Oxley Consortium Pte Ltd v Geetex Enterprises Singapore (Pte) Ltd and another matter

JurisdictionSingapore
JudgeSundaresh Menon CJ
Judgment Date28 July 2021
Neutral Citation[2021] SGCA 71
Published date31 July 2021
Docket NumberCivil Appeal No 229 of 2019 and Summons No 2 of 2021
Year2021
Hearing Date21 January 2021
Plaintiff CounselPoon Kin Mun Kelvin, Lai Tze Ren, Jonathan (Li Zhiren) and Koh Wei-jen, Aaron (Rajah & Tann Singapore LLP)
Citation[2021] SGCA 71
Defendant CounselLok Vi Ming SC, Lee Sien Liang Joseph and Qabir Singh Sandhu (LVM Law Chambers LLC)
CourtCourt of Appeal (Singapore)
Subject MatterAward,Statutory Interpretation,Recourse against award,Construction of standard form contract mandated by statute,Arbitration,Appeal under Arbitration Act
Quentin Loh JAD (delivering the judgment of the court): Introduction

This appeal concerns five questions of law which arise from an arbitration award. These questions were posed by the appellant to the High Court Judge (“the Judge”) below pursuant to s 49 of the Arbitration Act (Cap 10, 2002 Rev Ed) (“AA”).

The answers to the five questions of law turn on the interpretation of three disputed phrases in cl 15.4 of two Sale and Purchase Agreements (“SPA(s)”) entered into by the appellant as developer-vendor and the respondent as purchaser. Clause 15.4 (see [29] below) is a term in a standard form contract found in Form D of the Schedule to the Sale of Commercial Properties Rules (Cap 281, R 1, 1999 Rev Ed) (“the Rules”). The use of Form D is statutorily mandated by s 5 of the Sale of Commercial Properties Act (Cap 281, 1985 Rev Ed) (“the Act”) read with r 7 of the Rules (collectively “the legislative scheme”).

We allow the appeal in part and set out our reasons herein.

It bears noting at the outset that in their submissions before this court, the appellants have raised various arguments which in effect challenge or ignore the arbitrator’s findings of fact. The appellant has also interwoven arguments on points that were not raised before the arbitrator. This is impermissible.

Singapore has adopted a dual track regime for arbitration, one track for international arbitration under the International Arbitration Act (Cap 143A, 2002 Rev Ed) (“IAA”) and another track for domestic arbitration under the AA. Some practitioners have opined that, generally speaking, there is a higher degree of court intervention in domestic arbitration as compared to international arbitration.1 Whilst this may be true at a general level, especially when compared to the provisions of the IAA and the UNCITRAL Model Law on International Commercial Arbitration (“Model Law”), it should not be forgotten that the court can only intervene in instances where the statutory provisions of the AA allow the court to do so. Section 47 of the AA provides that the court shall not have jurisdiction to confirm, vary, set aside or remit an award except where provided in the AA. The grounds upon which the court can set aside an award in s 48 AA are adopted from the Model Law and mirror the grounds under the New York Convention.2 In L W Infrastructure Pte Ltd v Lim Chin San Contractors Pte Ltd and another appeal [2013] 1 SLR 125, this Court ruled that given the clear legislative intent to align domestic arbitration laws with the Model Law, the court was entitled, indeed even required, to have regard to the scheme of the IAA or the Model Law for guidance on the interpretation of the Act, unless a clear departure was provided for in the Act (at [34]). It bears repeating that the court does not sit as an appellate court from arbitral tribunals. This is true even in the context of domestic arbitration under the AA.

One of the main areas where the court interacts with arbitration under the AA (and which is a clear difference from international arbitration under the IAA) is where parties raise questions of law. This can occur at two stages. The first arises during the course of arbitral proceedings under s 45(1) of the AA. This is not engaged in the present appeal. The present appeal involves questions of law at the second stage, after an award is made. Under s 49(1) of the AA, a party may appeal to the court on a question of law rising out of an award with the agreement of all the other parties to the proceedings or with leave of court (see s 49(3) of the AA). Nonetheless, an appeal on questions of law arising from an arbitration award pursuant to s 49 of the AA is not a backdoor appeal of the award. As this court stated in Northern Elevator Manufacturing Sdn Bhd v United Engineers (Singapore) Pte Ltd [2004] 2 SLR(R) 494 (“Northern Elevator”) at [17], “it is essential to delineate between a ‘question of law’ and an ‘error of law’, for the former confers jurisdiction on a court to grant leave to appeal against an arbitration award while the latter, in itself, does not”. This distinction was also well put by G P Selvam JC (as he then was) in Ahong Construction (S) Pte Ltd v United Boulevard Pte Ltd [1993] 2 SLR(R) 208 at [7]:

… A question of law means a point of law in controversy which has to be resolved after opposing views and arguments have been considered. It is a matter of substance the determination of which will decide the rights between the parties. … If the point of law is settled and not something novel and it is contended that the arbitrator made an error in the application of the law there lies no appeal against that error for there is no question of law which calls for an opinion of the court.

