Anwar Siraj and another v Teo Hee Lai Building Construction Pte Ltd

Quentin Loh J:

[1] The plaintiffs (“Plaintiffs”) have filed a notice of appeal against my decision on 27 October 2011 which gave leave to an arbitrator, Mr Chow Kok Fong, (“Mr Chow”) appointed by this court in Originating Summons No 1200 of 2008 (“OS 1200”), to withdraw from his appointment. The time for the Plaintiffs to file their notice of appeal against my decision has long passed. There is no effective defendant to challenge the Plaintiffs because the defendant (“Defendant”) stopped attending these proceedings at an early stage, citing financial constraints.

(a) I also refused the Plaintiffs’ other applications in relation to the provision of security for the arbitration by the Defendant.

[4] Unfortunately, the arbitration before Mr Chow also became stormy for two reasons. First, because of problems in transferring the documents from the former arbitrator, Mr John Ting, to Mr Chow. Secondly, because the relationship between Mr Chow and the Plaintiffs also deteriorated, and I hasten to add not due to any fault of Mr Chow.

[5] The former problem arose because Mr John Ting had possession of the documents filed with him for the first arbitration hearing. This resulted in the Plaintiffs commencing OS 1179 of 2010 (“OS 1179”) on the 22 November 2010, naming Mr John Ting as the defendant, for the retrieval of these documents and drawings. The matter came before me on 6 April 2011 and took a considerable time to sort out because of the acrimonious attitude taken by the parties. To be fair to the Plaintiffs, the documents were handed over to Mr Chow in a rather disorganised and incomplete state with poor indexing, resulting in the documents being handed over in batches. Also, the audio tapes had gone missing. The Plaintiffs made these complaints in their joint skeletal written submission (ASNK:1179/SUM 1333/JWS1) dated 27 October 2011 at para 30(f):

[7] The Plaintiffs complained that Mr John Ting transferred not only documents which were the Defendant’s documents submitted in the arbitration, but other documents of the Defendant; Mr Chow read those documents, which the Plaintiffs say he should not have, and therefore he was “corrupted” by considering all these other documents from the Defendant. The Plaintiffs alleged that Mr Chow received some 529 documents when he should only have received 129 documents (this latter figure was later increased to 135 documents). It was certainly no fault of Mr Chow’s that these documents came to him. It was the result of the Plaintiffs’ application for the handover of documents from Mr John Ting to Mr Chow.

[8] The Plaintiffs also alleged that Mr Chow gave directions that were somehow unfair or incorrect and disagreed with his directions on the procedure for the hearing. Mr Siraj submitted on 27 October 2011 that:

[9] How the second arbitration before Mr Chow also descended into fractiousness and acrimony is well documented in a letter dated 3 October 2011 written by Mr Chow to the court setting out his reasons for applying for leave to be discharged as the appointed arbitrator. It is worth setting out most of this letter as it documents the perfectly normal directions issued by Mr Chow in the beginning, how the receipt of documents from Mr John Ting to Mr Chow became a problem, how the Plaintiffs started to disagree with Mr Chow and his conduct of the arbitration, the ensuing uncalled for personal and unwarranted attacks made by the Plaintiffs against Mr Chow, and the language in which the Plaintiffs came to express themselves:

[10] On the 27 September 2011, the Plaintiffs sent a letter to the Court, attaching Mr Chow’s letter of 23 September 2011 with their comments thereon and stated:

(a) This letter was copied to Mr Chow and it included the following note to Mr Chow at the end of their letter:

[11] I heard the parties on 27 October 2011. The transcript will show that the Plaintiffs had no objection to Mr Chow’s application to be discharged. I asked them twice and the Plaintiffs affirmed both times that they were agreeable to his withdrawal:

[12] I accordingly, I made the following orders for OS 1200/2010 on 27 October 2011:

[13] On 8 November 2011, the Plaintiffs sent a letter requesting further argument with respect to OS 1179; this letter was headed:

