Audi Construction v Kian Hiap Construction: SOPA, Premature Payment Claims & Waiver
In Audi Construction Pte Ltd v Kian Hiap Construction Pte Ltd, the High Court of Singapore addressed an originating summons to set aside an adjudication determination (AD) under the Building and Construction Industry Security of Payment Act (SOPA). The dispute arose from a payment claim (PC) issued by Audi Construction to Kian Hiap Construction. Kian Hiap Construction challenged the validity of the PC, arguing it was served prematurely and did not comply with contractual requirements. The court, presided over by Lee Seiu Kin J, held that the PC was indeed served prematurely, contravening SOPA's mandatory provisions, and set aside the AD. The court found that Kian Hiap Construction had not waived its right to object to the premature service of the PC.
1. Case Overview
1.1 Court
High Court of the Republic of Singapore1.2 Outcome
Adjudication determination set aside.
1.3 Case Type
Construction
1.4 Judgment Type
Judgment
1.5 Jurisdiction
Singapore
1.6 Description
Singapore High Court case regarding premature payment claim under SOPA and waiver of objections. Judgment for Respondent, AD set aside.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| AUDI CONSTRUCTION PTE LTD | Applicant | Corporation | Lost | Lost | Tan Jia Wei Justin |
| KIAN HIAP CONSTRUCTION PTE LTD | Respondent | Corporation | Won | Won | Lee Peng Khoon Edwin, Amanda Koh Jia Yi |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Lee Seiu Kin | Judge | Yes |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Tan Jia Wei Justin | Trident Law Corporation |
| Lee Peng Khoon Edwin | Eldan Law LLP |
| Amanda Koh Jia Yi | Eldan Law LLP |
4. Facts
- Audi Construction was engaged by Kian Hiap Construction as a subcontractor.
- The contract stipulated that payment claims should be served on the 20th day of each month.
- Audi Construction served a payment claim on 18 November 2016.
- Kian Hiap Construction did not serve a payment response.
- The adjudicator issued a determination in favor of Audi Construction.
- Kian Hiap Construction challenged the validity of the payment claim, arguing it was served prematurely.
- The payment claim did not state in its header that it was a claim under SOPA.
5. Formal Citations
- Audi Construction Pte Ltd v Kian Hiap Construction Pte Ltd, Originating Summons No 130 of 2017 (Summons No 826 of 2017), [2017] SGHC 165
6. Timeline
| Date | Event |
|---|---|
| Contract awarded to Audi Construction Pte Ltd | |
| Payment claim issued by Audi Construction Pte Ltd | |
| Adjudication determination issued in favor of Audi Construction Pte Ltd | |
| Leave to enforce adjudication determination obtained | |
| Summons filed to set aside adjudication determination and leave to enforce | |
| Hearing held; judgment reserved | |
| Judgment delivered |
7. Legal Issues
- Premature Payment Claim
- Outcome: The court held that the payment claim was served prematurely, in contravention of section 10(2)(a) of SOPA, and was therefore invalid.
- Category: Substantive
- Related Cases:
- [2016] 5 SLR 1011
- Validity of Payment Claim Header
- Outcome: The court held that the failure to state in the header of the payment claim that it was a claim under SOPA did not invalidate the claim, as SOPA does not require such a statement.
- Category: Substantive
- Related Cases:
- [2010] 3 SLR 459
- [2013] 1 SLR 401
- [2016] 4 SLR 626
- Waiver of Objection to Premature Payment Claim
- Outcome: The court held that the respondent had not waived its objection to the premature service of the payment claim.
- Category: Procedural
- Related Cases:
- [2016] 5 SLR 1011
- [2013] 1 SLR 1157
- [2013] 3 SLR 609
- [2014] SGHC 142
- [2014] SGHC 254
- [1992] 3 SLR(R) 155
- [2017] SGHC 46
- [2012] 1 SLR 152
- [1990] 1 Lloyd’s Rep 391
- [1998] 1 SLR(R) 385
- [2000] 1 SLR(R) 159
- [2011] 1 SLR 449
- [1933] AC 51
- [2008] 2 SLR(R) 1
- [2015] 2 SLR 630
8. Remedies Sought
- Enforcement of Adjudication Determination
- Setting Aside of Adjudication Determination
9. Cause of Actions
- Enforcement of Adjudication Determination
- Setting Aside of Adjudication Determination
10. Practice Areas
- Construction Disputes
- Commercial Litigation
- Arbitration
11. Industries
- Construction
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Grouteam Pte Ltd v UES Holdings Pte Ltd | Court of Appeal | Yes | [2016] 5 SLR 1011 | Singapore | Established that section 10(2) of SOPA is a mandatory provision and that an adjudication award arising from a payment claim served in breach of this provision would be invalid. Also discussed the possibility of waiving a breach of section 10(2) of SOPA. |
| Tienrui Design & Construction Pte Ltd v G & Y Trading and Manufacturing Pte Ltd | High Court | Yes | [2015] 5 SLR 852 | Singapore | Interpreted section 12(5) of SOPA regarding the dispute settlement period. |
