chwee kin keong v digilandmall high court chwee kin keong v digilandmall high court

The decision of V.K. Being fully conscious of the pivotal nature of this point, I have duly accorded particular attention to the evidence and credibility of each of the plaintiffs. 48 The third plaintiff annexed to his affidavit the transcript of the Channel NewsAsia report where he was quoted. Such errors can be magnified almost instantaneously and may be harder to detect than if made in a face to face transaction or through physical document exchanges. There is often, but not inexorably, a co-relationship between the timing when the amendment is sought and the adverse consequences for the other party. What is urged is that, owing to a common error as to some fundamental fact, the agreement is robbed of all efficacy. They want Digiland to honour the deal or at least to compensate them. It will firstly discuss the fact that such a tort Our academic writing and marking services can help you! The non-mistaken partys appreciation that there is no real offer on the contracts literal terms undermines the basis of the objective theory and necessarily imports the lack of subjective intention on the part of the mistaken party. Civil Procedure Pleadings . 18 He said he later conducted some searches using the Google search engine and ascertained that the laser printer could be sold at about US$1,300 in certain markets. The rules of offer and acceptance are satisfied and the parties are of one mind. (See for example the approach in, 142 The plaintiffs were bound by personal relationships as well as past and present common commercial interests. He tried to convey the impression that it never struck him that a mistake in the price posting of the laser printer could have occurred. Caveat emptor remains a cornerstone of the law of contract and business relationships. 31 He admitted receiving a call from the first plaintiff at about 2.00am but claimed the first plaintiff merely apprised him of a good deal. After further sms exchanges, the second plaintiff contacted the fifth plaintiff on his mobile phone, urging him to return home to access the e-mail message he had just sent. This assertion is patently untrue. This was not noticed by the company until over 4,000 printers were ordered. It has been pithily said that the rules of procedure should be viewed as a handmaiden and not a mistress, to be slavishly followed. Chwee Kin Keong v Digilandmall.com Pte Ltd. Case Nos: Suit 202/2003/E (for the first instance), CA/30/2004 (for the appeal) in the High Court of Singapore (at first instance), Singapore Court of Appeal. From time to time they communicate with each other via the Internet and the short messaging system (sms). Two issues had arisen. This may have created formatting or alignment issues. The plaintiffs orders were processed by the defendants automated system and confirmation notes were automatically despatched to the plaintiffs within a few minutes. It can be noted, however, that while s15 of the ETA appears to be inclined in favour of the receipt rule, commentaries indicate that it is not intended to affect substantive law. Merchants may find their contracts formed in foreign jurisdictions and therefore subject to foreign laws. 127 The attempt to conflate the concept of common law mistake and the equitable jurisdiction over mistake is understandable but highly controversial. The E-Mail Acceptance Rule. Chwee Kin Keong and others v. Digilandmall.com Pte Ltd. [2004] SGHC 71. It is postulated by many of the leading treatises that equity has a broad church incorporating a more elastic approach and a court of equity may rescind a contract, award damages or, in limited circumstances, fashion a remedy, to suit the justice of the matter. He is also described as the sole proprietor and manager of two other businesses that provide business support and consultancy. Ltd.1 has the makings of a student's classic for several reasons: it presents a textbook example of offer and acceptance; it is set in the context of internet contracting; it involves the use in evidence of email, instantaneous messaging, and short messaging system (SMS); and it . 37 The second plaintiff was insistent in his evidence that there was no communication from the first plaintiff alerting him to the likely existence of the mistake; he contends the first plaintiff merely apprised him of a good deal and sent him the weblink to the HP website. 105 It is not only reasonable but right that the objective appearance of a contract should not operate in favour of a party who is aware, in the eyes of the law, of the true state of affairs when, for instance, there is real misapprehension on the part of the mistaken party and when the actual reality of the situation is starkly obvious. The recipients of this e-mail included the second, fourth, fifth plaintiffs and Tan Cheng Peng, the third plaintiffs girlfriend. 131 In a number of cases, including the present, it may not really matter which view is preferred. He claimed that he had not asked her to do the research and that she had done it independently. 