BUSINESS LAW SESSION 13 REVISION CASE STUDY (FRANK V NATHAN HONG) Conversion of 2 storey shop house to 3 storey residential/business premises. Contract specified: (1) Demolish 2 storey shop house and erect 3 storey structure (2) Ground floor had to have high ceiling for ventilation purposes as a restaurant (3) Roof structure was to be changed to Dormer from Skillon and Lean To roof structure CASE STUDY (FRANK V NATHAN HONG) (4) Dwelling premises were to be Bogener-Dachziegel premium red engobed colour titles (5) Dwelling premises paraquet flooring size 1220 x 180mm with 5mmthickness and wear layer of 0.5mm (6) Walls well plastered and painted oak white Nippon Easy Wash colour (7) Ground floor anti-skid verified durable and can withstand heavy traffic CASE STUDY (FRANK V NATHAN HONG) (8) Wall of ground floor to have German 3MTM DI-NOCTM Architectural Finishes (9) COVID 19 delay of 2 months because 50% of Nathan Hong’s workers contacted the pandemic (10) Letter from Aung the Project Engineer changing the roof type from Dormer to Hip Roof (11) Frank’s reply to Nathan Hong and wrongly addressed CASE STUDY (FRANK V NATHAN HONG) (1) Demolish 2 storey shop house and erect 3 storey structure Issues (a) Is Frank’s dealings with Nathan Hong as • Business to business or • Business with consumer Give you reasons for it. Requirements and Types of a Roof March 24, 2019 - by Kathir - Leave a Comment CASE STUDY (FRANK V NATHAN HONG) (3) Roof structure was to be changed to Dormer from Skillon and Lean To roof structure The roof structure was Hip roof instead of Dormer roof Issues (a) Can reject the roof building structure? (b) Has Nathan Hong any defence? CASE STUDY (FRANK V NATHAN HONG) (4) Dwelling premises were to be Bogener-Dachziegel premium red engobed colour titles Issues (a) Natural red v red engobed colour titles acceptable? (b) Is the quality compromised? (c) Has Nathan Hong any justification? CASE STUDY (FRANK V NATHAN HONG) (5) Dwelling premises paraquet flooring size 1220 x 180mm with 5mm thickness and wear layer of 0.5mm. Floor was uneven. Issue (a) Poor workmanship (c) What is the possible remedy by Allan Hong? CASE STUDY (FRANK V NATHAN HONG) (6) Walls well plastered and painted oak white Nippon Easy Wash colour Issues (a) Walls ripping off because poor constituents of the concrete plaster (b) Cheaper paint not Nippon Easy Wash (c) What remedies can Frank take? CASE STUDY (FRANK V NATHAN HONG) (9) COVID 19 delay of 2 months because 50% of Nathan Hong’s workers contacted the pandemic Issues (a) Delay due to COVID 19 is a justification? (b) Can Allan Hong justify 50% of workers caught COVID 19? CASE STUDY (FRANK V NATHAN HONG) (10)Letter from Aung the Project Engineer changing the roof type from Dormer to Hip Roof Issues (a) Can Aung the project engineer justify that the Dormer roof design is not practical given the specification's? (b) Can Frank insist on Dormer roof design? CASE STUDY (FRANK V NATHAN HONG) (11) Frank’s reply to Nathan Hong and wrongly addressed Issues (a) Has Frank any justification for his letter contents related to the Dormer roof not been followed (b) Has Aung any justification that Frank’s instructions not being followed? CASE STUDY (WOON LI V FRANK) (1) Project Delay Frank knew of delay in project construction on 29 March 2021 but he informed Woon Li on 6 November 2021 Issues Is Frank liable for the following (a) Restaurant not opening on 1January2022 which is Woon Li’s 50th birthday (b) Delay in construction of the customised air vent at the ground floor. CASE STUDY (FRANK V NATHAN HONG) (c) (d) (e) (f) Delay in delivery and installation of special chillers from Gemany Cost of printed cards from South Korea and local printing of the promotion materials Employment of 4 chefs and 6 F&B staff Contracts for delivery of frozen meat, vegetables and condiments BUSINESS LAW (1a) There is some confusion between an offer and mere representation. What are the salient differences between the 2 concepts? An offer is an intimation of willingness by an offeror to enter into a legally binding agreement. An offer must be distinguished from an invitation to treat. An invitation to treat is an offer to negotiate or an offer to receive offers. (2 marks) The following are some common instances of invitation to treat: (Give any 4 examples with cases 2 marks each) • (a) Display of goods in a shop • Pharmaceutical Society of Great Britain v Boots Cash Chemists [1953] 1 QB 401 (b) Advertisements • Partridge v Crittenden [1968] 2 All ER 421 BUSINESS LAW (1a) There is some confusion between an offer and mere representation. What are the salient differences between the 2 concepts? (c) Company Prospectus • An invitation to treat to be accepted/not to be accepted by company (d) Auctions • Felthouse v Bindley (e) Tenders • Harvela Investments v Royal Trust Co of Canada [1986] AC 207 (f) Quotations • Aotearoa International Ltd v Scancarriers A/S [1985] 1 NZLR 513 BUSINESS LAW (1b) “Where a contract term or notice purports to exclude or restrict liability for negligence, a firm cannot exclude liability for personal injury or death” Discuss with relevant case law in