Sentosa Building Construction v DJ Builders: Setting Aside Consent Order & Adjudication Determination Under SOPA
In Sentosa Building Construction Pte Ltd v DJ Builders & Contractors Pte Ltd, the High Court of Singapore addressed an application by Sentosa Building Construction Pte Ltd to set aside a prior consent order that had set aside an adjudication determination in their dispute with DJ Builders & Contractors Pte Ltd. The court, presided over by Colin Seow AR, dismissed the application, finding no sufficient grounds to set aside the consent order and holding that issues regarding adjudicator's fees should be resolved with the Singapore Mediation Centre.
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
The High Court dismissed an application to set aside a consent order regarding an adjudication determination under the SOPA, finding no injustice.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| SENTOSA BUILDING CONSTRUCTION PTE LTD | Plaintiff, Applicant | Corporation | Application dismissed | Lost | |
| DJ BUILDERS & CONTRACTORS PTE LTD | Defendant, Respondent | Corporation | Application dismissed | Won |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Colin Seow | Assistant Registrar | Yes |
4. Counsels
| Counsel Name | Organization |
|---|---|
| John Lim | Malkin & Maxwell LLP |
| Steven Lam | Templars Law LLC |
4. Facts
- Plaintiff was contractually engaged by the Defendant in 2012 for a residential construction project.
- A dispute arose between the parties regarding overdue payments for the Plaintiff’s work.
- Plaintiff lodged Adjudication Application No SOP/AA148 of 2014 with the Singapore Mediation Centre.
- An adjudicator issued an Adjudication Determination dated 28 May 2014, in the Defendant’s favour.
- Plaintiff filed Originating Summons No 170 of 2014 seeking to set aside the Adjudication Determination.
- A Complaints Panel in the SMC found the Adjudicator to be in breach of the principles of natural justice.
- The AR granted a “by consent” order setting aside the Adjudication Determination.
5. Formal Citations
- Sentosa Building Construction Pte Ltd v DJ Builders & Contractors Pte Ltd, Originating Summons No 920 of 2014 (Summons No 352 of 2015), [2015] SGHCR 18
6. Timeline
| Date | Event |
|---|---|
| Plaintiff contractually engaged by the Defendant to carry out certain works. | |
| Plaintiff lodged Adjudication Application No SOP/AA148 of 2014 with the Singapore Mediation Centre. | |
| Adjudication Application served by the SMC on the Defendant. | |
| Adjudicator issued an Adjudication Determination in the Defendant’s favour. | |
| Plaintiff filed Originating Summons No 170 of 2014 in the State Courts, seeking to set aside the Adjudication Determination. | |
| Complaints Panel in the SMC released a report finding the Adjudicator to be in breach of the principles of natural justice. | |
| Defendant's solicitors offered to consent to setting aside the determination if each party bore its own costs. | |
| Plaintiff's solicitors rejected the Defendant's proposal. | |
| AR granted a “by consent” order setting aside the Adjudication Determination. | |
| Plaintiff’s solicitors forwarded a copy of ORC 7785/2014 to the SMC requesting a full refund of the Adjudicator’s fee. | |
| The SMC responded to the Plaintiff’s solicitors seeking clarification as to the provision of the SOPA upon which the request for the refund was being sought. | |
| Plaintiff’s solicitors replied with a fairly detailed explanation to the SMC. | |
| The SMC responded rejecting the Plaintiff’s request for the refund of the Adjudicator’s fee. | |
| Plaintiff filed Summons No 352 of 2015, seeking to set aside the Order of Court dated 20 November 2014. | |
| Judgment reserved. |
7. Legal Issues
- Setting Aside Consent Order
- Outcome: The court held that there was insufficient basis to conclude that the “by consent” order was of the type that “turned out to be a bad decision for one side” and that no injustice or unfairly prejudicial result arose from the order.
- Category: Procedural
- Sub-Issues:
- Nature of consent order (contractual vs. no objection)
- Residual discretion of the court to vary consent orders
- Injustice or unfairly prejudicial result
- Refund of Adjudicator's Fee
- Outcome: The court held that issues pertaining to the refund of an adjudicator’s fee or expense pursuant to section 31(2) of the SOPA are matters that can and should properly be taken on by the party requesting the refund with the SMC.
