Anwar Siraj and another v Teo Hee Lai Building Construction Pte Ltd [2013] SGHC 200

Case Details

• Citation: [2013] SGHC 200
• Court: High Court
• Decision Date: 08 October 2013
• Coram: Quentin Loh J
• Case Number: Originating Summons No 1200 of 2010
• Hearing Date(s): 27 October 2011
• Claimants / Plaintiffs: Anwar Siraj; Another
• Respondent / Defendant: Teo Hee Lai Building Construction Pte Ltd
• Counsel for Claimants: Plaintiffs in person
• Counsel for Respondent: Teo Hee Lai (for the Defendant)
• Practice Areas: Arbitration; Discharge of Arbitrator

Summary

The decision in Anwar Siraj and another v Teo Hee Lai Building Construction Pte Ltd [2013] SGHC 200 represents a significant clarification of the High Court's supervisory jurisdiction over the resignation and discharge of arbitrators. This long-running construction dispute, which had already spanned over a decade and seen the setting aside of a previous arbitral award, reached a critical impasse when the court-appointed replacement arbitrator, Mr. Chow Kok Fong, sought leave to be discharged from his appointment. The case centers on the fundamental principle that while an arbitrator is bound by a contractual and statutory duty to proceed with due diligence, they are not required to endure an acrimonious relationship with the parties that renders the arbitral process unworkable.

Quentin Loh J addressed the plaintiffs' attempt to challenge an earlier court order dated 27 October 2011, which had granted Mr. Chow leave to withdraw. The court’s analysis provides a robust framework for determining what constitutes "good and justifiable cause" for an arbitrator’s resignation. Crucially, the court held that where the relationship between the arbitrator and the parties has deteriorated to the point of personal attacks and a total loss of confidence, the arbitrator has a right to seek discharge. This holding protects the integrity of the arbitral office and ensures that the process remains a viable alternative to litigation rather than a theatre for perpetual conflict.

Beyond the substantive arbitration law, the judgment serves as a stern reminder of the finality of procedural orders and the strict application of statutory time limits for appeals. The court found that the plaintiffs' attempt to appeal the discharge order was barred by s 28B(b)(ii) of the Supreme Court of Judicature Act (Cap 322, 2007 Revised Edition), as the time for filing such an appeal had "long passed." The decision underscores that even in cases involving litigants in person, the court will not overlook fundamental procedural lapses that undermine the finality of judicial determinations.

Ultimately, the case highlights the limits of court intervention in failing arbitrations. By confirming the discharge of the arbitrator due to the plaintiffs' own conduct and the resulting acrimony, the court signaled that party autonomy and the right to an arbitral hearing do not grant parties a license to obstruct the process or abuse the tribunal. The judgment stands as a cautionary tale for practitioners and litigants alike on the consequences of failing to maintain a professional and constructive relationship with the arbitral tribunal.

Timeline of Events

1. 18 January 2010: The High Court sets aside the initial arbitral award issued by the first arbitrator, Mr. John Ting Kang Chung, in a consolidated proceeding (OS 1807 of 2006 and OS 1231 of 2008).
2. 22 November 2010: The plaintiffs file Originating Summons No 1179 of 2010 seeking the retrieval of documents and drawings from the former arbitrator.
3. 1 February 2011: The High Court appoints Mr. Chow Kok Fong as the replacement arbitrator in respect of the disputes between the parties, with "liberty to apply" if he is unable to act.
4. 18 March 2011: A preliminary meeting is held before Mr. Chow Kok Fong to establish the procedural framework for the new arbitration.
5. 26 April 2011: Mr. Chow issues Procedural Order No. 1, setting out the initial directions for the arbitration.
6. 12 May 2011: The plaintiffs file their Statement of Claim in the new arbitration.
7. 14 June 2011: Mr. Chow issues Procedural Order No. 2.
8. 7 July 2011: The plaintiffs serve their Affidavit Verifying List of Documents.
9. 29 July 2011: Mr. Chow issues Procedural Order No. 3, which becomes a point of significant contention for the plaintiffs.
10. 2 September 2011: The plaintiffs write to Mr. Chow expressing their dissatisfaction with his directions and the conduct of the arbitration.
11. 14 September 2011: Further correspondence from the plaintiffs to the arbitrator escalating the dispute over procedural matters.
12. 3 October 2011: Mr. Chow Kok Fong writes to the High Court seeking leave to be discharged as arbitrator, citing the acrimonious relationship and the plaintiffs' lack of confidence in his appointment.
13. 27 October 2011: Substantive hearing before Quentin Loh J. The court grants leave for Mr. Chow to withdraw from his appointment.
14. 20 March 2012: Subsequent procedural activity occurs as the plaintiffs attempt to revive or challenge the discharge.
15. 8 October 2013: Quentin Loh J delivers the final judgment, dismissing the plaintiffs' challenges and confirming the discharge of the arbitrator.

