Mansource Interior Pte Ltd v Citiwall Safety Glass Pte Ltd

• Judge: Tan Siong Thye JC
• Judgment Date: 25 April 2014
• Neutral Citation: [2014] SGHC 87
• Citation: [2014] SGHC 87
• Docket Number: Originating Summons No. 886 of 2013 (Registrar’s Appeal No 428 of 2013)
• Published date: 27 August 2015
• Hearing Date: 17 February 2014
• Plaintiff Counsel: Edwin Lee, Poonaam Bai and Vani Nair (Eldan Law LLP)
• Date: 25 April 2014
• Defendant Counsel: A Rajandran (A Rajandran)
• Court: High Court (Singapore)
• Subject Matter: Statutes and Regulations,Building and Construction Law

Tan Siong Thye JC: Introduction

This is an appeal from the Assistant Registrar’s decision not to set aside an Adjudication Determination made pursuant to the Building and Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed) (“SOP Act”). The Appellant, Mansource Interior Pte Ltd, which was the respondent in the Adjudication Determination, argued, inter alia, that the Adjudicator had wrongfully regarded its Adjudication Response as being lodged out of time and therefore should not have rejected it. I agreed with the Appellant in relation to this argument and allowed the appeal. The Respondent, Citiwall Safety Glass Pte Ltd, the claimant in the Adjudication Determination, is dissatisfied with my decision and has filed a Notice of Appeal. I now provide the grounds for my decision.

Facts Background

On 21 December 2012, the Respondent was awarded a sub-contract by the Appellant to undertake the supply and installation of wall finishes works at 1 Changi Business Park Central 1, Singapore. The sub-contract was valued at $1,252,750 and progress payments were to be made by the Appellant according to a Schedule of Payment in the sub-contract.¹

On 5 August 2013, the Respondent served on the Appellant a payment claim pursuant to s 10(1)(a) of the SOP Act. The claim was for $322,536.65, owed by the Appellant to the Respondent under the sub-contract.² On 21 August 2013, the Appellant provided the Respondent with a payment response pursuant to s 11(1)(a) of the SOP Act. The response amount provided by the Appellant was $93,732.10, $228,804.55 less than that claimed by the Respondent.³

Process leading up to Adjudication

As there was a dispute as to the amount owed by the Appellant to the Respondent, the Respondent decided to apply for Adjudication pursuant to the SOP Act to claim for the shortfall of $228,804.55.⁴ The Respondent served on the Appellant a notice of intention to apply for Adjudication on 28 August 2013 pursuant to s 13(2) of the SOP Act. The Respondent also lodged an Adjudication Application with the Singapore Mediation Centre (“SMC”), the authorised nominating body, pursuant to s 13(1) of the SOP Act on the same day.⁵

The SMC served the Adjudication Application on the Appellant on 29 August 2013 at 5.25pm as required by s 13(4)(a) of the SOP Act. Under s 15(1) of the SOP Act,⁶ the Appellant must lodge an Adjudication Response with the SMC within 7 days after receipt of the Adjudication Application from the SMC. The Appellant subsequently lodged its Adjudication Response with the SMC on 5 September 2013 at 4.32pm. However, Rule 2.2 of the SMC Adjudication Procedure Rules (“SMC Rules”) stipulated that the “opening hours” of the SMC are from 9am to 4.30pm on weekdays and that any document lodged after 4.30pm shall be treated as being lodged the next working day.

The Adjudication Determination

In view of Rule 2.2 of the SMC Rules, the Adjudicator took the view that the Adjudication Response was lodged with the SMC on 6 September although it was lodged on the 5 September. Thus, the Adjudicator found that the Appellant failed to file the Adjudication Response within the 7-day time limit stipulated by s 15(1) of the SOP Act. Under s 16(2)(b) of the SOP Act the Adjudicator “shall reject any adjudication response that is not lodged within the period referred to in s 15(1).” Accordingly, he rejected the Adjudication Response.⁷

In his Adjudication Determination dated 12 September 2013,⁸ the Adjudicator only considered the Respondent’s written submissions attached to its Adjudication Application.⁹ He did not consider the Appellant’s Adjudication Response as he had rejected it for being lodged out of time. The Respondent’s Adjudication Application claimed for the entire shortfall of $228,804.55. The Adjudicator allowed nearly the entire amount claimed by determining that the Appellant was to pay the Respondent the sum of $223,956.50.¹⁰ The Appellant was also required to pay the Respondent’s costs of the adjudication.¹¹

The proceedings leading up to the appeal

The Appellant did not make payment to the Respondent in accordance with the Adjudication Determination.¹² On 20 September 2013, the Respondent took out an originating summons against the Appellant seeking to enforce the Adjudication Determination.¹³ The Respondent subsequently obtained an order of court dated 24 September 2013 and judgment dated 26 September 2013 requiring the Appellant to make payment pursuant to the Adjudication Determination.¹⁴

The Appellant then filed a summons on 18 October 2013 seeking to set aside the Adjudication Determination.¹⁵ The application was heard before the Assistant Registrar.

