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
- Case Number: Civil Appeal No 62 of 2021 (Summons No 92 of 2021)
- Related Proceedings: Originating Summons No 831 of 2021
- Judges: Sundaresh Menon CJ, Steven Chong JCA and Quentin Loh JAD
- Plaintiff/Applicant: Dongah Geological Engineering Co Ltd
- Defendant/Respondent: Jungwoo E&C Pte Ltd
- Procedural Posture: Application to strike out a notice of appeal
- Legal Areas: Civil Procedure; Costs; SOPA enforcement and setting aside; appellate forum allocation
- Statutes Referenced: Supreme Court of Judicature Act 1969 (including ss 29C, 29E and the Sixth Schedule)
- Other Legislation Referenced (from extract): Building and Construction Industry Security of Payment Act 2004 (2020 Rev Ed) (“SOPA”); Rules of Court (2014 Rev Ed) (“ROC”)
- Cases Cited: [2021] SGCA 115; [2005] 2 SLR(R) 188; [2013] 1 SLR 401; [2021] SGCA 115; [2015] 1 SLR 797
- Judgment Length: 12 pages, 2,806 words
- Judgment Type: Ex tempore judgment
Summary
In Jungwoo E&C Pte Ltd v Dongah Geological Engineering Co Ltd ([2022] SGCA 7), the Court of Appeal considered an application by Dongah to strike out Jungwoo’s notice of appeal (CA/CA 62/2021). The application arose in the context of a subcontract dispute governed by the Building and Construction Industry Security of Payment Act 2004 (SOPA). After an adjudicator ordered Dongah to pay a substantial adjudicated sum, Dongah sought to set aside the adjudication determination and obtained only partial relief at first instance. Jungwoo then pursued appellate proceedings, but did so in a manner that the Court of Appeal characterised as an abuse of process.
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 CA/CA 62/2021 because Jungwoo had unjustifiably subjected Dongah to two identical cross-appeals before two different appellate courts, apparently to hedge against uncertainty over the proper forum. The court further clarified that the underlying SOPA adjudication setting-aside dispute is not an administrative law case, and therefore does not fall within the administrative-law default allocation of appellate forums under the Sixth Schedule to the Supreme Court of Judicature Act 1969.
What Were the Facts of This Case?
The dispute began in April 2021 when Dongah allegedly failed to make progress payments to Jungwoo under a subcontract. In response, Jungwoo served a payment claim on Dongah under the SOPA. The SOPA regime is designed to provide a fast and interim mechanism for payment in construction disputes, culminating in an adjudication determination that is generally enforceable unless and until set aside on limited grounds.
On 15 July 2021, an adjudicator rendered his adjudication determination, holding Dongah liable to pay Jungwoo an adjudicated sum of $2,428,690.04. This adjudicated sum represented the core monetary relief Jungwoo sought under the SOPA process. Dongah, however, challenged the adjudication determination by filing HC/OS 831/2021 on 16 August 2021. Dongah sought, among other matters, to set aside the adjudication determination and also sought a stay of enforcement in the alternative.
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 and ordered a partial release of the adjudicated sum to Jungwoo. This meant that while Dongah obtained some interim protection, Jungwoo still received part of the adjudicated amount pending the outcome of further proceedings.
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. Importantly, even though Dongah had filed before the Appellate Division, Jungwoo filed a cross-appeal before the Court of Appeal on 2 November 2021. A case management conference on 10 November 2021 was held to understand Jungwoo’s reasons for filing in the Court of Appeal rather than the Appellate Division. Jungwoo’s counsel argued that a SOPA set-aside application is a matter relating to administrative law. Jungwoo did not, however, seek a transfer of the appeal to the Appellate Division at that stage, and the cross-appeal was accepted and assigned as CA/CA 62/2021.
Subsequently, on 15 November 2021, the court informed the parties that CA/CA 62/2021 had been identified for possible transfer from the Court of Appeal to the Appellate Division pursuant to s 29E of the Supreme Court of Judicature Act 1969, on the ground that it may not have been made in accordance with s 29C read with the Sixth Schedule. On 22 November 2021, Jungwoo filed another cross-appeal to the Appellate Division that was identical to its earlier cross-appeal in CA/CA 62/2021. Jungwoo explained by letter dated 24 November 2021 that it had raised a “jurisdictional” objection in AD/SUM 28/2021, but that the decision on the proper forum might not be made before the deadline for filing an appeal. To “preserve” its right to appeal, Jungwoo filed a second cross-appeal to the Appellate Division, resulting in two parallel appellate tracks.
