2016 Sgca 07 PDF

This judgment is subject to final editorial corrections approved by the
court and/or redaction pursuant to the publishers duty in compliance

with the law, for publication in LawNet and/or the Singapore Law
Reports.
Ser Kim Koi

v
GTMS Construction Pte Ltd
[2016] SGCA 7
Court of Appeal Civil Appeal No 163 of 2014

Chao Hick Tin JA, Andrew Phang Boon Leong JA and Quentin Loh J
26 May 2015
Building and construction contracts Standard form contracts Singapore

Institute of Architects standard form contracts
4 March 2016 Judgment reserved.
Quentin Loh J (delivering the judgment of the court):
Introduction
This is an appeal against the entry of summary judgment of $620,816.32

together with interest and costs based on two interim payment certificates,
Interim Certificates Nos 25 and 26 issued by the architect, Mr Chan Sau Yan,
Sonny (the Architect), under a construction contract entered into on the
Singapore Institute of Architects Articles and Conditions of Building Contract
(Lump Sum Contract) (9th Ed, September 2010) (the SIA Conditions).
The learned Judge (the Judge) below upheld the summary judgment
entered by the Assistant Registrar (the AR) and this decision is reported in
Ser Kim Koi v GTMS Construction Pte Ltd [2016] SGCA 7
GTMS Construction Pte Ltd v Ser Kim Koi (Chan Sau Yan and Chan Sau Yan
Associates, third parties) [2015] 1 SLR 671 (Judgment). Dissatisfied, the
appellant, Mr Ser Kim Koi (the Appellant) brings this appeal. We heard the
appeal on 26 May 2015 and reserved judgment. We now give our decision.
Background facts
The Appellant decided to build three two-storey detached houses (Unit

Nos 12, 12A, 12B), each with a basement carpark and a swimming pool, on the
land he owned at 12 Leedon Park, Singapore (the Buildings). He engaged the
Architect under a memorandum of agreement dated 16 June 2009. 1
Tenders were called for the Buildings and the respondent, GTMS
Construction Pte Ltd (the Respondent) submitted its tender on 15 November
2010. Three rounds of tender evaluation exercises were carried out and the
Architect made a recommendation on 4 May 2011 to accept the Respondents
tender. The Appellant agreed. The Architect issued the Letter of Acceptance on
behalf of the Appellant on 13 May 2011. 2 The contract sum was $13.13m. 3 The
period of construction was 20 months with a contract completion date of 21
February 2013. 4
The Respondent duly commenced work. The Architect issued a total of

26 interim payment certificates. The Appellant made payment for the first 24.
The completion date was subsequently extended by the Architect to 17 April
1
ROA Vol III (Part A) at pp 137 153.
2
ROA Vol III (Part A) at pp 154 159.
3
ROA Vol III (Part B) at p 14.
4
. ROA Vol III (Part B) at p 62.
2
2013. 5 The Appellant takes issue with this extension of time granted by the
Architect.
The Architect issued the Completion Certificate dated 15 May 2013

under cl 24 of the SIA Conditions which certified contract completion on 17
April 2013. 6 It should be noted that some two weeks before the issue of the
Completion Certificate, the Buildings had failed the first inspection by the
Building and Construction Authority (the BCA) for the issue of the
Temporary Occupation Permit (the TOP). 7 This first inspection was carried
out on 30 April 2013. 8
Nonetheless, the Architect issued the Completion Certificate dated 15

May 2013 and it is important to note what it certified: 9
I hereby certify that on 17 April 2013, the Works appear to

have been completed and to comply with the Contract in all
respects (save and except for the minor outstanding works
listed in Part 1 of the Schedule to this Certificate).
I further certify that since the Contractor has undertaken in
writing to complete the minor outstanding works set out in Part
1 of the Schedule to this Certificate by the dates and in
accordance with the arrangements set out in Part 2 of the
Schedule, an agreed sum of (to be advised by the [Quantity
Surveyor]) is to be retained by the Employer and subsequently
released to the Contractor upon completion of these
outstanding works.
The Maintenance Period of the Works shall commence on 18
April 2013 and will end on 17 April 2014.
5
6
7
ROA Vol III (Part C) at pp 201-202.
8
9
ROA Vol III (Part B) at p 131
3
[emphasis in bold and italics; underlined in original]
A second TOP inspection was carried out by the BCA on 18 June 2013 10
and the Buildings again failed the TOP inspection. TOP was eventually obtained
on 16 September 2013. 11
Interim Certificate No 25 (IC 25) was dated 3 September 2013 and

certified interim payment of $390,951.96, ($418,318.60 if GST is included) of
which $328,250 comprised the release of the first moiety of the retention sum
under cl 31(9) of the SIA Conditions. 12 Interim Certificate No 26 (IC 26) was
dated 6 November 2013 and was for the sum of $189,250.21, ($202,497.72 with
GST) (collectively IC 25 and 26 or the Disputed Certificates). 13
By then disputes had arisen between the parties over the completion of
the works and the Appellant alleged extensive defects and non-compliant works.
The Appellant employed a chartered building surveyor, Mr Chin Cheong (Chin
Cheong) from Building Appraisal Pte Ltd (BAPL), to document these
alleged defects. 14
The Respondent, relying on the Disputed Certificates, issued two

invoices (bearing invoice nos LP-025 and LP No 26) dated 3 September 2013
10
ROA Vol III (Part C) at pp 206 - 207
11
ROA Vol III (Part C) at p 210.
12
ACB Vol II at p 91.
13
ACB Vol II at p 92
14
BAPL 1st Report (ROA Vol III (Part D) at pp 30 132); BAPL 2nd Report (ROA Vol
III (Part J) at pp 171 196.
4
and 6 November 2013 for $418,318.60 and $202,497.72 (both inclusive of GST)
respectively, claiming a total of $620,816.32: see [1] above. 15 When payment
was not forthcoming, the Respondent commenced Suit 50 of 2014 (S
50/2014) on 13 January 2014. The Appellant filed its defence and counterclaim
against the Architect and the Respondent for the alleged numerous defects,
delays and conspiracy. The Appellant also added the Architect and his firm,
Chan Sau Yan Associates, as third parties.
Proceedings Below
Proceedings before the AR
The Respondent applied for summary judgment under O 14 of the Rules

of Court (Cap 322, 2014 Rev Ed) (ROC) on the basis of IC 25 and 26 in
Summons No 1051 of 2014. The Appellant challenged the validity of the
Disputed Certificates on the ground that they were tainted by fraud or improper
pressure or interference under cl 31(13) of the SIA Conditions. The following
arguments by the Appellant were recorded by the AR in his minute sheet in the
course of oral submissions:
(a) the Architect should not have issued the Completion Certificate
because the conditions for its issuance as stated in the parties contract
were not satisfied. Furthermore, the Completion Certificate was issued
even before the TOP was.
(b) the Completion Certificate issued by the Architect raises doubts

about his honesty because the schedule to that Completion Certificate
(essentially a defects list) recorded only minor outstanding works
15
ROA Vol III (Part H) at p 111.
5
whereas there were in fact extensive defects to the Buildings as

reported by Chin Cheong.
(c) the Architect recklessly certified payment for landscaping works

despite the wrong type of soil used (clayey sub-soil instead of loamy
soil).
(d) the Architect was reckless in certifying payment in respect of

the timber flooring because the timber strips used in the Buildings were
10 mm thick, and not 15 mm as specified by the Architect.
(e) the Architect granted unwarranted extensions of time for the

Respondent to ensure that there was permanent electrical supply to the
Buildings.
Notwithstanding the arguments made, the AR was not satisfied that there
were triable issues as to whether the disputed certificates were tainted by fraud,
improper pressure or interference. He was of the view that the court should not
be concerned with shoddy, poor or unsatisfactory workmanship and that the
evidence borne out at the very highest shows that the Architect was merely
negligent. It therefore cannot be said that he was acting fraudulently and
accordingly granted summary judgment.
Proceedings before the Judge
The Appellant appealed against the ARs decision but the appeal was
dismissed with costs. The Judge first acknowledged that the Architects
evidence, which we will turn to later, played a significant role in [his]
deliberation in finding that the Disputed Certificates were not tainted by fraud,
improper pressure or interference (Judgment at [43]).
6
The Judges reasons for rejecting each of the grounds to set aside the
Disputed Certificates are as follows:
(a) First, the evidence that the Respondent sought to rely on (set out
in [12] above) were circumstantial and insufficient to prove fraud
(Judgment at [56]). Furthermore, there was a qualitative difference
between fraud and negligence. The Judge noted at [57]:
If (and I am not suggesting that he was) the Architect

was negligent in issuing the [Disputed] Certificates or
issued the [Completion Certificate] prematurely, that
was one thing. It is another to say that he was dishonest
and in cahoots with the [Respondent]. In my view, the
suspicion was specious and devoid of any cogent direct
evidence. The reliance on circumstantial evidence and
inferences was insufficient to meet the high standard
required to prove fraud (see Wu Yang [Construction
Group Ltd v Zhejiang Jinyi Group Co Ltd [2006] 4 SLR(R)
451] at [94][95]). In the circumstances, I dismissed the
first ground of the appeal.
(b) Secondly, there was insufficient evidence to establish that the

Respondent (or his proxy) had exercised improper influence on the
Architect (Judgment at [59]). The Judge then went on to hold at [59]:
I accepted the [Respondents] evidence that the

Architects decision to grant the [Completion Certificate]
had been based on his professional judgement that the
[p]roject could be enjoyed and occupied it was
consistent with the Architects evidence which was
convincing and detailed There was nothing to suggest
otherwise. Therefore I also dismissed the appeal on
this ground.
(c) Thirdly, with regard to interference, the Judge said at [61]:
There was no evidence to indicate that the [Respondent]

had influenced the Architect. The [Appellant] insinuated
that they [(the Respondent and the Architect)] had
worked together on [a previous project, namely] the
Mont Timah project and the Architect had approved the
[c]ertificates despite the many alleged defects in the
[p]roject. Thus they were in cahoots. However, I find that
7
it was highly improbable given the manner in which the

tender had been conducted and the involvement of other
third parties in the certification process. It would have
taken a lot of effort for the Architects independence to
have been interfered with. Therefore, I was of the view
that there was insufficient evidence to show that the
Architects independence had been interfered with.
The Judge concluded by emphasising the importance of according the

Disputed Certificates temporary finality in ensuring cash flow in the building
and construction industry (Judgment at [62][63]). In dismissing the
Appellants appeal, the Judge also ordered that the Appellant pay costs of
$10,000 plus reasonable disbursements to the Respondent (Judgment at [63]).
Dissatisfied, the Appellant filed his Notice of Appeal to this Court. 16

