Tan Siong Thye JC:
1. This is an appeal from the Assistant Registrar's decision not to set aside an Adjudication Determination made pursuant to the Building and Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed) ("SOP Act"). The Appellant, Mansource Interior Pte Ltd, which was the respondent in the Adjudication Determination, argued, inter alia, that the Adjudicator had wrongfully regarded its Adjudication Response as being lodged out of time and therefore should not have rejected it. I agreed with the Appellant in relation to this argument and allowed the appeal. The Respondent, Citiwall Safety Glass Pte Ltd, the claimant in the Adjudication Determination, is dissatisfied with my decision and has filed a Notice of Appeal. I now provide the grounds for my decision.
2. On 21 December 2012, the Respondent was awarded a sub-contract by the Appellant to undertake the supply and installation of wall finishes works at 1 Changi Business Park Central 1, Singapore. The sub-contract was valued at $1,252,750 and progress payments were to be made by the Appellant according to a Schedule of Payment in the sub-contract.
3. On 5 August 2013, the Respondent served on the Appellant a payment claim pursuant to s 10(1)(a) of the SOP Act. The claim was for $322,536.65, owed by the Appellant to the Respondent under the sub-contract. On 21 August 2013, the Appellant provided the Respondent with a payment response pursuant to s 11(1)(a) of the SOP Act. The response amount provided by the Appellant was $93,732.10, $228,804.55 less than that claimed by the Respondent.
Process leading up to Adjudication
4. As there was a dispute as to the amount owed by the Appellant to the Respondent, the Respondent decided to apply for Adjudication pursuant to The Respondent served on the Appellant a notice of intention to apply for Adjudication on 28 August 2013 pursuant to s 13(2) of the SOP Act. The Respondent also lodged an Adjudication Application with the Singapore Mediation Centre ("SMC"), the authorised nominating body, pursuant to s 13(1) of the SOP Act on the same day.
5. The SMC served the Adjudication Application on the Appellant on 29 August 2013 at 5.25pm as required by s 13(4)(a) of the SOP Act. Under s 15(1) of the SOP Act, the Appellant must lodge an Adjudication Response with the SMC within 7 days after receipt of the Adjudication Application from the SMC. The Appellant subsequently lodged its Adjudication Response with the SMC on 5 September 2013 at 4.32pm. However, Rule 2.2 of the SMC Adjudication Procedure Rules ("SMC Rules") stipulated that the "opening hours" of the SMC are from 9am to 4.30pm on weekdays and that any document lodged after 4.30pm shall be treated as being lodged the next working day.
The Adjudication Determination
6. In view of Rule 2.2 of the SMC Rules, the Adjudicator took the view that the Adjudication Response was lodged with the SMC on 6 September although it was lodged on the 5 September. Thus, the Adjudicator found that the Appellant failed to file the Adjudication Response within the 7-day time limit stipulated by s 15(1) of the SOP Act. Under s 16(2)(6) of the SOP Act the Adjudicator "shall reject any adjudication response that is not lodged within the period referred to in s 15(1)." Accordingly, he rejected the Adjudication Response.
7. In his Adjudication Determination dated 12 September 2013, the Adjudicator only considered the Respondent's written submissions attached to its Adjudication Application. He did not consider the Appellant's Adjudication Response as he had rejected it for being lodged out of time. The Respondent's Adjudication Application claimed for the entire shortfall of $228,804.55. The Adjudicator allowed nearly the entire amount claimed by determining that the Appellant was to pay the Respondent the sum of $223,956.50. The Appellant was also required to pay the Respondent's costs of the adjudication.
The proceedings leading up to the appeal
8. The Appellant did not make payment to the Respondent in accordance with the Adjudication Determination. On 20 September 2013, the Respondent took out an originating summons against the Appellant seeking to enforce the Adjudication Determination. The Respondent subsequently obtained an order of court dated 24 September 2013 and judgment dated 26 September 2013 requiring the Appellant to make payment pursuant to the Adjudication Determination.
9. The Appellant then filed a summons on 18 October 2013 seeking to set aside the Adjudication Determination. The application was heard before the Assistant Registrar.
