UES Holdings v KH Foges: Adjudication Determination, Apparent Bias & Security of Payment Act
UES Holdings Pte Ltd sought to set aside an adjudication determination rendered under the Building and Construction Industry Security of Payment Act against KH Foges Pte Ltd. The High Court of Singapore, presided over by Justice Quentin Loh, dismissed the application, finding no apparent bias on the part of the adjudicator, no defects regarding the timing of the adjudication application, and no defects regarding the content of the notice. The court rejected all three grounds of challenge and upheld the adjudication determination.
1. Case Overview
1.1 Court
High Court1.2 Outcome
Application dismissed
1.3 Case Type
Building and Construction Law
1.4 Judgment Type
Grounds of Decision
1.5 Jurisdiction
Singapore
1.6 Description
UES Holdings sought to set aside an adjudication determination. The court dismissed the application, finding no apparent bias or defects.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| UES Holdings Pte Ltd | Plaintiff | Corporation | Application dismissed | Lost | |
| KH Foges Pte Ltd | Defendant | Corporation | Adjudication Determination upheld | Won |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Quentin Loh | Judge | Yes |
4. Counsels
4. Facts
- Plaintiff and Defendant entered into a sub-contract for provision of works on 25 February 2014.
- Defendant served a progress payment claim on Plaintiff for S$1,642,751.13 on 25 August 2016.
- Plaintiff responded with a payment response indicating Defendant was liable to pay Plaintiff S$91,371.23.
- Defendant notified Plaintiff of intention to apply for adjudication on 28 September 2016.
- Adjudicator was appointed on 3 October 2016.
- Adjudicator rendered the Adjudication Determination on 8 November 2016, ordering Plaintiff to pay Defendant $1,199,179.96.
- Plaintiff filed OS to set aside the Adjudication Determination on 8 December 2016.
5. Formal Citations
- UES Holdings Pte Ltd v KH Foges Pte Ltd, Originating Summons No 1271 of 2016, [2017] SGHC 114
6. Timeline
| Date | Event |
|---|---|
| Plaintiff entered into a sub-contract with the Defendant | |
| Terms of payment varied by letter | |
| Defendant served a progress payment claim on the Plaintiff | |
| Plaintiff responded to the Payment Claim with a payment response | |
| Defendant notified the Plaintiff of its intention to apply for adjudication | |
| Defendant lodged an adjudication application with the Singapore Mediation Centre | |
| Adjudicator appointed | |
| Notice of adjudicator's appointment given to parties | |
| Preliminary conference held | |
| Substantive adjudication conference held | |
| Substantive adjudication conference held | |
| Adjudicator rendered the Adjudication Determination | |
| Plaintiff filed OS to set aside the Adjudication Determination | |
| Hearing held | |
| Judgment reserved |
7. Legal Issues
- Apparent Bias
- Outcome: The court found no apparent bias on the part of the adjudicator.
- Category: Substantive
- Sub-Issues:
- Failure to disclose previous dealings
- Previous dealings with representative of a party
- Timing of Adjudication Application
- Outcome: The court found that the adjudication application was lodged in time.
- Category: Procedural
- Sub-Issues:
- Calculation of payment response deadline
- Exclusion of public holidays in timeline calculation
- Defective Notice of Intention to Apply for Adjudication
- Outcome: The court found that the notice was not defective.
- Category: Procedural
- Sub-Issues:
- Brief description of the payment claim dispute
- Compliance with regulations
- Waiver
- Outcome: The court found that the Plaintiff had waived its right to challenge the Adjudication Determination on the ground of apparent bias.
- Category: Procedural
- Sub-Issues:
- Knowledge of material facts
- Free and informed choice
8. Remedies Sought
- Setting aside of Adjudication Determination
9. Cause of Actions
- Breach of Contract
10. Practice Areas
- Construction Law
- Commercial Litigation
- Arbitration
11. Industries
- Construction
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Metropole Pte Ltd v Designshop Pte Ltd | High Court | Yes | [2017] SGHC 45 | Singapore | Cited regarding the statutory obligation of an adjudicator to act impartially under the Building and Construction Industry Security of Payment Act. |
| Re Shankar Alan s/o Anant Kulkarni | N/A | No | [2007] 1 SLR(R) 85 | Singapore | Cited for the definition of apparent bias using the reasonable suspicion test. |
| JRP & Associates Pte Ltd v Kindly Construction & Services Pte Ltd | N/A | Yes | [2015] 3 SLR 575 | Singapore | Cited for applying the reasonable suspicion test to adjudicators of payment claim disputes under the Act. |
| Amec Capital Projects Ltd v Whitefriars City Estates Ltd | English Court of Appeal | No | [2004] EWCA Civ 1418 | England and Wales | Cited regarding the need to critically examine allegations of breach of natural justice against adjudicators. |
| Citiwall Safety Glass Pte Ltd v Mansource Interior Pte Ltd | Court of Appeal | Yes | [2015] 1 SLR 797 | Singapore | Cited for the principle that an adjudication determination may be set aside if the adjudicator violated the rules of natural justice. |
