Anwar Siraj v Teo Hee Lai Building Construction Pte Ltd

JurisdictionSingapore
Judgment Date08 October 2013
Date08 October 2013
Docket NumberOriginating Summons No 1200 of 2010
CourtHigh Court (Singapore)
Anwar Siraj and another
Plaintiff
and
Teo Hee Lai Building Construction Pte Ltd
Defendant

[2013] SGHC 200

Quentin Loh J

Originating Summons No 1200 of 2010

High Court

Arbitration—Discharge of arbitrator—Right of arbitrator to discharge himself—Whether proper procedure to resign or discharge adopted

After an earlier arbitral award had been set aside, the plaintiffs (‘the Plaintiffs’) commenced Originating Summons No 1200 of 2010 (‘OS 1200’) for, inter alia, the appointment of another arbitrator. On 1 February 2011, the judge (‘the Judge’) appointed Mr Chow Kok Fong (‘Mr Chow’) as arbitrator and also granted to parties liberty to apply should Mr Chow decline his appointment.

The second arbitration before Mr Chow descended into fractiousness and acrimony, the result of which Mr Chow wrote to the court on 3 October 2011 to apply for leave to be discharged as the appointed arbitrator. Mr Chow's application was heard on 27 October 2011 together with Originating Summons No 1179 of 2010 (‘OS 1179’). At the hearing, the Plaintiffs confirmed their earlier position that they did not object to Mr Chow discharging himself as arbitrator save as to costs. The Judge granted Mr Chow leave to discharge himself as arbitrator.

On 8 November 2011, the Plaintiffs wrote to court, ostensibly requesting further arguments with respect to OS 1179. The letter also included two paragraphs which stated that further arguments were required to ‘regularise’ the joint hearing of OS 1200 and OS 1179 and further statements seeking a specific ruling that the basis of the request by Mr Chow to be discharged was the ‘liberty to apply’ order in OS 1200. The Plaintiffs did not say in the letter that they disagreed with Mr Chow's discharge.

Subsequently, the Plaintiffs and Mr Chow's lawyers appeared before the Judge on 9 July 2012 but the hearing of the matter was adjourned in order for the 8 November 2011 letter to be served on Mr Chow's lawyer and for him to take instructions. The Judge confirmed that the hearing was not to hear further arguments on the 27 October 2011 order but to understand what the Plaintiffs were saying had to be done to ‘regularise’ Mr Chow's discharge.

The Plaintiffs and Mr Chow's lawyer were heard on 27 July 2012. At this hearing, the Plaintiffs alleged that Mr Chow had been irregularly discharged and submitted that in order to ‘regularise’ the proceedings, the court should make a declaratory judgment that Mr Chow ought to file a fresh summons to be heard on his own application to be discharged as arbitrator.

Held, refusing the declaration and upholding the earlier court order:

(1) The Plaintiffs' letter of 8 November 2011 was not a request for further arguments in relation to OS 1200. Having presented no arguments against Mr Chow's discharge or the manner of his discharge, they could have no further arguments to make on that score. Moreover, a request that the court ‘regularise the procedure’ in OS 1200, was not a request for further arguments: at [21] and [22] .

(2) As a 14-day period elapsed with no response from the court to the Plaintiffs' letter, the Judge would be deemed pursuant to O 56 r 2 (2) to have certified that he required no further arguments in respect of the 27 October order in relation to OS 1200. The appropriate recourse for the Plaintiffs would have been to file a notice of appeal. The Plaintiffs had not done so and were thus hopelessly out of time to appeal against the 27 October 2011 order: at [23] to [25] .

(3) An arbitrator's rights and obligations were derived from a conjunction of contract and status, his acceptance of appointment gave rise to a trilateral contract, in which the arbitrator became a party to the previously bilateral arbitration agreement between the parties. Hence, an arbitrator would have the right to resign from his appointment as a matter of contract between the parties and him: at [26] .

(4) Further, an arbitrator might have the right to resign for good cause, just cause, justifiable reasons or reasonable cause where unanticipated circumstances arose that would render it impossible or impracticable to continue. It was clear from the facts that such circumstances had arisen here and Mr Chow had good and justifiable cause to resign: at [27] and [28] .

(5) In the absence of any set procedure in the institutional rules, national laws or the contract setting out the terms of appointment, a letter to the parties clearly stating that the arbitrator wished to resign or resigns was sufficient. Although there was generally no requirement for an arbitrator to state his reasons for resigning most conscientious practitioners would often choose to do so. As such, Mr Chow's letter would have sufficed and he did not need to ask the court for leave to withdraw: at [42] to [44] .

(6) As a non-party, Mr Chow would be entitled to enforce an order as if he were a party if the order had been obtained by him or made in his favour. In this case, the ‘liberty to apply’ order appeared to be one granted to the parties to seek a fresh appointee should Mr Chow decline his appointment by the court under OS 1200; its scope probably did not extend to a situation where matters arising after his appointment led to the arbitrator applying for leave from court to discharge himself: at [45] and [47] .

