[2011] 1 SLR 517 - Holland Leedon Pte Ltd - Singapore Law

518 SINGAPORE LAW REPORTS [2011] 1 SLR
(2) The Act drew a distinction between a party’s right to apply to court to
“determine any question of law arising in the course of the proceedings”,
contained in s 45(1) of the Act, and a party’s right to appeal to court “on a
question of law arising out of an award made in the proceedings”, contained in
s 49(1). The language of cl 21.7 was referable only to s 45(1) and was insufficient
to exclude the right of appeal in s 49(1): at [6].
(3) In the arbitration, the defendant did not challenge the EBIDTA agreed to
by the parties, and indeed it could not have done so as there were no warranties
as to the EBIDTA, nor fraud or patent error in the completion accounts. In these
circumstances, if the defendant’s claim was allowed to proceed, it would have the
effect of subverting a commonly used mechanism for determining the purchase
price in acquisitions of businesses and shares. Therefore, the arbitrator’s
decision that the plaintiff was allowed to pursue his claim as described was at
least open to serious doubt. Further, the issue related to a commonly used
commercial pricing mechanism and was of general public importance.
Section 49(5)(c)(ii) was therefore satisfied: at [9].
(4) It was doubtful that s 49(6) of the Act was a condition precedent to the
grant of leave (as opposed to a mere procedural requirement), since it was not
placed in s 49(5). In any case, the plaintiff was clearly disputing the effect of a
contractual term, and it was beyond controversy that the true construction of
contractual terms was a question of law: at [11].
Case(s) referred to
Essex County Council v Premier Recycling Ltd [2006] EWHC 3594 (folld)
Metalform Asia Pte Ltd v Ser Kim Koi [2009] 1 SLR(R) 369; [2009] 1 SLR 369
(refd)
Permasteelisa Pacific Holdings Ltd v Hyundai Engineering & Construction Co Ltd
[2005] 2 SLR(R) 270; [2005] 2 SLR 270 (folld)
Legislation referred to
Arbitration Act (Cap 10, 2002 Rev Ed) ss 45(1), 49(1), 49(2), 49(5), 49(6)
(consd);
ss 45, 49, 49(5)(a), 49(5)(b), 49(5)(c), 49(5)(c)(ii)
Sundaresh Menon SC, Sim Kwan Kiat and Farrah Salam (Rajah & Tann LLP) for
the plaintiff;
Chelva Rajah SC, Chew Kei-Jin and Moiz Haider Sithawalla (Tan Rajah & Cheah)
for the defendant.
17 September 2010 Judgment reserved.
Philip Pillai J:
1 This is the plaintiff’s application for leave to appeal against a summary
determination of issues (“the Decision”) by the sole arbitrator in the
arbitration between the parties in SIAC Arbitration No 069/DA17/05 (“the
Arbitration”). The plaintiff, Holland Leedon (“the Vendor”), is the
respondent in the Arbitration, while the defendant, Metalform Asia Pte Ltd