Chwee Kin Keong v Digilandmall.com (2005) - Singaporean case 3d printers sold for $66 instead of $3,800. The ETA is essentially permissive. In a Straits Times report dated 15January 2003 captioned $66 printer error angry customers seek lawyers help, it was reported that the second plaintiff, described as a network marketer had on 13January at about 2.00am stumbled upon a offer he could not believe $66 for a Hewlett Packard laserjet printer that normally sells for $3,854 before GST. E-mails are processed through servers, routers and Internet service providers. 54 The fourth plaintiff admits that he had entertained the idea at the material time that the price posting could have been an error. Voces del tesauro. 128 The most significant judicial pronouncement supporting this view emanates from the recent English Court of Appeal in Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd [2003] QB 679, a case of common mistake. Adopting an objective standard, executory contracts have in fact been entered into and concluded between the parties. Leave was also given to the plaintiffs to adduce further evidence, if they so desired. 102 Inevitably mistakes will occur in the course of electronic transmissions. 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 object of the exercise is to determine what each party intended, or must be deemed to have intended. The essence is not so much in the nature of the amendment but rather in the consequences flowing from any amendment to the pleadings. Cory had chosen this mode of communication; therefore he This may have created formatting or alignment issues. The following excerpt is particularly significant and compelling: 23 The subsequent exchange further clarifies that the first plaintiff was fully conscious of the potential profit element arising from the purchase of a substantial number of the laser printers. 30 Tan Wei Teck is 30 years old. Established common law principles, in the arena of mistake, ought not be trifled with unless they are so obviously anachronistic and ill-suited to commercial and legal pragmatism. In submissions, his counsel attempted to play down the significance of both this conversation as well as the mass e-mail. The same view is echoed in Halsburys Laws of Singapore vol7 (Butterworths Asia, 2000) at [80.164]. He claims visiting, inter alia, the Epinions and Hardwarezone websites, and though it appears that there was at the material time a discussion thread on the error on the Hardwarezone website, the fourth plaintiff denied having seen this. 54 The fourth plaintiff admits that he had entertained the idea at the material time that the price posting could have been an error. v . He sought to amend his affidavit and testified that if the references in his affidavit implied the acknowledgement of a mistake, they were formulated not by him but by his previous solicitors and were incorrect. 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 . It is not in dispute that the defendant made a genuine error. It is an important subject for the future development of English contract law. 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. He graduated with an accounting degree from NTU. They were selling a HP laser printer and an employee accidently made a mistake as to the price of the printer on their website. COOTE, B. It presents a textbook example of offer and acceptance. It may be impractical and unjust to demand that the mistaken party actually prove the knowledge of a substantial number of people who effect numerous purchases. There cannot be any legitimate expectation of enforcement on the part of the non-mistaken party seeking to take advantage of appearances. [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. Desmond further informed the first plaintiff that the sale price of each laser printer was in the region of $3,000 to $4,000. The Canadian and Australian cases have moved along with the eddies of unconscionability. 101 The applicable rules in relation to transactions over the worldwide web appear to be clearer and less controversial. Where either mutual or unilateral mistake is pleaded, the very existence of agreement is denied. 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. In support of the latter it might be argued that unlike a posting, e-mail communication takes place in a relatively short time frame. Chwee Kin Keong and Others v Digilandmall.com Pte Ltd [2005] SGCA 2 Civil Procedure Costs , Civil Procedure Pleadings , Contract Mistake Decision Date: 13 Jan 2005 . In the final analysis, it would appear that the likely existence of an internal error in pricing was clearly within his contemplation. Case law chwee kin keong v digilandmallcom pte ltd. School Nanyang Technological University; Course Title ACC 1301; Uploaded By saint_huimin. He seemed to suggest that in a number of cases going as far back as Cundy v Lindsay (1878) 3App Cas 459, the contracts in issue therein should be treated as only being voidable in equity: see Solle v Butcher at 692, Lewis v Averay [1972] 1 QB 198 at 207 and dicta in Magee v Pennine Insurance Co Ltd [1969] 2 QB 507 at 514 where he opined that: A common mistake, even on a most fundamental matter, does not make a contract void at law: but it makes it voidable in equity. The reason for this inconsistent conduct surfaced later. If coherence is to be restored to this area of our law, it can only be by declaring that there is no jurisdiction to grant rescission of a contract on the ground of common mistake where that contract is valid and enforceable on ordinary principles of contract law. The common law has drawn the line in Bell v Lever Bros Ltd. . Chwee Kin Keong v Digilandmall.com Pte Ltd [2005] 1 SLR 502: [2005] SGCA 2 Context: This Case deals with the issue of unilateral mistake. 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. Consideration was less than executory and non-existent. 