your answer. Answer Where there is a breach of an express or implied term in a contract it is important to determine whether there are exclusion clauses in a contract which exclude or limit liability. Exclusion clauses are in effect intended to be used as defence for breach of contract. (4 marks) Validity of Exclusion Clause (4 marks) • Is the clause of the contract? • Is there reasonable notice of the clause? • Does the clause cover the breach? • Is the clause valid under the Unfair Contract Terms Act 1977? BUSINESS LAW (1b) “Where a contract term or notice purports to exclude or restrict liability for negligence, a firm cannot exclude liability for personal injury or death” Discuss with relevant case law in your answer. Answer • Thornton v Shoe Lane Parking Ltd (1971) • Chapelton v Barry Urban District Council (1940) • Thompson v London Midland & Scottish Railway (1930) • (2 marks for application of anyone of above cases) BUSINESS LAW REVISION Sections 2(1)-(2) UNFAIR TERMS OF CONTRACT ACT 1977 Negligence Liability 2-(1) A person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence (2) In case of any other loss or damage, a person cannot so exclude or restrict his liability for negligence except in so far as the term or notice satisfies the requirement of reasonableness BUSINESS LAW REVISION 2(a) Courts have asked parties to settle their disputes out of court through alternative dispute resolution. Comment. (10 marks) Answer What is Alternate Dispute Resolution (6 marks) Alternative dispute resolution, or ADR, is a process in which a neutral third party—a mediator or arbitrator—helps parties who are embroiled in a dispute come to an agreement. The State Courts encourage parties in all claims to consider ADR as the "first stop", before proceeding for trial. ADR services are provided by the Conflict Dispute Resolution Cluster If you have a personal injury or a "non-injury motor accident claim" (NIMA for short), your case will be automatically referred for ADR. You will receive a notice from the Court about the details of the ADR session. The ADR process used will be a very brief form of Neutral Evaluation. Lawyers normally represent the relevant insurers and clients at the brief neutral evaluation session. In general, the party need not attend the first session. Where necessary, the party may be directed to be present in subsequent sessions. BUSINESS LAW REVISION 2(a) Courts have asked parties to settle their disputes out of court through alternative dispute resolution. Comment. (10 marks) Answer If you have any other civil case in the State Courts, party and the other party may request for ADR at any time in the proceedings. This request has to be filed in the online eLitigation system. Party and the other party may choose to use the process of mediation, conciliation or neutral evaluation. A judge in the State Courts may also refer a party’s case for ADR at any stage of proceeding. For instance, if the plaintiff has filed a summons for directions, all parties and their lawyers have to complete and file the ADR Form before the hearing. • Saves Legal Cost Early settlement through ADR means that you can avoid the cost of preparing for a trial • A Day In “Court” You have a chance to present your case together with your lawyer before a neutral party, who is a Judge • Low Cost It will generally cost you less to go through a Neutral Evaluation than a trial. BUSINESS LAW REVISION 2(a) Courts have asked parties to settle their disputes out of court through alternative dispute resolution. Comment. (10 marks) Answer • Obtain Estimate Of Likely Outcome At Trial The evaluator will provide an additional, independent perspective of your case. The evaluation may help you to negotiate a settlement Narrows Issues In Dispute • Neutral Evaluation often helps the parties to clarify or narrow the scope of their dispute, and increases the chances of future settlement Limitations Of ADR (4 marks) • Because few companies have made a serious commitment to ADR as a distinct system, and because there are very few rules governing it, the procedure is often allowed to become a litigation look-alike. The cost of ADR begins to approach the cost of the litigation that it’s supposed to replace. • To cut down on attorney time, arbitration permits the parties to stipulate, or agree on, certain facts and virtually eliminate briefs, discovery, and the endless reliance on expert testimony and counter-testimony. But the contending parties often waste prodigious quantities of time, money, and energy by reverting almost automatically to the habits of litigation. • Moreover, arbitrators themselves contribute to the problem by handing down damage awards that are beyond reason and contractual limits. BUSINESS LAW REVISION 2(a) Courts have asked parties to settle their disputes out of court through alternative dispute resolution. Comment. (10 marks) Answer • Obtain Estimate Of Likely Outcome At Trial The evaluator will provide an additional, independent perspective of your case. The evaluation may help you to negotiate a settlement Narrows Issues In Dispute • Neutral Evaluation often helps the