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Seaview condo defects: Residents hit snag
Mar 18, 2016
High Court rules developer, main contractor, architect can use independent-contractor defence
Selina Lum
Residents of The Seaview condominium, who sued four parties involved in the development over numerous alleged defects, have hit a snag in their fight for $32 million in damages.
Three defendants - the developer, the architect and the main contractor - are largely off the hook for negligence claims following a landmark ruling on construction liability by the High Court.
In a written judgment on Wednesday, Justice Chan Seng Onn ruled that Mer Vue Developments, a subsidiary of Wheelock Properties; main contractor Tiong Aik Construction; and RSP Architects Planners & Engineers can rely on the independent-contractor defence.
In other words, they can put up a defence against negligence claims on grounds that they are not vicariously liable for the negligent acts of the independent contractors to whom they had delegated work.
Developers have been able to use this defence to absolve themselves of blame for building defects since a seminal ruling in 2005, but this is the first time a court has clarified that the main contractor and architect can also rely on this defence.
However, Tiong Aik and RSP can still be held liable for work not delegated to independent contractors.
The implication is that if the management corporation (MC) of the Amber Road condominium wins its lawsuit, which is due to be heard in July, the amount of damages that the homeowners can get will be limited.
To pursue the negligence claims, the MC will have to go down the chain to sue the sub-contractors responsible for the design or construction of the development.
The fourth defendant, mechanical and electrical engineer Squire Mech, did not rely on this defence.
The ruling does not establish negligence and it has no implications for contractual liabilities.
Besides suing all four parties for negligence, the MC had also sued Mer Vue for breach of contract.
But only those who bought units directly from the developer can sue for this. In the current case, original buyers make up a small minority of the residents represented by the MC.
The Seaview, which was completed in 2008, comprises six blocks with a total of 546 units. In a suit filed on behalf of homeowners in 2011, the MC alleged many defects in the common areas, including foul odours, falling concrete and popping swimming pool tiles.
Last July, a hearing started on the preliminary issue of whether Mer Vue, Tiong Aik and RSP could rely on the independent-contractor defence, which is based on the principle that the employer should not be vicariously liable for the negligence of an independent contractor.
In 2005, the Court of Appeal applied this in the context of a developer delegating the duties of design and construction to independent competent contractors.
Mer Vue's lawyer, Mr Christopher Chuah, had argued that the developer had taken care to appoint independent contractors who were professionals. Justice Chan agreed and rejected the MC's arguments that Mer Vue could not use the defence as it had exerted control over the works of Tiong Aik and RSP.
In a statement through its lawyer, Mr Samuel Seow, the MC said it was disappointed with the decision and is discussing its options with its legal team, including the filing of an expedited appeal.
http://www.straitstimes.com/singapore/courts-crime/seaview-condo-defects-residents-hit-snag
Seaview condo defects: Residents hit snag
Mar 18, 2016
High Court rules developer, main contractor, architect can use independent-contractor defence
.....
Three defendants - the developer, the architect and the main contractor - are largely off the hook for negligence claims following a landmark ruling on construction liability by the High Court.
....To pursue the negligence claims, the MC will have to go down the chain to sue the sub-contractors responsible for the design or construction of the development.
....
But only those who bought units directly from the developer can sue for this. In the current case, original buyers make up a small minority of the residents represented by the MC....
It is good to be big.
Always delegate and delegate some more.
Another takeaway for me is developer usually build the condo units to standard (to get CSC and 100% payment) but let the common areas go to S**T, since 1st year MC is appointed by developer, and 2nd year, it is hard to gather the owners together for a single purpose, what more to cough up more money.
I maybe wrong, my take is not only original buyers, but sub-sale buyer also can sue developer, since S&P also issued by developer. Resale buyer (after TOP) that buy from developer also can sue, since S&P by developer. It is only resale buyer (after TOP) that buy from non-developer that cannot sue developer.
