Fujitec Singapore Corp Ltd v GS Engineering & Construction Corp

Lee Seiu Kin J:

[1] In an adjudication determination dated 25 June 2015, as amended on 29 June 2015 (“the AD”), the adjudicator determined that the respondent was liable to pay the claimant a sum of $1,540,331.70 pursuant to a payment claim under a construction sub-contract (“the Contract”). On 14 July 2015 the applicant obtained leave of court to enforce the AD pursuant to s 27(1) of the Building and Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed) (“the Act”). On 28 July 2015, the respondent filed this summons no 3658 of 2015 (“SUM 3658/2015”) to set aside the AD. On 2 October 2015, after hearing counsel for the parties, I dismissed the respondent’s application. I now give the grounds for my decision.

[2] The respondent’s application was made on the following grounds:

(a) The adjudication application was filed prematurely.

(b) The application was invalid as it did not contain all the information prescribed.

I shall deal with each ground in turn.

[3] Under the first ground the issue turns on whether the expression “calendar day” used in the Contract includes or excludes public holidays. 3 April 2015 was the Good Friday public holiday in Singapore and this fell between the service of the payment claim and provision of the payment response. A determination one way or another would determine the issue in favour of the applicant or the respondent.

[4] The following are the relevant facts. The applicant (as claimant) served the payment claim on 1 April 2015, in accordance with the Contract. The respondent provided its payment response on 21 April 2015. On 28 April 2015, the applicant filed a notice of intention to apply for adjudication pursuant to s 13(2) of the Act. And on 30 April 2015, the applicant filed the adjudication application pursuant to s 13(1) of the Act.

[5] The respondent submitted that the adjudication application was filed prematurely on 30 April 2015 because the earliest that it could be filed was the following day, 1 May 2015. The respondent’s argument was as follows. Clause 2.3 of the Contract makes the following provision in relation to the period within which the payment response is to be provided:

[6] The respondent submitted that the term “calendar days” in this clause excludes public holidays. If that were the case, then the deadline to provide the payment response would be 23 April as 3 April was a public holiday. Under s 12(2) of the Act, the applicant is entitled to make an adjudication application after the end of the dispute settlement period (“DSP”). The DSP is defined in s 12(5) as “the period of 7 days after the date on which or the period within which the payment response is required to be provided under section 11(1)”. Following the holding in Tienrui Design & Construction Pte Ltd v G & Y Trading and Manufacturing Pte Ltd [2015] 5 SLR 852 (“Tienrui”) that the DSP runs from the date on which the payment response is required to be provided (and not on the date that the payment response is actually provided), this means that the earliest date that the applicant was entitled to make a payment claim is 1 May 2015, after the 7-day period between this date and 23 April 2015.

[7] The applicant, on the other hand, contended that the expression “calendar days” is not affected by any public holiday that may fall within that period. Accordingly the deadline for the payment response was 22 April 2015 and, after the 7-day DSP, the earliest date on which the applicant was entitled to file an adjudication application was 30 April 2015, which was the actual date that it was filed.

[8] “Day” is defined in s 2 of the Act as “any day other than a public holiday within the meaning of the Holidays Act (Cap 126)”. However the Contract used the term “calendar days” and the question is whether this bears the same meaning as the word “day” in the Act. The term “calendar day” is not defined in the Contract; instead it contains the following definition of “day”:

[9] The respondent also pointed out that Black’s Law Dictionary (6th Ed,1990) defines “calendar days” in the following manner:

[10] It is clear that none of these definitions is of any help in this matter. While the word “day” is defined in the Act, that definition is meant to apply to that word wherever it is found in the Act. There is nothing in the Act compelling the use of that definition in any construction contract although parties are free to adopt such definitions by express provision. In appropriate circumstances, in interpreting a construction (or supply) contract the payment terms of which falls within the purview of the Act, it could be possible to hold that the same interpretation was meant in the contract. But this depends on the circumstances. The respondent submitted that it was appropriate to do it in the present case. If the term concerned was “day”, I would have little hesitation to do so. Unfortunately for the respondent it is not. Instead, the Contract uses “calendar day”. The counter-submission advanced by the applicant was that there must have been a reason for the use of a different term in the Contract. The applicant submitted that the reason was because the Contract intended a different concept for “calendar day” compared to “day” simpliciter, and this was that public holidays would also be counted.

[11] Woo Kah Wai and another v Chew Ai Hua Sandra [2014] 4 SLR 166 concerned an option for the purchase of property in which the deadline was expressed to be “3 days”. The Court of Appeal considered that this could mean either “three calendar days or three working days”. Implicit in this statement is that the expression “calendar days” included public holidays and weekends as this was used in comparison with “working days”.

[12] In my opinion, the applicant’s position is the correct one. The expression “calendar day” contains the notion that it includes every day of the calendar as opposed to, say “working day” or “weekday”. The drafter of the Contract may be presumed to have used this term in order to denote a different way of measuring time from how it is contemplated in the Act which uses the word “day” and contains a definition for it. If he had intended to do it in the same manner then there would not be any need to add an extra word, “calendar”, to qualify “day”.

[13] Even if I had any doubt on the intention behind “calendar day” and were to hold that the term is ambiguous, the outcome would be the same. In Tienrui, it was held that in an appropriate case, the court would interpret any provision contra proferentem – see Tienrui at [54]. In the present case the Contract was drafted by the respondent. There is no reason in the circumstances of this case to prefer the respondent’s position to that of the applicant.

[14] Under s 13(3)(c) of the Act, an adjudication application “shall contain such information or be accompanied by such documents as may be prescribed”. This prescription is found in the Building and Construction Industry Security of Payment Regulations (Cap 30B, Rg 1, 2006 Rev Ed)(“the Regulations”) in which reg 7(2) provides as follows:

[15] The respondent’s complaint pertains to reg 7(2)(d). The respondent submitted that the applicant’s adjudication application (“the AA”) did not contain an extract of all the terms and conditions of the contract that are relevant to the payment claim dispute. In particular, the respondent asserted that the AA should have included the following documents which were missing from it:

(a) The Standard Conditions of Nominated Sub-Contractor 2008 for use in conjunction with the Public Sector Standard Conditions of Contract for Construction Works 2008.

(b) CPF General Specifications.

(c) Schedule of Rates.

(d) Preliminaries.

(e) Method Statement.

[16] According to the respondent the AA was therefore invalid as it was in breach of s 13(3)(c) of the Act.

[17] The applicant asserted that it had complied with the requirement in reg 7(2)(d) of the Regulations as it had included in the AA the complete contract (which is entitled “Subcontract Agreement”) which, it claimed, had more than met the prescribed requirement.

[18] The respondent had made the same objection to the adjudicator who was not impressed. The adjudicator stated in the AD that “the inquiry must be whether the document is relevant to the approach taken by the Claimant in making the payment claim” and he felt that the documents provided were adequate for this purpose. It should be noted that the respondent did not allege that it had been prejudiced or embarrassed in any way on account of the breach. The only basis for complaint was that s 13(3)(c) was a mandatory requirement and the applicant had failed to comply with it.

[19] In Chow Kok Fong, Security of Payments and Construction Adjudication (LexisNexis 2nd Ed, 2013) the learned author observed at [9.68]:

[22] For the reasons given above, I dismissed the respondent’s application to set aside the AD.