His girlfriend, Tan Cheng Peng, is also a director and shareholder of the company in which he has a stakeholding with the first and second plaintiffs. He admitted in cross-examination to being the lawyer for this group of people when they had questions like these in the present proceedings. This is a disingenuous contention that desperately attempts to palliate their conduct in the subject transactions. 62 Like the second plaintiff, the fifth plaintiff played a pivotal role in the events leading to these proceedings. 102 Inevitably mistakes will occur in the course of electronic transmissions. Scorpio: 13/01/20 01:43 yeah man whats the original price? Their reference to arbitraging was a nebulous fig leaf designed to legitimise their conduct in a cloak of legal and commercial respectability. 72 To effect the purchase transactions on the respective websites, the plaintiffs had to navigate through several web pages. When, however, the cases provoked by these factual situations are analysed, they will be seen to fall, not into three, but only two distinct legal categories. He is currently self-employed and is intimately involved in the multi-level marketing sales of aromatherapy products under the Bel-Air label. 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. 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. Following closely to the Singapore High Court in Chwee Kin Keong & Others v Digilandmall.com Pte Ltd [2004] 2 SLR 594 as a precedent with similar context, the court would most likely try to determine if there is an existence of a contract or if an agreement has been reached in the first place, so we refer to Lord Phillips in Shogun Finance Ltd v 54 The fourth plaintiff admits that he had entertained the idea at the material time that the price posting could have been an error. The mere fact that they suddenly engage in predatory and atypical behaviour may in itself be telling. It is set in the context of internet contracting. Comments Published in English: [2004] 2 SLR 594; [2004] SGHC 71. There was no element of surprise or prejudice to the plaintiffs as the points raised had already been developed by the defendant and addressed by the plaintiffs. It is simply inconceivable that when he entered into the purchase transaction, he did not know, or at the very least did not have a real and abiding belief that the price posting was an error. The E-Mail Acceptance Rule. 4 The defendant is a company that sells information technology (IT) related products over the Internet to consumers. The product descriptions in all the other pages of the respective websites, at the material time, carried a full detailed description of all advertised products. Chwee Kin Keong v Digilandmall.com Pte Ltd [2004] 2 SLR 594; [2004] SGHC 71. It seems to me that he was trying to tailor his evidence to fit neatly within the legal parameters of the plaintiffs case. CHWEE KIN KEONG v DIGILANDMALL.COM Pte Ltd (2005) SGCA 2. Notwithstanding occasional failure, most e-mails arrive sooner rather than later. The defendant programmed the software. I agree that this exception should be kept within a very narrow compass. There is no merit at all in this contention. 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. Singapore Court of Appeal. 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 such cases, it would be unconscionable to enforce the bargain and equity will set aside the contract, 26 I respectfully agree with the reasoning of ShawJ in. They are described by their counsel in submissions as risk takers, business minded and profit seeking. He made Internet search enquiries as to whether the printer model existed and at what price it could be resold. He somewhat muddied the authority of his observations by apparently accepting in Gallie v Lee [1969] 2 Ch 17 at 33 (affirmed on appeal in Saunders v Anglia Building Society [1971] AC 1004) that in Cundy v Lindsay there was no contract at all. But that, surely, is a question as to where the common law should draw the line; not whether, given the common law rule, it needs to be mitigated by application of some other doctrine. 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. This contention is wholly untenable. The element of constructive knowledge based upon what a reasonable person ought to know is premised upon that person not being conscious of the error. Voces del tesauro. Plaintiffs counsel indicated that they wanted to further particularise the sixth plaintiffs purchase orders. As most web merchants have automated software responses, they need to ensure that such automated responses correctly reflect their intentions from an objective perspective. This provision acknowledges that the essential framework of an electronic contract needs to be considered in the usual manner; in other words, principles of contract formation, consideration, terms and conditions, choice of law and jurisdictional issues need to be examined. The case went before both the High Court and the Court of Appeal. He held that the Written Offer was accepted by the . Desmond: 13/01/20 01:40 if any friend got extra printer u want? If anything, certain portions of the affidavits raised even more doubts about the plaintiffs credibility. Added to his own purchases of 760 units, he was effectively responsible for the purchase of 1,090 laser printers. 