Judicial decisions in setting aside adjudication determination under the Singaporean building and construction industry security of payment act

Abstract

The purpose of this study is to investigate the grounds that can successfully to be used to set aside the adjudication determination under Singaporean Building and Construction Industry Security of Payment Act (SOPA). The recent amendment made to the previous Act had been officially enforced in 15 December 2019. In relation to the section for any party to an adjudication commences proceedings to set aside the adjudication determination, the several grounds are furnished in Section 27 (6) of Building and Construction Industry Security of Payment (Amendment) Act 2018 which are considered non-exhaustive and may require some times to practise. It’s not difficult to anticipate that there will be more potential challenges for the party to an adjudication who think they are aggrieve to the adjudication determination or adjudication review determination under these grounds. By refencing and analysing the most recent law cases, the author hopes to figure out and establish the extent of success of setting aside adjudication determination based on court decisions. The research methodology adopted will be literature review and law cases analysis as these methods are able to align with this research intention and objectives. Data collection will be mainly from case laws. There are total of fourteen (14) Singaporean local law cases to be selected for analysis. Every selected case will have different substantial matters and issues in setting aside of adjudication determination. The author will furnish the details in the respective cases such as backgrounds, issues (grounds to set aside the Adjudication Determination) and the final judgements in a summary table form which provides the facts and fundamental information for each case analysis. The completion of cases analysis will assist in getting the findings on the specific circumstances to challenge the Adjudication Determination and viable grounds to set aside the Adjudication Determination. The findings from the case studies are the court definitely not to review the merits of the adjudicator’s decision, and any setting aside must be premised on issues relating to the jurisdiction of the adjudicator, a breach of natural justice or non-compliance with the SOPA. Summarily, theory of “dual railroad track system” had been rejected in the recent law cases, such that the party seeking payment has the option to elect between the statutory and contractual entitlement to payment is no longer valid. It is confirmed that the “gap-filling” role of SOPA is only invoked where there are no relevant contractual provisions to progress payment. Upon studying local cases, it’s found that in order to set aside an adjudication determination, the respondents in an adjudication tend to challenge the technical issues on jurisdiction and conducts of an adjudicator or review adjudicator; or rely on the breach of natural justice by an adjudicator but all too often it is used mistakenly and unlikely to succeed; set aside the adjudication determination based on the ground of fraud when the claimant is not acted with probity when pursuing claims. After identifying all the specific circumstances of succeed in setting aside the adjudication determination and establishment of mutual understanding by the clients, contractors and suppliers can only significantly reduce setting aside cases in future and thus achieve the purpose of the Act which is to facilitate cash flow to downstream players in the Singaporean construction industry.