Attorney General, Singapore v Joo Yee Construction Pte Ltd (in liquidation)

• Jurisdiction: Singapore
• Judge: Karthigesu J
• Judgment Date: 26 May 1992
• Neutral Citation: [1992] SGCA 40
• Docket Number: Civil Appeal No 30 of 1990
• Date: 26 May 1992
• Year: 1992
• Published date: 19 September 2003
• Plaintiff Counsel: Tan Chee Meng (Attorney General's Chambers)
• Citation: [1992] SGCA 40
• Defendant Counsel: Jude Benny and Abbas Ali (Joseph Tan Jude Benny & Co)
• Court: Court of Appeal (Singapore)
• Subject Matter: Civil Procedure,No live issues to be decided on appeal,Appeals,Whether appellate court should decline to hear appeal,Principles to applied,Discretion of appellate court

When this appeal came on for hearing before us on 29 April 1992, Mr Jude Benny, counsel for the respondents, raised a preliminary point that we should decline to hear this appeal on the ground that there was no live issue to be decided between the parties. After hearing arguments from both counsel we held that the preliminary point was well taken. Accordingly we dismissed this appeal with costs without hearing arguments on the merits. We now give our reasons.

On 12 September 1986, the respondents entered into a building contract with the government of Singapore (Ministry of Health) for the construction of Blood Transfusion Services/Department of Scientific Services Complex at the General Hospital, Singapore. The building contract contained elaborate provisions governing the employment by the respondents of nominated sub-contractors, their contractual obligations with the respondents and how they were to be secured, the manner of payment of the nominated sub-contractors by the respondents and the circumstances or conditions under which direct payments may be made to the nominated sub-contractors by the Ministry of Health (the building owner) in the event the respondents failed to make payments to the nominated sub-contractors or in the event a petition was presented to the court to wind up or make bankrupt the respondents or a receiver was appointed to manage the affairs of the respondents.

Four nominated sub-contractors, namely, Diethelm Industries Pte Ltd, Kian Gwan Engineering Pte Ltd, Esco Scientific Products (Asia) Pte Ltd and Ngee Cheng Electric Co (Pte) Ltd, were duly appointed under the terms of the building contract and entered into sub-contracts with the respondents. The respondents went into liquidation on 10 February 1989 when a winding-up order was made against them. As at the date of the commencement of the liquidation of the respondents the building works under the building contract had been completed, except for some rectification works. Some certificates of payment had still to be issued and there was outstanding at the date of the commencement of the liquidation considerable sums of money earlier certified to be paid to the four nominated sub-contractors which the respondents had failed to pay although they were duly paid by the Ministry of Health.

A question had arisen whether it was proper in these circumstances for the Ministry of Health to make direct payments to the four nominated sub-contractors. In other words whether a direct payment by the Ministry of Health to the four nominated sub-contractors pursuant to the provisions of the building contract would contravene the combined operation of ss 280(1) and 327(2) of the Companies Act (Cap 50, 1988 Ed) (`the Act`).

In order to resolve this question the liquidators of the respondents took out an originating summons citing the four nominated sub-contractors and the Attorney General, representing the Ministry of Health. The originating summons was heard by LP Thean J who delivered his judgment on 1 March 1990, which is reported at [1990] 2 MLJ 66 . LP Thean J held that, under the circumstances, if the Ministry of Health made direct payments to the four nominated sub-contractors such payments would contravene the combined operation of ss 280(1) and 327(2) of the Act and would be void as against the liquidators of the respondents.

At the hearing before LP Thean J the liquidators of the respondents, the four nominated sub-contractors and the Attorney General were represented by counsel. The position taken by the Attorney General was noted by LP Thean J as follows: `Position of Ministry of Health - no objection to either payment but requires a direction of court.` It is also worthy of note and a matter of some importance that the parties had agreed amongst themselves on the question of costs. The concluding paragraph of LP Thean J`s judgment reads: `I was told that the parties have agreed between themselves on the question of costs, and accordingly I make no order thereon.`

It was clear to us that what the parties wanted was a direction from the court, and in our view quite rightly, as there appear to be conflicting views expressed on this issue by the courts of other jurisdictions whose laws have a similar jurisprudential basis as ours. However, the real issue was whether the direction having been given, a party who had taken a neutral stand and who was not affected by the direction given by the court in the sense that whether the payment was made to the one or the other, a payment of no more or no less will nevertheless have to be paid, has such an interest in the matter to maintain the right of appeal. It was not without significance...