March 1, 2016
Fujitec Singapore Corp Ltd (“Fujitec”) served a payment claim on 1 April 2015 in accordance with its contract with GS Engineering & Construction Corp (“GS”). GS provided its payment response on 21 April 2015. Fujitec gave its notice of intention to apply for adjudication on 28 April 2015. The adjudication application was subsequently lodged on 30 April 2015.
GS contended “No”
GS argued that the adjudication application was lodged prematurely because the earliest it could be filed was 1 May 2015.
GS argued that the contract provided that the payment response was to be issued within 21 calendar days after receipt of the progress claim and that because 3 April 2015 was a public holiday (Good Friday), it had until 23 April 2015 to provide its payment response. Accordingly, the earliest date Fujitec was entitled to lodge its adjudication application was 1 May 2015, taking into account the 7-day dispute settlement period between 23 April 2015 and 30 April 2015.
Fujitec contended “Yes”
Fujitec argued that a calendar day is not affected by any public holiday and therefore, the adjudication application was filed correctly on 30 April 2015 because the last day for GS to file its payment response was 22 April 2015 and the 7-day dispute settlement period was between 22 April 2015 and 29 April 2015.
Fujitec argued that the use of calendar day instead of day meant that the contract intended the calendar day to include a public holiday as opposed to day which would not.
The Court considered section 2 of the Building and Construction Industry Security of Payment Act (“Act”) defining day as “any day other than a public holiday within the meaning of the Holidays Act”. However, the contract used a different term, which is calendar days. The contract did not define what calendar days meant; instead, the contract defined day(s) as being Gregorian calendar day(s).
The Court also considered that a law dictionary defined calendar days in this manner: “A calendar day contains 24 hours; but ‘calendar days’ may be synonymous with ‘working days’.”
However, the Court did not find any of the above useful. The Court held that the definition of day in the Act was only meant to apply to that word in provisions of the Act; the Act did not make its definition applicable to all construction contracts. The Court observed that parties could have adopted the definition in the Act if they wished. However, in this case, the Contract did not use day but calendar day.
The Court considered the Court of Appeal’s decision in Woo Kah Wai and another v Chew Ai Hua Sandra  4 SLR 166 in the context of a property option that 3 days could mean either 3 calendar days or 3 working days. In other words, calendar days included public holidays and weekends as opposed to working days.
The answer is “Yes”
The Court held that Fujitec’s position was correct because calendar day contains the notion that it includes every day in the calendar as opposed to working day or weekday. If the intention was to exclude public holiday, then the drafter of the Contract need not have used calendar day instead of day as used in the Act.
In any event, the Court relied on the principle that any ambiguity in a document would be construed against the person who drafted it. As GS drafted the Contract, the ambiguity would be resolved in Fujitec’s favour.
On this last point, this again demonstrates the need to be clear and precise in the drafting of contractual documents to minimise the chance of any ambiguity from arising, which would tend to be construed against the drafter of the contract.