Harry Elias Partnership LLP acted successfully for Anti-Corrosion Pte Ltd in its appeal against Berger Paints Singapore Pte Ltd in the Court of Appeal. The Appellant is an established Singapore company in the construction industry and a specialist in paint application works, while the Respondent is an international paint manufacturer and supplier. The Court of Appeal reversed the decision of the High Court and held that the appellant had proved that widespread discolouration defects on the project site were caused by defects in the Respondent’s paint’s formulation and held it to be liable in damages to the Appellant. In addition, the Court of Appeal held that the Respondent could not rely on its exclusion clauses in its invoices and delivery orders to limit or exclude its liability as it had earlier provided express representations and warranties to the appellant which nullified the exclusion clauses.
This decision is very significant in commercial/business transactions. It provides that in certain circumstances, notwithstanding the presence of standard exclusion clauses, the Courts are prepared to allow the incorporation of pre-contractual representations and warranties as part of contractual terms between business entities which can render the exclusion clauses ineffective in law. The decision also underlines the importance of comprehensive and sound expert evidence in proving or disproving any product defects in the construction industry.
Managing Partner, Philip Fong and Partner, Jonathan Yuen acted for the successful Appellant in the Appeal.