What Were the Facts of This Case?

The dispute originated from a construction contract between the plaintiffs (homeowners) and the defendant (a building construction firm). The relationship had been fraught with litigation for over a decade. The initial arbitration, conducted by Mr. John Ting Kang Chung, was described as "fractious and stormy." Following the High Court's decision on 18 January 2010 to set aside Mr. Ting's award (reported as [2010] 2 SLR 625), the plaintiffs sought the appointment of a new arbitrator. On 1 February 2011, the court appointed Mr. Chow Kok Fong, a highly respected practitioner, to determine the disputes afresh.

The appointment order specifically included a "liberty to apply" clause, providing that if Mr. Chow "says he cannot for some reason or other" act, the parties could return to court. Almost immediately, the second arbitration encountered significant hurdles. A primary source of friction was the transfer of documents from the first arbitrator to Mr. Chow. The plaintiffs had filed OS 1179 of 2010 on 22 November 2010 to compel the handover of documents. When the documents were eventually produced, they were in a state of disarray—disorganised, poorly indexed, and missing key components such as audio tapes of previous hearings. The plaintiffs alleged that Mr. Chow should not have read certain documents transferred by Mr. Ting, leading to early accusations of procedural impropriety.

As the arbitration progressed, Mr. Chow issued three procedural orders. Procedural Order No. 1 (26 April 2011) and Procedural Order No. 2 (14 June 2011) were followed by Procedural Order No. 3 on 29 July 2011. The plaintiffs took particular issue with the third order, describing it as "highly questionable." Their grievances extended to the "time frame for payment" set by Mr. Chow for his fees and the costs of the venue, which they claimed was a violation of the Arbitration Act (Cap 10, 1985 Rev Ed). They argued that work must be done "with due diligence and without neglect," implying that Mr. Chow had failed this standard.

The relationship reached a breaking point in September 2011. In correspondence dated 2 September 2011 and 14 September 2011, the plaintiffs launched what the court characterized as personal attacks on the arbitrator. They expressed a total lack of confidence in his ability to conduct the proceedings fairly. Faced with this hostility, Mr. Chow wrote to the court on 3 October 2011. He explained that while he had attempted to set "perfectly normal" directions, the plaintiffs' conduct made it impossible to continue. He noted that the plaintiffs had expressed "no objection whatsoever" to his discharge, provided the issue of costs was addressed. At the hearing on 27 October 2011, the court granted the discharge. The defendant, represented by Teo Hee Lai, had largely ceased participating in the proceedings due to financial constraints, leaving the plaintiffs to contest the matter essentially against the arbitrator's desire to withdraw.

The plaintiffs subsequently attempted to challenge this discharge, leading to the 2013 judgment. They sought to argue that the arbitrator had no right to resign and that the court had erred in granting leave. They also raised issues regarding the security for costs, mentioning a sum of $40,000, and various cost orders including one for S$500. The procedural history was further complicated by the plaintiffs' previous failed applications against other parties, including the Attorney General (see [2010] SGHC 36).

What Were the Key Legal Issues?

