Chong Long Hak Kee Construction Trading Co v IEC Global Pte Ltd

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang J
• Judgment Date: 10 October 2003
• Neutral Citation: [2003] SGHC 234
• Docket Number: Suit No 527 of 2003 (Registrar's
• Date: 10 October 2003
• Published date: 20 October 2003
• Year: 2003
• Plaintiff Counsel: Sadique Marican (Tito Isaac and Co)
• Citation: [2003] SGHC 234
• Defendant Counsel: Ng Siew Hoong (Peter Moe and Partners)
• Court: High Court (Singapore)
• Subject Matter: Defendant serving 48-hour notice requiring plaintiff to file and serve its Defence to defendant's Counterclaim,Stay of proceedings,Court's discretion to grant stay after defendant taken step in proceedings,Civil Procedure,Stay of court proceedings,Arbitration,Whether step in proceedings nullifying intention to arbitrate,Application for stay in favour of arbitration agreement

1 This is an appeal by the defendant against the decision of Assistant Registrar Teo Hsiao-Huey who dismissed the defendant’s application for a stay of proceedings pursuant to an arbitration clause.

2 In this action, the plaintiff claims $399,199.32 in respect of works carried out for the defendant under a written sub-contract dated 8 February 2003 which contains the following term:

‘Article 5: Settlement of disputes – Arbitration

5.1 In case any dispute or difference shall arise between the Main Contractor and the Sub-contractor either during the progress or after the completion or abandonment of the Works as to :

5.1.1 the construction of this Contract; or

5.1.2 any matter or thing of whatsoever nature arising hereunder or in connection herewith then such dispute or difference shall be and is hereby referred to the arbitration and final decision of a person to be agreed between the parties to act as Arbitrator, or, failing agreement within fourteen (14) days after either party has given to other written request to concur in the appointment of an Arbitrator, a person to be appointed to the request of either party by the person named in Appendix 1 to the Conditions provided always the Main Contractor and the Sub-contractor are at liberty to agree between themselves to refer such dispute or difference for mediation prior to referring the same to Arbitration I an effort to solve the matter.’

3 On 26 May 2003, this writ of summons was filed. It was served on the defendant two days later. On 3 June, the defendant entered an appearance in the action. On 18 June, at a pre-trial conference (‘PTC’) before the Registrar, the defendant indicated that it intended to file an application for stay of proceedings pursuant to the arbitration clause. Accordingly, no directions for the further conduct of the proceedings were given and the PTC was adjourned to 1 August 2003.

4 On 20 June 2003, the plaintiff served a 48-hour notice on the defendant to file and serve the Defence failing which judgment in default would be entered. The defendant stated that having no other alternative to preserve its legal position, it filed its Defence and Counterclaim on 23 June 2003. Paragraph 1 of the Defence proclaims that the defendant was filing its defence without prejudice to its right to file an application to stay proceedings on the basis that the parties had agreed that the cause of action alleged in the Statement of Claim be referred to arbitration. The Counterclaim which begins at paragraph 9 states that the defendant repeats paragraphs 1 to 8 of the Defence. At the same time, the defendant filed the present application for a stay of proceedings.

5 On 4 July 2003, the Assistant Registrar heard and dismissed the defendant’s application on the ground that it had taken a step in the proceedings within the meaning of s 6 (1) Arbitration Act. She awarded the plaintiff costs fixed at $300.

6 On 8 July 2003, the defendant’s solicitors sent the following letter to the plaintiff’s solicitors:

‘We refer to the above matter and to the writ of summons which was served on your clients on 23^rd June 2003.

Please note that your clients’ Defence to Counterclaim is overdue. Kindly let us have the same within 48 hours hereof, failing which we have our clients’ strict instructions to enter Judgment against your clients and proceed with execution proceedings thereafter for recovery of the Judgment sum.’

(The ‘writ of summons’ referred to in the letter should have read ‘Defence and Counterclaim’.)

Accordingly, the plaintiff filed its Defence to Counterclaim on 9 July 2003.

7 On 17 July 2003, the defendant filed an appeal against the Assistant Registrar’s decision of 4 July 2003 (Registrar’s Appeal No. 220 of 2003), the appeal before me. The appeal proceeded on the same preliminary issue of whether the defendant had taken a step in the proceedings, thereby depriving itself of the right to apply for a stay

The Decision of the Court

8 S 6 (1) ...