Brightside Mechanical & Electrical Services Group Ltd and Another v Hyundai Engineering & Construction Co Ltd

JurisdictionSingapore
JudgeL P Thean J
Judgment Date08 January 1988
Neutral Citation[1988] SGHC 1
Docket NumberSuit No 1130 of 1987
Date08 January 1988
Published date19 September 2003
Year1988
Plaintiff CounselGiam Chin Toon (Wee Swee Teow & Co)
Citation[1988] SGHC 1
Defendant CounselNaresh Mahtani and Gaby Toh (Arthur Loke & Partners)
CourtHigh Court (Singapore)
Subject MatterCivil Procedure,Arguable point of law raised,Issue of law to be determined,Interpretation of contractual term,Summary judgment

Cur Adv Vult

These are two appeals by the plaintiffs against the two orders respectively of the assistant registrar made on 4 August 1987 on the following applications: Summons-in-Chambers No 3228 of 1987 by the plaintiffs for final judgment for the amount claimed against the defendants under O 14 of the Rules of the Supreme Court and Summons-in-Chambers No 3264 of 1987 by the defendants for a stay of the plaintiffs` action and all further proceedings under s 7 of the Arbitration Act (Cap 10). Both the applications were heard together by the learned assistant registrar, and at the conclusion thereof he allowed the defendants` application and made no order on the plaintiffs` application.

By an agreement in writing dated 15 September 1982 (the main contract), the defendants were engaged by Marina Centre Holdings Pte Ltd (the owner) as the main contractor for the construction of a huge development called Marina Centre, on the land known as URA Land Parcels 83, 84, 85 and 86, Singapore.
The plaintiffs are the sub-contractors of the defendants in respect of mechanical works at the Marina Centre. The sub-contract was initially made between the defendants and Carl P Wallace International, Inc (Carl Wallace) by two documents dated 16 September 1982 and 10 August 1983 (the sub-contract), but subsequently by an agreement in writing made on 13 August 1985, the plaintiffs assumed the obligations, and took over the rights, of Carl Wallace and became a sub-contractor of the defendants.

Under cl 11(a) of the sub-contract, the defendants are obliged, subject to and in accordance with the main contract, from time to time to make application to the architect in charge of the development for certificates of payment and for the inclusion therein of the amounts which at the date thereof fairly represent the total value of the works, materials or goods executed or supplied by the plaintiffs that may be included therein under that clause.
On such application being made, the architect will, and subject to the terms of the main contract, issue a certificate of payment and direct the defendants as to the total value of works, materials or goods executed or supplied by the plaintiffs included in the calculation of the amount stated as due in such certificate and inform the plaintiffs in writing of the amount of such total value. Under cl 11(b) of the sub-contract, the defendants shall within five days of receipt of the sum included in any certificate of the architect notify and pay to the plaintiffs the total value certified in the certificate of the architect less:

(i) retention money

(ii) any sums to which the defendants may be entitled in respect of delay in the completion of the sub-contract works and

(iii) the amount previously paid.



Pursuant to the provisions of the main contract, the architect on 12 March 1987 issued a Certificate No S59 in the sum of $5,063,173, and a sum of $1,698,297 was included therein as the total value of the sub-contract works executed by the plaintiffs.
In consequence of the architect`s certificate, the defendants by their Certificate for Payment No 52 dated 20 March 1987 certified to the plaintiffs that, after deduction by the defendants of the retention money, `contra charges`, the amounts previously paid and the balance of the advanced payments made, the amount due to the plaintiffs is $924,711. Notwithstanding the issue of this certificate of payment, the defendants declined to pay to the plaintiffs the amount of $924,711 or any part thereof and the reason for their refusal to pay is this. On 2 February 1987 the architect issued to the owner a certificate under cl 22 of the main contract in the following terms:

The original completion date for the above works was specified in the Appendix to the Conditions of Contract as 23 March 1985. In accordance with cl 23 of the Conditions of Contract, Hyundai Engineering and Construction Co Limited have been granted reasonable extensions of time for the completion of the said works which have had the effect of extending the date for completion of the works from 23 March 1985 until 6 February 1986. I hereby certify pursuant to cl 22 of the Conditions of Contract that in my opinion the works ought reasonably to have been completed by 6 February 1986 that is by the extended time for completion fixed under cl 23 of the Conditions of Contract.



Arising from that certificate (cl 22 certificate), the owner by a letter of 29 March 1987 notified the defendants that on the basis of the cl 22 certificate, the owner had decided to exercise its right under the said cl 22, and that the sum of $5,063,173, being the amount certified in Certificate No S59, and all future certified payments would be retained to set off against liquidated and ascertained damages payable to the owner, which were assessed to be in the sum of approximately $62,000,000.
The letter is in the following terms:

Your letter HD-SIMA-2325 dated 18 March 1987 on the above subject refers.



