Hong Kiat Construction Pte Ltd v Ngiam Benjamin

Choo Han Teck J:

[2] Mr Yang then wrote to the parties on 29 March 2007. The letter stated as follows:

On 5 April 2007 the plaintiff’s then solicitor called Mr Yang to ask for more time. Nothing more happened until 8 June 2007 when Mr Yang wrote to ask the parties if the plaintiff was proceeding with the matter. His letter stated:

The defendant wrote on 13 June 2007 expressing surprise that Mr Yang still considered himself the arbitrator. The defendant’s letter is set out for convenience:

[3] On 10 July 2007 Mr Yang wrote to say that he had given the parties reasonable opportunities to proceed with directions and since that did not take place, he said “I am hereby treating my appointment as terminated.” Hence the plaintiff applied under s 8 (1)(b) and s 8(2) of the Arbitration Act, Cap 10 (1985 Ed), which was the applicable version, to appoint a new arbitrator. The application was allowed by the Assistant Registrar. The defendant appealed against that order on the ground that the arbitration proceedings had been terminated, alternatively, that s 8(1)(b) applied only if the arbitrator refuses to act or is incapable of acting, or dies. Counsel for the defendant argued that none of these situations applied since the arbitrator did not refuse to act. He argued that the arbitration had been terminated by the parties’ agreement. Finally, counsel submitted that this court should exercise its discretion by virtue of the plaintiff’s conduct not to allow the application.