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

• Judgment Date: 17 November 2004
• Date: 17 November 2004
• Docket Number: Originating Summons No 855 of 2004
• Court: High Court (Singapore)

Lian Teck Construction Pte Ltd

Plaintiff

and

Woh Hup (Pte) Ltd and others

Defendant

[2004] SGHC 260

Lai Siu Chiu J

Originating Summons No 855 of 2004 (Registrar's Appeal No 241 of 2004)

High Court

Arbitration–Agreement–Scope–Whether arbitration clause in sub-contract having universal application to all claims plaintiff might have against defendants–Civil Procedure–Discovery of documents–Application–Pre-action discovery–Whether court having inherent jurisdiction to order pre-arbitration discovery–Whether plaintiff's affidavits in support of application for pre-action discovery stating “material facts pertaining to the intended proceedings”–Order 24 r 6 (3) Rules of Court (Cap 322, R 5, 2004 Rev Ed)

The defendants were the main contractors in a construction project. The plaintiff was the defendants' sub-contractor. After disputes arose between the parties, the plaintiff applied for orders that the defendants give pre-action discovery of certain documents under O 24 r 6 (3) of the Rules of Court (Cap 322, R 5, 2004 Rev Ed). In a supporting affidavit, the plaintiff stated that the defendants had partially terminated the sub-contract wrongfully, and that the plaintiff intended to refer the disputes to arbitration pursuant to cl 23 of the Conditions of Sub-contract. Subsequently the plaintiff filed another affidavit stating that it was no longer going to arbitration because cl 23 did not have universal application to all of its claims against the defendants. It also stated that it intended to institute legal proceedings against the defendants and that pre-action discovery was necessary to ascertain whether a cause of action existed. The assistant registrar granted an order in terms of four out of nine items which the plaintiff had sought discovery for.

The defendants appealed against this decision, submitting that cl 23 was all-encompassing, and that the plaintiff's claims had to be referred to arbitration. It also contended that the court had no power to order pre-arbitration discovery. They further argued that the plaintiff's affidavits did not demonstrate that the documents were relevant to an issue arising out of the claim, or that early discovery was necessary. The plaintiff disagreed, submitting that cl 23 only required them to go to arbitration on specific disputes. The plaintiff asserted that even if it was wrong in its interpretation of cl 23, the court had an inherent jurisdiction to grant pre-action discovery where arbitration proceedings were contemplated.

Held, dismissing the appeal:

(1) The defendants' arguments cast some doubts on whether the court's inherent jurisdiction would extend to ordering pre-arbitration discovery. However, it was not necessary to decide whether the court had the jurisdiction to order pre-arbitration discovery since the plaintiff had confirmed that it intended to commence a suit against the defendants: at [25] and [26].

(2) A plaintiff in an action for pre-action discovery had a duty to set out the substance of his claim to enable a potential defendant to know the essence of the complaint against him. The affidavit in support of this application should state the cause of action and facts sufficient to explain why pre-action discovery was necessary. The twin tests of “relevancy” and “possession, custody or power” also applied: at [30] and [32].

(3) The plaintiff's first affidavit stated that part of the sub-contract had been wrongfully terminated, exhibited the relevant documents and set out the issues likely to arise from the claim against the defendants. Its second affidavit also stated that it had claims against the defendants for work done under the sub-contract. As such, the plaintiff had stated the “material facts pertaining to the intended proceedings” as required under O 24 r 6 (3) (a). The plaintiff had also proved that the documents were relevant under O 24 r 6 (3) (b): at [33] to [35].

(4) The defendants' ancillary argument, that the plaintiff's intended legal proceedings would be stayed by reason of the arbitration provision, was premature. It was not for the court at this juncture to decide whether cl 23 should be upheld and whether the plaintiff should be ordered to arbitrate on its dispute with the defendants: at [36].

Bayerische Hypo- und Vereinsbank AG v Asia Pacific Breweries (Singapore) Pte Ltd [2004] 4 SLR (R) 39; [2004] 4 SLR 39 (folld)

Kuah Kok Kim v Ernst & Young [1996] 3 SLR (R) 485; [1997] 1 SLR 169 (folld)

Arbitration Act (Cap 10, 2002 Rev Ed) ss 6, 31

Rules of Court (Cap 322, R 5, 2004 Rev Ed) O 24 r 6 (3) (consd);O 24 r 6 (1), O 69, O 92 r 4

Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) s 18, First Schedule paras 4, 5, 6, 9, 12, 19

Ian de Vaz (Wong Partnership) for the plaintiff

Lawrence Teh and Loh Jen Wei (Rodyk & Davidson) for the defendants.

Lai Siu Chiu J

The background

1 This was an action for pre-action discovery by Lian Teck Construction Pte Ltd (“the plaintiff”) against Woh Hup (Private) Limited, Shanghai Tunnel Engineering Co Ltd and NCC International Aktiebolag (referred to collectively as “the defendants”).

2 The plaintiff applied in the present Originating Summons (“the application”) for, inter alia, orders that the defendants give discovery of the following documents pertaining to a contract made between the Land Transport Authority (“the LTA”) as employer and the defendants as main contractors on 7 August 2001 (“the main contract”) for a project known as Contract-825 Design, Construction and Completion of Stations at Millenia (“MLN”), Convention Centre, Museum (“MSM”) and Dhoby Ghaut (“DBG”) including tunnels:

(a) the letter of award issued to the defendants by the LTA;

(b) the main contract conditions and particular conditions;

(c) the main contract specifications (relating to earthwork only);

(d) the original master programme and subsequent amended master programmes and all recovery programmes issued in respect of DBG, MSM and MLN;

(e) all applications for extension of time submitted by the defendants and all replies thereto;

(f) all minutes of site meetings in which the defendants were in attendance;

(g) all monthly progress reports in respect of DBG, MSM and MLN;

(h) all monthly records/documentation and/or concrete...