Lian Teck Construction Pte Ltd v Woh Hup (Pte) Ltd and Others

JudgeAndrew Ang J
Judgment Date06 July 2006
Neutral Citation[2006] SGHC 118
Citation[2006] SGHC 118
Defendant CounselWong Por Luk Paul and Loh Jen Wei (Rodyk & Davidson)
Published date07 July 2006
Plaintiff CounselSean La'Brooy (Wong Partnership)
Date06 July 2006
Docket NumberSuit No 98 of 2006 (Registrar's Appeal No 124 of 2006)
CourtHigh Court (Singapore)
Subject MatterWhether applications for stay and interim payment ought to be heard together,Defendants to action applying for stay of proceedings in favour of arbitration,Civil Procedure,Rules of court,Section 6 Arbitration Act (Cap 10, 2002 Rev Ed), O 29 r 10 Rules of Court (Cap 322, R 5, 2006 Rev Ed),Plaintiff filing cross-application for interim payment

6 July 2006

Andrew Ang J:

1 The defendants/respondents were the main contractors for a Land Transport Authority project known as “Contract 825 – Design, Construction and Completion of Stations at Millenia, Convention Centre, Museum and Dhoby Ghaut including tunnels” (“the project”).

2 The defendants appointed the plaintiff/appellant as earthworks subcontractor for the project under a subcontract (“the subcontract”) evidenced, inter alia, by a letter of award dated 23 June 2002. Subsequently, by way of a letter dated 19 February 2004, the defendants gave notice to the plaintiff of partial termination of the subcontract.

3 The plaintiff took this to be a repudiation of the subcontract and by its letter of 5 March 2004, accepted such repudiation without prejudice to its right to recover damages against the defendants.

4 For the works already performed under the subcontract which remained unpaid, the plaintiff claimed an aggregate amount of $2,560,239.52. Payment of the same not having been made, the plaintiff issued a writ of summons against the defendants on 24 February 2006 claiming, inter alia, the said amount, loss of profits (to be assessed) and special damages.

5 The defendants entered an appearance in the action on 3 March 2006 and on 22 March 2006 (which was the last day for filing their defence under the Rules of Court (Cap 322, R 5, 2006 Rev Ed) timelines), filed a summons application (Summons No 1259 of 2006) seeking an order that proceedings in the action be stayed in favour of arbitration pursuant to s 6 of the Arbitration Act (Cap 10, 2002 Rev Ed).

6 On 30 March 2006, the plaintiff filed a cross application (Summons No 1394 of 2006) for interim payment, pursuant to O 29 r 10 of the Rules of Court. This application was fixed for hearing on 5 April 2006 together with the defendants’ stay application.

7 On 3 April 2006, the defendants filed a summons (Summons No 1455 of 2006) seeking, inter alia, an extension of time to file and serve their affidavit in reply to the plaintiff’s application for interim payment after the final resolution of the stay application including all appeals originating therefrom and also an order that the hearing of the interim payment application be adjourned to a date after the final resolution of the stay application including all appeals originating therefrom. In seeking such directions, the defendants took the position that the plaintiff’s application for interim payment should not be heard until final disposal of the stay application.

8 The assistant registrar who heard the summonses ordered, inter alia:

(a) In respect of the plaintiff’s application for interim payment (Summons No 1394 of 2006), that an extension of time be granted to the defendants to file and serve their affidavit(s), if necessary, 14 days after the final resolution of the stay application in Summons No 1259 of 2006 (including all appeals originating therefrom and thereafter).

(b) That the plaintiff file and serve its affidavit(s) in reply to the defendants’ affidavit(s) in Summons No 1394 of 2006, 14 days after the service of the defendants’ affidavit(s).

(c) The hearing of Summons No 1394 of 2006 be adjourned to a date after the final resolution of Summons No 1259 of 2006 (including all appeals originating therefrom and thereafter), to be fixed by the registry of the Supreme Court.

The plaintiff’s appeal before me was against these orders, its contention being that both applications should be heard together.