Thereafter, the Appellant filed a summons for stay of execution of the Judgment
and for costs of and incidental to this application to be reserved to this Court by
way of Summons No 5454 of 2014 (SUM 5454/2014). 17 The basis of this
application was that there was a real risk and serious concern that the appeal
would be rendered nugatory if a stay of the Judgment was not granted because
of the weak financial position of the Respondent such that the Appellant will
not be able to recover against the Respondent in the event his appeal before this
Court was successful. 18 In this regard, a concession was made by Mr Dennis
Tan Chong Keat (Mr Dennis Tan), a director of the Respondent in separate
proceedings involving the same parties (Originating Summons No 317 of 2014
(OS 317/2014), which was an application for an injunction by the Respondent
16
Notice of Appeal filed on 2 October 2014.
17
Summons for Stay of Execution of Judgment/Order (SUM 5454/2014) filed on 31 Oct
2014.
18
Defendants written submissions for SUM 5454/2012 at [22] (see also AEIC of Ser
Kim Koi dated 31 October 2014 at [13]).
8
to restrain a call of a performance bond furnished by the Respondent in respect

of the construction of the Buildings) to the effect that the Respondent was in a
weak financial position, 19 and audited statements of the Respondents account 20
were tendered to the Judge.
SUM 5454/2014 was heard by the Judge 21

and he granted the
Appellants application for stay. He also ordered the Appellant to pay into court
a sum of $640,816.32, which represents the sum total of the monies claimed in
respect of IC 25 and 26 and the fixed costs of $10,000 for each of the summary
judgment application and the registrars appeal. 22 The Judge also ordered costs
to be in the cause. 23
Arguments on appeal
Appellants arguments
On appeal, the Appellant no longer relied on improper pressure and

interference to resist payment of the sums due under the Disputed Certificates.
Instead, he relied solely on fraud to resist summary judgment.
Before us, Mr Mohan Reviendran Pillay (Mr Pillay), counsel for the
Appellant, submitted that leave to defend should be given because there was a
19
Excerpt in AEIC of Ser Kim Koi dated 31 October 2014 at [17] (see Dennis Tans
AEIC dated 7 April 2014 in OS 317/2014 (SUM 1731/2014) at [33]).
20
Dennis Tans AEIC dated 6 Nov 2014 at p 214 (OS 317/2014 (SUM 1731/2014).
21
Minute Sheet dated 12 Nov 2014.
22
Minute Sheet dated 19 Nov 2014.
23
Minute Sheet dated 19 Nov 2014; Order of Court (ORC 7665/2014) 3rd order.
9
bona fide defence of fraud, as evinced by a clear pattern of reckless conduct on

the Architects part which the Judge failed to have proper regard to:
(a) First, the Architect should not have issued the Completion
Certificate. This is because:
(i) The Buildings were not ready for occupation and use
when the Completion Certificate was issued as the TOP was only
issued months after the Completion Certificate was issued.
Moreover, entering into occupation of and using a building
which has not obtained TOP was an offence under s 12 of the
Building Control Act (Cap 29, 1999 Rev Ed) (the Act).
(ii) The conditions for its issuance under cl 24(4) of the SIA
Conditions read with Item 72 of the Preliminaries (Item 72)
were not satisfied. The Architect therefore cannot say that the
Buildings appear to be completed and to comply with the
[c]ontract in all respects, save for minor outstanding works, as
he did in the Completion Certificate: see [6] and [7] above. The
relevant portions of cl 24(4) and Item 72 read:
24.(4) Subject to the provisions of Sub-Clause

(3) hereof as to the effect of Termination of Delay
Certificates, the liability of the Contractor to pay
further liquidated damages under Sub-Clause
(3) hereof shall cease, and the Contract shall be
deemed completed for this purpose, upon the
issue by the Architect of his certificate under this
Sub-Clause that the Works have been
completed. Such certificate is referred to in this
Contract as a Completion Certificate, and shall
be issued by the Architect when the Works
appear to be complete and to comply with the
Contract in all respects.
72 COMPLETION CERTIFICATE
10
Pursuant to the provisions of the Agreement and

Conditions of Contract, a Completion Certificate
will not be issued until:
a) All parts of the Works are in the Architects
opinion ready for occupation and for use.
b) All services are tested, commissioned and
operating satisfactorily as specified in the
Contract or the relevant Sub-Contract including
handing over all test certificates, operating
instructions and warranties.
c) All works included in the Contract are
performed including such rectification as may be
required to bring the work to the completion and
standards acceptable to the Architect.

[emphasis added]
(b) Secondly, the Completion Certificate issued by the Architect

raises issues about his honesty because the schedule to that Completion
Certificate (a defects list) recorded only minor outstanding works. The
defects list to the Completion Certificate is woefully deficient because
there were in fact extensive defects to the Buildings, as reported by
BAPL. These defects, according to BAPL, are: 24
(i) Leaking swimming pool, koi ponds and water features;
(ii) Cracked and leaking external walls; and
(iii) Poor installation of marble and timber flooring, which is

described by Chin Cheong in his 1st report (the BAPL 1st
Report) 25 as follows:
In our view, the various timber decking with

lower space needs to be re-designed to address
24
ROA Vol III (Part D) at p 131.
25
ROA Vol III (Part D) at p 131.
11
the problem of continuous water streak marks

flowing to the space below. Currently, rain
brings dirt and other debris through the timber
floor strips to stain the walls and vertical edges
of the floor slab below. In addition, moisture
from the rain is also likely to have caused
efflorescence and rust stains from corroded
fixtures.
The marble finishes were observed to have many
geological flaws and impurities. Though these
impurities may be natural, they are defects
nonetheless and should not have been selected
for installation. Attempts to patch repair some of
these marble tiles with coloured marble filler has
left them appearing even worse with all kinds of
unusual shapes and artificial looking marks on
the tiles. Replacement of these defective marble
tiles should not be done only on the affected tiles
as it would likely cause a chessboard effect of
light and dark tonality between the new and
existing tiles. Unless the replacement tile can
match existing tiles perfectly, the entire level or
room (depending on the location) should have
their similar marble finishes replaced.
The BAPL 1st Report contained photographs evidencing these defects.
(c) Thirdly, the Architect acted recklessly in certifying payment for

landscaping works. This is because loamy soil was to be provided for
the backfilling of the landscaping works under the contract, but in fact,
the wrong type of soil (clayey sub-soil) was supplied and applied. Mr
Pillay bases this assertion on a report from Mr Daniel Tay, a Senior
Design Consultant with Landscape Konsortium Pte Ltd and R&D
Landscape Consultant, 26 whom he says is an independent expert
(Daniel Tays Report), the material portions of which read: 27
26
ROA Vol III (Part J) at pp 203217.
27
ROA Vol III (Part J) at pp 203205.
12
We were instructed by [the Appellant] to determine if

loamy soil had been used in the turfing works at Units
12, 12A & 12B at Leedon Park (the Site)

SOIL

Based on photos and soil samples obtained from the
Site, we can conclusively say that the soil delivered and
filled is that of clayey sub-soil and not loamy soil as
required
In this regard, loamy soil which is of finer consistency
and darker tone is generally used and preferred over the
clayey sub-soil in turfing works as it has a higher
Humus content (higher fertility) and aeration quality
which is critical to the growth and maintenance of the
grass layer.
On the other hand, clayey sub-soil, which is generally of
a reddish hue, is not used in turfing works as top soil
because the hard and compacted nature of the clayey
sub-soil impedes the ability of the grass to flourish as
the roots are prevented from growing deeply into the
hard soil.
In addition, clayey sub-soil has a tendency to form a
consistency similar to that of cemented pavements in
hot weather and as such, is not conducive for
landscaping works
Instead, clayey sub-soil, has excellent load-bearing
qualities compared to loamy soil.
LANDSCAPING WORKS IN MARCH 2014
During my site visit on 18 March 2014, I observed that
the contractor was applying loamy soil as a top
dressing on the grass at the Site. This is usually done
as a method of rectification of sub-standard turfing
works.
However, it was observed that as of the time of my visit
on 18 March 2014, not every section of the turfing works
at the Site had been top dressed with loamy soil.

13
It would be convenient for us to note at this juncture that the landscaping

works were the subject of an earlier Architects interim payment
certificate, namely, No 22 (IC 22) which had been paid by the
Appellant. However this remains a disputed item as the Appellant
strongly disagrees with the Architects certification that the landscaping
works were completed in accordance with the Contract.
(d) Fourthly, the Architect was reckless in certifying payment in

the Disputed Certificates for the timber flooring in the Buildings. This
is because the timber strips used in the Buildings were 10 mm thick, and
not 15 mm as specified by the Architect in Architects Instruction No 8
dated 10 July 2012, the material part of which reads: 28
1. CHANGE OF FINISHES
We hereby confirm change of internal timber flooring
from 150mm wide x 2mm thk White Oak wood strips
to 90mm wide x 15mm thk Indian Rosewood strips with
plywood sub base.
And staircase finishes from 25mm thk solid White Oak
tread & 15mm thk Teak riser to 90mm wide x 15mm
thk Indian Rosewood with plywood sub-base, where
applicable.

[another persons signature,
signing on behalf of the Architect]
CHAN SAU YAN, SONNY
ARCHITECT
[underlined in original]
In this regard, the Appellant tendered photographs of the timber strips

as measured by vernier callipers.
28
ROA Vol III (Part K) at p 151.
14
The Appellant no longer relies on his point that the Architect granted
unwarranted extensions of time for the Respondent to ensure that there was
permanent electrical supply to the Buildings: see [12(e)] above. We therefore
need say no more on this.
In respect of the points raised in [20], the Appellant submits that

summary judgment should not be granted lightly unless the allegation of fraud
is frivolous and practically moonshine (see Brinks Ltd and another v Abu-
Saleh and others [1995] 1 WLR 1478 at 1482, quoting Lord Lindley in Codd v
Delap (1905) 92 L T 510 at 511). Furthermore, while it is true that cash flow is
important in the building and construction industry, that does not mean that the
concept of temporary finality can be misused as a shield for excesses or abuses
of power (per Leow JC in H P Construction & Engineering Pte Ltd v Chin
Ivan [2014] 3 SLR 1318 (Chin Ivan (HC)) at [31]). Indeed, there are
exceptions to temporary finality, namely, fraud, improper pressure or
interference, and they are intended to act as a safeguard against such possible
misuses.
Respondents arguments
Mr Thulasidas s/o Rengasamy Suppramaniam (Mr Thulasidas),

counsel for the Respondent, argues that the Judge was right in upholding the
decision of the AR in granting summary judgment for the sums due under the
Disputed Certificates. Mr Thulasidas submits:
(a) First, the Appellant cannot argue that the Disputed Certificates
were tainted by fraud simply by taking issue with the issuance of the
Completion Certificate. This is because the Disputed Certificates and
the Completion Certificate are completely different certificates issued
apart from one another. The Disputed Certificates were issued some
15
months after the Completion Certificate was issued (the Disputed

Certificates were issued on 3 September and 6 November 2013, whereas
the Completion Certificate was issued earlier on 15 May 2013). As such,
the Disputed Certificates are not directly attacked.
(b) Secondly, the Appellant merely raises a myriad of circumstantial

evidence that is not sufficiently cogent to prove fraud. Indeed, the
defects raised by the BCA with regard to the two failed TOP inspections
were minor.
(c) Thirdly, the Architect had a genuine honest subjective belief

that the works were substantially complete, and that the defects on the
Buildings were trivial and minor when he issued the Completion
Certificate. He therefore cannot be faulted for genuine mistakes he
made.
Our decision
The central issue in this appeal against the entry of summary judgment
is whether the Appellant has made out any of the grounds found in cl 31(13) of
the SIA Conditions so as to deprive IC 25 and 26 of temporary finality.
Applicable principles
Clauses 31(13) and 37(3)(h) of the SIA Conditions provide as follows:
31.(13) No certificate of the Architect under this Contract shall

be final and binding in any dispute between the Employer and
the Contractor, whether before an arbitrator or in the Courts,
save only that, in the absence of fraud or improper pressure
or interference by either party, full effect by way of Summary
Judgment or Interim Award or otherwise shall, in the absence of
express provision, be given to all decisions and certificates of the
Architect (other than a Cost of Termination Certificate or a
Termination Delay Certificate under Clause 32.(8) of these
16
Conditions), whether for payment or otherwise, until final

judgment or award, as the case may be, and until such final
judgment or award such decision or certificates shall be
binding on the Employer and the Contractor in relation to any
matter which, under the terms of the Contract, the Architect has
a fact taken into account or allowed or disallowed, or any
disputed matter upon which under the terms of the Contract he
has as a fact ruled, in his certificates or otherwise. The
Architect shall in all matters certify strictly in accordance
with the terms of the Contract. In any case of doubt the
Architect shall, at the request of either party, state in writing
within 28 days whether he has a fact taken account of or
allowed or disallowed or ruled upon any matter in his
certificates, if so identifying any certificate and indicating the
amount (if any) taken into account or allowed or disallowed, or
the nature of any ruling made by him, as the case may be.
37.(3)(h) pursuant to Clause 31.(13) of these Conditions,
temporary effect shall be given to all certificates (other than a
Cost of Termination or Termination Delay Certificate under
Clause 32.(8) of these Conditions), whether for payment or
otherwise, granted (or refused) by the Architect
[emphasis added in italics and bold italics]
The ambit and extent of the temporary finality accorded to interim

payment certificates under these clauses in the SIA Conditions has been the
subject of a comprehensive and authoritative judgment by this Court in Chin
Ivan v H P Construction & Engineering Pte Ltd [2015] 3 SLR 124 (Chin Ivan)
and to a lesser extent in Lojan Properties Pte Ltd v Tropicon Contractors Pte
Ltd [1991] 1 SLR(R) 622 (Lojan Properties).
In construing cl 31(13), this Court in Chin Ivan stated at [18][19]:
18 However, the granting of such temporary finality to an