At a further case management conference on 26 November 2021, Jungwoo’s counsel persisted with this approach despite the Assistant Registrar’s view that a second notice of appeal was unnecessary to preserve Jungwoo’s rights. 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, arguing that Jungwoo’s conduct amounted to an abuse of process.
What Were the Key Legal Issues?
The first legal issue was procedural and concerned the Court of Appeal’s power to strike out a notice of appeal. Specifically, the court had to determine whether CA/CA 62/2021 should be struck out on the basis that it was not capable of argument, or that it was frivolous, vexatious, or an abuse of the process of the court. This required the court to assess the propriety of Jungwoo’s decision to file a cross-appeal in the Court of Appeal and then file an identical cross-appeal in the Appellate Division.
The second issue concerned forum allocation under the Supreme Court of Judicature Act 1969. The court had to decide whether a dispute arising from the setting aside of a SOPA adjudication determination is properly characterised as an “administrative law case” for the purposes of the Sixth Schedule. This classification mattered because the Sixth Schedule provides default rules for which appellate court hears which categories of cases, and the statutory scheme includes mechanisms for transfer where appeals are filed in the wrong forum.
Related to the forum issue was the question of whether the nature of the court’s supervisory review of adjudication determinations under the SOPA is “administrative law” in substance. Jungwoo’s counsel argued that because the court’s review resembles judicial review and may result in quashing-like relief, the matter should be treated as administrative law. The Court of Appeal had to address whether that analogy was correct and whether it justified filing in the Court of Appeal.
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 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, citing the relevant paragraphs on the scope of the inherent power.
Applying that principle, the court focused on the practical consequences of Jungwoo’s litigation strategy. The court characterised Jungwoo’s conduct as unjustifiably subjecting Dongah to two identical cross-appeals before two different appellate courts. The court viewed this as a hedging tactic: Jungwoo filed in the Court of Appeal on the assumption that the matter was administrative law, but then filed an identical cross-appeal in the Appellate Division to preserve its rights if the Court of Appeal decided to transfer the matter. The court held that this was not a legitimate procedural response to uncertainty; rather, it was an abuse of process because it unnecessarily multiplied proceedings and imposed avoidable burdens on the opposing party and on judicial resources.
Crucially, the court concluded that CA/CA 62/2021 should not have been retained on the record. Keeping the appeal would divert valuable resources away from cases that require the Court of Appeal’s expertise and would compel Dongah to respond to concurrent identical cross-appeals. The court therefore struck out the notice of appeal in CA/CA 62/2021.
The court then addressed the substantive forum classification issue to explain why Jungwoo’s “administrative law” characterisation was plainly wrong. The court explained that administrative law regulates the exercise of public power by the government. It emphasised that while an adjudicator’s jurisdiction is conferred by statute and appointment mechanisms involve authorised nominating bodies (ANBs), the adjudicator is not part of the government and does not exercise public power when making an adjudication determination. The adjudicator’s role is to hold parties to their private law obligations under contract, and the matters the adjudicator may consider do not involve wider public considerations.
In support of this analysis, the court referred to the statutory structure of the SOPA. It noted that the adjudicator’s appointment is made by the ANB under s 14(1) of the SOPA, and that the Minister authorises the ANB to appoint adjudicators rather than directly appointing adjudicators. It also highlighted that the ANB has an obligation to refer an adjudication application to an adjudicator who may agree or decline to determine it. Once appointed, the adjudicator has jurisdiction and powers to conduct the adjudication, but the authority does not flow from the Minister in a way that would make the adjudicator an instrument of public power.
The court further reasoned that the adjudicator’s determination is not the exercise of public power. Instead, the adjudicator’s function is to enforce private contractual obligations within the SOPA framework. The court cited the SOPA provisions that limit the adjudicator’s role and the scope of matters that can be considered, including ss 13(1), 17(2) and 17(3). Accordingly, the court held that the underlying dispute is not an administrative law case.
