Kori Construction (S) Pte Ltd v Nam Hong Construction & Engineering Pte Ltd

• Jurisdiction: Singapore
• Judge: Hoo Sheau Peng JC
• Judgment Date: 30 January 2015
• Neutral Citation: [2015] SGHC 25
• Plaintiff Counsel: Twang Kern Zern (Central Chambers Law Corporation)
• Docket Number: District Court Appeal No 45 of 2014
• Date: 30 January 2015
• Hearing Date: 24 November 2014,12 January 2015
• Subject Matter: building control,Statutory Interpretation,Building and Construction Law,statutes and regulations
• Year: 2015
• Citation: [2015] SGHC 25
• Defendant Counsel: Andrew John Hanam (Andrew LLC)
• Court: High Court (Singapore)
• Published date: 13 July 2016

Hoo Sheau Peng JC:

This is an appeal by the appellant, Kori Construction (S) Pte Ltd (“Kori”), against the decision of the District Judge below (in Nam Hong Construction & Engineering Pte Ltd v Kori Construction (S) Pte Ltd [2014] SGDC 271 (“the Judgment”)) on a preliminary question of law which turned on the interpretation of the definition of “structural steelwork” as a type of “specialist building works” within s 2 of the Building Control Act (Cap 29, 1999 Rev Ed) (“BCA”). “Specialist building works” are regulated under the licensing regime within Part VA of the BCA.

I heard parties on 24 November 2014, and reserved the matter for decision. On 12 January 2015, I allowed the appeal. I now set out the detailed grounds for my decision.

Background facts

The brief facts are as follows. Kori was a sub-contractor for the MRT Downtown Line project. In turn, the respondent, Nam Hong Construction & Engineering Pte Ltd (“Nam Hong”), was Kori’s sub-contractor for the scope of works set out under Clause 2 of a Letter of Award dated 23 January 2013:

2. SCOPE OF SUB-CONTRACT WORKS [Nam Hong’s] scope of works shall consist of fabrication, loading and unloading of steel strutting works including connection plates and stiffeners as per specification. [Nam Hong is] required to provide sufficient qualified personnel and equipment to carry out the works according to the schedule.

For these works, Nam Hong issued 11 invoices to Kori. Kori paid the amounts due for the first ten invoices, but did not do so for the 11th invoice. Nam Hong sued Kori in the District Court for the amount of $147,538.39 due under the 11th invoice.

At this juncture, it is appropriate to set out the licensing regime under Part VA of the BCA. Section 29B(2) requires any person who carries on the business of a general builder or specialist builder to be in possession of a general builder’s licence or specialist builder’s licence respectively. Section 29B(3) makes it an offence to carry on the business of a general builder or specialist builder without the appropriate licence. Section 29B(4) then states:

Subject to the provisions of this Act, a person who carries out any general building works or specialist building works in contravention of subsection (2) shall not be entitled to recover in any court any charge, fee or remuneration for the general building works or specialist building works so carried out. [emphasis added]

At the relevant time, Nam Hong did not hold a general builder’s licence or a specialist builder’s licence from the Building and Construction Authority (“the Authority”). Before the District Judge, Kori raised a preliminary question of law, viz, whether Nam Hong is prevented by s 29B(4) of the BCA from pursuing its claim on the basis that Nam Hong had carried out specialist building works without a licence as required under the BCA. The issue in dispute was whether Nam Hong had carried out “structural steelwork” being a type of “specialist building works”.

“Specialist building works” is defined under s 2 of the BCA. There are seven different types of “specialist building works” listed under seven sub-paragraphs, but only the interpretation of sub-para (d) is relevant in the present case. The relevant portion of s 2 of the BCA reads as follows:

2.—(1) In this Act, unless the context otherwise requires —

...

“specialist building works” means the following types of building works:

… (d) structural steelwork comprising — (i) fabrication of structural elements; (ii) erection work like site cutting, site welding and site bolting; and (iii) installation of steel supports for geotechnical building works

[“Sub-paragraph (d)”]

[emphasis added]

Before the District Court, it was taken as an undisputed fact that Nam Hong carried out both fabrication of structural elements and erection work, falling within limbs (i) and (ii) of Sub-paragraph (d). It was Nam Hong’s case that the three limbs of Sub-paragraph (d) ought to be read conjunctively. By only carrying out two of the three types of work specified, Nam Hong did not carry out “structural steelwork”, and thus did not require a specialist builder’s licence. Kori contended that the three limbs of Sub-paragraph (d) ought to be read disjunctively, and therefore, that Nam Hong carried out “structural steelwork”.