94 Historically, the common law has recognised an anomaly in the contractual features pertaining to a display of goods for sale. 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. Often the essence of good business is the use of superior knowledge. He is also described as the sole proprietor and manager of two other businesses that provide business support and consultancy. It should be noted that while the common law jurisdictions continue to wrestle over this vexed issue, most civil law jurisdictions lean towards the recipient rule. 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 84 It is axiomatic that a court will generally be cautious if not reluctant to effect any amendments once the hearing has commenced; even more so once the evidential phase of the proceedings has been completed. In-house law team, Chwee Kin Keong v Digilandmall.com Pte Ltd [2005] 1 SLR(R) 502, Contract unilateral mistake Internet Contract Consensus ad Idem Meeting of the Minds Acceptance Offer Void Error. Homestead Assets Sdn Bhd v. Contramec . 43 After receiving a call from the first plaintiff at about 2.00am informing him that he had found an opportunity to make money as there was an arbitrage position to be achieved for some Hewlett Packard printers, the third plaintiff duly accessed his e-mail and visited the HP website. The High Court of Australia in Taylor v Johnson purportedly relied on Solle v Butcher, Bell v Lever Brothers, Limited [1932] AC 161, McRae v Commonwealth Disposals Commission (1951) 84CLR 377, all cases of common mistake, to suggest that in unilateral mistake a contracting party cannot assert, by relying on his own mistake, that a contract is void, notwithstanding the issue is fundamental or known to the other side. The decision ofV.K. The first plaintiff introduced him to the other plaintiffs. 44 He made his first purchase of ten laser printers at about 2.42am. He held that the Written Offer was accepted by the . These considerations take precedence over the culpability associated with causing the mistake. After all, what would he do with 100 obsolete commercial laser printers? 103 The amalgam of factors a court will have to consider in risk allocation ought to include: (a) the need to observe the principle of upholding rather than destroying contracts, (b) the need to facilitate the transacting of electronic commerce, and. Entores Ltd v Miles Far East Corp. [1955] 2 Q.B. Indeed this appears to be the underlying rationale for the unique legal characteristics attributed to an invitation to treat; see. He holds an accounting degree from NTU. This constituted more than a quarter of the total number of laser printers ordered. 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. The bites, however, may taste quite different and cause different sensations. To that extent, his evidence that he subsequently dismissed the notion altogether is unacceptable. In Canada, the latter suffices. The complainants had ordered over 100 printers each at this price. 137 Furthermore, from the evidence adduced, it became clear that the defendant had intentionally put the words call to enquire instead of, say, the phrase subject to stock availability in an attempt to entice would-be purchasers to place orders with them. The rigour in limiting this scope is also critical to protect innocent third party rights that may have been acquired directly or indirectly. Because it was simply a matter of time before the error would inevitably be noticed and the pricing inevitably corrected. 15 Early on the morning of 13January 2003 at about 1.17am, the first plaintiff received a message from a friend, Desmond Tan (Desmond), through an Internet chatlink. In my view this further undermines the essence of the plaintiffs case that they never contemplated that the pricing was a mistake. u think this is the 1970s?? Rajah J.C. in the Singapore High Court in Chwee Kin Keong v. Digilandmall.com Pte. 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). Articles 11 (1) Country Singapore. V K Rajah JC. He also participates in multi-level marketing of Bel-Air aromatherapy products. The question is what is capable of displacing that apparent agreement. It was listed at the price of $66, when it was advertised on the official HP website for $3,854. Hence the first plaintiffs cryptically worded but highly significant mass e-mail where he adverted to the fact that he did not know if the defendant would honour the contracts but in any event wished all the recipients good luck. The issue could be critical where third party rights are in issue as in. He then carried out some checks on the Yahoo search engine to ascertain whether the printer model existed and whether the laser printer could be sold at more than $66. Desmond: 13/01/20 01:47 wasnt greedy before I tok to u. Scorpio: 13/01/20 01:47 yeah.. S$1 mio then no need to work liao?? The other school of thought views the approach outlined earlier with considerable scepticism. Free resources to assist you with your legal studies! This can be before or during the trial, or after judgment or on appeal. He admitted in cross-examination to being the lawyer for this group of people when they had questions like these in the present proceedings. case concerning the purchase of laser printers from an online retailer, Chwee Kin Keong v Digilandmall 76 : To effect the purchase transactions on the respective websites, the plaintiffs had to navigate through several web pages. 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. 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 85 Having stated the general rule, it is imperative that the rationale underlying this approach be understood. This could account for the substantial number of Canadian cases in this area of the law. 