[a]rchitects certificate is subject to certain conditions that are
stipulated within cl 31(13). First, the certificate must be issued
in the absence of fraud or improper pressure or interference by
either party. Secondly, it must be issued strictly in accordance
with the terms of the Contract [emphasis added]. Thirdly, as
can be seen from the need for the Architect to clarify, upon
either partys request [i]n any case of doubt, what was or was
not taken into account in his certificate, the Architect must
17
have considered the matters which are said to have been dealt
with in his certificate.
19 The need for an [a]rchitects certificate to cohere with the
conditions laid down in cl 31(13) of the SIA Conditions was also
recognised by this court in Lojan Properties Pte Ltd v Tropicon
Contractors Pte Ltd
This Court also pointed out at [20] that a properly-issued [a]rchitects

certificate functions as a condition precedent to the contractors right to receive
payment and the employers right to deduct claims (if any).
These three paragraphs lie at the heart of the principle of temporary

finality under the SIA Conditions. The role played by the architect in certifying
payment is crucial because it is the integrity of his certification process and
proper certification that confers temporary finality on his certificates and
therefore enforceability by summary judgment. As this Court pointed out in
Chin Ivan, the enforcement stage differs from the final and determinative
arbitration or court proceedings brought to obtain a final and binding
determination of the parties disputes in the project where architects
certificates may be opened up by the arbitral tribunal or the court, (referred to
as substantive proceedings in Chin Ivan at [21] and [22] and citing Chow Kok
Fong, Law and Practice of Construction Contracts (Sweet & Maxwell Asia, 4th
Ed, 2012) at vol 1, paras 8.12-8.13). At the enforcement stage of interim
payment certificates, the court is not concerned with the merits of the architects
certificates (see Chin Ivan at [21]). Hence a mere allegation of irregularity
cannot suffice to undermine the validity of such a certificate and any
allegation must be backed up by evidence, at the very least, so as to establish a
prima facie case of irregularity (Chin Ivan at [24]).
It would be instructive to examine Lojan Properties and Chin Ivan to

illustrate how these principles were applied.
18
In Lojan Properties, the architect had issued 28 interim payment

certificates; the first 16 interim payment certificates were paid but the remaining
12, issued between September 1984 and January 1987, remained outstanding.
In March 1985, the architect had given final extensions of time to 31 December
1984 for completion of the main building works and to 18 February 1985 for
external works. Practical completion was certified on 1 July 1985, the owner
entered into possession on 2 July 1985 and the defects liability period ended on
1 July 1986. On 9 September 1987, when settlement discussions failed, the
contractor commenced proceedings and applied for summary judgment for
$1,785,294.32 (excluding contractual interest) based on the interim certificates.
The owner filed an application for a stay pending arbitration.
On 24 November 1987, whilst these applications were pending, the

owner wrote to the architect querying whether all the certified work had been
carried out and whether the condition precedent under cl 23(2), ie, written
notification of entitlements to extensions of time, had been complied with
before he issued his extensions of time. On 2 December 1987, the architect
wrote to the contractor stating that save for one item, his previous extensions of
time were null and void because the contractor had failed to comply with the
condition precedent under cl 23(2) and separately certified that works ought to
have been completed by 31 May 1984 and the contractor was in delay. On 15
December 1987, the architect issued 17 replacement interim certificates, which
included the 12 unpaid interim certificates, and issued one further interim
payment certificate. This resulted in cross-claims being available to the owner
which exceeded the contractors claim.
Both the trial judge and this court were unanimous that on these facts,
(which included the architects revocation of his previous extensions of time,
his re-valuation of the interim payment certificates, his issuing of a further
19
interim payment certificate which was not issued in compliance with cl 31(1)
and (2) as it was issued long after completion of the works, recording in his
certificate entitlement to liquidated damages more than two and a half years
after practical completion and only after the owner had written to him), the court
was entitled to draw the conclusion that there was undue interference and/or
improper pressure by the owner thereby depriving these certificates of any
temporary finality enforceable by summary process.
In Chin Ivan, the contractor commenced an action and applied for

summary judgment on two interim payment certificates (the disputed
certificates). The employer resisted the claim alleging that the disputed
certificates were procured by fraud on the part of the contractor. The employer
showed, and it was not disputed by the contractor, that the architect issued
Instructions under the SIA Conditions approving various items (the disputed
items) on the contractors list of variation works on the basis that they were:
[a]s informed by [the contractor], requested by [the employer]/[the
employers project manager] (Chin Ivan at [5]). These architects instructions
were thus not issued by the architect based on his professional judgment, but
were purely on the basis of the contractors representation that the variation
works in question had been requested by the employer.
The disputed certificates had certified various payments, which included

the disputed items totalling $321,383.94 as well as other items. The judge below
made three findings of fact, which were not challenged on appeal (at [24]). First,
the architect stated he included the disputed items because the contractor
informed him that the employer had consented to the inclusion of these items;
secondly, the contractor denied making any such representation to the architect;
and thirdly, it was not disputed that the employer had never consented to the
inclusion of the disputed items for valuation. This court noted that on these three
20
findings of fact, the trial judge below was correct in finding that a prima facie
case of fraud was made out. But more than that, this court went on to state that
in light of these facts, it could not have been disputed that the [d]isputed
[c]ertificates had not been issued in accordance with cl 31(13) of the SIA
Conditions [emphasis in original] and went on to note at [25] that:
If the [a]rchitect was telling the truth, then the inevitable

conclusion would seem to be that the [contractor], in
representing that the [employer] consented to the Disputed
Items inclusion for valuation purposes, had defrauded him. On
the other hand, if the [contractor] was telling the truth, (ie, that
he never made such representations to the [a]rchitect), then the
[a]rchitect must have issued the Disputed Certificates
improperly since, as noted above, implicit in his statement in
the [architects instructions] and his letter of 21 March 2014
was the assertion that he did not include the Disputed Items as
a matter of his professional assessment; and on this basis, his
subsequent claim as to the representations allegedly made to
him by the [contractor] would seem to suggest an ill-conceived
attempt to cover up his error. In either scenario, the [a]rchitect
would not have applied his mind to the Disputed Items when
he included them in the Disputed Certificates. In these
circumstances it could not possibly be said that these
certificates had been issued in accordance with the parties
contract. It must follow from this that the entire basis of the
[contractors] claim fails since there was no certificate properly
issued by the [a]rchitect which the [contractor] could rely on to
sustain its claim.
This court ruled that even if the irregularities only affected part of an
interim payment certificate, there could be no severance and under the SIA
Conditions that deprived the whole certificate of temporary finality. These
certificates ceased to attract any temporary finality because they were in some
material part not issued strictly in accordance with the contract and/or were
tainted by fraud or improper pressure or interference (Chin Ivan at [26] and
[27]).
These cases illustrate the nature and level of scrutiny of the integrity of
the certification process leading up to the interim payment certificate as well as
21
the importance of proper certification strictly in accordance with the terms of

the contract. They also illustrate the requisite levels of proof to determine if the
temporary finality is unravelled due to fraud or irregularity. These cases also
emphasize that at the enforcement stage, the courts are not otherwise concerned
with the merits of the architects certificates, viz, whether the certificates are
ultimately correct as to the matters they purport to deal with. The question at
this enforcement stage is whether the architects certificates were validly issued
in accordance with the terms of the contract (Chin Ivan at [21]).
Before we turn to examine the facts of this case, it would be appropriate

to address Mr Pillays submissions on the Architects certificates being affected
by fraud under the first condition of cl 31(13). Mr Pillay does not rely on
improper pressure or interference in the appeal but only on the reckless conduct
of the architect in his certification amounting to fraud.
We agree with Mr Pillays submission that recklessness in certification,

ie, careless whether it is true or false, can amount to fraud under cl 31(13) of the
SIA Conditions. In construing the word fraud in cl 31(13), we accept the
classic exposition of fraud in Lord Herschells speech in Derry v Peek (1889)
14 App Cas 337 (Derry v Peek) at 374 (endorsed by the authors of Hudsons
Building and Engineering Contracts (Nicholas Dennys QC, Mark Raeside QC
and Robert Clay gen eds) (Sweet & Maxwell, 12th Ed, 2012) at para 4-046):
fraud is proved when it is shewn that a false representation

has been made (1) knowingly, or (2) without belief in its truth,
or (3) recklessly, careless whether it be true or false.
[emphasis added]
The exposition in Derry v Peek is over 125 years old and the Singapore
courts have endorsed it on many occasions (see eg, Panatron Pte Ltd and
another v Lee Cheow Lee and another [2001] 2 SLR(R) 435 at [13]; Wishing
22
Star Ltd v Jurong Town Corp [2008] 2 SLR(R) 909 at [16]; Wee Chiaw Sek
Anna v Ng Li-Ann Genevieve (sole executrix of the estate of Ng Hock Seng,
deceased) and another [2013] 3 SLR 801 at [35]; Raiffeisen Zentralbank
Osterreich AG v Archer Daniels Midland Co and others [2007] 1 SLR(R) 196
at [38]; and Chu Said Thong and another v Vision Law LLC [2014] 4 SLR 375
at [114]).
The fraud exception in cl 31(13), which unravels the temporary finality

of certificates issued by the architect, read in the light of Derry v Peek, means
temporary finality can be denied to certificates issued by the architect which
are, to the knowledge of the architect false, or issued by the architect without
any belief in its truth, or recklessly, without caring whether the certificate is true
or false. Chin Ivan is authority for the proposition that fraud within the
meaning of cl 31(13) can also be made out on a prima facie basis when an
architect, not acting on the initiative of either party, issues a certificate to cover
up his own mistakes.
Application of principles to the facts
We now turn to the facts to determine if IC 25 and 26 have lost their

temporary finality under cl 31(13).
Evaluation of the Architects conduct and certification
We start with an examination of the Architects conduct in his

certification and the certificates he issued at the end stage of the contract. The
Architect deposed that it was in order for him to issue the Completion
23
Certificate. 29 He categorically denies any collusion or conspiracy between the