Summons No. 1333/2011/B was an application under OS 1179 for Mr John Ting to submit to cross-examination by the Plaintiffs. In this letter, after the 7-paragraph introductory remarks, (which noted that Mr Chow, a “non-party” to OS 1179, was allowed to remain in Chambers and that the Hearing for Directions was a joint hearing with OS 1200 where the “…learned Judge made certain ‘final’ decisions on some of the matters in both OSs”), the Plaintiffs went on to make observations and points on and against my costs orders in OS 1179, asked to be given a fair and reasonable opportunity to respond and rebut the OS 1179 Defendant’s affidavits and to present their case in OS 1200, set out their views on Mr Chow’s handling of the arbitration and what transpired, accused Mr Chow of sending “…outrageously blatant” letters that were “…designed to generate a paper trail so as to opt out of the Arbitration” and wanted to be allowed to file “…a complete set of correspondence with Mr Chow Kok Fong” as it would be grossly unfair on them to allow Mr Chow’s discharge without placing on record all the evidence which “…negates the allegations made by Mr Chow Kok Fong against the [Plaintiffs]”.

[14] The above took up most of the 12-page 68 paragraph letter. There was, within those 12 pages, two paragraphs which stated that further arguments were required to “regularize” the “joint hearing of OS1179/2010/P and OS 1200/2010/P” and further explained that:

(a) the court should make a specific ruling that it was considering the request of Mr Chow to discharge himself on the basis of the “liberty to apply” granted to the parties in OS 1200; and

(b) such a specific ruling is “essential to avoid any doubts or complications in the future particularly any intended action against John Ting Kang Chung for having messed up not one, but two arbitrations.”

In this letter, the Plaintiffs did not say they disagreed with the discharge of Mr Chow as arbitrator. Their concern was to seek a specific ruling that the basis of the request by Mr Chow to be discharged was the liberty to apply order in OS 1200. Their main concern were the matters in relation to OS 1179 and their wish to put all the correspondence between them and Mr Chow “on record” which they alleged would prove Mr Chow’s unfairness to them and a reimbursement of the deposit paid to him.

[15] Pursuant to a Registry Notice for OS 1179, dated 2 March 2012, the parties, viz, the Plaintiffs and Mr John Ting’s Counsel, Mr Daniel Chia, came before me on 20 March 2012:

(a) Mr Chia raised the preliminary objection that the Plaintiffs were out of time as I would have been deemed to have certified no further argument on 22 November 2011 (14 days after the Plaintiffs’ 8 November 2011 letter). However Mr Chia very kindly indicated he was willing to deal with the Plaintiffs’ arguments nonetheless since they were litigants in person.

(b) The Plaintiffs went through the history of the matter and argued that the costs I awarded against Mr John Ting was inadequate and why I should allow them to cross-examine Mr John Ting. At the end of the hearing, I said I would think about the costs awarded to the Plaintiffs for OS 1179, in the meanwhile the parties were to try and agree the disbursements, failing which I would tax them and I refused the Plaintiffs’ application to cross-examine Mr John Ting.

(c) Although what was before me was OS 1179, the Plaintiffs did say at the beginning of the hearing that:

(i) the “joint hearing” of OS 1200 and OS 1179 should be “regularised”;

(ii) they had believed that the 27 October 2011 hearing was a directions hearing only;

(iii) they should be given a fair and reasonable opportunity to present their case in OS 1200;

(iv) they would like the hearing of OS 1200 be on another day with notice being given to the Defendant in OS 1200 and that Mr Chow be asked to attend as well; and

(v) they did not “botch” up the second arbitration.

(d) The Plaintiffs then went on with their arguments set out at [15(b)] above.