- Category: Substantive
- Sub-Issues:
- Entitlement to refund under section 31(2) of the SOPA
- Role of Singapore Mediation Centre in adjudicator fee refunds
- Failure to Determine Adjudication Application within Time
- Outcome: The court did not express any substantive view on the matters relating to this issue, as the Plaintiff failed to cross the first threshold of setting aside the consent order.
- Category: Substantive
- Sub-Issues:
- Compliance with Section 17(1)(b) of SOPA
- Adjudicator's conduct and breach of natural justice
8. Remedies Sought
- Setting aside of Order of Court dated 20 November 2014
- Setting aside of Adjudication Determination dated 28 May 2014
- Declaration that the Adjudicator failed to determine Adjudication Application pursuant to Section 17(1)(b) of the SOPA
- Refund of the Adjudicator Fee of $4,815.00
9. Cause of Actions
- Setting aside of Adjudication Determination
- Breach of natural justice
10. Practice Areas
- Construction Disputes
- Commercial Litigation
- Arbitration
11. Industries
- Construction
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Siebe Gorman & Co Ltd v Pneupac Ltd | English Court of Appeal | Yes | [1982] 1 WLR 185 | England and Wales | Cited for the principle that orders expressed to be made “by consent” are not invariably orders born out of a “real contract” between the parties concerned. |
| Poh Huat Heng Corp Pte Ltd and others v Hafizul Islam Kofil Uddin | Court of Appeal | Yes | [2012] 3 SLR 1003 | Singapore | Cited for the principle that a consent judgment or consent order is binding and cannot be set aside save for exceptional reasons. |
| Bakery Mart Pte Ltd v Ng Wei Teck Michael | High Court | Yes | [2005] 1 SLR(R) 28 | Singapore | Cited for the distinction between “a consent order of a “no objection” kind” and “a binding contract type of consent order”. |
| Wiltopps (Asia) Ltd v Drew & Napier | High Court | Yes | [1999] 1 SLR(R) 252 | Singapore | Cited as a local decision that followed Siebe Gorman. |
| Wellmix Organics (International) Pte Ltd v Lau Yu Man | High Court | Yes | [2006] 2 SLR(R) 117 | Singapore | Cited as a local decision that followed Siebe Gorman. |
| Airtrust (Singapore) Pte Ltd v Kao Chai-Chau Linda | High Court | Yes | [2014] 2 SLR 693 | Singapore | Cited for the principle that even in the case of a contractual consent order, the court retains the residual discretion to vary its terms where this is necessary to prevent injustice. |
| Purcell v FC Trigell Ltd and another | Court of Appeal | Yes | [1971] 1 QB 358 | England and Wales | Cited to illustrate what is capable of constituting an offer and acceptance in the context of consent orders. |
| Chandless-Chandless v. Nicholson | N/A | Yes | [1942] K.B. 321 | N/A | Observed that the words “by consent” may evidence a real contract between the parties. |
13. Applicable Rules
| Rule Name |
|---|
| O. 95, r. 3 of the Rules of Court |
| O 92 r 4 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Building and Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed) | Singapore |
| Section 27 of the Building and Construction Industry Security of Payment Act | Singapore |
| Section 17(1)(b) of the Building and Construction Industry Security of Payment Act | Singapore |
| section 31(2) of the SOPA | Singapore |
| section 28 of the SOPA | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Consent order
- Adjudication determination
- Security of Payment Act
- Natural justice
- Adjudicator's fee
- Singapore Mediation Centre
- Originating summons
- Setting aside
- Uncontested consent order
- Contractual consent order
15.2 Keywords
- Consent order
- Adjudication
- SOPA
- Construction
- Singapore
- Building
- Payment
- Dispute
17. Areas of Law
| Area Name | Relevance Score |
|---|---|
| Building and Construction Industry Security of Payment Act | 80 |
| Construction Law | 75 |
| Civil Procedure | 60 |
| Breach of Contract | 40 |
| Contract Law | 40 |
| Arbitration | 30 |
| Administrative Law | 25 |
16. Subjects
- Construction Dispute
- Arbitration
- Contract Law
- Civil Procedure