CKR Contract Services Pte Ltd v Asplenium Land Pte Ltd and another and another appeal and another matter

CKR Contract Services Pte Ltd v Asplenium Land Pte Ltd and another and another appeal and another matter

Clause 3.5.8 is a valid contractual limitation on the right to seek an injunction against a call on an on-demand performance bond (excluding fraud) and does not amount to an ouster of the court's jurisdiction or invalidate the clause as contrary to public policy; because no fraud was alleged, Asplenium was entitled to call the bond and CKR's unconscionability argument was immaterial, so Asplenium's appeal succeeded and CKR's appeal failed.

Citation
[2015] SGCA 24
Parties
Appellant (ca204); First Respondent (ca206); Main Contractor: CKR Contract Services Pte Ltd; First Respondent (ca204); Appellant (ca206); Developer/employer: Asplenium Land Pte Ltd; Second Respondent; Issuer of on Demand Performance Bond; Neutral Party: DBS Bank Ltd
Court
Court of Appeal
Jurisdiction
Singapore
Judgment Date
22 April 2015
Case Number
Civil Appeals Nos 204 and 206 of 2014 and Summons No 197 of 2015
Procedural Posture
Civil Appeals (court of Appeal) / Judgment on Appeals and Summons for Fresh Evidence (final Disposition)
Outcome
Appeal in CA 206/2014 (Asplenium) allowed; appeal in CA 204/2014 (CKR) dismissed; summons for fresh evidence (SUM 197/2015) dismissed.
Legal Topics
On Demand Performance Bond, Unconscionability, Ouster Clause (jurisdiction), Injunctive Relief, Unfair Contract Terms Act
Source Language
English
Contract Law Equity Public Policy Construction Law Civil Procedure On Demand Performance Bond Unconscionability Ouster Clause (jurisdiction) +2 more

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Parties

CKR Contract Services Pte Ltd

Appellant (ca204); First Respondent (ca206); Main Contractor

Asplenium Land Pte Ltd

First Respondent (ca204); Appellant (ca206); Developer/employer

DBS Bank Ltd

Second Respondent; Issuer of on Demand Performance Bond; Neutral Party

Procedural Posture

Civil Appeals (court of Appeal) / Judgment on Appeals and Summons for Fresh Evidence (final Disposition)

Legal Issues

  1. 1 Whether clause 3.5.8 excluding restraint of calls on an on-demand performance bond (except for fraud) ousts the jurisdiction of the court and is void as contrary to public policy
  2. 2 Whether parties can contractually exclude the unconscionability ground for restraining calls on performance bonds
  3. 3 Whether CKR proved that Asplenium’s call was unconscionable

Ratio Decidendi

Clause 3.5.8 is a valid contractual limitation on the right to seek an injunction against a call on an on-demand performance bond (excluding fraud) and does not amount to an ouster of the court's jurisdiction or invalidate the clause as contrary to public policy; because no fraud was alleged, Asplenium was entitled to call the bond and CKR's unconscionability argument was immaterial, so Asplenium's appeal succeeded and CKR's appeal failed.

Court Disposition

Appeal in CA 206/2014 (Asplenium) allowed; appeal in CA 204/2014 (CKR) dismissed; summons for fresh evidence (SUM 197/2015) dismissed.

Orders

  • Asplenium's appeal allowed
  • CKR's appeal dismissed