Tecnomar & Associates Pte Ltd v SBM Offshore N V

• Jurisdiction: Singapore
• Judge: Andre Maniam JC
• Judgment Date: 11 November 2020
• Neutral Citation: [2020] SGHC 249
• Court: High Court (Singapore)
• Docket Number: Suit No 897 of 2019 (Registrar’s Appeal No 166 of 2020)
• Year: 2020
• Published date: 14 November 2020
• Hearing Date: 25 August 2020
• Plaintiff Counsel: Peter Gabriel, Nandwani Manoj Prakash, Henry Li-Zheng Setiono and Selina Naidu (Gabriel Law Corporation)
• Defendant Counsel: Kenneth Tan SC (Kenneth Tan Partnership) (instructed), Loh Wai Yue, Alankriti Sethi and Chan Zijian Boaz (Incisive Law LLC)
• Citation: [2020] SGHC 249

Andre Maniam JC: Introduction

The plaintiff applied ex parte and obtained leave to serve process on the defendant out of jurisdiction. The defendant then successfully applied to set aside the ex parte order allowing service, and the service that had been effected. The learned assistant registrar (the “AR”) found that: (a) there was material non-disclosure in the plaintiff’s ex parte application, which justified setting aside the order and the service; and (b) the plaintiff did not have a good arguable case under Order 11 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”). The plaintiff appealed against the AR’s decision.

Before me, counsel for the plaintiff accepted that there had been material non-disclosure (see [122] below). But he contended that the plaintiff nevertheless had a good arguable case on the facts, all of which were now before the court, and that the court should exercise its discretion to let the ex parte order, and the service, stand.

I however agreed with the AR and dismissed the plaintiff’s appeal. The plaintiff has appealed against my decision, and these are my grounds.

Background The plaintiff’s case

The plaintiff is a Singaporean company. The defendant, a publicly-listed company incorporated in the Netherlands, is the holding company of the “SBM Offshore” group of companies, as stated in the defendant’s annual report.¹

The plaintiff’s claim against the defendant was for breach of contract for services rendered to the “Yetagun FSO” (the “Vessel”), a floating storage and offloading (“FSO”) unit, the plaintiff having undertaken the tank cleaning of the Vessel.²

The plaintiff claimed a contract between it and the defendant had been formed by an exchange of correspondence – specifically³ that the plaintiff’s quote in an e-mail of 10 April 2018 at 11.20pm (the “10 April Quote”)⁴ was accepted by an e-mail of 17 April 2018 at 11.56am (the “17 April E-mail”)⁵.

The plaintiff relied on the terms in the 10 April Quote, particularly clause 12. The Vessel had high levels of mercury, and clause 12 provided that in such an event, the plaintiff was to be indemnified and the contract was to be amended to take the appropriate remedial action.

After obtaining leave of court on 11 October 2019, the plaintiff effected service on the defendant in the Netherlands on 30 October 2019, and the defendant entered appearance on 4 November 2019. The plaintiff’s position then was that the contract included six appendices, namely, Appendix 1 to Appendix 6.

The plaintiff however then amended its Statement of Claim (“SOC”) on 25 November 2019 to delete reference to Appendix 6: see paragraph 9 of the Statement of Claim (Amendment No 1) (the “Amended SOC”).

The defendant’s case

The defendant denied the existence of any contract between it and the plaintiff. The defendant said that it was instead another company in the SBM Offshore group, South East Shipping Co Ltd (“SES”), that had contracted with the plaintiff. SES was a subsidiary of the defendant.⁶

Correspondence and discussions until the 17 April E-mail

On 30 March 2018, a Request for Quotation (“RFQ”) was sent by one Lee Sok Ling (“Ms Lee”) to the plaintiff’s Paul Hopkins (“Mr Hopkins”), for “FSO Yetagun tank cleaning prior to recycling”.⁷

Ms Lee used the e-mail address SokLing.Lee@sbmoffshore.com. Her e-mail reflected her designation as “Supply Chain Buyer”, had a “SBM Offshore” logo, and had a reference to the www.sbmoffshore.com website. It was copied to Carolina.Fonzar@sbmoffshore.com, the e-mail address of Carolina Fonzar dos Santos (“Ms Fonzar”), who was a Unit Operations Manager.⁸

Mr Hopkins replied on 6 April 2018 and attached the plaintiff’s “Technical/Commercial proposal”,⁹ which the plaintiff referred to as the “6 April Quote”.¹⁰ The 6 April Quote referred to four appendices.¹¹

The plaintiff amended the 6 April Quote on 10 April 2018, thereby producing the “10 April Quote”¹² (see paragraph 7 of the Amended SOC). The 10 April Quote referred to five appendices, the fifth of which (Port Agency and Crew Formalities) was included in an e-mail sent by Mr Hopkins on 10 April 2018 at 12.59pm.¹³ The 10 April Quote was then attached to Mr Hopkins’ e-mail of 10 April 2018, 11.20pm.¹⁴

On 11 April 2018 at 3.40pm, Ms Fonzar e-mailed Mr Hopkins seeking some clarifications.¹⁵ The fourth of these was: “Will Tecnomar provide any contract to SBM or should it be done under a PO only? If you have a contract, would you please provide its draft?” Mr Fonzar e-mailed again that day (11 April 2018 at 6pm)¹⁶ to say:

Dear Paul

Just one additional info, SBM is considering to make the work with you.

