sundays and public holidays

​“Oh, you can kiss me on a Monday
A Monday, a Monday is very, very good
Or you can kiss me on a Tuesday
​A Tuesday, a Tuesday, in fact I wish you would

Or you can kiss me on a Wednesday
A Thursday, a Friday and Saturday is best
But never, never on a Sunday
A Sunday, a Sunday, 'cause that's my day of rest
 
~ Never On A Sunday, Hadjidakis Manos
 
Song URL: spotify:track:5p9665dohkxpQlyGwjB9Bk
 
This song won the Oscar for the Best Song in 1960 and still sounds great.
 
It is an apt  introduction to the topic of Sundays and Public holidays covered in this blog post
 
Sundays
 
In the case of Audi Construction Pte Ltd v Kian Hiap Construction Pte Ltd [2017] SGHC 165, the construction contract stated that payment claims must be served on the “20th day of each calendar month”. However, 20th November 2016 fell on a Sunday and the claimant decided to serve its payment claim (PC) on Monday, 21st November 2016 instead.
 
The respondent did not provide a payment response (PR) and the claimant succeeded in obtaining an adjudication determination (AD) against the respondent. Later, the respondent applied to the High Court to set aside the AD. One of the main grounds relied on by the respondent was the wrong date of service of the PC.
 
The claimant argued that it was impossible to serve the PC on a Sunday as the respondent’s offices were closed. Justice Lee Seiu Kin disagreed. He held hat under the contract, the PC must be served on the 20th day of the month, not sooner or later. It was possible to serve the PC on a Sunday. This could be done by email or by leaving the documents outside the respondent’s office. “It would not lie in the mouth of the respondent to reject” such service when the contract had specified service on a day that its office was closed.
 
The AD was thus set aside by the High Court.
 
 (Click "read more" to read the rest of the post)

​Public Holidays 
 
In the case of UES Holdings Pte Ltd v KH Foges Pte Ltd [2017] SGHC 165, the High Court considered the issue of whether public holidays should be excluded when counting the period for providing a payment response (PR) under a construction contract.
 
The relevant clauses in the construction contract stated that: -
 
“2 (h) Payment response and issuance of interim valuation certificate shall be within twenty-one (21) days from the submission cut-off date (25th of the month) …”
 
“19.1. The supplier agrees and accepts that the relevant provisions of the SOPA shall apply to this Sub Contract in respect of payment claims(s), payment response(s) and the date(s) on which progress payment(s) become(s) due and payable”
 
The key issue was whether Public Holidays (PH) should be excluded when interpreting the word “days” in Clause 2(h). This was crucial here because if PH was not excluded, the adjudication application would have been lodged out of time by one day and the AD would be set aside. The relevant PH was the Hari Raya Haji which occurred in the 21-day period for the provision of the PR under clause 2(h).
 
Justice Quentin Loh held that PH should be excluded. He opined that considering Clause 19.1; both parties had contracted with the provisions of the SOP Act in mind. Accordingly, if the contract used the same terms as in the SOP Act, the terms of the contract should be interpreted in accordance with the SOP Act “unless the context yields a different interpretation.”  In this instance, “days” under the SOP Act excluded PH and thus “days” in Clause 2(h) of the contract should be interpreted likewise. There was nothing in the contract to suggest a different interpretation.
 
Comments 
 
Lessons learnt from these cases: -
 
1. Sunday or PH is not necessarily a “day of rest”. PC and PRs may be served on Sunday and PH unless expressly provided otherwise in the construction contract.
 
2. PH are not “automatically” excluded in counting of days for the service of PR in construction contracts. Whether PH is excluded will depend on the terms of the construction contract.
 
3.  The terms of the construction contract must be carefully considered to assess the proper time for service of a PC and a PR. Parties who are unclear should seek legal advice.

Warmest Regards

Tan Joo Seng
Building Construction Lawyer
​15 July 2017