Lum Chang Building Contractors Pte Ltd v Anderson Land Pte Ltd

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 05 April 2000
• Neutral Citation: [2000] SGCA 18
• Subject Matter: Time within which to apply to set aside award,Setting aside,Whether necessary for court to adopt such an award,s 22 Arbitration Act (Cap 10, 1985 Rev Ed),Agreement,"Or otherwise",O 69 r 4 Rules of Court,Arbitration ordered by court,Nature of arbitration award pursuant to such arbitration,Award,"Equivalent to judgment of a judge",Extension of time,Whether mistake of law or otherwise of solicitor constitutes sufficient grounds for extension of time,Words and Phrases,s 23(2)Arbitration Act (Cap 10, 1985 Rev Ed),ss 23(2), 28 Arbitration Act (Cap 10, 1985 Rev Ed),Arbitration
• Date: 05 April 2000
• Published date: 19 September 2003
• Defendant Counsel: Alvin Yeo SC, Paul Sandosham and Kirindeep Singh (Wong Partnership)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Woo Bih Li SC (instructed), John Chung and Sharon Tay (Donaldson & Burkinshaw)

(delivering the grounds of judgment of the court): The central issue in this appeal concerned the question of the appropriate procedure to adopt to challenge an arbitral award where the reference to arbitration was directed by the High Court pursuant to s.22 of the Arbitration Act (`the Act`) and not pursuant to a written arbitration agreement.

Facts

The facts of this case were straightforward. The respondents, Anderson Land Pte Ltd (`Anderson Land`) were the developers of a condominium project situated at 18 Anderson Road. The appellants, Lum Chang Building Contractors Pte Ltd (`Lum Chang`), were the main contractors for the project. One of the nominated sub-contractors of Lum Chang for the project was Tan Chiang Brother`s Marble (S) Pte Ltd (`Tan Chiang`).

Sometime in 1995, disputes arose between Lum Chang and Anderson Land concerning the late delivery of certain marble tiles for the project. Pursuant to an arbitration clause in the contract the parties agreed to refer the disputes to arbitration.

At about the same time, Tan Chiang commenced Suit 1414/95 in the High Court against Anderson Land for payment of marble tiles supplied to the project. Anderson Land applied to join Lum Chang as third parties to the action on the ground that there were overlapping issues. The application was granted.

On 4 August 1997, the action came up for hearing before Choo Han Teck JC. Counsel for Lum Chang and Anderson Land indicated to the learned judge that the dispute was one which was more suitable for arbitration. As Tan Chiang was, at that point, unwilling to have the matter resolved by arbitration, counsel for Lum Chang orally applied for the entire matter to be referred to arbitration pursuant to s 22 of the Arbitration Act (Cap 10) and for the court proceedings to be stayed. The learned judge stood the matter down for Tan Chiang to reconsider their position.

Eventually, all three parties consented to the matter being referred to arbitration. As a result, Choo Han Teck JC ordered that the action be stayed and the entire matter be referred to arbitration. He also ordered that the remuneration of the arbitrator be fixed by consent with the arbitrator, with liberty to apply.

Mr Giam Chin Toon SC was duly appointed the arbitrator and proceedings were accordingly commenced. On 9 February 1999, pursuant to a request of the parties, the arbitrator delivered an interim award touching only on the issue of extension of time.

Lum Chang was dissatisfied with the interim award and on 2 March 1999, applied under s 28 of the Arbitration Act by way of OM 7/99 for leave to appeal against Mr Giam`s award. On 3 June 1999, however, Lum Chang filed SIC 3610/99 wherein they asked for a contradictory relief, namely, a declaration that leave to appeal was not required. The apparent reason for this change of position was that they had come to realise that s 28 of the Act did not apply as the arbitration in this case was ordered by the court under s 22 of the Arbitration Act and not pursuant to an arbitration agreement. Lum Chang also asked, if they were out of time, for an extension of time to apply to set aside the award.

While counsel for Anderson Land recognised that this reference to arbitration was not pursuant to an arbitration agreement and was made under s 22 pursuant to an oral application, he argued that by virtue of the special facts here, where the reference was with the consent of all the parties, it could nevertheless be treated as an arbitration within s 28. He contended that the order of court could constitute a written agreement of the parties to arbitrate since it was an order drawn up by Lum Chang`s solicitors with the consent of the other parties.

The decision below

The learned judge below held that s 28 did not apply to this interim award and the only avenue for an aggrieved party to challenge the award would be by an application under s 23(2) to have it set aside. He rejected the argument that the order of court could constitute the arbitration agreement such that the reference could be treated as pursuant to an arbitration agreement. By virtue of the definition in the Act, an arbitration agreement has to be in writing.