Respondent and his firm or himself or any improper pressure or interference by
the Respondent in relation to or connected with the issue of the Completion
Certificate or extensions of time or any other matters in relation to the
Buildings. 30 The Respondent says likewise.
Clause 31(13) requires that the Architect shall in all matters certify
strictly in accordance with the terms of the Contract [emphasis added]. It is
therefore apposite to see what this contract called for in relation to the
Completion Certificate and its issuance. Clause 24(4), set out above at
[20(a)(ii)], provides that the Architect shall issue the Completion Certificate
when the Works appear to be complete and to comply with the Contract in all
respects whereupon the Contract shall be deemed to be completed. More
importantly, Item 72 of the Preliminaries, also set out at [20(a)(ii)] above, sets
out when works can be deemed completed in order for the Completion
Certificate to be issued. Item 72 is worth repeating:
Pursuant to the provisions of the Agreement and Conditions of

Contract, a Completion Certificate will not be issued until:
a) All parts of the Works are in the Architects opinion ready

for occupation and for use.
b) All services are tested, commissioned and operating

satisfactorily as specified in the Contract or the relevant Sub-
Contract including handing over all test certificates, operating
instructions and warranties.
c) All works included in the Contract are performed including

such rectification as may be required to bring the work to the
completion and standards acceptable to the Architect.
29
ROA Vol III (Part I) at p 17-22.
30
ROA Vol III (Part I) at p 29.
24
The meaning of the phrase in Item 72 para (a): All parts of the Works
are ready for occupation and for use ... [emphasis added in bold italics] is
clear. It means, in no uncertain terms, that the employer can go into occupation
of and use the premises. It is difficult to understand how the Architect could
have issued the Completion Certificate on 15 May 2013, certifying contract
completion on 17 April 2013, 31 when just two weeks prior to his issue of that
Completion Certificate, the Buildings had failed the first TOP inspection on 30
April 2013. 32
Mr Pillay rightly points out that anyone in the building and construction
industry knows that entering into occupation of and using a building which has
not obtained TOP or its Certificate of Statutory Completion is an offence under
s 12 of the Act, the relevant provisions of which read:
Occupation of buildings
12.(1) Except as otherwise provided in this Act, no person shall
occupy, or permit or cause to be occupied, any building where
any building works have been carried out unless the
Commissioner of Building Control has issued a certificate of
statutory completion in respect of that building.

(2) Nothing in subsection (1) shall prohibit

(b) the occupation by any person of any building in
respect of which a temporary occupation permit has
been granted.

(6) Any person who contravenes subsection (1) shall be guilty
of an offence and shall be liable on conviction
31
32
25
(a) to a fine not exceeding $20,000 or to imprisonment

for a term not exceeding 6 months or to both; and
(b) in respect of a continuing contravention or failure to
comply, to an additional fine not exceeding $1,000 for
each day or part thereof the contravention or failure to
comply continues,
and if the contravention or failure to comply continues after the

conviction, the person shall be guilty of a further offence and
shall be liable on conviction of this further offence to a further
fine not exceeding $2,000 for every day or part thereof during
which the contravention or failure to comply continues after
conviction.
We therefore cannot comprehend how the Architect could overlook such

a basic and fundamental rule. On the contrary, it is the Architects duty to warn
his clients not to enter into occupation or use a building unless, at the least, TOP
has been obtained. In the present case, the Buildings additionally failed to pass
a second BCA TOP inspection on 18 June 2013 33 and did not finally obtain TOP
until some 5 months after the issue of the Completion Certificate. 34
Item 72 para (b) is also unambiguous in its requirements, viz, that all
services have been tested, commissioned and operating satisfactorily. Yet in
the Schedule of minor outstanding works attached to the Completion
Certificate, the Architect had noted that some basic works and services had yet
to be tested, commissioned or checked if they were operating satisfactorily: 35
Mechanical & Electrical

1. To conduct floor by floor testing and commissioning for the
A/C equipment.
2. To flush the water pipes.
3. To conduct commission for the hot water system.
33
34
35
26
Further, as noted below, on the Respondents own admission, the operating

instructions or operating manuals were not handed over until at least 31 July
2013: see [90], [91(a)] and [91(b)] below.
The Architect was brought in as a Third Party by the Appellant and is

aware of the allegations made against him and his certification by the Appellant.
It is therefore important to examine the Architects explanation. This can be
mainly found at paras 37 to 39 of his affidavit. The Architect deposes at para 37
as follows: 36
Paragraphs 35 to 47 of the 1st Ser Affidavit are misconceived

and denied. The issuance of the Completion Certificate
pursuant to Clause 24(4) of the SIA Conditions is not dependent
on whether the Temporary Occupation Permit has been issued.
Completion is required before the Temporary Occupation can
be issued.
This is an incorrect statement of the terms of the contract which the

parties had entered into and which the Architect was administering. This
paragraph completely ignores Item 72 which is unambiguous and governs when
a completion certificate can be issued. There is a lack of any explanation as to
why he thought Item 72 was inapplicable or that its requirements had been
satisfied. Yet, as we shall see, in other paragraphs of his affidavit, he accepts
that Item 72 has to be complied with before the Completion Certificate can be
issued. In this paragraph, the Architect disingenuously states that Completion
is required before the TOP can be issued. 37 This is either a reference to the
practice under older versions of the SIA Conditions (where the contractor was
obliged to bring the building to a stage where the architect could apply for TOP
36
37
27
inspection as it was the thinking then that applying for and obtaining TOP was
the architects duty), which are no longer in use, or a mere truism or statement
of fact that all the works must have been properly carried out before it can pass
the TOP inspection. But this was not the true issue, which the Architect side-
steps, and not what this contract stipulated. Moreover, this explanation glosses
over his errors that were pointed out by the BCA as one of the causes for the
Buildings failing the first TOP inspection.
The Architect next goes on to depose at para 38 of his affidavit: 38
Further, with respect to the issue of non-compliance with

statutory requirements pointed out at the TOP inspection, the
Third Parties had ensured that the statutory requirements had
been complied with, to the best of their knowledge.
This paragraph is quite remarkable. The Architect claims he had

ensured the statutory requirements had been complied with but there is no
explanation of what steps he had taken to ensure the same. There is no
mention of when he carried out his pre-TOP inspections to check if the statutory
requirements had been complied with and that he found the works were in order
or in accordance with the contract. We pick one example. When the Architect
issued the Completion Certificate, he had attached a list of defects to be
rectified, which by industry practice are usually minor. Under the heading
MINOR OUTSTANDING WORKS, the Architect had surprisingly listed,
amongst others, some significant items which would have obviously caused the
buildings to fail their TOP inspection: 39
1. To rectify unlevelled steps at all staircases.
38
39
28
2. To rectify un-equal risers at all staircases as per

Architectural drawings.
3, To rectify all parapet walls to be at minimum 1m high as
per Architectural drawings.
Either the Architect had failed to notice these important non-compliant

defects, or, he only realised these defects when the Buildings failed the first
TOP inspection and the BCA inspectors had pointed out and recorded these non-
compliant items as the basis for refusing to grant the TOP.
If it was the latter, then we cannot understand how the Architect could
label this as minor outstanding works. It is anything but minor. Staircases are
potentially dangerous structures because tripping and falling on staircases can
have very dire consequences including serious physical injury or even death.
The BCAs Approved Document: Acceptable Solutions (Version 4.0, July
2011) (BCA Approved Document), issued by the Commissioner pursuant to
Regulation 27 of the Building Control Regulations 2003 has detailed provisions
governing this aspect, especially at clauses E.3.4.1 and E.3.4.2 as to minimum
sizes of the tread, ie, the horizontal part of a step on which a persons foot will
rest (275 mm) and the maximum height of risers, ie, the vertical height of a
step (175 mm) in staircases.
More importantly, at clause E.3.4.4 of the BCA Approved Document,

risers have to be equal save for a 5mm construction tolerance between
consecutive steps. Persons involved in the building and construction industry
are aware of a known human behavioural trait. Most people only look at a
staircase when they negotiate the first few steps. Thereafter their gaze goes
elsewhere because they assume the steps are equal in rise or drop. Any non-
uniform change in the rise or drop could potentially result in that person tripping
or losing his balance and falling.
29
When the Architect issued the Completion Certificate, he already knew

from the TOP inspection that there was an important defect in unlevelled steps
and unequal risers in all staircases. As noted above, the Architect acknowledged
the existence of these defects in his attachment to the Completion Certificate as
requiring rectification: see [51] above. These staircases were thus clearly not
safe for use by occupants of the Buildings when the Architect issued his
Completion Certificate. We cannot but help point out the rather slick drafting in
the Architects affidavit five paragraphs later. In para 43, the following is
slipped in:
Other than the minor outstanding works, defects that were

apparent were also annexed to the Schedule To Completion
Certificate
It need hardly be said that if these defects (not minor in nature) were
apparent, then he does not say why he nonetheless issued his Completion
Certificate on 15 May 2013, certifying completion on 17 April 2013.
Para 39 of the Architects affidavit then inexplicably goes on to

depose: 40
On 17 April 2013, the [Architect] were of the opinion that Clause

24(4) of the SIA Condition and Item 72 had been fulfilled. The
works appeared to be complete and in compliance with the
Contract in all respects and all parts of the [Buildings] were in
the Architects opinion ready for occupation. The [Architect]
then proceeded to issue the Completion Certificate.
[emphasis added]
In this paragraph, the Architect acknowledges that Item 72 has to be

fulfilled and states rather enigmatically, and baldly, that it has. As noted above,
40
30
the requirements of paras (a) and (b) of Item 72 had clearly not been fulfilled.
There is no explanation or reasons why he was of the opinion that they had been
fulfilled. The Architect also states here that all parts of the works were, in his
opinion, ready for occupation. It will readily be seen that the Architect
conveniently ignores Item 72 requiring the works to be ready for occupation
and for use. [emphasis added]. Further, the Architect really has no answer to
the fact that on his own attachment to the Completion Certificate, it clearly
shows that not all services had been tested, commissioned and operating
satisfactorily: see [47] above. That was certainly not the case on 17 April 2013.
It can be seen that para 39 of the Architects affidavit is even more

inexplicable when we compare that to para 28, where he was dealing with the
extension of time. At para 28, he accepted that: 41
Additionally or alternatively, Clause 23(1)(q) [extension of time

provision] also applies because it is clear from the Contract
Conditions at Preliminaries 71 and 72 Section 1 pg 32 is
clear that testing and commissioning for M&E Services
installation is required before the works can be certified
completed.
This again is an incorrect statement. Item 72 is not limited to M&E Services

installation. It stipulates that all services must be tested, commissioned and
operating satisfactorily. Finally, at para 42, in dealing with the late supply of
gas, he deposes that the supply of gas is not a requirement for TOP inspection
and then states, almost by-the-way, that the premises were ready for occupation
and use pursuant to Item No. 72(b) of the Preliminaries [emphasis added].
These contradictory and shifting statements speak for themselves. It clearly
41
31
shows that the Architect cannot defend or explain his issue of the Completion
Certificate.
It will be apposite to note what the BCA stated on the works failing the
1st TOP inspection. On 30 April 2013, some 15 days before the Architect issued
his Completion Certificate, the Commissioner of Building Control, wrote to
both the Respondent and the Architect stating that the Buildings failed the 1st
TOP inspection (30 April 2013 letter). The material portion of that letter
provides: 42
I refer to the site inspection conducted on 30.04.2013.

