, where all items were complete and for which he had a buyer, he said that he could not take one car separately from the three cars. To do so, would mean that Tey would face problems disposing of the Mercedes Benz 350SLs[note: 24]. It was his evidence that Tey had insisted that the cars be sold as a packaged deal[note: 25]. Tey had, in his affidavit evidence, said that Prestigious paid RM120,000 to the Malaysian authorities for approved permits for all three cars[note: 26].
Costs of providing spare keys and a manual
23. It is relevant at this stage to consider the costs of providing a spare key for each of the Mercedes Benz S350 SL and a manual for one Mercedes Benz 350SL. Robert Khan, a licensed motor vehicles appraiser, was commissioned by the Plaintiff as their expert witness to value the three cars on two bases: i) with service manuals and spare key; and ii) without service manuals and spare key. In his report of 18 October 2007[note: 27], he estimated the price differential of the three cars with and without the listed items as $2,400. In his oral evidence, he said that he allowed a cost of $800 for each car for the spare key and the manual[note: 28], this being the cost of obtaining a replacement from the supplier.
24. The fact that the Plaintiff commissioned Robert Khan to value the three cars on the two bases suggests strongly that the Plaintiff was of the view that the cars could be sold and were saleable without a spare key and manual as the costs of securing the items was minor relative to the resale price of each of the three cars in Malaysia as estimated by Robert Khan.
25. The Plaintiff’s business letterhead says that her business specialised in Mercedes, BMW and Porsche cars. The business letterhead of Ng’s company, Benzline Auto Pte Ltd, states that the company is an importer/exporter of Mercedes vehicles, parts and accessories. Both Tey and Ng would therefore be expected to be conversant with the issue of replacement keys and manuals – indeed in his oral evidence, Ng said that he had been importing Mercedes Benzes since 1998 and that his company Benzline Auto Pte Ltd sold spare keys for such cars. Whilst his company did not keep spares, they could order them from the German export company. His company had supplied the replacement keys to the Plaintiff in late April 2005 for the three cars. Benzline Auto Pte Ltd’s invoice of 16 April 2004 showed that they charged the Plaintiff $750 apiece for a replacement key (both infrared and keyless-go cards) and $450 for a manual. This cost is more than but not entirely out of line with Robert Khan’s estimate of $800 per key and manual per car stated in paragraph 22.
26. I therefore did not accept the Plaintiff’s contention that the cars were not saleable without a spare key and/or manual. One wonders why the issue of a missing spare key for each the two Mercedes Benz 350SL and one missing manual for one of them should pose such difficulty in this case to Tey, where the Plaintiff specialised in the Mercedes Benz cars and Ng, whose company, Benzline Auto Pte Ltd, was an importer/exporter of Mercedes Benz car, part and accessories, that also supplied spare keys. Tey had also said in his oral evidence that because he was in the trade, he knew the procedure for replacing lost keys[note: 29]. It would also seem from Adam Ng Chin Leng’s evidence, that there was prospect of good profits upon the resale of such cars in the Malaysian market, even assuming a reduction in Adam Ng Chin Leng’s advertised sale price of the cars (as stated in paragraph 23) after factoring a negotiated price below the advertised price and deductions for the cost of approved permits and costs of sales.
27. In the Defendant’s letter of 7 February 2005 to the Plaintiff’s then lawyer, the Defendant had offered to deliver a spare key and manual for one Mercedes Benz 350SL and said that they had been trying to contact Tey to inform him that the Plaintiff would have to make a police report to apply to the manufacturer in Germany for a replacement key[note: 30]. Although Tey, in his oral evidence, said that a police report was not necessary, he eventually made a police report on 14 March 2005[note: 31]. The Plaintiff secured their own replacement keys and manual through the services of Ng’s two companies, Benzline Auto Pte Ltd and Benzsolution Pte Ltd in April 2005 for a charge of $5,985. As for the spare key and manual mentioned in the Defendant’s letter of 7 February 2005, the Defendants say in their Statement of Claim that the Plaintiff had refused to take delivery of those items since the commencement of the action on 4 March 2005[note: 32]. This was not denied by the Plaintiff.
The Plaintiff’s claim for loss of anticipated profit of $20,000 or such other reasonable sum arising from the alleged aborted resale agreement with Prestigious for $290,000
28. I found that the Plaintiff had failed to establish her case that the Defendant’s failure to meet their undertaking of 19 November 2004, to produce: i) one spare key and manual for one Mercedes Benz 350 SL; and ii) one spare key for the remaining Mercedes Benz 350SL by 10 December 2004 had caused the Plaintiff a lost profit of $20,000. There were material inconsistencies in the evidence of the Plaintiff’s witnesses, Tey, Ng and Adam Ng Chin Leng.
The Plaintiff’s claim for “mitigational loss” of $30,000 or such other reasonable sum arising from the alleged resale agreement with Falcoln for $240,000.
