Lim Chin San Contractors v LW Infrastructure: Appeal on Extension of Time and Termination in Construction Sub-Contract

Lim Chin San Contractors Pte Ltd ("LCS") appealed to the High Court of Singapore against an arbitral award in favor of LW Infrastructure Pte Ltd (“LW”) concerning a construction sub-contract for the LW Technocentre project. LCS raised questions of law regarding extension of time and LW's right to terminate the sub-contract. Judith Prakash J dismissed the appeal, holding that a delay in completion, not merely a delay in progress, is required for time to be set at large. The court also found that the arbitrator's decision that time was not set at large precluded the court from considering the questions of law regarding termination.

1. Case Overview

1.1 Court

High Court

1.2 Outcome

Appeal dismissed with costs.

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Appeal concerning extension of time and termination clauses in a construction sub-contract. The court dismissed the appeal, holding that a delay in completion is required to set time at large.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
Lim Chin San Contractors Pte LtdAppellantCorporationAppeal DismissedLost
LW Infrastructure Pte LtdRespondentCorporationAppeal DismissedWon

3. Judges

Judge NameTitleDelivered Judgment
Judith PrakashJudgeYes

4. Counsels

Counsel NameOrganization
Sean La’BrooyWongPartnership LLP
Alvin YeoWongPartnership LLP
Napolean KohWongPartnership LLP
Pamela TanWongPartnership LLP
Tan Liam BengDrew & Napier LLC
Soh Chun YorkDrew & Napier LLC

4. Facts

  1. LCS was appointed as the design and build sub-contractor for the LW Technocentre project.
  2. The sub-contract required LCS to complete the works within 15 months from the commencement date of 2 May 2001.
  3. The original completion date was 2 August 2002.
  4. An extension of time of three months was agreed, extending the completion date to 31 October 2002.
  5. LW terminated the sub-contract on 12 May 2003, citing LCS's failure to proceed regularly and diligently.
  6. The TOP was eventually granted on 1 August 2003.
  7. LCS claimed that late and under-allocation of MYEs and late payments by LW caused delays.

5. Formal Citations

  1. Lim Chin San Contractors Pte Ltd v LW Infrastructure Pte Ltd, Originating Summons No 769 of 2010, [2011] SGHC 162

6. Timeline

DateEvent
LCS invited to tender for the main contract.
LCS informed that LW would be interposed as the main contractor.
Employer issued a letter of award to LW.
LW accepted the offer.
LW issued a letter of award to LCS.
LW engaged Leun Wah Electric Co (Pte) Ltd as the sub-contractor for the M&E Works.
LCS accepted the offer from LW.
Sub-contract commencement date.
LW received the permit for piling and pile caps.
LW received the permit for building works.
LW submitted the application for MYEs to the Ministry.
The Ministry granted 157 MYEs to LW.
LCS utilised the MYEs.
Formal sub-contract document executed.
Clause 30.3.2 was amended.
Both parties agreed that an extension of time of some three months would be given to LCS.
Quantity Surveyor issued interim payment certificates.
Original sub-contract completion date.
Extended sub-contract completion date.
Further extended sub-contract completion date.
LW sent a notice to LCS notifying it of its failure to proceed regularly and diligently with its obligations.
Quantity Surveyor issued interim payment certificates.
LW complained that many sections of the works were still incomplete.
LCS sent a terse reply.
LW terminated the sub-contract.
TOP was eventually granted.
LW served a notice of arbitration on LCS.
The Arbitrator accepted appointment.
The Arbitrator issued his award.
A supplementary award was issued to correct typographical errors.
Hearing before Judith Prakash J.
Hearing on 8 February 2011.
Judgment reserved.

7. Legal Issues

  1. Time Being Set at Large
    • Outcome: The court held that a delay in completion, not merely a delay in progress, is required for time to be set at large.
    • Category: Substantive
    • Related Cases:
      • [2009] 1 SLR(R) 385
      • [1897] 1 QB 562
      • (1838) 150 ER 1195; 3 M&W 387
      • (1970) 1 BLR 114
      • [1982] 1 WLR 794
  2. Contractual Termination
    • Outcome: The court did not rule on this issue as it was premised on time being set at large, which the arbitrator did not find.
    • Category: Substantive
  3. Costs Incurred in Engaging Other Contractors
    • Outcome: The court did not rule on this issue as it was premised on time being set at large, which the arbitrator did not find.
    • Category: Substantive