He also held that Lum Chang was out of time in making the application to set aside the award under s 23(2). He ruled that an aggrieved party must apply to set aside an award within a reasonable time and adopting the time frame set out in s 28 as a guide, the application should be made within 21 days from the date of the award. As the time to set aside the award had expired, by virtue of s 23(2) of the Act it stood as a judgment of the court. The only available avenue was to appeal to the Court of Appeal, and as the one-month period to file the notice of appeal under O 57 r 4(a) had expired, Lum Chang would have to apply directly to the Court of Appeal for an extension of time to file their notice of appeal.

The issues

Lum Chang were dissatisfied with the ruling of the learned judge and appealed to this court. As canvassed by the parties before us, the issues which they sought this court`s consideration were the following:

A Was the reference to arbitration one pursuant to an arbitration agreement?

B If it was not a reference to arbitration under an arbitration agreement, what was the time frame within which a dissatisfied party must apply to set aside the award?

C In the event that there was a time limit and Lum Chang had exceeded it, did the High Court have the jurisdiction to extend time and, if it did, should an extension of time be granted in the circumstances of this case?

Nature of the reference

On the first issue, Lum Chang raised a preliminary objection that as the learned judge had ruled that s 28 did not apply to the interim award and as there was no cross-appeal, Anderson Land were estopped from raising the issue again. On Anderson Land`s part, they argued that they were seeking to have the decision affirmed on a different ground and for this purpose they relied upon O 57 r 9A(5) of the Rules of Court, which reads as follows:

A respondent who, not having appealed from the decision of the Court below, desires to contend on the appeal that the decision of that Court should be varied in the event of an appeal being allowed in whole or in part, or that the decision of that Court should be affirmed on grounds other than those relied on by that Court, must state so in his Case, specifying the grounds of that contention. [Emphasis mine.]

In the light of this rule, it was quite clear that Anderson Land were entitled to raise the point. Lum Chang`s objection was therefore without merit.

It is necessary for us at this juncture to set out the provisions of ss 21, 22, 23 and 28 of the Act:

21	(1)	Subject to the Rules of Court, the court or a judge thereof may refer any question arising in any cause or matter, other than a criminal proceeding by the Public Prosecutor, for inquiry or report to any special referee
	(2)	The report of a special referee may be adopted wholly or partially by the court or a judge thereof, and if so adopted may be enforced as a judgment or order to the same effect.
22		In any cause or matter, other than a criminal proceeding by the Public Prosecutor, -
(a)		if all the parties interested who are not under disability consent;
(b)		if the cause or matter requires any prolonged examination of documents or any scientific or local investigation which cannot, in the opinion of the court or a judge thereof, conveniently be conducted by the court through its ordinary officers; or
(c)		if the question in dispute consists wholly or in part of matters of account,

the court or a judge thereof may at any time order the whole cause or matter or any question or issue of fact arising therein to be tried before a special referee or arbitrator respectively agreed on by the parties or before an officer of the court.

23	(1)	In all cases of reference to a special referee or arbitrator under an order of the court or a judge thereof in any cause or matter, the special referee or arbitrator shall be deemed to be an officer of the court and shall have such authority and shall conduct the reference in such manner as is prescribed by Rules of Court, and subject thereto as the court or a judge thereof directs.
	(2)	The report or award of any special referee or arbitrator on any such reference shall, unless set aside by the court or a judge thereof, be equivalent to the judgment of a judge.
	(3)	The remuneration to be paid to any special referee or arbitrator to whom any matter is referred under order of the court or a judge thereof shall be determined by the court or a judge thereof.
...
28	(1)	Without prejudice to the right of appeal conferred by subsection (2), the court shall not have jurisdiction to set aside or remit an award on an arbitration agreement on the ground of errors of fact or law on the face of the award.
	(2)	Subject to subsection (3), an appeal shall lie to the court on any question of law arising out of an award made on an arbitration agreement, and on the determination of such an appeal the court may by order -
		(a)	confirm, vary or set aside the award; or
		(b)	remit the award to the arbitrator or umpire for reconsideration together with the court`s opinion on the question of law which was the subject of the appeal,
and where the award is remitted under paragraph (b) the arbitrator or umpire shall, unless the order otherwise directs, make his award within 3 months of the date of the order.
	(3)	An appeal under this section may be brought by any of the parties to the reference -
		(a)	with the consent of all the other parties to the reference; or
		(b)	subject to section 30, with the leave of the court.

Section 2 of the Act defines...