The decision below

The District Judge agreed with Nam Hong and held that the limbs of Sub-paragraph (d) were to be read conjunctively. While the District Judge accepted that the word “and” may be used in a disjunctive sense, he was of the view that this would depend on the context in which “and” is used. The District Judge referred to the definition of “specialist building works” under s 2 of the BCA as an example of a disjunctive use of the word “and”. To him, the word “and” in that context was used to link different activities listed together which formed part of the same list. The seven sub-paragraphs of the definition listed disparate building works, ranging from piling works to site investigations, as well as “any other building works” which the Minister might declare to be specialist works. In that context, the word “and” was therefore surely intended to be disjunctive ([14] of the Judgment).

In relation to Sub-paragraph (d) however, the District Judge held that “structural steelwork” consisted of the three elements listed out therein. In his view, these three elements were not disparate items, but were related and all connected to structural steelwork, forming a set of associated activities ([16] of the Judgment). Hence, in order for a given building work to qualify as “structural steelwork” under the BCA, it had to encompass all three elements under Sub-paragraph (d).

As the works carried out by Nam Hong did not satisfy all three elements of Sub-paragraph (d), they were not “specialist building works”, and Nam Hong did not require a specialist builder’s licence. The District Judge therefore found that Nam Hong was not barred by s 29B(4) of the BCA from bringing a claim under the 11th invoice.

The issue in this appeal

In this appeal, parties proceeded on the basis that the question whether Nam Hong carried out “structural steelwork” (“the narrow issue”) would determine the broader issue whether Nam Hong is precluded by s 29B(4) of the BCA from pursuing its claim against Kori under the 11th invoice.

As stated above at [8], Nam Hong had accepted in the proceedings below that it performed both fabrication and erection work within the meaning of limbs (i) and (ii) of Sub-paragraph (d). However, before me, Nam Hong took the position that it did not perform erection work under limb (ii), as those works were done off-site, and not on-site. This contention however is immaterial. Since it was not disputed that Nam Hong did perform fabrication under limb (i), the parties accepted that if I found that Sub-paragraph (d) should be read disjunctively, Nam Hong would be precluded by s 29B(4) of the BCA from pursuing a claim under the 11th invoice. As such, I did not separately consider whether it would be open to Nam Hong to dispute Kori’s reliance on s 29B(4) of the BCA on any other ground. I was only required to consider the narrow issue of whether the three limbs of Sub-paragraph (d) should be read conjunctively or disjunctively. With that, I turn to the parties’ respective arguments.

Kori’s case

Before me, Mr Twang, counsel for Kori, argued that Sub-paragraph (d) should be construed disjunctively. In support of this argument, Mr Twang relied on the case of Lim Lye Hiang v Official Assignee [2012] 1 SLR 228 (“Lim Lye Hiang”). There, the Court of Appeal read the two limbs of s 78(1) of the Bankruptcy Act (Cap 20, 2009 Rev Ed) (“Bankruptcy Act”) disjunctively even though the word “and” was used to connect both limbs. The relevant provision reads as follows:

78.—(1) The property of the bankrupt divisible among his creditors (referred to in this Act as the bankrupt's estate) shall comprise - (a) all such property as belongs to or is vested in the bankrupt at the commencement of his bankruptcy or is acquired by or devolves on him before his discharge; and (b) the capacity to exercise and to take proceedings for exercising all such powers in or over or in respect of property as might have been exercised by the bankrupt for his own benefit at the commencement of his bankruptcy or before his discharge.

[emphasis added]

The Court of Appeal in Lim Lye Hiang also noted that the word “and” may be used in a disjunctive sense where various paragraphs which are joined by the word merely set out a list of different objects or classes of objects, related only by the fact that they qualify to be in that list (at [35]). Mr Twang argued that the wording of Sub-paragraph (d) was directly analogous to that of s 78(1) of the Bankruptcy Act, as in both cases the word “comprise” (or related forms thereof) was used in conjunction with “and”. Mr Twang argued that the phrasing of Sub-paragraph (d) was precisely the situation contemplated by the Court of Appeal in Lim Lye Hiang, and Sub-paragraph (d) should therefore be interpreted disjunctively.

Mr Twang also highlighted the fact that structural steelwork which qualified as “minor specialist building works” under s 29A(1)(b) of the BCA included only structural steelwork comprising “fabrication and erection work” for structures below certain specified dimensions. Mr Twang argued that as “minor specialist building works” are by definition a sub-set of “specialist building works”, the fact that s 29A(1)(b) did not include “installation of steel supports for geotechnical building works” – limb (iii) of Sub-paragraph (d) – showed that Sub-paragraph (d) ought to be read disjunctively in order to avoid inconsistency between the two provisions.

Nam Hong’s case

Counsel for Nam Hong, Mr Hanam, did not dispute that the word “and” could be read disjunctively. However, he submitted...