Ser Kim Koi v GTMS Construction: Construction Dispute - EOT, CC, Defect Rectification

In Ser Kim Koi v GTMS Construction Pte Ltd, the Appellate Division of the High Court of Singapore heard appeals regarding a construction dispute. Mr. Ser Kim Koi, the owner, appealed against GTMS Construction Pte Ltd, the contractor, and Mr. Chan Sau Yan, the architect. The dispute concerned claims for unpaid sums, counterclaims for defective works, and allegations of conspiracy. The court allowed the appeal in part, finding errors in the determination of delay length, certification process, and assessment of liquidated damages. The court affirmed the Judge’s costs orders below.

1. Case Overview

1.1 Court

Appellate Division of the High Court

1.2 Outcome

Appeal Allowed in Part

1.3 Case Type

Civil

1.4 Judgment Type

Written Judgment

1.5 Jurisdiction

Singapore

1.6 Description

Singapore case on construction dispute involving EOT, CC, and defect rectification. Appeal allowed in part, addressing errors in determining delay.

1.7 Decision Date

2 October 2022

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
Ser Kim Koi	Appellant, Plaintiff in counterclaim	Individual	Appeal Allowed in Part	Partial	Thng Huilin Melissa of Dentons Rodyk & Davidson LLP Toh Wei Qing, Geraldine of Dentons Rodyk & Davidson LLP Kirindeep Singh of Dentons Rodyk & Davidson LLP Ajinderpal Singh of Dentons Rodyk & Davidson LLP
GTMS Construction Pte Ltd	Respondent, Plaintiff, Defendant in counterclaim	Corporation	Judgment for Plaintiff upheld with modifications	Partial	Thulasidas s/o Rengasamy Suppramaniam of Ling Das & Partners Ling Koon Hean David of Ling Das & Partners
Chan Sau Yan (formerly known as trading as Chan Sau Yan Associates)	Respondent, Third Parties	Individual	Judgment against Third Party	Lost	Thio Shen Yi of TSMP Law Corporation Monisha Cheong of TSMP Law Corporation
CSYA Pte Ltd	Respondent, Third Parties	Corporation	Judgment for Third Party	Won	Thio Shen Yi of TSMP Law Corporation Monisha Cheong of TSMP Law Corporation

3. Judges

Judge Name	Title	Delivered Judgment
Woo Bih Li	Judge of the Appellate Division	No
Quentin Loh	Judge of the Appellate Division	Yes
Chua Lee Ming	Judge of the High Court	No

4. Counsels

Counsel Name	Organization
Thng Huilin Melissa	Dentons Rodyk & Davidson LLP
Toh Wei Qing, Geraldine	Dentons Rodyk & Davidson LLP
Kirindeep Singh	Dentons Rodyk & Davidson LLP
Ajinderpal Singh	Dentons Rodyk & Davidson LLP
Thulasidas s/o Rengasamy Suppramaniam	Ling Das & Partners
Ling Koon Hean David	Ling Das & Partners
Thio Shen Yi	TSMP Law Corporation
Monisha Cheong	TSMP Law Corporation

4. Facts

Mr. Ser engaged Mr. Chan as his architect under a memorandum of agreement dated 16 June 2009.
GTMS was engaged to construct three bungalows on Mr. Ser's land under the Singapore Institute of Architects Articles and Conditions of Building Contract.
The original completion date for the Works was 21 February 2013.
GTMS requested and was granted two extensions of time (EOT 2 and EOT 3) totaling 55 days.
The project failed the First TOP Inspection on 30 April 2013.
Mr. Chan issued the Completion Certificate on 15 May 2013, certifying completion of the Project as of 17 April 2013.
The project failed the Second TOP Inspection on 18 June 2013.
The TOP was approved on 16 September 2013 by way of photographic submissions.

