Contractors may still be liable for latent defects found years after completion, as they are by definition defects which are not readily apparent or discoverable. However, what if the defect was the fault of a supplier or subcontractor? This article will focus on a contractor’s liability in negligence and the defences he can use to escape such liability.
Liquidated damages (“LD”) clauses are a common measure for an employer to mitigate against delays caused by the main contractor. This same clause is often featured in subcontracts – they minimize the main contractor’s exposure to liability for delays caused by the subcontractor, and pass down the liability for LDs to the subcontractor. Unsurprisingly, LD clauses are one of the most common causes of disputes between main contractors and subcontractors as the payable amount can be quite substantial. This commentary will seek to explain the potential liability of a subcontractor for LDs arising from delays, and consider possible defences to be raised.
Far East Square Pte Ltd v Yau Lee Construction (Singapore) Pte Ltd  SGCA 36 concerned the Building and Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed) (the “SOPA”), which facilitates cash flow in the building and construction industry by providing a quick and efficient means of adjudicating (i.e. providing a formal judgement on) payment disputes with “temporary finality”.