Ng Huat Engineering Pte Ltd v Jurong Town Corp

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 27 January 2003
• Neutral Citation: [2003] SGHC 12
• Court: High Court (Singapore)
• Published date: 06 May 2004
• Year: 2003
• Plaintiff Counsel: S Thulasidas (Ling Das & Partners)
• Defendant Counsel: Andre Maniam and Christopher Chong (Wong Partnership)
• Subject Matter: Arbitration,Application for extension of time to apply for leave to appeal,Test for granting for extension of time,Whether applicants' appeal had prospects of success
• Citation: [2003] SGHC 12

1. The plaintiffs, a company under judicial management, were the main contractors to the defendants in a pipes and manholes installation project in Pulau Sakra. Dispute arose between them and the parties went to arbitration. The arbitrator was asked to decide on two preliminary claims by the plaintiffs. These were, first, a claim for "prolongation costs", that is, costs for delays caused by the defendants that resulted in additional costs and expenses incurred by the plaintiffs. Secondly, the plaintiffs claimed the costs of variations to the contract. These variations concerned the changing of reinforced concrete pipes (RC pipes) originally provided, to H-class or vitrified pipes (VC pipes). The arbitrator made his award ("the interim award") on these two issues and the plaintiffs, being dissatisfied, applied for leave to appeal to the High Court.

2. The plaintiffs, being out of time, had to apply by Originating Summons 1416 of 2002 for an extension of time to apply for leave. The interim award was made on 5 September 2002. The intended appellant had 21 days from the date of the award to apply for leave to appeal. That would have, in this case, expired on 27 September 2002. However, the plaintiffs’ solicitors mistook the time limit to be 28 days as provided under the Arbitration Act 2001. If that had been the time limit, the last day for applying for leave would have been 5 October 2002. The plaintiffs thus applied for leave on 2 October 2002 but on 3 October 2002, their attention was drawn to the provision that the Act only applies to arbitration proceedings that commenced on or after 1 March 2002. The arbitration proceedings in this case commenced on 14 March 2000.

3. On 23 October 2002 I granted the extension of time prayed for. Mr Maniam, counsel for the defendants wrote and asked for further arguments on the ground that by virtue of the Court of Appeal decision in Hong Huat Development (Pte) Ltd v Hiap Hong & Co Pte Ltd [2000] 2 SLR 609, a part of the test for granting an extension of time is the same as that in an application for leave to appeal, namely, that the applicant must convince the court that there is a prospect of success. I shall elaborate on this aspect of the test shortly.

4. Relying on the Hong Huat case, Mr Maniam then asked for the further arguments in respect of the application for extension of time to be heard together with the application for leave. He pointed out that that was what the Court of Appeal did in the Hong Huat case.

5. The appellant in Hong Huat were out of time and their application for an extension of time to file their application for leave to appeal was dismissed. They appealed to the Court of Appeal who allowed their appeal for an extension of time and also granted leave to appeal.

6. The principles set out in Chen Chien Wen Edwin v Pearson [1991] SLR 212 in respect of an application for extension of time were accepted and applied by the judge at first instance as well as the Court of Appeal in Hong Huat’s case. In short, the court is bound to consider the length of delay, the reasons for the delay, and also the question of prejudice to the respondents. I shall refer to these as the stage one considerations. Following Hong Huat, the court must also consider the prospects of the appellants’ case on the appeal – and not merely the prospects of succeeding in getting an extension of time to apply for leave to appeal. I shall refer to this as the stage two consideration.

7. Thus, in an application for an extension of time for leave to appeal, the application will be dismissed if the applicant fails to satisfy the stage one considerations. In other words, if the court is of the view that the application was made after an inordinate delay, or that the reason for the delay was unjustifiable or without any merit, or that an extension of time would prejudice the respondents then an extension of time shall not be granted. None of these factors operated sufficiently in the present case against the plaintiffs.

8. If an applicant satisfies the court in respect of the stage one consideration then he may still be refused an extension of time if he fails to satisfy the court on the stage two considerations. When stage two is reached, it means that should the court be of the view that there are merits in the applicants’ substantive appeal, then not only will an extension of time be granted but leave to appeal shall also be granted at the same time because the test is essentially the same. It means, therefore, that an application for an extension of time should be heard together with the application for leave to appeal.

9. In the present case, I am of the view that the appellants had satisfied the stage one considerations. I will only point out that a solicitor’s mistake in itself is not an excuse, but the error must be considered in the context of the case and the circumstances in which the error arose. At the hearing of further arguments, Mr Maniam concentrated only on the second stage considerations.

10. In this regard, the basic question concerned the test that the court ought to apply in determining the prospects of success of the appeal. Counsel drew my attention to American Home Assurance Co v Hong Lam Marine Pte Ltd [1999] 3 SLR 682. In that case, the Court of Appeal accepted the approach taken in two English cases, namely The Nema [1982] AC 724 and The Antaios [1985] AC 191. The Court of Appeal observed that the trend was towards restricting the possibility of appeals from arbitration awards especially when the dispute concerned the interpretation of words inserted into a commercial contract in order to ascertain the meaning intended by the parties. In such cases, the speed and finality of an arbitral decision ought not generally to be disturbed.

11. The Court of Appeal recognised the discretion to grant leave to appeal may be exercised differently, depending on "whether the question of construction arises in the context of a ‘one-off’ contract or clause, or that of a standard form contract or clause". The authorities that I mentioned above drew a distinction between cases involving a "one-off" contract and those involving a standard form contract. They applied a...