Bintai Kindenko v Samsung C&T: Setting Aside Adjudication Determination for Breach of Natural Justice

Bintai Kindenko Private Limited appealed against the High Court's decision to set aside an adjudication determination in favor of Bintai against Samsung C&T Corporation. The High Court had found that the adjudicator failed to consider essential issues raised by Samsung, constituting a breach of natural justice. The Court of Appeal dismissed Bintai's appeal, finding that the adjudicator did breach natural justice by failing to consider the issues regarding backcharges and variation works raised by Samsung. The court also addressed the personal liability of solicitors for costs.

1. Case Overview

1.1 Court

Court of Appeal of the Republic of Singapore

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 setting aside an adjudication determination due to the adjudicator's failure to consider essential arguments, constituting a breach of natural justice. Appeal dismissed.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
Samsung C&T CorporationRespondentCorporationAppeal UpheldWon
Bintai Kindenko Private LimitedAppellant, ApplicantCorporationAppeal DismissedLost

3. Judges

Judge NameTitleDelivered Judgment
Sundaresh MenonChief JusticeYes
Tay Yong KwangJudge of AppealNo
Steven ChongJudge of AppealNo

4. Counsels

Counsel NameOrganization
Aw Wei Keng KelvinMorgan Lewis Stamford LLC
Lee Kok Wee, EugeneMorgan Lewis Stamford LLC
Chong Kuan KeongChong Chia & Lim LLC
Sia ErnestChong Chia & Lim LLC

4. Facts

  1. Samsung engaged Bintai as a subcontractor for mechanical, electrical, and plumbing works for $85,850,000.00.
  2. A dispute arose from Payment Claim No 59 submitted by Bintai for $13,479,366.43.
  3. Samsung's Payment Response No 59 stated a response amount of ($2,190,963.62).
  4. Bintai sought payment of $2,146,250.00 in the adjudication proceedings, relating to the release of retention monies.
  5. Samsung raised issues of backcharges and variation works in its Adjudication Response.
  6. The Adjudicator found in favor of Bintai, ordering Samsung to pay $2,146,250.00.
  7. The Adjudicator did not consider the issues of backcharges and variation works.

5. Formal Citations

  1. Bintai Kindenko Pte Ltd v Samsung C&T Corp, Civil Appeal No 211 of 2017, [2018] SGCA 39

6. Timeline

DateEvent
Letter of acceptance for subcontract issued to Bintai
Bintai submitted Payment Claim No 59
Samsung submitted Payment Response No 59
Bintai served notice of intention to apply for adjudication and lodged the Adjudication Application
Adjudicator appointed by the Singapore Mediation Centre
Samsung filed the Adjudication Response
Bintai filed its reply submissions
Samsung filed its written reply to Bintai’s reply submissions
Oral conference held
Adjudicator rendered the Adjudication Determination
Samsung made payment of the costs of the adjudication proceedings
Bintai filed OS 975/2017, seeking leave to enforce the Adjudication Determination
Assistant registrar granted the order of court sought by Bintai in OS 975/2017
Samsung filed the Setting Aside Application
Court dismissed the appeal
Grounds of Decision furnished

7. Legal Issues

  1. Breach of Natural Justice
    • Outcome: The court found that the adjudicator breached natural justice by failing to consider essential issues raised by Samsung.
    • Category: Substantive
    • Sub-Issues:
      • Failure to consider essential arguments
      • Failure to provide a fair hearing
  2. Personal Liability of Solicitor for Costs
    • Outcome: The court ordered counsel for both parties to bear personal liability for a portion of the photocopying charges and stamp fees incurred in respect of the Agreed Bundle of Documents.
    • Category: Procedural
    • Sub-Issues:
      • Unreasonable or improper incurring of costs
      • Failure to conduct proceedings with reasonable competence and expedition