We are still evaluating our options but we are tending to go for your proposal.

If you can provide the draft of contract that you use to offer, I will appreciate and already share with my supply chain.

Thank you

On 12 April 2018, Mr Hopkins replied by e-mail to Ms Fonzar.¹⁷ He attached the plaintiff’s “DRAFT Standard Terms and Conditions (Appendix 6)” for her review and comments.¹⁸ He also provided clarifications in an attached “Annex 1”,¹⁹ which referred to the draft Appendix 6; the fourth clarification in Annex 1 reads as follows: Q. Will Tecnomar provide any contract to SBM or should it be done under a PO only? If you have a contract, would you please provide its draft? A. In this specific case and with the involvement of a 3rd party entity, ie the Shipyard, we will be operating at their facility and shall extend the Shipyard Standard Terms and Conditions, modified to suit this particular agreement.

The Terms and Conditions of the agreement we will attach to our Technical and Commercial submission as an appendix (appendix 6) and subsequently shall be happy for SBM to issue TECNOMAR with a Purchase Order to carry out the work. Please find attached our first draft Terms and Conditions for your early review and approval.

Ms Fonzar replied on the same day, 12 April 2018, to say (among other things):²⁰

…

I have shared the T&C with the supply chain for review.

Attached you have SBM standard terms and conditions, it is tailored for offshore work.

…

Your quotation is valid for 7 days. Would be possible to have it extended for other 7 days?

The “standard terms and conditions” Ms Fonzar referred to are titled, “Purchase Order General Terms And Conditions” (“PO General T&C”).²¹

There was then further correspondence between Ms Lee, Ms Fonzar and Mr Hopkins on 12 and 13 April 2018.²²

On 16 April 2018, Ms Fonzar e-mailed three further questions to Mr Hopkins²³ and Mr Hopkins duly replied.²⁴

In her 17 April E-mail to Mr Hopkins, Ms Fonzar referred to Mr Hopkins’ e-mail of 16 April 2018.²⁵ The plaintiff argues that its 10 April Quote was accepted by the 17 April E-mail, in which Ms Fonzar said:

Dear Paul

Thank you for the reply.

I am working on the PO issuance today to Tecnomar. Due to the value, I have to get many approvals in my internal process.

I will try to expedite the process and have it delivered to you latest tomorrow.

Just for formality, I am confirming that the working is being awarded to Tecnomar.

Just for update, the unit should be already free of its mooring lines but we had some delays for the mooring line disconnection, which is already the last phase of the disconnection.

Soon the vessel will be out of the email range.

Would you be able to provide a list of documents required to clear the vessel at its arrival?

Thank you

There was further correspondence between Mr Hopkins and Ms Fonzar later the same day, on 17 April 2018.

Mr Hopkins replied to the 17 April E-mail to say (among other things), “Thank you so very much for sharing the news with me and for placing your trust with TECNOMAR & Associates. We look forward to delivering to you and SBM the very best of our professional services and solutions.”²⁶

Ms Fonzar e-mailed Mr Hopkins some comments on the draft Appendix 6 that Mr Hopkins had provided earlier (see [16] above); she said, “The queries is [sic] much more about the difference between the T&C and your proposal.”²⁷ Evidently, Ms Fonzar did not think that she had formed a contract by the 17 April E-mail she had sent earlier that day, certainly not one incorporating the draft Appendix 6, which she was still commenting on. Nor did Mr Hopkins reply to say that any contract had been formed by the 17 April E-mail or to provide an indication that he thought the same.

Mr Hopkins simply replied to Ms Fonzar’s request for a list of documents required to clear the Vessel;²⁸ Ms Fonzar responded by sending him the vessel certificates.²⁹ The Certificate of Registry³⁰ showed that the owner of the Vessel was SES.

The plaintiff’s case was that, with the 17 April E-mail from Ms Fonzar, a contract had come into being between the plaintiff and the defendant. But had it? I consider this below at [49]–[92].

Purchase orders from SES, invoices to SES, and payment by SES

The next day, on 18 April 2018, Ms Lee e-mailed Mr Hopkins to say, “Please find attached a new purchase order from ‘SOUTH EAST SHIPPING CO LTD’ along with its Terms and Conditions.”³¹ She asked that Mr Hopkins confirm receipt of the e-mail by clicking on the link provided (the “PO Acknowledgment Link”) or the attached icon. She concluded by saying, “If you have any queries please contact me.”

The attached purchase order (“PO”) named SES as “Purchaser”, and the plaintiff as “Supplier”.³² The PO bore the SBM Offshore logo, and included the PO General T&C³³ which Ms Fonzar had sent Mr Hopkins on 12 April 2018 – see [17]–[18] above. The invoicing instructions in the PO also indicated that SES was an “SBM Company” – the plaintiff was asked to “[m]ention SBM Company Invoicing name and address”³⁴ and the PO specifically stated that the plaintiff should issue and send its invoice to SES c/o SBM Holding Inc. SA (which was another company in the SBM Offshore group, not the defendant).³⁵

The...