29. The Plaintiff claims that after Prestigious backed out of the deal to buy the cars, the Plaintiff sold the cars to Falcon for $240,000 and incurred a $30,000 loss. They claim damages of $30,000. Apart from producing a sales invoice dated 26 January 2005, that bore the signatures of the Plaintiff and an unidentified person for Falcon (PB 46), the Plaintiff did not provide any evidence of the sale at an alleged loss of $30,000. The Defendant had put the Plaintiff to strict proof of her claim.
30. The Plaintiff, Belinda Lee had said in her oral evidence on 23 January 2008, that the Plaintiff had a long working relationship with Falcon[note: 33]. Tey said, without more, that a representative from Falcon had not been called to give evidence because Falcon’s representative was angry because two of cars had subsequently been stolen. No elaboration was given on this. Whilst the Plaintiff in her oral evidence had indicated that Falcon had paid through “TTs” or electronic transfer, no evidence was proferred on this by the Plaintiff or at subsequent hearings on 13 February and 23 April 2008, when Tey gave evidence for the Plaintiff[note: 34]. It was Tey’s oral evidence that the Falcon had paid the Plaintiff in 3 instalments, twice in February 2005 and lastly on a later date he could not exactly recall[note: 35]. Tey said that they did not have the original documents as they had been given to their then lawyer. The Plaintiff did not seek to proffer other evidence of the alleged sale of the cars to Falcon for $240,000 in the form of, for example, their internal accounting, bank or other records or that they had tried to get from Falcon evidence of monies paid by Falcon to the Plaintiff.
31. I was of the view that the Plaintiff had failed to prove her claim to “mitigational loss” of $30,000.
Other Bases for Claim for “mitigational loss”
32. Counsel for the Plaintiff sought to argue that if the Plaintiff was not successful in her claim for “mitigational loss” of $30,000, she was entitled to claim loss arising from dimunition in value on two bases: i) depreciation loss of $7,500 per month from 19 November 2004 (when the Plaintiff bought the cars from the Defendant) and 26 January 2005 (when the Plaintiff allegedly sold the cars to Falcon) computed based on an alleged “discount” of $150, 000, being the difference between the original sale price of $420,000 paid by the Defendant and the sale price of $270,000 charged to the Plaintiff, spread over 20 months; or ii) loss based on Robert Khan’s valuation of the cars as at 19 November 2004 and as at 26 January 2005 yielding a figure of $5,300. I am unable to accept this argument. The Plaintiff’s case is that the cars were sold to Falcon at a loss of $30,000. That being the case, they bear the burden of proving that loss. It cannot be assumed that the cars might not have been sold for a profit. It is not open to the Plaintiff to seek damages on these two proposed alternative measures of dimunition in value.
The Plaintiff’s claim for RM2232 or such other reasonable sum being the storage charges.
33. In the Statement of Claim, the Plaintiff pleads for RM915 being the storage charges for the three cars at the freight forwarder’s warehouse at Port Kelang from 29 November 2004 to 28 January 2005 at the rate of RM5/- per car per day[note: 36]. This amount and the basis of the claim were repeated in the affidavit evidence of the Plaintiff and Tey[note: 37]. I affirmed the decision of the Deputy Registrar in not allowing this claim for costs of storage as I found that the Plaintiff had failed to prove their case for loss of profits and mitigational loss attendant upon the alleged sale to Prestigious and to Falcon. The Plaintiff’s appeal for costs of storage of the cars at RM2232 is also contrary to her own pleaded claim of RM915.
Damages of $5,985 assessed by the Deputy Registrar
34. The Deputy Registrar had assessed damages of $5,985 (inclusive of GST) to the Plaintiff, being the sum that was said to have been paid by the Plaintiff to Ng’s company, Benzline Auto Pte Ltd for supply of 2 keyless-go keycards and one key for each of the two Mercedes Benz 350SLs[note: 38]. Although the one owner’s manual was not mentioned, the sum included the replacement cost for one manual. This sum had not been specifically pleaded. At the hearing before me, the Defendant’s counsel objected and asked for the sum to be reduced because the sum as evidenced by Benzline Auto Pte Ltd’s invoice dated 16 April 2005[note: 39], was not only for the replacement of the two missing spare keys and owner’s manual, but included also the provision of two additional keyless-go keycards for each of the Mercedes Benz 350SL at $750 per key (total $3,000) and an infrared key for the Mercedes Benz E240 for $750, which latter items were not included in the Defendant’s undertaking of 19 November 2004. I decided to let the Deputy Registrar’s order stand despite the over-award of $3,937.50 (inclusive of GST at 5%) taking into account that the Defendant had not appealed against the Deputy Registrar’s order.
Costs ordered by the Deputy Registrar
35. The Deputy Registrar had ordered costs of $5,500 plus reasonable disbursements up to 22 January 2008 to be agreed or taxed to be paid by the Defendant to the Plaintiff; and costs of $2,500 plus reasonable disbursements from 23 January 2009 to 8 July 2009 being the date of the Deputy Registrar’s order, to be agreed or taxed to be paid by the Plaintiff to the Defendant. This she did because of the terms of a letter of offer dated 22 January 2008 by the Defendant offering to settle the action as follows:
a) our clients will pay your clients the sum of $8,000 within ten (10) days of acceptance of this offer;
b) our clients will contribute 25% of your client’s costs to be agreed or taxed ; and
c) upon payment, your clients will file and serve the notice of discontinuance.