The primary legal issue was whether an arbitrator has a right to resign from their appointment and under what circumstances the court should grant leave for such a discharge. This required an examination of the Arbitration Act (Cap 10, 2002 Rev Ed), which the court noted was "silent on the procedure for an arbitrator to resign." The court had to determine if "good and justifiable cause" existed for Mr. Chow’s withdrawal, balancing the arbitrator's contractual obligations against the reality of a broken arbitral relationship.

A second critical issue was the procedural validity of the plaintiffs' challenge to the 27 October 2011 order. The court had to decide whether the plaintiffs were time-barred from appealing the decision under the Supreme Court of Judicature Act (Cap 322). This involved interpreting s 28B(b)(ii) of the Act and determining whether the plaintiffs' delay in filing a notice of appeal was fatal to their application. The court also considered the application of the Rules of Court, specifically O 56 r 2, O 45 r 9, and O 2 r 1, in the context of procedural non-compliance.

Finally, the court addressed the standard of conduct expected from parties in an arbitration. The issue was whether the plaintiffs' conduct—specifically their "fractious" behavior and personal attacks on the arbitrator—constituted a sufficient basis to justify the arbitrator's resignation. This touched upon the "implicit" duties within the contractual arrangement of an arbitration and whether a party can effectively "veto" an arbitration by making the arbitrator's position untenable.

How Did the Court Analyse the Issues?

Quentin Loh J began the analysis by addressing the arbitrator's right to resign. He noted that while the Arbitration Act (Cap 10, 2002 Rev Ed) does not explicitly provide a procedure for resignation, such a right must exist where there is "good and justifiable cause." The court relied on the principle that the arbitral relationship is fundamentally one of trust and confidence. At paragraph [28], the judge stated:

"I have no doubt that in the circumstances that have arisen here, Mr Chow had good and justifiable cause to resign."

The court distinguished this case from Hong Kiat Construction Pte Ltd v Ngiam Benjamin [2009] SGHC 158. In Hong Kiat, an arbitrator's threat to resign if his fees were not paid was scrutinized. Here, however, the resignation was prompted by the plaintiffs' own conduct. The court found that the plaintiffs had engaged in "personal attacks" and had expressed a total lack of confidence in Mr. Chow. The judge observed that the plaintiffs' objections to Procedural Order No. 3 and the fee arrangements were not merely procedural disagreements but were framed in a manner that impugned the arbitrator's integrity.

The court then turned to the "liberty to apply" provision in the 1 February 2011 order. This provision was seen as a safety valve, acknowledging from the outset that the appointment might not be viable given the history of the parties. The judge noted that the plaintiffs themselves had initially indicated they had "no objection whatsoever" to the discharge, save for the issue of costs. This inconsistent position—agreeing to the discharge in principle but later challenging the court's leave to grant it—was viewed unfavorably by the court.

Regarding the document transfer issue, the court rejected the plaintiffs' argument that Mr. Chow had acted improperly by receiving disorganised files from the previous arbitrator. The court noted that the plaintiffs had themselves initiated OS 1179 of 2010 to retrieve these documents. Any resulting confusion or "corruption" of the record was a product of the plaintiffs' own procedural choices and the state in which the previous arbitrator had kept the files. The court held that it was "implicit in the contractual arrangement and under the Arbitration Act… that work must be done with due diligence and without neglect," but this duty did not require the arbitrator to perform miracles with a deficient record or to tolerate abuse.

On the procedural bar, the court applied a strict interpretation of the Supreme Court of Judicature Act. Under s 28B(b)(ii), the time for filing an appeal against the 27 October 2011 order had expired long before the plaintiffs sought to challenge it. The judge remarked at paragraph [24]:

"The time, therefore, for the Plaintiffs to file an appeal against my 27 October 2011 order with respect to Mr Chow has long passed as they should have filed their appeal within..."

The court also considered the "curative" discretion under O 2 r 1 of the Rules of Court but declined to exercise it. Citing Sinwa SS (HK) Co Ltd v Morten Innhaug [2010] 4 SLR 1, the court noted that such remedies are refused where the non-compliance is egregious or where it would undermine the finality of the proceedings. The plaintiffs' delay was deemed inexcusable, particularly as they had been active in other related litigations during the same period.