As time had run out, I directed that another half day be fixed for hearing OS 1200. In doing so, it should be noted that I did not rule that I was going to hear further arguments, but to fix another time for the Plaintiffs to explain what they wanted “regularised”. It would not have been right after such a lapse of time, to do so without hearing the other party. Given the Plaintiffs’ views in their letter of 8 November 2011, I had formed the view that making all the correspondence between the Plaintiffs and Mr Chow “part of the record” was totally unnecessary. What had been written by the parties was existing evidence if it was ever necessary to produce them, whether they formed part of the record or not. What the Plaintiffs said to me at [15(c)] above was, almost a by-the-way comment, before they went on with their arguments on OS 1179

[16] The parties came before me on 9 July 2012. As the Registry Notice included both OS 1200 and OS 1179 in its heading, Mr Edwin Lee (“Mr Lee”), counsel for Mr Chow turned up. The Plaintiffs again said rather vaguely that Mr Chow should not apply for discharge under OS 1200 and they needed to “regularise” that. Because Mr Chow was not served a copy of the Plaintiffs’ 8 November 2011 letter and Mr Lee asked that a copy be served on him so that he could take instructions, I directed that the Plaintiffs serve a copy of the 8 November 2011 letter on Mr Lee. Mr Lee made the point that the Plaintiffs had not filed any appeal against my decision given on 27 October 2011 and Mr Lee asked for, and I gave, my confirmation that this was not to hear further arguments on that order, as the time to do so had long passed, but to understand what the Plaintiffs was saying had to be done to “regularise” Mr Chow’s discharge.

[17] The next hearing was on 27 July 2012 where the Plaintiffs and Mr Chow’s counsel, Ms Looi Ming Ming (“Ms Looi”), appeared before me. The Defendants, as usual, did not appear. At this hearing I took quite some time to get exactly what the Plaintiffs were saying should have been done and what in their view, needed “regularising”. They argued that Mr Chow’s application on 3 October 2011 was merely an application for leave to apply for leave to be discharged. The order of 27 October 2011 was made “in breach of natural justice”. Besides other arguments, Ms Looi emphasised that the court had not granted leave for further arguments with respect to the 27 October 2011. As the Plaintiffs had made references to the numerous hearings and what they said apparently happened, I told the parties that I had to trawl through considerable history, affidavits, submissions and hearings (with transcripts where available) arising from this long drawn-out matter to check whether what the Plaintiffs alleged was correct and that I would need some time to do so. I adjourned the matter for that purpose.

[18] The Plaintiffs’ submissions, if I understand them correctly, may be briefly summarised as follows:

(a) With Mr Chow’s acceptance of his appointment as arbitrator, OS 1200 had been concluded and the Originating Summons cannot be arbitrarily revived.

(b) In any case, Mr Chow being a non-party had no locus standi to intervene in the OS 1200 proceedings.

(d) The joint hearing of OS 1200 and OS 1179 together on 27 October 2011 had taken the Plaintiffs by surprise and resulted in proceedings becoming excessively complicated and convoluted in breach of natural justice.

[19] In order to “regularize” the proceedings, the Plaintiffs sought a declaratory judgment that Mr Chow ought to file a fresh summons to be heard on his own application to be discharged as arbitrator.

[20] A preliminary point I must make is that what took place on 27 July 2012 was not to hear further arguments but to understand what the Plaintiffs were complaining about or what they were asking the court to “regularize”. This is evident from the transcripts of the hearing on 9 July 2012 which preceded the 27 July 2012 hearing. Accordingly, I confirmed that Mr Chow was validly discharged on 27 October 2011 and stated:

I now set out the reasons for my decision in more detail.

[22] Moreover, it is clear from their letter of 8 November 2011 that the Plaintiffs wanted to make further arguments on the matters canvassed in OS 1179 and the orders I had made there on 27 October 2011. The Plaintiffs did include in their letter of 8 November 2011 a request that the court “regularize the procedure” in OS 1200, but that was certainly not a request for further arguments. If for whatever reason they subsequently disagreed with my decision, they could have appealed against my order discharging Mr Chow. Their time to do so ran out on 28 November 2011.

[23] Even if I assume for the purpose of argument, that the Plaintiff’s letter of 8 November 2011 was also a request for further arguments in relation to OS 1200, they have the difficulty of overcoming O 56 r 2(2) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“Rules of Court”) which provides:

The 14 day period elapsed with no response from this court. On a plain reading of the provision, I would be deemed to have certified that I required no further arguments in respect of the 27 October order in relation to OS 1200 on 22 November 2011 (14 days after 8 November 2011).