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. The other school of thought views the approach outlined earlier with considerable scepticism. Before retiring for the night, the first plaintiff had a further discussion with the second plaintiff on how to store the laser printers they had ordered. The complainants had ordered over 100 printers each at this price. He also called the first plaintiff to see if the latter had managed to successfully complete his purchase. Slade, in a well reasoned article written not long after Solle v Butcher was decided, asserted: In general, it is submitted that there are no cases which support the proposition that in cases of unilateral mistake, V [the enforcing party] may obtain this relief where the contract is not void at law and there has been no misrepresentation. Indeed he had conduct of significant phases of these proceedings on behalf of the plaintiffs. (See for example the approach in, 142 The plaintiffs were bound by personal relationships as well as past and present common commercial interests. 16 When the first plaintiff eventually succeeded in accessing the HP website, he immediately placed an order for 100 laser printers at about 2.05am, charging the transaction to his credit card. MrYeow said: After we ordered, the very next day, some of us have even gone up to talk to buyers in the market about the units. Desmond: 13/01/20 01:24 just ordered 3 colour lazer printer for S$66.00 each. 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. The elements of an offer and acceptance are ex facie satisfied in every transaction asserted in the plaintiffs claims. He then zealously sent at about 2.58am, an e-mail to 54 persons, all of whom were friends and/or business associates. This was borne out by the case of Chwee Kin Keong and Others v. Digilandmall.com Pte Ltd [2004] SGHC 71 where an autogenerated email with "Successful Purchase Confirmation" in its subject . 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. 26 I respectfully agree with the reasoning of ShawJ in Can-Dive Services Ltd v Pacific Coast Energy Corp (1995), 21CLR(2d) 39 (BCSC), where he said at 69-70 that: While I agree with what Madam Justice Mclachlin said so far as it goes, I do not believe she intended to imply that there must be a conscious taking advantage by one party of the other in all cases. http://www.epinions.com/HP_Color_LaserJet_4600_Series_Printer_Printers. Please refer to the PDF copy for a print-friendly version. [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. I was neither impressed nor convinced. 139 Next, the defendant contends that no consideration passed from the plaintiffs to them. 70 The third plaintiff proceeded to place orders on behalf of the sixth plaintiff on the HP website. 14 The first, second and fourth plaintiffs became acquainted with each other when they studied at the Nanyang Technological University (NTU). Chwee Kin Keong and Others v Digilandmall.com Pte Ltd [2004] 2 SLR 594; [2004] SGHC 71 Suit No: Suit 202/2003/E Decision Date: 12 Apr 2004 Court: High Court Coram: V K Rajah JC Counsel: Tan Sok Ling, Malcolm Tan and Mohan Das Vijayaratnam (Tan S L and Partners) for plaintiffs, Philip Fong Yeng Fatt and Doris Chia Ming Lai (Harry Elias The e-mails had all the characteristics of an unequivocal acceptance. 86 In cases where the facts raised in the proposed amendments have been addressed during the evidence and submissions and, particularly, where the opposing side has also had an opportunity to address the very same points, there can hardly ever be any real prejudice. The plaintiffs could not coherently explain why neither they nor their lawyers had not attempted to correct the press reports at the material juncture. In the light of that consideration we can see no way that Solle v Butcher can stand with Bell v Lever Bros Ltd. The plaintiffs were not being candid when they portrayed very limited exchanges between themselves, dealing allegedly with only the profits to be made and their ability to resell the laser printers. If there appears to be no reasonable explanation for an absurd price discrepancy, it is axiomatic that any hasty conduct, such as the plaintiffs, in snapping up products, should be punctiliously scrutinised and dissected. This is a matter perhaps best left to law reform rather than to incremental judge-made law which may sow the seeds of confusion and harvest the returns of uncertainty. It has been pointed out that the pedigree of these decisions is dubious, to say the least (see [128] and [129] infra). There is however much to be said in favour of rationalising the law of mistake under a single doctrine incorporating the best elements of common law and equity. Having ascertained that the laser printer was being advertised at $66, he decided to undertake further online searches through Yahoo.com and Ebay.com. 154 Interestingly, of the 784 persons who placed 1,008 orders for 4,086 laser printers, only these six plaintiffs have attempted to enforce their purported contractual rights. Having noted all this, I am nevertheless inclined towards the views expressed in the Great Peace Shipping case for the reasons articulated by Lord PhillipsMR. Someone referred me to the HP website which