The decision of the Assistant Registrar
10. Before the Assistant Registrar, the Appellant argued that the Adjudication Determination should be set aside because:
(a) the Adjudicator wrongly rejected the Appellant's Adjudication Response as it was not lodged out of time;
(b) the Adjudication Application was made fraudulently and/or in bad faith as the Plaintiff had misrepresented the amount of its claim; and
(c) the Adjudicator failed to accord due consideration to the materials before him.
11. The Assistant Registrar dismissed the last two grounds on the basis that the Appellant's arguments went to the merits of the payment claim which the court was prohibited to consider. She also found no evidence of fraud or bad faith. As for the first ground relating to the Adjudication Response, the Assistant Registrar found that the SMC Rules were promulgated pursuant to s 28(4)(e) of the SOP Act and that these rules applied to the Appellant. Consequently, she found that the Adjudication Response was lodged out of time in light of Rule 2.2 of the SMC Rules as it was filed two minutes after the close of the opening hours which was 4.30pm on 5 September 2013. For these reasons, she also dismissed the first ground relied upon by the Appellant with fixed costs to the Respondent.
12. The Appellant was dissatisfied with the decision of the Assistant Registrar and appealed against her decision. For this appeal, the Appellant relied on all three grounds of setting aside that were before the Assistant Registrar. I allowed the Appellant's appeal on the ground that the Adjudicator had wrongfully rejected the Adjudication Response on the erroneous premise that it was lodged out of time. However, I did not agree with the Appellant's other submissions in relation to fraud and the failure of the Adjudicator to consider the material before him properly.
Wrongful rejection of the Appellant's Adjudication Response
The timeline for lodging an Adjudication Response
13. Section 15(1) of the SOP Act states that a respondent to an adjudication claim "shall, within 7 days after receipt of a copy of an adjudication application under s 13(4)(a), lodge with the authorised nominating body a response to the adjudication application." There is no provision under the SOP Act to explain the computation of time. However, s 50(a) of the Interpretation Act (Cap 1, 2002 Rev Ed) provides some guidance on the computation of time in the absence of contrary intention found in the particular statute:
[A] period of days from the happening of an event or the doing of any act or thing shall be deemed to be exclusive of the day on which the event happens or the act or thing is done ...
14. In this case, the Appellant received the Respondent's Adjudication Application at 5.25pm on 29 August 2013. Applying s 50(a) of the Interpretation Act, the 7-day time limit should only start running on 30 August 2013 since it shall be exclusive of 29 August 2013.
15. What constitutes a day? Section 2 of the SOP Act defines day as "any day other than a public holiday within the meaning of the Holidays Act". This definition is not helpful in this case. A day should nonetheless be given its plain and ordinary meaning. In Black's Law Dictionary (Bryan A Garner ed) (West Group, 9th Ed, 2009) at p 453, "day" is defined as "[a]ny 24-hour period; the time it takes the earth to revolve once on its axis". Jowitt's Dictionary of English Law vol 1 (Daniel Greenberg ed) (Sweet and Maxwell, 3rd Ed, 2010) defines "day" at p 638 as "any period of 24 hours beginning with one midnight and ending with the next". I also find support for this 24¬hour interpretation of day in the Malaysian case of Khoo Chee Peng v Menteri Hal Ehwal Dalam Negeri and Ors  6 MLJ 646 where it is stated that "[a] day is a period of 24 hours." A 7-day time period that only starts running on 30 August 2013 ends on 5 September 2013. The last day for lodging of the Adjudication Response with the SMC would then be anytime before midnight of 5 and 6 September 2013 as midnight straddled on both dates. As long as the Appellant is deemed to have lodged its Adjudication Response on or before 2359 hours of 5 September 2013, then it is lodged within time. If this is not so, then s 16(2)(6) of the SOP Act requires the Adjudicator to reject the Adjudication Response.
The SMC Rules
16. In this case, the parties do not dispute the fact that the Appellant's Adjudication Response was lodged with the SMC at 4.32pm on 5 September 2013. However, Rule 2.2 of the SMC Rules provides that:
All documents to be lodged with SMC shall be lodged during the opening hours of 9.00 am to 4.30 pm from Monday to Friday (except public holidays) and 9.00 am to 12.00 noon on the eves of Christmas, New Year and Chinese New Year. SMC reserves the right to reject documents submitted after opening hours. If however, SMC accepts such documents, they shall be treated as being lodged the next working day.