[24] Had the Plaintiffs been dissatisfied with the 27 October order, the appropriate recourse would have been to file a notice of appeal. Time to file the same would run from the date the Judge is deemed to have certified that he requires no further arguments: see s 28B (b)(ii) Supreme Court of Judicature Act (Cap 322, 2007 Revised Edition). The time, therefore, for the Plaintiffs to file an appeal against my 27 October 2011 order with respect to Mr Chow has long passed as they should have filed their appeal within one month after 22 November 2011.

[25] In any case, I was of the view that Mr Chow was validly discharged on 27 October 2011 and that there was no merit in the Plaintiffs’ contention that Mr Chow, being a non-party to OS 1200, should have first sought to intervene before filing a fresh application for leave to be discharged.

[26] A preliminary issue arises in this instance - did Mr Chow have the right to resign his appointment in the first place? The arbitrator’s rights and obligations are derived from a conjunction of contract and status, his acceptance of appointment gives rise to a trilateral contract, in which the arbitrator becomes a party to the previously bilateral arbitration agreement between the parties: see Browne-Wilkinson VC in K/S Norjarl A/S v Hyundai Heavy Industries Co Ltd [1992] 1 QB 863, at 884. In Robert M Merkin’s Arbitration Law (Lloyd’s of London, Looseleaf ed., 1991 - ) at [10.86], it was stated:

[27] Several texts discuss the right of an arbitrator to resign from his appointment, see eg, Gary Born, International Commercial Arbitration Vol.1 (Kluwer Law International, 2009) (“Gary Born”) at Chapter 12, pp 1634–1638 where the learned author states at p 1634:

A footnote to that proposition refers to the AAA/ABA Code of Ethics Canon I (H) which refers to unanticipated circumstances that would render it impossible or impracticable to continue as giving rise to right to withdraw. The learned author goes on in a footnote at p 1635 to reference various national laws that allow an arbitrator to resign for good cause, just cause, justifiable reasons or reasonable cause. The labels may differ but the principle is clear.

[28] I have no doubt that in the circumstances that have arisen here, Mr Chow had good and justifiable cause to resign. It was clear to me by 27 October 2011 that the Plaintiffs’ relationship with Mr Chow had deteriorated and become very acrimonious (again I emphasize that this was not in any way caused by Mr Chow). This was captured in contemporaneous correspondence between the Plaintiffs and Mr Chow leading up to his asking for leave to discharge himself as the arbitrator.

[29] In the Plaintiffs’ Letter of 20 September 2011, the Plaintiffs accused Mr Chow of having “ignored and/or neglected and/or refused to respond” to letters that were previously sent to him (at para 1). The Plaintiffs alleged that Mr Chow had “selected to ignore the matters and/or neglected to act fairly, impartially, expeditiously and economically for the resolution of the disputes at hand” (at para 7).

[30] At para 6 of the same letter, the Plaintiffs listed several steps which they demanded Mr Chow take before the final hearing. The list included a demand for a written assurance to the parties that he would not have any sight of the “corruptive” documents improperly and unlawfully handed over by the previous arbitrator, Mr John Ting, and that Mr Chow sealed the “corruptive” documents in the presence of the parties.

[31] The Plaintiffs further implied at paras 8 to 9 that Mr Chow had not carried out his duties as the arbitrator with due diligence in the light of his refusal to respond to the claimants’ letters and submissions on the issue of “corruptive” documents from the previous arbitration:

[32] The Plaintiffs proceeded to request that Mr Chow give his reasons for requesting a further deposit of $40,000 and alluded to the possibility of taking out an application to tax Mr Chow’s fees if they were not satisfied with his response: at paras10, 11 and 17. The Plaintiffs averred at para 14 that Mr Chow’s demand for further deposits of $40,000 “may be construed as an act of oppression, and, indeed, obstruction to the course of justice.”