2 The following are the non-compliances found during the
inspection.
S/No: Non-compliance in accordance with

the Approved Document
a) Failure to comply with requirements at

Clause E.3.4.1, E.3.4.2 and E.3.4.4 to
i. Steps at all staircases.
ii. Steps at landscapes.
iii. Steps at swimming pools.
b) Failure to comply with requirements at

Clause H.2.1 at
i. Landscape areas.
c) Failure to comply with requirements at

Clause H.3.2.1 to
i. Parapet walls at roof.
ii. Parapet walls at outdoor
deck/pavilion.
42
ROA Vol III (Part C) at pp 201 to 202.
32
d) Failure to comply with requirements at

Clause H.3.4.3 to
i. Opening at pavilion
3 The non-compliances listed above are non-exhaustive.

Under Section 9 of Building Control Act, you are required to
ensure that the building works comply with the regulatory
requirements. You should re-conduct a full inspection on the
entire development and rectify all non-compliances. When you
have done so, please apply for a re-inspection
[emphasis added]
We have already discussed the construction errors in respect of the steps

in the staircases and the relevant clauses of the BCA Approved Document that
were infringed in that respect: see [51][55] above. We therefore need say no
more of them. The remaining clauses of the BCA Approved Document that were
infringed are:
H SAFETY FROM FALLING

H.1 OBJECTIVE
H.1.1 The objective of paragraph H.2.1 is to protect people
from injury caused by falling.
H.2 PERFORMANCE REQUIREMENT
H.2.1 Where there is a vertical drop of 1.0 m or more,
appropriate measures shall be taken to prevent people from
falling from a height.

H.3.2 Height of barrier
H.3.2.1 The height of a barrier shall not be less than
(a) 1.0 m at all locations except for locations indicated
in (b);
(b) 900 mm at the lower edge of the window, stairs,
ramps and gallery or balcony with fixed seating in areas
such as theatres, cinemas and assembling halls.

H.3.4 Size of opening
33

H.3.4.3 In all buildings, except for industrial buildings
(a) the size of any opening or gap in a barrier shall not
be large enough as to permit the passage of a sphere of
a diameter of 100mm; and

Besides the problem with the height of the risers and the uniformity of
the risers and treads on staircases, there were other errors that were made by the
Architect himself which were picked up by the BCA. The first was in an area at
or near the swimming pool of Unit No 12B, where there was a vertical drop of
more than 1 metre; contrary to clause H.2.1 there was no barrier to prevent
people from falling. This was noted by the BCA as CYSA [the Architect]
missed out the barriers at no.12B-swimming pool. The second also related to
barriers where an item is noted as CYSA missed out barriers at no.12A
pavilion. Further, within that item, it appears that where barriers were provided
for, there were also construction errors in relation to the inadequate height of
the barriers (see clause H.3.2.1 of the BCA Approved Document). The Architect
does not explain these lapses, which he should have picked up when he carried
out the pre-TOP inspections.
There was one more construction error that was noted: Opening at
pavilion which contravened cl H.3.4.3 of the BCA Approved Document, viz,
an opening or gap in a barrier which allowed passage of a sphere of a diameter
of 100 mm. The Respondent was asked by the BCA to extend the parapet wall
to maintain the gap at 100mm.
34
Having had errors in relation to the risers and treads pointed out by the
BCA in the first TOP Inspection, 43 one would have expected the Architect to
have carried out another careful pre-TOP inspection to ensure that all such
errors were rectified. This was especially so as the BCA had stated that their list
of non-compliant items was not exhaustive. The Architect clearly did not do so
because, in the second BCA TOP inspection on 18 June 2013, 44 further failures
to comply with the same requirements as to risers and treads were noted by the
BCA in another area the steps at the reinforced concrete flat roof for all units
and the last step at the landscaped area of Unit No 12A.
Finally, we deal with Mr Thulasidass contention that cl 24(4) overrides

Item 72 of the Preliminaries. With respect, we cannot accept this submission at
all. Article 6 of the Articles of Agreement set out the Contract documents.
Article 7 provides that the Contract Documents should be read and construed as
a whole and no special priority other than that accorded by law shall apply to
any one document or group of documents, nor shall the contra proferentem rule
apply either to these Articles or to the Conditions of Building Contract.
Moreover, the general rule at law in the construction of documents is that all
other things being equal, a term specifically drafted for a particular contract
takes precedence over a standard term (Homburg Houtimport BV v Agrosin
Private Ltd (The Starsin) [2004] 1 AC 715 at [11] and Fenice Investments Inc v
Jerram Falkus Construction Ltd [2009] EWHC 3272 at [26]). This rule has been
cited with approval by the Singapore Court of Appeal in Multiplex Construction
Pty Ltd v Sintal Enterprise Pte Ltd [2005] 2 SLR(R) 530 at [26].
43
44
ROA Vol III (Part C) at p 206-207
35
Item 72 being a specially drafted term should therefore take precedence

over the printed conditions. This can be compared to some other standard form
contracts which contain a provision stating that that nothing contained in the
contract bills or bills of quantities shall override, modify, or affect in any way
whatsoever the application or interpretation of the conditions (see eg, HKIA
Standard Form of Building Contract (With Quantities)) or have specific
provisions setting out which document takes priority over another.
In any event, there is no discrepancy between cl 24(4) and Item 72 in the

present case. Indeed cl 24(4) requires the Architect to issue the Completion
Certificate when the works appear to be complete and to comply with the
Contract in all respects [emphasis added]. It cannot be argued that Item 72 is
not part of the Contract or that its requirements do not have to be met. In fact
the parties do not dispute that Item 72 is contained within Section 1 of the
Preliminaries and the Preliminaries in turn form an important part of the contract
containing the bills or bills of quantities or schedules of rates or prices or the
specifications of works which set out, inter alia, details of the works, the
contractors obligations, what equipment will be provided and what will not,
requirements for the execution of the works, etc, all of which will enable the
contractor to more accurately price his works and prolongation expenses. Item
72 can be seen to complement and describe in more detail what the contractors
obligations are, including those in relation to completion.
We therefore are driven to the conclusion that the Completion

Certificate was very clearly not issued properly under the terms and conditions
of the contract and is an invalid exercise of the Architects powers and duties
under this contract. On the facts of this case and the evidence before us at this
enforcement stage, it is clear that the Architect issued the Completion
Certificate at least without belief in its truth and/or recklessly without caring
36
whether it was true or false. The Architects affidavit and his contradictory and
shifting statements only serve to underscore the serious irregularity in his
certification and certification process.
Whether the Completion Certificate affected IC 25 and 26
Mr Thulasidas argues that whatever went wrong with the Completion

Certificate, IC 25 and 26 are different certificates and were issued some time
apart.
With respect, however, we cannot agree with this argument because

first, it ignores the fact that the Completion Certificate is an important milestone
certificate under the SIA Conditions and its issue triggers other certificates and
milestones at this end-phase of the construction contract. For example, under cl
31(9), the Completion Certificate triggers the release of one moiety of the
retention monies less only a reasonable sum to cover the cost of outstanding
works. The Maintenance Period also starts to run under cl 27(1) as does the time
for the contractor to submit its Final Accounts Documents under cl 31(11). The
issue or non-issue of the Completion Certificate has significant consequences
on other certificates and/or related issues, including liquidated damages for
delay. Secondly, IC 25 and 26 are in themselves questionable. We deal with this
in turn.
The Architect failed to certify the release of one moiety of the retention
sum upon issuing his Completion Certificate, as he should have under cl 31(9)
of the SIA Conditions. Clause 31(9) provides:
Subject to Clauses 25 and 26 of these Conditions in regard to

Phased or Stage Completion or Partial Occupation, one-half of
the Retention Monies not yet paid shall be certified as due to
the Contractor on the issue of the Completion Certificate
under Clause 24.(4) of these Conditions, less only a reasonable
37
sum to cover the cost of outstanding work (if any) not yet
completed pursuant to Clause 24.(5) of these Conditions at the
date of the said Certificate.
Whilst cl 31(9) allows the Architect to withhold a reasonable sum to cover the
cost of outstanding work not yet completed, if any, there is no evidence from
the Architect that this was the case or that it was withheld for that reason.
Instead, IC 25 was issued some 4 months after the works were, in the opinion
of the Architect, complete and complied in all respects with the contract and
some 3 months and 19 days after he issued his Completion Certificate. The
evidence shows the full moiety of the retention sum was released. In Interim
Certificate 24 dated 1 July 2013 (IC 24), the retention sum was $644,195.65.
In IC 25 (dated 3 September 2013) the retention sum was reduced to
$315,945.65. The retention sum released to the Respondent was thus $328,250
or approximately 51% of the retention sum certified in IC 24. There is no
explanation from the Architect whatsoever, despite his acknowledging in para
36 of his affidavit that 50% of the retention sum had to be released upon
the issuance of the Completion Certificate (emphasis added). IC 25 clearly did
not comply with cl 31(13)s stricture that the Architect shall in all matters
certify strictly in accordance with the terms of the Contract. The Interim
Certificate is invalidly issued and therefore cannot have any temporary finality
under the SIA Conditions.
We also find it strange that the Respondent did not appear to have made
any complaint about the late release of the retention sum, especially since it
appears that the Respondent was, on its own admission, in a weak financial
38
position: see [17] above. Dennis Tan had this to say in an affidavit filed in
related proceedings, ie, OS 317/2014: 45
The [Respondent], in consideration of EQ Insurance Company

Limited issuing the Performance Bond, have in turn executed
an Indemnity in respect of the Performance Bond together with
myself and another of the [Respondents] director, Ms Phua Poh
Hua. If the Performance Bond is allowed to be called upon, EQ
would proceed against us and we can ill afford to pay and will
probably be wound up or the Directors bankrupted thus
preventing us from continuing with Suit No. 50 of 2014 [ie, the
suit commenced by the Respondent for recovery of the sums
owed under IC 25 and 26].
Most contractors, a fortiori, a contractor with financial issues, would be

eagerly waiting for this release of a moiety of the retention sum and one would
not expect a contractor to remain silent when this not insignificant sum was not
being certified for release upon issue of the Completion Certificate. Indeed, the
Judge who heard SUM 5454/2014 granted the application for stay of execution
of his Judgment precisely because there must have been concerns over the
Respondents financial position: see [18] above.
The foregoing would invalidate IC 25. However, the amount certified in

IC 25 is also questionable. IC 25 is dated 3 September 2013 and as noted above,
certified payment of $390,951.96, of which $328,250 comprised the release of
the first moiety of the retention sum under cl 31(9) of the SIA Conditions. IC
26 dated 6 November 2013 certified payment of $189.250.21. If works were
complete as of 17 April 2013 and the works complied with the contract in all
respects and fulfilled all the requirements of Item 72, why are these sums for
work done being certified for payment months after certified completion on the
terms of this contract? In so asking, we should not be taken to rule that there can
45
Excerpt in AEIC of Ser Kim Koi dated 31 October 2014 at [17] (see Dennis Tans
AEIC dated 7 April 2014 in OS 317/2014 (SUM 1731/2014) at [33]).
39
never be interim payment certificates after completion. There are a number of

valid reasons why such certificates may be issued, including correcting
undervaluation of previous certificates (see cl 31(6)), items that were previously
missed out by the parties, payment for variations (especially those that were
issued late in the course of the project), or claims for work done in the month
before completion. The Appellant makes this point in his affidavit: 46
the Completion Certificate is indicative of the fact that the

Contract has been completed and performed in all respects. The
fact that S$917,228.26 was certified by the Architects in
Interim Certificates No. 23 to 26 indicates that there was still a
significant amount of work to be done as of the date of
Completion as certified by the Architects and not just minor
works as suggested by the Architects in their Completion
Certificate.
It does seem incongruent that if the works were as complete as the

contract required and as certified by the Architect, and given the scheme of
interim claims and interim payments under the SIA Conditions, interim payment
certificates were being issued some 4 months and 6 months after contract
completion. It is also uncharacteristic for a contractor with financial issues to
wait so long after having completed his works to make his interim payment
claims. In this regard, it is noteworthy that the Architect offers no explanation
in his affidavit. He merely deposes at paras 35 and 51: 47
35. . The value of works certified in Interim Certificates No.

