Case Details
- Citation: [2022] SGCA 7
- Title: Dongah Geological Engineering Co Ltd v Jungwoo E&C Pte Ltd
- Court: Court of Appeal of the Republic of Singapore
- Date: 21 January 2022
- Case type: Civil Appeal (Summons application)
- Civil Appeal No: 62 of 2021
- Summons No: 92 of 2021
- Originating Summons: HC/OS 831/2021
- Parties: Dongah Geological Engineering Co Ltd (Applicant) v Jungwoo E&C Pte Ltd (Respondent)
- Judges: Sundaresh Menon CJ, Steven Chong JCA and Quentin Loh JAD
- Legal areas: Courts and Jurisdiction (allocation of appellate forum); Civil Procedure (striking out; costs; personal liability of solicitor)
- Statutes referenced: Building and Construction Industry Security of Payment Act 2004 (2020 Rev Ed) (“SOPA”); Supreme Court of Judicature Act 1969 (including ss 29C, 29E and the Sixth Schedule); Rules of Court (2014 Rev Ed) (including O 59 r 8(1))
- Key procedural posture: Application to strike out a notice of appeal on grounds of abuse of process
- Judgment length: 12 pages; 2,714 words
- Cases cited (as per provided extract): [2021] SGCA 115; [2022] SGCA 7 (this case)
Summary
In Dongah Geological Engineering Co Ltd v Jungwoo E&C Pte Ltd ([2022] SGCA 7), the Court of Appeal considered an application to strike out a notice of appeal filed in the wrong appellate forum and, more importantly, whether the filing amounted to an abuse of process. The dispute arose from a construction payment claim under Singapore’s Security of Payment regime. After an adjudication determination was made under the Building and Construction Industry Security of Payment Act (SOPA), the losing party sought to set aside the determination and obtained only partial relief at first instance. The procedural complexity that followed—particularly the filing of multiple, identical cross-appeals before different appellate courts—became the focus of the Court of Appeal’s decision.
The Court of Appeal held that it had inherent jurisdiction to strike out an appeal where it is not capable of argument, or where it is frivolous, vexatious, or an abuse of process. Applying that principle, the Court struck out Jungwoo’s notice of appeal in Civil Appeal No 62 of 2021. The Court concluded that the matter was plainly not an administrative law case and should have been directed to the Appellate Division rather than the Court of Appeal. The Court further criticised counsel’s conduct and indicated that costs consequences could extend to personal liability of the solicitor under O 59 r 8(1) of the Rules of Court, where costs are incurred unreasonably or improperly or are wasted.
What Were the Facts of This Case?
The underlying dispute concerned alleged non-payment of progress payments under a subcontract. In April 2021, Dongah and Jungwoo became embroiled in a construction payment dispute. Jungwoo served a payment claim on Dongah under the SOPA. Following the statutory process, an adjudicator rendered an adjudication determination on 15 July 2021, holding that Dongah was liable to pay Jungwoo an adjudicated sum of $2,428,690.04.
Dongah responded by filing HC/OS 831/2021 on 16 August 2021. Among other reliefs, Dongah sought to set aside the adjudication determination and, in the alternative, to obtain a stay of enforcement. The High Court dismissed Dongah’s application to set aside the adjudication determination on 22 October 2021. However, the High Court granted a partial stay in respect of enforcement and ordered a partial release of the adjudicated sum to Jungwoo.
After the High Court’s decision, Dongah filed an appeal to the Appellate Division of the High Court: Civil Appeal No 112 of 2021 (AD/CA 112/2021) on 28 October 2021. On the same day, Dongah also filed AD/SUM 28/2021 seeking a stay of the order for the partial release of the adjudicated sum. Notably, although Dongah had appealed to the Appellate Division, Jungwoo filed a cross-appeal before the Court of Appeal on 2 November 2021.
A case management conference was held on 10 November 2021. At that conference, Jungwoo’s counsel argued that the cross-appeal was properly made to the Court of Appeal because an application to set aside an adjudication determination under the SOPA was said to be a matter “relating to administrative law”. Dongah took the position that the Appellate Division was the proper forum, but Jungwoo declined to seek a transfer of AD/CA 112/2021 to the Court of Appeal. The Court accepted Jungwoo’s cross-appeal and assigned it as CA/CA 62/2021.