After the lodging of the Adjudication Response by the Appellant on 5 September 2013, Ms Zivile Zukauskaite, Assistant Manager of SMC, wrote to the Respondent and the Adjudicator. In a letter dated 6 September 2013, it is stated that:
An Adjudication Response was lodged by Mansource Interior Pte Ltd with the Singapore Mediation Centre on 5 September 2013 at 4.32pm and it would be considered as lodged the following day as it was lodged after 4.30pm.
17. During the Adjudication Determination, the Adjudicator applied Rule 2.2 of the SMC Rules and deemed the Appellant's Adjudication Response to be lodged with the SMC on 6 September 2013. Therefore, he held that the Adjudication Response was lodged out of time and rejected it in accordance with s 16(2)(b) of the SOP Act. He would not have done so in the absence of Rule 2.2 of the SMC Rules.
18. The Appellant submitted that the Adjudicator was wrong in doing so because he should not have relied on Rule 2.2 of the SMC Rules. This is because the enactment of Rule 2.2 of the SMC Rules is ultra vires the powers of the SMC granted under the SOP Act. I shall now give my reasons on this issue.
The role of the SMC
19. It is necessary to examine the role of the SMC within the framework of the SOP Act. As described by Mr Cedric Foo Chee Keng, then Minister of State for National Development, during the Second Reading of the Building and Construction Industry Security of Payment Bill, Singapore Parliamentary Debates, Official Report (16 November 2004) vol 78 at col 1117:
The Minister will appoint an Authorised Nominating Body (ANB) to administer the adjudication process. For a start, the Singapore Mediation Centre (SMC) will be appointed as the ANB. SMC is familiar with payment disputes and issues in the construction industry. More ANBs may be considered in future, as and when necessary. Besides administering the adjudication process, the ANB will train, certify and maintain a register of adjudicators, including establishing their fees. The fees will be capped so that adjudication will remain affordable.
20. Aside from training, certifying and maintaining a register of adjudicators, the main role of the SMC is as an administrator of the adjudication process. In particular, the SMC is in charge of appointing an adjudicator. Other than that, the SMC merely serves as a conduit for the service of documents between the claimant, the respondent and the adjudicator. This is illustrated by the fact that, under the SOP Act, the SMC is in charge of dissemination of the Adjudication Application lodged by the claimant, the Adjudication Response lodged by the respondent and the Adjudication Determination issued by the adjudicator. Following from this, as an administrator of the adjudication process, the SMC is empowered under s 28(4)(e) of the SOP Act to:
... facilitate the conduct of adjudications under this Act, including the establishing of rules therefor not inconsistent with this Act or any other written law, and provide general administrative support therefore ...
This forms the basis for the establishment by the SMC of the SMC Rules.
Rule 2.2 of the SMC Rules
21. The SMC Rules must be established for the purposes of facilitating the adjudication process only and should not affect the substantive rights of the parties under the Act. It is solely the Adjudicator's duty is to determine the rights of the parties. This duty includes the consideration of whether a document is filed in time or out of time. I find support for this in the decision of Lee Seiu Kin J in W Y Steel Construction Pte Ltd v Osko Pte Ltd  SGHC 194 who noted at :
The plaintiff's complaint in this regard was that the adjudicator had not permitted the adjudication response it had attempted to file on 2 May 2012 to be taken into consideration. I noted that the SMC had not permitted the plaintiff to file an adjudication response on that date on the ground that it was late. I would comment that the SMC has no role in determining whether an adjudication response is late, much less prevent a respondent from filing it as a result of such conclusion. The SMC's role is only to accept whatever document is filed and to note the time and date of filing. The decision whether it is late, and the consequence of that, should be left to the adjudicator to make, [emphasis added]
This aspect of Lee J's decision was approved of by the Court of Appeal in W Y Steel Construction Pte Ltd v Osko Pte Ltd  3 SLR 380 ("W Y Steel Construction") at .