shows the price of this HP Colour LaserJet 4600 Series as S$66.00. In the Singapore context a similar approach has been adopted by the Court of Appeal in Aircharter World Pte Ltd v Kontena Nasional Bhd [1999] 3 SLR 1 at [30] and [31], and Projection Pte Ltd v The Tai Ping Insurance Co Ltd [2001] 2 SLR 399 at [15]. This assertion is patently untrue. Administration law is the actions made by a government, which adversely affects an individual. The plaintiffs are, however, entitled to the cost of the amendments, in any event, which I fix at $1,000. In the context of the present proceedings, the extra-judicial observations of Lord Steyn in Contract Law: Fulfilling the Reasonable Expectations of Honest Men (1997) 113LQR 433 at 433 are particularly apposite: A thread runs through our contract law that effect must be given to reasonable expectations of honest men. As the reports contradict portions of their present evidence, they have indirectly tried to cast doubt on the accuracy of the reports in so far as the reports referred to them. I must add that these were far from being ordinary printers for home use. His revelation that he did not know if this is an error or whether HP will honour this purchase, not to mention the articulation of his hope that by the time you see this email, the price is still at S$66.00 coz they might change it anytime, are all compelling in reflecting his state of mind and awareness that an error had occurred. Despite their familial relationship, the legal relationship between the two of them was that of agent and principal. 41 The second plaintiff seems to have redefined the facts to achieve his objective in these proceedings. They were clearly anxious to place their orders before the defendant took steps to correct the error. Taking into account the nature of the claims, the conduct of these proceedings by the plaintiffs and how the case for the plaintiffs unravelled, it would not, all things considered, be appropriate to interfere with the normal order of costs which ought to follow the result. 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. This, in a nutshell, is the issue at the heart of these proceedings. Normally, however, the task involves no more than an objective analysis of the words used by the parties. This is an online dating and match-making service. He said that he wanted to be sure that the offer on the HP website was genuine. The other school of thought views the approach outlined earlier with considerable scepticism. 44 He made his first purchase of ten laser printers at about 2.42am. It had consciously not inserted any limits to the number of products a buyer could purchase again, quite clearly, to solicit more business. If an offeree understands an offer in accordance with its natural meaning and accepts it, the offeror cannot be heard to say that he intended the words of his offer to have a different meaning. As with any normal contract, Internet merchants have to be cautious how they present an advertisement, since this determines whether the advertisement will be construed as an invitation to treat or a unilateral contract. There is one important exception to this principle. Evidence was given that if phone calls were indeed placed, they would from time to time limit the number of sales. 27-30 January; 2-6, 9 February; 13 March; 12 April 2004 . After referring to a series of leading cases, including the often quoted decision of ThomsonJ in McMaster University v Wilchar Construction Ltd (1971), 22DLR(3d) 9 (Ont HCJ), Chief Justice McLachlin said at p37: One circumstance falling clearly within the equitable jurisdiction of the Court to relieve against mistake is that where one party, knowing of the others mistake as to the terms of an offer, remains silent and concludes a contract on the mistaken terms: Solle, supra; Belle River Community Arena v WJC Kaufman Co (1978), 20OR(2d) 447, 4 BLR 231, 87DLR(3d) 761 (CA). 97 Different rules may apply to e-mail transactions and worldwide web transactions. I note that there have been powerful arguments made to the contrary. They have a common interest in bridge and this helped to cement their friendship. Some of the plaintiffs appeared rather coy or ignorant in this regard but I did not find their performance believable. The text of the e-mail further reinforces the point. He subsequently sent the web link to the Epinions website to the first and second plaintiffs. These statements are not to be interpreted as a clarion call to rewrite commercial agreements because of a partys unreasonable or ignoble behaviour. Court name Singapore High Court. It is essential that the law be perceived as embodying rationality and fairness while respecting the commercial imperative of certainty. There is therefore no pre-condition in law for a mistaken party to show an absence of carelessness to avail himself of this defence; the law precludes a person from seeking to gain an advantage improperly in such circumstances. chwee kin keong and others digilandmall.com pte ltd sghc 71 case number suit decision date 12 april 2004 high court coram rajah jc counsel name(s) tan sok ling Skip to document Ask an Expert Sign inRegister Sign inRegister Home Ask an ExpertNew My Library Discovery Institutions Republic Polytechnic London School of Business and Finance A contract is normally concluded when an offer made by one party (the offeror) is accepted by the party to whom the offer has been made (the offeree). He was also a partner in what is described as a printing business. 