The Boston Deep Sea Fishing principle

This principle is difficult to apply for contractual rights which usually require specific facts to justify the termination,
but it may still be applied for contractual rights if the contractual context does not require specific facts to be relied
upon, as long as grounds for termination exist. If this is available, it does not matter if the terminating party was
not aware of the facts at the time.

- Alliance case: It is a long established rule of law that a contracting party, who, after he has become
entitled to refuse performance of his contractual obligations, gives a wrong reason for his refusal, does not
thereby deprive himself of a justification which in fact existed, whether he was aware of it or not.

228 For ERA 101, Seraya purported to terminate under cl 8.2.1, which reads:

8.2 [Seraya] shall be entitled to terminate the Contract Duration and cease Retailing

electricity to [DAPL] immediately by written notice to [DAPL] if:

8.2.1. [DAPL] fails to pay any amount due and payable to [Seraya] under this

Agreement; …

229 As mentioned, Seraya continued to supply Denka with electricity for some time after 20 August

2014. However, we do not think that constitutes affirmation of ERA 101. Despite repeated requests on

the part of Seraya as seen from the correspondence above, it appears that confirmation of the
unilateral termination on the part of DAPL was not forthcoming. Subsequently, Seraya issued an

invoice to DAPL dated 10 October 2014 for the month of September 2014 based on the contractual

rates (rather than MSSL’s rate which Denka had insisted upon in a letter dated 7 October 2014 to YTL

(see [34(b)] above)). This invoice was not paid up despite a reminder for payment on 7 November

2014. Finally, on 13 November 2014, Seraya wrote to DAPL to terminate ERA 101 as follows:

3. In the circumstances, pursuant to Clause 8.2.1 of the ERA … we are entitled to, and hereby

give you notice of termination of the contract duration, with effect from 14 November 2014 …

4. As a result, pursuant to Clause 8.4 of ERA … you shall pay us all sums payable to us under

the ERA … including the total current charges …

5. Separately, you are also liable for liquidated damages to be computed in accordance

with Clause 8.4.2 of the ERA …

This resulted in Seraya’s termination letter for ERA 101 on 13 November 2014 under cl 8.2.1
(see Seraya Energy (No 1) at [143]).

231 Therefore, we agree with the Judge that Denka was bound by the three ERAs and had
wrongfully repudiated all of them. It bears reiterating that with regard to ERA 99 and ERA 101, whilst
Seraya had relied on an express termination clause in the contracts (ie, Situation 1
of RDC Concrete ([60] supra)), such termination could not be divorced from Denka’s repudiation of
the contracts (ie, Situation 2 of RDC Concrete). We will return to this point later when assessing
the LD clauses (see [282] below).

44(b) for ERA 99, Seraya exercised its right to terminate pursuant to cl 8.2.2 for Denka’s

failure to remedy its breach of the contract (ie, its repudiation) within ten days (see Seraya

Energy (No 1) at [137]); and

(c) for ERA 101, Seraya exercised its right to terminate the contract in November 2014

pursuant to cl 8.2.1 for Denka’s failure to make payment for electricity under an October 2014

invoice (see Seraya Energy (No 1) at [143]).

ERA 99 and ERA 101 were subsequently terminated by Seraya on other grounds in October and
November 2014 respectively, pursuant to the express termination clauses in the contracts.

Denka Advantech Pte Ltd and another v Seraya Energy Pte Ltd and another
and other appeals
[2021] 1 SLR 631

The “Chem Orchid”

[2015] 2 SLR 1020
- Not really relevant since shipping/charter – except for if termination clause specifies must
particularise a cause, the termination notice must do so

SPM Membrane Switch Sdn Bhd v Kerajaan Negeri Selangor

[2016] 1 MLJ 464
- No need for reasons at law
IMPORTANT

CAA Technologies Pte Ltd v HP Construction & Engineering Pte Ltd

[2015] SGHC 32

The Notice of Termination was sufficiently particularised

56 The second reason given by the plaintiff as to why termination was wrongful is that the

defendant did not sufficiently particularise the Notice.[note: 58] It submits that in AL Stainless Industries

Pte Ltd v Wei Sin Construction Pte Ltd [2001] SGHC 243 (“AL Stainless”), Woo Bih Li J held at [158]–

[159] that such notices should leave recipients “in no doubt that the notice was sent pursuant to a

particular provision since complaints or chasers in the construction industry are not uncommon”.

57 The plaintiff submits that the defendant’s factual basis for terminating the plaintiff was

misconceived.[note: 59]
The defendant relied on the plaintiff’s failure to deliver the sixth storey slabs as

one of two reasons for terminating the Subcontract. Under cross-examination, that was revealed to be

erroneous. It should have been the seventh storey instead. [note: 60] On this basis, the defendant submits

that the Letter was without basis.[note: 61]

58 In response, the defendant submits that the facts of AL Stainless can be clearly distinguished

from the instant case. Paragraph 7 of the Notice states that:[note: 62]

Take notice and we hereby demand that unless you take immediate steps to mitigate your

delays and comply with the attached schedule and/or make good your defective precast

components that previously sent to you within the next three (3) days, we shall have no

alternative but to exercise our right to terminate your employment under the Sub-Contract

pursuant to clause 11 of Appendix D – Standards Conditions of Contract.

59 According to AL Stainless, it is important that the plaintiff must be alerted, put on notice

and given an opportunity to comply before the Subcontract is terminated. In my view, the

facts in AL Stainless are different from the facts in the present case. In AL Stainless, Woo Bih Li JC (as

he then was) made his observations in the context of an ambiguously worded Notice of

Termination. The Notice of Termination stated that a one week grace period would be given

to the subcontractors to complete all outstanding work, failing which a new sub-contractor

would be engaged and losses claimed from the subcontractors (at [155(q)]). It was in that

context that Woo JC made his observations that a party who wishes to exercise its right to

terminate should leave the recipient of the notice in no doubt that the notice was being sent

pursuant to a particular contractual provision, although specific identification of the

provision in question is not always required (at [157]–[159]).

