Benlen Pte Ltd v. Authentic Builder Pte Ltd: Adjudication, Premature Payment Claim & Waiver

In Benlen Pte Ltd v. Authentic Builder Pte Ltd, the Singapore High Court addressed an application by Authentic Builder to set aside an adjudication determination in favor of Benlen concerning a construction subcontract. The court, presided over by Justice Chan Seng Onn, ruled against Authentic Builder, finding that while Benlen's payment claim was prematurely served, Authentic Builder had waived its right to object due to its failure to raise the issue earlier in the adjudication process. The court dismissed the Setting Aside Application.

1. Case Overview

1.1 Court

High Court of the Republic of Singapore

1.2 Outcome

Setting Aside Application dismissed.

1.3 Case Type

Building and Construction Law

1.4 Judgment Type

Judgment

1.5 Jurisdiction

Singapore

1.6 Description

Singapore High Court judgment on premature payment claim under SOPA. Authentic Builder waived right to object to Benlen's claim.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
BENLEN PTE LTDApplicantCorporationSetting Aside Application dismissedWon
AUTHENTIC BUILDER PTE LTDRespondentCorporationSetting Aside Application dismissedLost

3. Judges

Judge NameTitleDelivered Judgment
Chan Seng OnnJudgeYes

4. Counsels

Counsel NameOrganization
Lazarus Nicholas PhilipJusticius Law Corporation
Toh Yee Lin JocelynJusticius Law Corporation
Chong Yi MeiPatrick Ong Law LLC
Ong Kok Seng PatrickPatrick Ong Law LLC

4. Facts

  1. Authentic Builder engaged Benlen as a subcontractor for a condominium project.
  2. The Subcontract required Benlen to submit progress claims on the 25th of each month.
  3. On 23 September 2016, Authentic sent an email to subcontractors requesting submission of claims between the 23rd and 25th of each month.
  4. Benlen served Payment Claim 19 on Authentic on 23 June 2017.
  5. Authentic's payment response to Payment Claim 19 did not mention any issue with the date of service.
  6. Authentic raised the issue of premature service of Payment Claim 19 in the Setting Aside Application.

5. Formal Citations

  1. Benlen Pte Ltd v Authentic Builder Pte Ltd, Originating Summons No 1002 of 2017 (Summons No 4475 of 2017), [2018] SGHC 61

6. Timeline

DateEvent
Letter of award for the Subcontract was issued to Benlen.
Benlen served Payment Claim 1 on Authentic.
Authentic sent the 23 September Email to its subcontractors.
Benlen served Payment Claim 19 on Authentic.
Authentic served its payment response to Payment Claim 19 on Benlen.
Benlen served Payment Claim 20 on Authentic.
Benlen commenced the Adjudication Application.
The Adjudication Application was served on Authentic by the Singapore Mediation Centre.
Mr. Tan Kian Hoon JP was appointed as the adjudicator for the dispute.
Authentic filed its adjudication response with the Singapore Mediation Centre.
The parties attended an adjudication conference.
The Adjudicator issued the Adjudication Determination.
Benlen demanded payment from Authentic.
Benlen filed OS 1002/2017, seeking an order of court granting it leave to enforce the Adjudication Determination.
Benlen obtained the Order of Court.
Benlen demanded payment from Authentic.
Benlen demanded payment from Authentic.
Benlen issued a statutory demand pursuant to s 254 of the Companies Act.
Authentic responded to the statutory demand, claiming to dispute the validity of the Adjudication Determination.
Authentic filed the Setting Aside Application.
Judgment reserved.
Judgment delivered.

