CKR Contract Services Pte Ltd v Asplenium Land Pte Ltd and others

JurisdictionSingapore
JudgeAng Cheng Hock J
Judgment Date29 June 2020
Neutral Citation[2020] SGHC 133
Plaintiff CounselLee Sien Liang Joseph, Qabir Singh Sandhu and Yap Pei Yin (LVM Law Chambers LLC)
Docket NumberSuit No 1274 of 2015 (Summons No 4732 of 2019)
Date29 June 2020
Hearing Date09 March 2020,02 March 2020
Subject MatterPleadings,Cause of action estoppel,Res Judicata,Striking out,Extended doctrine of res judicata,Issue estoppel,Civil Procedure,Identity of issues,Identity of causes of action
Published date03 July 2020
Defendant CounselChuah Chee Kian Christopher, Kua Lay Theng and Rachael Chong Rae-Hua (WongPartnership LLP)
CourtHigh Court (Singapore)
Citation[2020] SGHC 133
Year2020
Ang Cheng Hock J:

This judgment concerns an application by the first defendant (Summons No 4732 of 2019) to strike out the action brought by the plaintiff against it in Suit No 1274 of 2015 (“Suit 1274”) under O 18 r 19(1) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”).1 It was fixed and heard together with a similar application taken out by the second defendant to strike out the action against him (Summons No 5859 of 2019),2 but that latter application was withdrawn in the course of the hearing.3

In Suit 1274, the plaintiff has brought proceedings against the first to ninth defendants for the torts of lawful means conspiracy and unlawful means conspiracy, and against the first and second defendants for the tort of intimidation.4 In its striking out application, the first defendant’s main contention, in gist, is that the plaintiff’s claims should be struck out because they have already been dealt with in the arbitration brought by the plaintiff (see [16] below), and the claims in this suit are thus barred by the principles of res judicata.

The striking out application which is the subject of the present judgment should not be seen in isolation, but in its proper context. It is the latest salvo in a long-running dispute arising from a building and construction project where the plaintiff was appointed and later terminated as the main contractor.5 As will be outlined below, the longstanding nature of this dispute between the plaintiff on the one hand and the project developer and consultants on the other, has engendered an entire series of pronouncements and findings by, inter alia, an arbitral tribunal and the Courts, and it is against this backdrop that the present application is brought.6

Background Dramatis personae

Given the number of defendants, it will be useful to first set out the dramatis personae involved in Suit 1274.

The plaintiff, CKR Contract Services Pte Ltd, was appointed as the main contractor for a condominium project known as the Seletar Park Residences (“the Project”) from 15 January 2013. Its appointment as the main contractor was terminated on 24 October 2014.7

The first defendant, Asplenium Land Pte Ltd, was the developer for the Project, and is a subsidiary of Tuan Sing Holdings Pte Ltd.8 The first defendant had been incorporated for the development of the Project. The second defendant, Sia Wee Long (“Mr Sia”), was an employee of Tuan Sing Holdings Pte Ltd and was, at the material time, the project manager of the Project.

The third defendant, SCDA Architects Pte Ltd, was the architectural firm engaged as the Project’s architects.9 At the material time, the fourth and fifth defendants were employees of the third defendant. The fourth defendant, who remains employed by the third defendant, was the architect named as the Qualified Person for the Project, and the fifth defendant also worked on the Project as an architect. In the course of this judgment, for convenience, I will refer to the third to fifth defendants as “the architects”.

The sixth defendant, Rich-Link Construction Pte Ltd, was engaged by the first defendant to replace the plaintiff as the main contractor for the Project after the first defendant had terminated the plaintiff’s services in October 2014.10

The seventh defendant, Rider Levett Bucknall LLP, was the firm of quantity surveyors engaged for the Project.11 The eighth defendant, RLB Consultancy Pte Ltd, is a related company of the seventh defendant. The ninth defendant, Lam Chye Shing, is an employee of the seventh defendant and was the designated Quantity Surveyor for the Project. The seventh, eighth, and ninth defendants were involved in the replacement tender process through which the sixth defendant was engaged to replace the plaintiff as main contractor for the Project. For context, the seventh defendant is in the business of providing property and construction consultancy services, while the eighth defendant is in the business of providing consultancy and project management services in the construction industry. The seventh and eighth defendants have the same registered address, and the nine registered partners of the seventh defendant are also directors and shareholders of the eighth defendant.

Background to the disputes

A brief chronology of the relevant facts is as follows.

On 15 January 2013, the plaintiff and first defendant entered into a contract (“the Contract”) concerning the development of the Project.12 The first defendant had engaged the plaintiff as the main contractor to carry out building and construction works for the Project. Three points bear note in relation to the Contract: The value of the Contract upon the plaintiff’s appointment as main contractor was S$88,063,838.00 (the “Contract Sum”).13 The commencement date of the Project was 21 January 2013, and the scheduled completion date was 20 January 2015. The Contract incorporated the Singapore Institute of Architects’ Articles and Conditions of Building Contract (Lump Sum Contract) 9th Edition (Reprint August 2011) (the “SIA Conditions”) and the Supplemental Articles and Conditions of Contract.14 Pursuant to the Contract, a performance bond was procured by the plaintiff in favour of the first defendant in the sum of S$8,806,383.80 (being 10% of the Contract Sum).15

