Mr Ho Chien Mien from Allen & Gledhill commenced by reviewing recent cases on the Singapore Security of Payment Act (“SOP”) on the issue of setting aside an adjudicator’s decision, and whether an adjudicator is entitled to consider reasons not contained in a Payment Response. Chien Mien also discussed the recent Singapore High Court decision in JBE Properties Pte Ltd v Gammon Pte Ltd, where the contractor was successful in resisting a call on a performance bond on the ground of unconscionability.

Ian De Vaz from Wong Partnership covered the topic of “Lessons from Recent Adjudications under the SOP Act”.  He covered four topics; the valid service of a Payment Claim, limitation period for service of a Payment Claim, the law on what constitutes a Payment Claim, and a “default judgment” under the SOP.

One of the cases discussed by Ian was the important decision of the Singapore High Court in Chua Say Eng v Lee Wee Lick Terence, where the Court held that the combined effect of Section 10(2) of the SOP and Regulation 5 was to create a limitation period for service of a Payment Claim, being either (a) such time as specified in the contract or where no such time is specified (b) the last day of the month.  In Chau Say Eng, the Payment Claim was served one month after the due date, and the High Court held that this was out of time, and set aside the adjudicator’s determination.

The decision in Chua Say Eng will have implications for contractors ensuring that they are prepared to submit Payment Claims in accordance with the terms of the contract.

Emerson Holmes from Nabarro LLP covered “Recent Cases from the UK”. He discussed, in particular, the decision of the English Technology and Construction Court in BskyB Ltd v HP Enterprise Services, involving allegations of fraudulent misrepresentation during contractual negotiations by a contractor as to its resources, technology and methodology. He also covered the Scottish decision of City Inns Ltd v Shepherd Construction Limited involving concurrent delays.

The decision of the Scottish Inner House in City Inns may have wider implications for English and Commonwealth courts on the issue of concurrent delays.  The Court held that in situations where it is not possible to identify the dominant cause of two operative delays, (one for which the contractor is entitled to an extension of time, and one for which the contractor is responsible), it is permissible to apportion both the delay and delay costs in a fair and reasonable manner.  Whilst the decision may give contractors comfort of a remedy from complex delay claims, the Court’s reasoning arguably involves a departure from the principles of causation of loss established in earlier English cases.

The speaker’s presentations gave rise to a number of questions and resulting discussions, particularly on the issues of limitation periods under the English Security of Payment Act and concurrent delays.