Engineering Construction Pte Ltd v Attorney General and Another

• Jurisdiction: Singapore
• Judge: Lim Teong Qwee JC
• Judgment Date: 17 September 1992
• Neutral Citation: [1992] SGHC 244
• Date: 20 January 1994
• Docket Number: Originating Summons No 527 of 1992,Originating Summons No 768 of 1993
• Published date: 19 September 2003
• Year: 1992
• Plaintiff Counsel: Philip Jeyaretnam (Helen Yeo & Partners)
• Citation: [1992] SGHC 244
• Defendant Counsel: Khong Swee Lin (Chan Cher Boon & Leong),Soh Tze Bian (State Counsel)
• Court: High Court (Singapore)
• Subject Matter: Particulars,Whether plaintiffs' summons contained sufficient particulars to identify cause of action,R0 20 r 7 Rules of the Supreme Court 1970,Whether second defendants as superintending officer had right to act on behalf of government in matter,Building and Construction Law,Civil Procedure,Matters to be included in originating summons,Consequences,Delay in completion,Provision for liquidated and ascertained damages payable by plaintiffs -Whether such damages were payable,Whether such damages deductible from amounts due to the plaintiffs under the contract,Termination,Pleadings

Cur Adv Vult

Introduction

By a contract in writing (`contract`) entered into between the government of Singapore and the abovenamed Engineering Construction Pte Ltd (`EC`) on 2 March 1990, EC undertook to execute the reconstruction of Jalan Ahmad Ibrahim Culvert and Jurong Lake Tidegate (`the works`) for the sum of $12,070,282.08. The date of possession was 19 March 1990 and the date of completion was 18 December 1991. Liquidated and ascertained damages (`LAD`) were payable for delay beyond the completion date at the rate of $3,000 per day. The works were not completed and on 25 April 1992 the contract was terminated. Under the contract, the superintending officer (`SO`) was the abovenamed Mott MacDonald (Singapore) Pte Ltd (`MM`). More accurately, in the space for `official designation of officer appointed to be the "superintending officer" under this contract` appears `Consulting Engineers, Mott Hay & Anderson Asia Pte [now MM]`.

By this originating summons issued on 9 June 1992, EC claimed against the Attorney General (`A-G`) a declaration that the government`s purported notice of termination of the contract was null and void, and consequential reliefs. This was not disputed by the A-G and I made a consent order in terms of the declaration sought and consequential reliefs. EC also claimed against both the A-G and MM:

a declaration that the second defendants as superintending officer under the said contract are not entitled by cl 31 of the said contract or otherwise to deduct from amounts due to the plaintiffs under the said contract liquidated damages

and consequential reliefs. This was opposed by both defendants.

I heard counsel on 17 August 1992 and reserved judgment. I then referred counsel to Token Construction Co Ltd v Charlton Estates Ltd [1973] 1 Build LR 50 and counsel asked for further argument. I heard counsel on 27 August 1992 and again reserved judgment. The A-G then asked for a further hearing to apply for leave for a second affidavit to be received and I heard the application on 4 September 1992 and granted it. I also allowed a second affidavit on behalf of MM and EC to be received. I again reserved judgment.

At the first hearing, the case for the A-G was first that the claim (for the disputed declaration) had not been `pleaded` and secondly, that on the merits the government was entitled to claim and deduct LAD and accordingly EC was not entitled to the declaration claimed and consequential reliefs. At the second hearing, the A-G submitted the alternative argument on the merits that the Director, Environmental Engineering, Ministry of the Environment (`the director`) had made a fair and reasonable extension of time for completion of the works by five days and had further certified that the works ought reasonably to have been completed by the extended time so that as the works had not been completed within the extended time, the government was entitled to deduct LAD from any amount due to EC under the contract. Reference was made to two letters, both dated 4 January 1992, signed by the director. In the second affidavit which I granted leave to be received, the A-G has put in two further certificates, both dated 2 September 1992, issued by the SO.

The pleading point

These proceedings were begun by originating summons and it is not disputed that they are appropriate to be so begun under O 5 r 4(2). Mr Soh submits that O 18 r 7 (which is expressed to apply to pleadings) also applies to an originating summons as if the summons and affidavit filed in support are pleadings in the action. It is not disputed that EC`s affidavit in support of the summons contains no material directly bearing upon the declaration sought other than referring to the contract. Mr Soh submits that the material facts have not been pleaded as required under O 18 r 7 and accordingly the relief prayed for cannot be granted. He refers to Re Carter [1893] 41 WR 140 In Re Carter [1893] 41 WR 140 the trustees applied by originating summons for determination of the question whether the tenant for life was entitled to enjoy in specie the income of unconverted estate held on trust for sale. Kekewich J, who heard the originating summons, said at p 141:

The tenant for life is entitled to enjoy the income in specie of the real estate until sale, but with regard to the leaseholds they are governed by the rule of law to which I have just referred.