5. Formal Citations

Ser Kim Koi v GTMS Construction Pte Ltd and others and another appeal, Civil Appeals Nos 20 and 36 of 2021, [2022] SGHC(A) 34

6. Timeline

Date	Event
2009-06-16	Mr Ser engaged Mr Chan as his architect
2011-05-13	Letter of Acceptance issued
2012-11-21	SPPG informs Mr Ser of OG Box requirement
2012-12-20	GTMS requests EOT 2
2013-02-07	EOT 2 granted
2013-04-01	GTMS requests EOT 3
2013-04-10	EOT 3 granted
2013-04-17	Final site inspection conducted
2013-04-18	Maintenance period commences
2013-04-30	First TOP Inspection fails
2013-05-15	Completion Certificate issued
2013-06-18	Second TOP Inspection fails
2013-09-03	IC 25 issued
2013-09-16	TOP approved
2013-11-06	IC 26 issued
2014-05-12	Certificate of Statutory Completion issued
2014-07-07	Maintenance Certificate issued
2014-07-21	Project handed over to Mr Ser
2015-06-22	Final Certificate issued
2018-10-16	BAPL releases the Report on the Schedule of Building Defects

7. Legal Issues

Breach of Contract
- Outcome: The court found that there was a breach of contract due to the failure to comply with specifications and the improper issuance of certificates.
- Category: Substantive
- Sub-Issues:
  - Improper certification
  - Defective works
  - Delay in completion
Negligence
- Outcome: The court found the architect negligent in certain aspects of his duties, leading to an award of nominal damages.
- Category: Substantive
- Sub-Issues:
  - Failure to exercise due care
  - Improper supervision
  - Failure to comply with statutory requirements
Extension of Time
- Outcome: The court found that the EOTs were validly granted.
- Category: Substantive
- Sub-Issues:
  - Force majeure
  - Due diligence
  - Delaying factor
Liquidated Damages
- Outcome: The court found that GTMS was liable for liquidated damages for a certain period, but the liquidated damages clause was inoperable due to the prevention principle.
- Category: Substantive
- Sub-Issues:
  - Prevention principle
  - Delay Certificate
  - Termination of Delay Certificate

