The leading Canadian decision in this area is the case of, 120 The widening of jurisdiction to embrace a broad equitable jurisdiction could well encourage litigious behaviour and promote uncertainty. 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. Lord Griffiths in, 87 It appeared to me that the extract from, 88 The fact that the amending party has been tardy or even negligent is a factor that a court can (and in some egregious cases, should) take into account but this is by no means a decisive factor (, 95 The known availability of stock could be an important distinguishing factor between a physical sale and an Internet transaction. In the absence of proper and full arguments on the issue of which rule is to be preferred, I do not think it is appropriate for me to give any definitive views in these proceedings on this very important issue. Chwee Kin Keong v Digilandmall.com Pte Ltd. Case Nos: Suit 202/2003/E (for the first instance), CA/30/2004 (for the appeal) in the High Court of Singapore (at first instance), Singapore Court of Appeal. He also participates in multi-level marketing of Bel-Air aromatherapy products. 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. Introduction The decision of V.K. 112 Phang ([106] supra, at 418) rightly observes: It must be stressed that, in this context, a man is taken to have known what would have been obvious to a reasonable person in the light of the surrounding circumstances. As a lawyer, he appears to have been indispensable in the plaintiffs attempts to hold the defendant to the bargain. 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. In such cases, it would be unconscionable to enforce the bargain and equity will set aside the contract. They are all well-educated professionals articulate, entrepreneurial and, quite bluntly, streetwise and savvy individuals. In support of the latter it might be argued that unlike a posting, e-mail communication takes place in a relatively short time frame. With reference to the judgement, the case explores pricing mistakes by online stores. No cash had been collected. 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. Similar works. http://www.buy.hp.com.sg/hp/StandardProduct.cfm?prodid=HPC9960A. - See also Balfour v. Balfour (1919). 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 . I would not however invariably equate the required conduct with fraud. The sixth plaintiff told his brother to order some for him, without specifying how many laser printers he wanted or how he intended to pay for the laser printers. 28 In any event, the first plaintiffs commercial background and business experience alone would have amply alerted him to the likelihood of the pricing being a mistake, even without his conversation with Desmond. Thus, while the idea of snapping up may well apply in cases one side is aware of the other sides error, I do not think it can be applied literally in the constructive knowledge cases. 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 . It is not in dispute that the defendant made a genuine error. 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. Reference this This price was much lower than the actual retail price, and had been posted on the defendant's website by mistake. Alarm bells would have sounded immediately. In addition to the law of (especially, unilateral) mistake, issues relating to the formation of a contract will be considered (including the law relating to offer and . The issue in this case was whether the pricing was a mistake and if the contract would be fulfilled. He claimed he wanted to find out how much profit he could make. This is an online dating and match-making service. If anything, certain portions of the affidavits raised even more doubts about the plaintiffs credibility. 126 The Australian courts appear to have relied on the views of Lord DenningMR in Solle v Butcher to establish a wholly different doctrinal approach to mistake and have purportedly applied a fused concept of law and equity to the law on mistake. 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. The unconstrained exchange that followed between the two is both revealing and compelling. (See for example the approach in, 142 The plaintiffs were bound by personal relationships as well as past and present common commercial interests. Kin Keong v Digilandmall.com Pte Ltd [2004 . He is currently a supervisor in the taxation department of an international accounting firm, Deloitte & Touche, specialising in corporate taxation services. In doing so, they appear to have also conflated equitable and common law concepts. 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. Case law Chwee Kin Keong v Digilandmallcom Pte Ltd suggests that General Rule. It is pertinent to note that she placed orders for 32 laser printers including 20 units she ordered on behalf of her sister. Given that he left everything in the third plaintiffs hands, his legal position is, to that extent, identical to the third plaintiffs. The case involved the sale of printers by the defendant at a price of S$66. A prospective purchaser is entitled to rely on the terms of the web advertisement. 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 Desmond: 13/01/20 01:47 u make me greedy, Scorpio: 13/01/20 01:47 ok lor if you insist . That is sufficient in these circumstances. Homestead Assets Sdn Bhd v. Contramec . 133 It is however clear that the law should not take cognisance of bad bargains and misapprehension that do not affect a fundamental or essential aspect of a contractual relationship. Scorpio: 13/01/20 01:24 huh?? 71 The sixth plaintiffs position can be dealt with very briefly. In Chwee Kin Keong v Digilandmall.com Pte Ltd, the Singapore Court of Appeal was asked to consider if the decision in Great Peace Shipping also had the effect of excluding equity's jurisdiction . Looking for a flexible role? It was the defendants computer system. A steady stream of decisions from common law courts indicate a measured but nevertheless distinctly incremental willingness to extend the scope of the exception to not just actual knowledge, but deemed or constructive knowledge as well. 66 The fifth plaintiff also gave evidence that the next morning, when he logged on his computer, he noted that a Hong Kong lawyer friend, Coral Toh, was also logged onto her computer. 