Anwar Siraj and Another v Ting Kang Chung and Another

• Jurisdiction: Singapore
• Judgment Date: 24 March 2003
• Date: 24 March 2003
• Docket Number: Originating Motion No 26 of 2002
• Court: High Court (Singapore)

Anwar Siraj and another

Plaintiff

and

Ting Kang Chung and another

Defendant

[2003] SGHC 64

Tay Yong Kwang J

Originating Motion No 26 of 2002

High Court

Arbitration–Challenge against arbitrator–Application for removal of arbitrator–Whether grounds for such removal made out–Arbitration Act (Cap 10, 1985 Rev Ed) ss 17 and 18

Sections 17 and 18 of the Arbitration Act (Cap 10, 1985 Rev Ed) stipulated that an arbitrator who has misconducted himself or the proceedings, or who fails to use all “reasonable dispatch” in entering on and proceeding with the reference and making an award may be removed by a court.

The applicants applied to remove the first respondent (the arbitrator in a construction dispute between the applicants and the second respondents), on the grounds that the arbitrator was, inter alia,not diligent, incompetent, inexperienced as an arbitrator, and that he had also shown “definite bias” in the second respondents' favour.

Held, dismissing the motion:

(1)“Misconduct” was such a mishandling of the arbitration as was likely to amount to some substantial miscarriage of justice. It was a question of fact and degree and depended on the circumstances of the case. The making of an erroneous finding of law, of fact or procedural errors did not, by themselves, amount to misconduct: at [40].

(2) There should exist real grounds for which a reasonable person would think there was a real likelihood that the arbitrator could not or would not fairly determine the issue. A subjective lack of confidence in the arbitrator by one party was not a sufficient ground to remove an arbitrator: at [41].

(3) To support an allegation of bias, it should be shown that the arbitrator's decision was likely to have been coloured by something which should have no part at all in a fair decision-making process. Any allegation of lack of impartiality on the part of the arbitrator was wholly misplaced: at [43].

(4)“Reasonable dispatch” was a matter of degree to be determined on the facts of the case. The arbitration process was proceeding on an even keel and at a reasonable speed: at [45].

Hagop Ardahalian v Unifert International SA (The ”Elissar”) [1984] 2 Lloyd's Rep 84 (folld)

Arbitration Act (Cap 10, 1985 Rev Ed) ss 17, 18 (consd)

Arbitration Act (Cap 10, 2002 Rev Ed) ss 16, 65

G Raman and V Suriamurthi (G Raman & Partners) for the applicants

Richard Tan, Timothy Ng and Lee Hui Yan (Lee & Lee) for the first respondent

S Thulasidas (Ling Das & Partners) for the second respondent.

Tay Yong Kwang J

1 This Originating Motion sought the following orders:

1. 1. that Ting Kang Chung, the Arbitrator in the arbitration between Teo Hee Lai Building Construction Pte Ltd, the Claimants therein and Anwar Siraj and Khoo Cheng Neo Norma, the Respondents therein be removed;

2. 2. that Ting Kang Chung refund the sum of $8,250 paid in advance as fee to him as Arbitrator;

3. 3. that the dispute between the Applicants and the Second Respondent herein be heard before a Judge of the High Court;

4. 4. that the pleadings submitted in the proposed arbitration be used as pleadings for the purpose of the trial before the High Court;

5. 5. any other consequential orders;

6. 6. costs in the cause; and

7. 7. any other relief.

2 The application was originally brought under s 16 of the Arbitration Act 2001 (Cap 10). The arbitrator's counsel pointed out that the arbitration commenced before 1 March 2002 (the date the Act of 2001 came into operation) and the applicable law ought to have been the Act that was in force immediately before that date. This was because s 65 of the Act of 2001 provides that the Act of 2001 would not apply to arbitrations commenced before 1 March 2002 unless the parties in question have so agreed in writing. The applicants have acknowledged their error and accepted the arbitrator's position as correct.

The case for the applicants

3 The applicants are the owners of a house at 2 Siglap Valley. They contracted with the second respondent to demolish and reconstruct the said house for the sum of $1.2m. The agreement was signed on 30 December 1999 and the completion date for the project was 9 January 2001. The contract was the standard one used by the Singapore Institute of Architects (“SIA”) and provided that in the event of a dispute, it shall be referred to arbitration. If the parties to the arbitration could not agree on an arbitrator, the President of the SIA would appoint one for them.

4 Adispute did arise around July 2001 and the second respondent referred it to arbitration. The President of the SIA subsequently appointed the first respondent as the arbitrator.

5 The first respondent convened a meeting of the parties on 11 March 2002. At that meeting, directions were given for the filing of the Points of Claim, Points of Defence and Counterclaim, Points of Reply and Defence to Counterclaim.

6 On 14 March 2002, the arbitrator attended a site meeting with the parties and the alleged defects were pointed out to him. By 11 June 2002, the pleadings as directed were filed. The applicants then applied to file a Statement of Reply regarding the Counterclaim and were permitted to do so. The parties were also directed to exchange documents by 25 June 2002.

7 In their pleadings, the applicants claimed that the alleged shoddy workmanship caused delamination of tiles, water seepage, flooding of the basement, dampness on the walls and other serious defects. As a result of these alleged problems, they emphasised in a letter written by their solicitors to the arbitrator on 12 June 2002 that the hearing should be conducted as early as possible. Although the arbitrator had stated in his letter of 10 June 2002 that he would convene a meeting on a convenient date, nothing was heard from him after the applicants' solicitors' letter of 12 June 2002. They then wrote to the arbitrator again on 31 July 2002 and on 15 August 2002 to ask that a meeting be convened. They did not receive any response from him. The convening of such a meeting for directions was becoming critical as the second respondent refused to carry out any rectification works unless directed to do so by the arbitrator. The applicants listed various other correspondence to the arbitrator requesting meetings on different matters to which no response was obtained. These letters covered the period between 12 June 2002 (when the letter mentioned above was sent) and 7 November 2002 (when letters were sent enquiring about the specific issues on which the arbitrator was seeking expert advice and the name of the expert in question).

8 The arbitrator then fixed a meeting on 29 August 2002. One of the directions given that day was that the second respondent serve on the applicants the documents set out in its...