Tecnomar & Associates Pte Ltd v SBM Offshore NV

• Jurisdiction: Singapore
• Judge: Steven Chong JCA
• Judgment Date: 13 April 2021
• Neutral Citation: [2021] SGCA 36
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 152 of 2020
• Published date: 16 April 2021
• Year: 2021
• Hearing Date: 09 April 2021
• Plaintiff Counsel: Gabriel Peter, Nandwani Manoj Prakash and Chang Guo En Nicholas Winarta Chandra (Gabriel Law Corporation)
• Defendant Counsel: Tan Wee Kheng Kenneth Michael SC (Kenneth Tan Partnership) (instructed), Loh Wai Yue, Chan Zijian Boaz and Alankriti Sethi (Incisive Law LLC)
• Subject Matter: Civil Procedure,Service,Out of jurisdiction,Material non-disclosure,Setting aside,Costs,Indemnity costs
• Citation: [2021] SGCA 36

Steven Chong JCA (delivering the grounds of decision of the court): Introduction

It cannot be gainsaid, in a claim brought for a breach of contract, that the identities of the contracting parties are of paramount and vital importance. This is elementary. It is axiomatic that a failure to properly identify the correct parties will inevitably lead to dire consequences for the claim. The present appeal is a stark demonstration of one such case. As we explain below, pursuing a hopeless claim on appeal against the wrong contracting party may also lead to dire costs consequences.

The appellant is a private company incorporated in Singapore, in the business of marine and offshore engineering consultancy. The respondent is a publicly listed company incorporated in the Netherlands, in the business of providing systems and services to the offshore oil and gas industry. The respondent is the holding company of the “SBM Offshore” group of companies.

Procedural history leading up to the present appeal

On 10 September 2019, the appellant commenced Suit No 897 of 2019 (the “Suit”) against the respondent. The Suit concerned a straightforward claim for breach of contract that the appellant alleges it had entered into with the respondent to provide decontamination, cleaning and preparation services for a vessel known as the “Yetagun FSO” (the “Vessel”) for “Green Ship” recycling. The appellant’s case is that a valid and binding contract had been concluded by way of (a) a quotation that its representative, Mr Paul Hopkins (“Mr Hopkins”), had sent to the respondent (representing the offer) on 10 April 2018 (the “10 April Quote”); and (b) the respondent’s subsequent reply (representing the acceptance) on 17 April 2018 (the “17 April Email”) that was sent by a Units Operation Manager for the Vessel, Ms Carolina Fonzar dos Santos (“Ms Fonzar”). The respondent’s case is that it did not conclude any such contract with the appellant and that the contract had instead been concluded between the appellant and its subsidiary, an entity known as South East Shipping Co Ltd (“SES”), the owner of the Vessel.

On 10 October 2019, the appellant filed Summons No 5063 of 2019 in the Suit, seeking leave to serve the Writ of Summons (the “Writ”) and Statement of Claim (the “SOC”) out of jurisdiction in the Netherlands (the “Leave Application”). The Leave Application was made pursuant to O 11 r 1 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (the “ROC”). In essence, the factual premise underlying the appellant’s Leave Application is that it had concluded a valid and enforceable contract with the respondent, such contract having been offered, accepted and formed in Singapore.

On 11 October 2019, the appellant’s Leave Application was heard ex parte and was subsequently granted by way of HC/ORC 6856/2019 (the “Service Order”).

On 30 October 2019, the appellant duly served the Writ and SOC on the respondent at its registered office in the Netherlands.

On 4 November 2019, the respondent entered appearance in the Suit.

On 18 November 2019, the respondent filed Summons No 5780 of 2019 (“SUM 5780”) seeking, pursuant to O 12 r 7 of the ROC, orders for the Service Order to be discharged and for the service of the Writ and SOC to be set aside, on the basis that there was “no full and frank disclosure in the affidavit of the [appellant] in support of its application to obtain [the Service Order]”.

On 29 July 2020, the learned Assistant Registrar (the “AR”) granted SUM 5780 and exercised her discretion to set aside the Service Order as well as the service of the Writ and SOC. The AR held that there had been non-disclosure of material facts by the appellant in its Leave Application and that the appellant had failed to demonstrate that it had “the better of the argument” that it had contracted with the respondent. Dissatisfied, the appellant appealed against the AR’s decision.

On 25 August 2020, the High Court Judge (the “Judge”) dismissed the appellant’s appeal against the AR’s decision and subsequently issued his clear and comprehensive grounds of decision in Tecnomar & Associates Pte Ltd v SBM Offshore NV [2020] SGHC 249 (the “Judgment”). The appellant then filed the present appeal against the Judge’s decision.

Our decision

The issues that lie to be determined in this appeal are hence: whether there was material non-disclosure in the appellant’s Leave Application; and if so, whether the Court should exercise its discretion to set aside the service of the Writ and SOC on the respondent and the Service Order?

Was there material non-disclosure in the Leave Application?

The nature of the Leave Application being an ex parte application, the appellant was subject to a duty of full and frank disclosure. This is a duty that is owed to the Court and is driven by the need for the Court to satisfy itself that the case is a proper one for service out of jurisdiction. Such a duty invariably extends to facts that may go towards rebutting the applicant’s claim (Manharlal Trikamdas Mody and another v Sumikin Bussan International (HK) Ltd [2014] 3 SLR 1161 at [78]).

At the outset of the appeal hearing, counsel for the appellant, Mr Peter Gabriel, readily acknowledged that there was material non-disclosure in the appellant’s Leave Application but sought to argue, albeit unconvincingly, that such non-disclosure was not deliberate. This was consistent with the appellant’s concession before the Judge below (see Judgment at [2] and [122]). In its Case, the appellant sought to rely on an alleged admission made by the respondent’s representative Mr Thomas Chapman (“Mr Chapman”), to contend that there was indeed such a contract concluded between the appellant and the respondent, on the terms of the 10 April Quote. In support of its argument, the appellant cites para 43(b) of Mr Chapman’s third affidavit dated 19 June 2020, in which he stated that it “cannot be said that the [respondent] failed ‘to amend agreement [sic] to take the appropriate remedial action’”. The appellant argues that in denying that it had failed to amend the “agreement” (and thus had not acted in breach), the respondent had implicitly admitted to having contracted with the respondent. In our judgment, this argument is misguided.

First, Mr Chapman’s third affidavit was filed after the Leave Application was heard. Whether there is material non-disclosure of facts has to be determined by reference to the facts disclosed at the time of the application. It does not lie in the appellant’s mouth to point to Mr Chapman’s third affidavit, which was filed close to eight months after the Leave Application, to claim that it had somehow fulfilled its duty of disclosure then. Second, and more fundamentally, the extract cited plainly does not amount to any admission as the appellant suggests. To do so is simply a woeful mischaracterisation of the statement in the affidavit. Mr Chapman had made that statement in the context of the appellant’s narrative that the respondent had failed to do anything in response to the levels of mercury and benzene detected in the Vessel. However, it is undisputed that it was in fact SES who issued a purchase order to engage the appellant’s services to address this very issue. The appellant’s argument also blithely disregards the position consistently taken by Mr Chapman in all his earlier affidavits that no such contract, on the terms of the 10 April Quote, was ever concluded between the appellant and the respondent.

In our view, we have no hesitation in finding that there was in fact material non-disclosure by the appellant in its Leave Application. It bears repeating that the duty of full and frank disclosure requires a party to furnish information which is relevant to the opponent’s case. The party may well disagree with the opponent’s case but it...