22. The SOP Act and the relevant subsidiary legislations have not empowered SMC to decide whether a document is lodged within or out of time. I agree with Lee J's observation that the function of the SMC is confined to its administrative duty of receiving documents and taking note of the time and date of filing.
23. In this case, the Adjudication Response was lodged with SMC at 4.32pm on 5 September 2013. Rule 2.2 of the SMC Rules has a provision that provides that documents filed past 4.30pm on a working day are deemed to be filed on the next day for the purposes of the SOP Act. However, the deadline under the SOP Act would have been any time before 2359 hours of 5 September 2013. Therefore, when the Appellant lodged its Adjudication Response at 4.32pm, it would still be within the 7-day time limit prescribed by s 15(1) of the SOP Act. In these circumstances, it was wrong for the SMC Rules to deem that the Appellant's Adjudication Response was lodged out of time the following day. In other words, the operative provision is s 15(1) of the SOP Act, not Rule 2.2 of the SMC Rules.
24. It is not the role of the SMC to create rules that stipulate that a document lodged at 4.32pm on 5 September 2013 is deemed to be lodged out of time on 6 September 2013. It was for the Adjudicator to determine, in accordance with the SOP Act and not the SMC Rules, whether a document lodged at 4.32pm on 5 September 2013 was deemed to be lodged within time on 5 September 2013 or out of time on 6 September 2013. Unfortunately, the Adjudicator relied on Rule 2.2 of the SMC Rules to dismiss the Adjudication Response. He should have instead accepted the Adjudication Response as it was filed within the 7-day time limit as prescribed under the SOP Act.
Grounds for setting aside
25. The grounds for the setting aside of an Adjudication Determination are limited. As stated by the Court of Appeal in Lee Wee Lick Terence (alias Li Weili Terence) v Chua Say Eng (formerly trading as Weng Fatt Construction Engineering) and another appeal  1 SLR 401 ("Chua Say Eng") at -:
Turning now to the court's role in a setting-aside action, we agree with the holding in SEF Construction ( supra) that the court should not review the merits of an adjudicator's decision. The court does, however, have the power to decide whether the adjudicator was validly appointed. If there is no payment claim or service of a payment claim, the appointment of an adjudicator will be invalid, and the resulting adjudication determination would be null and void.
Even if there is a payment claim and service of the payment claim, the court may still set aside the adjudication determination on the ground that the claimant, in the course of making an adjudication application, has not complied with one (or more) of the provisions under the Act which is so important that it is the legislative purpose that an act done in breach of the provision should be invalid, whether it is labelled as an essential condition or a mandatory condition. A breach of such a provision would result in the adjudication determination being invalid.
[emphasis in original]
The court is, therefore, not allowed to review the merits of an adjudicator's decision and setting aside must be premised on issues relating to the jurisdiction of the Adjudicator. In this case, the rejection of the Adjudication Response does not relate to the jurisdiction of the Adjudicator.
26. Nonetheless, there is another ground for setting aside if it relates to natural justice. Section 16(3)(c) of the SOP Act requires an Adjudicator to "comply with the principles of natural justice". An Adjudication Determination may therefore be set aside if the Adjudicator failed to comply with the rules of natural justice: SEF Construction Pte Ltd v Skoy Connected Pte Ltd  1 SLR 733 at . The question is whether a wrongful rejection of the Adjudication Response amounts to a denial of natural justice.
27. This would relate to the Appellant's opportunity to be heard before the Adjudicator. I find guidance on this issue from the Court of Appeal's decision in W Y Steel Construction. In that case, the respondent in the Adjudication Determination failed to file a payment response and the Adjudicator rejected its Adjudication Response in accordance with s 15(3) of the SOP Act. Sundaresh Menon CJ, in delivering the grounds of decision of the court, noted at  that:
... Section 16 sets out generally the rules relating to the commencement of an adjudication and the adjudication process. Under s 16(3)(c) an adjudicator must comply with the principles of natural justice; these must include the duty to give the parties adequate notice and an opportunity to be heard. However, these rules are always contextual. We have already discussed the centrality of the concept of temporary finality to the adjudication scheme of the Act. A respondent is given a chance to respond to a payment claim by producing, first, a payment response and then (if the claimant proceeds to apply for adjudication of his payment claim) an adjudication response. If he fails to provide a payment response and if, as a result, the adjudicator is mandated not to consider material that he seeks to introduce later, he has not been denied his right and opportunity to be heard. Rather, he has simply chosen not to exercise it and the rules of natural justice cannot then be called in aid. Simply put, in such a scenario, the respondent has had his opportunity, for the purposes of the hearing that culminates in the provisional ruling that has temporary finality, to make his case and he has failed to take that opportunity.
