UES Holdings Pte Ltd v KH Foges Pte Ltd

• Jurisdiction: Singapore
• Judge: Quentin Loh J
• Judgment Date: 29 May 2017
• Neutral Citation: [2017] SGHC 114
• Plaintiff Counsel: Ian de Vaz, Tay Bing Wei and Lau Zi Hui (WongPartnership LLP)
• Docket Number: Originating Summons No 1271 of 2016
• Date: 29 May 2017
• Hearing Date: 01 February 2017
• Subject Matter: Adjudication,Statutes and regulations,Natural justice,Dispute resolution,Building and Construction Law
• Year: 2017
• Defendant Counsel: Monica Neo Kim Cheng and Karen Oung Hui Wen (Chan Neo LLP)
• Court: High Court (Singapore)
• Citation: [2017] SGHC 114
• Published date: 08 December 2017

Quentin Loh J:

The plaintiff, UES Holdings Pte Ltd (“the Plaintiff”), applied by this Originating Summons (“OS”) to set aside an adjudication determination (“the Adjudication Determination”) rendered under the Building and Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed) (“the Act”).

Introduction

The Plaintiff and the defendant, KH Foges Pte Ltd (“the Defendant”), are Singapore-incorporated companies which carry on the business of building and construction.

On 25 February 2014, upon entering into a contract with the Public Utilities Board, the Plaintiff entered into a sub-contract (“the Sub-Contract”) with the Defendant for the provision of works.¹

On 25 August 2016, the Defendant served a progress payment claim (“the Payment Claim”) on the Plaintiff for the sum of S$1,642,751.13.² On 14 September 2016, the Plaintiff responded to the Payment Claim with a payment response (“the Payment Response”) which indicated that, far from being entitled to the sum sought in the Payment Claim, the Defendant was liable to pay the Plaintiff S$91,371.23.³

On 28 September 2016, the Defendant notified the Plaintiff by letter of its intention to apply for adjudication of their dispute regarding the Payment Claim (“the Notice”).⁴ Subsequently, on 30 September 2016, the Defendant’s solicitors lodged an adjudication application (“the Adjudication Application”) with the Singapore Mediation Centre (“the SMC”).⁵

On 3 October 2016, the adjudicator (“the Adjudicator”) was appointed.⁶ Notice of his appointment was given to the parties on 4 October 2016.⁷ The Adjudicator then called for a preliminary conference of the parties, which was held on 12 October 2016 (“the Preliminary Conference”); subsequently, the substantive adjudication conference was held on 20 and 21 October 2016 (“the Merits Conference”).⁸ Then, on 8 November 2016, the Adjudicator rendered the Adjudication Determination, in which he ordered the Plaintiff, inter alia, to pay the Defendant the sum of $1,199,179.96.⁹

On 8 December 2016, the Plaintiff filed this OS for the court to set aside the Adjudication Determination. The Plaintiff submitted that the Adjudication Determination should be set aside on three (alternative) grounds:¹⁰ the Adjudicator had violated s 16(3)(a) and/or s 16(3)(c) of the Act due to apparent bias on his part (“the Apparent Bias Issue”); the Adjudication Application had been lodged out of time (“the Timing Issue”); and the Notice had failed to comply with reg 7(1)(f) of the Building and Construction Industry Security of Payment Regulations (Cap 30B, Rg 1, 2006 Rev Ed) (“the Regulations”) and was therefore defective (“the Content Issue”).

I address each of these grounds in turn.

The Apparent Bias Issue

I first set out the parties’ arguments on this issue.

The Parties’ Arguments

The Plaintiff submitted that the Adjudication Determination was tainted with apparent bias, in the light of the following: the Adjudicator had previous dealings with one Mr Foo Hee Kang (“Mr Foo”), Resource Piling Pte Ltd (“RPPL”), and companies related to RPPL.¹¹ Mr Foo participated at the Preliminary and Merits Conferences (“the Conferences”) as a representative of the defendant, and had been the Managing Director (“the MD”) of RPPL (see [21(a)] below); the Adjudicator had failed to fully disclose his relationship with Mr Foo, RPPL and RPPL’s related companies;¹² and the Adjudicator had not been forthcoming in replying to queries for details about his relationship with Mr Foo.¹³ The Plaintiff also submitted that it had not waived its right to challenge the Adjudication Determination for apparent bias, and was fully entitled to do so.¹⁴

The Defendant submitted that no apparent bias arose on the facts.¹⁵ The Defendants further submitted that the Plaintiff had waived its right to challenge the Adjudication Determination on the basis of apparent bias.¹⁶

To evaluate these submissions, I now set out the facts which are crucial to the determination of the Apparent Bias Issue. These relate to the events at the Conferences, and the Adjudicator’s relationship with Mr Foo, RPPL and RPPL’s related companies.

