Jul 2015 • Issue No. 25  

Date Title
22 Jul 2015 SCL(S) 7th Annual Dinner
30 Jul 2015 Destructive Relationships of Constructive Acceleration
5 Aug 2015 Pure Economic Loss
1 & 2 Sept 2015 SCL “Focus on Asia” Construction Law Conference 2015
8,13,15 & 20 Oct 2015 Construction Law 101 (6th Run!)

Oct 2014 to June 2015
1. Simon Yates
2. Yau Heng Fong
3. Chee Chuan Chong
4. Tim Jones
5. Eddy San Gabriel
6. Jerry Vogt
7. Iain Potter
8. Maria Theresa Belmonte
9. Declan Redmond
10. Hiroki Aoki
11. Summer Montague
12. Wah Sen Liong
13. Annie Lai
14. Boon On Yong
15. Jason , Yu Meng Tay
16. Wee Shing Oh
17. Kah Kin Choy
18. Chye Kim Lee
19. Katherine McMenamin
20. Sandeep Pandya
21. Maurice Joseph Kerley
22. Tom Hiew
23. Adam Munn
24. Yaa Khim Chin
25. Yu Shan Tay
26. Joseph Tay
27. Graham Headley
28 Lindsay Kirk
29 Chee Gang Chua

Concurrent Delay: An Alternative Proposal For Attributing Responsibility
(15 Oct 2014)

SCL(S) Annual Construction Law Update 2015
(20 Jan 2015)

Termination - The Pitfalls
(18 Mar 2015)


Dear SCL(S) members,

SCL Council has had a busy time since the AGM last August. Amongst other things, we have set and commenced a yearlong schedule for professional development events; progressed in renewing and forging relationships with valued partner organisations; and contributed to the creation of SCL-International Committee and the international website. We are pleased that Past-president Changaroth has agreed to be our appointed representative in the SCL International Liaisons Sub-committee.

However, for this message, there are two main subjects:

Firstly, 23rd April marked the end of an era. This night saw the last session of the last run of Engineering 101. For the last 6 years, Audrey Perez has worked with passion and devotion to conduct the course, an innovation that she created and for which she painstakingly developed the content. For this, I presented her a token of recognition and congratulated her on the success of the course. I did this on behalf of the membership and Council. Engineering 101 is indeed a noteworthy achievement.

Secondly, Council is pleased to have recently announced the inaugural "Focus on Asia" Construction Law Conference. SCL(Singapore) will host this event in September 2015.


Repeat Claims Under The Security of Payment Act – Choosing The Lesser Evil

Recently, Justice Lee Seiu Kin ("Justice Lee") in LH Aluminium Industries v Newcon Builders Pte Ltd [2014] SGHC 254 ("LH Aluminium") had the opportunity to revisit the complex issue of repeat claims and provide important observations on the different approaches which the Singapore courts had taken.

Facts of the Case

The defendant was the main contractor of a project described as "Additions and Alterations to Existing 3 Storey Commercial Development/Light Rapid Transit System Depot cum Station on Lot 3496C MK11 at Choa Chu Kang/Woodlands Road".

The plaintiff was appointed as the sub-contractor for the aluminium and glazing installation works for the project.

Contributed Nandakumar Renganathan and Valerie Seow, RHTLaw Taylor Wessing LLP


Common Mistakes Employers Make That Cause Disputes

It is commonplace for employers to make numerous mistakes on projects that can often lead to unnecessary disputes.

Proceeding with variations before time and cost are agreed upon.

It is not unusual for variations to occur on projects, which may be due to additional or changed requirements by the employer and/or contractor, or due to external factors which were unforeseeable by the parties prior to formalisation of the contract.

When the need for a variation arises, decisions are often required to be made by the parties as quickly as possible, in order to minimise or negate potential impact(s) to the progress of the project. This in turn can lead to a scenario where the varied works are carried out prior to the parties negotiating and/or agreeing any time and/or cost implications.

Contributed by Garry Crossley, BSc, LLB (Hons), MBA, MRICS, Navigant Consulting (APAC) Pte Ltd

CKR v Asplenium – The Vanguard For Restrictive Performance Bond Clauses?

In contrast with English law, the law in Singapore has long allowed calls on on-demand performance bonds to be restrained on the ground of unconscionability. While this has generally been welcomed by contractors, as they only need to fulfil a lower threshold of unconscionability as opposed to the higher threshold of fraud in restraining calls on such bonds, the tide may be turning in the employers' favour with the recent Singapore Court of Appeal case of CKR Contract Services Pte Ltd v Asplenium Land Pte Ltd and another and another appeal and another matter [2015] SGCA 24.


The facts of the case are briefly as follows. Asplenium, the developer had employed CKR as the main contractor for the construction of a condominium on Seletar Road for some $88 million for a two-year period from January 21, 2013.

Contributed by Danna Er, MPillay

Online Dispute Resolution, Suitability In The Construction Industry

Construction Projects And Disputes:

1. International trade has in recent decades generated a large number of disputes. It is common in the construction industry for differences between parties and disagreements to occur throughout the life cycle of a construction project, from procurement through development to completion.

