Nam Hong Construction & Engineering Pte Ltd v Kori Construction (S) Pte Ltd

• Jurisdiction: Singapore
• Judge: Chiah Kok Khun
• Judgment Date: 06 August 2014
• Neutral Citation: [2014] SGDC 271
• Court: District Court (Singapore)
• Docket Number: District Court Suit No. 3508 of 2013
• Year: 2014
• Published date: 15 August 2014
• Hearing Date: 17 July 2014,23 April 2014
• Plaintiff Counsel: Andrew J Hanam (M/s Andrew LLC)
• Defendant Counsel: Twang Kern Zern (M/s Central Chambers Law Corporation)
• Subject Matter: Statutory interpretation
• Citation: [2014] SGDC 271

District Judge Chiah Kok Khun: Introduction

Nam Hong Construction & Engineering Pte Ltd (“Nam Hong”), the plaintiffs were a sub-contractor of Kori Construction (S) Pte Ltd (“Kori”), the defendants, in respect of strutting fabrication works (“the works”) for the MRT Downtown Line project. Kori themselves were a sub-contractor of the project. The works carried on from February to August 2013. A total of 11 invoices were issued by Nam Hong to Kori. Kori paid in full for the first 10 invoices. They failed to pay on the 11th. Nam Hong commenced this action for payment of the 11th invoice.

Kori are raising a preliminary issue of law. The question raised is whether Nam Hong are prevented by Section 29B(4) of the Building Control Act (Cap 29) (“the Act”) from pursuing their claim as Nam Hong do not hold a general builder’s license or specialist builder’s license from the Building and Construction Authority (“BCA”). This is my decision on this specific question raised by Kori.

What are the undisputed facts?

It is not disputed that Nam Hong have at no time held either a general builder’s license or specialist builder’s license from the BCA. Under the Act no person is allowed to carry out specialist building works without a specialist builder’s license.¹ The Act stipulates that a person who carried out specialist building works without a licence is not entitled to recover in a court any remuneration for the building works.² Nam Hong carried out fabrication of steel structural elements and that they had carried out on-site cutting and on-site welding.³ Nam Hong did not carry out installation of steel supports for geotechnical building works.

What is Kori’s case?

Kori’s contention is that the works carried out by Nam Hong were specialist building works. As the Act stipulates that a person who carried out specialist building works without a licence is not entitled to recover in a court any remuneration for the building works, Nam Hong are barred from proceeding with their claim.

Kori are relying on provisions under part VA of the Act, which deals with licensing of builders. Under this part, builders are classified into general and specialist builders. Both are required to be licenced by the BCA. The definition of a general builder under this part excludes any sub-contractors.⁴ Kori appear to accept that Nam Hong are by definition sub-contractors or “sub-sub-contractors” when they carried out the works.⁵ Presumably for this reason, Kori do not hold that Nam Hong needed a license as a general builder under part VA. Kori’s case however is that Nam Hong were a specialist builder defined under this part of the Act because the works, which was carried out by Nam Hong, were specialist building works. As they were not licensed as specialist builders, they were barred from proceeding with their action.

Nam Hong’s contention is that they were not specialist builders within the meaning of the Act when they carried out the works.

The issue in this case is therefore what is the meaning of specialist building works?

What types of building work qualify as specialist building works?

The definition of specialist building works is given in section 2 of the Act. The meaning of specialist building works is rendered in section 2 in the form of types of building works. The relevant part of section 2 reads,

“specialist building works” means the following types of building works: …

What follows are seven sub-paragraphs, each describing a type of building work. One of the seven types of building works listed is “structural steel work”, at sub-paragraph (d). Sub-paragraph (d) reads as follows: “(d) structural steelwork comprising – (i) fabrication of structural elements; (ii) erection work like site cutting, site welding and site bolting; and (iii) installation of steel supports for geotechnical building works;”

(“sub-paragraph (d)”)

As alluded to above, it is common ground that Nam Hong had carried out fabrication of steel structural elements and that they had carried out on-site cutting and on-site welding.⁶ At the same time, it is also not disputed that Nam Hong did not carry out any installation of steel supports for geotechnical building works. Therefore, the works carried out by Nam Hong covered two of the three limbs in sub-paragraph (d). Kori’s contention is that this is sufficient to bring the works within the meaning of structural steelwork under sub-paragraph (d)....