9 Prior to the amendment of O 14 r 1 allowing an application for summary judgment to be made only after a defence has been filed, the practice was to hear an O 14 application and a stay application together. See, for example, Tropicon Contractors Pte Ltd v Lojan Properties Pte Ltd [1989] SLR 610 (“the Tropicon case”) and Aoki Corp v Lippoland (Singapore) Pte Ltd [1995] 2 SLR 609 (“the Aoki Corp case”).

10 If a contract, such as a building contract, contained an arbitration clause and a dispute arose between the parties, the court could give judgment for a sum indisputably due under O 14 and stay the rest of the claim for arbitration. This followed the practice in England prior to the Arbitration Act 1996 (c 23) (UK). (The 1996 Act removed the court’s power under the Arbitration Act 1975 (c 3) (UK) to refuse to stay legal proceedings where it was satisfied that “there is not in fact any dispute between the parties with regard to the matter agreed to be referred”, the purpose of such change being to exclude the jurisdiction to give summary judgment based on an investigation of what was in fact disputable. See Halki Shipping Corporation v Sopex Oils Ltd [1998] 1 WLR 726 at 750 and 762, per Henry and Swinton Thomas LJJ.) In the words of Bridge LJ in Ellis Mechanical Services Ltd v Wates Construction Ltd (1976) 2 BLR 60 (“Ellis v Wates”) at 65:

To my mind the test to be applied in such a case is perfectly clear. The question to be asked is: is it established beyond reasonable doubt by the evidence before the court that at least £x is presently due from the defendant to the plaintiff? If it is, then judgment should be given for the plaintiff for that sum, whatever x may be; and in a case where, as here, there is an arbitration clause, the remainder in dispute should go to arbitration. The reason why arbitration should not be extended to cover the area of the £x is indeed because there is no issue, or difference, referable to arbitration in respect of that amount. [emphasis added]

11 In Associated Bulk Carriers Ltd v Koch Shipping Inc (1978) 7 BLR 22, the English Court of Appeal, following Ellis v Wates, clarified that judgment under O 14 may only be given where, in the words of Browne LJ at 30:

[T]here is by admission, or can be by a decision of the court, a quantified sum as to which ‘there is not in fact any dispute’.

This meant that where the defendants’ counterclaim was unquantified and uncertain, summary judgment under O 14 could not be given. The question then arose whether, in such circumstances, an order for interim payment under O 29 might be made if the court was satisfied that, unquantified though it was, the counterclaim (if successful) would be for an amount less than the plaintiff’s claim. Could not the court order that the difference be paid in the interim – even if the dispute was to be stayed and referred to arbitration?

12 In Imodco Ltd v Wimpey Major Projects Ltd and Taylor Woodrow International Ltd (1987) 40 BLR 1 (“the Imodco case”), the English Court of Appeal answered this question in the affirmative, observing that there was nothing in O 29 of their Rules of the Supreme Court (in pari materia with ours) that precluded its application in such a case. This was a logical extension given...

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2 books & journal articles
  • Litigation
    • United Kingdom
    • Construction Law. Volume III - Third Edition
    • 13 April 2020
    ...Boyd, Commercial Arbitration, 2001 Companion (Butterworths, 2001) page 141. See also Lian Teck Construction Pte Ltd v Woh Hup (Pte) Ltd [2006] SGHC 118. 766 See Trebor Bassett Holdings Ltd v ADT Fire and Security Plc (No 2) [2012] EWHC 3365 (TCC) at [6]–[13], per Coulson J; Triuva Kapitalve......
  • Civil Procedure
    • Singapore
    • Singapore Academy of Law Annual Review No. 2006, December 2006
    • 1 December 2006
    ...for a stay of proceedings is heard applies to an application for an interim payment. In Lian Teck Construction Pte Ltd v Woh Hup (Pte) Ltd[2006] 4 SLR 1, the respondents applied for the proceedings in the action to be stayed in favour of arbitration pursuant to s 6 of the Arbitration Act (C......

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