The architect has certified under cl 22 of the Contract Conditions on 2 February 1987 (a copy of which was copied to you) that in his opinion the works should have been completed by 6 February 1986.
Acting on this certification MCH has now decided to exercise its right under the same cl 22 whereby the employer may deduct any monies due or become due to the contractor under this contract to set off against payment to the employer as liquidated and ascertained damages for the period during which the works have remained incomplete, or may recover the same as a debt from the contractor.

The current Certificate for Payment No 59 amounting to a sum of S$5,063.173 as well as all future certified payments will therefore be retained to set off against the liquidated and ascertained damages payable to the employer.
The current assessment of liquidated and ascertained damages due to the employer are assessed at approximately S$62m.

Following that letter from the owner, the defendants wrote on 13 April 13 1987 to the plaintiffs as follows:

Further to our letter to you of 23 March 1987, you are aware that MCH have now withheld payment of the sums payable under interim certificate number 59, and have indicated that all further sums so certified in interim payment certificates will be withheld by way of set-off, in respect of their purported entitlement to recover liquidated and ascertained damages pursuant to the certificate contained in JPA`s letter dated 2 February 1987 to MCH.



Whilst we do not accept the validity of the cl 22 certificate, or MCH`s entitlement to deduct liquidated damages, you will appreciate that we have incurred loss and damage as a result of MCH`s reliance on JPA`s certificate.


We must in these circumstances therefore reserve our rights to recover from you the loss and damage which we have incurred, and may in future incur, as a result of delays which you are responsible for causing in completion of your sub-contract works

Accordingly, no payment of the sum of $924,711 or any part thereof was made to the plaintiffs.


The plaintiffs therefore brought this action to recover the amount of $924,711.
Their case is simply this: there is really no dispute that the amount claimed is due and payable by the defendants. The defendants have acknowledged that and issued a certificate of payment for this sum and therefore judgment for this amount should be entered against the defendants upon an application under O 14. In defence, the defendants raise two main issues:

(a) the defendants are not liable under cl 11(b) of the sub-contract to pay the amount to the plaintiffs as they, the defendants, have not received from the owner the sum included in the architect`s...

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5 cases
  • Lim Boon Kwee (trading as BK Lim & Co) v Impexital SRL
    • Singapore
    • High Court (Singapore)
    • 17 March 1998
    ...6.6. In Brightside Mechanical & Electrical Services Group Ltd & Anor v Hyundai Engineering & Construction Co Ltd [1988] 1 MLJ 500 [1988] SLR 186 , LP Thean J (as he then was) reviewed a provision in a sub-contract similar to condition 13.1 in a summary judgment application. That provision s......
  • Sinwa SS (HK) Co Ltd v Nordic International Ltd and another
    • Singapore
    • Court of Appeal (Singapore)
    • 6 January 2015
    ...judgment application (see Brightside Mechanical & Electrical Services Group Ltd and another v Hyundai Engineering & Construction Co Ltd [1988] 1 SLR(R) 1, Aurum Building Services (Pte) Ltd v Greatearth Construction Pte Ltd [1994] 2 SLR(R) 805, and Coop International Pte Ltd v Ebel SA [1998]......
  • Teras Offshore Pte Ltd v Teras Cargo Transport (America) LLC
    • Singapore
    • International Commercial Court (Singapore)
    • 20 March 2018
    ...These authorities are Brightside Mechanical & Electrical Services Group Ltd and another v Hyundai Engineering & Construction Co Ltd [1988] 1 SLR(R) 1 (“Brightside”) in particular at [16]; and Interpro Engineering Pte Ltd v Sin Heng Construction Co Pte Ltd [1997] 3 SLR(R) 668 (“Interpro”) in......
  • Interpro Engineering Pte Ltd v Sin Heng Construction Company Pte Ltd
    • Singapore
    • High Court (Singapore)
    • 14 November 1997
    ...by Tavica: at [9], [16] and [20]. Brightside Mechanical & Electrical Services Group Ltd v Hyundai Engineering & Construction Co Ltd [1988] 1 SLR (R) 1; [1988] SLR 186 (refd) Hong Kong Teakwood Works Ltd v Shui On Construction Co Ltd [1984] HKLR 235 (refd) Iezzi Constructions Pty Ltd v Watki......
  • Request a trial to view additional results
1 books & journal articles
  • Building and Construction Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2003, December 2003
    • 1 December 2003
    ...Co Pte Ltd[1998] 1 SLR 694 and Brightside Mechanical & Electrical Services Group Ltd v Hyundai Engineering & Construction Co Ltd[1988] SLR 186). What is novel in this case appears to be court”s observation at [100] that the defendants ‘had not provided to the court any satisfactory evidence......

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