9 February, 2017
The Singapore High Court has ruled that a review adjudicator can review an entire adjudication decision, as opposed to just the issues raised by a review.
The court had been asked by Ang Cheng Guan Construction (ACG) to set aside an adjudication review that had taken place at the request of architecture firm Corporate Residence (CR).
The original adjudication had found that ACG was entitled to extensions of time beyond what had been given by the architecture firm for certain events, and that CR was not entitled to impose damages for these delays. CR lodged the adjudication review to challenge this.
The review adjudicator found that the original adjudicator had been wrong when it found that ACG was entitled to the time extensions, and that CR was in fact correct to impose damages.
ACG asked that this review be set aside.
ACG also questioned decisions made by the review adjudicator as to: whether the adjudicator should have granted extensions of time for other events; whether it should have determined that time had been 'set at large', when there is no date of completion, or where the stipulated date of completion has become invalid; and whether the adjudicator should have allowed a claim by ACG for costs and expenses. The review adjudicator had said that he did not have jurisdiction to review these issues, and that he could only look at the issues raised by CR in the adjudication review.
ACG argued in the High Court that a review adjudicator is entitled to review the entire adjudication, while CR said that the review should be restricted to the specific issues raised in the review request.
The High Court reviewed Singapore's Building and Construction Industry Security of Payment Act, and held that the ACG's position was correct. The Act refers to the "review of the determination", which the court said refers to the entire determination. No reference has been made in drafting the Act to suggest that only matters raised in the review can be considered, it said.
The Act also allows the reviewer to increase the adjudicated amount, rather than just maintaining or increasing it, which is consistent with the ability to review the full situation, the court said.
It is true that only the respondent in an adjudication can apply for a review, but that does not restrict the issues that can be raised, it said. Indeed, to only consider the issues covered under a review would encourage anyone who lost an adjudication to apply for a review as they would have nothing to lose by doing so, the court said.
The adjudication review determination was therefore set aside on the basis that the review adjudicator had misdirected himself in a point of law and that he had failed to take ACG's relevant considerations into account.
For further information, please contact:
Ian Laing, Partner, Pinsent Masons
ian.laing@pinsentmasons.com
