ASIA GRAND PTE LTD v A I ASSOCIATES PTE LTD

Facts

Asia Grand Pte Ltd (AGPL) was the employer on a project to remodel a Chinese restaurant at the Fairmont Hotel. By a letter of award dated 13 July 2022, it engaged A I Associates Pte Ltd (AI) to carry out the works. The contract did not say when payment claims or payment responses were to be served, but clause 14 provided for weekly progress claims.

AI served a payment claim for $133,529.08 including GST on 16 November 2022. On 13 December 2022 it gave notice of intention to apply for adjudication and lodged an adjudication application with the Singapore Mediation Centre. AGPL served a payment response the next day, saying it was within time and that AI's application was premature. The adjudicator held that the payment claim was served on its actual date, 16 November 2022, so the response was late and the application was in time. He also rejected AGPL's argument that the weekly claims clause took the contract outside the SOPA, and awarded AI $94,097.21 including GST plus the costs of the adjudication. AGPL applied in Originating Application No 160 of 2023 to set aside the determination.

Issues

1. Whether, where the contract is silent on timing, a payment claim is treated as served on its actual date or deemed served on the last day of the calendar month under s 10(3)(b) of the SOPA.
2. Whether a contractual provision for weekly progress claims takes the contract outside the SOPA.
3. Whether AI's alleged failure to provide a performance bond was a ground for setting aside the determination.

Holding

Teh Hwee Hwee JC allowed AGPL's application and set aside the adjudication determination under s 27(8)(a) of the SOPA, because the adjudication application was lodged prematurely and the adjudicator had no jurisdiction. The usual consequential orders were made for payment out of AGPL's security, with costs to be heard.

Reasoning

Under s 10(2)(a)(ii) of the SOPA, read with regs 5(1) and 5(3) of the regulations, a claim under a contract silent on timing must be served by the last day of the relevant calendar month; that is the prescribed date. Section 10(3)(b) refers to the same prescribed date, so a claim served earlier is deemed served on the last day of that month, whatever its actual date. The judge rejected AI's argument that there was no prescribed date, which would ignore the deeming provision introduced in 2018 and make the provision read absurdly. Chua Say Eng predated the amendments and did not address these provisions. The absence of the words last day in s 10(3)(b) simply mirrors s 10(2)(a)(ii). This reading fits the Minister's Second Reading explanation that the response deadline runs from the contractual or fixed date, and gives certainty and regular timelines. Section 10(3)(b) applies even where no claim needs saving.

Applied here, the claim was deemed served on 30 November 2022, the response was due by 14 December 2022, and AI's right to apply for adjudication first arose on 22 December 2022. The application lodged on 13 December 2022 was premature and invalid.

For completeness, the judge held that a weekly claims clause does not take a construction contract outside the SOPA: no exclusion in s 4(2) applies, reg 5(1A) only regulates frequency where the contract is silent, and instalment-based payments are permitted. A performance bond is not a precondition to a progress payment under the SOPA, and complaints about the adjudicated amount go to the merits, which the court does not review.

From the judgment