Just curious how come Lum Chang-Nishimatsu JV cannot use the independent contractor defense ? Don't tell me they don't use sub-cons.
strange...they are the ones who collected money from buyers so shd rightfully bear most of the responsibility....if not the loophole can be exploited in future...whats to stop them from deliberately awarding/delegating jobs to less than competent (aka lowest quote) sub-contractors....? this ruling is unfriendly to home buyers who most likely cannot afford to go after sub-contractors....
bargain hunter
21-03-16, 12:30
strange...they are the ones who collected money from buyers so shd rightfully bear most of the responsibility....if not the loophole can be exploited in future...whats to stop them from deliberately awarding/delegating jobs to less than competent (aka lowest quote) sub-contractors....? this ruling is unfriendly to home buyers who most likely cannot afford to go after sub-contractors....
sub-contractors can also take the cash out of their companies and let the company go bust.
bargain hunter
21-03-16, 12:33
It is good to be big.
Always delegate and delegate some more.
Another takeaway for me is developer usually build the condo units to standard (to get CSC and 100% payment) but let the common areas go to S**T, since 1st year MC is appointed by developer, and 2nd year, it is hard to gather the owners together for a single purpose, what more to cough up more money.
I maybe wrong, my take is not only original buyers, but sub-sale buyer also can sue developer, since S&P also issued by developer. Resale buyer (after TOP) that buy from developer also can sue, since S&P by developer. It is only resale buyer (after TOP) that buy from non-developer that cannot sue developer.
Just curious how come Lum Chang-Nishimatsu JV cannot use the independent contractor defense ? Don't tell me they don't use sub-cons.
which project was lum chang sued for?
which project was lum chang sued for?
the nicoll highway collapse, how come they cannot use independent contractor defense?
bargain hunter
21-03-16, 13:45
the nicoll highway collapse, how come they cannot use independent contractor defense?
different right? the collapse happened before it was completed.
This ruling has far reaching impact.
1. Only original buyer can sue, but you can't sue the developer as they engage the independent contractors. You can't sue the contractor or their sub contractors under contract as there is no contract.
2. You can only sue under tort as negligence.
3. The legal cost is too high.
4. Developers now can promise everything without liable to it. The interest of all property owners are not safeguarded by any contract. Developers will be forever the winner.
5. All contractors will form small companies to undertake projects and eventually wind up..or no money...
If this become the defacto rules, it will be applied to all commonwealth countries.
We need to rally here to support The Seaview to overturn this decision !
Buy new slightly better???
different right? the collapse happened before it was completed.
the principle should be the same right?
bargain hunter
21-03-16, 15:23
THE SEA VIEW AMBER ROAD Condominium 15 RCR Freehold Resale 1 2,550,000 - 1,410 Strata 06 to 10 1,808 Jun-13
THE SEA VIEW AMBER ROAD Condominium 15 RCR Freehold Resale 1 2,980,000 - 1,647 Strata 16 to 20 1,809 Oct-15
THE SEA VIEW AMBER ROAD Condominium 15 RCR Freehold Resale 1 3,000,000 - 1,647 Strata 11 to 15 1,822 Sep-13
THE SEA VIEW AMBER ROAD Condominium 15 RCR Freehold Resale 1 1,030,000 - 560 Strata 16 to 20 1,840 Mar-16
THE SEA VIEW AMBER ROAD Condominium 15 RCR Freehold Resale 1 2,900,000 - 1,518 Strata 11 to 15 1,911 Mar-15
psf still so strong leh. there are >1800psf transactions regardless of whether it was in 2013, 2015 or 2016.
bargain hunter
21-03-16, 15:25
the principle should be the same right?
when completed, u receive keys liao, then u kaobei = can use the damn principle?
when not completed, haven't handed over, contractor liable?
This ruling has far reaching impact.
1. Only original buyer can sue, but you can't sue the developer as they engage the independent contractors. You can't sue the contractor or their sub contractors under contract as there is no contract.
2. You can only sue under tort as negligence.
3. The legal cost is too high.
4. Developers now can promise everything without liable to it. The interest of all property owners are not safeguarded by any contract. Developers will be forever the winner.
5. All contractors will form small companies to undertake projects and eventually wind up..or no money...
If this become the defacto rules, it will be applied to all commonwealth countries.
