LH Aluminium v Newcon: Security of Payment Act Adjudication Dispute

In LH Aluminium Industries Pte Ltd v Newcon Builders Pte Ltd, the High Court of Singapore heard an appeal against the assistant registrar's decision to dismiss Newcon Builders' application to set aside an adjudication determination in favor of LH Aluminium under the Building and Construction Industry Security of Payment Act. The court, presided over by Lee Seiu Kin J, dismissed the appeal, finding that the adjudication application was not premature, the payment claim was not a prohibited 'repeat claim,' and there was no settlement agreement between the parties. The case concerned a claim for aluminium and glazing installation works.

1. Case Overview

1.1 Court

High Court

1.2 Outcome

Appeal Dismissed

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Appeal regarding an adjudication determination under the Building and Construction Industry Security of Payment Act. The court dismissed the appeal, upholding the adjudication determination.

1.7 Decision Date

27 November 2014

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
Newcon Builders Pte Ltd	Defendant, Appellant	Corporation	Appeal Dismissed	Lost	Tang Jin Sheng of Rodyk & Davidson LLP Joseph Lee of Rodyk & Davidson LLP
LH Aluminium Industries Pte Ltd	Plaintiff, Respondent	Corporation	Appeal Dismissed	Won	Daniel Koh of Eldan Law LLP Richard Yeoh Kar Hoe of David Lim & Partners LLP Jin Shan of Eldan Law LLP

3. Judges

Judge Name	Title	Delivered Judgment
Lee Seiu Kin	Judge	Yes

4. Counsels

Counsel Name	Organization
Tang Jin Sheng	Rodyk & Davidson LLP
Joseph Lee	Rodyk & Davidson LLP
Daniel Koh	Eldan Law LLP
Richard Yeoh Kar Hoe	David Lim & Partners LLP
Jin Shan	Eldan Law LLP

4. Facts

The defendant was the main contractor for a construction project.
The plaintiff was the sub-contractor for aluminium and glazing installation works.
The contract incorporated the Singapore Institute of Architects Conditions of Sub-Contract (3rd Ed, 2005).
The plaintiff served multiple payment claims for the same amount.
The defendant issued payment responses of $0 for each claim.
The plaintiff submitted an adjudication application after the defendant issued a $0 payment response to the final payment claim.
The defendant applied to set aside the adjudication determination.

5. Formal Citations

LH Aluminium Industries Pte Ltd v Newcon Builders Pte Ltd, Originating Summons No 159 of 2014 (Registrar's Appeal No 180 of 2014), [2014] SGHC 254

6. Timeline

Date	Event
2011-01-21	Contract awarded to plaintiff
2013-06-22	Plaintiff served Payment Claim No 24
2013-07-22	Plaintiff served Payment Claim No 24
2013-08-22	Plaintiff served Payment Claim No 24
2013-09-22	Plaintiff served Payment Claim No 24
2013-11-22	Plaintiff served Payment Claim No 24
2013-12-02	Plaintiff served Final Payment Claim
2013-12-20	Defendant issued Final Payment Response
2014-01-03	Plaintiff submitted Adjudication Application
2014-01-13	Defendant submitted Adjudication Response
2014-02-07	Adjudication Determination made in favor of plaintiff
2014-02-24	Plaintiff applied for leave to enforce Adjudication Determination
2014-02-25	Leave granted to enforce Adjudication Determination
2014-03-14	Defendant applied to set aside Adjudication Determination
2014-08-18	Submissions heard by the court
2014-11-28	Judgment reserved

7. Legal Issues

Premature Adjudication Application
- Outcome: The court held that the adjudication application was not premature.
- Category: Procedural
- Sub-Issues:
  - Failure to comply with dispute settlement period
  - Incorrect calculation of statutory timelines
Repeat Payment Claim
- Outcome: The court held that the Final Payment Claim was not a 'repeat claim' made in breach of s 10(1) of the Act.
- Category: Substantive
- Sub-Issues:
  - Validity of repeated claims under the Act
  - Interpretation of 'one payment claim' under s 10(1)
  - Application of s 10(4) regarding inclusion of previous claims
Existence of Settlement Agreement
- Outcome: The court found that there was no settlement agreement concluded between the parties in respect of the Backcharges.
- Category: Substantive
- Sub-Issues:
  - Consensus ad idem
  - Offer and acceptance
  - Inconclusive negotiations