28. Applying this reasoning to this case, a respondent is given a chance to respond to an Adjudication Application by lodging an Adjudication Response. If he fails to lodge the Adjudication Response within time, the adjudicator is mandated by s 16(2)(b) of the SOP Act not to consider the Adjudication Response. This does not mean that the respondent has been denied his right and opportunity to be heard. Rather, by failing to lodge it within time, he has chosen not to exercise it and he cannot call on the rules of natural justice to assist him. However, if the Adjudication Response is lodged within time, the respondent has chosen to exercise his opportunity to be heard. In such a case, if the Adjudication Response is deemed by the Adjudicator to be lodged out of time wrongly and rejected, the respondent is wrongly denied his opportunity to be heard. The respondent may then rely on the rules of natural justice and have the Adjudication Determination set aside.
29. In this case, the Adjudicator had wrongly rejected the Appellant's Adjudication Response. He was wrong in finding that it was lodged out of time by relying on Rule 2.2 of the SMC Rules. The Appellant had chosen to exercise his opportunity to be heard by lodging the Adjudication Response within time but was wrongly denied this opportunity. The Adjudicator proceeded to make an Adjudication Determination without considering the Appellant's Adjudication Response. I, therefore, found that the Adjudication Determination should be set aside on the ground that the rules of natural justice were breached. This alone is sufficient ground for allowing the appeal of the Appellant. Nonetheless, I proceed to give my reasons for rejecting the Appellant's other two submissions relating to fraud and the Adjudicator's failure to consider the material before him.
30. The Appellant argued that the Respondent had misrepresented the value of its claim in its Adjudication Application and, therefore, the Respondent's claim was made fraudulently or in bad faith. The basis of this allegation was that there was a joint survey of the work site conducted by the Appellant, the Respondent and a third party on 31 August 2013. The Appellant submitted that, pursuant to the joint survey, all three parties agreed on the actual quantities in relation to work done by the Appellant as of 31 August 2013. However, the quantities claimed by the Respondent in its Adjudication Application were higher than those agreed upon between the Respondent and the Appellant on 31 August 2013.
31. Although there have been no cases that have held that fraud should be a ground for setting aside an Adjudication Determination, I am of the opinion that it is a valid ground for setting aside. I do not think that a court is prevented from intervening if it is later discovered that the certificate upon which an adjudication decision is based is discovered to have been issued by a certifier who has been bribed or by a certifier who has been fraudulently misled by the contractor into issuing the certificate based on a fraudulent valuation. As stated by Denning LJ in Lazarus Estates v Beasley  1 QB 702 at 712:
. No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgement of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it distinctly pleaded and proved; but once it is proved, it vitiates judgements ...
This passage was cited with approval by the Court of Appeal in Su Sh-Hsyu v Wee Yue Chew  3 SLR(R) 673 at . Accordingly, a finding of fraud is a good ground for setting aside an Adjudication Determination.
32. However, I am unable to make a finding of fraud here. Although the Respondent did agree with the Appellant on the value of the quantities on 31 August 2013, this was only done after the Respondent lodged its Adjudication Application on 28 August 2013. Thus the Respondent could not be said to have fraudulently lodged its Adjudication Application if the agreement between the Appellant and the Respondent did not even exist then. If anything, it was for the Appellant to include the agreement in its Adjudication Response so that it may be presented before the Adjudicator. On the whole, there was a lack of evidence that would justify the making of such serious allegations such as fraudulent conduct or bad faith.
