Artic Builders & Co (Pte) Ltd v Tan Tong Meng Co (Pte) Ltd

• Jurisdiction: Singapore
• Judge: Lai Kew Chai J
• Judgment Date: 11 May 1984
• Neutral Citation: [1984] SGCA 12
• Date: 11 May 1984
• Subject Matter: Administrative Law,Natural justice,Award,Whether arbitrator acted judicially and fairly at remission hearing,Application for award to be set aside, varied or remitted to arbitrator,Remission order,Whether there was miscarriage of justice at remission hearing,Recourse against award,Arbitration
• Docket Number: Civil Appeal No 52 of 1981
• Published date: 19 September 2003
• Defendant Counsel: P Selvadurai and RS Rabindran (Rodyk & Davidson)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: CS Wu (Donaldson & Burkinshaw)

By an agreement in writing dated 15 November 1975 between Artic Builders & Co (Pte) Ltd (the Appellants) and Tan Tong Meng Co Pte Ltd (the respondents), the appellants agreed to erect and complete for the respondents a 19-storey apartment block at the price of $4,227,818.

Clause 25(1) providing for the termination of the building agreement was in the following terms:

If the Contractor shag make default in any one or more of the following respects, that is to say:

(a) If he without reasonable cause wholly suspends the carrying out of the Works before completion thereof, or

(b) If he fails to proceed regularly diligently with the Works, or

(c) If he refuses or persistently neglects to comply with a written notice from the Architect requiring him to remove defective work or improper materials or goods and by such refusal or neglect the Works are materially affected, or

(d) ...

then the Architect may give to him a notice by registered post or recorded delivery specifying the default, and if the Contractor either shall continue such default for fourteen days after receipt of such notice or shall at any time thereafter repeat such default (whether previously repeated or not), then the Employer without prejudice to any other rights or remedies, may within ten days after such continuance or repetition by notice by registered post or recorded delivery forthwith determine the Employment of the Contractor under this Contract provided that such notice shall not be given unreasonably or vexatiously.

Before the completion of the works the respondents by a letter dated 2 June 1978 terminated the appellants` employment. On 26 June 1978 the parties agreed to refer all matters in dispute between them to a sole arbitrator, Mr Cashin, an advocate and solicitor.

The arbitration proceedings commenced on 23 January 1979 and on 9 May 1979 the arbitrator published his interim award on the issue of liability. It is common ground that the parties agreed that the interim award was a `speaking` award, that is, an award which deals with all issues of fact and law and the findings of fact being final and conclusive. The arbitrator found that the respondents did not procedurally give the notices as required by cl 25(1) of the contract and that therefore no proper notice of termination was given. The arbitrator also found that on the facts there was no sufficient justification for the notices leading to the letter of termination of 2 June 1978.

On 18 June 1979, the respondents` solicitors wrote to the arbitrator a letter which reads:

HE Cashin Esq,

Messrs Murphy & Dunbar,

1901 Hong Leong Building,

(19th Floor)

Raffles Quay,

Singapore 1

Dear Sir,

Re: Arbitration between Artic Builders & Co Pte Ltd and Tan Tong Meng & Co Pte Ltd

1 We have now been instructed to act for M/s Tan Tong Meng & Co Pte Ltd, the Respondents in this Arbitration, in place of M/s CB Yeow & Co, and refer to the Interim Award signed and published by you on the 9 May 1979.

(2) We have perused your Interim Award in the context of the Pleadings and other documents which were placed before you in this Arbitration. We refer in particular to the Architects, Messrs Ong & Ong`s letter of the 17 May 1978 to the claimants and to Messrs SK Lee & Co`s letter of the 2 June 1978 to M/s Donaldson & Burkinshaw Whereas, both the said letters invoked the provisions of cl 25(1) of the Agreement dated 15 November 1975 between the claimants and the Respondents, they did not limit the Respondents` rights to cl 25(1)(c). Indeed, in terminating the contract under the provisions of cl 25(1) of the Agreement, the Respondents were not limiting their rights to the facts and circumstances that may have fallen to be governed by cl 25(1)(c). Instead, the Respondents were relying upon the record of performance or the lack of it of the claimants under the entire contract.

(3) In the circumstances, your Interim Award, predicated, as it is, upon the limited issues and facts that may have fitted themselves into the framework of cl 25(1)(c) of the contract, has not considered all the other issues that were germane to the question of whether the Respondents` termination of the contract was legally valid and whether, further, the Respondents were entitled to their counter-claim in all the circumstances of the case.

(4) Due to the foregoing considerations we have been instructed to take matters further and we would be grateful to know if you would be prepared, in view of the larger issues we have referred to above, to state a special case to the Court with respect to your Interim Award on the question of whether you were right in considering the effect in law of cl 25(1)(c) only and not the entire cl 25(1) of the contract. We refer in this regard to s 28 of the Arbitration Act (Cap 16).

(5) We would be grateful to have your reply by return, as, we may have to move the Court for appropriate relief within the time limited by the Rules, otherwise.

Yours faithfully,

Sgd: Rodyk & Davidson

On 20 June 1979 the arbitrator replied by letter which reads:

M/s Rodyk & Davidson,

Singapore.

Dear Sir,

Arbitration between Artic Builders & Co Pte Ltd and Tan Tong Meng & Co Pte Ltd.

I thank you for your letter of 18 June 1979

1 At the end of the first phase of the hearing I clarified with Mr CS Wu, Counsel for the Claimants, and with Mr M Karthigesu, Counsel for the Respondents, the form in which they wished me to make my award. I first asked Mr Karthigesu whether he wanted me to give my award by way of case stated and his reply to me was that this would not be necessary if my award was to be given in `speaking` form. Mr Wu agreed:

(2) My note on this reads `K states no need for case stated if I give `speaking` award. FW agrees.` I should explain that Mr CS Wu is also known as Mr Fred Wu hence the reference to FW.

(3) At the opening of his case Mr CS Wu referred to the notices allegedly sent under s 25(1) by the Respondents and as a result on the 24 January 1979, Mr Karthigesu applied to amend the particular in order to reply upon the minutes of a meeting held on 21 March 1979. The minutes themselves were dated 23 March. Both Counsel during the course of Mr Wu`s opening agreed that it was sub-cl (c) of cl 25(1) on which the Respondents were relying. If further clarification was needed, in his opening, I have recorded Mr Karthigesu as saying `Confine F`s evidence to the issue as to whether determination of contract was justified. Rely on amendment made -

25(1)(c) of Contract

three documents

(1) Minutes 23 March 1978

(2) Letter 17 May 1978

(3) Letter 2 June 1978

Mr Karthigesu then went on to direct his entire case towards these issues and in his closing address once again limited his argument to 25(1)(c).

4 In these circumstances, I find it impossible to concede that the Respondents did not limit their rights to cl 25(1)(c). I do not accept that they relied upon the record or performance or the lack

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