36 The second plaintiff was the key person and pivotal in the entire chain of events. The first and fifth appellants each ordered a hundred printers, while the other appellants ordered more than a hundred printers each. Take a look at some weird laws from around the world! Just as the Law Reform (Frustrated Contracts) Act 1943 was needed to temper the effect of the common law doctrine of frustration, so there is scope for legislation to give greater flexibility to our law of mistake than the common law allows. He graduated from NTU as a bachelor of business studies, specialising in financial analysis. Similar works. Rules and case law pertaining to amendments are premised upon achieving even-handedness in the context of an adversarial system by: (a) ensuring that the parties apprise each other and the court of the essential facts that they intend to rely on in addressing the issues in controversy or dispute; (b) requiring that an amendment should be attended to in the usual course of events, at an early stage of the proceedings, to ensure that no surprise or prejudice is inflicted on or caused to opposing parties; (c) requiring careful consideration whether any amendments sought at a late stage of the proceedings will cause any prejudice to the opposing party. The defendant, Digilandmall.com Pte Ltd, were an online IT company that sold related software and hardware from Singapore. In addition, Tan Cheng Peng, the girlfriend and business associate of the third plaintiff, filed an affidavit detailing her communications with him. Web Communication: A Review Of Chwee Kin Keong And Others v. Digilandmall.com pte ltd by Rokiah Kadir [2009] 8 CLJ xxi. Lord Phillips of Worth MatraversMR observed in a withering analysis at [156], [157], [160] and [161]: Thus the premise of the equitys intrusion into the effects of the common law is that the common law rule in question is seen in the particular case to work injustice, and for some reason the common law cannot cure itself. Altogether he sought to purchase 760 units, the largest number of orders placed by anyone between 8 and 13January 2003. [2005] 1 SLR(R) Chwee Kin Keong v Digilandmall Pte Ltd 521. whether constructive knowledge by a non-mistaken party of the mistake would suffice to vitiate the contract ab initio. The Canadian and Australian cases have moved along with the eddies of unconscionability. He offered no plausible explanation for the series of orders which he placed while he was in communication with the other plaintiffs, other than stating audaciously that he had to buy a lot to sell a lot, to get a lot. Articles 11 (1) Country Singapore. The very foundations of predictability, certainty and efficacy, underpinning contractual dealings, will be undermined if the law and/or equity expands the scope of the mistake exception with alacrity or uncertainty. In addition, each of the confirmatory e-mail responses states at the outset: [W]e will be calling you in the near future to deliver the products to the address shown below. But there would have, at least, to be some real reason to suppose the existence of a mistake before it could be incumbent on one party to question whether another party meant what he or she said. In this case we have heard full argument, which has provided what we believe has been the first opportunity in this court for a full and mature consideration of the relation between Bell v Lever Bros Ltd [1932] AC 161 and Solle v Butcher. In that sense, it is akin to ordinary posting. This gives their courts a broad and elastic jurisdiction to deal with commercially inappropriate behaviour. The court found that parties when . The e-mails sent at 2.34am were also captioned Go load it now! 40 When the fourth plaintiff responded to the first plaintiffs mass e-mail, he copied his response to the second plaintiff. When giving evidence, he struck me as cautious, taking great pains to convey the impression that his numerous online enquiries that morning were routinely carried out without any real inkling that an error had occurred. It was only then that the defendant promptly took steps to remove all references to the laser printer from all three websites. 130 It can be persuasively argued that given (a)the historical pedigree of the cases, (b)the dictates of certainty and predictability in the business community and (c)the general acceptance of the existence of distinct common law rules, it is preferable not to conflate these concepts. This is a disingenuous contention that desperately attempts to palliate their conduct in the subject transactions. There are, however, other sound reasons to argue against such a rule in favour of the recipient rule. Added to his own purchases of 760 units, he was effectively responsible for the purchase of 1,090 laser printers. There is no question, however, that he placed the orders, that these orders were received by the HP website and that the same automated response sent to the other plaintiffs was sent out to him. Case law Chwee Kin Keong v Digilandmallcom Pte Ltd suggests that General Rule. The fact that the acceptance was automatically generated by a computer software cannot in any manner exonerate the defendant from responsibility. No cash had been collected. Altogether different considerations may arise if a party, at a late stage, seeks through an amendment to adduce further evidence to support that same amendment. For example, in the Singapore High Court decision of Chwee Kin Keong v Digilandmall.com Pte Ltd [2004] 2 SLR 594 ("Digilandmall"), affirmed on appeal in Chwee Kin Keong v Digilandmall.com Pte Ltd [2005] 1 SLR 502 without considering this particular issue, V K Rajah JC (as he then was) observed, as follows (at [139]): Voces del tesauro. The sixth plaintiff is precluded from asserting his ignorance. Administration law is the actions made by a government, which adversely affects an individual. (c) the need to reach commercially sensible solutions while respecting traditional principles applicable to instances of genuine error or mistake. After the defendant intimated that it would not be delivering the laser printer, he sent an e-mail excoriating it, asserting, I felt that I had done all that was conceivably within my means to ensure that the Price was. The issue could be critical where third party rights are in issue as in. This constituted more than a quarter of the total number of laser printers ordered. 