Singapore: In April, a decision of the Singapore Court of Appeal ruled that parties can contractually exclude the unconscionability exception to calls on on-demand bonds (CKR Contract Services Pte Ltd v Asplenium Land Pte Ltd [2015] 3 SLR 1041 (SGCA)) . The clause in question expressly stated that, except in the case of fraud, the contractor was not entitled to restrain a call on the unconditional performance bond that it provided to the employer on any ground, including unconscionability. The Court of Appeal’s decision signifies a progressive step in the law and affirmed, among other things, the position that where parties to a construction contract agree to limit the circumstances in which a contractor is entitled to seek an injunction restraining a call or demand made on an unconditional performance bond, ie to fraud only, Singapore courts will respect the parties’ autonomy to contract to such terms and enforce the restriction where it is reasonable. Fraud connotes dishonesty in making of the call and is harder to prove than unconscionability, which generally refers to unfair or reprehensible conduct. invalid. Netball NSW said that the injunction, pending resolution of the issue, would prevent it from incurring further costs in preparing its adjudication response. The court granted an injunction to prevent Probuild from enforcing any determination that arose from the adjudication process but not from taking any further steps in the adjudication. Netball NSWwas therefore required to proceed to prepare an adjudication response. Ball J found that on the balance of convenience Probuild would suffer more prejudice if it lost its rights to recover payments in accordance with the process under the Building and Construction Industry Security of Payment Act 1999 (NSW). His Honour concluded that the court does not have power to interfere with the statutory timetable and processes set out in the Act for the recovery of progress payments.
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