3 All six plaintiffs are graduates, conversant with the usage of the Internet and its practices and endowed with more than an adequate understanding of business and commercial practices. But it is difficult to see how that can apply here. He placed his first order for 50 units at about 2.58am, and his second order for another 50 units at 3.22am, again through the HP website. From time to time they communicate with each other via the Internet and the short messaging system (sms). 1 In the early hours of the morning of 13January 2003, six friends, the plaintiffs in this case, placed orders over the Internet for 1,606 sophisticated Hewlett Packard commercial laser printers (the laser printer(s)). Lord Phillips of Worth MatraversMR observed in a withering analysis at [156], [157], [160] and [161]: Thus the premise of the equitys intrusion into the effects of the common law is that the common law rule in question is seen in the particular case to work injustice, and for some reason the common law cannot cure itself. This rationalised the law and gives the court a broad discretion to fashion the applicable relief. 64 The fifth plaintiff was vague and tentative in many crucial aspects of his evidence. The initial order for 30 laser printers was placed at round 3.45am while the second order for 300 units was placed at around 3.53am. Keywords Contract Online Store Mistake Pricing Mistake Citation 32 Satisfied with his enquiries in relation to the printer model, he returned to the HP website and placed an order for 100 laser printers at about 2.23am. Notwithstanding occasional failure, most e-mails arrive sooner rather than later. Desmond intimated that the defendant would give vouchers or special deals as a matter of equitable compensation should it not honour the purchase orders. So its going to be our reputation at stake, we thought we had a successful transaction.. Normally the contract is only concluded when the acceptance is communicated by the offeree to the offeror. 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. Scorpio: 13/01/20 01:17 what hp online?? Because it was simply a matter of time before the error would inevitably be noticed and the pricing inevitably corrected. One is hard put to imagine that anyone would purchase such an item, let alone place very substantial orders, without making some very basic enquiries as to pricing. There is no larger noble principle, such as the sanctity of contracts, to be observed or protected in these proceedings. In common mistake, both parties make the same mistake. Chwee Kin Keong v Digilandmall Pte Ltd The defendant, Digilandmall.com Pte Ltd, were an online IT company that sold related software and hardware from Singapore. 13 The first plaintiff, Chwee Kin Keong, is 29 years old. 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. It appears there were a series of sms messages between them and at least a few telephone discussions while the purchases were being effected. 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 contract was held to be void because there was no consensus on the terms. I categorically reject their evidence in so far as it attempts to hermetically compartmentalise their knowledge and discussions. I drew counsels attention to Halsburys Laws of Australia (Butterworths, 1992), vol6 at para 110-5550 which states: A particular class of case which illustrates unilateral mistake as to the terms intended, known to the other party, is that in which an offer which would be very advantageous to the offeree is snapped up by the offeree. The fifth plaintiff, even if he had not been alerted by the second plaintiff, would have instinctively appreciated the existence of a manifest error without any prompting whatsoever. 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. Desmond: 13/01/20 01:44 if they dont honor it Scorpio: 13/01/20 01:45 sell me one lah name your price ;-) sue them lor , Desmond: 13/01/20 01:45 I think they will give vouchers or special deals. The price for equitable justice is uncertainty. Chwee Kin Keong and others v. Digilandmall.com Pte Ltd. [2004] SGHC 71. The answer on the authorities is a mistake by one party of which the other knew or ought reasonably to have known. Having pointed out 6 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 . It was listed at the price of $66, when it was advertised on the official HP website for $3,854. 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. The reason for this inconsistent conduct surfaced later. Ltd.1 has the makings of a student's classic for several rea- No harm trying right? He made Internet search enquiries as to whether the printer model existed and at what price it could be resold. Someone referred me to the HP website which shows the price of this HP Colour LaserJet 4600 Series as S$66.00. 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. CISG-online is a research platform dedicated to the law and practice of the United Nations Convention on Contracts for the International Sale of Goods adopted in Vienna on 11 April 1980 (CISG), as well as related areas of international commercial law. In the light of that consideration we can see no way that Solle v Butcher can stand with Bell v Lever Bros Ltd. He offered no plausible explanation for the series of orders which he placed while he was in communication with the other plaintiffs, other than stating audaciously that he had to buy a lot to sell a lot, to get a lot. 59 Upon duly accessing the HP website through the hyperlink sent to him by the second plaintiff, the fifth plaintiff ascertained that the laser printer was priced at $66. Voces del tesauro. Chwee Kin Keong and Others v Digilandmall.com Pte Ltd [2005] SGCA 2 Civil Procedure - Costs - Principles - Respondent failing in every aspect of defence except on issue of unilateral mistake - Trial judge awarding full costs to respondent - Whether respondent entitled to full costs They assumed that to be the position. This can be supported by the decision of the High Court of Singapore in the case of Chwee Kin Keong v. Digilandmall.com Pte Ltd, in which Judicial Commissioner Rajah argued that "the party who selects the means of communication should bear the consequences of any unexpected events" . 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. Take a look at some weird laws from around the world! 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. Though the actual price of the laser printer was $3,854, the defendant had on 8January 2003 mistakenly posted the price at $66.00 on its websites. 