Libra Building v Emergent Engineering: Security of Payment Act & Multiple Payment Claims

In Libra Building Construction Pte Ltd v Emergent Engineering Pte Ltd, the High Court of Singapore addressed the validity of multiple payment claims under the Building and Construction Industry Security of Payment Act. Libra Building Construction Pte Ltd, the plaintiff, sought to set aside an adjudication determination in favor of Emergent Engineering Pte Ltd, the defendant. The court, presided over by Kannan Ramesh JC, ruled that the Act does not permit a claimant to serve multiple payment claims for different reference periods within the same payment claim period and set aside the determination.

1. Case Overview

1.1 Court

High Court

1.2 Outcome

Application allowed; the adjudication determination was set aside with costs to the Plaintiff.

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

High Court case regarding the Building and Construction Industry Security of Payment Act. The court decided on the validity of multiple payment claims.

1.7 Decision Date

26 October 2015

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
Emergent Engineering Pte Ltd	Defendant	Corporation	Application dismissed	Lost	Tan Teng Muan of Mallal & Namazie Namazie Mohamed Javad En of Mallal & Namazie
Libra Building Construction Pte Ltd	Plaintiff	Corporation	Application allowed	Won	Lee Hwai Bin of WongPartnership LLP Tay Bing Wei of WongPartnership LLP Melanie Chew Yang Nah of WongPartnership LLP

3. Judges

Judge Name	Title	Delivered Judgment
Kannan Ramesh	Judicial Commissioner	Yes

4. Counsels

Counsel Name	Organization
Tan Teng Muan	Mallal & Namazie
Namazie Mohamed Javad En	Mallal & Namazie
Lee Hwai Bin	WongPartnership LLP
Tay Bing Wei	WongPartnership LLP
Melanie Chew Yang Nah	WongPartnership LLP

4. Facts

The Defendant was awarded a sub-contract for civil and structural works at Singapore Polytechnic for $385,030.
The Plaintiff alleged the Defendant repudiated the contract by abandoning the project around 2014-12-30.
The Defendant challenged the allegation.
The Defendant issued Payment Claim 3 (PC3) on 2014-12-05 for work done up to the end of November 2014.
The Defendant issued Payment Claim 3 (revised) (PC3R) on 2014-12-26 to replace PC3.
The Defendant issued Payment Claim 4 (PC4) on 2014-12-31 for work done up to the end of December 2014.
The Plaintiff argued PC4 was invalid because PC3R had not been withdrawn.

5. Formal Citations

Libra Building Construction Pte Ltd v Emergent Engineering Pte Ltd, Originating Summons No 311 of 2015, [2015] SGHC 279

6. Timeline

Date	Event
2014-09-04	Contract awarded to the Defendant.
2014-12-05	Payment Claim 3 issued.
2014-12-26	Payment Claim 3 (revised) issued.
2014-12-30	Payment Claim 4 issued.
2015-01-06	Payment Response 3 issued.
2015-01-09	Defendant addressed Payment Response 3.
2015-01-09	Plaintiff responded to PC4.
2015-01-13	Payment Response 3 replaced by Payment Response 3R.
2015-01-16	Defendant asserted it would proceed with adjudication application on PC4.
2015-01-16	Defendant issued notice of intention to apply for adjudication on PC4.
2015-01-20	Plaintiff challenged the validity of PC4.
2015-01-23	Defendant presented the Application on PC4.
2015-02-16	Adjudication determination dated.
2015-07-20	Court ruled in favor of the Plaintiff on Issue 1 and against the Plaintiff on Issue 2.
2015-08-20	Court dismissed the further arguments.
2015-10-27	Decision Date

7. Legal Issues

Validity of Multiple Payment Claims
- Outcome: The court held that the Building and Construction Industry Security of Payment Act does not permit a claimant to serve multiple payment claims for different reference periods within the same payment claim period.
- Category: Substantive
- Related Cases:
  - [2013] 1 SLR 401
Requirement of Exact Copy of Payment Claim
- Outcome: The court held that it was sufficient that the copy of the payment claim that was to accompany the Application need only be a copy, and not an exact copy, of the payment claim.
- Category: Procedural
Approbation and Reprobation
- Outcome: The court held that the doctrine of approbation and reprobation could not allow two or more payment claims in the same payment claim period to be presented notwithstanding the limitation in s 10(1).
- Category: Procedural