7. Legal Issues

  1. Premature Payment Claim
    • Outcome: The court found that Payment Claim 19 was invalidly served because it was served prematurely.
    • Category: Substantive
    • Related Cases:
      • [2016] 5 SLR 1011
      • [2018] 1 SLR 317
      • [2017] SGHC 165
  2. Waiver of Right to Object
    • Outcome: The court held that Authentic Builder had waived its right to object to the invalid service of Payment Claim 19 by failing to raise the issue earlier in the adjudication process.
    • Category: Procedural
    • Related Cases:
      • [2018] 1 SLR 317
  3. Variation of Contract
    • Outcome: The court found that the 23 September Email did not constitute a variation of the Subcontract.
    • Category: Substantive

8. Remedies Sought

  1. Setting aside of adjudication determination
  2. Setting aside of order of court

9. Cause of Actions

  • Breach of Contract

10. Practice Areas

  • Construction Law
  • Commercial Litigation

11. Industries

  • Construction

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
Grouteam Pte Ltd v UES Holdings Pte LtdCourt of AppealYes[2016] 5 SLR 1011SingaporeCited for the principle that s 10(2) of the SOPA is a mandatory provision, the breach of which renders the adjudication determination invalid.
Audi Construction Pte Ltd v Kian Hiap Construction Pte LtdCourt of AppealYes[2018] 1 SLR 317SingaporeCited for the principles regarding timely service of payment claims under s 10(2) of the SOPA and the possibility of waiver and estoppel in relation to jurisdictional objections.
Audi Construction Pte Ltd v Kian Hup Construction Pte LtdHigh CourtYes[2017] SGHC 165SingaporeCited for the principle that payment claims must be served on the date specified in the contract, neither sooner nor later. This decision was later reversed on appeal.
Lee Wee Lick Terence (alias Li Weili Terence) v Chua Say Eng (formerly trading as Weng Fatt Construction Engineering) and another appealCourt of AppealYes[2013] 1 SLR 401SingaporeCited for the principle that an adjudicator cannot deal with jurisdictional challenges, but this was respectfully departed from in Audi Construction (CA).
JFC Builders Pte Ltd v LionCity Construction Co Pte LtdHigh CourtYes[2013] 1 SLR 1157SingaporeCited as an example of a High Court decision premised on an adjudicator’s inability to rule on challenges to his jurisdiction, which should no longer be followed after Audi Construction (CA).
Australian Timber Products Pte Ltd v A Pacific Construction & Development Pte LtdHigh CourtYes[2013] 2 SLR 776SingaporeCited as an example of a High Court decision premised on an adjudicator’s inability to rule on challenges to his jurisdiction, which should no longer be followed after Audi Construction (CA).
Admin Construction Pte Ltd v Vivaldi (S) Pte LtdHigh CourtYes[2013] 3 SLR 609SingaporeCited as an example of a High Court decision premised on an adjudicator’s inability to rule on challenges to his jurisdiction, which should no longer be followed after Audi Construction (CA).
YTL Construction (S) Pte Ltd v Balanced Engineering & Construction Pte LtdHigh CourtYes[2014] SGHC 142SingaporeCited as an example of a High Court decision premised on an adjudicator’s inability to rule on challenges to his jurisdiction, which should no longer be followed after Audi Construction (CA).
LH Aluminium Industries Pte Ltd v Newcon Builders Pte LtdHigh CourtYes[2015] 1 SLR 648SingaporeCited as an example of a High Court decision premised on an adjudicator’s inability to rule on challenges to his jurisdiction, which should no longer be followed after Audi Construction (CA).
Rong Shun Engineering & Construction Pte Ltd v CP Ong Construction Pte LtdHigh CourtYes[2017] 4 SLR 359SingaporeCited for following the positions taken in the aforementioned High Court decisions that have since been rejected.
Globe Motors Inc and others v TRW LucasVarity Electric Steering Ltd and anotherEnglish Court of AppealYes[2016] EWCA Civ 396England and WalesCited for the principle that a term of the contract which states that the contract can only be varied in writing will not preclude the possibility of there being an oral variation.
MWB Business Exchange Centres Ltd v Rock Advertising LtdEnglish Court of AppealYes[2016] EWCA Civ 553England and WalesCited for affirming the principle that a term of the contract which states that the contract can only be varied in writing will not preclude the possibility of there being an oral variation.
Spring Finance Ltd v HS Real Company LLCEnglish High CourtYes[2011] EWHC 57 (Comm)England and WalesCited for the principle that the effect of a term requiring variation to be in writing is, at best, not to prohibit consensual oral variation but to raise a rebuttable presumption that, in the absence of writing, there had been no variation.
S Pacific Resources Ltd v Tomolugen Holdings LtdHigh CourtYes[2016] 3 SLR 1049SingaporeCited for the observations regarding the requirement of consideration in the context of the variation of contracts.
Woo Kah Wai v Chew Ai Hua SandraHigh CourtYes[2014] 4 SLR 166SingaporeCited for the principle that the modern approach in contract law is for courts to be more ready to find the existence of consideration.
Williams v Roffey Bros & Nicholls (Contractors) LtdQueen's BenchYes[1991] 1 QB 1England and WalesCited for the principle that the modern approach in contract law is for courts to be more ready to find the existence of consideration.
Chwee Kin Keong v Digilandmall.com Pte LtdHigh CourtYes[2004] 2 SLR(R) 594SingaporeCited for the principle that the modern approach in contract law is for courts to be more ready to find the existence of consideration.
Aero-Gate Pte Ltd v Engen Marine Engineering Pte LtdHigh CourtYes[2013] 4 SLR 409SingaporeCited for the principles regarding the requirement of offer, acceptance and consideration for a variation of a contract.
Ong Chay Tong & Sons (Pte) Ltd v Ong Hoo EngHigh CourtYes[2009] 1 SLR(R) 305SingaporeCited for the principle that a variation of a contract, like the contract itself, requires offer, acceptance and consideration.
Sunny Metal & Engineering Pte Ltd v Ng Khim Ming EricHigh CourtYes[2007] 1 SLR(R) 853SingaporeCited for the principle that a factual or practical benefit suffices to satisfy the requirement of consideration.
Gay Choon Ing v Loh Sze Ti Terence PeterCourt of AppealYes[2009] 2 SLR(R) 332SingaporeCited for the principle that a factual or practical benefit suffices to satisfy the requirement of consideration.
Midlink Development Pte Ltd v The Stansfield Group Pte LtdHigh CourtYes[2004] 4 SLR(R) 258SingaporeCited for the principle that acceptance in a contractual setting can be signified orally, in writing or by conduct.
AES Façade Pte Ltd v WYSE Pte LtdHigh CourtYes[2017] 5 SLR 640SingaporeCited for the principle that any reasons for withholding payment should be stated in the payment response; they cannot be held back and raised for the first time in adjudication.