8. Remedies Sought

Setting aside of Adjudication Determination
Enforcement of Adjudication Determination

9. Cause of Actions

Statutory Claim under the Building and Construction Industry Security of Payment Act

10. Practice Areas

Construction Litigation
Commercial Litigation
Adjudication

11. Industries

Construction

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
RN & Associates Pte Ltd v TPX Builders Pte Ltd	High Court	Yes	[2013] 1 SLR 848	Singapore	Cited regarding estoppel in challenging the validity of a payment claim at the setting aside stage.
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 regarding the need to raise objections to payment claims as soon as possible and the court's role in determining the validity of payment claims.
JFC Builders Pte Ltd v LionCity Construction Co Pte Ltd	High Court	Yes	[2013] 1 SLR 1157	Singapore	Cited regarding the view that a payment claim made in breach of the Act would undermine the jurisdiction of the adjudicator and the validity of the determination.
Australian Timber Products Pte Ltd v A Pacific Construction & Development Pte Ltd	High Court	Yes	[2013] 2 SLR 776	Singapore	Cited regarding the court's entitlement to review the validity of a payment claim at the setting-aside stage.
Admin Construction Pte Ltd v Vivaldi (S) Pte Ltd	High Court	Yes	[2013] 3 SLR 609	Singapore	Cited regarding the challenge to the validity of a payment claim amounting to a challenge to the validity of the adjudicator's appointment.
YTL Construction (S) Pte Ltd v Balanced Engineering & Construction Pte Ltd	High Court	Yes	[2014] SGHC 142	Singapore	Cited regarding the approval of the decision in Admin Construction on the issue of estoppel.
Doo Ree Engineering & Trading Pte Ltd v Taisei Corp	High Court	Yes	[2009] SGHC 218	Singapore	Cited regarding the issue of whether the service of repeat claims is permitted under the Act.
Dualcorp Pty Ltd v Remo Constructions Pty Ltd	New South Wales Court of Appeal	Yes	[2009] NSWCA 69	Australia	Cited in relation to the exclusion of amounts in previous claims which have been adjudicated upon on their merits.
Doolan v Rubikcon (Qld) Pty Ltd	Queensland Court of Appeal	Yes	[2008] 2 Qd R 117	Australia	Cited in relation to the exclusion of amounts in previous claims which have been adjudicated upon on their merits.
Aldabe Fermin v Standard Chartered Bank	High Court	Yes	[2010] 3 SLR 722	Singapore	Cited regarding the incorporation of terms insofar as they are not inconsistent with the express terms of the contract.
Kumagai-Zenecon Construction Pte Ltd (in liquidation) and another v Arab Bank plc (Low Hua Kin, third party)	High Court	Yes	[1997] 1 SLR(R) 277	Singapore	Cited regarding the incorporation of terms insofar as they are not inconsistent with the express terms of the contract.
Gay Choon Ing v Loh Sze Ti Terence Peter and another appeal	Court of Appeal	Yes	[2009] 2 SLR(R) 332	Singapore	Cited regarding the argument that negotiations continued after 4 November 2013 did not itself affect the existence of the settlement agreement that was already concluded.
Midlink Development Pte Ltd v The Stansfield Group Pte Ltd	High Court	Yes	[2004] 4 SLR(R) 258	Singapore	Cited regarding the proposition that silence can constitute acceptance.

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
Building and Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed) s 12(2)	Singapore
Building and Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed) s 12(5)	Singapore
Building and Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed) s 13(3)(a)	Singapore
Building and Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed) s 16(2)(a)	Singapore
Building and Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed) s 11(1)	Singapore
Building and Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed) s 10(2)(a)	Singapore
Building and Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed) s 10(1)	Singapore
Building and Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed) s 10(4)	Singapore
Building and Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed) s 27	Singapore

15. Key Terms and Keywords

15.1 Key Terms

Adjudication Determination
Payment Claim
Payment Response
Dispute Settlement Period
Repeat Claim
Settlement Agreement
Backcharges
SIA Conditions
Security of Payment Act

15.2 Keywords

adjudication
payment claim
payment response
security of payment
construction
Singapore
repeat claim
settlement agreement

17. Areas of Law

Area Name	Relevance Score
Construction Law	95
Building and Construction Industry Security of Payment Act	95
Breach of Contract	60
Contract Law	50
Arbitration	30

16. Subjects

Construction Adjudication
Security of Payment
Contractual Disputes