2. Construction projects tend to be complex with difficult conditions attached. Each construction project involves the relationship of the contracting parties from the time of negotiating of the contract and all through the construction phase up to completion. Many factors such as issues with interpretation of the contract provisions; the scope of work; understanding of the obligations, design, quality, time and payment issues, uncertainties at any stage/phase of the project; and dealing with technical issues such as defects, delays, acceleration, liquidated damages affect the relationship of contracting parties . Parties can, if all of these are managed well and/or properly, avoid the breakdown of relationship while getting the job done at reasonable costs.

Contributed by Anil Changaroth FCIArb SIArb, CHANGAROTH CHAMBERS LLC

Singapore Construction Industry and Law Updates

Building Construction Authority (BCA) Updates May 2015

Construction Demand:

Total construction demand set a new record of $37.7 billion in 2014 generated by a higher volume of institutional and civil engineering projects. These projects included the various major contracts awarded for the construction of Thomson-East Coast Mass Rapid Transit (MRT) Line as well as land preparation works for the upcoming Changi Airport development and the Sengkang hospitals and Tampines Town Hub developments.

BCA forecasts that Construction contracts for the built environment sector is expected to reach between $29 billion to $36 billion in 2015, given the sustained pipeline of public sector projects.

Contributed by David Shuttleworth, Foremost Consultants

Construction Case Law Updates

Case Law:

The case of LH Aluminium Industries Pte Ltd v Newcon Builders Pte Ltd [2014] SGHC 254 dealt with timelines for service of payment claims and payment responses, particularly when there was conflict or inconsistency between clauses in the contract of the parties and the Singapore Institute of Architects Conditions of Sub-Contract (“SIA Conditions”); the issue of premature Adjudication Applications; and whether a “repeat claim” was permitted. The dismissal by the Learned AR of the Defendant’s application to set the Adjudication Determination aside, resulted in this appeal with the High Court having to deal with 3 issues (a) whether the Adjudication Application, following the timelines set out in the SIA Conditions, was premature because the “dispute settlement period” under Section 12(2) of the Building and Construction Industry Security of Payment Act (“SOP Act”) had not lapsed; (b) whether the Final Payment Claim was a “repeat claim” made in breach of Section 10(1) of the SOP Act; and (c) whether the dispute between the parties had been substantially settled by way of negotiations between parties such that the Plaintiff was not entitled to make the Adjudication Application. The High Court on Appeal dismissed the Defendant’s appeal on the grounds that (a) the contractual provision setting out the timelines for the Payment Claims and Responses took precedence over clauses of the SIA Conditions; (b) pursuant to Sections 11(1)(a) and 10(2)(a) of the SOP Act, the Payment Response should be served on the earlier of the 2 possible dates stated in those Sections – namely the date stated in the contract and 21 days after the Payment Claim was served; (c) to allow repeat claims would not be contravening Section 10(1) (“SOP Act”); and (d) there was no settlement agreement reached between parties in relation to backcharges that formed part of the Final Payment Claim that was included in the Adjudication Application, but merely inconclusive negotiations.

Contributed by Reena Rajamohan, ChangAroth Chambers LLC


Concurrent Delay: An Alternative Proposal For Attributing Responsibility
15 Oct 2014

On 15 October 2014 the SCL hosted the talk “Concurrent Delay: An alternative Proposal For Attributing Responsibility” by Dr Franco Mastrandrea and Mr Steve Briggs from Hill International, chaired by Mr Chen Han Toh, from Pinsent Masons MPillay.

The speakers set the scene by summarising some of the key concepts and difficulties which typically arise when assessing concurrent delay, including application of the “but-for” test and the prevention principle. The current trends in various jurisdictions were also helpfully summarised. Dr Franco Mastrandrea then expressed his views as to various shortcomings in current English law and practice in this area, including the general rejection of an apportionment approach to assessing concurrent delay.

Contributed by Sean Hardy and Pinsent Masons MPillay

SCL(S) Annual Construction Law Update 2015
20 Jan 2015

The Society held its annual construction law update on the 20th January 2015 at the NTUC Centre in Singapore. Now in its fifth year, the Society was privileged to host Mr Chow Kok Fong and Mr Ho Chien Mien as guest speakers to present their views on key developments arising in 2014 related to local construction law.

The seminar was chaired by Society council member, Kash Quddus, and was kicked-off by Mr Chow Kok Fong.

Contributed by Kashruzzaman Quddus

Termination - The Pitfalls
18 Mar 2015

When contemplating termination of a contract, it is important to be mindful of the associated risks and the possible losses as well as the continuing liabilities that may follow such action. With that in mind, Mr Toh Chen Han from Pinsent Masons MPillay LLP extended, on behalf of SCL Singapore, a warm welcome to Ms Chantal-Aimée Doerries QC, of Atkin Chambers London, who gave a seminar on the topic “Termination- The Pitfalls” to a packed audience on the evening of 18 March 2015.

Contributed by P. Atkinson

  Newsletter Editors: Uma Menon & Danna Er

Society of Construction Law (Singapore)

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