Tan Chiang Brother`s Marble (S) Pte Ltd v Anderson Land Pte Ltd (Lum Chang Building Contractors Pte Ltd, Third Party)

• Jurisdiction: Singapore
• Judgment Date: 06 August 1999
• Date: 06 August 1999
• Docket Number: Suit No 1414 of 1995 (Summons in Chambers No 3610 of 1999)
• Court: High Court (Singapore)

Tan Chiang Brother's Marble (S) Pte Ltd

Plaintiff

and

Anderson Land Pte Ltd (Lum Chang Building Contractors Pte Ltd, third party)

Defendant

[1999] SGHC 205

Choo Han Teck JC

Suit No 1414 of 1995 (Summons in Chambers No 3610 of 1999)

High Court

Arbitration–Award–Recourse against award–Arbitration directed by court–Whether s 23 (2) or s 28 of the Arbitration Act (Cap 10, 1985 Rev Ed) applicable–Sections 22, 23 (2), 28 Arbitration Act (Cap 10, 1985 Rev Ed)–Arbitration–Award–Recourse against award–Setting aside–When application to set aside must be made–Whether court can exercise discretion to extend time

The plaintiff (“Tan Chiang”) was the nominated subcontractor while the defendant (“Anderson Land”) was the developer of a condominium. The main contractor (“Lum Chang”) was joined as a third party in the suit. At the start of the trial Lum Chang made an oral application for the matter to be arbitrated and the court proceedings be stayed pending arbitration. The judge ordered the court proceedings to be stayed and the matter be referred to arbitration.

The arbitrator delivered an interim award. Lum Chang, being dissatisfied with the award, applied under s 28 of the Arbitration Act (Cap 10, 1985 Rev Ed) (“the Act”) for leave to appeal against the award. The other parties did not contest the application. However, later Lum Chang filed the present summons in chambers for a declaration that leave of court was not required to appeal against the arbitrator's award because s 28 did not apply. Lum Chang argued that as the arbitration was directed by the court under s 22 of the Act, a party who was dissatisfied with the award may apply to the High Court to set aside the award under s 23 (2) of the Act. It was submitted that s 28 provided the avenue for appeals against arbitration awards was where arbitration was effected under an arbitration agreement, as opposed to an arbitration directed by the courts under s 22.

Held, granting the declaration but refusing an extension of time to set aside the award:

(1) The matter was ordered by the court under s 22 of the Act to proceed to arbitration. The court orders could not be read as representing a written agreement by the parties. The orders of the court followed the application. Under such circumstances, an aggrieved party may apply to the High Court to set aside the arbitration award: at [6].

(2) For an arbitration governed by s 22 of the Act, a dissatisfied party had to apply to set aside the award under s 23 (2) within a reasonable time, which in the absence of any express statutory provision, would be 21 days from the date of the award: at [7].

(3) The court could not exercise its discretion to extend time to file an application to set aside the award when the time to do so had lapsed. If the dissatisfied party did not apply to set aside the award within time, the award would stand as a judgment of the court and it would thus be outside the powers of a puisne judge to rule upon its correctness. The only recourse for Lum Chang was to apply to the Court of Appeal for leave to appeal out of time against the award: at [10].

Arbitration Act (Cap 10,1985 Rev Ed, repealed)ss 22, 23 (2), 28 (1), 28 (7) (consd);s 2

Rules of Court (Cap 322, R5, 1997 Rev Ed)O 69r 4 (2)

Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed)

Arbitration Act 1889 (c 49) (UK)

Arbitration Act 1979 (c 42) (UK)

Supreme Court of Judicature (Consolidation) Act 1925 (c 49) (UK)

Alvin Yeo and Paul Sandosham (Wong Partnership) for the defendant

Woo Bih Li SC (Bih Li & Lee) and John Chung (Donaldson & Burkinshaw) for the third party.

Judgment reserved

Choo Han Teck JC

1 This matter began as an action by the plaintiffs Tan Chiang Brother's Marble (S) Pte Ltd (“Tan Chiang”), who were at the material times a nominated subcontractor of the third party. The defendants Anderson Land Pte Ltd (“Anderson Land”) were at all material times the developers of a condominium at 18 Anderson Road. The main contractors were Lum Chang Building Contractors Pte Ltd (“Lum Chang”). They were joined as the third party in the suit. At the start of the trial before me on 4 August 1997 counsel for Lum Chang made an oral application for the matter to be arbitrated and the court proceedings be stayed pending the arbitration. In the meantime, Lum Chang also commenced arbitration proceedings against Anderson Land (among other things, for damages for delay) but that arbitration would not have involved Tan Chiang, and thus one of the advantages of having...