Case Details
- Citation: [2022] SGCA 7
- Title: JUNGWOO E&C PTE. LTD. v DONGAH GEOLOGICAL ENGINEERING CO., LTD
- Court: Court of Appeal of the Republic of Singapore
- Date: 21 January 2022
- Judges: Sundaresh Menon CJ, Steven Chong JCA and Quentin Loh JAD
- Case Type: Ex tempore judgment
- Proceedings: Civil Appeal No 62 of 2021 (Summons No 92 of 2021)
- Related Proceedings: Originating Summons No 831 of 2021 (High Court); Civil Appeal No 112 of 2021 before the Appellate Division (AD/CA 112/2021); AD/SUM 28/2021 (stay of partial release); AD/CA 120/2021 (second cross-appeal)
- Plaintiff/Applicant: Dongah Geological Engineering Co Ltd (“Dongah”)
- Defendant/Respondent: Jungwoo E&C Pte Ltd (“Jungwoo”)
- Legal Area(s): Civil procedure; costs; jurisdictional allocation between Court of Appeal and Appellate Division; Building and Construction Industry Security of Payment
- Statutes Referenced: Supreme Court of Judicature Act 1969 (2020 Rev Ed) (“SCJA”); Rules of Court (2014 Rev Ed) (“ROC”); Building and Construction Industry Security of Payment Act 2004 (2020 Rev Ed) (“SOPA”)
- Key Procedural Issue: Whether the Court of Appeal should strike out a notice of appeal/cross-appeal as an abuse of process for being filed in the wrong appellate forum and duplicated in parallel
- Cases Cited: [2021] SGCA 115; [2005] 2 SLR(R) 188; [2013] 1 SLR 401; [2021] SGCA 115; [2015] 1 SLR 797; plus foreign authorities cited by counsel (Chase Oyster Bar v Hamo Industries [2010] NSWCA 190; Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4)
- Judgment Length: 12 pages, 2,806 words
Summary
This Court of Appeal decision concerns a procedural application by Dongah to strike out Jungwoo’s notice of appeal in Civil Appeal No 62 of 2021. The dispute arose from a subcontract under the Building and Construction Industry Security of Payment Act 2004 (“SOPA”), where an adjudicator ordered Dongah to pay Jungwoo an adjudicated sum of $2,428,690.04. After the High Court dismissed Dongah’s application to set aside the adjudication determination (but granted a partial stay and partial release), Jungwoo filed cross-appeals in the Court of Appeal and, later, in the Appellate Division of the High Court. Dongah argued that Jungwoo’s Court of Appeal filing was not only in the wrong forum but also duplicated and abusive.
The Court of Appeal held that it has an inherent jurisdiction to strike out a notice of appeal where the appeal is not capable of argument, or where it is frivolous, vexatious, or an abuse of process. Applying that principle, the court struck out CA/CA 62/2021. The court reasoned that Jungwoo unjustifiably subjected Dongah to two identical cross-appeals before two different appellate courts in an attempt to “hedge” against the possibility that its initial forum choice was wrong. The court further clarified that the underlying SOPA adjudication setting-aside context is not an administrative law case, and therefore does not fall within the administrative-law allocation framework under the Sixth Schedule to the Supreme Court of Judicature Act 1969 (“SCJA”).
What Were the Facts of This Case?
The underlying dispute began in April 2021. Dongah and Jungwoo were parties to a subcontract relationship, and a disagreement arose because Dongah allegedly failed to make progress payments to Jungwoo. In response, Jungwoo served a payment claim on Dongah under the SOPA. The SOPA regime is designed to provide a fast, interim mechanism for payment disputes in construction and related industries, culminating in an adjudication determination.
On 15 July 2021, an adjudicator rendered his adjudication determination. The adjudicator held that Dongah was liable to pay Jungwoo the adjudicated sum of $2,428,690.04. Dissatisfied, Dongah filed an application in the High Court on 16 August 2021 (HC/OS 831/2021) seeking, among other relief, to set aside the adjudication determination and to obtain a stay of enforcement in the alternative. The High Court delivered its decision on 22 October 2021. It dismissed Dongah’s application to set aside the adjudication determination, but it granted a partial stay in respect of enforcement and ordered a partial release of the adjudicated sum to Jungwoo.
Following the High Court’s decision, Dongah filed Civil Appeal No 112 of 2021 before the Appellate Division of the High Court (AD/CA 112/2021) on 28 October 2021. On the same day, Dongah filed AD/SUM 28/2021 seeking a stay of the order for the partial release of the adjudicated sum. This procedural stage is important because it triggered the question of which appellate forum should hear the appeal arising from the SOPA setting-aside context.