The decision of the Assistant Registrar

Before the Assistant Registrar, the Appellant argued that the Adjudication Determination should be set aside because: the Adjudicator wrongly rejected the Appellant’s Adjudication Response as it was not lodged out of time; the Adjudication Application was made fraudulently and/or in bad faith as the Plaintiff had misrepresented the amount of its claim; and the Adjudicator failed to accord due consideration to the materials before him.

The Assistant Registrar dismissed the last two grounds on the basis that the Appellant’s arguments went to the merits of the payment claim which the court was prohibited to consider. She also found no evidence of fraud or bad faith.¹⁶ As for the first ground relating to the Adjudication Response, the Assistant Registrar found that the SMC Rules were promulgated pursuant to s 28(4)(e) of the SOP Act and that these rules applied to the Appellant.¹⁷ Consequently, she found that the Adjudication Response was lodged out of time in light of Rule 2.2 of the SMC Rules as it was filed two minutes after the close of the opening hours which was 4.30pm on 5 September 2013.¹⁸ For these reasons, she also dismissed the first ground relied upon by the Appellant with fixed costs to the Respondent.¹⁹

The appeal

The Appellant was dissatisfied with the decision of the Assistant Registrar and appealed against her decision. For this appeal, the Appellant relied on all three grounds of setting aside that were before the Assistant Registrar. I allowed the Appellant’s appeal on the ground that the Adjudicator had wrongfully rejected the Adjudication Response on the erroneous premise that it was lodged out of time. However, I did not agree with the Appellant’s other submissions in relation to fraud and the failure of the Adjudicator to consider the material before him properly.

My decision Wrongful rejection of the Appellant’s Adjudication Response The timeline for lodging an Adjudication Response

Section 15(1) of the SOP Act states that a respondent to an adjudication claim “shall, within 7 days after receipt of a copy of an adjudication application under s 13(4)(a), lodge with the authorised nominating body a response to the adjudication application.” There is no provision under the SOP Act to explain the computation of time. However, s 50(a) of the Interpretation Act (Cap 1, 2002 Rev Ed) provides some guidance on the computation of time in the absence of contrary intention found in the particular statute:

[A] period of days from the happening of an event or the doing of any act or thing shall be deemed to be exclusive of the day on which the event happens or the act or thing is done …

In this case, the Appellant received the Respondent’s Adjudication Application at 5.25pm on 29 August 2013. Applying s 50(a) of the Interpretation Act, the 7-day time limit should only start running on 30 August 2013 since it shall be exclusive of 29 August 2013.

What constitutes a day? Section 2 of the SOP Act defines day as “any day other than a public holiday within the meaning of the Holidays Act”. This definition is not helpful in this case. A day should nonetheless be given its plain and ordinary meaning. In Black’s Law Dictionary (Bryan A Garner ed) (West Group, 9th Ed, 2009) at p 453, “day” is defined as “[a]ny 24-hour period; the time it takes the earth to revolve once on its axis”. Jowitt’s Dictionary of English Law vol 1 (Daniel Greenberg ed) (Sweet & Maxwell, 3rd Ed, 2010) defines “day” at p 638 as “any period of 24 hours beginning with one midnight and ending with the next”. I also find support for this 24-hour interpretation of day in the Malaysian case of Khoo Chee Peng v Menteri Hal Ehwal Dalam Negeri & Ors [1998] 6 MLJ 646 where it is stated that “[a] day is a period of 24 hours.” A 7-day time period that only starts running on 30 August 2013 ends on 5 September 2013. The last day for lodging of the Adjudication Response with the SMC would then be anytime before midnight of 5 and 6 September 2013 as midnight straddled on both dates. As long as the Appellant is deemed to have lodged its Adjudication Response on or before 2359 hours of 5 September 2013, then it is lodged within time. If this is not so, then s 16(2)(b) of the SOP Act requires the Adjudicator to reject the Adjudication Response.

The SMC Rules

In this case, the parties do not dispute the fact that the Appellant’s Adjudication Response was lodged with the SMC at 4.32pm on 5 September 2013. However, Rule 2.2 of the SMC Rules provides that:

All documents to be lodged with SMC shall be lodged during the opening hours of 9.00 am to 4.30 pm from Monday to Friday (except public holidays) and 9.00 am to 12.00 noon on the eves of Christmas, New Year and Chinese New Year. SMC reserves the right to reject documents submitted after opening hours. If however, SMC accepts such documents, they shall be treated as being lodged the next working day.

After the lodging of the Adjudication Response by the Appellant on 5 September 2013, Ms Zivile Zukauskaite, Assistant Manager of SMC, wrote to the Respondent and the Adjudicator. In a letter dated 6 September 2013,²⁰ it is stated that:

An Adjudication Response was lodged by Mansource Interior Pte Ltd with the...