To address the argument that SOPA adjudication review is akin to judicial review, the court drew a distinction between the nature of the supervisory jurisdiction and the classification of the case as administrative law. It relied on its own prior decision in 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 and may make orders similar to quashing orders, the procedure and legal framework are distinct from typical judicial review applications. The court therefore rejected the proposition that similarity in remedy necessarily transforms the case into an administrative law case.
The court also addressed the statutory default allocation under the Sixth Schedule to the Supreme Court of Judicature Act. It noted that the Sixth Schedule draws a distinction between a “case” and an “issue” and sets out default allocation based on the former. It referred to Wei Fengpin v Raymond Low Tuck Loong and others [2021] SGCA 115, particularly the clarification at [32]. The court reasoned that once the present appeal does not arise from an administrative law case, it falls outside the ambit of para 1(a) of the Sixth Schedule and should be made to the Appellate Division in the absence of other countervailing reasons.
Finally, the court made a brief but pointed comment on counsel’s conduct. It indicated that the litigation strategy was undesirable and that the court had invited submissions on whether the solicitor should personally bear costs under O 59 r 8(1) of the ROC, which permits personal costs orders where costs have been incurred unreasonably or improperly, or wasted due to failure to conduct proceedings with reasonable competence and expedition. While the extract provided truncates the remainder of the judgment, the court’s remarks signal that the procedural missteps were not merely technical but potentially warranted cost consequences.
What Was the Outcome?
The Court of Appeal granted Dongah’s application and struck out Jungwoo’s notice of appeal in CA/CA 62/2021. The practical effect was that Jungwoo’s cross-appeal in the Court of Appeal would not proceed, leaving the Appellate Division proceedings as the proper forum for the substantive appellate challenge.
By striking out the appeal, the court also reinforced the expectation that parties should not file parallel identical appeals in different appellate courts as a hedge. The decision therefore reduced duplication and ensured that the appellate process would proceed efficiently in the correct forum.
Why Does This Case Matter?
This case is significant for two main reasons. First, it provides a clear procedural warning about abuse of process in appellate practice. The Court of Appeal treated the filing of identical cross-appeals in two different appellate courts as unjustifiable and wasteful. For practitioners, the decision underscores that “forum uncertainty” is not a licence to multiply proceedings. Where the statutory scheme provides mechanisms for transfer and where the proper forum can be identified by legal characterisation, parties should avoid strategies that impose unnecessary burdens on the court and the opposing party.
Second, the case clarifies the legal characterisation of SOPA adjudication setting-aside disputes for forum allocation purposes. The Court of Appeal held that such disputes are not administrative law cases because adjudicators do not exercise public power; they enforce private contractual obligations. This clarification will assist lawyers in determining whether an appeal should be filed in the Court of Appeal or the Appellate Division under the Sixth Schedule framework.
For law students and practitioners researching appellate jurisdiction, the decision also illustrates how the court approaches the “case vs issue” distinction in the Sixth Schedule. The court’s reasoning shows that even if some aspects of the supervisory review resemble administrative law concepts (such as quashing-like outcomes), the classification depends on the nature of the case arising from the underlying dispute, not merely on the resemblance of remedies.
Legislation Referenced
- Supreme Court of Judicature Act 1969 (2020 Rev Ed), including:
- Section 29C
- Section 29E
- Sixth Schedule (including para 1(a))
- Building and Construction Industry Security of Payment Act 2004 (2020 Rev Ed) (“SOPA”), including:
- Section 14(1) and (2)
- Section 16(4)
- Section 17(2) and (3)
- Section 13(1)
- Section 28(1)
- Rules of Court (2014 Rev Ed), Order 59 rule 8(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
- Lee Wee Lick Terence (alias Li Weili Terence) v Chua Say Eng (formerly trading as Weng Fatt Construction Engineering) and another [2013] 1 SLR 401
- Citiwall Safety Glass Pte Ltd v Mansource Interior Pte Ltd [2015] 1 SLR 797
- Jungwoo E&C Pte Ltd v Dongah Geological Engineering Co Ltd [2022] SGCA 7 (this case)
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.