33 See the Singapore Court of Appeal decision of Chwee Kin Keong v Digilandmall.com Pte Ltd[2005] 1 SLR 502 (noted by Yeo, TM ' Great Peace: a distant disturbance ' (2005) 121 Law Quarterly Review 393 Google Scholar; KFK Low 'Unilateral mistake at common law and in equity' [2005] Lloyd's Maritime and Commercial Law Quarterly 423; and PW . Quoine was operating as a market-maker on their own platform. Altogether, the second plaintiff purchased 180 units, opting for cash on delivery as the payment mode. It would be illogical to have different approaches for different product sales over the Internet. 54 The fourth plaintiff admits that he had entertained the idea at the material time that the price posting could have been an error. LOW, Kelvin Fatt Kin. Because it was simply a matter of time before the error would inevitably be noticed and the pricing inevitably corrected. The rules of offer and acceptance are satisfied and the parties are of one mind. The third plaintiff informed him that laser printers were being sold at $66 each and that these laser printers could be sold at a much higher price about a thousand plus. The defendant has expressly pleaded unilateral mistake. If he was prepared to commit this view in writing to a larger circle of 54 friends and business associates after his communication with the second and third plaintiffs, he would certainly have shared this view with his close friends with even greater candour and detail. . . After the defendant intimated that it would not be delivering the laser printer, he sent an e-mail excoriating it, asserting, inter alia: Myself, and other people who have been disappointed by you decision, will definitely spread word of the companys lack of honour and integrity to everyone we know and all over the internet! The second, third, fourth and sixth plaintiffs are the only individuals who ordered more than a hundred laser printers each. Counsels approach is flawed. The only court judgement on the theme is Chwee Kin Keong v. Digilandmall.com Pte Ltd, a judgement of the Singapore High Court. Who bears the risk of such mistakes? Not all one-sided transactions or bargains are improper. Indeed this appears to be the underlying rationale for the unique legal characteristics attributed to an invitation to treat; see Grainger & Son v Gough [1896] AC 325 at 333334, Esso Petroleum Ltd v Commissioners of Customs & Excise [1976] 1All ER 117 at 126. There cannot be any legitimate expectation of enforcement on the part of the non-mistaken party seeking to take advantage of appearances. I find it inconceivable, to say the least, that the fifth plaintiff would have placed an order for 100 laser printers without the conviction that it was in fact a current market model with a real and substantial resale value. He appears to have been in constant communication with the second plaintiff and to have received and read the mass e-mail from the first plaintiff after he placed his first purchase order. It appears that he was also in touch with the fifth plaintiff as evidenced by an e-mail sent later that morning by the fifth plaintiff to both him and the second plaintiff containing research on what companies who had made similar Internet errors did. Unlike instances of fraud, where it is said fraud unravels the existing contract, in instances of unilateral mistake, the very existence of the contract is negatived there is no consensus. 93 Website advertisement is in principle no different from a billboard outside a shop or an advertisement in a newspaper or periodical. The plaintiffs and the defendant later reached an agreement to dispense with any further oral evidence, save for that of Tan Cheng Peng. Someone referred me to the HP website which shows the price of this HP Colour LaserJet 4600 Series as S$66.00. This contention is wholly untenable. When considering the appropriate rule to apply, it stands to reason that as between sender and receiver, the party who selects the means of communication should bear the consequences of any unexpected events. He graduated from NTU as a bachelor of business studies, specialising in financial analysis. 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. 64 The fifth plaintiff was vague and tentative in many crucial aspects of his evidence. 