Jurong Primewide Pte Ltd v Crescendas Bionics Pte Ltd and another appeal

• Jurisdiction: Singapore
• Judge: Judith Prakash JA
• Judgment Date: 11 November 2019
• Neutral Citation: [2019] SGCA 63
• Court: Court of Appeal (Singapore)
• Hearing Date: 16 September 2019
• Docket Number: Civil Appeals Nos 19 and 20 of 2019
• Plaintiff Counsel: Philip Antony Jeyaretnam SC, Koh Kia Jeng, Lau Wen Jin, and Tay Yoong Xin Avril (Dentons Rodyk & Davidson LLP)
• Defendant Counsel: and Karam Singh Parmar, Kang Weisheng Geraint Edward, Leong Lijie, Chan Karfai Michael, and Yeow Yuet Cheong (Tan Kok Quan Partnership)
• Subject Matter: Civil Procedure,Pleadings,Building and Construction Law,Delay in completion,Reasonable time
• Published date: 14 November 2019

Quentin Loh J (delivering the judgment of the court): Introduction

These cross-appeals are against the decision of the High Court judge (“the Judge”) in Crescendas Bionics Pte Ltd v Jurong Primewide Pte Ltd [2019] SGHC 4 (“the Judgment”).

Crescendas Bionics Pte Ltd (“Crescendas”) is a property developer, while Jurong Primewide Pte Ltd (“Jurong Primewide”) is a contractor. The parties signed a four-page Letter of Intent (“LOI”) on 30 June 2008, whereby Crescendas engaged Jurong Primewide to build the Biopolis 3 Project. Due to subsequent disputes, no further documents were executed between the parties. On 22 December 2010, the Building and Construction Authority (“BCA”) directed that an application be made for Temporary Occupation Permit (“TOP”) and on 12 January 2011, the Biopolis 3 Project was certified complete. The parties were agreed that regardless of whichever date was taken as the date for “substantial completion” under the LOI, this would exceed the stipulated time period of 18 months for Jurong Primewide to complete the Project.

The parties brought suit against each other. Crescendas claimed, among other things, that the $12.3m provided for the preliminaries under the LOI (“the Preliminaries Sum”) was a tentative figure to be negotiated within four weeks of the signing of the LOI. Conversely, Jurong Primewide claimed that the Preliminaries Sum was fixed.

Crescendas also claimed that Jurong Primewide was responsible for the entirety of the delay in the completion of the Project and liable for liquidated damages pursuant to the LOI. Conversely, Jurong Primewide asserted that it was not responsible for any of the delays because Crescendas had committed acts of prevention. Jurong Primewide further submitted that due to Crescendas’ acts of prevention, and the absence of an extension of time clause in the LOI, the relevant time for completion had been set “at large”: see Fongsoon Engineering (S) Pte Ltd v Kensteel Engineering Pte Ltd [2011] SGHC 82 (“Fongsoon”) at [24]–[25]. Jurong Primewide was thus liable to complete the Project within a “reasonable time” and only liable for general damages for the periods it exceeded the “reasonable time” by.

The Judge found largely in favour of Jurong Primewide. He held that the Preliminaries Sum was fixed. However, he also held that the parties must have contemplated that if there were double payments by Crescendas to Jurong Primewide and the trade contractors for the same preliminaries, Jurong Primewide was not entitled to such payments and any double payments must be refunded to Crescendas (“the Refund Ruling”): see the Judgment at [163].

In the premises, the Judge found that Jurong Primewide was responsible for 133 days of delay, while Crescendas was responsible for 173 days of delay. Given that Crescendas had engaged in acts of prevention, and the absence of an extension of time clause within the LOI, the time for completion had been set “at large”.

In this regard, the Judge declined Crescendas’ submission to simply add together the initial estimate of 18 months with the time Crescendas was found to have contributed to the delay (which he found to be 173 days). He considered that the parties had not included the 25 days for capping beams work in the August 2008 Master Programme. Since the Project would actually need 25 days in addition to the initially forecasted 18 months, this had to be...