Northern Elevator Manufacturing Sdn Bhd v United Engineers (Singapore) Pte Ltd

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 10 October 2003
• Neutral Citation: [2003] SGCA 41
• Docket Number: Civil Appeal No 57 of 2003
• Date: 10 October 2003
• Published date: 17 December 2003
• Year: 2003
• Plaintiff Counsel: Monica Neo (Chantan LLC)
• Citation: [2003] SGCA 41
• Defendant Counsel: C R Rajah SC, (instructed) with Mary Ong and Christine Wee (Hoh Law Corporation)
• Court: Court of Appeal (Singapore)
• Subject Matter: Appeals,Application to set aside Notice of Appeal -Whether filing of Notice of Appeal irregular for non-compliance with Arbitration Act (Cap 10, 1985 Ed) s 28(7),Whether filing of Notice of Appeal amounted to abuse of process,Notice,Application to set aside Notice of Appeal,Civil Procedure

Delivered by Judith Prakash J

1 This motion arises out of an appeal filed by Northern Elevator Manufacturing Sdn Bhd (‘NEM’) against a court order granting United Engineers (Singapore) Pte Ltd (‘United Engineers’) leave to appeal against an arbitration award. United Engineers has applied for the notice of appeal to be set aside on the ground that the filing of the appeal was irregular for non-compliance with a statutory provision.

Background

2 United Engineers and NEM were parties to a building construction contract. Disputes arose under the contract and were referred to arbitration. In December 2001, the arbitrator found NEM to be at fault. Subsequently, by an interim award issued on 23 January 2003, he awarded United Engineers certain sums as damages.

3 United Engineers was dissatisfied with the way in which the arbitrator had arrived at the quantum of damages. As the arbitration proceedings were commenced prior to 1 March 2002, they were governed by the Arbitration Act (Cap 10, 1985 Ed) (‘the Act’) and not by the Arbitration Act 2001 (Act 37 of 2001) (‘the New Act’) which replaced it. Under the Act, there was limited recourse to the courts for a party who was dissatisfied with the arbitrator’s award. An appeal could only be lodged on a question of law that arose out of the award and, pursuant to s 28(5)(b), unless all parties agreed to the appeal, leave of court was required for it to be heard. Thus, on 9 May 2003, United Engineers filed a motion in the High Court whereby it asked for:

(1) leave to appeal against the award; and

(2) on the basis that such leave was given, an order that the award be remitted to the arbitrator for reconsideration together with the opinion of the court on the question of law which formed the subject of the appeal.

4 The motion came on for hearing before Justice Lai Siu Chiu on 9 May 2003. After hearing arguments, the Judge granted United Engineers leave to appeal against the award. The Judge then proceeded with the hearing of the appeal proper and granted the appeal. It was ordered that the award be remitted to the arbitrator for the computation of certain damages on a basis specified by the Judge and that certain other costs should be based on a particular quotation and not on the unit rate which had been used in the award for the purposes of the calculation.

5 A week later, on 16 May 2003, NEM filed a notice of motion (NM 53/2003) by which it applied for leave to appeal against Justice Lai’s decision (a) granting United Engineers ‘leave to appeal against part of the 2^nd interim award of the Arbitrator’ and (b) ‘remitting the same to the Arbitrator for the recomputation of various items’. The application, which was fixed for hearing on 23 May 2003, was adjourned to a special hearing date.

6 On 5 June 2003, NEM filed their notice of appeal in the present appeal, Civil Appeal No. 57 of 2003 (‘CA 57/2003’). By this notice, NEM appealed to the Court of Appeal ‘against such part only of [the decision of Lai J given on 9 May 2003] as decides that [United Engineers], be granted leave to appeal against the 2^nd Interim Award’. Thus, while the notice of motion filed on 16 May 2003 had asked for leave to appeal against both parts of the decision made by Lai J on 9 May, the notice of appeal related only to the initial application for leave to appeal to the High Court against the award. On 18 June, United Engineers filed this motion asking for the notice of appeal of 5 June to be set aside and for CA 57/2003 to be struck out.

Grounds of the application

7 In their notice of motion, United Engineers stated that the ground of their application was that NEM had failed to satisfy s 28(7) of the Act. This section provides:

(7) No appeal shall lie to the Court of Appeal from a decision of the court on an appeal under this section unless the court or the Court of Appeal –

(a) gives leave; and

(b) considers the question of law to which the decision relates to either as one of general public importance or as one which for some special reason should be considered by the Court of Appeal.

United Engineers’ attack was based on non-compliance with sub-para (a) in that NEM had not applied for nor been granted leave to appeal to the Court of Appeal.

8 NEM contended that United Engineers’ objection was misconceived in the light of this court’s decision in Hong Huat Development Co (Pte) Ltd v Hiap Hong & Co Pte Ltd [2000] 2 SLR 609. That case decided that the requirement for leave under s 28(7)(a) applied only to a decision on an appeal and not to the decision on the original application to the High Court for leave to appeal against the award. NEM submitted that the notice of appeal had been filed only in respect of the preliminary decision to grant United Engineers leave to appeal against...