The court also touched upon the plaintiffs' "misconceptions" regarding the legal process, referencing their previous unsuccessful litigation in Anwar Siraj and another v Attorney General [2010] SGHC 36. The judge emphasized that the court's role is to supervise the arbitration, not to act as a constant intervenor in every procedural disagreement. The analysis concluded that the discharge was not only legally justified but practically necessary, as the arbitration had become "unworkable."

What Was the Outcome?

The High Court dismissed the plaintiffs' attempt to challenge the discharge of Mr. Chow Kok Fong. The court confirmed that the order made on 27 October 2011, granting leave for the arbitrator to withdraw, was final and that the time for any appeal had lapsed. The court's operative reasoning was summarized as follows:

"I have no doubt that in the circumstances that have arisen here, Mr Chow had good and justifiable cause to resign." (at [28])

The court further held that the plaintiffs' failure to comply with the statutory timelines for appeal under the Supreme Court of Judicature Act was fatal. Specifically, the court noted:

"The time, therefore, for the Plaintiffs to file an appeal against my 27 October 2011 order with respect to Mr Chow has long passed as they should have filed their appeal within [the prescribed period]." (at [24])

In terms of costs, the court noted the various sums mentioned in the proceedings, including a cost order of S$500. The defendant, Teo Hee Lai Building Construction Pte Ltd, was not an active participant in the final stages of the application due to financial constraints, and thus no substantial costs were awarded in its favor for the final hearing. The court's decision effectively ended the second attempt at arbitration, leaving the underlying construction dispute unresolved but terminating the court's involvement in the appointment of Mr. Chow.

The court also addressed the plaintiffs' request for further arguments, noting that under s 28B(b)(ii) of the Supreme Court of Judicature Act, the court requires no further arguments once a clear decision has been reached and the time for appeal has passed. The application for retrieval of documents in OS 1179 of 2010 was also treated as concluded by the handover that had already occurred, despite the plaintiffs' dissatisfaction with the state of the files.

Why Does This Case Matter?

This case is a landmark for its treatment of the "unworkable arbitration" doctrine. It establishes that the High Court will not force an arbitrator to continue in a role where the parties' conduct has destroyed the necessary foundation of trust. For practitioners, this provides a vital shield for arbitrators who find themselves targeted by "fractious" litigants. It clarifies that the arbitrator's duty of due diligence is not a suicide pact; it does not require the arbitrator to remain in an appointment characterized by personal vitriol and procedural sabotage.

The decision also reinforces the "good and justifiable cause" standard for resignation. By grounding this in the "implicit" terms of the arbitral contract, the court filled a gap in the Arbitration Act (Cap 10, 2002 Rev Ed). This provides a clear legal pathway for arbitrators to seek discharge without fear of being held in breach of contract, provided they can demonstrate that the relationship has become untenable through no fault of their own. The distinction made between this case and Hong Kiat Construction is crucial: resignation over fees is viewed with suspicion, but resignation over a breakdown in the professional relationship is supported by the court.

Furthermore, the case is a significant precedent on the finality of court orders in the arbitration context. The strict application of s 28B of the Supreme Court of Judicature Act serves as a warning that parties cannot "wait and see" before challenging a court's supervisory decision. The "liberty to apply" clause is also clarified; it is a mechanism for addressing unforeseen difficulties in the appointment, not a backdoor for re-litigating the merits of the appointment itself.

For the broader Singapore legal landscape, the judgment reflects the court's intolerance for the abuse of process. The plaintiffs' history of "misconceptions" and failed applications against various parties, including the Attorney General, framed the court's view of their conduct. The decision signals that while the court will assist in the appointment of arbitrators to facilitate dispute resolution, it will not allow its supervisory powers to be used as a tool for harassment or delay. This balances the pro-arbitration stance of Singapore courts with the need to protect the individuals who serve as arbitrators.