What Were the Key Legal Issues?
The first legal issue was whether the Court of Appeal should strike out Jungwoo’s notice of appeal in CA/CA 62/2021. This required the Court to consider the scope of its inherent jurisdiction to strike out a notice of appeal, and whether the appeal was an abuse of process. The Court’s inquiry was not limited to whether the appeal had arguable merits; it extended to whether the procedural conduct surrounding the filing was improper and wasteful.
The second issue was the correct appellate forum for appeals arising from SOPA adjudication setting-aside proceedings. The Court had to determine whether the case was a “case relating to administrative law” within the meaning of the Supreme Court of Judicature Act 1969 framework, particularly the Sixth Schedule allocation rules. This required the Court to interpret and apply the statutory scheme governing transfers between the Court of Appeal and the Appellate Division.
A third, consequential issue concerned costs and whether the solicitor personally should bear costs incurred due to unreasonable or improper conduct. The Court indicated that it would consider personal liability under O 59 r 8(1) of the Rules of Court, which empowers the court to order costs against solicitors personally where costs have been incurred unreasonably or improperly or have been wasted.
How Did the Court Analyse the Issues?
The Court began by restating the governing principle on striking out. It emphasised that the Court of Appeal has inherent jurisdiction to strike out a notice of appeal where (a) the appeal is not capable of argument, or (b) the appeal is frivolous, vexatious, or an abuse of the process of the court. The Court relied on Riduan bin Yusof v Khng Thian Huat and another [2005] 2 SLR(R) 188 for the formulation of these categories. This framing matters because it signals that the Court’s power is protective of the court’s process and resources, not merely a response to weak substantive arguments.
On the facts, the Court found that Jungwoo had “unjustifiably subjected” Dongah to two identical cross-appeals before two different appellate courts. The Court characterised the conduct as an attempt to “hedge” against the possibility that Jungwoo’s initial decision to file in the Court of Appeal was a wrong call. The Court considered this to be an abuse of process because it unnecessarily multiplied proceedings, diverted judicial resources, and imposed additional burdens on the opposing party.
Crucially, the Court then addressed why the Court of Appeal was the wrong forum. The Court held that the matter was “plainly not” an administrative law case. It explained that administrative law regulates the exercise of public power by government. While the adjudicator’s jurisdiction is conferred by statute (SOPA), the adjudicator is not part of the government and does not exercise public power when conducting adjudication. Instead, the adjudicator’s role is to hold parties to their private law obligations under contract, with the statutory scheme focusing on payment enforcement rather than public law regulation.
To support this analysis, the Court referred to the statutory architecture of SOPA. It noted that the adjudicator is appointed by an authorised nominating body (ANB) under s 28(1) of SOPA, and that the ANB has an obligation to refer the adjudication application to an adjudicator who may then agree or decline to determine it. Although the adjudicator’s powers are conferred by SOPA (including under s 16(4)), the Court reasoned that the adjudicator’s authority does not flow from the Minister and does not amount to the exercise of public power. The Court also observed that the adjudicator’s considerations under SOPA do not involve wider public considerations, reinforcing the private-law character of the adjudication determination.
The Court further addressed the statutory allocation of appeals between the Court of Appeal and the Appellate Division. It relied on the Sixth Schedule to the Supreme Court of Judicature Act 1969 and on its earlier clarification in Wei Fengpin v Raymond Low Tuck Loong and others [2021] SGCA 115. In Wei Fengpin, the Court had clarified the distinction between a “case” and an “issue” and set out a default allocation based on the former. Applying that approach, the Court held that once the appeal does not arise from an administrative law case, it falls outside para 1(a) of the Sixth Schedule and should be made to the Appellate Division in the absence of other countervailing reasons.