55 The fourth plaintiff is technologically savvy and runs an Internet business with the second plaintiff. 74 Under product description on each webpage, instead of the actual description of the laser printer which in this case should have been HP9660A Color LaserJet 4600, only the numerals 55 appeared: this was the result of Samuel Teos earlier inadvertent input. Delivery was merely a timing issue. Quoine was operating as a market-maker on their own platform. Their conduct in pursuing their claims cannot by any stretch of the imagination be characterised as having the slightest colour of being legitimate regardless of whether the subjective or objective theories are applied and whether common law or equity is applied in adjudicating this matter. The mere fact that they suddenly engage in predatory and atypical behaviour may in itself be telling. In the Singapore context a similar approach has been adopted by the Court of Appeal in, 105 It is not only reasonable but right that the objective appearance of a contract should not operate in favour of a party who is aware, in the eyes of the law, of the true state of affairs when, for instance, there is real misapprehension on the part of the mistaken party and when the actual reality of the situation is starkly obvious. While a court of law does not sit as a court of commercial morality, it cannot lose sight of this central objective of contract law. The pleadings, in such instances, merely formalise what is already before the court. In the absence of proper and full arguments on the issue of which rule is to be preferred, I do not think it is appropriate for me to give any definitive views in these proceedings on this very important issue. Secondly, widening the scope of mistake, unilateral or otherwise, under the rubric of equitable mistake will, with its malleability, only encourage uncertainty and litigation. It can be persuasively argued that e-mails involving transactions embraced by the Convention are only effective on reaching the recipient. 108 Chitty on Contracts (28th Ed, 1999) vol1 observes at para5-035: It is not clear whether for the mistake to be operative it must actually be known to the other party, or whether it is enough that it ought to have been apparent to any reasonable man. 50 Ow Eng Hwee, 29 years old, is another network marketing entrepreneur. See now, also, 22 The exchange between the first plaintiff and Desmond provides an intimate and revealing insight into the first plaintiffs thought process at the material time; the exchange fluctuated between bantering on the one hand, to nothing short of the candid exchange of thoughts on the other, revealing that the first plaintiff was fully aware of the likely existence of an error in pricing. Users may find that it may not be as forgiving as more traditional methods of communications. This may be too high a price to pay in this area of the law. The unusual product description of 55 which the fourth plaintiff alone reluctantly acknowledged as weird and unusual would have been a red light signal that an error had occurred. If this rule applies to international sales, is it sensible to have a different rule for domestic sales? It is not in dispute that the defendant made a genuine error. In principle, there is no difference between amending particulars and amending say, a cause of action, defence or any other part of substance in a pleading. As such, I would strongly appeal to you to reconsider your decision. The fourth plaintiff duly accessed the e-mail the second plaintiff had sent him pursuant to their conversation. He was also involved in initiating the Channel NewsAsia report (see [78] and [79] infra). The contract was held to be void because there was no consensus on the terms. Not all one-sided transactions or bargains are improper. Borneo United Sawmills Sdn Bhd v. MUI Continental Insurance Bhd (Marine insurance - Loss of goods - Claim for loss of goods under Marine Cargo Policy) [2009] 8 CLJ 217. I do not accept that there were no discussions between them on the price posting being an error. This is in contrast to the English position where after several decades Hartog v Colin & Shields still remains the locus classicus. A number of them have very close relationships, with some of them even sharing common business interests. 2. Slade, in a well reasoned article written not long after, 128 The most significant judicial pronouncement supporting this view emanates from the recent English Court of Appeal in, Thus the premise of the equitys intrusion into the effects of the common law is that the common law rule in question is seen in the particular case to work injustice, and for some reason the common law cannot cure itself. It is plain that the defendant had given careful consideration to this issue and was prepared to contract on the basis that it would be able to comply with any orders hence, there was no reference to any order being subject to stock availability. [emphasis added]. The neutral citation of the case Chwee Kin Keong and others v Digilandmall.com Pte Ltd is as follows: This citation tells us that this was the 71st case in 2004 decided in the Singapore