(7) Nevertheless, any failure to comply with the requirements of the Rules of Court was to be treated as an irregularity and would not nullify the proceedings, any step taken in the proceeding, or any document, judgment or order therein. The courts had generally taken a liberal approach in exercising its discretion to make any order it deemed fit to correct the irregularities: at [48] .

(8) In the circumstances, it was clear that the irregularity was one which could be cured. It would not only have been an unnecessary waste of time and money but also oppressive for the Plaintiffs to require Mr Chow to intervene as a party and then take out a fresh application for leave to discharge himself. Most importantly, the Plaintiffs did not suffer any prejudice thereby: at [49] .

Anwar Siraj v AG [2010] SGHC 36 (refd)

Hong Kiat Construction Pte Ltd v Ngiam Benjamin [2009] SGHC 158 (folld)

K/S Norjarl A/S v Hyundai Heavy Industries Co Ltd [1992] QB 863 (refd)

Kamla Lal Hiranand v Lal Hiranand [2003] 3 SLR (R) 198; [2003] 3 SLR 198 (refd)

Koh Ewe Chee v Koh Hua Leong [2002] 1 SLR (R) 943; [2002] 3 SLR 643 (refd)

Sinwa SS (HK) Co Ltd v Morten Innhaug [2010] 4 SLR 1 (folld)

Tan Yeow Khoon v Tan Yeow Tat [1999] 3 SLR (R) 717; [2000] 3 SLR 323 (refd)

Ting Kang Chung John v Teo Hee Lai Building Constructions Pte Ltd [2010] 2 SLR 625 (refd)

Arbitration Act (Cap 10, 2002 Rev Ed)

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 2 r 1, O 45 r 9 (1) , O 56 r 2 (2)

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) s 28 B (b) (ii)

Plaintiffs in person

Edwin Lee (Eldan Law LLP) for the non-party

Teo Hee Lai for the defendant.

Quentin Loh J

1 The plaintiffs (‘the Plaintiffs’) have filed a notice of appeal against my decision on 27 October 2011 which gave leave to an arbitrator, Mr Chow Kok Fong, (‘Mr Chow’) appointed by this court in Originating Summons No 1200 of 2008 (‘OS 1200’), to withdraw from his appointment. The time for the Plaintiffs to file their notice of appeal against my decision has long passed. There is no effective defendant to challenge the Plaintiffs because the defendant (‘the Defendant’) stopped attending these proceedings at an early stage, citing financial constraints.

The facts

2 OS 1200 is but one in a series of many proceedings commenced by the Plaintiffs over the renovation of their property at 2 Siglap Valley, Singapore 455810. They entered into a contract on the Singapore Institute of Architects Form (Lump Sum, 6th Ed, August 1999) with the Defendant to demolish their one storey house and to construct a two-storey house with an attic, basement and swimming pool at the end of December 1999. Disputes arose between the Plaintiffs and the Defendant, and they proceeded to arbitration in August 2001. The Singapore Institute of Architects (‘SIA’) nominated an arbitrator, Mr John Ting Kang Chung (‘Mr John Ting’), and the ensuing arbitration went through what I can only describe as a fractious and stormy course with the Plaintiffs eventually not participating in the hearing. The award that was issued was challenged by the Plaintiffs in Originating Summons No 1807 of 2006 (‘OS 1807’). I heard OS 1807 and Originating Summons No 1231 of 2008 as a consolidated originating summons in December 2009 and issued my judgment on 18 January 2010 (see Ting Kang Chung John v Teo Hee Lai Building Constructions Pte Ltd[2010] 2 SLR 625). For the reasons set out in my judgment, I set aside the arbitral award.

3 This resulted in the Plaintiffs commencing OS 1200 for, inter alia, the appointment of another arbitrator because the SIA, which had nominated Mr Chow, had allegedly failed to do so within the prescribed time limits. Further, the Plaintiffs wanted the court to appoint the arbitrator so there would be no future dispute as to the validity of the appointment. It should be noted that I pointed out to the Plaintiffs that they could carry on with the arbitration, which would involve arbitration costs, or proceed with a court action as they could argue the Defendant had abandoned the arbitration agreement. The Plaintiffs were given an opportunity to consider their options over the lunch adjournment. They came back after lunch and told me they wanted to proceed with arbitration. I accordingly made, inter alia, the following orders on 1 February 2011:

... Pursuant to the Building Contract entered into between the Plaintiffs and the Defendant, and upon the SIA's failure to appoint an arbitrator within the time limits set out in General Condition 37 (1), and pursuant to the Arbitration Act (Cap 10, 1985 Rev Ed), Mr Chow Kok Fong is hereby appointed...

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    ...& Anor v Tan Yeow Tat & Anor (No 2) [1999] 3 SLR(R) 717 at [10] and Anwar Siraj and another v Teo Hee Lai Building Construction Pte Ltd [2014] 1 SLR 52 at [47]). To conclude, I was of the view that my confirmation was purely administrative in nature. I did not think that I had varied the Co......
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    • Singapore Academy of Law Annual Review No. 2020, December 2020
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