BCBC Singapore Pte Ltd and another v PT Bayan Resources TBK and another
Jurisdiction | Singapore |
Judge | Quentin Loh JAD |
Judgment Date | 07 February 2022 |
Neutral Citation | [2022] SGHC(I) 2 |
Court | International Commercial Court (Singapore) |
Docket Number | Suit No 1 of 2015 |
Published date | 12 February 2022 |
Year | 2022 |
Hearing Date | 09 January 2021,30 September 2020,23 September 2020,22 September 2020,25 September 2020,21 September 2020,29 September 2020,28 September 2020,24 September 2020 |
Plaintiff Counsel | Francis Xavier s/o Subramaniam Xavier Augustine SC, Disa Sim, Chia Xin Ran Alina, Tng Sheng Rong (Tang Shengrong), Ang Tze Phern, Edwin Tan, Foo Xian Fong, Timothy Chan, Tracy Gani and Zheng Yirong (Rajah & Tann Singapore LLP) |
Defendant Counsel | Davinder Singh s/o Amar Singh SC, Jaikanth Shankar, Tan Ruo Yu, Tan Mao Lin, Irina Golovkovskaya, Darren Low, Rajvinder Singh Chahal and Amarpall Singh (Davinder Singh Chambers LLC) |
Citation | [2022] SGHC(I) 2 |
This is the third and final tranche (“Tranche 3”) of these proceedings which arise from a joint venture between Australian and Indonesian companies to exploit a new technology to upgrade coal for commercial sale that ended in a series of disputes. This judgment deals with the issues of loss and damage claimed by the plaintiffs.
Background factsThe full facts of this case have been set out in
We will set out only those facts that are relevant to the issues raised in Tranche 3 and reference should be made to the three earlier judgments for the more complete facts. Unless otherwise specified, we adopt the abbreviations used in the
The second plaintiff, BCBC, holds the exclusive worldwide licence of a technology for the upgrading of sub-bituminous coal known as the Binderless Coal Briquetting Process or the BCB Process. The first plaintiff, BCBCS, is a company incorporated in Singapore. BCBC and BCBCS are indirect wholly-owned subsidiaries of the second defendant by counterclaim, White Energy Company Ltd, or WEC, a public-listed company incorporated in Australia.
The first defendant, BR, is a public-listed company incorporated in Indonesia that owns subsidiaries which operate sub-bituminous coal mines in Tabang, Indonesia. Of these subsidiaries, only Bara and FSP are material for present purposes. The second defendant, BI, is a company incorporated in Singapore and is an associated company of BR.
The JV DeedIn early May 2005, the Defendants learnt about the BCB Process from the sharing by Mr Clark, the then-general manager of BCBC, at a conference in Lexington, Kentucky. Further discussions followed, and eventually the JV Deed was executed between BCBC and BI on 7 June 2006.
Pursuant to the JV Deed, the parties agreed to construct and commission the Tabang Plant to exploit the BCB Process to upgrade sub-bituminous coal produced by the Defendants for commercial sale. The joint venture company, KSC, was incorporated in Indonesia in January 2007, with BCBCS and BI holding respectively 51% and 49% of its issued shares. In October 2008, BI sold its shares in KSC to BR, as part of BR’s corporate restructuring. By way of a Deed of Novation executed in 2009, BCBCS and BR were substituted for BCBC and BI respectively as the parties to the JV Deed. The Deed of Novation therefore aligned the identities of the parties to the JV Deed with the identities of the shareholders in KSC (namely, BCBCS and BR, holding respectively 51% and 49% of its shares).
Apart from the JV Deed, the parties also entered into a number of ancillary documents that amended the JV Deed and, more importantly, recorded their agreement on various issues that emerged in the course of the joint venture (see also the
The parties’ relationship subsequently deteriorated into a series of disputes, culminating in the commencement of these proceedings by the Plaintiffs against the Defendants. Tranche 1 concerned the scope and content of the parties’ contractual obligations in relation to the joint venture. We held the following:
However, we were not able to determine whether, based on the JV Deed, the PLFA, or the April 2011 Side Letter, BR was under an obligation to supply or assist in procuring the supply of coal to KSC in around the period between early November 2011 and 2 March 2012. This was because the evidence adduced in Tranche 1 was insufficient to enable us to answer the question of what coal KSC had required during that period of time (see
In Tranche 2, we determined issues relating to BR’s coal supply obligations and the alleged breaches of the parties’ contractual obligations under the joint venture. In respect of BR’s coal supply obligations, we held the following:
Each side accused the other of repudiatory breaches. In essence, we found that BCBCS had
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