Failure of the Adjudicator to consider the material before him
33. The Appellant also argued that the Adjudicator had merely rubber- stamped the Respondent's payment claim without applying his mind to it. As stated by the Court of Appeal in W Y Steel Construction at -:
In our judgment, under s 17(3) of the [SOP] Act, even where no response has been filed, an adjudicator must make a determination, and in doing so, it is incumbent on him to consider the material which is properly before him and which he is permitted and, indeed, obliged to consider. In such circumstances, there is nothing to stop a respondent who has failed to file any payment response or adjudication response from raising patent errors on the face of the material properly before the adjudicator to contend that the payment claim should not be allowed in part or at all. We reiterate that such errors must be plain and evident on the face of the material that is properly before the adjudicator.
In our judgment, an adjudicator is bound to consider the payment claim before him and cannot make his determination as if the fact that the respondent has not filed a response obviates the need for him to consider the material properly before him. The adjudication does not become a mere formality. The adjudicator is obliged to adjudicate, and in discharging this obligation, he must consider the material properly before him and make an independent and impartial determination in a timely manner: see s 16(3)(a). ...
[emphasis in original]
34. In this case, the Appellant was not seeking to rely on errors manifest from the material that was properly before the Adjudicator. Rather, it was seeking to remedy the consequences of the rejection of its Adjudication Response. Significantly, the Adjudication Determination expressly stated at  that:
In conclusion, based on the evidence before me, namely, the Claimant's Adjudication Application and the Respondent's payment response for the purposes of the Act, it is therefore my determination that the Claimant has succeeded substantially in their claim of S$223,956.50 (excluding GST; see C10 in the Table above). This is hereby recorded as the Adjudicated Amount.
An Adjudicator cannot be said to have rubber-stamped the claimant's payment claim if he had also considered the respondent's payment response. Furthermore, in this case, the amount of the claim allowed by the Adjudicator was in fact lower than that claimed in the claimant's payment claim. The Adjudicator clearly applied his mind to the material properly before him and accordingly, the Appellant's argument failed on this ground. If the crux of the Appellant's argument is instead that the Adjudicator had not applied his mind correctly (as opposed to he did not apply his mind at all), then that argument would fail as well as it has been decided that it is not for the court to examine the merits of the Adjudicator's deliberation: Chua Say Eng at .
35. For the above reasons, I allowed the Appellant's appeal against the decision of the Assistant Registrar. I also awarded costs fixed at $5,000 inclusive of disbursement.
1. Appellants Bundle of Documents, Tab 7, p 21, paras 4“5.
2. Appellants Bundle of Documents, Tab 7, p 22, para 6.
3. Appellants Bundle of Documents, Tab 7, p 22, para 8.
4. SOP Act to claim for the shortfall of $228,804.55.4.
4. Appellants Bundle of Documents, Tab 7, p 25, Table below para 21, Row 10 of Column B.
5. Appellants Bundle of Documents, Tab 7, p 22, para 9.
6. Appellants Bundle of Documents, Tab 4, p 3, para 8 and p 105, para 4.
7. Appellants Bundle of Documents, Tab 7, p 24, paras 17“18.
8. Appellants Bundle of Documents, Tab 7, p 19.
9. Appellants Bundle of Documents, Tab 7, p 23, para 15.
10. Appellants Bundle of Documents, Tab 7, p 25, para 22.
11. Appellants Bundle of Documents, Tab 7, p 27, para 29.
12. Appellants Bundle of Documents, Tab 7, p 7, para 31.
13. Appellants Bundle of Documents, Tab 7, p 8, para 34.
14. Appellants Bundle of Documents, Tab 7, p 8, para 35.
15. Appellants Bundle of Documents, Tab 7, p 9, para 38.
16. Notes of Arguments before the AR, 30 December 2013, p 7, lines 20“24.
17. Notes of Arguments before the AR, 30 December 2013, p 7, lines 15“20.
18. Notes of Arguments before the AR, 30 December 2013, p 7, lines 9“15.
19. Notes of Arguments before the AR, 30 December 2013, p 8, lines 9“10.
20. Appellants Bundle of Documents, Tab 7, p 131.
21. Appellants Bundle of Documents, Tab 4, p 11, para, 36.
22. Appellants Bundle of Documents, Tab 4, pp 228“232.
23. Appellants Bundle of Documents, Tab 7, p 26, para 23.