8. Remedies Sought

  1. Setting aside of adjudication determination
  2. Enforcement 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 NameCourtAffirmedCitationJurisdictionSignificance
Citiwall Safety Glass Pte Ltd v Mansource Interior Pte LtdHigh CourtYes[2015] 1 SLR 797SingaporeCited for the power of the court to set aside an adjudication determination if an adjudicator has acted in breach of his duty to comply with the requirements of natural justice.
SEF Construction Pte Ltd v Skoy Connected Pte LtdHigh CourtYes[2010] 1 SLR 733SingaporeCited for the power of the court to set aside an adjudication determination if an adjudicator has acted in breach of his duty to comply with the requirements of natural justice and for the two aspects to the natural justice principles.
CMC Ravenna Singapore Branch v CGW Construction & Engineering (S) Pte LtdHigh CourtYes[2018] 3 SLR 503SingaporeCited for the two aspects to the natural justice principles.
AM Associates (Singapore) Pte Ltd v Laguna National Golf and Country Club LtdHigh CourtYes[2009] SGHC 260SingaporeCited for the two aspects to the natural justice principles.
Metropole Pte Ltd v Designshop Pte LtdHigh CourtYes[2017] 4 SLR 277SingaporeCited for the requirement for an adjudicator to receive and consider the submissions of both parties.
AKN and another v ALC and others and other appealsCourt of AppealYes[2015] 3 SLR 488SingaporeCited for the principle that to fail to consider an important issue that has been pleaded in an arbitration is a breach of natural justice.
Soh Beng Tee & Co Pte Ltd v Fairmount Development Pte LtdCourt of AppealYes[2007] 3 SLR(R) 86SingaporeCited for the principle that to fail to consider an important issue that has been pleaded in an arbitration is a breach of natural justice.
Gas & Fuel Corporation of Victoria v Wood Hall Ltd & Leonard Pipeline Contractors LtdSupreme Court of VictoriaYes[1978] VR 385AustraliaCited for the principle that to fail to consider an important issue that has been pleaded in an arbitration is a breach of natural justice.
Front Row Investment Holdings (Singapore) Pte Ltd v Daimler South East Asia Pte LtdHigh CourtYes[2010] SGHC 80SingaporeCited for the principle that an arbitral award may be set aside on the basis of a breach of natural justice where the tribunal has completely failed to consider the arguments raised in respect of an important issue in the arbitration.
TMM Division Maritima SA de CV v Pacific Richfield Marine Pte LtdHigh CourtYes[2013] 4 SLR 972SingaporeCited for the principle that an arbitral tribunal does not have a duty to deal with every issue raised by the parties, and need only deal with the essential issues raised.
BLB and another v BLC and othersHigh CourtYes[2013] 4 SLR 1169SingaporeCited for applying the principles set out in Front Row and TMM.
AQU v AQVHigh CourtYes[2015] SGHC 26SingaporeCited for applying the principles set out in Front Row and TMM.
ASG v ASHHigh CourtYes[2016] 5 SLR 54SingaporeCited for the principle that the inference that an arbitrator has failed to consider an important pleaded issue may only be drawn if it was “clear and virtually inescapable”.
Fisher, Stephen J v Sunho Construction Pte LtdHigh CourtYes[2018] SGHC 76SingaporeCited for the principle that the inference that an arbitrator has failed to consider an important pleaded issue may only be drawn if it was “clear and virtually inescapable”.
Thong Ah Fat v Public ProsecutorHigh CourtYes[2012] 1 SLR 676SingaporeCited for the duty to give reasons in the context of court litigation.
Yap Ah Lai v Public ProsecutorHigh CourtYes[2014] 3 SLR 180SingaporeCited for the duty to give reasons in the context of court litigation.
Ten Leu Jiun Jeanne-Marie v National University of SingaporeHigh CourtYes[2015] 5 SLR 438SingaporeCited for the duty to give reasons in the context of court litigation.
AUF v AUG and other mattersHigh CourtYes[2016] 1 SLR 859SingaporeCited for the duty to give reasons in the context of arbitration.
Eagil Trust Co Ltd v Pigott-BrownCourt of AppealYes[1985] 3 All ER 119England and WalesCited for the principle that the crux is whether the contents of the arbitral award taken as a whole inform the parties of the bases on which the arbitral tribunal reached its decision on the material or essential issues.
Aik Heng Contracts and Services Pte Ltd v Deshin Engineering & Construction Pte LtdHigh CourtYes[2015] SGHC 293SingaporeCited for the principle that an adjudication determination may only be set aside on the basis of a breach of natural justice that is sufficiently material as to cause prejudice to the aggrieved party in the adjudication.
Balfour Beatty Construction Limited v The Mayor and Burgesses of the London Borough of LambethTechnology and Construction CourtYes[2002] BLR 288England and WalesCited for the principle that an adjudication determination may only be set aside on the basis of a breach of natural justice that is sufficiently material as to cause prejudice to the aggrieved party in the adjudication.
Watpac Construction (NSW) Pty Ltd v Austin Corp Pty LtdSupreme Court of New South WalesYes[2010] NSWSC 168AustraliaCited for the principle that an adjudication determination may only be set aside on the basis of a breach of natural justice that is sufficiently material as to cause prejudice to the aggrieved party in the adjudication.
L W Infrastructure Pte Ltd v Lim Chin San Contractors Pte Ltd and another appealCourt of AppealYes[2013] 1 SLR 125SingaporeCited for the test for whether a breach of natural justice is considered sufficiently material.
Ridehalgh v HorsefieldCourt of AppealYes[1994] Ch 205England and WalesCited for the three-step test to determine personal liability of a solicitor for costs.
Prometheus Marine Pte Ltd v King, Ann Rita and another appealCourt of AppealYes[2018] 1 SLR 1SingaporeCited for the three-step test to determine personal liability of a solicitor for costs.
Ho Kon Kim v Lim Gek Kim Betsy and others and another appealCourt of AppealYes[2001] 3 SLR(R) 220SingaporeCited for the three-step test to determine personal liability of a solicitor for costs.
Tang Liang Hong v Lee Kuan Yew and another and other appealsCourt of AppealYes[1997] 3 SLR(R) 576SingaporeCited for the three-step test to determine personal liability of a solicitor for costs.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute NameJurisdiction
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 16(3)(c)Singapore
Rules of Court (Cap 322, R 5, 2014 Rev Ed) O 59 r 8(1)Singapore
Building and Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed) s 13(3)(c)Singapore
Building and Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed) s 27(1)Singapore
Building and Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed) s 27(2)Singapore
Building and Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed) s 16(2)(a)Singapore

15. Key Terms and Keywords

15.1 Key Terms

  • Adjudication Determination
  • Adjudication Application
  • Payment Claim
  • Payment Response
  • Breach of Natural Justice
  • Setting Aside Application
  • Retention Monies
  • Backcharges
  • Variation Works
  • Agreed Bundle of Documents

15.2 Keywords

  • Adjudication
  • Construction Law
  • Breach of Natural Justice
  • Singapore
  • Building and Construction Industry Security of Payment Act
  • Costs
  • Personal Liability
  • Solicitor

17. Areas of Law

Area NameRelevance Score
Building and Construction Industry Security of Payment Act 200495
Construction Law90
Adjudication85
Natural justice70
Civil Procedure60
Costs50
Arbitration40
Witnesses10

16. Subjects

  • Construction Dispute
  • Adjudication
  • Breach of Natural Justice
  • Civil Procedure
  • Costs