We need to rally here to support The Seaview to overturn this decision !
in my opinion, only 2 things are protected by law
1) strata area is within 3% tolerance. if smaller by more than 3%, developer have to compensate the difference
2) completion period. if late completion, developer have to compensate.
other than above 2, developer are not held responsible.
In the extreme case of condo collapse, developer will also be most likely not responsible. Can only wait for a condo to collapse to see what the court say.
If see pasir ris one and the BCA response about 1.2m being just a guideline, then buyers can only face meet palm
when completed, u receive keys liao, then u kaobei = can use the damn principle?
when not completed, haven't handed over, contractor liable?
i really wonder how far the independent contractor defense can go.
based on the "The ruling does not establish negligence and it has no implications for contractual liabilities.", i supposed if homeowner pay for 1000sqft. the developer is contractually liable to deliver 1000sqft (+-3%) within a speciific timeframe. other than that, it is all artist's impression.
nah, 3% thingy is also "independent contractor" 's fault. how's that.
very disappointing ruling.
an unrelated case: pedestrian getting hit crossing the road right in the middle of green light needs to bear 15% responsibility.
the judges are getting out of hand.
in my opinion, only 2 things are protected by law
1) strata area is within 3% tolerance. if smaller by more than 3%, developer have to compensate the difference
2) completion period. if late completion, developer have to compensate.
other than above 2, developer are not held responsible.
In the extreme case of condo collapse, developer will also be most likely not responsible. Can only wait for a condo to collapse to see what the court say.
If see pasir ris one and the BCA response about 1.2m being just a guideline, then buyers can only face meet palm
the developer only liable to the original buyers directly bought from them. Not any sub sales buyers as there is no contract between sub sales buyers and developer.
nah, 3% thingy is also "independent contractor" 's fault. how's that.
very disappointing ruling.
an unrelated case: pedestrian getting hit crossing the road right in the middle of green light needs to bear 15% responsibility.
the judges are getting out of hand.
this judge is too much to say if hit at green man...you take 15% of liability....
nah, 3% thingy is also "independent contractor" 's fault. how's that.
very disappointing ruling.
an unrelated case: pedestrian getting hit crossing the road right in the middle of green light needs to bear 15% responsibility.
the judges are getting out of hand.
the 3% and completion period is specify in the housing act. others are not and therefore very much open to artist's impression :)
BCA guidelines are just guidelines, if breach a little bit also ok. so if 51% corridor greater than 1.2m, the rest smaller than 1.2m it is ok.
do be aware of contempt of court. however we are small fries, so our words are most likely noises to them.
what about damages about the NS man not being able to serve the nation? Oh I forgot, minister josephine teo say "service for the country cannot be measured in dollars and cents" :)
Good house
21-03-16, 18:27
All these condo， flat and apartment build in recent years seems to hv a lot of design, build and quality issue？
Let me nag abit here......no ill intention ... For discussion sake only
Was it becos of the internet where issue become overly amplify？
kiasu behaviour, things get overly blow out of proportion
Was it due to the sudden increase in building so many at so short period of time？
After so many year building so little， where to bump up the number of skill Architect， inspector， builder， workers etc。
Architect of old probably has the commonsense to know 1.2 m is a guide, what kind of thinking is going thru the mind of current Architect; optimize the computer to max out the profit for developer?
Was it due to expectation of consumer has changed？
People upgrade but instead see a downgrade on size n quality. Will you be angry?
One or two house is different, but if many flat n condo are like this..... Pray that people get use to this conditioning
Was it due to the high price that change the expectation？
pay so much to get micky mouse room n lousy material spec and workmanship, greedy developer？
A lot for the industry and relevant agency to ponder
It takes 50 years to build a nation， it can take less than 10 years to ruin one。
nah, 3% thingy is also "independent contractor" 's fault. how's that.
very disappointing ruling.
an unrelated case: pedestrian getting hit crossing the road right in the middle of green light needs to bear 15% responsibility.
the judges are getting out of hand.
Totally agree with you. The recent court rulings are totally baffling and do not instill confidence in the judiciary to act in the interests of the common man.
stalingrad
21-03-16, 23:04
Totally agree with you. The recent court rulings are totally baffling and do not instill confidence in the judiciary to act in the interests of the common man.