113 The English Court of Appeal in Commission for the New Towns v Cooper (Great Britain) Ltd [1995] Ch 259, a case of common mistake, imported the concept of Nelsonian knowledge and applied the framework of various categories of knowledge outlined by Peter GibsonJ in Baden v Societe Generale pour Favoriser le Developpement du Commerce et de lIndustrie en FranceSA [1993] 1 WLR 509. 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. . So there is a contract and therefore the defendant is liable in breach of contract. In turn, the ICQ chat session involving the first plaintiff and the respective plaintiffs exchange of e-mails played a significant role in undermining their credibility and claims. A contract will not be concluded unless the parties are agreed as to its material terms. Registered office: Creative Tower, Fujairah, PO Box 4422, UAE. However, if the defendant did not have stock, it would immediately call the supplier and procure the products for the end-user. 37 The second plaintiff was insistent in his evidence that there was no communication from the first plaintiff alerting him to the likely existence of the mistake; he contends the first plaintiff merely apprised him of a good deal and sent him the weblink to the HP website. Thus the task of ascertaining whether the parties have reached agreement as to the terms of a contract can involve quite a complex amalgam of the objective and the subjective and involve the application of a principle that bears close comparison with the doctrine of estoppel. Counsels approach is flawed. Thus, 119 It is apparent from this overview that the Canadian courts have integrated through their equitable jurisdiction the concept of common law mistake within the rubric of unconscionability. Once again, however, this does not deprive E of his legal remedies; nor does it avail V if he wishes to recover property which he may have transferred under the contract. 89 In the circumstances, I had little hesitation in allowing the amendments sought by the defendant. Digilandmall.com Pte Ltd [2004] 2 SLR(R) 594, Rajah JC (as . Being fully conscious of the pivotal nature of this point, I have duly accorded particular attention to the evidence and credibility of each of the plaintiffs. Upon completing this sequence, each of the orders placed by the plaintiffs was confirmed by automated responses from the respective websites stating Successful Purchase Confirmation from HP online. 62 Like the second plaintiff, the fifth plaintiff played a pivotal role in the events leading to these proceedings. There are two types of orders relevant: market orders and limit orders. The modern approach in contract law requires very little to find the existence of consideration. 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. Limit orders: order to be executed only when the desired price is available. 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. The point is, there is a chasm between a clarification amendment and a new or distinct issue being raised at a later stage. It would be illogical to have different approaches for different product sales over the Internet. After all, what would he do with 100 obsolete commercial laser printers? They are all well-educated professionals articulate, entrepreneurial and, quite bluntly, streetwise and savvy individuals. He graduated with an accounting degree from NTU. Yong Pung HowCJ in Tribune Investment Trust Inc v Soosan Trading Co Ltd [2000] 3 SLR 405 at [40] opined: [T]he function of the court is to try as far as practical experience allows, to ensure that the reasonable expectations of honest men are not disappointed. Most telling of all, I note that the first to fifth plaintiffs exhibited identical reports in each of their affidavits without any qualification whatsoever. Both parties expressed that they wished to effect amendments to mirror evidence that had been adduced in the proceedings. They then argue that as equitable defences have not been pleaded, the court has no alternative but to allow the claim. I have found that the plaintiffs had at all material times knowledge of or, at the very least, a real belief that an error had been made by the defendant in the price posting. Leave was also given to the plaintiffs to adduce further evidence, if they so desired. There must be consensus ad idem. This may be too high a price to pay in this area of the law. 152 This view has also found support in the Singapore context. The bites, however, may taste quite different and cause different sensations. 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. Chwee KIN Keong AND Others v Digilandmall.COM PTE LTD [2004 ] SGHC 71 paginator.book page 594 tuesday, november 2009 7:05 am 594 singapore law reports (reissue . 49 Tan Cheng Pengs brief evidence did not really assist the third plaintiff. Scorpio: 13/01/20 01:25 ok but how come got such a good deal? He claims he then accessed the US HP website either through a Google web search engine or by abbreviating the url of the HP website. 146 A purchaser in a case of apparent unilateral mistake, who purchases for genuine own use a product, may not always be viewed as guilty of engaging in snapping up. There must be consensus ad idem. In Chwee Kin Keong v . . 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. Solicita tu prueba. The sixth plaintiff is precluded from asserting his ignorance. COOKE v OXLEY (1790) 3 T. R. 653. 98 Once an offer is sent over the Internet, the sender loses control over the route and delivery time of the message. 4 The defendant is a company that sells information technology (IT) related products over the Internet to consumers. 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. I am not prepared, after full consideration, to assume that the reporters misquoted the facts. 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. 91 There is no real conundrum as to whether contractual principles apply to Internet contracts. [emphasis added]. While they did not invariably admit that their searches were made prior to each of the respective transactions, it was plain that they did not tell the whole truth about, 149 It is clear from the authorities reviewed that such a contract, if entered into by a party with actual or presumed knowledge of an error, is void from the outset. Having ascertained the true market price, it would have appeared crystal clear, given the huge disparity in the pricing, that a manifest mistake had occurred. 6 On Wednesday, 8January 2003 between 3.00pm and 4.00pm, DILs employees conducted a training session at the defendants premises.