8. Remedies Sought

Setting aside of adjudication determination

9. Cause of Actions

Breach of Contract

10. Practice Areas

Construction Litigation
Adjudication

11. Industries

Construction

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
W Y Steel Construction Pte Ltd v Osko Pte Ltd	Court of Appeal	Yes	[2013] 3 SLR 380	Singapore	Cited to highlight the importance of cash flow in the construction industry.
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 for the interpretation of section 10(1) and regulation 5(1) of the Building and Construction Industry Security of Payment Act and Regulations, specifically regarding the frequency of payment claims.
Australian Timber Products Pte Ltd v A Pacific Construction & Development Pte Ltd	High Court	Yes	[2013] 2 SLR 776	Singapore	Cited regarding the considered adaptation of legislation from other jurisdictions and the linguistic variations in the Act.
Tiong Seng Contractors (Pte) Ltd v Chuan Lim Construction Ltd	High Court	Yes	[2007] 4 SLR(R) 364	Singapore	Cited to support the view that a final payment would be regarded as a progress payment under the Act.
Citiwall Safety Glass Pte Ltd v Mansource Interior Pte Ltd	Court of Appeal	Yes	[2015] SGCA 42	Singapore	Cited for the importance of strict adherence to timelines for responses, notices, and adjudication applications and responses.
Salem Ltd v Top End Homes Ltd	New Zealand Court of Appeal	Yes	[2005] NZCA 406	New Zealand	Cited to highlight the intention of legislation such as the Act is to “pay first and argue later”.
Treasure Valley Group Ltd v Saputra Teddy and another (Ultramarine Holdings Ltd, intervener)	High Court	Yes	[2006] 1 SLR(R) 358	Singapore	Cited for the definition of the doctrine of approbation and reprobation.
LH Aluminium Industries Pte Ltd v Newcon Builders Pte Ltd	High Court	Yes	[2015] 1 SLR 648	Singapore	Cited regarding repeat claims and the risk of abuse by the claimant.
JFC Builders Pte Ltd v LionCity Construction Co Pte Ltd	High Court	Yes	[2013] 1 SLR 1157	Singapore	Cited regarding estoppel and jurisdictional challenges.
Admin Construction Pte Ltd v Vivaldi (s) Pte Ltd	High Court	Yes	[2013] 3 SLR 609	Singapore	Cited regarding estoppel and jurisdictional challenges.
Hill as Trustee for the Ashmore Superannuation Benefit Fund v Halo Architectural Design Services Pty Ltd	Supreme Court of New South Wales	Yes	[2013] NSWSC 865	New South Wales	Cited for the interpretation of sections 8 and 13 of the New South Wales Building and Construction Industry Security of Payment Act regarding multiple payment claims for different reference periods.
Rail Corporation of NSW v Nebax Constructions	Supreme Court of New South Wales	Yes	[2012] NSWSC 6	New South Wales	Cited for the interpretation of section 13(5) of the New South Wales Building and Construction Industry Security of Payment Act regarding multiple payment claims per reference date.
Kitchen Xchange v Formacon Building Services	Supreme Court of New South Wales	Yes	[2014] NSWSC 1602	New South Wales	Cited for the interpretation of section 13(5) of the New South Wales Building and Construction Industry Security of Payment Act regarding repetitive claims on the same reference date.
Southern Han Breakfast Point Pty Limited v Lewence Construction Pty Ltd	Supreme Court of New South Wales	Yes	[2015] NSWSC 502	New South Wales	Cited for the interpretation of section 13(5) of the New South Wales Building and Construction Industry Security of Payment Act regarding abuse by a claimant.
George Developments Ltd v Canam Construction Ltd	High Court	Yes	[2006] 1 NZLR 177	New Zealand	Cited for the approach to technical non-compliance with section 20(2) of the Construction Contracts Act 2002 (NZ).
Protectavale Pty Ltd v K2K Pty Ltd	Federal Court of Australia	Yes	[2008] FCA 1248	Australia	Cited for eschewing an overly demanding and unduly technical approach to the issue of compliance with section 14 of the Building and Construction Industry Security of Payment Act 2002 (Vic).
Caledonian Modular Ltd v Mar City Development Ltd	Technology and Construction Court	Yes	[2015] EWHC 1855 (TCC)	United Kingdom	Cited to highlight the threat posed to a respondent by multiple payment claims.

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	Singapore
Building and Construction Industry Security of Payment Act	Singapore

15. Key Terms and Keywords

15.1 Key Terms

Payment Claim
Progress Payment
Reference Period
Payment Claim Period
Adjudication Determination
Security of Payment Act
Payment Response
Adjudication Application

15.2 Keywords

Building and Construction Industry Security of Payment Act
Payment Claim
Adjudication
Construction Law
Singapore

17. Areas of Law

Area Name	Relevance Score
Construction Law	90
Contract Law	70
Arbitration	30
Civil Procedure	20

16. Subjects

Construction Dispute
Adjudication
Contract Law