High Court. He was also a partner in what is described as a printing business. The amounts ordered and the hurried and hasty manner in which the orders were executed are of cardinal importance. In support of the latter it might be argued that unlike a posting, e-mail communication takes place in a relatively short time frame. In light of these general observations, I now address the law on unilateral mistake. I found their attempts to play down the impact of the statements which they had, to all intents and purposes, willingly and deliberately made earlier, unconvincing. When notified and satisfied that this transaction was successful as well, he placed a final order at 4.21am for ten laser printers on the HP website, charging this to his credit card. It is asserted that since mistake had not been pleaded as an equitable defence, equity cannot be invoked by the defendant. This was summarily resolved. I have found that the plaintiffs had at all material times knowledge of or, at the very least, a real belief that an error had been made by the defendant in the price posting. Indeed he had conduct of significant phases of these proceedings on behalf of the plaintiffs. Phang, Controversy in Common Mistake [2003] Conv 247; Reynolds, Reconsider the Contract Textbooks (2003) 119LQR 177. Chwee Kin Keong and Others v Digilandmall.com Pte Ltd, Whether amendment of particulars of pleadings at conclusion of submissions allowed, Facts raised in proposed amendments addressed during trial and submissions, Whether promise by buyer to pay for goods, in exchange for delivery of goods, constituted sufficient consideration, Electronic Transactions Act (Cap 88, 1999 Rev Ed), Whether automated e-mail responses from seller amounted to acceptance of buyer's offer, Seller's unilateral mistake as to price of goods posted on website, Whether online buyer entitled to enforce contract against seller, 3 All six plaintiffs are graduates, conversant with the usage of the Internet and its practices and endowed with more than an adequate understanding of business and commercial practices. By their own admission, they made Internet searches through various search engines to ascertain the profits they could make. Placing an advertisement on the Internet is essentially advertising or holding out to the world at large. The plaintiffs assert they were not aware of the defendants mistake when they placed their orders, and had believed the offer was genuine. 132 It can be seen from this brief excursus into the law of mistake that this is an abstruse area. The leading Canadian decision in this area is the case of McMaster University v Wilchar Construction Ltd (1971) 22DLR(3d) 9 which, incidentally, was cited with approval by the Australian High Court in Taylor v Johnson. Date of Verdicts: 12 April 2004, 13 January 2005. There are two types of orders relevant: market orders and limit orders. 12 The plaintiffs both collectively and individually maintained adamantly that while they thought that the price of $66 appeared to be a good deal they did not think that the website prices had been mistakenly placed or inserted. His evidence pertaining to the material points of knowledge and his communications with the other plaintiffs lacked credibility. The Vienna Sales Convention (the Convention) applies in Singapore as a consequence of the Sale of Goods (United Nations Convention) Act (Cap283A, 1996Rev Ed). He is currently self-employed and is intimately involved in the multi-level marketing sales of aromatherapy products under the Bel-Air label. The reach of and potential response(s) to such an advertisement are however radically different. The other knows, or must be taken to know, of his mistake. Lord Griffiths in, 87 It appeared to me that the extract from, 88 The fact that the amending party has been tardy or even negligent is a factor that a court can (and in some egregious cases, should) take into account but this is by no means a decisive factor (, 95 The known availability of stock could be an important distinguishing factor between a physical sale and an Internet transaction. He was also involved in initiating the Channel NewsAsia report (see [78] and [79], 77 Soon after the defendant informed the plaintiffs that they did not intend to deliver the laser printers, the plaintiffs took their claims to the press. Entores Ltd v Miles Far East Corp. [1955] 2 Q.B. The law ought to take a practical approach in dealing with such cases if it appears that by exercising reasonable care the true facts ought to be known. The relevant text reads: WHILE surfing the Net at about 2am on Monday, MrTan Wei Teck stumbled upon an offer he could not believe $66 for a Hewlett Packard laserjet printer that normally sells for $3,854 before GST. From time to time there will be cases where this is an overriding consideration. These orders were placed at a price of S$66 each, whereas the actual price was S$3,854 each. Evidence was given that if phone calls were indeed placed, they would from time to time limit the number of sales. To assert that as a rule, leave to amend particulars will be refused, is both illogical and incorrect. 