Tell me one case in Singapore where the little guy's interest is protected against the big guy. Minibonds, Pinnacle Notes, and similar cases are all ruled in favor of the investment banks and against the investors. Singapore is the most business friendly country in the world. Minibonds investors have to hire an American to sue Morgan Stanley in the US to get justice. No Singaporean law firms would take the case because they know they would lose and lose big.
You see the pattern now?
Building Quality issue?
- May be because of rise in material costs and manpower costs, and developers trying to cut costs and squeeze out more profits?
Design issue?
- This is confirmed developers trying to squeeze out more profits!
What's more, URA/BCA (don't know who lah!) is partially responsible for the bad "design"......
E.g.: URA/BCA allow developers to build balconies up to 10% of GFA that is free to developers (NOT included in land x plot ratio GFA) that they can sell.......
So, after that we see so many condos with huge balconies!
E.g: URA/BCA allow developers to build planter areas and bay windows up to 10% (or thereabout?) of GFA that again is free to developers (NOT included in land x plot ratio GFA) that they can sell.......
So, after that we see lots of condos with huge planter areas and bay windows, many not even usable!
In 1 project I saw, they have planter areas outside the Master bedroom toilet! In order to access this planter area, you have to climb out of the Master bedroom toilet! Do you dare? Mind you, the planter area is not walled!
So, end up these new condo units has effective usable area that is only about 80% of the quoted floor area!
Another one: In the past, the common corridors from lifts to your unit eat up GFA but developers cannot sell to you.
So they come up with a good idea: Build "private lifts", and all sqft from the lift to your unit can now be sold to you as "private lift lobby"!!!!!!!! :im-a-gonna-get-u:
What "private lift"? Do your unit alone can use the lift that is why it is "private"? Whole load of bullshit!
The worst is when your "private lift" breaks down, please go climb the stairs (because you only have 1 private lift)!!!!!!!!!!!!! :middle-finger2:
Now they have other tricks!
In big estate, instead of building more facilities on the floor, they choose to build less facilities.
Instead, they build the towers lower and take up more land space (because build higher up is more expensive), so have to cut facilities!
In the past, a 400 units estate has at least 3 tennis court and 2 swimming pools (1 Olympic size).
Now 1000 units estate has only 2 tennis court and 2 swimming pools where area is even smaller than the 400 units estate!
All these condo， flat and apartment build in recent years seems to hv a lot of design, build and quality issue？
Let me nag abit here......no ill intention ... For discussion sake only
Was it becos of the internet where issue become overly amplify？
kiasu behaviour, things get overly blow out of proportion
Was it due to the sudden increase in building so many at so short period of time？
After so many year building so little， where to bump up the number of skill Architect， inspector， builder， workers etc。
Architect of old probably has the commonsense to know 1.2 m is a guide, what kind of thinking is going thru the mind of current Architect; optimize the computer to max out the profit for developer?
Was it due to expectation of consumer has changed？
People upgrade but instead see a downgrade on size n quality. Will you be angry?
One or two house is different, but if many flat n condo are like this..... Pray that people get use to this conditioning
Was it due to the high price that change the expectation？
pay so much to get micky mouse room n lousy material spec and workmanship, greedy developer？
A lot for the industry and relevant agency to ponder
It takes 50 years to build a nation， it can take less than 10 years to ruin one。
an unrelated case: pedestrian getting hit crossing the road right in the middle of green light needs to bear 15% responsibility.
the judges are getting out of hand.
actually i am ok with 15% responsibility.
What i am not ok is the judges establish 15% after the fact.
Why not have a table of responsibilities for pedestrian before the thing happens, so all is very much clear.
1) 5 % - look right, left, right before crossing, green light.
2) 15 % - look right, left, right before crossing, red light.
3) 50 % - did not cross at the proper crossing
4) 0 % - if driver is legally drunk
etc
Case law very much depends on judges intepretation. if sleep in sofa the night before, the harsher intepretation.
one thing about independent contractor defence intrigues me.
can it be used in other industries ?
for example, automobile defects, i wonder why GM, Ford, Toyota has car recalls. Afterall, a car is made of thousand of components made by thousand of suppliers. A car manufacturer is just an assembler. If a component defect, well it is independent manufacturer fault.