The Conferences

The parties presented conflicting accounts of what had occurred at the Conferences. During the hearing, I invited the Plaintiff’s counsel, Mr Ian de Vaz (“Mr de Vaz”), and the Defendant’s counsel, Ms Monica Neo (“Ms Neo”), who had attended the Conferences, to let me have the benefit of their notes of proceedings at the Conferences which could have assisted me in my findings.¹⁷ However: Mr de Vaz said that, while he had handwritten notes of what was said at the Merits Conference, “apparent bias is established even on what is common between the parties”.¹⁸ To be complete, I mention the following further comments by Mr de Vaz in relation to matters which I discuss at [17]-[18] below: Mr de Vaz later added that his notes reflected that the Adjudicator had said “we have met before” or words to that effect, as set out in his letter dated 14 November 2016 (see [22] below),¹⁹ and the Adjudicator had not alluded to “previous dealings” at the Merits Conference.²⁰ When I asked Mr de Vaz why, in his earlier letter dated 10 November 2016 (see [21] below), he had stated that the Adjudicator had said that he was “acquainted with and/or previously had dealings with [Mr Foo]”,²¹ Mr de Vaz replied that “the idea was to be as expansive as possible” in that letter.²² Ms Neo said that she had no notes of what the Adjudicator had said at the commencement of the Merits Conference.²³ I thus proceed to determine the facts based on the affidavit and documentary evidence before me.

On 11 October 2016, one day before the Preliminary Conference, the Defendant’s solicitors wrote to the Adjudicator by email to inform him of the persons who would be attending the Preliminary Conference on the Defendant’s behalf.²⁴ The email listed Mr Foo as one of the Defendant’s representatives.

On 12 October 2016, the Preliminary Conference took place. The parties dispute whether the Adjudicator had stated, during the Preliminary Conference, that he was acquainted with Mr Foo. According to Mr Foo, the Adjudicator had made such a statement at the end of the Conference in the presence of both parties’ solicitors.²⁵ However, the Plaintiff denied this.²⁶

I note that the Adjudicator’s emails (see [21] and [23] below) support the Plaintiff’s account of what had transpired at the Preliminary Conference: In his email dated 10 November 2016, the Adjudicator stated that he had mentioned his previous dealings with Mr Foo “[a]t the very commencement of the Merits Conference” [emphasis added].²⁷ The Adjudicator did not suggest that he had mentioned such dealings on an earlier occasion, at the Preliminary Conference. In his email dated 15 November 2016, in the course of providing a full response to the Plaintiff’s solicitors’ queries in their letter dated 14 November 2016 (see [22] below), the Adjudicator did not dispute the Plaintiff’s solicitors’ claim in the said letter that he had made no remarks or disclosure in relation to Mr Foo at the Preliminary Conference.²⁸ I therefore find that the Adjudicator did not state that he had a prior relationship or was acquainted with Mr Foo at the Preliminary Conference.

The Merits Conference took place on 20 and 21 October 2016. Again, the parties disagree about what occurred at the start of the Merits Conference: The Plaintiff averred that the Adjudicator had simply remarked “we have met before” or words to that effect, after calling out Mr Foo’s name while reading out the names of all the attendees.²⁹ The Adjudicator had simply made “a casual or passing remark in the course of “meeting and greeting” the parties”.³⁰ By contrast, the Defendant’s position was that the Adjudicator had stated that he was acquainted with Mr Foo due to some previous dealings and that he wanted to make sure that parties had no problems with this fact (or words to that effect).³¹

I note that the Plaintiff’s solicitors’ letter to the Adjudicator dated 10 November 2016 (see [21] below) is not consistent with the Plaintiff’s account of what had occurred at the Merits Conference:³² In that letter, the Plaintiff’s solicitors stated that their notes of proceedings revealed that the Adjudicator had remarked that he was “acquainted with and/or previously had dealings with one of the [Defendant’s] representatives” [emphasis added]. Moreover, in that letter, the Plaintiff inquired into how long the Adjudicator had known Mr Foo and the nature of his relationship with Mr Foo. These would not have been natural queries if the Adjudicator had merely said that he and Mr Foo had “met before”.

Moreover, the Adjudicator’s account supports the Defendant’s version of the events. In his email dated 10 November 2016, the Adjudicator stated that he had informed parties, at the commencement of the Merits Conference on 20 October 2016, that he was acquainted and had previous dealings with Mr Foo.³³

I therefore find that the Adjudicator did remark, at the beginning of the Merits Conference, that he had previous dealings with Mr Foo. However, what is also clear, being common to both the Plaintiff’s and the Defendant’s accounts, and I so find, is that the Adjudicator was not asked, nor did he offer any elaboration on, the nature and details of his relationship with Mr Foo at the Merits Conference.

The Adjudicator’s Associations

On 10 November 2016, two days after the Adjudicator had rendered the Adjudication Determination, the Plaintiff’s solicitors wrote to the Adjudicator to seek details of his relationship with Mr Foo.³⁴ The Adjudicator replied by email later that evening. In the email, the Adjudicator stated the following:³⁵ The Adjudicator had become acquainted with Mr Foo when he had acted as counsel for RPPL in litigious matters, when Mr Foo was the MD of RPPL. However, his last dealing...