Architecture firm wins case but not settlement it seeks

SINGAPORE - An architecture firm founded by the late president Ong Teng Cheong will have to settle for $2.6 million from a lawsuit it won against a developer, instead of the $10 million it was seeking.

This is because Ong & Ong had offered to settle for the smaller amount from Fairview Developments in 2011, before the case went to court, and never withdrew its offer, even when the court case went its way.

Now the High Court has ruled it must abide by its standing offer, which was accepted last year by Fairview on the very day the Court of Appeal ruled it was liable for damages.

Under court rules, an offer to settle (OTS) can be accepted any time before it is withdrawn or lapses when a case is concluded in court.

In this case, it had not concluded, as the Court of Appeal then directed that damages be assessed by a registrar. That meant Fairview was still eligible to accept the offer - which it did.

Justice Lee Seiu Kin, in judgment grounds released on Thursday, said: "I can see nothing in the manner in which (Fairview) accepted the OTS that could operate to deprive them of the right to accept the OTS..."

He added: "If (Fairview) chose to accept near the conclusion of the suit it is because that (Fairview) has deemed it to be in its best interest to do so."

Senior Counsel Hri Kumar Nair had argued that Fairview was free to accept the offer, as it had never been withdrawn by Ong & Ong. But Ong & Ong's lawyer, Mr Mohan Pillay, countered that the offer was for the original matter, which comprised both Ong & Ong's claim and a counterclaim by Fairview.

Since Ong & Ong pursued an appeal, but not Fairview, that meant its counterclaim segment was done. This meant, in turn, the whole matter had been disposed of, including the offer.

Justice Lee would have none of that and held that the terms of acceptance had to be made clear by the party making it. He said the court should come down "in favour of clear drafting in terms of unambiguous offers and expiry dates".

The case is over a 1983 contract in which Fairview hired Ong & Ong and its predecessor to develop a 16.2ha plot of land in the Yio Chu Kang Road area.

After the firm completed the third of four phases of work on the site, Fairview wanted to terminate the contract and assign Phase 4 to another firm. The architecture firm sued and won in the Court of Appeal last year for loss of profits and fees for work already done for Phases 3 and 4.

Ong & Ong is appealing against Justice Lee's decision.

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