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. They were high-end commercial laser printers. He appeared distinctly uncomfortable during several phases of his cross-examination and his answers on crucial points were evasive and often vague.. His evidence in relation to the level and nature of communications he had with the second and third plaintiffs on the morning in question lacked candour. 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. 127 The attempt to conflate the concept of common law mistake and the equitable jurisdiction over mistake is understandable but highly controversial. 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. 11 The single most controversial issue in these proceedings is the knowledge possessed and/or belief entertained by each of the plaintiffs when they entered into each of the transactions for the purchase of the laser printers. However, not all principles will or can apply in the same manner that they apply to traditional paper-based and oral contracts. 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. 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, 27 The first plaintiff obviously took the view that the advertisement should be acted upon urgently. The financial consequences could be considerable. In doing so, they appear to have also conflated equitable and common law concepts. 151 The claims by the plaintiffs are audacious, opportunistic and contrived. There could be different considerations. Where common mistake is pleaded, the presence of agreement is admitted. The individualistic ethic seeks to maximise individual goals and the community ethic seeks to set norms for commercial morality and to ensure that fair dealing and community cohesiveness are observed and maintained. They then argue that as equitable defences have not been pleaded, the court has no alternative but to allow the claim. In these circumstances we can see no option but so to hold. No cash had been collected. 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. chwee kin keong v digilandmall high court. Between 3.13am and 4.00am the second plaintiff revisited the website four times placing four further orders for 20 laser printers each time. While it is possible that the reporters could have exercised some latitude in penning the reports, they would in essence be conveying, at the very least, summaries and impressions of their interviews with the second, third and fifth plaintiffs. That is sufficient in these circumstances. He graduated from NTU as a bachelor of business studies, specialising in financial analysis. He in effect forwarded the first plaintiffs e-mail to them. 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. 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. 69 The sixth plaintiff was awakened by his brother, the third plaintiff, at about 3.00am. Even if it were to be held that there is now a general test of unconscionability applicable to all types of mistake, the plaintiffs contentions will not take them far. 100 There is however another statute that ought to be taken into consideration in determining the appropriate default rule in e-commerce transactions. 125 The principal source of this view has been Lord DenningMR. 153 These statements of jurisprudence are of cardinal importance in understanding and fashioning the law of contract. The fact that it may have been negligent is not a relevant factor in these proceedings. This is clearly a mistake as they could not possible be sold for an amount that in a commercial situation. 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]. [2005] 1 SLR (R) Chwee Kin Keong v Digilandmall.com Pte Ltd 507 printers. He said that he wanted to be sure that the offer on the HP website was genuine. It is unequivocally unethical conduct tantamount to sharp practice. This gives their courts a broad and elastic jurisdiction to deal with commercially inappropriate behaviour. Ltd.1 has the makings of a student's classic for several rea- The Instantaneous Transmission of Acceptances. Ltd. Yeo Tiong Min* I. 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. Having ascertained that the laser printer was being advertised at $66, he decided to undertake further online searches through Yahoo.com and Ebay.com. There are two types of orders relevant: market orders and limit orders. 92 The Electronics Transaction Act (Cap88, 1999Rev Ed) (ETA) places Internet contractual dealings on a firmer footing. The case of, The offer was wrongly expressed, and the defendants by their evidence, and by the correspondence, have satisfied me that the plaintiff, 116 The term snapping up was aptly coined by JamesLJ in, 117 It should be emphasised that this stream of authority is consistently recognised by all the major common law jurisdictions. The first, second and third plaintiffs have been friends for a long time and are bound by common business interests. Chwee Kin Keong v Digilandmall.com Pte Ltd [2004] 2 SLR(R) 594; [2004] 2 SLR 594 (refd) Gay Choon Ing v Loh Sze Ti Terence Peter [2009] 2 SLR(R) 332; [2009] 2 SLR 332 That said, it also offers new avenues of evidential proof offering intimate insights into realtime thought processes and reactions. 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 his initial affidavit he admitted wondering whether the price was a mistake after his first order was placed. It appears that it wanted to leave no stone unturned and had therefore mounted a root and branch attack on the plaintiffs claims. reference was made by the court to "fraud or a very high degree of misconduct" before the non- mistaken party could be . 33 After his first order, the second plaintiff contacted the fourth and fifth plaintiffs informing them about the laser printers. 