How about drugs? A drug manufacturer outsource the "safetiness" of drugs to 3rd party independent labs. If another case similar to thalidomide happens, drug manufacturer is not liable since it relies on independent contractor for the drug safety.
What about banks? How many bank workers are actually "outsourced"? the "bankers" are actually independent contractors. Banks rely on CFA certification that their independent contractors are competent and professional. Why these independent contractors have A in CFA ethics module :)
Insurance industry? Insurance agents are independent contractors. They have CFP certification to show they are qualified, competent. So any mis-selling, mis-representation, insurance company not liable.
Lastly:
Why does developer not rely on BCA for defense? BCA certifies that it is fit for stay, so it issues TOP. If any problem, owners please get in touch with BCA :) Shouldnt BCA also be in the dock?
from a previous article:
A sickly sweet smell would sometimes seem to come out of the walls. This is due to the lack of a U-trap: a device that separates waste from the kitchen and the toilet. Refuse from the two just merge into a common pipe, and choke up.
Isn't a U-trap good industry practice? or installing a U-trap a guideline that can be ignored just like 1.2m corridor a guideline that can be safely ignored.
the developer only liable to the original buyers directly bought from them. Not any sub sales buyers as there is no contract between sub sales buyers and developer.
I not sure because for subsale, there is a new S&P between developer and sub-sale buyer.
from a previous article:
"In his opening statement to the court today, Mr Samuel Seow, one of the lawyers representing the condo residents, said the independent contractor defence seeks to “push the defence down the line”, which means that “eventually the only people to whom homeowners can seek compensation from would be the painter who (did not) paint the primer onto the walls, or the worker who did not do a good job of waterproofing the swimming pool”."
Why not sue the painters and the waterproofing workers?
The purpose of suing them is to show how stupid the independent contractor defense is.
No need to engage expensive lawyers, cheap ones will do since painters are small fries, they also cannot engage lawyers.
Make the courts and judges look bloody stupid
Actually what you say makes sense.
It is not a matter of really want to sue the small fry like the workers, but to demonstrate how stupid that independent contractor defence clause is and create a bigger rapport among everybody including the rank-and-file workers (that make up the majority of voters) and also create a big hop-ha NEWS internationally that if people can tolerate such nonsense as "independent contractor defence" for shielding property developers, that is what the rank-and-file workers will get (since if that clause can stands on its feet, then obviously lowest down the line it must be the workers' fault for causing the defects!)
I not sure because for subsale, there is a new S&P between developer and sub-sale buyer.
from a previous article:
"In his opening statement to the court today, Mr Samuel Seow, one of the lawyers representing the condo residents, said the independent contractor defence seeks to “push the defence down the line”, which means that “eventually the only people to whom homeowners can seek compensation from would be the painter who (did not) paint the primer onto the walls, or the worker who did not do a good job of waterproofing the swimming pool”."
Why not sue the painters and the waterproofing workers?
The purpose of suing them is to show how stupid the independent contractor defense is.
No need to engage expensive lawyers, cheap ones will do since painters are small fries, they also cannot engage lawyers.
Make the courts and judges look bloody stupid
Yes, for sub-sale a new S&P is issued.
My lawyer said there is a new S&P between developer and sub-sale buyer. So, can sue.
I not sure because for subsale, there is a new S&P between developer and sub-sale buyer.
from a previous article:
"In his opening statement to the court today, Mr Samuel Seow, one of the lawyers representing the condo residents, said the independent contractor defence seeks to “push the defence down the line”, which means that “eventually the only people to whom homeowners can seek compensation from would be the painter who (did not) paint the primer onto the walls, or the worker who did not do a good job of waterproofing the swimming pool”."
Why not sue the painters and the waterproofing workers?
The purpose of suing them is to show how stupid the independent contractor defense is.
No need to engage expensive lawyers, cheap ones will do since painters are small fries, they also cannot engage lawyers.
Make the courts and judges look bloody stupid
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