Even though Dongah had proceeded in 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 (“the 10 November CMC”) to understand Jungwoo’s reasons. Jungwoo’s counsel took the position that an application to set aside an adjudication determination under the SOPA is a matter relating to administrative law, and therefore properly belongs in the Court of Appeal. Jungwoo also indicated that Dongah should not have filed in the Appellate Division, but Jungwoo declined to seek a transfer of AD/CA 112/2021 to the Court of Appeal. The Court accepted Jungwoo’s filing and assigned it as CA/CA 62/2021.
On 15 November 2021, the parties were informed that, under s 29E of the SCJA, CA/CA 62/2021 had been identified for possible transfer from the Court of Appeal to the Appellate Division on the basis that it was not made in accordance with s 29C read with the Sixth Schedule of the SCJA. On 22 November 2021, Jungwoo filed another cross-appeal to the Appellate Division, identical to its earlier cross-appeal in CA/CA 62/2021. Jungwoo’s counsel explained by letter dated 24 November 2021 that Jungwoo had raised a “jurisdictional” objection in AD/SUM 28/2021, contending that the proper forum was the Court of Appeal. However, because the transfer decision might not be made before the deadline for filing an appeal, Jungwoo filed a second cross-appeal to preserve its right to appeal to the Court of Appeal.
Another case management conference took place on 26 November 2021 (“the 26 November CMC”). Despite the Assistant Registrar’s view that a second notice of appeal was unnecessary to preserve Jungwoo’s rights, Jungwoo persisted with the course of action. The second filing was accepted and assigned as AD/CA 120/2021. On 29 November 2021, Dongah applied to strike out CA/CA 62/2021. The present Court of Appeal decision addresses that striking-out application.
What Were the Key Legal Issues?
The first key 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 an appeal, and whether the circumstances amounted to an abuse of process. The court’s focus was not merely on whether the appeal was procedurally defective, but on whether Jungwoo’s conduct—filing duplicative cross-appeals in two different appellate forums—was unjustifiable and vexatious to the opposing party.
The second issue was jurisdictional and allocation-based: whether the appeal arising from the SOPA adjudication setting-aside context is an “administrative law case” for purposes of the Sixth Schedule to the SCJA, such that it should be heard by the Court of Appeal by default. Jungwoo argued that the review of an adjudication determination is akin to judicial review and therefore administrative law. Dongah contended that the SOPA adjudication setting-aside framework is fundamentally private law and does not engage administrative law principles in the way required for the Sixth Schedule allocation.
A related issue was the proper approach to determining the forum allocation under the SCJA. The court had to explain how to characterise the “case” for allocation purposes, and how to distinguish between the nature of the “issue” raised and the nature of the “case” itself. This matters because the Sixth Schedule draws a distinction between “case” and “issue”, and the default allocation depends on the former.
How Did the Court Analyse the Issues?
The Court of Appeal began by restating the governing principle on striking out. It held 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, which articulates the relevant categories for striking out. This framing emphasises that the court’s power is protective of judicial resources and fair process, and it is not limited to cases that are clearly doomed on the merits.
On the facts, the court concluded that Jungwoo’s conduct amounted to abuse of process. The court characterised Jungwoo’s strategy as unjustifiably subjecting Dongah to two identical cross-appeals before two different appellate courts. The court viewed this as a “hedge” against the possibility that Jungwoo’s initial forum choice was wrong. In the court’s view, there was no legitimate justification for retaining CA/CA 62/2021 on the record once the matter was already being pursued in the Appellate Division through an identical cross-appeal. The court emphasised practical consequences: retaining the Court of Appeal matter would divert valuable resources away from cases more suited to the Court of Appeal, and it would unnecessarily vex Dongah by requiring it to respond to concurrent, identical cross-appeals.
The court then addressed the jurisdictional argument advanced by Jungwoo. It explained why CA/CA 62/2021 was “plainly not a case concerning administrative law.” Administrative law, as the court described it, regulates the exercise of public power by government. The court reasoned that although the adjudicator’s appointment and jurisdiction are conferred by statute, the adjudicator is not part of the government and is not exercising public power when making an adjudication determination. The court analysed the SOPA structure: the Minister authorises an authorised nominating body (“ANB”) to appoint adjudicators; the ANB refers the adjudication application to an adjudicator; and the adjudicator then agrees or declines to determine the application. While the adjudicator’s authority is statutory, the source of the adjudicator’s role is not governmental public power in the administrative-law sense.