8. Remedies Sought

  1. Declaration that time was set at large
  2. Damages for wrongful termination

9. Cause of Actions

  • Breach of Contract

10. Practice Areas

  • Construction Litigation
  • Arbitration
  • Commercial Litigation

11. Industries

  • Construction

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
Poseidon Schiffahrt GmbH v Nomadic Navigation Co Ltd (“The Trade Nomad”)N/AYes[1998] 1 Lloyd’s Rep 57N/ADealt with the issue of whether parties to an arbitration agreement entered into before the occurrence of a dispute could dispense with the need to obtain leave to appeal.
Taylor Woodrow Civil Engineering Ltd v Hutchinson IDH Development LtdN/AYes(1998) 75 Con LR 1N/AAddressed the issue of whether a right to appeal existed where the arbitration was governed by the Arbitration Act 1996, despite the agreement referring to the 1985 Act.
Fence Gate Limited v NEL Construction LimitedN/AYes(2001) 82 Con LR 41N/AFollowed the sensible approach in Taylor Woodrow Civil Engineering Ltd v Hutchinson IDH Development Ltd.
Yap Boon Keng Sonny v Pacific Prince International Pte Ltd and anotherN/AYes[2009] 1 SLR(R) 385SingaporeDescribed the effect of time being set at large.
Dodd v ChurtonN/AYes[1897] 1 QB 562N/AAddressed the principle that when one party to a contract is prevented from performing it by the act of the other, he is not liable in law for that default.
Holme and another v Guppy and anotherCourt of ExchequerYes(1838) 150 ER 1195; 3 M&W 387N/AEstablished that if a party is prevented by the other contracting party from completing the contract within the time limited, he is not liable in law for the default.
Peak Construction (Liverpool) Ltd v McKinney Foundations LtdN/AYes(1970) 1 BLR 114N/AAddressed the issue of time being set at large when the failure to complete on time is due to the fault of both the employer and the contractor.
Percy Bilton Ltd v Greater London CouncilN/AYes[1982] 1 WLR 794N/AProvided a clear exposition of the principles applicable to time being set at large.
Fernbrook Trading Co Ltd v TaggartN/AYes[1979] 1 NZLR 556New ZealandConcerned a delay of 23 weeks in making progress payments and a failure to issue progress payment certificates.
Kwang In Tong Chinese Temple v Fong Choon Hung Construction Pte LtdN/AYes[1997] 1 SLR(R) 907SingaporeAddressed the issue of time being set at large.
Lian Soon Construction Pte Ltd v Guan Qian Realty Pte LtdN/AYes[1999] 3 SLR(R) 518SingaporeAddressed the issue of time being set at large.
Northern Elevator Manufacturing Sdn Bhd v United Engineers (Singapore) Pte LtdCourt of AppealYes[2004] 2 SLR(R) 494SingaporeDealt with the scope of the equivalent provision under the now-repealed Arbitration Act (Cap 10, 1985 Rev Ed).
Ahong Construction (S) Pte Ltd v United Boulevard Pte LtdN/AYes[1993] 2 SLR(R) 208SingaporeDelineated between a “question of law” and an “error of law”.
Benaim (UK) Ltd v Davies Middleton & Davies LtdN/AYes[2005] EWHC 1370N/ACited Northern Elevator with approval.
The Coal Authority v F W Davidson, W E DavidsonN/AYes[2008] EWHC 2180N/ACited Northern Elevator with approval.
Pioneer Shipping Ltd and others v BTP Tioxide Ltd (“The Nema”)N/AYes[1982] AC 724N/AA question of contractual interpretation is in principle a question of law which the court has jurisdiction to determine.
Permasteelisa Pacific Holdings Ltd v Hyundai Engineering & Construction Co LtdN/AYes[2005] 2 SLR(R) 270SingaporeA question of contractual interpretation is in principle a question of law which the court has jurisdiction to determine.
Holland Leedon Pte Ltd (in liquidation) v Metalform Asia Pte LtdN/AYes[2011] 1 SLR 517SingaporeA question of contractual interpretation is in principle a question of law which the court has jurisdiction to determine.
Guangzhou Dockyards Co Ltd v ENE Aegiali IN/AYes[2011] 1 Lloyd’s Rep 30N/AAddressed the issue of whether the parties may alter by agreement the nature of questions which may be referred to the court on appeal.
Jones and another v The President and Scholars of St John’s College, OxfordN/AYes(1870-71) LR 6 QB 115N/AIf a contract clearly provides that the date of completion will not be set at large even if the completion date of the works is delayed, this bargain will be upheld by the courts.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute NameJurisdiction
Arbitration Act (Cap 10, 2002 Rev Ed)Singapore

15. Key Terms and Keywords

15.1 Key Terms

  • Time set at large
  • Extension of time
  • Acts of prevention
  • Delay in completion
  • Delay in progress
  • Termination clause
  • MYE (Man-Year Entitlement)
  • TOP (Temporary Occupation Permit)
  • Sub-contract
  • Arbitration

15.2 Keywords

  • construction
  • arbitration
  • contract
  • extension of time
  • termination
  • Singapore

17. Areas of Law

Area NameRelevance Score
Construction Law85
Arbitration75
Contract Law70
Breach of Contract60
Termination of Contract60
Extension of Time50

16. Subjects

  • Construction Dispute
  • Arbitration
  • Contract Law