The rule of law referred to is of course the rule as regards equitable apportionment.

Counsel for the remaindermen thereupon asked for a declaration that the tenant for life was entitled to 4%pa on the capital value of the leaseholds as at the date of death of the testator. Kekewich J, later at p 141, said:

That would be raising a question which the trustees do not ask. All the court has to do on this summons is to answer questions raised by the trustees. It is open to the remaindermen to raise this question hereafter.

That is undoubtedly right on the facts but it does not support the proposition that Mr Soh urges upon me. It may also be helpful to refer to O 20 r 7 and O 28 r 8(1) which would be unnecessary if the summons or affidavit were a pleading. See also Lewis v Packer [1960] 1 WLR 452[1960] 1 All ER 72

Order 7 r 3 provides:

(1) Every originating summons must include ... a concise statement of the relief ... claimed in the proceedings begun by the originating summons with sufficient particulars to identify the cause or causes of action in respect of which the plaintiff claims that relief ... .

What is required is that the summons itself must state:

(1) the relief; and

(2) sufficient particulars to identify the cause of action.

In this summons, the relief claimed has been stated. I have set out above the terms of the relief claimed. This is endorsed on the summons. There is no other statement contained in the summons that sets out any particulars except to identify `the said contract` as the contract between EC and the government.

Under the contract, there would be amounts due to EC in respect of works executed by it. Such amounts are payable from time to time as progress payments. If the SO under the contract is at all entitled to deduct LAD from amounts payable to EC, it is entitled to do so only in accordance with the terms of the contract. Clause 31 of the contract is referred to in the relief claimed and it provides:

(a) If the contractor [EC] fails to complete the works by the date set out on p 1 hereof [18 December 1991] or within any extended time under cl 32 hereof and the superintending officer certifies in writing that in his opinion the same ought reasonably so to have been completed the contractor shall pay or allow to government a sum calculated at the rate stated on p 1 hereof as liquidated and ascertained damages for the period ... during which the said works shall remain or have remained uncompleted. The superintending officer shall be at liberty to deduct any such amount so payable to the government by the contractor or any part thereof from the security deposit referred to in cl 37 hereof and from all moneys then due or thereafter to become due or payable to the contractor under this contract ... .

Apart from this clause and cl 14 which provides a general right for the SO to make deductions, there are no other provisions entitling him to deduct LAD.

EC must pay LAD (1) if it fails to complete the works by 18 December 1991 which is the date set out on p 1 of the contract or within any extended time under cl 32, and (2) if the SO certifies in writing that in his opinion the works ought reasonably so to have been completed. Both these conditions must be satisfied before EC is liable for LAD. Until EC is liable for LAD, the SO is not entitled to make any deduction for LAD. See Token Construction Co Ltd v Charlton Estates Ltd [1973] 1 Build LR 50 Accordingly, I am satisfied that the summons contains sufficient particulars to identify the cause of action in respect of which EC claims the relief. It is for the SO or the government to prove that the two conditions have been satisfied.

The claim

The first point taken by Mr Soh is that the government is entitled to deduct LAD. As I have said in relation to the pleading point, the right of the SO (and of the government) to deduct LAD only arises upon the two conditions being satisfied. On the evidence and it is not disputed, the contract was terminated on 25 April 1992 before completion of the works and so it would appear that the first condition may have been satisfied. It may still be necessary to consider cl 32 of the contract. Clause 32 provides:

(a) If, in the opinion of the [SO], the works be delayed by [here follow a list of causes], then in such case the [SO] shall make a fair and reasonable extension of time for completion of the works ... .

In the first affidavit filed on behalf of MM, it is disclosed that on 11 December 1991, EC submitted a written request to the SO for an extension of 327 days for completion of the works and that the SO was able to recommend an extension of only five days. However, the SO must `make a fair and reasonable extension of time` and this must be communicated to EC. There is no evidence that at the date of commencement of these proceedings the SO has done so, leaving aside for the time being the first of the two letters dated 4 January 1992 from the government which I shall consider later. Accordingly, it cannot be said that EC has failed to complete the works within the extended time because there has been a request for extension of time and time has not been extended in accordance with cl 32.

The second condition calls for a certificate in writing from the SO that the works ought reasonably to have been completed within the extended time. Again leaving aside for the time being the second letter dated 4 January 1992 from the...