The court further relied on SOPA provisions to explain the adjudicator’s function. The adjudicator’s role is to hold parties to their private law obligations under contract. The matters the adjudicator can have regard to do not involve wider public considerations. The court cited authority on the adjudicator’s jurisdiction and appointment mechanism, including 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 at [29]–[30]. The court’s point was that statutory appointment does not transform the adjudicator into an administrative decision-maker exercising public power.
Jungwoo had also relied on Australian and New South Wales authorities to argue that the court’s review of an adjudication determination involves prerogative remedies of judicial review and thus is administrative law. The Court of Appeal rejected this approach as inconsistent with Singapore authority. It pointed to Citiwall Safety Glass Pte Ltd v Mansource Interior Pte Ltd [2015] 1 SLR 797, where the Court of Appeal recognised that while judicial review and review of adjudication determinations both involve supervisory jurisdiction, the latter is “akin” to a quashing order yet distinct and governed by a separate procedure. The court therefore treated the similarity of supervisory functions as insufficient to reclassify the SOPA setting-aside context as administrative law.
Finally, the court addressed the SCJA allocation framework. It noted that even if some principles in administrative law might appear similar, the case remains unrelated to regulation of public power by public authorities. The court also considered the Sixth Schedule to the SCJA. It observed that the Sixth Schedule contemplates that appeals arising from administrative law cases are to go to the Court of Appeal by default, but it also draws a distinction between “case” and “issue”. The court referred to its recent clarification in Wei Fengpin v Raymond Low Tuck Loong and others [2021] SGCA 115 at [32], explaining that the default allocation is based on the “case” rather than the “issue”. Applying that distinction, once the present 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.
What Was the Outcome?
The Court of Appeal granted Dongah’s application and struck out CA/CA 62/2021. The practical effect is that Jungwoo’s cross-appeal in the Court of Appeal was removed from the record as an abuse of process, leaving the Appellate Division proceedings as the appropriate forum for the substantive appellate review.
Although the excerpt provided does not include the court’s full costs discussion, the judgment’s procedural context indicates that the court was also concerned with counsel’s conduct and the potential for costs consequences. The court had expressly invited submissions on whether Jungwoo’s solicitor should personally bear costs under O 59 r 8(1) of the ROC, which empowers the court to order costs against solicitors personally where costs have been incurred unreasonably or improperly, or wasted due to failure to conduct proceedings with reasonable competence and expedition.
Why Does This Case Matter?
This decision is significant for two overlapping reasons: (1) it provides a clear procedural warning against duplicative appellate filings designed to hedge against jurisdictional uncertainty, and (2) it clarifies the forum allocation for SOPA adjudication setting-aside appeals under the SCJA. For practitioners, the case underscores that jurisdictional arguments must be pursued with procedural discipline, and that filing in the wrong appellate forum—followed by parallel identical filings—may be treated as an abuse of process.
Substantively, the case is also an important authority on the classification of SOPA adjudication setting-aside proceedings. The Court of Appeal confirmed that such proceedings are not administrative law cases merely because the court’s supervisory jurisdiction resembles judicial review or because statutory mechanisms confer adjudicator jurisdiction. The court’s reasoning reinforces the private-law character of SOPA adjudication determinations: adjudicators enforce contractual obligations rather than exercise public power.
For law students and litigators, the decision is useful in two ways. First, it illustrates how the Court of Appeal approaches inherent powers to strike out appeals, linking the analysis to the protection of judicial resources and fairness to the opposing party. Second, it demonstrates how the SCJA Sixth Schedule allocation depends on the nature of the “case” rather than the “issue”, and it shows the court’s preference for Singapore precedents over foreign analogies when characterising procedural and substantive legal functions.
Legislation Referenced
- Supreme Court of Judicature Act 1969 (2020 Rev Ed) (including ss 29C, 29E and the Sixth Schedule)
- Rules of Court (2014 Rev Ed) (including O 59 r 8(1))
- Building and Construction Industry Security of Payment Act 2004 (2020 Rev Ed) (including ss 13(1), 14(1), 14(2), 16(4), 17(2), 17(3), 28(1))
Cases Cited
- Riduan bin Yusof v Khng Thian Huat and another [2005] 2 SLR(R) 188
- Wei Fengpin v Raymond Low Tuck Loong and others [2021] SGCA 115
- Citiwall Safety Glass Pte Ltd v Mansource Interior Pte Ltd [2015] 1 SLR 797
- 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
- Chase Oyster Bar v Hamo Industries [2010] NSWCA 190
- Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd and another [2018] HCA 4
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.