23 to 26 of $917,228.26 were for works carried out prior to
completion or for sums payable as a consequence of completion
and are not as the Defendant claims indicative of an alleged
"significant amount of work to be done" as at the date of
completion".

46
Ser Kim Kois 1st AEIC at [33] (ROA Vol III (Part A) at p 98).
47
40
51. Interim Certificates No. 25 and 26 were for works

completed, and are unrelated to the defects.
In one sense, paragraph 51 is true. The certificates are unrelated to the

defects. An examination of the minor defective items listed in Annexes 1.1 to
1.4 of the Completion Certificate (comprising some 109 pages of photographs
with captioned defects) in relation to Unit Nos 12, 12A, 12B and the external
works show just that, ie, minor items for rectification, eg, ceiling painting
patchy, hole at ceiling to patch, remove floor marble stain, timber floor surface
damaged, edge of wall painting to touch-up, aluminium window lockset loosen,
cabinet doors not flush, aluminium capping loosened, etc. These are not works
for which payment under the contract is due.
It behoves the Architect, whose certificates are being challenged in these

circumstances, to furnish an explanation for the payment certified under IC 25
and IC 26 when he filed his affidavit. Although not strictly applicable to the
filling of affidavits, it is nonetheless of relevance to note that under cl 31(13) of
the SIA Conditions, there is a duty on the part of the Architect to clarify upon
either partys request [i]n any case of doubt, what was or was not taken into
account in his certificate. In Chin Ivan at [18], this Court stipulated this as one
of the requirements that confers temporary finality on the architects certificates
in that his clarification, if requested, would set out the basis of his independent
professional judgment. Here, in the light of these proceedings, to which he is a
party, one would have expected the Architect to explain the basis of the disputed
certificates. But, for reasons best known to himself, he has chosen not to do so.
We note a second strange feature of this case. Whilst the Architect has
given fairly detailed explanations for his time extensions and the alleged
defects, in stark contrast, he says very little substantively about the completion
and even less about what items were comprised in IC 25 and IC 26: see [74]
41
above. We note that instead, it is the Respondents Dennis Tan who attempts to
explain what was being certified for payment under IC 25 and IC 26. It is
important for us to point out that where certificates are being impugned, it is not
for the Respondent, who is a party to the dispute with the Appellant, to speak
for the Architect. In enforcement proceedings, where the temporary finality of
his certificates are in question, it is important for the courts to hear from the
Architect himself about his certification process and on the certificates he
issued; this is especially so where he has been made a party to the action and
therefore has the opportunity to explain his position and certification.
Accordingly, what the Respondent, (or Appellant for that matter) has to
say in these circumstances is of very little weight. Thus if there are serious and
legitimate doubts about the Architects certification, and if the Architect has
chosen not to explain his certification, it will often be insufficient for an
interested party to do so on his behalf. Nonetheless, without derogating from
the foregoing, we shall put that to one side and examine Dennis Tans
explanations contained in his 3rd affidavit dated 30 April 2014. He attributed the
amount certified under IC 25 to prime cost (PC) adjustments. At para 17, he
states:
The $337,892.94 worth of work was not done after

completion. The amount certified was not because of the work
being done after completion but because of the PC rate
adjustments. The [Respondent] had completed all the PC rate
items like marble, tiles, granite, timber parquet, timber decking
by Mar 2012 (see under Main Building Works for Interim
Valuation from No.22 to No.25 wherein the amounts were
capped at about 95% until PC rates are adjusted on a later date.
Dennis Tans explanation is not only quite unconvincing, it is instead

misleading by making reference across five payment certificates, IC 22 to IC
26, because they stretch from an Interim Valuation (IV) as of 14 March 2013
(about one month before completion) to 31 October 2013. We should point
42
out that the Interim Certificates do not show the PC items. We have to look at
the accompanying Interim Valuation for the Prime Cost & Provisional Sums
(the PC Items). A perusal of the Interim Valuation by M/S Faithful & Gould,
the quantity surveyors, shows there was indeed an increase in the PC Items, but
that occurred between the Interim Valuation for IC 23 and IC 24. The PC Items
increased from $596,015.15 to $788,126.90. However the PC Items in the
Interim Valuations for IC 24 and IC 25 remain unchanged and in IC 26 there
was only a very small increase of $19.19 compared to IC 25: 48
Interim Certificate/
PC Items Valuation Change
Interim Valuation
IC 22 (19 April 2013)
$583,229.26 -
IV 22 (14 March 2013)
IC 23 (5 June 2013)
$596,015.15 +$12,785.89
IV 23 (30 April 2013)
IC 24 (1 July 2013)
$788,126.90 +$192,111.75
IV 24 (30 May 2013)
IC 25 (3 Sept 2013)
$788,126.90 -
IV 25 (31 July 2013)
IC 26 (6 Nov 2013)
$788,146.09 +$19.19
IV 26 (31 Oct 2013)
So there were clearly no PC rate adjustments in IC 25.
Dennis Tans attempt to then suggest the PC rate adjustments were under
the Main Building Works is also misleading. First, there is already an item for
PC Items in the Interim Valuation and, as noted above, except for an increase
between IC 23 and IC 24, the PC Items remains, in effect, constant from IC 24
48
ROA Vol III (Part J) at p 154 and ROA Vol III (Part K) at p104.
43
to IC 26. Secondly, the Main Building Works were 95.73%, 95.5% and 95.51%
(for Unit No 12, 12A and 12B respectively) complete by value in Interim
Valuation 22, on which IC 22 was based, and this figure remained constant from
IC 22 to IC 25. It was only in IC 26 that the Main Building works increased to
100% by value:
(a) Interim Valuation No 22 (on which IC 22 dated 19 April 2013,

was based) for Unit Nos 12, 12A and 12B were respectively: 49
(i) Contract sum: $2,662,770.09

Contractors Claim: $2,549,179.32
Valuation: 95.73%
(ii) Contract sum: $2,563,744.00
Valuation: 95.50%
(iii) Contract sum: $2,423,912.34
Valuation: 95.51%
(b) Interim Valuation No. 23, 24 50 and 25 (on which IC 23, 24 and
25 respectively were based) all contain identical figures on
completion by value as those in (a)(i), (ii) and (iii) above for the
three units. 51
49
50
51
ACB Vol II at p 111.
44
(c) Interim Valuation No 26 (on which IC 26 dated 3 November

2013 was based) for Unit Nos 12, 12A and 12B were all 100%
completed by value: 52
(i) Contract sum: $2,662,770.09

Valuation: 100%
(ii) Contract sum: $2,563,744.00
Valuation: 100%
(iii) Contract sum: $2,423,912.34
Valuation: 100%
The significance of the above figures is first that the three units were
only 95.73%, 95.5% and 95.51% complete respectively by value when IC 22
was issued on 19 April 2013 (with valuation as at 14 March 2013), which was
2 days after the works were completed on 17 April 2013, and remained at the
same level of completion by value through to IC 25 which was issued on 3
September 2013, some 4 months after the Architect certified the works were
complete. Secondly, this fact, ex facie, shows that there were no further works
done between the issue of IC 23 dated 30 April 2013 and IC 25 dated 3
September 2013 as valued by the quantity surveyor because the level of
completion of these units by value did not change. On the evidence before us,
IC 25s $62,701.96 (the remainder after deducting $328,250 of retention monies
released) could not have been for any PC rate adjustments.
52
ACB Vol II at p 117.
45
For the above reasons, it is very clear that IC 25 was not issued strictly
in accordance with the terms of the contract, and accordingly cannot be
accorded temporary finality.
We turn now to IC 26. Like IC 25, we find IC 26s certification to be

questionable for the same reasons set out above. Moreover, if completion took
place on 17 April 2013, then the maintenance period started to run from 18 April
2013 and would end on 17 April 2014. Under cl 31(11)(a), the Respondent had
to submit his Final Account Documents to the Architect and quantity surveyor
showing the final value of all works carried out by him, including variations,
together with all supporting documents. If completion had truly taken place in
accordance with the contract, then one can legitimately ask what was being
certified for payment some 6 months after completion. In the absence of any
explanation, one would expect, especially for this Respondent, to be busy with
his Final Account Documents. IC 26 dated 6 November 2013 certified payment
of $189,250.21 for work carried out by the Respondent. As noted above at [74],
except for the laconic assertion that this payment was for completed works, the
Architect has chosen not to explain what was certified in IC 26. If the Disputed
Certificates were indeed for work that was completed before or by 17 April
2013, then the earlier certificates must have been erroneous. There is no
explanation why these sums were not included in the appropriate earlier interim
payment certification.
Again, it is the Respondent, not the Architect, who tries to furnish the
explanation. The Respondent maintains no new work was done but instead
offers two reasons for the sum certified for payment in IC 26:
(a) First, the sum on IC 26 was due to completed works and [t]he
PC rate adjustments were made between the QS Consultants and the
46
[Respondent] when the project was nearing completion and has no

bearing on the interim progress. 53
(b) Secondly, the certified sum for the M&E works contained an
omission of $205,605.41 and was due to the submission of operation
manual and drawings and the regularization of the contract sum arising
from variation works. 54
With respect to (a), for the same reasons set out at [77] to [80] above,
except for $19.19, the sum certified in IC 26 cannot be due to PC rate
adjustments. As noted above, whilst there was a large increase in PC Items
between IC 23 and IC 24, and, in effect no increase in PC Items from IC 24 to
IC 26, there was no increase in the percentage completion of the buildings from
IC 22 to IC 25.
As noted above, the PC Items in Interim Valuation 25 and 26 only

increased by $19.19. PC Items rate and adjustments therefore cannot account
for the amount certified in IC 26. There was also no such claim or explanation
by the Architect on these prime costs adjustments in his affidavit, which is again
strange because cl 4.4 of Section B, Scope of Works, vol 1B of the contract
provides that: 55
The PC Sum shall only be adjusted through a variation arising

from the Architects instructions.
Needless to say, no such Architects instructions were in the documents before

us.
53
Dennis Tans 3rd AEIC dated 30 April 2014 at [17(iii)] (ROA Vol III (Part K) at p 14).
54
Dennis Tans 3rd AEIC dated 30 April 2014 at [18] (ROA Vol III (Part K) at p 15).
55
47
On the face of these Interim Valuations, works were still being valued
well after the purported completion under cl 24(4) and Item 72. If so, then the
works could not have been complete under cl 24(4) and Item 72 as of 17 April
2013, or, if they were indeed complete and complied in all respects with the
contract, then the Architect has not explained why these sums for work done
came to be certified so many months after contract completion. The
Respondents explanation for these figures is inconsistent with the evidence
presented. It should also be noted that of the documents exhibited by the
Respondent, there are many missing documents, and some important documents
that are exhibited are not complete.
The Respondent has attempted to support its explanation by annexing a

table in Dennis Tans 3rd affidavit, entitled Leedon Park Comparison Table
of Interim Valuation No. 25 & 26. Here, the Respondent purports to provide
some figures to account for the PC rate adjustments. 56 First and foremost, this
table is that of the Respondent, not the Architect or the quantity surveyor.
Secondly, these figures and remarks cannot be readily matched against the
figures reflected in the Prime Cost & Provisional Sums column on Interim
Valuation No 26.
A similar trend appears in the accounting of the M&E works:
(a) In Interim Valuation No 23 (IV 23), 57 on which IC 23 was