[33] The Plaintiffs concluded their letter as follows:

[34] The Plaintiffs wrote another letter dated 23 September 2011 in response to Mr Chow’s letter dated 16 September 2011. In this letter, the Plaintiffs cast doubt on the arbitrator’s impartiality and accused the tribunal of “entering further into the arena and becoming embroiled in the fray” as well as “taking sides”, which have placed them in a “disadvantageous position” contrary to natural justice (at paras 4 and 5). In this regard, the Plaintiffs stated their position at para 10 of their letter:

[35] The Plaintiffs further averred that Mr Chow’s refusal to deal with the issue of “corruptive” documents would render the current proceedings “null and void” and stated in this regard at para 15:

[36] The Plaintiffs concluded, “[w]e do not expect the Tribunal to add to our sorrows but rather to resolve the disputes with the sense of justice and fairness”.

[37] From the above correspondence, it was apparent that the Plaintiffs had lost their trust, quite unjustifiably I must add, in Mr Chow’s ability to conduct the arbitration in a fair and efficacious manner. The Respondent had taken no part in the arbitration proceedings. It was in this context that Mr Chow wrote to the Plaintiffs on 23 September 2011 giving notice of his intention to apply for leave from the court to discharge himself as the arbitrator unless the Plaintiffs gave reasons otherwise. Moreover, as noted above, it should be emphasised that the Plaintiffs never objected to Mr Chow discharging himself as the arbitrator despite having been given several opportunities to do so.

[38] I further observe that the Plaintiffs continued to repeat their accusations against Mr Chow long after my order allowing Mr Chow to discharge himself as the arbitrator:

(a) in their letter dated 08 November 2011 seeking further arguments before myself:

(b) in their joint written submissions tendered for a hearing on 9 July 2012 (“ASNK 1200/JWS2”):

(c) in their supplementary written submissions dated 25 July 2012 for a hearing on 27 July 2012 (“ASNK 1200/JWS 2A”):

[39] From the evidence before me, none of the Plaintiffs’ accusations against Mr Chow are valid. I cannot accept that someone with Mr Chow’s experience and knowledge can become “corrupted” by reading documents that are not relevant nor admissible. Importantly, the Plaintiffs cannot dictate to the arbitrator how he should run the arbitration. On the contrary, the procedural orders made and how Mr Chow conducted the arbitration thus far, as set out in Mr Chow’s letter of 3 October 2011, cannot be criticised on any score.

[40] I have had occasion to comment in other judgments on the misconceptions of the Plaintiffs, see Anwar Siraj and another v Attorney General [2010] SGHC 36 (OS 1213 of 2009) and in Ting Kang Chung John v Teo Hee Lai Building Constructions Pte Ltd and others [2010] 2 SLR 625 where I said at [63] and would repeat:

[41] I have no doubt in the circumstances that Mr Chow had the right to resign. He was the subject of numerous unfounded accusations and allegations, many of which were not only unwarranted but also scurrilous. They were couched in very strong and aggressive terms which were quite uncalled for. I turn now to consider the proper procedure for him to resign as arbitrator.

[42] Was the procedure adopted by Mr Chow wrong? The SIA Arbitration Rules (2 ed, Reprint August 2013) do not prescribe any particular mode for an arbitrator to resign from his appointment. Our Arbitration Act (Cap 10, 2002 Rev Ed) is also silent on the procedure for an arbitrator to resign. I have no doubt that in the absence of any set procedure in the institutional rules, national laws or the contract setting out the terms of appointment, a letter to the parties clearly stating that the arbitrator wishes to resign or resigns is sufficient. This was held to be the case in Hong Kiat Construction Pte Ltd v Ngiam Benjamin [2009] SGHC 158 where a communication by the arbitrator stating that he intended to resign if he did not hear from either of the parties within 7 days from the date of his letter to the parties was held to have taken effect according to its terms.

[44] I therefore find that Mr Chow did not need to ask the court for leave to withdraw. He could have effectively done so by a simple letter. However, he chose to do so out of respect for the court which had appointed him. Nevertheless, assuming that he did have to ask for leave from court, I turn now to consider the Plaintiffs’ contention that leave had been irregularly obtained.

