Downeredi Works Pte Ltd (formerly known as Works Infrastructure Pte Ltd) v Holcim (Singapore) Pte Ltd

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 11 November 2008
• Neutral Citation: [2008] SGHC 203
• Docket Number: Suit No 235 of 2007
• Date: 11 November 2008
• Published date: 17 November 2008
• Year: 2008
• Plaintiff Counsel: Sadique Marican and Anand Kumar (Frontier Law Corporation)
• Citation: [2008] SGHC 203
• Defendant Counsel: Tan Jee Ming and Florence Chew (Ruth Chia & Co)
• Court: High Court (Singapore)
• Subject Matter: Prescribed period of time for making further arguments,Jurisdiction,Time,Whether clause applied to exclude liability for any consequential loss under the terms of the various agreements,Civil Procedure,Whether Interpretation Act (Cap 1, 2002 Rev Ed) s 50 applied,Jurisdiction of High Court judge to hear further arguments,Expressions limiting time,High Court,Sundays and public holidays,Contract,Courts and Jurisdiction,Interpretation,Court judgments,Whether Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 3 r 2(5) applied,Jurisdiction to hear further arguments after order extracted,Statutory Interpretation,Interlocutory judgments,Construction,Whether Rules of Court (Cap 322, R5, 2006 Rev Ed) O 3 r 2(5) applied,How time for making further arguments under Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) s 34(1)(c) was to be calculated,Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) s 34(1)(c),Binding force,Contractual terms,Construction of statute,Jurisdiction to hear further arguments before order extracted,Whether Sundays and public holidays were to be included in calculation for period for making further arguments,Judges,Computation,Nature of interlocutory judgments,Whether clause allowed defendant to stop supplying ready-mixed concrete because of price increases

11 November 2008

Woo Bih Li J:

Introduction

1 The plaintiff Downeredi Works Pte Ltd, formerly known as Works Infrastructure Pte Ltd (“WI”), was at all material times the main contractor of various works at various sites in Singapore. The defendant Holcim (Singapore) Pte Ltd (“Holcim”) was at all material times WI’s sub-contractor supplying ready-mixed concrete (“RMC”) for five projects (“the Projects”). They were:

Project	Contract Ref No.
(i) Widening of Telok Paku Road and Nicoll Drive	HSPL/Q/0172/0; dated 1st February 2007
improvement works at Jurong Island Highway between; Sakra Road and Sakra Avenue, Jurong Island	HSPL/Q/0172/0; dated 1st February 2007
(iii) Construction of Brickland Road at Choa Chu Kang Town	HSPL/Q/0172/0; dated 1st February 2007
(iv) Sembawang Shipyard/Tuas Cresent/Pandan Road	HSPL/Q/0172/0; dated 1st February 2007
Road to East of Lentor Avenue	HSPL/Q/1745/06 (PR01/07); dated 21st December 2006

2 WI’s claim against Holcim was for Holcim’s failure to supply and deliver RMC for the Projects. Holcim’s defence was that it was entitled to stop supplying RMC because of price increases and that in any event, it was not liable for any consequential loss under the terms of the various contracts.

3 I eventually decided in favour of Holcim. WI has appealed to the Court of Appeal.

Background

4 The action was initially fixed for trial commencing 20 May 2008. However, on 20 May 2008, counsel agreed that the action could proceed on the issue of liability first and that there was no need for oral evidence on this issue.

5 On 22 May 2008 (Thursday), I heard arguments on the issue of liability and granted interlocutory judgment (“IJ”) in favour of WI with damages to be assessed.

6 On 30 May 2008 (Friday), Holcim’s solicitors submitted a request for further arguments. They say they did so at 5.33pm by fax and 5.46pm by electronic filing system. They served the same on WI’s solicitors by email on the same day at 6.57pm.

7 I acceded to the request for further arguments and such arguments were fixed for further hearing on 10 September 2008. On that day, Mr Marican, counsel for WI, raised the objection that the court was functus officio even though the IJ I had granted had not yet been extracted. His point was that the IJ was an interlocutory order and therefore, Holcim had to comply with s 34(1)(c) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“s 34(1)(c)”) by making a request to me, within seven days from the date of the IJ, for further arguments which Holcim had allegedly failed to do. As Holcim’s counsel needed more time to address the case-law authorities which his opponent was referring to, I adjourned the hearing to a date to be fixed.

8 The matter was fixed for hearing on 23 September 2008. After hearing arguments, I decided that I had jurisdiction to hear further arguments. After hearing further arguments, I also decided to reverse my earlier decision on the substantive issue and ruled instead in favour of Holcim.

Jurisdiction

9 It is important to bear in mind that before s 34(1)(c) (or its predecessor) was enacted, it was clear that the court had jurisdiction to hear further arguments before its order or judgment was extracted, see Re Harrison’s Share under a Settlement (1955) Ch 260 and Thomson Plaza Pte Ltd v The Liquidators of Yaohan Department Store Pte Ltd [2001] 3 SLR 248.

