Hong Huat Development Co (Pte) Ltd v Hiap Hong & Co Pte Ltd

• Jurisdiction: Singapore
• Judge: Lai Kew Chai J
• Judgment Date: 14 August 1999
• Neutral Citation: [1999] SGHC 212
• Citation: [1999] SGHC 212
• Defendant Counsel: John Chung and Sharon Tay (Donaldson & Burkinshaw)
• Published date: 19 September 2003
• Plaintiff Counsel: P Selvadurai and Lawrence Teh (Rodyk & Davidson)
• Date: 27 October 2000
• Docket Number: Originating Motion No 12 of 1999,Companies' Winding Up No 204 of
• Court: High Court (Singapore)
• Subject Matter: Whether issues of law identifiable,Award,Applicant files application for leave to appeal against arbitral award three months after publication of award,Arbitration,Requirements for obtaining leave to appeal,Appeal under Arbitration Act,Principles governing judicial discretion to grant extension of time,ss 17, 28(2) and 28(3) Arbitration Act (Cap 10),When must application for leave to appeal be filed

The main contract for the development of a 5/6 storey shopping centre at Upper Serangoon Road, Singapore was entered into by the applicants in January 1979. It contained the usual arbitration clause. Disputes arose with their contractors, the respondents. Mr Raymond Kuah Leong Heng accepted appointment as the arbitrator on 14 October 1986. The arbitral hearings were completed on 18 March 1988. After mulling over the matter for 16 months, Mr Raymond Kuah referred certain issues to a quantity surveyor. He received the final accounts from the quantity surveyor on 31 August 1993. Though he was expected to publish his award shortly thereafter, in view of the delays already encountered, he did not do so until 4 December 1998. The publication of the award took place ten years and eight months after the conclusion of the hearing in the arbitral hearings. Save for the occasional reminders, neither party took any serious steps, or any proceedings in court, to compel the arbitrator to publish his award or to have him removed as the arbitrator.

On 24 December 1998 Mr Raymond Kuah published his award by informing both parties that it was ready for collection. It was common ground that an award was made and published when the arbitrator gave notice to the parties that it was ready and that the delay in taking up the award does not extend the time for appealing or applying for leave to appeal: see The Archipelagos and Delfi [1979] 2 L 1oyd`s Rep 289 where Parker J followed Brooke v Mitchell (1840) 9 LJ (NS) Ex 269 and held that publication of the award to the parties was completed upon notice.

Both parties, consistent with their remarkable disinterest in the matter, delayed in taking up the award. Each party was waiting upon the other to pay the fees of Mr Raymond Kuah. It was only on 8 March 1999 that the respondents paid the fees and took up the award. The terms of the award were in favour of the respondents. Of the sums awarded, the applicants paid the respondents the sum of $351,642.06. But they were dissatisfied with the rest of the award in which, inter alia, interest was ordered to be payable on the principal sums from the date of the commencement of the arbitration hearings in 1986 to date of payment. The applicants complained that they were ordered to pay interest for a period of 13 years `most of which were taken up by his (arbitrator`s) own inactivity.` It was fair to note that this was a complaint of the disinterested, who had use of the moneys in the meantime, complaining against the delays of the dilatory.

By Notice of Motion No 12 of 1999 filed on 9 April 1999 the applicants sought an order pursuant to s 28(2) or s 17 of the Arbitration Act (Cap 10) (`the Act`) and O 69 r 4 of the Rules of Court 1996 that they be at liberty to appeal to the High Court against the award on the questions categorised as questions of law set out in four schedules annexed to the motion. Pursuant to s 28(3) of the Act and any leave granted they asked that the award be set aside and, where appropriate, it be remitted for the reconsideration of the arbitrator `together with the court`s opinion on the questions of law which formed the subject of the appeal.` In the alternative, the applicants asked that the award be set aside on the ground that the arbitrator had misconducted himself and/or the arbitral hearings and that the arbitrator be removed. The central ground relied on by the applicants was that the arbitrator was obviously wrong in that the applicants as the employers could not, as a matter of law, be liable for the acts or omissions of the architect in his capacity as a certifying authority.

Prayer 1 of the notice of motion asked that the time within which the applications had to be made be enlarged, `if necessary`. In view of the terms of prayer 1 as framed, counsel for the applicants made the preliminary submission that the terms of O 69 r 4(2) did not sufficiently answer the question when an application for leave to appeal against an award should be made. He suspected that there was an oversight in the Rules. If he were right, he said, the answer would be that the applicants had to file their application for leave to appeal at all convenient speed and with reasonable despatch: see s 53 of the Interpretation Act (Cap 1, 1997 Ed). As rightly pointed out by counsel for the respondents, the answer was to be found on a plain reading of O 69 r 2(2) of the Rules of Court which in terms provided: `Any appeal...