Fu Yuan Construction v Fab-5: Striking Out & Setting Aside Applications Under SOPA

In Fu Yuan Construction Pte Ltd v Fab-5 Pte Ltd, the General Division of the High Court of Singapore heard two applications. Fu Yuan Construction sought to strike out Fab-5's application to set aside an adjudication determination and an order enforcing it under the Building and Construction Industry Security of Payment Act (SOPA). Fab-5 sought to set aside a provisional garnishee order. The court dismissed Fu Yuan Construction's application and dismissed prayers (2) and (4) of Fab-5's application, with no order made on all the other prayers.

1. Case Overview

1.1 Court

General Division of the High Court

1.2 Outcome

SUM 5045 is dismissed; in relation to SUM 5046, prayers (2) and (4) are dismissed with no order made on all the other prayers.

1.3 Case Type

Civil

1.4 Judgment Type

Judgment

1.5 Jurisdiction

Singapore

1.6 Description

Fu Yuan Construction sought to strike out Fab-5's application to set aside an adjudication determination. Fab-5 sought to set aside a garnishee order. Both applications were dismissed.

1.7 Decision Date

1 February 2021

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
Fu Yuan Construction Pte Ltd	Plaintiff	Corporation	Application Dismissed	Lost	Gan Guo Bin of Messrs Winston Quek & Co
Fab-5 Pte Ltd	Defendant	Corporation	Prayers (2) and (4) Dismissed	Partial	Kor Wan Wen Melissa of Optimus Chambers LLC

3. Judges

Judge Name	Title	Delivered Judgment
Colin Seow	Assistant Registrar	Yes

4. Counsels

Counsel Name	Organization
Gan Guo Bin	Messrs Winston Quek & Co
Kor Wan Wen Melissa	Optimus Chambers LLC

4. Facts

The plaintiff lodged an adjudication application under the SOPA against the defendant.
The adjudicator issued an adjudication determination in favor of the plaintiff for $906,976.22.
The plaintiff commenced proceedings seeking the enforcement of the adjudication determination.
The plaintiff commenced three separate garnishee proceedings.
The defendant commenced SUM 3558 seeking the setting aside of both the adjudication determination and ORC 3877/2020.
The plaintiff filed SUM 5045 seeking the striking out of SUM 3558.
The defendant filed SUM 5046, seeking a variety of orders.

5. Formal Citations

Fu Yuan Construction Pte Ltd v Fab-5 Pte Ltd, Originating Summons No 620 of 2020 (Summons No 5045 of 2020 and Summons No 5046 of 2020), [2021] SGHCR 2

6. Timeline

Date	Event
2020-05-29	Plaintiff lodged an adjudication application under the SOPA against the defendant.
2020-06-16	The adjudicator issued an adjudication determination in favour of the plaintiff.
2020-06-17	The plaintiff served the adjudication determination on the defendant via registered post.
2020-06-24	The plaintiff commenced proceedings by way of an ex parte application under High Court Originating Summons No 620 of 2020.
2020-07-17	OS 620 was granted by an Assistant Registrar.
2020-07-20	The formal order of court was extracted by the plaintiff’s solicitors and despatched to the defendant.
2020-08-07	The plaintiff commenced three separate garnishee proceedings.
2020-08-11	An Assistant Registrar made a provisional garnishee order.
2020-08-21	The defendant commenced SUM 3558 seeking the setting aside of both the adjudication determination and ORC 3877/2020.
2020-11-18	The plaintiff filed SUM 5045 seeking the striking out of SUM 3558.
2020-11-18	The defendant filed SUM 5046, seeking a variety of orders.
2020-12-23	The oral hearing for both SUM 5045 and SUM 5046 was conducted.
2021-02-02	Judgment reserved.

7. Legal Issues

Abuse of Process
- Outcome: The court found no abuse of process warranting a striking out of SUM 3558.
- Category: Procedural
- Related Cases:
  - [2016] 1 SLR 915
  - [2019] 3 SLR 326
  - [2006] 1 SLR(R) 582
  - [1982] AC 529
  - [2007] 1 SLR(R) 453
  - [2018] SGHCR 3
Setting Aside Provisional Garnishee Order
- Outcome: The court found the defendant's application to set aside the provisional garnishee order to be frivolous.
- Category: Procedural
- Related Cases:
  - [2019] SGHC 126
  - [2020] 1 SLR 206
  - [2001] 1 SLR(R) 213
  - [2008] 4 SLR(R) 769
Compliance with Order 95 Rule 2(4) of the Rules of Court
- Outcome: The court found that the defendant's breach of the 14-day timeline did not constitute an abuse of process of the court.
- Category: Procedural
- Related Cases:
  - [2015] 1 SLR 797
Compliance with Order 95 Rule 3(3) of the Rules of Court
- Outcome: The court found no abuse of process arising from the defendant's failure to provide the security under Order 95 Rule 3(3) of the Rules of Court.
- Category: Procedural
- Related Cases:
  - [2018] SGHCR 3

8. Remedies Sought

Striking Out of Summons
Setting Aside of Provisional Garnishee Order
Joinder as a Party
Extension of Time

9. Cause of Actions

Enforcement of Adjudication Determination
Setting Aside Adjudication Determination