63 It is pertinent he too made web searches using the Google search engine. It argues that the decision is both fair and economically grounded, and proposes an alternative view to that offered by classical contract law - one that sees fairness intertwined In Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd, the English Court of Appeal decided that Solle v Butcher was wrong to hold that there was an equitable doctrine of common mistakes. The shopping cart website page carried the insertion call to enquire under the heading Availability of product. His Internet research alone would have confirmed that. The payment mode opted for was cash on delivery. China-Singapore "One Belt One Road" International Business Cases Digest Part 1 -"" () 457-463 (2020, published by the Singapore and People's Republic of China Supreme Courts . The caption in each of the e-mails Successful Purchase Confirmation from HP online says it all. After the second plaintiff read out some of the terms and conditions he had found, the fifth plaintiff told him that the contract was binding upon a successful purchase order being received. At 4.16am he placed another order for one laser printer, by credit card, on the HP website. It is pertinent to note that she placed orders for 32 laser printers including 20 units she ordered on behalf of her sister. The elements of an offer and acceptance are, 139 Next, the defendant contends that no consideration passed from the plaintiffs to them. As a matter of fairness, allowing amendments at a late stage should usually go hand in hand with granting leave to the other party to adduce further evidence, if necessary. His credibility on the material points was dubious, at best. Thus, 119 It is apparent from this overview that the Canadian courts have integrated through their equitable jurisdiction the concept of common law mistake within the rubric of unconscionability. Media reports after the discovery of the mistake. The present article analyses the many important issues that are raised by what is probably the first case on Internet mistake - the Singapore High Court decision of Chwee Kin Keong v Digilandmall.com Pte Ltd [2004] 2 SLR 594. In such cases, it would be unconscionable to enforce the bargain and equity will set aside the contract. While commercial entities ought not to be given a licence to relax their vigilance, the policy considerations in refusing to enforce mistaken agreements militate against attaching undue weight to the carelessness involved in spawning the mistake. If the common law continues to take precedence, then an essential mistake would void a contract ab initio. Case Summary 76 On Monday, 13January 2003, at about 9.15am, an employee of the defendant received a call from a prospective customer inquiring whether the defendant was aware of the posted price of $66 for the laser printers on the HP website. 82 The plaintiffs strenuously opposed the defendants amendments principally on the ground it was made at a late juncture. Alarm bells would have sounded immediately. They assert that spending only $105,996 to procure laser printers with an actual market value of $6,189,524 is wholly irrelevant; they are entitled to a good bargain. Interestingly, Desmond also remarked to the first plaintiff that he wasnt greedy before I tok to u. June Proctor, 1997, p. 13. This constituted more than a quarter of the total number of laser printers ordered. 26 It is clear from the priority status accorded to the e-mail that the first plaintiff was sharing his knowledge of a good deal. Promotions would be indicated by a P inside a yellow circle next to the product in question. The complainants argued that they were not aware that this price was a mistake and wanted the binding contract to be fulfilled. 87 It appeared to me that the extract from Singapore Civil Procedure 2003 relied on by the plaintiffs was blindly lifted from earlier editions of the English White Book without any consideration as to how it dovetails with the present procedural climate. No harm trying right? In Chwee Kin Keong v. Digilandmall.com Pte Ltd ,1 one of the defendant's employees mistakenly uploaded the contents of a training template onto the defendant's website, resulting in the retail price of S$3,854 for a commercial laser printer on the website being replaced with the figure S$66. It is, in large measure, determined by making an objective appraisal of the exchanges between the parties. [emphasis added]. 47 Not content with making his own purchases, he woke up his brother and transacted 330 units on his behalf. Introduction The decision of V.K. Such conduct is akin to that of an unscrupulous commercial predator seeking to take advantage of an error by an unsuspecting prey by pouncing upon it before the latter has an opportunity to react or raise a shield of defence. Soon after, the second, third and fifth plaintiffs took their claims to the media. The essence of unilateral mistake is the knowledge or deemed knowledge of a mistake and though fraud may often be present it is not an essential ingredient. He subsequently sent the web link to the Epinions website to the first and second plaintiffs. 7 At about 3.36pm, Samuel Teo, an employee of DIL, inadvertently uploaded the contents of the training template onto the Digiland commerce website operated by DIL, in place of the test website allocated for the training. (See for example the approach in Williams v Roffey Bros & Nicholls (Contractors) Ltd [1990] 1AllER 512.) 100 There is however another statute that ought to be taken into consideration in determining the appropriate default rule in e-commerce transactions. chwee kin keong v digilandmall high court. Mutual promises, by all accounts, on the basis of existing case law, more than amply constitute consideration. The fifth plaintiff, even if he had not been alerted by the second plaintiff, would have instinctively appreciated the existence of a manifest error without any prompting whatsoever.