Fujitec Singapore Corp Ltd v GS Engineering & Construction Corp

• Jurisdiction: Singapore
• Judge: Lee Seiu Kin J
• Judgment Date: 17 December 2015
• Neutral Citation: [2015] SGHC 318
• Citation: [2015] SGHC 318
• Docket Number: Originating Summons No 665 of 2015 (Summons No 3658 of 2015)
• Published date: 13 January 2016
• Hearing Date: 02 October 2015
• Plaintiff Counsel: Tan Beng Swee (CTLC Law Corporation)
• Date: 17 December 2015
• Defendant Counsel: Melvin Chan and Kishan Pillay (TSMP Law Corporation)
• Court: High Court (Singapore)
• Subject Matter: Statutes and regulations,Building and Construction Law

Lee Seiu Kin J:

In an adjudication determination dated 25 June 2015, as amended on 29 June 2015 (“the AD”), the adjudicator determined that the respondent was liable to pay the claimant a sum of $1,540,331.70 pursuant to a payment claim under a construction sub-contract (“the Contract”). On 14 July 2015 the applicant obtained leave of court to enforce the AD pursuant to s 27(1) of the Building and Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed) (“the Act”). On 28 July 2015, the respondent filed this summons no 3658 of 2015 (“SUM 3658/2015”) to set aside the AD. On 2 October 2015, after hearing counsel for the parties, I dismissed the respondent’s application. I now give the grounds for my decision.

The respondent’s application was made on the following grounds: The adjudication application was filed prematurely. The application was invalid as it did not contain all the information prescribed. I shall deal with each ground in turn.

Adjudication application filed prematurely

Under the first ground the issue turns on whether the expression “calendar day” used in the Contract includes or excludes public holidays. 3 April 2015 was the Good Friday public holiday in Singapore and this fell between the service of the payment claim and provision of the payment response. A determination one way or another would determine the issue in favour of the applicant or the respondent.

The following are the relevant facts. The applicant (as claimant) served the payment claim on 1 April 2015, in accordance with the Contract. The respondent provided its payment response on 21 April 2015. On 28 April 2015, the applicant filed a notice of intention to apply for adjudication pursuant to s 13(2) of the Act. And on 30 April 2015, the applicant filed the adjudication application pursuant to s 13(1) of the Act.

The respondent submitted that the adjudication application was filed prematurely on 30 April 2015 because the earliest that it could be filed was the following day, 1 May 2015. The respondent’s argument was as follows. Clause 2.3 of the Contract makes the following provision in relation to the period within which the payment response is to be provided:

Within 21 calendar days of receipt of the progress claim, the [respondent] will issue to the [applicant], a Payment Response Certificate.

The respondent submitted that the term “calendar days” in this clause excludes public holidays. If that were the case, then the deadline to provide the payment response would be 23 April as 3 April was a public holiday. Under s 12(2) of the Act, the applicant is entitled to make an adjudication application after the end of the dispute settlement period (“DSP”). The DSP is defined in s 12(5) as “the period of 7 days after the date on which or the period within which the payment response is required to be provided under section 11(1)”. Following the holding in Tienrui Design & Construction Pte Ltd v G & Y Trading and Manufacturing Pte Ltd [2015] 5 SLR 852 (“Tienrui”) that the DSP runs from the date on which the payment response is required to be provided (and not on the date that the payment response is actually provided), this means that the earliest date that the applicant was entitled to make a payment claim is 1 May 2015, after the 7-day period between this date and 23 April 2015.

The applicant, on the other hand, contended that the expression “calendar days” is not affected by any public holiday that may fall within that period. Accordingly the deadline for the payment response was 22 April 2015 and, after the 7-day DSP, the earliest date on which the applicant was entitled to file an adjudication application was 30 April 2015, which was the actual date that it was filed.

“Day” is defined in s 2 of the Act as “any day other than a public holiday within the meaning of the Holidays Act (Cap 126)”. However the Contract used the term “calendar days” and the question is whether this bears the same meaning as the word “day” in the Act. The term “calendar day” is not defined in the Contract; instead it contains the following definition of “day”:

Unless specifically stated otherwise, “day(s)” mean(s) Gregorian calendar day(s) and “month(s)” mean(s) Gregorian calendar month(s).

The respondent also pointed out that Black’s Law Dictionary (6th Ed,1990) defines “calendar days” in the following manner:

A calendar day contains 24 hours; but “calendar days” may be synonymous with “working days”. Sherwood v American Sugar Refining Co, C.C. A.N.Y., 8 F.2d 586, 588. The time from midnight to midnight. LANNI v Grimes, 173 Misc. 614, 18 N.Y.S.2d 322, 327. So many days reckoned according to the course of the calendar.

It is clear that none of these definitions is of any help in this matter. While the word “day” is defined in the Act, that definition is meant to apply to that word wherever it is found in the Act. There is nothing in the Act compelling the use of that definition in any construction contract although parties are free to adopt such definitions by express provision. In...