136 First, it was suggested that no contracts had been formed as all the contracts were subject to availability and that a failure to adhere to the directive call to enquire prevented the contracts from coming into existence. Although a mistaken party will not often be able to discharge the onus of showing that the other party knew or must have known that he or she intended terms different from the terms of the offer or acceptance, it is not a necessary element that the party seeking to enforce the contract has actively contributed to the others mistake. Unfortunately, they mistakenly offered the price at so much per pound in place of so much per piece. The case of Chwee Kin Keong & Ors v Digilandmall.com Pte Ltd [2004] SGHC 71, and the decision by VK Rajah JC, has received much public attention. Court Judgement chwee kin keong and others digilandmall.com pte ltd slr sghc 71 suit no: suit decision 12 apr 2004 date: court: coram: counsel: high court rajah Skip to document Ask an Expert Sign inRegister Sign inRegister Home Ask an ExpertNew My Library Discovery Institutions London School of Business and Finance SAA Global Education So there is a contract and therefore the defendant is liable in breach of contract. In a physical sale, the merchant can immediately turn down an offer to purchase a product that has been advertised; otherwise he may be inundated with offers he cannot justify. As part of its business, it operates a website owned by Hewlett Packard (HP) at http://www.buyhp.com.sg (the HP website) where only HP products are sold. It cannot also be seriously argued that there was no intention to enter into a legal relationship. He claimed he wanted to find out how much profit he could make. 53 He claimed that seeing the same price on the Digilandmall website confirmed his view that there had been no mistake. At 4.15am, he sent an email to the first plaintiff, copied to the second plaintiff, with a happy emoticon following check out the prices here (see [19]. 52 He then called the second plaintiff on his handphone and informed him that he intended to purchase 50 laser printers. When the defendants discovered this mistake on their website, they sent an email to the complainants to say they would not be fulfilling this order. Upon accessing the Digilandmall website and confirming that the printer was offered there at $66 as well, he placed a further order for 25 laser printers through that website at about 3.29am. Quite apart from this singularly precise timing, his exchange with Ms Toh is noteworthy for the following reason: when he told her about the various concluded purchases of the laser printers, she immediately thought it was a mistake and that HP would not honour the contracts. The first, second and third plaintiffs have been friends for a long time and are bound by common business interests. No modern authority was cited to me suggesting an intended commercial transaction of this nature could ever fail for want of consideration. 13 The first plaintiff, Chwee Kin Keong, is 29 years old. He holds an accounting degree from NTU. In addition, Tan Cheng Peng, the girlfriend and business associate of the third plaintiff, filed an affidavit detailing her communications with him. Scorpio: 13/01/20 01:17 what hp online?? Case name. Different protocols may result in messages arriving in an incomprehensible form. v . A court is not likely to take a sympathetic view of such manner of amendment. No rights can pass to third parties. 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. As a lawyer, he appears to have been indispensable in the plaintiffs attempts to hold the defendant to the bargain. So its going to be our reputation at stake, we thought we had a successful transaction.. First, it is clear that the line of Australian and Canadian cases have broadened their equitable jurisdiction on the strength of dicta attributable principally to Lord Denning. While the first plaintiff was the source of the information concerning the price posting, the second plaintiff actively communicated with all of the plaintiffs (save the sixth plaintiff), throughout the material period. 60 Prior to placing his order, he was again contacted by the second plaintiff. 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. Indeed, I am satisfied to the contrary. The evidence incontrovertibly indicates that the first plaintiff himself entertained this view for the entire period he was in communication with the second and third plaintiffs. He was also involved in initiating the Channel NewsAsia report (see [78] and [79] infra). 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 . Desmond further informed the first plaintiff that the sale price of each laser printer was in the region of $3,000 to $4,000. After hearing their evidence, observing them and considering the submissions made on their behalf, there was no doubt in my mind that they were fully conscious that an unfortunate and egregious mistake had indeed been made by the defendant. It is germane to observe that none of the cases purporting to follow Solle v Butcher [1950] 1 KB 671 have with any degree of clarity defined the parameters of equitable mistake in contradistinction to a common law mistake. The rigour in limiting this scope is also critical to protect innocent third party rights that may have been acquired directly or indirectly. The fact that the acceptance was automatically generated by a computer software cannot in any manner exonerate the defendant from responsibility. . Rather they assist in explaining how the common law has incrementally and cautiously allowed and continues to mould exceptions to the application of the objective theory of contracts. The defendants argued this pricing was a unilateral mistake and that the complainants took advantage of this. 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. Notwithstanding some real differences with posting, it could be argued cogently that the postal rule should apply to e-mail acceptances; in other words, that the acceptance is made the instant the offer is sent.