8. Remedies Sought

Monetary Damages
Costs of Rectification
Account of Profits
Liquidated Damages

9. Cause of Actions

Breach of Contract
Negligence
Unlawful Means Conspiracy

10. Practice Areas

Commercial Litigation
Construction Law
Architectural Services

11. Industries

Construction

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
GTMS Construction Pte Ltd v Ser Kim Koi (Chan Sau Yan and Chan Sau Yan Associates, third parties)	High Court	Yes	[2015] 1 SLR 671	Singapore	Cited for the application for summary judgment against Mr Ser on the basis of two Interim Payment Certificates 25 and 26.
Ser Kim Koi v GTMS Construction Pte Ltd	Court of Appeal	Yes	[2016] 3 SLR 51	Singapore	Cited for setting aside the summary judgment and finding that neither IC 25 nor IC 26 had temporary finality.
GTMS Construction Pte Ltd v Ser Kim Koi (Chan Sau Yan (formerly trading as Chan Sau Yan Associates) and another, third parties)	High Court	Yes	[2021] SGHC 9	Singapore	Cited as the judgment under appeal, where the High Court allowed GTMS’s and Mr Chan’s claims and dismissed the bulk of Mr Ser’s claims.
GTMS Construction Pte Ltd v Ser Kim Koi (Chan Sau Yan (formerly trading as Chan Sau Yan Associates) and another, third parties)	High Court	Yes	[2021] SGHC 33	Singapore	Cited as the supplemental judgment on costs, in which the Judge ordered Mr Ser to pay part of the costs of the action to GTMS and Mr Chan on an indemnity basis.
Ser Kim Koi v GTMS Construction Pte Ltd and others	Court of Appeal	Yes	[2021] 1 SLR 1319	Singapore	Cited for granting Mr Ser leave to appeal against the Costs Judgment.
British Electrical and Associated Industries (Cardiff) Ltd v Patley Pressings Ltd	English High Court	Yes	[1953] 1 WLR 280	England and Wales	Cited for the proposition that a force majeure clause which does not elaborate the types of events that may form the basis of force majeure is vague and uncertain.
Matsoukis v Priestman & Co	King's Bench Division	Yes	[1915] 1 KB 681	England and Wales	Cited as an example of force majeure being interpreted to cover dislocation of business owing to a universal coal strike or accidents to machinery but not bad weather, football matches or a funeral.
RDC Concrete Pte Ltd v Sato Kogyo (S) Pte Ltd and another appeal	Court of Appeal	Yes	[2007] 4 SLR(R) 413	Singapore	Cited for the principle that the precise construction of a force majeure clause is paramount.
Holcim (Singapore) Pte Ltd v Precise Development Pte Ltd	Court of Appeal	Yes	[2011] 2 SLR 106	Singapore	Cited for the principle that whether the affected party must have taken all reasonable steps before he can rely on the force majeure clause depends on the precise language of the clause concerned.
Tandrin Aviation Holdings Ltd v Aero Toy Store and another	English High Court	Yes	[2010] EWHC 40	England and Wales	Cited for the principle that the burden of proof falls on the party seeking to rely on a force majeure clause.
Roberts v The Bury Improvement Commissioners	Court of Common Pleas	Yes	(1870) LR 5 CP 310	England and Wales	Cited for the prevention principle, where an act of the employer prevents the contractor from completing his works on time.
Evergreat Construction Co Pte Ltd v Presscrete Engineering Pte Ltd	High Court	Yes	[2006] 1 SLR(R) 634	Singapore	Cited for the application of the prevention principle in Singapore.
Amec Civil Engineering Ltd v Secretary of State for Transport	England and Wales Court of Appeal (Civil Division)	Yes	[2005] 1 WLR 2339	England and Wales	Cited for the principle that fairness requires the contract administrator to give a speedy decision on matters where timelines pose an issue.
Magenta Resources (S) Pte Ltd v China Resources (S) Pte Ltd	High Court	Yes	[1996] 2 SLR(R) 316	Singapore	Cited for the principle that there can be no general rule as to what constitutes a situation of force majeure.
City Inn Ltd v Shepherd Construction Ltd	Court of Session	Yes	[2007] BLR 473	Scotland	Mentioned as a case not dealt with by Singapore courts.
North Midland Building Limited v Cyden Homes Ltd	England and Wales Court of Appeal (Civil Division)	Yes	[2018] EWCA Civ 1744	England and Wales	Mentioned as a case not dealt with by Singapore courts.
East Ham Corporation v Bernard Sunley & Sons Ltd	House of Lords	Yes	[1966] AC 406	United Kingdom	Cited for the principle that architects are entitled to delegate their duties to other qualified professionals in the same organisation.
Phosagro Asia Pte Ltd v Piattchanine, Iouri	High Court	Yes	[2016] 5 SLR 1052	Singapore	Cited for the principle that an employer may rely on a contractual right of termination based on newfound evidence, even if not initially relied upon.
Goldlion Properties Ltd v Regent National Enterprises Ltd	Hong Kong Court of Final Appeal	Yes	[2009] HKFCA 58	Hong Kong	Cited for the principle that whether the affected party must have taken all reasonable steps before he can rely on the force majeure clause depends on the precise language of the clause concerned.
Mears Ltd v Costplan Services (South East) Ltd and others	England and Wales Court of Appeal (Civil Division)	Yes	[2019] EWCA Civ 502	England and Wales	Cited for the principles of practical completion.
Liang Huat Aluminium Industries Pte Ltd v Hi Tek Construction Pte Ltd	High Court	Yes	[2001] SGHC 334	Singapore	Cited for the reasons for issuing a completion certificate.