[emphasis added]

The above passage was quoted with approval in Northern Elevator at [18]. Hence, where an arbitrator erred in only awarding costs incurred by an amendment due to his failure to consider the element of costs thrown away, it was only an error of application of a settled principle of law and did not give rise to a right to appeal on a question of law, and the absence in the AA of a similar provision set out in s 28(1) of the previous Arbitration Act (Cap 10, 1985 Rev Ed), viz, that the court did not have jurisdiction to set aside or remit an award on the ground of errors of fact or law on the face of the record, did not mean that the court would now allow an appeal on grounds that the arbitrator committed an error in respect of established law (see Econ Piling Pte Ltd and another (both formerly trading as Econ-NCC Joint Venture) v Shanghai Tunnel Engineering Co Ltd [2011] 1 SLR 246 (“Econ Piling”) at [102] to [104]). Although the AA does provide instances where the court can exercise supervisory jurisdiction over domestic arbitral tribunals in domestic arbitrations, the judicial philosophy remains that of a “light touch”, ie, the courts should not exercise tight supervisory power over arbitral proceedings.

We will point out, at appropriate junctures, where the parties have lost sight of these basic important principles. We now turn to the material facts.

Material facts

The appellant is the developer of Oxley Tower.3 This dispute concerns two units of Oxley Tower, #04-01 (“Unit 1”) and #04-02 (“Unit 2”) (collectively the “Units”), that the respondent purchased from the appellant around end 2012.4

Mohinani Kevin Premchand (“MKP”) is a director of the respondent.5 Larry Chua (“Chua”) is a marketing agent of the appellant.6 In November 2012, MKP learnt about the sale of the Units from Chua, who also sent him the 4th storey floor plan for Oxley Tower.7

According to the plan, Unit 1 and Unit 2 are intended to be the only two units on the fourth floor. Each Unit is designed to have an indoor and outdoor area. Unit 1 was intended to be a gym/spa with a swimming pool and roof garden in the outdoor area and Unit 2 was intended to be a restaurant with a roof garden in the outdoor area.8 The roof gardens for both Units were designed to have physical features such as concrete paths and walls (“hardscape”) as well as soil and vegetation (“softscape”).

MKP replied enquiring whether the two Units could be divided into two restaurants instead.9 Chua replied that this was possible.10 Shortly after, in the same month of November 2012, MKP and some others visited the Oxley Tower showroom where he was handed a hard copy of the Oxley Tower marketing brochure, and viewed a 3D model of the Oxley Tower development.11 The marketing brochure and 3D model showed people mingling around the softscape areas of the roof garden and stepping on the softscape areas.12 Further, the marketing brochure and 3D model also showed the softscape to be level with the rest of the hardscape areas.13

The marketing brochure made reference to a building plan described as “A642-00006-2010-BP01 dated 6 March 2012”.14 This referred to a building plan for Oxley Tower earlier submitted by the appellant to the Building and Construction Authority (“BCA”) for approval in February 2012 (“2012 BCA Plan”).15 This was approved by the BCA on 6 March 2012.16 Similar to the marketing brochure, the 2012 BCA Plan had no indication that the softscape areas were to be elevated from the hardscape areas, but instead showed that they were to be level with each other.17

BCA’s Notice of Approval on 6 March 2012 contained a notice that “clearances from the technical departments as indicated below are outstanding”,18 and one of the departments listed was the “Fire Safety & Shelter Department” (“FSSD”).19

Subsequently, around April 2012, the appellant’s Qualified Person (“QP”), Ms Hazel Ang Lee Ha, submitted the 2012 BCA Plan for approval by FSSD. However, the QP made changes to the 2012 BCA Plan before submitting it to FSSD, so that it would meet FSSD’s requirements.20 In particular, the appellant indicated on the plan that the softscape areas would be elevated by 300mm above the hardscape areas, and also increased the size of the softscape areas, correspondingly reducing the size of the hardscape areas.21 These changes were made to reduce the Units’ occupant load22 to meet FSSD’s required maximum occupant load, since the softscape areas could be attributed an occupant load of zero if it was elevated 300mm above the hardscape areas and is covered fully with trees/shrubs.23 This plan which was submitted to FSSD (“2012 FSSD Plan”), is also marked with the same serial number as the 2012 BCA Plan, viz, “A0642-00006-2010-BP01”.24

None of the contractual documents that were subsequently entered into between the parties referred to the 2012 FSSD Plan, and the arbitrator found as a fact that the respondent would not have had access to the 2012 FSSD Plan.25 Further, the appellant’s QP admitted that FSSD would only grant access to such plans to the building owner, and that she had no clue how one could obtain such plans.26

Following the visit to the showroom,...

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2 cases
1 books & journal articles
  • Arbitration
    • Singapore
    • Singapore Academy of Law Annual Review No. 2021, December 2021
    • 1 December 2021
    ...2 SLR 890 at [30]. 110 6th Ed, 1 August 2016. 111 Cheung Teck Cheong Richard v LVND Investments Pte Ltd [2021] 2 SLR 890 at [114]. 112 [2021] 2 SLR 782. 113 1999 Rev Ed. 114 2020 Rev Ed. 115 Oxley Consortium Pte Ltd v Geetex Enterprises Singapore (Pte) Ltd [2021] 2 SLR 782 at [112]. 116 Oxl......

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