Trustee of the estate of Tay Choon Huat, deceased v Soon Kiat Construction & Maintenance Pte Ltd

• Jurisdiction: Singapore
• Judge: Andre Maniam JC
• Judgment Date: 06 October 2020
• Neutral Citation: [2020] SGHC 212
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 798 of 2020
• Year: 2020
• Published date: 08 October 2020
• Hearing Date: 01 October 2020
• Plaintiff Counsel: Tan Jin Yong and Yang Yung Chong (Lee & Lee)
• Defendant Counsel: Ong Lian Min David and Barnabas Cho Jen Wei (David Ong & Co)
• Subject Matter: Building and Construction Law,Dispute resolution,Adjudication,Statutes and regulations,Building and Construction Industry Security of Payment Act
• Citation: [2020] SGHC 212

Andre Maniam JC: Introduction

What a difference a “day” makes.

The sole issue in the present case was whether the defendant’s adjudication application (“AA”) was lodged one day late. This objection did not find favour with the adjudicator, and the adjudicator proceeded to make an adjudication determination (“AD”) against the plaintiff.

The plaintiff applied to court to set aside the AD, on the basis that the AA had been made late.

I found that the AA was made late, and set aside the AD. These are my grounds of decision.

Background The Contract

The parties’ construction contract (the “Contract”) incorporated the Articles and Conditions of Building Contract (Lump Sum Contract, 9th Ed) of the Singapore Institute of Architects (the “SIA Conditions”). Clause 31(15)(a) of the SIA Conditions requires the Employer (ie, the plaintiff) to respond to an interim payment claim by the Contractor (ie, the defendant) by providing a payment response “within 21 days” after the interim payment claim is served on the Employer.

The payment claim in the present case was served on the plaintiff on 20 April 2020, and it provided the payment response on 15 May 2020. The AA was lodged on 28 May 2020.

The issue to be determined

The plaintiff contended that the word “day” in clause 31(15)(a) of the SIA Conditions included public holidays. The defendant disagreed, contending that “day” in that clause had the same meaning as defined in s 2 of the Building and Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed) (the “SOPA”), ie, unless the context otherwise requires: “‘day’ means any day other than a public holiday within the meaning of the Holidays Act (Cap. 126)”.

On the plaintiff’s case, with the contractual 21-day period for the payment response running from 20 April 2020 when the payment claim was served, the payment response was due on 11 May 2020. This meant that the dispute settlement period was from 12 to 18 May 2020 (per ss 12(2)(b) and 12(5) of the SOPA). After the end of the dispute settlement period, the defendant had to lodge its AA within seven days (under s 13(3)(a) read with s 12(2)(b) of the SOPA). As 24 and 25 May 2020 were public holidays (Hari Raya Puasa), and the SOPA definition of “day” would apply to that period, the plaintiff submitted that the AA had to be lodged by 27 May 2020.

On the defendant’s case, however, the public holidays on 1 May 2020 (Labour Day) and 7 May 2020 (Vesak Day) should be excluded from the computation of the due date of the payment response. On that basis, the payment response was only due on 13 May 2020, such that the defendant had to submit the AA by 29 May 2020. The defendant was entitled to lodge an AA (per s 12(2)(b) of the SOPA) as the plaintiff had failed to provide a payment response on time – whether the payment response was due on 11 or 13 May 2020, the plaintiff failed to meet the deadline and only provided the payment response on 15 May 2020. On the plaintiff’s case, the AA had to be lodged by 27 May 2020, but it was lodged one day late on 28 May 2020; on the defendant’s case, the AA was lodged in time.

Consequences of a late adjudication application

Section 16(2)(a) of the SOPA provides that an adjudicator “must reject” any adjudication application that is not made in accordance with s 13(3)(a) of the SOPA. It was common ground that if the AA had been made one day late, then the adjudicator was obliged to have rejected it, and that I should now set aside the AD.

Section 27(6) of the SOPA states that the grounds on which a party to an adjudication may commence proceedings under s 27(5) of the SOPA (which includes proceedings to set aside an adjudication determination) include, but are not limited to, the following:

…

(d) the adjudication application or the adjudication review application was not made in accordance with the provisions of this Act; (e) the adjudicator failed to comply with the provisions of this Act in making the adjudication determination;

…

It is settled law that an adjudication determination can be set aside for the adjudication application being made out of time: see YTL Construction (S) Pte Ltd v Balanced Engineering & Construction Pte Ltd [2014] SGHC 142 at [43]–[49], UES Holdings Pte Ltd v Grouteam Pte Ltd [2016] 1 SLR 312 at [51], UES Holdings Pte Ltd v KH Foges Pte Ltd [2018] 3 SLR 648 (“Foges”) at [83].

“Day” in the SIA Conditions

Article 9 of the SIA Conditions defines “payment claim” and “payment response” as having the same meaning and effect as those terms are used in the SOPA and the regulations thereunder; however, there is no similar express adoption of the definition of “day” as provided for in the SOPA.

The plaintiff contended that this reflected a deliberate decision by the drafters of the SIA Conditions not to define “day” the same way it is defined in the SOPA, whereas they did expressly define “payment claim” and “payment response” in accordance with the SOPA. This argument found favour in a previous adjudication matter, ATY Pte Ltd v ATZ Pte Ltd [2016] SCAdjR 39 (“ATY”) at [57]–[65], where the learned adjudicator held that “day” in clause 31(15)(a) of the SIA Conditions, as incorporated into the contract there, included public holidays.

The defendant sought to distinguish ATY on the basis that the letter of award in that case had used the term “calendar day” in relation to liquidated damages, whereas the appendix to the SIA Conditions had used the term “day” (when referring to the same matter). The adjudicator in ATY said this pointed to the parties regarding “calendar day” and “day” as synonymous (ATY at [68]–[71]). This was, however, only one of five points listed by the adjudicator to support his decision that “day” in that contract included public holidays (ATY at [57]–[73]), and it does not appear that the letter of award’s reference to “calendar day” tipped the scales.

The adjudicator in ATY also cited the decision in AFR Pte Ltd v AFS Pte Ltd [2011] SCAdjR 70 (“AFR”) where another learned adjudicator had likewise interpreted “day” in clause 31(15)(a) of the SIA Conditions (albeit the 7th Ed) to include public holidays (see [24]–[28] of AFR).

The defendant urged me not to follow the decisions in AFR and ATY. It argued that there was no need for article 9 of the SIA Conditions to expressly incorporate the definition of “day” in the SOPA – by incorporating “payment response”, the SIA Conditions incorporated not only what a payment response was under the SOPA, but also when a payment response had to be provided under the SOPA. I did not agree with this argument. The SIA Conditions made a “payment response” under the SIA Conditions what it was under the SOPA, but the SIA Conditions themselves made provision for when a payment response was to be provided, in the form of clause 31(15)(a). Article 9(d) of the SIA Conditions only states that “payment response” shall have the same “meaning and effect” as those words in the SOPA, which is a separate matter from when a payment response has to be provided under the SOPA.

In this regard, s 11(1) of the SOPA reads as follows: 11.—(1) A respondent named in a payment claim served in relation to a construction contract shall respond to the payment claim by providing, or causing to be provided, a payment response to the claimant — (a) by the date as specified in or determined in...