Sito Construction v PBT Engineering: SOPA, Jurisdictional Objection & Waiver
In Sito Construction Pte Ltd (trading as Afone International) v PBT Engineering Pte Ltd, the Singapore High Court addressed an application to set aside an adjudication determination under the Building and Construction Industry Security of Payment Act (SOPA). PBT Engineering Pte Ltd, the respondent, sought to set aside the adjudication determination, arguing that Sito Construction Pte Ltd, the applicant, had no cause of action due to a lack of contractual relationship and that there was a patent error in the adjudicator's finding regarding a settlement agreement. The High Court dismissed the setting aside application, finding that the contract bound the parties, PBT Engineering had waived its right to raise jurisdictional objections, and there were no patent errors in the adjudicator's decision.
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
Singapore High Court case regarding a payment claim under the Building and Construction Industry Security of Payment Act (SOPA). The court dismissed the application to set aside the adjudication determination.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Sito Construction Pte Ltd (trading as Afone International) | Applicant | Corporation | Application dismissed | Lost | Koh Yheoh Zhou Napolean Rafflesson, Chong Yi Mei |
| PBT Engineering Pte Ltd | Respondent | Corporation | Application dismissed | Won | Wong Tze Roy |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Tan Siong Thye | Judge | Yes |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Koh Yheoh Zhou Napolean Rafflesson | Patrick Ong Law LLC |
| Chong Yi Mei | Patrick Ong Law LLC |
| Wong Tze Roy | Goh JP & Wong LLC |
4. Facts
- PBT Engineering Pte Ltd was a subcontractor for a building and construction project.
- Afone International entered into a contract with PBT Engineering Pte Ltd on 1 April 2016.
- Sito Construction Pte Ltd bought the business of Afone International in May 2016.
- Sito Construction Pte Ltd lodged a change of ownership of Afone International with ACRA on 16 July 2018.
- Afone International issued Payment Claim No. 25 on 14 June 2018 for $2,047,712.04.
- PBT Engineering Pte Ltd did not serve any payment response in respect of the Payment Claim.
- The adjudicator determined that PBT Engineering Pte Ltd was liable to pay Sito Construction Pte Ltd $1,752,684.22.
5. Formal Citations
- Sito Construction Pte Ltd (trading as Afone International) v PBT Engineering Pte Ltd, Originating Summons No 1069 of 2018(Summons No 4328 of 2018), [2019] SGHC 07
6. Timeline
| Date | Event |
|---|---|
| Contract entered into between PBT Engineering Pte Ltd and Afone International | |
| Sito Construction Pte Ltd bought the business of Afone International | |
| Applicant had done works under the Contract for the respondent and in turn, the respondent had paid the applicant $4,811,246.13 | |
| Afone International issued Payment Claim No. 25 | |
| Applicant lodged a change of ownership of Afone International with ACRA | |
| Applicant served on the respondent a Notice of Intention to Apply for Adjudication | |
| Adjudication application lodged by the applicant | |
| Respondent did a business profile search of Afone International and learnt of the change in ownership of Afone International | |
| Respondent lodged its adjudication response | |
| Applicant tendered further submissions | |
| Respondent tendered further submissions | |
| Adjudication conference held | |
| Adjudicator issued his determinations | |
| Applicant's solicitors wrote a letter to the respondent's solicitors to demand payment | |
| No reply from the respondent’s solicitors | |
| HRC/ORC 5818/2018 was extracted | |
| Respondent filed summons HC/SUM 4328/2018 to set aside both the Court Order and the AD | |
| Hearing of the parties, the setting aside application was dismissed | |
| Respondent made a request with comprehensive submissions for further arguments | |
| Applicant filed its further arguments | |
| Respondent filed a reply | |
| Parties came before me to make further oral arguments and upon considering their submissions, I maintained my decision to dismiss the setting aside application | |
| Respondent appealed | |
| Grounds of decision |
7. Legal Issues
- Jurisdictional Objection
- Outcome: The court found that the respondent had waived its rights to raise the jurisdictional objection.
- Category: Jurisdictional
- Sub-Issues:
- Absence of contractual relationship
- Lack of locus standi
- Waiver
- Outcome: The court held that the respondent had waived its rights to raise the jurisdictional objection.
- Category: Procedural
- Sub-Issues:
- Failure to raise objection at the earliest opportunity
- Admission of contractual relationship
- Patent Errors
- Outcome: The court found that there were no patent errors in the adjudicator's decision.
- Category: Substantive
- Sub-Issues:
- Incorrect finding of fact
- Failure to properly consider evidence
8. Remedies Sought
- Setting aside of Court Order
- Setting aside of Adjudication Determination
9. Cause of Actions
- Enforcement of Adjudication Determination
- Breach of Contract
10. Practice Areas
- Construction Law
- Commercial Litigation
11. Industries
- Construction
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Audi Construction Pte Ltd v Kian Hiap Construction Pte Ltd | Court of Appeal | Yes | [2018] 1 SLR 317 | Singapore | Cited for the principles regarding waiver of jurisdictional objections in SOPA adjudications. |
| Thu Aung Zaw v Ku Swee Boon (trading as Norb Creative Studio) | High Court | Yes | [2018] 4 SLR 1260 | Singapore | Cited for the principle that amendment of the name of an applicant, from the business name of a sole proprietorship to the name of the sole proprietor, was not a substantive amendment. |
| Chiah Huat Foodstuffs and Packaging (a firm) v Ng Bin Hua (formerly trading as Tjun Fong Enterprise) | High Court | Yes | [1992] 3 SLR(R) 270 | Singapore | Cited for the principle that the respondent contracted with Afone International to carry out the works stipulated under the Contract. |
| Comfort Management Pte Ltd v OGSP Engineering Pte Ltd | Court of Appeal | Yes | [2018] 1 SLR 979 | Singapore | Cited for the principle that in the absence of a payment or adjudication response, a respondent to an adjudication application can nonetheless argue before the reviewing court that the adjudication determination was invalid by highlighting patent errors in the adjudication determination to the reviewing court. |
| Mason & Son v Morgridge | N/A | Yes | (1892) 8 T.L.R 805 | N/A | Cited for the principle that a sole proprietor who is carrying on a business as a sole proprietorship under a business name different from his name can be sued under his business but he, in turn, cannot sue under his business name. |
13. Applicable Rules
| Rule Name |
|---|
| Rules of Court Order 77 rule 9 |
| Rules of Court Order 20 rule 5(3) |
| Rules of Court Order 20 rule 5(2) |
| Rules of Court Order 1 rule 2(1) |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Building and Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed) | Singapore |
| Rules of Court (Cap 322, R 5, 2014 Rev Ed) | Singapore |
| Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Building and Construction Industry Security of Payment Act
- Adjudication Determination
- Payment Claim
- Jurisdictional Objection
- Waiver
- Patent Error
- Sole Proprietorship
- Novation
- Assignment
15.2 Keywords
- SOPA
- Adjudication
- Construction
- Payment Claim
- Jurisdictional Objection
- Waiver
- Patent Error
16. Subjects
- Construction Dispute
- Adjudication
- Civil Procedure
17. Areas of Law
- Building and Construction Law
- Dispute Resolution
- Contract Law