[45] With respect to non-parties, O 45 r 9(1) of the Rules Of Court provides:

The question that follows from this is whether the order in question (“ORC 592/2011”) appointing Mr Chow as the arbitrator in respect of the disputes arising between the parties was an order obtained by or made in his favour.

[46] The terms of the order are set out at [3] above. I further indicated that there would be liberty to apply “if Chow Kok Fong says he cannot for some reason or other be the Arbitrator”.

[47] I agree with the Plaintiffs that the “liberty to apply” order is only intended to supplement the main orders in form and convenience so that the main orders may be carried out and may not be used to vary the order of the court: see Tan Yeow Khoon and another v Tan Yeow Tat and another [1999] 3 SLR(R) 717, Koh Ewe Chee v Koh Hua Leong and another [2002] 1 SLR(R) 943 and Kamla Lal Hiranand v Lal Hiranand [2003] 3 SLR(R) 198. Therefore, taken together with the first order appointing Mr Chow as the arbitrator, the “liberty to apply” order appeared to be one granted to the parties to seek a fresh appointee should Mr Chow decline his appointment by the court under OS 1200; its scope probably did not extend to a situation where matters arising after his appointment led to the arbitrator applying for leave from court to discharge himself.

[48] Nevertheless, O 2 r 1 of the Rules of Court provides that any failure to comply with the requirements of the Rules of Court is to be treated as an irregularity and will not nullify the proceedings, any step taken in the proceeding, or any document, judgment or order therein. The court may make any order it deems fit to correct the irregularities and generally the courts have taken a liberal approach in exercising this discretion: see Sinwa SS (HK) Co Ltd v Morten Innhaug [2010] 4 SLR 1. However, the courts would refuse to grant such a remedy where: (a) the curative approach would result in prejudice; (b) where the nature of the error is so serious or fundamental that it cannot, in principle, be validated; (c) where the mandatory nature of the rule breached may be construed as excluding cure; (d) where the rule is sufficiently comprehensive to govern non-compliance; and (e) where the substantive application, if made, would have failed: see Jeffery Pinsler, Principles of Civil Procedure (Academy Publishing, 2013) at para 01.040. None of these apply here. In the circumstances, it was clear to me that the irregularity was one which could be cured.

[49] It would not only have been an unnecessary waste of time and money but also oppressive for the Plaintiffs to require Mr Chow to intervene as a party and then take out a fresh application for leave to discharge himself in light of the unusual circumstances and since Mr Chow’s discharge was what they clearly wanted. Most importantly, the Plaintiffs did not suffer any prejudice thereby.

[50] The Plaintiffs’ allegation that there has been a breach of natural justice in hearing OS 1200 and OS 1179 together on 27 October 2011 was also groundless. First, the Plaintiffs had been clearly put on notice that Mr Chow was applying to discharge himself as the arbitrator from his letter dated 3 October 2011, on which they were copied. Secondly, the Plaintiffs’ position and stand in the matter had been fully set out in the correspondence between the parties, most if not all of which were copied to the Court or indeed in submissions or affidavits. Thirdly, the Plaintiffs had also been put on notice that both OS 1200 and OS 1179 were being heard together on 27 October 2011. The Supreme Court Registry had sent the parties letters dated 12 September 2011 and 19 October 2011 in relation to the hearing of OS 1179 and a letter dated 24 October 2011 in relation to the hearing of OS 1200. Finally, it was clear that the Plaintiffs knew that the two matters were being heard together at the beginning of the hearing on 27 October 2011. I have already set out above what transpired at the 27 October 2011 hearing. The Plaintiffs were given ample opportunity to be heard on Mr Chow’s application for discharge; they not only had no objection to his resignation, they clearly said they did not wish to have him as the arbitrator.

[51] For the above reasons, I clarified at the 12 August 2013 chamber hearing, that there was nothing to be done to “regularise” the procedure and my earlier order that Mr Chow Kok Fong be allowed to discharge himself as the arbitrator stands. I note again that the Plaintiffs are hopelessly out of time to appeal against the order made by me on 27 October 2011.