Choi Peng Kum v Tan Poh Eng: Setting Aside Adjudication Determination under SOP Act
Choi Peng Kum and another (applicants), property owners, employed Tan Poh Eng Construction Pte Ltd (respondent) to carry out reconstruction works. Disputes arose, and the applicants terminated the respondent's employment. The respondent issued Progress Claim No. 9, which the applicants did not respond to. The respondent lodged an adjudication application, and the adjudicator ruled in favor of the respondent. The applicants filed an application to set aside the adjudication determination, arguing that the respondent was not entitled to any progress payment. The High Court of Singapore dismissed the application, holding that the SOP Act creates a separate right to progress payment, and the appropriate recourse for the applicants was a final resolution of the merits of their dispute through other available means.
1. Case Overview
1.1 Court
High Court1.2 Outcome
Application dismissed.
1.3 Case Type
Civil
1.4 Judgment Type
Grounds of Decision
1.5 Jurisdiction
Singapore
1.6 Description
Application to set aside adjudication determination under the SOP Act was dismissed. The court held that the SOP Act creates a separate right to progress payment.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Choi Peng Kum | Applicant | Individual | Application dismissed | Lost | |
| Tan Poh Eng Construction Pte Ltd | Respondent | Corporation | Application dismissed | Won |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Eunice Chua | Assistant Registrar | Yes |
4. Counsels
4. Facts
- Applicants employed the respondent to carry out reconstruction works on their property.
- The contract incorporated the Singapore Institute of Architects, Articles and Conditions of Building Contract, Lump Sum Contract, 9th Edition.
- Disputes arose between the applicants and the respondent surrounding alleged defective works or works that had not been carried out.
- The applicants terminated the employment of the respondent on 7 February 2013.
- On 31 January 2013, the respondent issued to the applicants “Progress Claim No. 9” for the sum of $480,109.97.
- The applicants did not respond to Progress Claim No. 9.
- On 7 March 2013, the respondent lodged an adjudication application in respect of Progress Claim No. 9 pursuant to the SOP Act.
5. Formal Citations
- Choi Peng Kum and another v Tan Poh Eng Construction Pte Ltd, Originating Summons No 275 of 2013, [2013] SGHCR 19
6. Timeline
| Date | Event |
|---|---|
| Applicants employed the respondent to carry out reconstruction works. | |
| Respondent issued Progress Claim No. 9. | |
| Applicants terminated the employment of the respondent. | |
| Respondent lodged an adjudication application. | |
| Adjudication application was served on the applicants. | |
| Applicants lodged their adjudication response. | |
| Adjudicator issued an adjudication determination in favour of the respondent. | |
| Applicants filed an application to set aside the adjudication determination. | |
| Judgment reserved. |
7. Legal Issues
- Setting aside an adjudication determination
- Outcome: The court held that it should not review the merits of an adjudicator's decision.
- Category: Procedural
- Sub-Issues:
- Whether a court may set aside an adjudication determination under the SOP Act on the basis that there was no entitlement to payment under the terms of the construction contract
- Entitlement to progress payment
- Outcome: The court held that the entitlement to a progress payment arises as long as any person has carried out any construction work or supplied any goods or services under a construction contract.
- Category: Substantive
8. Remedies Sought
- Setting aside of adjudication determination
9. Cause of Actions
- Claim for progress payment
10. Practice Areas
- Construction Litigation
- Adjudication
- Commercial Litigation
11. Industries
- Construction
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Roseville Bridge Marina Pty Ltd v Bellingham Marine Australia Pty Ltd | New South Wales Supreme Court | Yes | [2009] NSWSC 320 | Australia | Cited to argue that the SOP Act does not create a right to remuneration for construction work, but the court found that it had no application to the present case. |
| Lee Wee Lick Terence (alias Li Weili Terence) v Chua Say Eng (formerly trading as Weng Fatt Construction Engineering) and another appeal | Court of Appeal | Yes | [2013] 1 SLR 401 | Singapore | Cited to describe the scheme of the SOP Act as a fast and low-cost adjudication system to resolve payment disputes. |
| Admin Construction Pte Ltd v Vivaldi (S) Pte Ltd | High Court | Yes | [2013] SGHC 95 | Singapore | Cited as a case where the High Court set aside an adjudication determination on the basis that an ex facie valid settlement agreement extinguished all disputes between the parties. |
| VN Pte Ltd v VO Pte Ltd | Singapore Construction Adjudication Reporter | Yes | [2010] SCAdjR 259 | Singapore | Cited to support the argument that clause 32(8)(a) of the SIA Conditions does not bar the contractor from making a payment claim and lodging an adjudication application. |
| SA Shee & Co (Pte) Ltd v Kaki Bukit Industrial Park Pte Ltd | High Court | Yes | [2000] 1 SLR(R) 192 | Singapore | Cited to support the argument that clause 32(8)(a) of the SIA Conditions may be relied on by an employer to withhold payment on interim certificates to the contractor in the event of termination of the construction contract. |
13. Applicable Rules
| Rule Name |
|---|
| No applicable rules |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Building and Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed) | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Adjudication determination
- Progress payment
- Security of Payment Act
- SIA Conditions
- Construction contract
- Adjudication application
- Adjudication response
- Progress Claim
15.2 Keywords
- Adjudication
- Construction
- Payment
- SOP Act
- Singapore
17. Areas of Law
| Area Name | Relevance Score |
|---|---|
| Construction Law | 90 |
| Security of Payment | 85 |
| Contract Law | 70 |
| Arbitration | 50 |
16. Subjects
- Construction Dispute
- Adjudication
- Contract Law