| Aik Heng Contracts and Services Pte Ltd v Deshin Engineering & Construction Pte Ltd | High Court | Yes | [2015] SGHC 293 | Singapore | Cited for the principle that only material breaches of natural justice will justify setting aside an adjudication determination. |
| Webb v The Queen | N/A | No | (1993-1994) 181 CLR 41 | Australia | Cited regarding disqualification by association, where apparent bias may arise from a relationship with a person involved in the proceedings. |
| Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd and Another | N/A | No | (1996) 135 ALR 753 | Australia | Cited for the principle that the mere fact that a tribunal is associated with a party to the dispute does not suffice to raise a reasonable suspicion of bias. |
| Ebner v Official Trustee in Bankruptcy | N/A | No | (2000) 205 CLR 337 | Australia | Cited for the rational connection test, where a rational connection must be shown between the associations and the prospect of bias. |
| S & M Motor Repairs Pty Ltd and Others v Caltex Oil (Australia) Pty Ltd and Another | N/A | No | (1988) 11 IPR 97 | Australia | Cited for factors relevant to the issue of whether apparent bias arises from a tribunal's association, including duration, intensity, and time elapsed since the last renewal of the associations. |
| Taylor and another v Lawrence and another | N/A | No | [2003] QB 528 | England and Wales | Cited regarding the scope of the duty to disclose facts which might found a bona fide case of apparent bias. |
| Jones v DAS Legal Expenses Insurance Co Ltd and Others | Court of Appeal | No | [2003] EWCA Civ 1071 | England and Wales | Cited regarding the need for a full explanation detailing exactly what matters are within the judge's knowledge which give rise to a possible conflict of interest. |
| Cofely Ltd v Anthony Bingham and Knowles Ltd | N/A | No | [2016] BLR 187 | N/A | Cited regarding a tribunal's responses to a party's inquiries for information about its associations can lend weight to a reasonable suspicion of bias. |
| Smith v Kvaerner Cementation Foundations Ltd (General Council of the Bar intervening) | N/A | No | [2007] 1 WLR 370 | England and Wales | Cited for the requirements for a party to waive its right to raise an allegation of apparent bias. |
| YTL Construction (S) Pte Ltd v Balanced Engineering & Construction Pte Ltd | High Court | Yes | [2014] SGHC 142 | Singapore | Cited for the principle that an adjudication determination is liable to be set aside if it flows from an adjudication application which was lodged out of time. |
| UES Holdings Pte Ltd v Grouteam Pte Ltd | High Court | Yes | [2016] 1 SLR 312 | Singapore | Cited for the principle that an adjudication determination is liable to be set aside if it flows from an adjudication application which was lodged out of time. |
| Grouteam Pte Ltd v UES Holdings Pte Ltd | Court of Appeal | No | [2016] 5 SLR 1011 | Singapore | Cited regarding the provision governing the submission of payment claims. |
| Fujitec Singapore Corp Ltd v GS Engineering & Construction Corp | N/A | No | [2016] 1 SLR 1307 | Singapore | Cited regarding the interpretation of 'calendar days' in a construction contract. |
| Zurich Insurance (Singapore) Pte Ltd v B-Gold Interior Design & Construction Pte Ltd | Court of Appeal | Yes | [2008] 3 SLR(R) 1029 | Singapore | Cited for affirming the contextual approach to contractual interpretation in Singapore. |
| Castlebay Limited v Asquith Properties Limited | English Court of Appeal | No | [2005] EWCA Civ 1734 | England and Wales | Cited regarding the interpretation of 'application for planning permission' in an option to purchase. |
| 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 principle that the court may set aside an adjudication determination if the claimant had violated a provision which is so important that it is the legislative purpose that an act done in breach of the provision should be invalid. |
| Man O’War Station Ltd v Auckland City Council | New Zealand Court of Appeal | No | [2001] 1 NZLR 552 | New Zealand | Cited regarding the expectation that senior legal practitioners will have business associations with professional practitioners in related fields. |
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, s 16(3) | Singapore |
| Building and Construction Industry Security of Payment Act, s 13(3)(a) | Singapore |
| Building and Construction Industry Security of Payment Act, s 12(2) | Singapore |
| Building and Construction Industry Security of Payment Act, s 12(5) | Singapore |
| Building and Construction Industry Security of Payment Act, s 11(1) | Singapore |
| Building and Construction Industry Security of Payment Act, s 2 | Singapore |
| Holidays Act (Cap 126, 1999 Rev Ed) | Singapore |
| Holidays Act, s 2(a) | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Adjudication Determination
- Payment Claim
- Payment Response
- Sub-Contract
- Apparent Bias
- Building and Construction Industry Security of Payment Act
- Adjudication Application
- Preliminary Conference
- Merits Conference
15.2 Keywords
- Adjudication
- Construction Law
- Security of Payment Act
- Apparent Bias
- Payment Claim
- Payment Response
17. Areas of Law
| Area Name | Relevance Score |
|---|---|
| Construction Law | 95 |
| Adjudication | 90 |
| Arbitration | 50 |
| Natural justice | 40 |
| Statutory Interpretation | 30 |
16. Subjects
- Construction Dispute
- Adjudication
- Contract Law
- Civil Procedure