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) |
Citation | [2021] SGCA 36 |
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
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
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
The issues that lie to be determined in this appeal are hence:
The nature of the Leave Application being an
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 [
First, Mr Chapman’s third affidavit was filed
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...
To continue reading
Request your trial-
6DM (S) Pte Ltd v AE Brands Korea Ltd
...[2007] 1 SLR 377 (refd) Shanghai Turbo Enterprises Ltd v Liu Ming [2019] 1 SLR 779 (refd) Tecnomar & Associates Pte Ltd v SBM Offshore NV [2021] SGCA 36 (folld) Thahir Kartika Ratna v PT Pertambangan Minyak dan Gas Bumi Negara (Pertamina) [1994] 3 SLR(R) 312; [1994] 3 SLR 257 (refd) Tomolug......
-
Lim Oon Kuin v Ocean Tankers (Pte) Ltd
...Progen Engineering Pte Ltd, Liquidators of v Progen Holdings Ltd [2010] 4 SLR 1089 (refd) Tecnomar & Associates Pte Ltd v SBM Offshore NV [2021] SGCA 36 (refd) Three Rivers District Council v The Governor and Co of the Bank of England (No 6) [2006] EWHC 816 (Comm) (refd) Traxiar Drilling Pa......
-
QBE Insurance (Singapore) Pte Ltd v Relax Beach Company Ltd
...SLR 371 (refd) Tan Ng Kuang Nicky v Metax Eco Solutions Pte Ltd [2021] 1 SLR 1135 (refd) Tecnomar & Associates Pte Ltd v SBM Offshore NV [2021] SGCA 36 (refd) Tjong Very Sumito v Antig Investments Pte Ltd [2009] 4 SLR(R) 732; [2009] 4 SLR 732 (refd) United States v Standard Brewery, Inc 251......
-
CDM & anor v CDP
...a case which fell within such an exceptional category was this Court’s recent decision in Tecnomar & Associates Pte Ltd v SBM Offshore NV [2021] SGCA 36, where we found that there had been “deliberate material non-disclosure” (at [28]) contrary to the duty of full and frank disclosure in an......
-
Conflict of Laws
...500 at [28], per Sundaresh Menon CJ. 9 Lakshmi Anil Salgaocar v Jhaveri Darsan Jitendra [2019] 2 SLR 372 at [53], per Steven Chong JA. 10 [2021] SGCA 36. 11 Tecnomar & Associates Pte Ltd v SBM Offshore NV [2021] SGCA 36 at [12]–[15] and [18]–[19]. 12 Tecnomar & Associates Pte Ltd v SBM Offs......