| Sungdo Engineering & Construction (S) Pte Ltd v Italcor Pte Ltd | High Court | Yes | [2010] 3 SLR 459 | Singapore | Addressed the issue of whether a payment claim must state that it is made under SOPA. |
| Lee Wee Lick Terence v Chua Say Eng | Court of Appeal | Yes | [2013] 1 SLR 401 | Singapore | Established the test for determining the validity of a payment claim: compliance with s 10(3)(a) of SOPA and reg 5(2) of the Regulations. |
| Hyundai Engineering & Construction Co Ltd v International Elements Pte Ltd | High Court | Yes | [2016] 4 SLR 626 | Singapore | Addressed the issue of contracting out of SOPA provisions. |
| JFC Builders Pte Ltd v LionCity Counstruction Co Pte Ltd | High Court | Yes | [2013] 1 SLR 1157 | Singapore | Addressed whether a breach of s 10(1) of SOPA could be waived. |
| Admin Construction Pte Ltd v Vivaldi (S) Pte Ltd | High Court | Yes | [2013] 3 SLR 609 | Singapore | Discussed the validity of a payment claim and the adjudicator's jurisdiction. |
| YTL Construction (S) Pte Ltd v Balanced Engineering & Construction Pte Ltd | High Court | Yes | [2014] SGHC 142 | Singapore | Addressed non-compliance of s 10(3) of SOPA and whether it could be waived. |
| LH Aluminium Industries Pte Ltd v Newcon Builders Pte Ltd | High Court | Yes | [2014] SGHC 254 | Singapore | Addressed the issue of a “repeat claim” under s 10(1) of SOPA. |
| Mount Elizabeth Health Centre Pte Ltd v Mount Elizabeth Hospital Ltd | High Court | Yes | [1992] 3 SLR(R) 155 | Singapore | Outlined the requirements for waiver in general. |
| Linkforce Pte Ltd v Kajima Overseas Asia Pte Ltd | High Court | Yes | [2017] SGHC 46 | Singapore | Addressed the issue of waiver based on silence. |
| Chai Cher Watt (trading as Chuang Aik Engineering Works) v SDL Technologies Pte Ltd and another appeal | Court of Appeal | Yes | [2012] 1 SLR 152 | Singapore | Discussed the general requirements for waiver. |
| Motor Oil Hellas (Corinth) Refineries SA v Shipping Corp of India (The “Kanchenjunga”) | House of Lords | Yes | [1990] 1 Lloyd’s Rep 391 | England and Wales | Discussed the general requirements for waiver. |
| Fook Gee Finance Co Ltd v Liu Cho Chit | Court of Appeal | Yes | [1998] 1 SLR(R) 385 | Singapore | Discussed the circumstances under which silence may amount to a representation. |
| Tacplas Property Services Pte Ltd v Lee Peter Michael (administrator of the estate of Lee Ching Miow, deceased) | High Court | Yes | [2000] 1 SLR(R) 159 | Singapore | Discussed the circumstances under which silence may amount to a representation. |
| Astrata (Singapore) Pte Ltd v Tridex Technologies Pte Ltd | High Court | Yes | [2011] 1 SLR 449 | Singapore | Discussed the circumstances under which silence may amount to a representation. |
| Greenwood (Pauper) v Martins Bank, Limited | House of Lords | Yes | [1933] AC 51 | England and Wales | Discussed the circumstances under which silence may amount to a representation. |
| T2 Networks Pte Ltd v Nasioncom Sdn Bhd | High Court | Yes | [2008] 2 SLR(R) 1 | Singapore | Discussed the circumstances under which silence may amount to a representation. |
| AREIF (Singapore I) Pte Ltd v NTUC Fairprice Co-operative Ltd and another | High Court | Yes | [2015] 2 SLR 630 | Singapore | Discussed the circumstances under which silence may amount to a representation. |
13. Applicable Rules
| Rule Name |
|---|
| No applicable rules |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Building and Construction Industry Security of Payment Act (Cap 30B) | Singapore |
| Section 27 of the Building and Construction Industry Security of Payment Act (Cap 30B) | Singapore |
| Order 95, Rule 2 of the Rules of Court, Supreme Court of Judicature Act (Cap 322) | Singapore |
| Section 10(2) of the Building and Construction Industry Security of Payment Act (Cap 30B) | Singapore |
| Section 11(1) of the Building and Construction Industry Security of Payment Act (Cap 30B) | Singapore |
| Section 12(5) of the Building and Construction Industry Security of Payment Act (Cap 30B) | Singapore |
| Section 10(3) of the Building and Construction Industry Security of Payment Act (Cap 30B) | Singapore |
| Section 36(1) of the Building and Construction Industry Security of Payment Act (Cap 30B) | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Payment Claim
- Payment Response
- Adjudication Determination
- Building and Construction Industry Security of Payment Act
- SOPA
- Premature Payment Claim
- Waiver
- Mandatory Provision
- Subcontract
- Construction Contract
15.2 Keywords
- Building and Construction Industry Security of Payment Act
- SOPA
- Payment Claim
- Adjudication
- Construction Law
- Premature Payment Claim
- Waiver
16. Subjects
- Construction Law
- Contract Law
- Arbitration
- Building and Construction Industry Security of Payment Act
17. Areas of Law
- Building and Construction Law
- Statutes and Regulations
- Construction Law
- Contract Law
- Arbitration Law