Tong Hai Yang Construction v Little Swan Air-Conditioning: SOPA Adjudication Determination Dispute

Tong Hai Yang Construction Pte Ltd sought to set aside an Amended Adjudication Determination (AD) dated 30 May 2019, in which the Adjudicator determined that Tong Hai Yang Construction Pte Ltd was liable to pay $135,546.00 to Little Swan Air-Conditioning & Engineering Pte Ltd. The High Court dismissed the application, finding that Tong Hai Yang Construction Pte Ltd had waived its right to object to the variation orders and that the Adjudicator had not overlooked any material patent error in the adjudication application.

1. Case Overview

1.1 Court

High Court of the Republic of Singapore

1.2 Outcome

Application dismissed

1.3 Case Type

Civil

1.4 Judgment Type

Judgment

1.5 Jurisdiction

Singapore

1.6 Description

Plaintiff Tong Hai Yang Construction sought to set aside an adjudication determination (AD) under the Building and Construction Industry Security of Payment Act (SOPA). The court dismissed the application.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
Tong Hai Yang Construction Pte LtdPlaintiffCorporationApplication dismissedLost
Little Swan Air-Conditioning & Engineering Pte LtdDefendantCorporationApplication dismissedWon

3. Judges

Judge NameTitleDelivered Judgment
Vincent HoongJudicial CommissionerYes

4. Counsels

Counsel NameOrganization
Choa Sn-Yien BrendonACIES Law Corporation
Zachariah Chow Jie RuiACIES Law Corporation
Chong Kuan KeongChong Chia & Lim LLC
Gan Siu Min CherylChong Chia & Lim LLC
Sia ErnestChong Chia & Lim LLC

4. Facts

  1. Plaintiff was the main contractor for a construction project.
  2. Plaintiff appointed the Defendant as its sub-contractor for $500,000.00.
  3. Defendant served Progress Claim No 5 on the Plaintiff, claiming $174,601.00.
  4. Plaintiff did not file a payment response to Progress Claim No 5.
  5. Adjudicator determined that the Plaintiff was liable to pay $135,546.00 to the Defendant.
  6. Plaintiff sought to set aside the Adjudication Determination.

5. Formal Citations

  1. Tong Hai Yang Construction Pte Ltd v Little Swan Air-Conditioning & Engineering Pte Ltd, Originating Summons 778 of 2019, [2019] SGHC 188

6. Timeline

DateEvent
Plaintiff appointed the Defendant as its sub-contractor for $500,000.00.
Completion certificate for the Works was issued.
Plaintiff acknowledged receipt of a form from the Defendant regarding variation orders.
Defendant submitted Final Account Document to the Plaintiff claiming $105,937.50 for variation orders.
Defendant served Progress Claim No 5 on the Plaintiff, claiming $174,601.00.
Defendant lodged Adjudication Application 144 of 2019.
Plaintiff sent a letter to the Defendant regarding variation order items.
Adjudicator issued the Amended Adjudication Determination.
Hearing date
Judgment reserved

7. Legal Issues

  1. Waiver
    • Outcome: The court found that the Plaintiff had waived its right to object to the variation orders by failing to file a payment response and by acknowledging the variation orders in prior communications.
    • Category: Substantive
    • Related Cases:
      • [2018] 1 SLR 317
  2. Patent Error
    • Outcome: The court found that the Adjudicator had not overlooked any material patent error in the adjudication application.
    • Category: Substantive
    • Related Cases:
      • [2018] 1 SLR 979
      • [2019] SGCA 36

8. Remedies Sought

  1. Setting aside of Adjudication Determination

9. Cause of Actions

  • Breach of Contract

10. Practice Areas

  • Construction Law
  • Adjudication

11. Industries

  • Construction

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
Audi Construction Pte Ltd v Kian Hiap Construction Pte LtdCourt of AppealYes[2018] 1 SLR 317SingaporeCited for the principle that a contractor's failure to raise objections in a payment response constitutes a waiver of the right to object before the adjudicator.
Comfort Management Pte Ltd v OGSP Engineering Pte LtdCourt of AppealYes[2018] 1 SLR 979SingaporeCited for the principle that an adjudicator has an independent duty to address his mind to and consider the true merits of a payment claim, regardless of whether any payment response has been filed.
Far East Square Pte Ltd v Yau Lee Construction (Singapore) Pte LtdSingapore Court of AppealYes[2019] SGCA 36SingaporeCited for the principle that a respondent who has not filed a payment response remains entitled to raise patent errors in the material properly before the adjudicator.
W Y Steel Construction Pte Ltd v Osko Pte LtdCourt of AppealYes[2013] 3 SLR 380SingaporeCited for the limited scope of the court’s powers of review of adjudication determinations.

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

15. Key Terms and Keywords

15.1 Key Terms

  • Adjudication Determination
  • Variation Orders
  • Payment Response
  • Patent Error
  • Waiver
  • Progress Claim
  • Sub-contractor

15.2 Keywords

  • Building and Construction Law
  • Statutes and regulations
  • Building and Construction Industry Security of Payment Act
  • Adjudication determinations
  • Waiver
  • Patent error

17. Areas of Law

Area NameRelevance Score
Building and Construction Industry Security of Payment Act95
Construction Law90
Adjudication Determinations85
Waiver80
Patent Error75
Adjudication70
Statutory Interpretation60
Contract Law50
Penalties30

16. Subjects

  • Building and Construction Industry Security of Payment Act
  • Adjudication Determinations
  • Waiver
  • Patent error