Lee Kay Guan and another v Phoenix Heights Estate (Pte) Ltd	High Court	Yes	[1977–1978] SLR(R) 284	Singapore	Cited for the distinction between readiness for occupation and the legal ability or authority to occupy.
Schindler’s Lifts (Singapore) Pte Ltd v Paya Ubi Industrial Park Pte Ltd and Another	High Court	Yes	[2004] SGHC 34	Singapore	Cited for the proposition that the issuance of a CC before the TOP is not uncommon in industry practice.
Adyard Abu Dhabi v SD Marine Services	English High Court	Yes	[2011] EWHC 848 (Comm)	England and Wales	Cited for the definition of concurrent delay.
Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd	Technology and Construction Court	Yes	[1999] 70 Con LR 32	England and Wales	Cited for the principle that a contractor is entitled to an extension of time where delay is caused by matters falling within the EOT clause notwithstanding the matter relied upon by the contractor is not the dominant cause of delay.
Walter Lilly & Co Ltd v Giles Patrick Cyril Mackay and another	Technology and Construction Court	Yes	[2012] EWHC 1773 (TCC)	England and Wales	Cited for the principle that a contractor is entitled to an extension of time where delay is caused by matters falling within the EOT clause notwithstanding the matter relied upon by the contractor is not the dominant cause of delay.
Balfour Beatty Building Ltd v Chestermount Properties Ltd	Court of Appeal	Yes	[1993] 32 Con LR 139	England and Wales	Cited for the principle that the extension to the contractor would only be for the ‘net’ delay caused by the variation which would not include the ‘gross’ period up to the variation.
V Nithia (co-administratrix of the estate of Ponnusamy Sivapakiam, deceased) v Buthmanaban s/o Vaithilingam and another	Court of Appeal	Yes	[2015] 5 SLR 1422	Singapore	Cited for the principle that a claim, or a defence, which is unpleaded cannot be relied upon.
OMG Holdings Pte Ltd v Pos Ad Sdn Bhd	High Court	Yes	[2012] 4 SLR 231	Singapore	Cited for the principle that a court may permit an unpleaded point to be raised if no injustice or irreparable prejudice will be occasioned to the other party.
Ma Hongjin v SCP Holdings Pte Ltd	Court of Appeal	Yes	[2021] 1 SLR 304	Singapore	Cited for the rationale of disallowing a claim, or a defence, that is not pleaded, is to prevent injustice from being occasioned to the party who did not have a chance to respond to the unpleaded claim or defence.
Yamashita Tetsuo v See Hup Seng Ltd	Court of Appeal	Yes	[2009] 2 SLR(R) 265	Singapore	Cited for the principle that Contract Documents should be read and construed as a whole.
Poh Lian Development Pte Ltd v Hok Mee Property Pte Ltd and Others	High Court	Yes	[2009] SGHC 153	Singapore	Cited for the definition of PC Rate items.
W Hing Construction Co Ltd v Boost Investments Ltd	Hong Kong Court of First Instance	Yes	[2009] HKCU 221	Hong Kong	Cited for the principle that the Court could not supply a Delay Certificate under the Hong Kong Building Contract containing the General Conditions of Contract as this was a personal function of the architect and he could not be displaced from the performance of that function.
Tropicon Contractors Pte Ltd v Lojan Properties Pte Ltd	High Court	Yes	[1989] 1 SLR(R) 591	Singapore	Cited for the principle that a Delay Certificate is a prerequisite to the employer’s right to liquidated damages.
New Civilbuild Pte Ltd v Guobena Sdn Bhd and another	High Court	Yes	[2000] 1 SLR(R) 368	Singapore	Cited for the principle that a Delay Certificate is a prerequisite to the employer’s right to liquidated damages.
Samsung Corp v Chinese Chamber Realty Pte Ltd and others	High Court	Yes	[2004] 1 SLR(R) 382	Singapore	Cited for the principle that an arbitrator can correct or revise a Delay Certificate.
Liew Ter Kwang v Hurry General Contractor Pte Ltd	High Court	Yes	[2004] 3 SLR(R) 59	Singapore	Cited for the principle that an arbitrator can correct or revise a Delay Certificate.
Prestige v Brettell	England and Wales Court of Appeal (Civil Division)	Yes	(1938) 4 All ER 346	England and Wales	Cited for the principle that the existence of an arbitration clause will normally mean that the absence of a certificate can be remedied.

13. Applicable Rules

Rule Name
Rules of Court

14. Applicable Statutes

Statute Name	Jurisdiction
Public Utilities Act 1995	Singapore
Public Utilities Act 2001	Singapore
Energy Market Authority of Singapore Act 2001	Singapore
Electricity Act 2001	Singapore
Building Control Act	Singapore

15. Key Terms and Keywords

15.1 Key Terms

Extension of Time
Completion Certificate
Temporary Occupation Permit
Liquidated Damages
Force Majeure
Statutory Undertaker
Preliminaries
Intumescent Paint
Approved Soil Mix
Delay Certificate
Termination of Delay Certificate

15.2 Keywords

construction
delay
defects
architect
negligence
EOT
CC
TOP
liquidated damages
force majeure

17. Areas of Law

Area Name	Relevance Score
Construction Law	95
Building and Construction Contracts	80
Architects and Engineers Liability	70
Breach of Contract	60
Standard form contract	50
Damages	50
Contract Law	40
Negligence	30
Arbitration	20

16. Subjects

Building and Construction Dispute
Contract Law
Negligence
Architectural Services