36. Counsel for the Plaintiff stated that the judgement sum of $5,985 with interest from 4 March 2005 to 24 June 2009 for 1574 days at 6% pa at $1,548.56 would be $7,533.56. He submitted that the Plaintiff’s costs up to 22 January 2008 plus the award by the Deputy Registrar below would have exceeded the terms of this letter of 22 January 2008, which is $8,000 (including interest) and 25% costs to be agreed or taxed.
37. In view of Order 22A Rule 9(5), I ordered the costs order of the Deputy Registrar below to stand. The Deputy Registrar had conduct of this case to assess damages over 4 full days on 23 January, 13 February, 23 April and 14 October 2008. Her decision on costs would have been made based on her observation of the conduct of the hearing and the issues raised. As I affirmed her decision on the substantive merits of the case, there was no reason for me to disturb her order for costs, which would have been made by her after due consideration of the Defendant’s letter of 22 January 2008.
38. I awarded the Defendant costs for the Registrar’s appeal fixed at $1,500.
_________________
[note: 1]Notice of Appeal to High Court and paragraphs 15 and 19 of the Plaintiff’s amended Statement of claim filed on 18 August 2005.
[note: 2]Paragraph 5 of Ng’s AEIC filed on 26 October 2007
[note: 3]Paragraph 10 of Tey’s AEIC filed on 26 October 2007
[note: 4]Paragraph 13 of Tey’s AEIC filed on 26 October 2007, Notes of Evidence, page 106 at (A)
[note: 5]Paragraph 20 of the Plaintiff’s amended statement of claim. Paragraphs 8 of Plaintiff’s AEIC filed on 26 October 2007 and paragraphs 27 and 31 of Tey’s AEIC filed on 26 October 2007.
[note: 6]Plaintiff’s Bundle of Documents 42 – 45. para 7.
[note: 7]Paragraph 10 of the Plaintiff’s Amended Statement of Claim filed on 18 August 2005, Paragraph 13 of Tey’s AEIC filed on 26 October 2007, Notes of Evidence, page 106 at (A)
[note: 8]Paragraph 15 of the Plaintiff’s Amended Statement of Claim filed on 18 August 2004
[note: 9]Notes of Evidence Pages 133 at (C), 134 and 135
[note: 10]Paragraph 5 of Ng’s AEIC filed on 26 October 2007
[note: 11]Paragraphs 5 and 7 of Ng’s affidavit filed on 26 October 2007.
[note: 12]Notes of Evidence Page 49 at (D)
[note: 13]Notes of Evidence Page 209 at (E)
[note: 14]Notes of Evidence Page 89 at (B) and (E)
[note: 15]Notes of Evidence Pages 51 to 53.
[note: 16]Paragraphs 11, 14 and 18 of Ng’s AEIC filed on 31 October 2007
[note: 17]Notes of Evidence Page 62 at (B).
[note: 18]Notes of Evidence Page 139 at (C) and (D)
[note: 19]Notes of Evidence Pages 135 at (A, 147 at ((D) and (E) and 148 at (A)
[note: 20]Notes of Evidence page 131 at (D)
[note: 21]Paragraph 21 of Tey’s AEIC filed on 26 October 2007
[note: 22]Notes of Evidence Pages 141 to 142
[note: 23]Notes of Evidence Page 143 at (C)
[note: 24]Notes of Evidence Page 151
[note: 25]Notes of Evidence Page 152
[note: 26]Paragraph 17 of Tey’s AEIC filed on 26 October 2007
[note: 27]Annex to Robert Khan’s AEIC filed on 26 October 2004
[note: 28]Notes of Evidence Pages 13 at (D), Page 14 at (A) to (D)
[note: 29]Notes of Evidence Page 116 and 117
[note: 30]Plaintiff’s Bundle of Documents PB 52A and 52B
[note: 31]Plaintiff’s Bundle of Documents PB 68
[note: 32]Paragraph 7 of the Amended Defence filed on 24 June 2005.
[note: 33]Notes of Evidence Page 31 at (E)
[note: 34]Notes of Evidence Page 35 at (C)
[note: 35]Notes of Evidence Pages 112 and 113
[note: 36]Paragraph 20 of the Amended Statement of claim filed on 18 August 2005
[note: 37]Paragraph 8 (C) of Plaintiff’s AEIC filed on 26 October 2007, Paragraphs 15,27 and 31 of Tey’s affidavit filed on 26 October 2007.
[note: 38]Paragraph 18 of Ng’s AEIC filed on 18 August 2007 and Paragraph 28 of Tey’s AEIC filed on 26 October 2004
[note: 39]Plaintiff’s Bundle of Documents PB 99