60 In AL Stainless, the main contractors did not even mention that it intended to

terminate the contract in the Notice of Termination relied on. By contrast, in the present

case, the defendant made its intentions clear in the Notice. It is clear from the Notice that the

plaintiff was required to deliver the said components within the next three days, and failure to do so

would give the defendant the right to terminate the Subcontract. Further, the evidence indicates that

the plaintiff knew what the components were. Thus I am satisfied that the defendant had a right to

terminate the Subcontract as sufficient particulars were given under the Notice and the procedure for

termination was observed.

Was the defendant entitled to terminate the Subcontract?

46 I have found that the plaintiff repeatedly failed to improve its rate of production of the precast

components, and the components it supplied continued to have numerous defects. All this culminated

in the defendant sending the plaintiff a Notice of Termination (“the Notice”) on 3 April 2013, alleging

that the plaintiff had failed to meet its obligations by: [note: 49]

(a) failing to meet planned delivery schedules of precast components thus causing delay to

the progress of the Main Contract and failing to satisfy clauses 11(a) and (c) of Appendix D –

Standard Conditions of Contract of the Subcontract; and

(b) failing and/or refusing to rectify the defective precast components delivered to the

defendant in breach of clause 11(b) of Appendix D – Standard Conditions of Contract of the

Subcontract.

47 The plaintiff failed to comply with the Notice of Termination. On 8 April 2013, the defendant sent

a Letter of Termination (“the Letter”) to the plaintiff. The Letter alleged that the Project was more

than seven months behind schedule, and that the plaintiff had failed to deliver the precast

components for the sixth storey slab and rectify the defective precast components delivered on or

before 6 April 2013.[note: 50] The issue that arises is whether the defendant’s termination of the plaintiff

in the above manner and circumstances is wrongful.

AL Stainless Industries Pte Ltd v Wei Sin Construction Pte Ltd

[2001] SGHC 243
158. It is incumbent on a party who wishes to exercise its right to terminate a contract or sub-

contract to make it clear that the written notice is being given pursuant to the provision for

termination.
159. Ideally, the written notice should identify the provision that it is issued pursuant to,

although I do not say that this is always necessary (see Supamarl Ltd v Federated Homes Ltd [1981]

9 Con LR 25). However the recipient must be left in no doubt that the notice was sent pursuant to a

particular provision since complaints or chasers in the construction industry are not uncommon.

JURONG WEST N6C28 AND N2C6

METAL WORK SUB-CONTRACT – WORK PROGRESS

Further to our letter ref: WSCPL/COR/JWN 0673/08 dtd 16 Aug 99, we have receive no reply from you

as of now (6.00pm, 17 Aug 99) and it clearly reflect your interest in our projects.

Your work progress and workmanship in the two projects are unacceptable. The delay in your

installation work have delayed our work progress and have come to a point that we can foresee unless

drastic action is taken by us, our completion will be delayed by your performance. It is obvious from

the followings:

Jurong West N6C28

1. Only two workers working July 99. Slow work is delaying our plastering work. – Our letter ref.

WSCPL/COR/JWN6C28 99/07/151 and 152. Dtd 27/7/99

2. ….

3. ….

4. ….

5. ….

It is obvious since July 99, the work progress have been slow down considerably.

Jurong West N2C6

1. Letter on the slow progress of your work.

- our letter ref: WCPL/JWN2C6/SS/45/4/99 dtd 6/4/99

2. ….

3. ….

4. ….

You have time and again failed to proceed with your works with due diligence and expedition after

being required in writing to so.

In order to mitigate our loss, we have no choice but to engage other sub-contractors to complete

your outstanding mild steel and galvanised steel work in both projects. Sun breakers and sun louvres

will also be omitted from your contract. You will only carry on with the stainless steel work. A further

one week grace will be given to you to complete all outstanding work, failing with, we will engage
another party to help you on your work. Without further reference to you if your (sic) fail to complete

all outstanding work, we will engage a new sub-contractor who will be in force with effect from

25/8/99.

Please note that you are still totally liable for the project, and we will claim all losses and expenses

incurred including liquidated damages suffered.

As our projects are been delayed by you (and may suffer liquidated damages as a result) and the

higher cost of completing your outstanding work, the outstanding payment of $90,000.00 will be

withhold until the project is completed.

The above will be of immediate effect.

211 I therefore find that based on the 28 February 2014 Letter, the Defendant no longer has the
right to assert the Plaintiff’s repudiatory breaches as a basis for its termination of the Employment
Contract under common law. The 28 February 2014 Letter unequivocally states that the termination is
effected “pursuant to the terms of the employment contract”. However, given that the Defendant did
not specify the contractual clause it was relying upon, but merely stated that the termination was
pursuant to the terms of the Employment Contract, and in fact, expressly reserved its rights in that
regard at para 6 of the 28 February 2014 Letter, I find that the Defendant is at liberty to rely on either
cll 2, 14 or 20 in the present suit to explain its termination.

209 On the facts, given that the 28 February 2014 Letter clearly evinces an intention to rely on the
contractual rights of termination found in the Employment Contract, the Defendant ought to be bound
by such an election and cannot subsequently rely on a common law right to terminate the contract
pursuant to the Plaintiff’s repudiatory breaches (so as to avoid accrued rights flowing from
a contractual termination).

Piattchanine, Iouri v Phosagro Asia Pte Ltd

[2015] 5 SLR 1257