Jungwoo had attempted to characterise the SOPA setting-aside context as administrative law by analogising to Australian and New South Wales authorities on judicial review of tribunal determinations. The Court rejected this approach, stressing that the first source of guidance should be pronouncements of the Singapore Court of Appeal. It referred to Citiwall Safety Glass Pte Ltd v Mansource Interior Pte Ltd [2015] 1 SLR 797, where the Court had recognised that although the court exercises supervisory jurisdiction when reviewing adjudication determinations, the procedure and remedy are distinct from typical judicial review. The Court’s point was that similarity in supervisory function does not transform the matter into administrative law; the SOPA challenge is governed by its own statutory procedure and does not require leave of court in the way judicial review applications do.
Having established that CA/CA 62/2021 was not an administrative law case and should have been directed to the Appellate Division, the Court returned to the abuse of process analysis. It held that retaining CA/CA 62/2021 would divert valuable resources away from cases requiring the Court of Appeal’s expertise and would unnecessarily vex Dongah with concurrent identical cross-appeals before two different appellate courts. That reasoning led to the striking out of the notice of appeal.
Finally, the Court indicated that it would consider costs consequences for counsel’s conduct. At the oral hearing, the Court invited submissions on whether the solicitor should personally bear costs under O 59 r 8(1) of the Rules of Court. The Court’s inclusion of this issue underscores that procedural impropriety in appellate filings can have personal cost implications, not merely adverse costs orders against the party.
What Was the Outcome?
The Court of Appeal granted Dongah’s application and struck out Civil Appeal No 62 of 2021 (CA/CA 62/2021). The practical effect was that Jungwoo’s cross-appeal lodged in the Court of Appeal would not proceed, thereby preventing duplication of proceedings and refocusing the dispute in the correct appellate forum.
The Court’s decision also signalled that costs may be dealt with in a manner that reflects the unreasonableness or impropriety of counsel’s conduct, including the possibility of personal liability of the solicitor under O 59 r 8(1). While the extract provided truncates the remainder of the judgment, the Court’s explicit invitation for submissions on personal costs indicates that the costs dimension was treated as a serious and separate consequence of the procedural misuse.
Why Does This Case Matter?
Dongah Geological Engineering Co Ltd v Jungwoo E&C Pte Ltd is significant for practitioners because it clarifies the boundary between SOPA adjudication setting-aside proceedings and administrative law. The Court’s analysis emphasises that adjudication under SOPA is not the exercise of public power by government, even though the adjudicator’s jurisdiction is statutory. This matters for appellate allocation: parties cannot assume that because a supervisory or “judicial review-like” function is involved, the case automatically falls within the administrative law category for forum purposes.
The decision also provides a cautionary lesson on appellate procedure and the risks of “forum hedging”. The Court treated the filing of identical cross-appeals in two different appellate courts as an abuse of process. For litigators, the case reinforces that strategic procedural manoeuvres that multiply proceedings without justification can trigger striking out and adverse costs consequences.
Finally, the case highlights the Court of Appeal’s willingness to consider personal liability of solicitors for wasted costs. Under O 59 r 8(1), courts can order costs against solicitors personally where costs are incurred unreasonably or improperly or are wasted. This is a strong reminder that counsel must exercise careful judgment when determining the correct appellate forum and when deciding whether to seek transfers rather than duplicating filings.
Legislation Referenced
- Building and Construction Industry Security of Payment Act 2004 (2020 Rev Ed) (“SOPA”) — including ss 13(1), 14(1)-(2), 16(4), 17(2)-(3), 28(1)
- Supreme Court of Judicature Act 1969 (2020 Rev Ed) — including ss 29C and 29E and the Sixth Schedule
- Rules of Court (2014 Rev Ed) — O 59 r 8(1)
Cases Cited
- Riduan bin Yusof v Khng Thian Huat and another [2005] 2 SLR(R) 188
- Lee Wee Lick Terence (alias Li Weili Terence) v Chua Say Eng (formerly trading as Weng Fatt Construction Engineering) and another appeal [2013] 1 SLR 401
- Citiwall Safety Glass Pte Ltd v Mansource Interior Pte Ltd [2015] 1 SLR 797
- Wei Fengpin v Raymond Low Tuck Loong and others [2021] SGCA 115
Source Documents
This article analyses [2022] SGCA 7 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.