13. Applicable Rules

Rule Name
Order 95, Rule 2 of the Rules of Court (Cap 322, R 5)

14. Applicable Statutes

Statute NameJurisdiction
Building and Construction Industry Security of Payment Act (Cap 30B)Singapore
Section 10(2) Building and Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed)Singapore
Section 15(3)(a) Building and Construction Industry Security of Payment ActSingapore
Section 50(c) Interpretation Act (Cap 1, 2002 Rev Ed)Singapore
Section 50(b) Interpretation Act (Cap 1, 2002 Rev Ed)Singapore
Section 254 Companies Act (Cap 50, 2006 Rev Ed)Singapore

15. Key Terms and Keywords

15.1 Key Terms

  • Adjudication
  • Payment Claim
  • Payment Response
  • Subcontract
  • Waiver
  • Estoppel
  • Variation
  • Building and Construction Industry Security of Payment Act

15.2 Keywords

  • Adjudication
  • SOPA
  • Payment Claim
  • Construction Law
  • Singapore
  • Waiver
  • Estoppel

17. Areas of Law

Area NameRelevance Score
Adjudication90
Building and Construction Contracts80
Construction Law75
Contract Law60
Estoppel50
Arbitration40
Civil Procedure25

16. Subjects

  • Construction Dispute
  • Adjudication
  • Contract Law