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, 52 He then called the second plaintiff on his handphone and informed him that he intended to purchase 50 laser printers. The first issue dealt with references made by the plaintiffs to certain embargoed material. Someone referred me to the HP website which shows the price of this HP Colour LaserJet 4600 Series as S$66.00. This is essentially a matter of language and intention, objectively ascertained. The answer on the authorities is a mistake by one party of which the other, 111 This approach appears to have been endorsed by Judith PrakashJ in, 114 For good measure, I should allude that the plaintiffs in their written submissions concede that in order to establish that mistake is operative at common law, the defendant has to show in this instant case that the plaintiffs each had, 115 There is a distinct line of cases within the narrow confines of unilateral mistake where the common law has been resolutely disinclined to enforce apparent contracts. 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. There cannot be any legitimate expectation of enforcement on the part of the non-mistaken party seeking to take advantage of appearances. Abstract. The issue could be critical where third party rights are in issue as in Shogun. 141 In so far as the sixth plaintiff is concerned, I emphasise that his knowledge and/or conduct of should be equated with that of the third plaintiff. In Chwee Kin Keong v Digilandmall.com Pte Ltd [2004] 2 SLR (R) 594 (" Digilandmall.com "), the plaintiffs concerned placed orders over the Internet for a total of 1,606 Hewlett Packard commercial laser printers on the defendant (seller's) websites. 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. 115 There is a distinct line of cases within the narrow confines of unilateral mistake where the common law has been resolutely disinclined to enforce apparent contracts. Please refer to the PDF copy for a print-friendly version. Alternatively, knowledge may be readily inferred from what would be regarded as commonly known or notorious facts in the context of the transaction. Again he attempted to minimise the impact of these observations by saying his subsequent searches erased all such doubts. What amounts to snapping up is a question of degree that will incorporate a spectrum of contextual factors: what is objectively and subjectively known, the magnitude of the transaction(s), the circumstances in which the orders are placed and whether any unusual factors are apparent. He confirmed through these searches that the usual price of the laser printers was in the region of US$2,000. Mistakes are usually synonymous with the existence of carelessness on the part of the mistaken party. This was also the practice in the trade. 145 If the price of a product is so absurdly low in relation to its known market value, it stands to reason that a reasonable man would harbour a real suspicion that the price may not be correct or that there may be some troubling underlying basis for such a pricing. The Canadian and Australian cases have moved along with the eddies of unconscionability. There are in this connection two schools of thought. The elements of an offer and acceptance are ex facie satisfied in every transaction asserted in the plaintiffs claims. Why? He is currently employed as an accountant in an accounting firm, Ernst & Young. Has an agreement been reached or not? Case law Chwee Kin Keong v Digilandmallcom Pte Ltd suggests that General Rule. HIGH COURT. 58 The fifth plaintiff was first informed by the second plaintiff at about 2.30am about cheap laser printers being available for purchase. 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. 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. The fifth plaintiff was also a member of this bridge group. Though he initially denied this in cross-examination, he had to accept this when confronted with his own e-mail as irrefutable evidence. 53 He claimed that seeing the same price on the Digilandmall website confirmed his view that there had been no mistake. 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! Date of Verdicts: 12 April 2004, 13 January 2005. He commenced practice in 2000 and currently practices with the law firm representing the plaintiffs in this action. Furthermore, they relied on a passage from, At the trial leave to amend particulars will as a rule be refused (, 84 It is axiomatic that a court will generally be cautious if not reluctant to effect any amendments once the hearing has commenced; even more so once the evidential phase of the proceedings has been completed. Scorpio: 13/01/20 01:17 what hp online?? The first plaintiffs riposte, should such a situation come to pass, was to sue them lor. 2 Who is correct? It takes the view that there is no jurisdiction in equity to rescind a contract that is valid at common law, on the basis of mistake. In that sense, it is akin to ordinary posting. 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. 1.47K subscribers Chwee Kin Keong v Digilandmall.com Pte Ltd [2005] Facts The defendant, Digilandmall.com Pte Ltd, were an online IT company that sold related software and hardware from. In any event, it does not appear that she disclosed the whole truth of what she knew. 122 For now it appears that a mistaken party can have two bites at the cherry. David Baxter Edward Thomas and Peter Sandford Gander v BPE Solicitors (a firm) [2010] EWHC 306 (Ch) Dunlop v Higgins (1848) 1 HLC 381. 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 This, by an uncanny coincidence, was the same person whom he had intended to consult in the resale of the laser printers a topic that he had discussed with the second plaintiff earlier that morning. ! with its importance set at high. The law may not imply a condition precedent as to the availability of stock simply to bail out an Internet merchant from a bad bargain, 104 The creases over the theoretical approach to adopt in determining the existence of contracts have for some time now been decisively ironed out in favour of the objective theory.
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