Hong Kiat Construction Pte Ltd v Ngiam Benjamin

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 07 July 2009
• Neutral Citation: [2009] SGHC 158
• Plaintiff Counsel: Eugene Tan (Drew & Napier LLC)
• Published date: 08 July 2009
• Court: High Court (Singapore)
• Defendant Counsel: Tan Chee Kiong (Seah Ong & Partners)
• Subject Matter: Arbitration

7 July 2009

Choo Han Teck J:

1 This was an appeal by the defendant against the order of the Assistant Registrar allowing the plaintiff’s application to appoint Mr Johnny Tan as an arbitrator in an on-going arbitration between the plaintiff and the defendant. The plaintiff was the builder for the house at 8 Brizay Park belonging to the defendant. A dispute arose between the parties from that contract and the plaintiff claimed $177,237.30 against the defendant who counter-claimed for $280,500. The claim and counter-claim was being arbitrated by Mr Yang Yung Chong. The Assistant Registrar also ordered costs to be paid by the defendant to the plaintiff fixed at $4,000. The arbitration was commenced by the plaintiff in January 2000 pursuant to Clause 37 of the Singapore Institute of Architects Conditions of Contract in the contract between the parties dated 14 July 1998. Mr Yang was appointed sole arbitrator about March 2000. The process was long drawn and the interlocutory proceedings took place over six years. On 15 December 2006 the plaintiff’s then solicitor and the defendant’s solicitor attended before Mr Yang for directions. These included the exchange of affidavits and the questions and answers to and by the architect by 15 March 2007, and written submissions by 15 May 2007. The parties did not comply with the directions in that the affidavits and questions and answers by the parties were not exchanged by 15 March 2007.

2 Mr Yang then wrote to the parties on 29 March 2007. The letter stated as follows:

I refer to my letter dated 15 December 2006 and to the directions given for the conduct of the arbitration proceedings.

As the parties have yet to comply with the directions, please let me know if the parties have agreed or will be agreeing on varied directions.

Unless I hear from either of the parties within 7 days from date hereof, I shall consider my appointment as arbitrator as having been terminated by conduct and thereafter close my file on this matter.

On 5 April 2007 the plaintiff’s then solicitor called Mr Yang to ask for more time. Nothing more happened until 8 June 2007 when Mr Yang wrote to ask the parties if the plaintiff was proceeding with the matter. His letter stated:

I refer to my letter dated 29 March 2007 and to the telephone conversation that I had with Mr David Ong on 5 April 2007.

Please let me know in due course whether the Claimants are in a position to proceed with the matter.

The defendant wrote on 13 June 2007 expressing surprise that Mr Yang still considered himself the arbitrator. The defendant’s letter is set out for convenience:

1. We refer to your letter dated 8^th June 2007.

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