The evidential burden shifts once sufficient evidence is presented; a witness lacking personal knowledge cannot contradict evidence, and agreements are enforceable unless explicitly illegal.

Ong Chee Kwan J:

Introduction

[1] The Plaintiff in this case claimed a sum of USD248,000.00 being the balance outstanding sums due under an agreement where the Plaintiff was to provide software developers to the Defendant to create a prototype gaming website which would enable the Defendant to obtain an e-gaming license from the Curacao Authorities.

[2] The Defendant raised various issues relating to the quality of the services rendered by the Plaintiff, contending that there were bugs in the software and that the website could not be operated because the Plaintiff had shut down the same. Unfortunately, the Defendant's only witness had no personal knowledge of the events that had occurred in the development of the software and was not privy to the communication between the Defendant and the Plaintiff at the material times. As a result, the Defendant was not able to rebut many of the assertions made by the witnesses who had testified on behalf of the Plaintiff at the trial.

[3] The outcome of the trial in this case demonstrates the failure by the Defendant to appreciate the crucial role of evidential burden in a civil trial, which can shift once a party has produced sufficient evidence, be it by oral testimony or through documentary evidence on a specific issue. A witness without any personal knowledge of the issues would not be in a position to contradict or undermine the evidence presented, which means that at the end of the trial, evidence remaining unrebutted will be sufficient to discharge the legal burden needed to meet the cause of action.

Background Facts

[4] At all material times, the Plaintiff was a reputable and leading web and mobile application developer with clients worldwide including in Malaysia, Denmark, Australia, Singapore and the United States of America, as can be seen from the Plaintiff's company website at www.surialabs.com, and was in the business of software development and IT services.

[5] By a Service Agreement dated 13 April 2021 ("Service Agreement") entered into between the Plaintiff and Defendant, the Plaintiff agreed to render services to the Defendant, particularly to provide software development services ("the Services") for the development of an e-gaming website known as "BitCarra".

[6] The preamble of the Service Agreement expressly stated that the Plaintiff was engaged to carry out services to create a prototype of a gaming website as required by the Curacao Authorities in order for the Defendant to obtain an e-gaming licence, in particular, in Curacao.

[7] The salient terms of the Service Agreement were as follows:

Clause Description

1.1(a) In consideration of the Fees (set out at Clause 4 hereinbelow), Suria Labs shall provide the Client with the following services: - Software development with features as requested by the Client from time to time during the term of this Agreement in sprints ("Sprint") as described in the Statement of Work ("the Statement") attached hereto as Annexure A and incorporated herein by reference as though fully set forth ("the Development Phase")"; (e) Upon the conclusion of the Development Phase, The Client may be desirous of entering into a time bound period for maintenance. Suria Labs shall then provide error correction, bug fixes, support, upgrades, maintenance, enhancements and all related services as set out in Annexure B to this Agreement (the "Maintenance and Enhancement Phase") (collectively referred to as the "Services"),

2.1 Suria Labs will make available 4 developers during the Development Phase as required to complete the initial scop