10 The predecessor of s 34(1)(c) was first enacted in 1993 as s 34(2) of the 1970 Revised Edition. S 34(1)(c) states:

Matters that are non-appealable or appealable only with leave

34.—(1) No appeal shall be brought to the Court of Appeal in any of the following cases:

(c) subject to any other provision in this section, where a Judge makes an interlocutory order in chambers unless the Judge has certified, on application within 7 days after the making of the order by any party for further argument in court, that he requires no further argument;

11 There are some differences between s 34(1)(c) and its predecessor but they are not material for present purposes.

12 S 34(1)(c) requires a party who wishes to appeal against an interlocutory order made by a judge in chambers to first apply to the judge for further arguments within seven days after the making of the order. Case-law authority also establishes that the Court of Appeal has no jurisdiction to hear an appeal filed against such an order if s 34(1)(c) has not been complied with.

13 Two questions arose before me on the application of s 34(1)(c):

(a) whether the IJ I had granted was a final or an interlocutory order in nature; and

(b) how the seven day period was to be calculated.

14 In Lim Chi Szu Margaret v Risis Pte Ltd [2005] SGHC 206, Andrew Phang JC appeared to prefer the view that an interlocutory judgment is final in nature as it finally disposes of the substantive rights of the parties insofar as liability is concerned. I found such a view persuasive but in Wellmix Organics (International) Pte Ltd v Lau Yu Man [2006] 2 SLR 525, the Court of Appeal decided that an interlocutory judgment is indeed interlocutory in nature. That decision was binding on me. I should also mention that the earlier decision of the Court of Appeal in Ling Kee Ling and anor v Leow Leng Siong and others [1996] 2 SLR 438 appeared to favour the view that such a judgment is interlocutory in nature (see [13] and [14] of that judgment).

15 As for the calculation of the seven day period, Order 3 rule 2(5) of the Rules of Court (Cap 322, 2006 Rev Ed) provides that:

“Where, … , the period in question, being a period of 7 days or less, would include a day other than a working day, that day shall be excluded.”

16 Since my initial decision was given on 22 May 2008 and there was no dispute that Saturday and Sunday were not working days, the seven day period would expire on 2 June 2008, if O 3 r 2(5) were applicable.

17 However, s 50 of the Interpretation Act (Cap 1, 2002 Rev Ed) (“s 50”) provides a different way of calculation. S 50 states:

50. In computing time for the purposes of any written law, unless the contrary intention appears –

(a) a period of days from the happening of an event or the doing of any act or thing shall be deemed to be exclusive of the day on which the event happens or the act or thing is done;

(b) if the last day of the period is a Sunday or a public holiday (which days are referred to in this section as excluded days) the period shall include the next following day not being an excluded day;

(c) when any act or proceeding is directed or allowed to be done or taken on a certain day, then, if that day happens to be an excluded day, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards, not being an excluded day;

(d) when any act or proceeding is directed or allowed to be done or taken within any time not exceeding 6 days, excluded days shall not be reckoned in the computation of the time.

18 So, under s 50, Saturdays and Sundays are included in the calculation of the seven day period stipulated in s 34(1)(c). Therefore, under s 50, Holcim had to apply for further arguments by 29 May 2008 but it did not do so until 30 May 2008, after 5pm.

19 In Thomas & Betts (SE Asia) Pte Ltd v Ou Tin Joon & anor [1998] 1 SLR 913, the Court of Appeal decided that s 50 applies to s 34(1)(c) and not O 3 r 2. With respect, I agreed since the stipulation of the seven day period in question is found in s 34(1)(c) and not in the current Rules of Court. Previously, O 56 r 2 provided that “[a] party dissatisfied with an interlocutory order made by a Judge in Chambers may within seven days of the making of such order, apply to the Judge for further arguments in Court in accordance with practice directions for the time being issued by the Registrar”. The first part of that provision is no longer applicable under the current O 56 r 2. For completeness, I mention that while the current O 56 r 2 of the Rules of Court refers to practice directions being made in respect of s 34(1)(c), it is stated expressly to be subject to s 34(1)(c).

20 Therefore, if Holcim was pursuing an appeal to the Court of Appeal, it had failed to comply with s 34(1)(c).

21 However, in my view, that did not necessarily mean that I had no jurisdiction to hear further arguments. Mr Marican had assumed that since Holcim had not complied with s 34(1)(c), it must necessarily follow that I had no such jurisdiction. He cited a number of cases to me but those were cases involving an appeal to the Court of Appeal.

22 Mr Marican also stressed the rationale for s 34(1)(c) as was espoused in Singapore Press Holdings Ltd v Brown Noel Trading Pte Ltd & Ors [1994] 3 SLR 151 (“SPH v Brown Noel”) in p 166:

The intent and purpose of s 34(1)(c) of the re-enacted Supreme Court of Judicature Act and O 56 r 2 of the Rules of the Supreme Court is to us abundantly clear and free from doubt. It is to prescribe a procedure for appeals in interlocutory matters heard by a judge-in-chambers being brought to this court, which may have arisen from full arguments not being presented to the judge-in-chambers due to the shortness of time available for the hearing of such applications or due to the judge-in-chambers having to decide on an issue without the time available to him for mature consideration. As was said by Chan Sek Keong J (as he then was) in the unreported case of JH Rayner (Mincing Lane) Ltd v Teck Hock & Co (Pte) Ltd & ors:

Section 34(2) (ie s 34(2) of the repealed Supreme Court of Judicature Act) contemplates a situation where a party who is adversely affected by an interlocutory order may wish to appeal against that order but before so doing would like the judge to reconsider the order in the light of such further arguments as he may be able to put forward. If a judge agrees to hear further arguments, it must mean that he is prepared to change his mind if on hearing further arguments he comes to the conclusion that the...