parties to clarify or narrow the scope of their dispute, and increases the chances of future settlement Limitations Of ADR (4 marks) • Because few companies have made a serious commitment to ADR as a distinct system, and because there are very few rules governing it, the procedure is often allowed to become a litigation look-alike. The cost of ADR begins to approach the cost of the litigation that it’s supposed to replace. • To cut down on attorney time, arbitration permits the parties to stipulate, or agree on, certain facts and virtually eliminate briefs, discovery, and the endless reliance on expert testimony and counter-testimony. But the contending parties often waste prodigious quantities of time, money, and energy by reverting almost automatically to the habits of litigation. • Moreover, arbitrators themselves contribute to the problem by handing down damage awards that are beyond reason and contractual limits. Advantages of Mediation Low cost Saves legal costs Saves time Opportunity to negotiate Full control Confidentiality Early Closure Disadvantages Party in dispute needs court’s decision on a legal issue Party not willing to participate in mediation Party not acting in good faith Party want public attention to dispute (7 marks) Advantages of Mediation Low cost Saves legal costs Saves time Opportunity to negotiate Full control Confidentiality Early Closure Disadvantages Party in dispute needs court’s decision on a legal issue Party not willing to participate in mediation Party not acting in good faith Party want public attention to dispute (7 marks) Unlike mediation, there are five main advantages of arbitration over litigation in Singapore: • Near-global enforceability of awards. Through the New York Convention, an award made in Singapore is enforceable in 166 jurisdictions. • Party autonomy. Parties have some measure of choice over their arbitrators, procedural rules and location of proceedings. • Confidentiality. Hearings take place behind closed doors and the award is not public, allowing parties to resolve their disputes without worrying about reputational or market impacts. • Awards are binding. Disputes are not subject to multiple rounds of appeals (although there is currently a consultation on allowing parties to opt-in to appeal on a point of law Procedural flexibility. Parties can tailor the arbitration procedure to their dispute. For example, bilingual arbitrators can be appointed to deal with foreign language issues. However, there are some possible disadvantages to arbitration: Time and cost. Arbitration is no longer as swift and cost-effective as it used to be, and therefore the cost advantages of arbitration are not clear cut. However, Singapore court proceedings have sometimes been criticised for delay, and the recoverability of costs is generally less favourable in Singapore court proceedings compared to arbitration. Dealing with defaulting parties and summary judgment. Arbitration provides more limited options for dealing with a party that does not appear or co-operate in the proceedings. In Singapore litigation, there is the option of obtaining default judgment or "unless" orders to compel compliance with the litigation process. BUSINESS LAW REVISION 3 What are the duties of an agent to his principal? (25 marks) Answer Every Agency involves 3 parties as follows: Principal • Person whom the Agent represents Third Party • Person whom the agent deals on behalf of his Principal Agent • “An a Agent is a person who through the authority conferred on him by the Principal is empowered to establish legal relations on his Principal’s behalf with the Third Party.” BUSINESS LAW REVISION 3 What are the duties of an agent to his principal? (25 marks) Duties of Agent Duty to follow instruction • Turpin v Bilton [1843] 5 Man & G 455 Duty to act with due care & skill • Keppel v Wheeler [1927] Duty to account Delegation of duty • John McCann & Co v Pow [1975] 1 AII ER 129 BUSINESS LAW REVISION 3 What are the duties of an agent to his principal? (25 marks) Fiduciary duty (1) Conflict of duty and interest • Sabyasachi Mukherjee v Pradeeepto Kumar Biswas [2018] SGHC 271 Taking advantage of his position to gain a benefit for himself • Peter Pan Manufacturing Corp Ltd v Corsets Sillouette Ltd [1973] (2) Accepting bribes • Mahesan v Malaysian Government Officers Cooperative Housing Society Ltd [1979] BUSINESS LAW REVISION 4 Discuss with relevant cases the duties of the employer to the employee under the Singapore Employment Act. (25 marks) Answer Who Is An Employee Section 2 (1) In this Act, unless the context otherwise requires — “employee” means a person who has entered into or works under a contract of service with an employer and includes a workman, and any officer or employee of the Government included in a category, class or description of such officers or employees declared by the President to be employees for the purposes of this Act or any provision thereof, but does not include any of the following: • any sea farer • any domestic worker • any person belonging to any other class of persons whom the Minister may from time to time • by notification