Nam Hong Construction & Engineering Pte Ltd v Kori Construction (S) Pte Ltd
Jurisdiction | Singapore |
Judge | Sundaresh Menon CJ |
Judgment Date | 08 July 2016 |
Neutral Citation | [2016] SGCA 42 |
Plaintiff Counsel | Andrew John Hanam (Andrew LLC) |
Docket Number | Civil Appeal No 44 of 2015 |
Date | 08 July 2016 |
Hearing Date | 04 November 2015,30 March 2016 |
Subject Matter | Building control,Statutes and regulations,Building and Construction Law |
Year | 2016 |
Citation | [2016] SGCA 42 |
Defendant Counsel | Twang Kern Zern (Central Chambers Law Corporation) |
Court | Court of Appeal (Singapore) |
Published date | 14 July 2016 |
This is an appeal against the decision of the learned Judicial Commissioner which in turn was an appeal from the decision of a District Judge. At the start of the trial before the District Judge, the respondent raised as a preliminary question of law the following issue: whether the appellant, which was not itself licensed to carry out the building works in question, was precluded by s 29B(4) of the Building Control Act (Cap 29, 1999 Rev Ed) (“the Act”) from maintaining an action for the recovery of its fees. This issue arose in the context of an action brought by the appellant against the respondent over the non-payment of sums owed under a construction contract. The District Judge answered the question of law in the negative and held that the claim was not precluded by s 29B(4) of the Act (“s 29B(4)”). The respondent appealed and its appeal was allowed by the Judicial Commissioner.
Lying at the heart of this dispute is the licensing regime set out in Part VA of the Act. Ostensibly, this appeal turns on the scope of s 29B(4), which reads:
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.
Section 29B(2)(
We appreciate the assistance rendered by the BCA. Their input was helpful. While their views cannot, of course, be determinative of the questions of statutory interpretation which we are confronted with, they provided us with some insight into the operational aspects of the Act and this helped inform our analysis. We now deliver our judgment on this matter.
BackgroundThe respondent, Kori Construction (S) Pte Ltd (“Kori”), was a subcontractor for the MRT Downtown Line project (“the Project”). Sato Kogyo (S) Pte Ltd (“Sato Kogyo”) was the main contractor for the Project. Kori engaged the appellant, Nam Hong Construction & Engineering Pte Ltd (“Nam Hong”), to perform a part of the works which it had been subcontracted to perform. In a Letter of Award issued by Kori to Nam Hong, the latter’s scope of work was said to “consist of fabrication, loading and unloading of steel strutting works”. It was not disputed that at the material time Sato Kogyo and Kori held both a general builder’s licence as well as a specialist builder’s licence granted by the BCA but Nam Hong held neither.
The works were carried out between February and August 2013 and a total of 11 invoices were issued. The sums owed under the first ten invoices were duly paid but Kori did not pay Nam Hong the sum of $147,538.39 owing under the 11th and final invoice. Nam Hong then commenced District Court Suit No 3508 of 2014 (“DC Suit 3508”) for the recovery of that sum. In its defence, Kori pleaded, among other things, that Nam Hong had carried out “structural steelwork”, which is a type of “specialist building works” within the meaning of s 2(1) of the Act, without a specialist builder’s licence and was therefore barred from maintaining an action for the recovery of its fees by virtue of s 29B(4).
At the commencement of the trial, Nam Hong raised the preliminary issue of whether Nam Hong’s claim was precluded by s 29B(4) for determination pursuant to O 33 r 5 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed). The District Judge agreed to hear the preliminary issue and invited written submissions on this from the parties. When the matter was argued, it was common ground that the crux of the issue was whether the steelwork which Nam Hong performed fell within the meaning of “specialist building works” as defined in s 2(1) of the Act. The relevant parts of that section, which we shall refer to as “para (
“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; …
Nam Hong contended that only steelwork that involved
Given that it was common ground that Nam Hong did not install any steel supports for geotechnical works, but that it did engage in the fabrication of structural elements, the difference between the conjunctive and disjunctive interpretations is critical. If the conjunctive interpretation were adopted, Nam Hong’s claim would not be precluded because it would not be taken to have performed specialist building works and s 29B(4) would not bite. By contrast, if the disjunctive interpretation were adopted, Nam Hong’s claim would
The Judicial Commissioner’s decision is reported as
The Judicial Commissioner also rejected Nam Hong’s alternative argument, which was that s 29B(4) of the Act did not apply because Nam Hong was merely a subcontractor and was therefore not a “builder” within the meaning of s 2(1) of the Act who was subject to the licensing regime in Part VA. The Judicial Commissioner held that the argument was misconceived because it disregarded specific definitions of “builder”, “general builder”, and “specialist builder” contained in s 29A of the Act, which applied for the purposes of Part VA in preference to the general definitions set out at s 2(1). In her assessment, the Act required
Mr Andrew John Hanam, counsel for Nam Hong, advances many of the same arguments before us that he did before the Judicial Commissioner. First, he submits that the conjunctive reading should be preferred. He contends that para (
To continue reading
Request your trial-
Kong Hoo (Pte) Ltd v PP
...Case(s) referred to Chandler v DPP [1964] AC 763 (refd) Nam Hong Construction & Engineering Pte Ltd v Kori Construction (S) Pte Ltd [2016] 4 SLR 604 (refd) PP v Lam Leng Hung [2018] 1 SLR 659 (refd) PP v Low Kok Heng [2007] 4 SLR(R) 183; [2007] 4 SLR 183 (refd) PP v Sharikat Perusahan Makan......
-
PP v Lee Sze Yong
...Pte Ltd v PP [2002] 1 SLR(R) 443; [2002] 2 SLR 40 (folld) Nam Hong Construction & Engineering Pte Ltd v Kori Construction (S) Pte Ltd [2016] 4 SLR 604 (folld) PP v Low Kok Heng [2007] 4 SLR(R) 183; [2007] 4 SLR 183 (folld) PP v Tan Ping Koon [2004] SGHC 205 (folld) Legislation referred to I......
-
Wong Souk Yee v Attorney-General
...construction is permitted was most recently summarised in Nam Hong Construction & Engineering Pte Ltd v Kori Construction (S) Pte Ltd [2016] 4 SLR 604 at [55] as follows: first, it must be possible to determine from a consideration of the provisions of the Act concerned, read as a whole, wh......
-
Public Prosecutor v Lam Leng Hung and others
...Kok Heng”) at [30]–[38] (which was endorsed by this Court in Nam Hong Construction & Engineering Pte Ltd v Kori Construction (S) Pte Ltd [2016] 4 SLR 604 (“Nam Hong”) at [28]). Rajah JA reviewed the historical origins of the principle and how the rule has been regarded in more recent times,......
-
Criminal Law
...183, a decision recently endorsed by the Court of Appeal in Nam Hong Construction & Engineering Pte Ltd v Kori Construction (S) Pte Ltd [2016] 4 SLR 604. 72 Cap 151, 1999 Rev Ed. 73 [2017] 3 SLR 533. 74 Public Prosecutor v Lee Sze Yong [2017] 3 SLR 533 at [1] and [23]. 75 Public Prosecutor ......
-
Building and Construction Law
...521 at [87]–[88]. 135 Management Corporation Strata Title Plan No 3322 v Tiong Aik Construction Pte Ltd [2016] 4 SLR 521 at [90]. 136 [2016] 4 SLR 604. 137 Nam Hong Construction & Engineering Pte Ltd v Kori Construction (S) Pte Ltd [2016] 4 SLR 604 at [24]. 138 Nam Hong Construction & Engin......