based, as of 30 April 2013, the M&E works for the Buildings was
56
ROA Vol III (Part K) at pp 7778.
57
ROA Vol III (Part J) at p 148.
48
claimed and valued at $1,980,795.78 and this comprised 86.35% of the

contracted sum for M&E works.
(b) In Interim Valuation No 24 (IV 24), 58 on which IC 24 was

based, as of 30 May 2013, the M&E works for the Buildings was valued
at $2,002,712.59 which comprised 87.3% of the contracted sum, an
increase of $21,916.81 or 0.95% of the contracted sum.
(c) In Interim Valuation No 25 (IV 25) 59

on which IC 25 was
based, as of 31 July 2013, the M&E works for Buildings was valued at,
$2,031,200.59, which comprised 88.54% of the contract sum, an
increase of $28,488 or 1.24% of the contracted sum.
(d) In Interim Valuation No 26 (IV 26), 60 on which IC 26 was

based, as of 31 October 2013, the M&E works for the Buildings had
suddenly increased to $2,267,956 or 98.86% by value of the contracted
sum. This was an increase of $236,755.41 or 10.32% of the contracted
sum.
These facts raise similar questions but with heightened significance

because first, these are M&E items, and secondly they are explicit requirements
stipulated in Item 72. The M&E works were only 86.35% complete by value as
of 30 April 2013. They increased marginally by 2.19% through IC 24 to IC 25.
Unless there were omissions or sums withheld over quality issues, of which no
evidence at all has been proffered, it defies belief that at 86.35% completion by
58
59
60
ROA Vol III (Part J) at p 166
49
value, all services, including M&E services, could have been tested,
commissioned and found to be operating satisfactorily. If at all so, then there is
no explanation as to the sudden increase of M&E work by 10.32% in IC 26.
Needless to say there is no explanation from the Architect or the M&E
Consultant.
Although it is not for the Respondent to explain the Architects

certification, again the Respondent has attempted to explain the figures by
stating that: 61
the omission of $205,605.41 is separated under Interim

Valuation No.26 whereas it was still under M&E Works in
Interim Valuation No.25 In fact, the amount certified for
Interim Valuation No.26 was only $31,150.00 because the
physical works were already completed before 17.4.13. This
certified sum is for the submission of operation manual and
drawings and the regularization of the contract sum arising
from variation works $236,755.41 worth of M&E work was
not done after completion.
This explanation by the Respondent is difficult to understand or follow

but the following points can be made:
(a) The first point to note is the admission by the Respondent that
IC 26s payment for M&E items was for the submission of operation
manuals. This means Item 72(b) was not fully complied with until after
IV 25 which valued works as at 31 July 2013.
(b) The next point of note is the Respondents cryptic remarks

referring to an omission of $205,605.41 which was separated in IC 26
whereas it was still under M&E works in [IC 25]. The Respondent
61
Dennis Tans 3rd AEIC dated 30 April 2014 at [18] (ROA Vol III (Part K) at p 15).
50
then states that the net certification for M&E works in IC 26 was only
$31,150 which was for the submission of operation manuals, drawings
and the regularization of the contract sum arising from variation
works. It is difficult to make much sense of these statements.
(c) On their face, the interim certificates (as is usual in the industry)
do not have a sufficient level of breakdown to validate the first point
made in Dennis Tans statement above at (b), eg, it does not contain a
separate M&E component, let alone the figure $205,605.41, as M&E
works are within the item: Work carried out by Contractor:
$11,334,625.80 (for IC 25).
(d) When we turn to the immediate underlying document, the

interim valuation by the quantity surveyors, IV No 25 only shows the
M&E works as a one line item containing the M&E Contract Sum, the
Contractors Claim, the Valuation and Remarks. It is important to note
that it does not show an omission of $205,605.41 since the M&E
Contract sums remains at $2,294,002 and the Respondents Claim and
QS Valuation stands at $2,031,200.59 (and in IV 24, the same M&E
Contract sum appears with a Contractors Claim and QS Valuation of
$2,002,712.59). There is no other notation showing an omission of that
nature or sum on the rest of that document comprising IV 25.
(e) In IV 26, although the same one-line M&E Contract Sum of

$2,294,002 is stated, as noted before, the Contractors Claim and
Valuation by the QS is now $2,267,956.00, an increase of $236,755.41
which is 98.86% of the ME Contract Value. However, we now find the
$205,605.41 figure stated by Dennis Tan in IV 26. It appears as Item 7
variations at (b) where there is an omission of $205,605.41. No such
51
omission appears in the earlier interim valuations. Half of Dennis Tans

first point is correct we do find that omission in IV 26. However his
point that the $205,605.41 omission in IV 25 was under M&E Works is
not correct.
(f) We now move down a further level, since these are M&E Works,
to examine the M&E consultants valuation and payment
recommendations (M&E Valuation); again some, but not all or
complete copies, are exhibited in Dennis Tans affidavit.
(g) As a preliminary point, the M&E Valuations are confusing

because they carry the same progress claim number 26 but have different
dates which seem to indicate that M&E Valuation No 26 dated 12
August 2013 62 should be No 25 and the M&E Valuation No 26 dated
30 September 2013 63 is properly numbered 26. We treat this accordingly
and although someone has written in manuscript 25 for both
documents, we ignore this manuscript notation.
(h) M&E Valuation No 25 shows:
(i) the M&E Original Contract/Sub-Contract Value at

$2,294,002 which is, as expected, consistent with the figure set
out in IV 25, and where, as noted above, as at 31 July 2013, the
amount claimed and valued was $2,031,200.59 or 88.54% of the
contract value.
62
63
52
(ii) it records, for the first time, Variations (Additions) EI 01

to EI 04 amounting to $218,106.59 and, as one would expect, an
increased Present Contract/Sub-Contract value by that amount to
$2,512,108.59.
(iii) the previous M&E Valuation, numbered 24 and dated 6

June 201364 states no variations orders issued to date; unless
there is an explanation put forward, and there is none, the
conclusion to be legitimately drawn is that EI 01 to EI 04 were
issued after M&E Valuation 24; we note that EI 01 to EI 04 were
not put in evidence although they could have shed some light on
this.
(iv) This raises questions as to what M&E works were being

ordered at this stage, at or more than 3 months after works were
certified complete. No explanation has been given by any
party.
(v) We should in fairness point out that there may be an

answer at a document entitled Cost Report No 6 which carries
the date 15 January 2013 65 (but which we note may not be the
full document), where there are items with sums corresponding
or approximately corresponding to those found in these EIs:
(A) EI 01 for $4,635 has a corresponding sum in this

document against S/No 26, AI No 18, Additional of
Emergency Lights with the remarks Regularize
64
65
ROA Vol III (Part H) at p 131.
53
Engineer instruction; M & E 01, as advised by M&E

Engineer;
(B) EI 02 for $194,800.59 has an approximate

corresponding sum in this document at S/No 25, AI No
16 where the first line carries the words: Omission of
Provisional Sum ($400,000) and the second line has
Supply and delivery of light fittings and accessories
$196,748.60 and with similar remarks: Regularize
Engineer instruction; M & E 02, as advised by M&E
Engineer;
(C) EI 03 for $2,640 has a corresponding sum in this

document against S/No 27, AI No 23 with the words:
Supply and install water sub-meters for swimming
pools and with similar remarks: Regularize Engineer
instruction; M & E 03, as advised by M&E Engineer;
and
(D) EI 04 for $16,031 has a corresponding sum in this

document at S/No 23, AI No 3 with the words:
Additional jacuzzi jet and with similar remarks: As
advised by M&E Engineer.
(vi) This raises more questions than it provides possible

answers. The obvious question arises from the discrepancy in the
date of this document and the dates recorded in the M&E
Valuations for the EIs. There is no explanation as to the nature
of this document, what it represents or whether AI means
Architects Instructions under the SIA Conditions or just
costings for consideration of these items and not necessarily
54
items that were in fact ordered and installed. It also does not tell
us whether the works comprised in these items were carried out
or not and if so when. If these were variations ordered by January
2013, then at least IC 22 (19 April 2013) and the interim
certificates after that, and probably a few interim certificates
prior to that, were wrong and under-certified. This would include
IC 23 and IC 24. Importantly, we do not know if this is a
complete document and equally importantly, there were other
items in this document which do not appear in the EIs set out in
M&E Valuation No 25 as one would expect, eg, S/No 28, AI No
25 with the description: Supply and delivery of light fittings and
accessories, 21,453.421 and with the remarks: As advised
by M&E Engineer.
(i) M&E Valuation No 26 shows the Original Contract/Sub-

Contract Value at $2,294,002 as well as EI 01 to EI 04, but there is now
an EI 05 which records an omission of $423,712 thereby bringing the
revised M&E subcontract value down to $2,088,396.59. EI 05 has also
not been put in evidence. This raises the following doubts:
(i) Why was such a large omission being effected by an EI

at this late stage? There is no explanation as to what these M&E
omissions comprised of. Importantly, if the contract works were
completed as of 17 April 2013, that there can be an omission of
this size and at this stage cries out for a compelling explanation.
It is possible for works to be omitted for various reasons
including reducing the amount of works for cost or aesthetic
considerations or because they were no longer needed or because
the contractor cannot supply or do the works or that parts of the
55
M&E works were no longer necessary. Reasons like this should

bring about an omission by an EI at a much earlier point in time
and before completion. Unfortunately the Architect and M&E
consultant have chosen to remain silent.
(ii) Although Dennis Tan seems to suggest a specific

omission or omissions amounting to $205,605.41 that was within
IC 25, which as we have said above cannot be the case, it seems
that that figure comes from deducting $218,106.59 comprised in
EI 01 to EI 04 (issued after 6 June 2013) from this omission of
$423,712 by EI 05 in or around 30 September 2013.
(iii) Importantly, if an omission of this large sum occurred

before completion on 17 April 2013, or at some earlier stage and
was being accounted for only in M&E Valuation No 26 and/or
IV 26, in the sense of reducing the M&E Contract Sum only at
that stage, then the previous valuations of works done by the
M&E Consultants and the Quantity Surveyors were erroneous
and any Interim Certificate based on these valuations would be
similarly erroneous and invalid and certainly could not be
clothed with temporary finality under cl 31(13); $423,712 is an
omission of 18.47% of the original M&E Sub-contract sum or
16.86% of the revised M&E Sub-contract value after adding EI
01 to EI 04.
It may well be the case that at the substantive or final determinative

arbitral or court proceedings matters will be clearer with all the relevant and
complete documents being produced and the parties are cross-examined.
However, at this stage, based on what appears in IC 26 and its immediate
56
underlying documents, there are serious irregularities and unexplained

discrepancies that deprive IC 26 of any temporary finality.
Besides these serious irregularities, and the fact that the maintenance
period as set out in the Completion Certificate was clearly wrong, there is
another glaring omission. The Architect ignores delays and, as a consequence
of delay, liquidated damages. Whilst the Architect has dealt in some detail with
the extension of time in paras 17 to 34 of his affidavit, 66 he dismisses the
concomitant issue of delay with great brevity in para 41 of his affidavit:
the [Architect] certainly did not collude with the [Respondent]

to avoid any liability on the [Respondents] part for liquidated
damages or to defraud the [Appellant].
The Architect explains he disallowed any extension of time for alleged

delay on marble confirmation, changes in marble selection and cutting sizes but
explains that he allowed a total of 55 (40 + 15) days extension due to the delays
in testing and commissioning of M&E services as a result of Singapore Powers
delay in turning on the power supply. 67
There were no other pending
applications for extension of time and the Architect certified that the extended
time for completion was 17 April 2013.
If the works were not complete under cl 24(4) and Item 72 as of 17