in the Gazette, declare not to be employees for the purpose of this act BUSINESS LAW REVISION Answer Who Is An Employer Section 2 (1) In this Act, unless the context otherwise requires — “employer” means any person who employs another person under a contract of service and includes — • the Government in respect of such categories, classes or descriptions of officers or employees of the Government as from time to time are declared by the President to be employees for the purposes of this Act • any statutory authority; • the duly authorised agent or manager of the employer; and • the person who owns or is carrying on or for the time being responsible for the management of the profession, business, trade or work in which the employee is engaged; BUSINESS LAW REVISION Answer Duties of Employer Towards Employee 1 Duties Under The Employment Act 2 Duties Under the Child Development Co-Savings Act 3 Duties Under The Employment Act 4 Duties Under The Work Injury Compensation Act BUSINESS LAW REVISION 5 During the COVID 19 many companies have wound up. Winding up of a company may be either by the court or voluntary winding-up by the creditors or the company itself. Citing relevant legislations and cases to substantiate your answer. Answer • Insolvency Winding up of a company may be either by the court or • Voluntary • Section 119 Insolvency, Restructuring and Dissolution Act 2018 (commencement July 2020) • Voluntary Winding Up Section 119 IRDA: A company may be voluntarily wound up on certain grounds when: • The company resolves so by special resolution Section 160 IRDA Two types of voluntary winding up: • - Members’ voluntary winding up • - Creditors’ voluntary winding up BUSINESS LAW REVISION Answer Conditions To Be Satisfied Before Copyright Can Arise Two pre-conditions before copyright can arise: • Only exists in “works” and “subject matter other than works,” and • There is a connection between the author or maker and Singapore What Is “Works” • “Works” refers to original literary, dramatic, musical and artistic works • Literary merit is irrelevant • Literary work must offer information, pleasure or instruction to the reader • If the work is very short, like a slogan, it will not be a literary work BUSINESS LAW REVISION Answer What Is Subject Other Than “Works” “Subject matter other than works” • Commonly known as entrepreneurial rights • Includes sound recordings, cinema films, broadcasts, cable programmes and published editions of works • A particular product could encompass the copyright of various persons For matters not listed in the Act, there is no copyright BUSINESS LAW REVISION 6(b) When a copyright is infringed what defences may be put forward by nongovernmental organisations? Cite relevant cases. Answer Infringement Of Copyright & Defences • Copyright is an item of property and may be assigned or licensed • When a person without the consent of the proprietor does any of the acts that only the proprietor can do, there will be infringement Defences • Fair dealing for purposes of research or study (for published work the amount copied is less than 10%) • See Sections 35, 7(2), read with Section 35(3) • Fair dealing for criticism or review or current reporting: Sections 36, 37 BUSINESS LAW REVISION 6(b) When a copyright is infringed what defences may be put forward by nongovernmental organisations? Cite relevant cases. Answer Computer programs: A copy made by the owner for replacing should the original be destroyed or rendered unsuitable • A copy made of broadcast for domestic or private use • Use by educational institutions, libraries and the government • Implied license Consequences of Copyright Infringement Injunction, damages, account for profits or statutory damages BUSINESS LAW REVISION 7(a) The Sales of Goods Act is an important legislation. Describe the importance of the Act to facilitate trade. (10 marks). Answer Scope of Sales Of Goods Act • Sale of goods apply only to “sales of goods.” • Sale of Goods Act can apply to web based transactions and both seller and buyer in Singapore. • If parties are from different countries the Sale of Goods Act may still be applicable provided Singapore Law governs the transaction. BUSINESS LAW REVISION 7(a) The Sales of Goods Act is an important legislation. Describe the importance of the Act to facilitate trade. (10 marks). • Answer There are five key elements in the Sale Of Goods Act: • Seller • Buyer • Property • Goods • Price Seller • “seller” means a person who sells or agrees to sell goods; Buyer • “buyer” means a person who buys or agrees to buy goods; Property • “property” means the general property in goods, and not merely a special property; BUSINESS LAW REVISION 7(a) The Sales of Goods Act is an important legislation. Describe the importance of the Act to facilitate trade. (10 marks). Answer Scope of Sales Of Goods Act • Sale of goods apply only to “sales of goods.” • Sale of Goods Act can apply to web based transactions and both seller and buyer in Singapore. • If parties are from different countries the Sale of Goods Act may still be applicable provided Singapore Law governs the transaction.