Finally, the case highlights the practical difficulties of "in person" representation in complex arbitral and court proceedings. The plaintiffs' inability to navigate the procedural requirements of the Supreme Court of Judicature Act and the Rules of Court ultimately cost them their right to appeal. This serves as a practical lesson on the importance of professional legal advice in high-stakes construction disputes and the subsequent litigation they often spawn.

Practice Pointers

• Maintain Professionalism: Litigants must avoid personal attacks on the arbitrator. Such conduct can provide "good and justifiable cause" for the arbitrator's resignation, potentially ending the arbitration and leaving the party with wasted costs.
• Strict Adherence to Timelines: Practitioners must be vigilant regarding the time limits for appealing interlocutory or supervisory orders under s 28B of the Supreme Court of Judicature Act. A delay can result in a total loss of the right to challenge a decision.
• Use "Liberty to Apply" Wisely: When seeking a court-appointed arbitrator in a contentious matter, include a "liberty to apply" clause to provide a procedural exit if the appointment becomes unworkable.
• Document Management: In cases where an arbitrator is replaced, ensure a formal and indexed handover of documents. As seen in OS 1179 of 2010, a disorganised handover can lead to allegations of procedural "corruption" and further litigation.
• Consistency in Positions: Avoid taking inconsistent positions in court. The plaintiffs' initial lack of objection to the discharge (save for costs) undermined their subsequent attempt to appeal the leave granted for that discharge.
• Understand the Resignation Standard: Arbitrators should be aware that while the Arbitration Act is silent on resignation, the court recognizes a right to withdraw for "good cause," particularly where trust is lost.
• Fee Disputes: Be cautious when linking resignation to fee payments. The court distinguishes between resignation due to acrimony (justifiable) and resignation as a leverage tool for fees (highly scrutinized).

Subsequent Treatment

The ratio in this case—that an arbitrator may resign for good cause where the relationship with the parties has become acrimonious—has been integrated into the broader understanding of the arbitrator-party contract in Singapore. It reinforces the court's power to grant leave for discharge under its supervisory jurisdiction, particularly when the arbitral process has become "unworkable." Later cases have cited this decision to emphasize that party autonomy does not override the arbitrator's right to a professional environment and that the court will protect the integrity of the arbitral office from abusive litigation tactics.

Legislation Referenced

• Arbitration Act (Cap 10, 1985 Rev Ed)
• Arbitration Act (Cap 10, 2002 Rev Ed)
• Supreme Court of Judicature Act (Cap 322, 2007 Revised Edition), s 28B(b)(ii)
• Rules of Court, O 56 r 2
• Rules of Court, O 45 r 9
• Rules of Court, O 2 r 1

Cases Cited

• Referred to: Ting Kang Chung John v Teo Hee Lai Building Constructions Pte Ltd and others [2010] 2 SLR 625
• Referred to: Anwar Siraj and another v Attorney General [2010] SGHC 36
• Referred to: Anwar Siraj v Ting Kang Chung [2003] SGHC 64
• Referred to: Hong Kiat Construction Pte Ltd v Ngiam Benjamin [2009] SGHC 158
• Referred to: Robertson Quay Investments Pte Ltd v Steen Consultants Pte Ltd [2008] 2 SLR 623
• Referred to: Sunny Yap Boon Keng v Pacific Prince International Pte Ltd [2009] 1 SLR 385
• Referred to: Tan Yeow Khoon and another v Tan Yeow Tat and another [1999] 3 SLR(R) 717
• Referred to: Koh Ewe Chee v Koh Hua Leong and another [2002] 1 SLR(R) 943
• Referred to: Kamla Lal Hiranand v Lal Hiranand [2003] 3 SLR(R) 198
• Referred to: Sinwa SS (HK) Co Ltd v Morten Innhaug [2010] 4 SLR 1

Source Documents

• Original judgment PDF: Download (PDF, hosted on Legal Wires CDN)
• Official eLitigation record: View on elitigation.sg