April 2013 under the terms of the contract, then the works have been delayed
and the consequence would be that liquidated damages becomes due. This
would be of significant financial consequence if completion in accordance with
the contract, and in particular Clause 24(4) and Item 72, only occurred on 16
66
ROA Vol III (Part I) at pp 9 - 17.
67
ROA Vol III (Part I) at pp 9 - 17.
57
September 2013 68 when the buildings achieved the TOP. The period of delay
would then be significant. If, (i) as is undeniable, TOP was finally obtained only
on 16 September 2013, (ii) if, testing and commissioning for M&E installation
is required before completion, as the Architect admits in para 28 of his affidavit,
(iii) if there were M&E and other services that had yet to be tested,
commissioned and found to be operating satisfactorily as at 17 April 2013, as
noted in the Completion Certificate, and (iv) there were no outstanding
applications for extension of time, then it must follow that liquidated damages
must have started to run from 18 April 2013.
It should be noted that the supply of gas to the Buildings was not tested,
commissioned and found to be satisfactory when the Completion Certificate
was issued. Dennis Tan himself admitted that the gas supply was only tested on
6 August 2013, close to three months after the Completion Certificate was
issued. 69 We have also referred to the evidence of delayed production of the
operating manuals, a requirement for completion under Item 72(b). It goes
without saying that duly certified liquidated damages would be available as a
set-off against any sums certified due to a contractor.
Lastly, it is also clear that the Architect was partly responsible for the
Buildings failing the TOP inspections: see [61] and [62] above. Both the
Respondent and the Architect are silent as to what was done to remedy this. In
a normal case, there would have been an instruction from the Architect to the
Respondent to carry out these additional works. There would then have been an
attendant extension of time and payment for variation work. These additional
68
69
Dennis Tan Chong Keats 2nd affidavit dated 7 April 2014 (ROA Vol III (Part I) at p
226.
58
works must have been carried out otherwise TOP would not have been
eventually obtained. No doubt all these issues will be explored at the substantive
hearing stage.
In view of the foregoing, the Architect was clearly in breach of cl 31(13)

when he issued IC 25 and 26 as they were not issued strictly in accordance with
the terms of the contract. Moreover, in our judgment, when the Architect issued
these certificates, he could not have had any belief in their truth or he did so
recklessly without caring whether they were true or false. The Disputed
Certificates have thereby lost the temporary finality that would otherwise have
been conferred on them by the SIA Conditions.
Whether the other defects in the Buildings removed temporary finality
Our reasons and conclusions above are sufficient to dispose of this

appeal. Nonetheless, for completeness, and for the avoidance of doubt in future
cases, we will deal with the other arguments raised by the Appellant.
Mr Pillay submits that the Architect was guilty of reckless certification

on the facts of the case and that this amounts to fraud under cl 31(13). First, Mr
Pillay says the Architect issued the Completion Certificate despite there being
extensive defects. These defects are all listed and photographed by an
independent building surveyor to give substantiation to this allegation: see
[20(b)] above. It is true that there are numerous defects listed in this report and
equally numerous photographs allegedly evidencing this state of affairs. Mr
Pillay also points to the evidence, including Daniel Tays Report which states
that the wrong type of soil, clayey sub-soil and not loamy soil as called for under
the specifications, was provided. Yet the Architect went on to certify acceptance
and payment for these works. Mr Pillay also points to wrong-sized timber
59
decking being provided, viz, 10 mm thick instead of the 15 mm specified by the

Architect, yet they were accepted and duly certified by the Architect. In
response to these allegations, the Architect states in para 43 of his affidavit that
the alleged defects are minor and are not uncommon for newly
completed projects. The Architect then goes on to set out his disagreement with
the Appellants allegations in paras 43 to 52 and 61 to 63 of his affidavit. The
Respondent broadly maintained that the works were not defective and denied
that they were at fault. 70 We note the Respondent failed to meet these allegations
other than in generalised terms.
Notwithstanding this, on the evidence before us, we cannot accept any

of these factors as being valid reasons in themselves to withhold temporary
finality from IC 25 and 26. As we have noted at [28] above, at the enforcement
stage, the court is not concerned with the merits of the certificates. The court
will not go into whether, for instance, the soil was loamy soil or not or whether
it complied with the specifications. Nor can the court go into whether the timber
decking was 10 mm or 15 mm or whether the specification called for 10 mm or
15 mm thick pieces of timber. To do otherwise would be to drive unwarranted
inroads into the principle of temporary finality that is embedded in cl 31(13).
Opening up the Architects certificates must be left to substantive final
determinative arbitration or court action.
Payment certificates however, are of a different nature from the kind of

certification under discussion here. On their face, payment certificates deal with
resultant totals and sub-totals, the details of which do not appear on the payment
certificate itself. For the supporting figures, breakdown or calculations, one has
70
See eg, Plaintiffs Supplementary Submissions before the AR.
60
to look to the immediate underlying or supporting document. This is invariably

the interim valuation compiled by the project quantity surveyor. This finds
support in practice because in all well run construction contracts, the interim
valuation is attached to or issued with the payment certificate. This interim
valuation will also contain remarks as to why a particular claim has been paid
in part or not paid because, for example, it was rejected for non-compliance with
the specifications. These remarks and explanations in the interim valuation often
comprise the payment response for adjudication under the Building and
Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed). In
turn, for special components like the M&E works, one goes down further to the
immediate underlying document, the M&E engineer or consultants valuation.
This does not amount to opening up the payment certificate. First, the figures
in these sets of documents either add up or they do not. There is no grey area in
arithmetic. Secondly, and importantly, the Architect has chosen not to explain
or clarify his certification. Thirdly, the court looks at what is written on the face
of these documents and does not examine, eg, the stated reason for an omission
of an individual item, unless there is something so obviously wrong with that
statement that it cannot, on any basis, be true or correct.
Conclusion
Every case must depend on its own special facts. Whilst we will not lay
down a hard and fast rule to say there can never be a case where the evidence,
as distinct from the process of certification and proper certification strictly in
accordance with the terms of the contract, is so clear as to support a prima facie
finding of fraud or recklessness or irregularity in relation to the merits or
contents of an architects certificate under the SIA Conditions, such a case must
be rare and quite exceptional.
61
This case is exceptional in our view and findings. It must be seen against
what must be numerous construction projects contracted on the SIA Conditions
which are completed without such serious irregularities and errors in
certification. What this case does unfortunately illustrate is that some architects,
like those in Lojan Properties and Chin Ivan, project their profession in a very
poor light when they administer their contracts with such disregard for its terms
and conditions and which are, after all, those of a standard form put forward by
their own professional organisation. In the vast majority of cases of this nature,
it is the architect, (albeit with assistance from the quantity surveyors), who
compiles and puts forward the construction contract, to the owner and
contractor, for execution. To then disregard, in a sense their own contract terms
and conditions or to display ignorance of some of its terms or content seems to
be very unfortunate and tarnishes the good name of their profession.
Needless to say, the defence based on fraud and serious irregularity is

not, at this stage, a complete one, and this should not preclude the Appellant
from having their defences tested at trial. Our findings at this enforcement stage,
depriving IC 25 and IC 26 of temporary finality, will necessarily be prima facie
and non-conclusive at the substantive and final determination of the disputes
between the parties (see The Chem Orchid and another matter [2016] SGCA
04 (The Chem Orchid) at [47] and [48]; The Bunga Melati 5 [2012] 4 SLR
546 at [127]-[129]).
For the reasons set out above, we allow the appeal. The judgment and
orders for costs entered into below by the AR and the Judge are set aside and
the Appellant is to have his costs here and below (including the costs of and
incidental to the application in SUM 5454/2014 which were reserved to this
Court: see [17] above), such costs to be agreed or taxed. There will be the usual
consequential orders for the release of monies furnished by the Appellant as
62
security for costs for this appeal and the sum of $640,816.32 ordered by the
Judge to be paid into court by the Appellant are to be paid out to the Appellant.
Chao Hick Tin Andrew Phang Boon Leong Quentin Loh

Judge of Appeal Judge of Appeal Judge
Mohan Reviendran Pillay, Yeo Boon Tat and Danna Er (MPillay) for
the appellant;
Thulasidas s/o Rengasamy Suppramaniam (Ling Das & Partners) for
the respondent.
63

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This judgment is subject to final editorial corrections approved by the

court and/or redaction pursuant to the publishers duty in compliance

Ser Kim Koi

Court of Appeal Civil Appeal No 163 of 2014

Building and construction contracts Standard form contracts Singapore

4 March 2016 Judgment reserved.

Quentin Loh J (delivering the judgment of the court):

This is an appeal against the entry of summary judgment of $620,816.32

The Appellant decided to build three two-storey detached houses (Unit

The Respondent duly commenced work. The Architect issued a total of

The Architect issued the Completion Certificate dated 15 May 2013

Nonetheless, the Architect issued the Completion Certificate dated 15

I hereby certify that on 17 April 2013, the Works appear to

[emphasis in bold and italics; underlined in original]

Interim Certificate No 25 (IC 25) was dated 3 September 2013 and

The Respondent, relying on the Disputed Certificates, issued two

Proceedings before the AR

The Respondent applied for summary judgment under O 14 of the Rules

(b) the Completion Certificate issued by the Architect raises doubts

whereas there were in fact extensive defects to the Buildings as

(c) the Architect recklessly certified payment for landscaping works

(d) the Architect was reckless in certifying payment in respect of

(e) the Architect granted unwarranted extensions of time for the

Proceedings before the Judge

If (and I am not suggesting that he was) the Architect

(b) Secondly, there was insufficient evidence to establish that the

I accepted the [Respondents] evidence that the

(c) Thirdly, with regard to interference, the Judge said at [61]:

There was no evidence to indicate that the [Respondent]

it was highly improbable given the manner in which the

The Judge concluded by emphasising the importance of according the

Dissatisfied, the Appellant filed his Notice of Appeal to this Court. 16

to restrain a call of a performance bond furnished by the Respondent in respect

SUM 5454/2014 was heard by the Judge 21

On appeal, the Appellant no longer relied on improper pressure and

bona fide defence of fraud, as evinced by a clear pattern of reckless conduct on

24.(4) Subject to the provisions of Sub-Clause

Pursuant to the provisions of the Agreement and

(b) Secondly, the Completion Certificate issued by the Architect

(i) Leaking swimming pool, koi ponds and water features;

(ii) Cracked and leaking external walls; and

(iii) Poor installation of marble and timber flooring, which is

In our view, the various timber decking with

the problem of continuous water streak marks

The BAPL 1st Report contained photographs evidencing these defects.

(c) Thirdly, the Architect acted recklessly in certifying payment for

We were instructed by [the Appellant] to determine if

It would be convenient for us to note at this juncture that the landscaping

(d) Fourthly, the Architect was reckless in certifying payment in

In this regard, the Appellant tendered photographs of the timber strips

In respect of the points raised in [20], the Appellant submits that

Mr Thulasidas s/o Rengasamy Suppramaniam (Mr Thulasidas),

months after the Completion Certificate was issued (the Disputed

(b) Secondly, the Appellant merely raises a myriad of circumstantial

(c) Thirdly, the Architect had a genuine honest subjective belief

Clauses 31(13) and 37(3)(h) of the SIA Conditions provide as follows:

31.(13) No certificate of the Architect under this Contract shall

Conditions), whether for payment or otherwise, until final