Does “day” in the SIA contract mean every day of the week, or does it exclude public holidays? The claimant in an adjudication argued that the word “day” under the SIA 9th Edition must follow the definition of “day” under the Building and Construction Industry Security of Payment Act (SOP Act) and exclude public holidays. The respondent disagreed, and argued that “day” simply meant every calendar day.
The respondent applied to set aside the adjudication determination obtained by the claimant. The respondent argued that the adjudication application was made too late, since the claimant had excluded public holidays in its counting of days when it should not have done so.
The High Court in Estate of Tay Choon Huat v Soon Kiat Construction [2020] SGHC 212 agreed with the respondent, held that the adjudication application had been made out of time, and set aside the adjudication determination . Maniam J held that the definition of “day” should be consistent throughout the SIA Conditions. “Day” was used in other clauses, such as the liquidated damages clauses, and clauses providing for notices to be given. As agreed by both parties, the word “days” in all these other clauses included public holidays. Thus, even for payment clauses, “days” should be given the same meaning, and should include public holidays.
This case can be contrasted with the earlier decision in UES Holdings v KH Foges [2018] 3 SLR 648, where Loh J in the High Court held that the word “day” in the payment clauses should follow the definition under the SOP Act and exclude public holidays. UES Holdings is explicable on the basis that the contract had provided expressly that “the relevant provisions of the SOPA shall apply to this Sub-Contract in respect of payment claim(s), payment response(s) and the date(s) on which progress payment(s) become(s) due and payable”.