10. Practice Areas

Commercial Litigation
Construction Law

11. Industries

Construction

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
Attorney-General v Aljunied-Hougang-Punggol East Town Council	Court of Appeal	Yes	[2016] 1 SLR 915	Singapore	Cited for the principle that Order 18 Rule 19 of the Rules of Court is inapplicable to summonses.
Cheong Wei Chang v Lee Hsien Loong and another matter	High Court	Yes	[2019] 3 SLR 326	Singapore	Cited as ostensible recognition by the High Court that the court retains the inherent power to strike out an action on the basis that the proceedings are an abuse of process of the court.
Chee Siok Chin and others v Minister for Home Affairs and another	High Court	Yes	[2006] 1 SLR(R) 582	Singapore	Cited for legal principles in the context of an application seeking the striking out of an originating motion.
Citiwall Safety Glass Pte Ltd v Mansource Interior Pte Ltd	Court of Appeal	Yes	[2015] 1 SLR 797	Singapore	Cited to interpret the 14-day timeline in Order 95 Rule 2(4) of the Rules of Court as the deadline by which the relevant setting aside application must be brought.
Hunter v Chief Constable of the West Midlands Police	N/A	Yes	[1982] AC 529	N/A	Cited for the observation that the court’s inherent power to strike out proceedings as an abuse of process is one which any court of justice must possess to prevent misuse of its procedure.
Goh Nellie v Goh Lian Teck and others	N/A	Yes	[2007] 1 SLR(R) 453	N/A	Cited for recognizing and accepting Lord Diplock’s characterisation of such distinctive feature of abuse of process.
FT Plumbing Construction Pte Ltd v Authentic Builder Pte Ltd and another matter	High Court	Yes	[2018] SGHCR 3	Singapore	Cited for the principle that where a plaintiff has not made payment of the adjudicated amount because it is genuinely unable to do so as a result of its financial situation, its commencement of proceedings to obtain a final determination of the underlying dispute in those circumstances cannot, without more, be considered an abuse of process.
Vinod Kumar Ramgopal Didwania v Hauslab Design & Build Pte Ltd	N/A	Yes	[2017] 1 SLR 890	N/A	Cited for principle and policy considerations underpinning the doctrine of “temporary finality” of adjudication determinations in the SOPA regime.
W Y Steel Construction Pte Ltd v Osko Pte Ltd	N/A	Yes	[2013] 3 SLR 380	N/A	Cited for principle and policy considerations underpinning the doctrine of “temporary finality” of adjudication determinations in the SOPA regime.
Lim Poh Yeoh (alias Aster Lim) v TS Ong Construction Pte Ltd	N/A	Yes	[2017] 4 SLR 789	N/A	Cited for the principle that courts do, where appropriate, vigilantly consider and weigh the possibility of stifling genuine claims in situations where its inherent power is sought to be invoked on allegations of abuse of process.
Harmonious Coretrades Pte Ltd v United Integrated Services Pte Ltd	Court of Appeal	Yes	[2020] 1 SLR 206	Singapore	Cited for affirming the High Court’s general holding that the three specified circumstances are not exhaustive and that the court retains a residual discretion to set aside a judgment or court order.
Ong Cher Keong v Goh Chin Soon Ricky	N/A	Yes	[2001] 1 SLR(R) 213	N/A	Cited for circumstances where the court can set aside judgments or court orders.
Sunny Daisy Ltd v WBG Network (Singapore) Pte Ltd	N/A	Yes	[2008] 4 SLR(R) 769	N/A	Cited for circumstances where the court can set aside judgments or court orders.
United Integrated Services Pte Ltd v Harmonious Coretrades Pte Ltd	High Court	Yes	[2019] SGHC 126	Singapore	Cited for the argument that it would be unfairly prejudiced if the provisional garnishee order is not set aside, since it has been prevented by that order to apply the funds in its OCBC bank account to stand as security pursuant to Order 95 Rule 3(3) of the Rules of Court (read with section 27(5) of the SOPA).
Qingjian International (South Pacific) Group Development Co Pte Ltd v Capstone Engineering Pte Ltd	High Court	Yes	[2014] SGHCR 5	Singapore	Cited for service of ORC 3877/2020 on the defendant via ordinary post.

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) (“SOPA”)	Singapore
section 27 of the SOPA	Singapore
Order 95 Rule 2 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“Rules of Court”)	Singapore
Order 95 Rule 3(3) of the Rules of Court	Singapore
Order 92 Rule 4 of the Rules of Court	Singapore
Order 18 Rule 19 of the Rules of Court	Singapore
section 2(5) of the Interpretation Act (Cap 1, 2002 Rev Ed)	Singapore

15. Key Terms and Keywords

15.1 Key Terms

Adjudication Determination
Security of Payment Act
Garnishee Order
Striking Out
Setting Aside
Abuse of Process
Provisional Garnishee Order
Rules of Court
Inherent Power of the Court

15.2 Keywords

SOPA
adjudication
construction
garnishee
security
striking out
setting aside

17. Areas of Law

Area Name	Relevance Score
Building and Construction Industry Security of Payment Act	80
Civil Practice	75
Building and Construction Law	70
Construction Law	65
Garnishee Proceedings	50
Summary Judgement	30

16. Subjects

Construction Dispute
Civil Procedure
Arbitration Law