On 24 October 2014, the plaintiff was terminated as main contractor of the Project by the first defendant pursuant to a Notice of Termination issued that very day.16 The Notice of Termination was issued on the basis of two Termination Certificates issued by the third defendant and signed by the fourth defendant.17 The first of these certificates (“Certificate No. 260”) was issued on the basis that the plaintiff had failed to proceed with the Project with due diligence and expedition for one month even after the third defendant had issued it a notice to do so (“Notice 260”) pursuant to cl 32(3)(d) of the SIA Conditions on 11 September 2014. The other Termination Certificate (“Certificate No. 262”) proceeded on the basis that the plaintiff had failed to comply with various architect’s directions (“ADs”) issued by the architects within one month after the third defendant had issued it a notice to do so (“Notice 262”) pursuant to cl 32(3)(h) of the SIA Conditions on 11 September 2014. For completeness, I note that two other written notices pursuant to cll 32(3)(e) and 32(3)(h) respectively of the SIA Conditions, Notice 261 and Notice 265, had been issued by the third defendant. However, these two other written notices were not relied upon by the third defendant as the bases for the issuance of Termination Certificates.18 I shall refer to Notices 260, 261, 262 and 265 collectively as “the Notices”.

For ease of reference, cll 32(3)(d) and 32(3)(h) of the SIA Conditions, pursuant to which Notices 260 and 262, and subsequently Termination Certificates No. 260 and 262 respectively were issued, are set out below: The Architect may issue a Termination Certificate on any one of the following grounds:

[…]

if the Contractor has wholly suspended work without justification or is failing to proceed with diligence and due expedition, and following expiry of 1 month’s written notice from the Architect to that effect has failed to take effective steps to recommence work or is continuing to proceed without due diligence or expedition as the case may be;

[…]

if the Contractor has refused or failed following 1 month’s written notice by the Architect to comply with any written direction or instruction of the Architect which he is empowered to give under any clause of these Conditions, including instructions under Clause 29.(3) of these Conditions

[…]

Following the plaintiff’s termination in October 2014, a replacement tender exercise was held and a new contractor, the sixth defendant, was appointed to complete the Project.19

On 4 November 2014, consequent to the termination of the Contract, the first defendant made a call on the performance bond for the full sum. While the call amount was subsequently reduced by the first defendant to around S$7.7 million, a second call was made on the performance bond for the remaining balance of approximately S$1.1 million about a year later, after the completion of the Project.20

On 10 November 2014, the plaintiff commenced arbitral proceedings (“the Arbitration”) against the first defendant pursuant to the parties’ arbitration agreement in cl 37 of the SIA Conditions.21 The arbitration clause provided that any dispute between the parties arising out of the Contract was to be “referred to the arbitration and final decision of a person to be agreed by the parties”. The parties agreed to appoint Mr Chow Kok Fong (the “tribunal” or “arbitrator”) as the sole arbitrator.22 The Arbitration was bifurcated into two phases – a liability phase and a quantum phase.23 The liability phase of the Arbitration ran from 10 November 2014 to 14 February 2018, and two awards were issued in this regard.

The first of these two awards, Partial Award 1, was dated 11 October 2017. It extensively set out the tribunal’s findings on liability on the matters in dispute and ran to 757 pages. The arbitrator noted in the award that it is “common ground that the central issue in the arbitration is whether [the first defendant] validly terminated the contract when it issued its Notice of Termination on 24 October 2014. [The plaintiff] alleges that [the first defendant] had wrongfully terminated the Contract as it had no valid grounds to do so, while [the first defendant] contends that it was entitled and had validly done so”.24 In the result, the arbitrator found substantially for the first defendant and decided that the first defendant had validly terminated the Contract.25 The second award, Partial Award 2, was dated 14 February 2018, and awarded costs to the first defendant for the liability phase against the...

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    ...on these grounds.821 The requirements of these two subspecies of the res judicata doctrine were recently set out in the High Court decision of CKR Contract Services Pte Ltd v Asplenium Land Pte Ltd and others [2020] 5 SLR 665 (“CKR”) at [43] to [44] as follows: there must be a final and con......
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    ...(watching brief). Case(s) referred to AAY v AAZ [2011] 1 SLR 1093 (folld) CKR Contract Services Pte Ltd v Asplenium Land Pte Ltd [2020] 5 SLR 665 (folld) Goh Nellie v Goh Lian Teck [2007] 1 SLR(R) 453; [2007] 1 SLR 453 (folld) John Forster Emmott v Michael Wilson & Partners Ltd [2008] 2 All......
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2 books & journal articles
  • Conflict of Laws
    • Singapore
    • Singapore Academy of Law Annual Review No. 2021, December 2021
    • 1 Diciembre 2021
    ...SLR 1248 at [71] and [75]–[76]. 430 See para 12.225 above. 431 See discussion of CKR Contract Services Pte Ltd v Asplenium Land Pte Ltd [2020] 5 SLR 665 in (2020) 21 SAL Ann Rev 314 at 393–402, paras 12.216–12.225. 432 Merck Sharp & Dohme Corp v Merck KGaA [2021] 1 SLR 1102 at [3]–[4]. 433 ......
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    • Singapore Academy of Law Annual Review No. 2020, December 2020
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