Concordia Agritrading Pte Ltd v Cornelder Hoogewerff (Singapore) Pte Ltd

• Jurisdiction: Singapore
• Judgment Date: 13 October 1999
• Date: 13 October 1999
• Docket Number: Originating Summons No 581 of 1999 (Registrar's Appeal No 282 of 1999)
• Court: High Court (Singapore)

Concordia Agritrading Pte Ltd

Plaintiff

and

Cornelder Hoogewerff (Singapore) Pte Ltd

Defendant

[1999] SGHC 269

Lim Teong Qwee JC

Originating Summons No 581 of 1999 (Registrar's Appeal No 282 of 1999)

High Court

Arbitration–Agreement–Incorporation–Incorporation by reference–Whether arbitration agreement incorporated by reference–Contract–Contractual terms–Arbitration clause–Whether arbitration clause incorporated into contract–Words and Phrases–“Liability”

The plaintiff had entered into a service agreement (“the Agreement”) with the defendant to provide warehouse management services. It was provided in the agreement at cl 8.3 that “the liability of [the defendant] to [the plaintiff] in respect of any claims for loss or damage to or expenses arising from the Commodities or in respect of the Warehouse Management Operations shall be subjected to [the defendant's] Warehousing and Forwarding Conditions [ (“the warehousing conditions”)] to the extent not specified by this Agreement”. It was provided in the warehousing conditions at cl 38 that “ [a]ll disputes which may arise between the Company and the Customer shall be referred to arbitration … under and in accordance with the Arbitration Act …”.

The plaintiff later made a claim to arbitration over an alleged shortfall and deterioration of goods. The defendant declined arbitration and took no step to appoint arbitrators. The plaintiff subsequently applied unsuccessfully for arbitrators to be appointed. On appeal, in the High Court, the plaintiff argued that cl 8.3 of the Agreement incorporated, by reference, the warehousing conditions, including cl 38 which provided for arbitration.

Held, dismissing the appeal:

(1) Whether the Agreement incorporated, by reference, cl 38 would be a question of construction. There had to be clear intention to do so. If the words of incorporation were specific, that intention might well have been clearly expressed: at [16].

(2) The correct construction of cl 8.3 of the Agreement would be that it would only be the “liability” to the “extent not specified by Agreement” that would be “subjected to” the warehousing conditions and “liability” would not include the method of adjudication or settlement of disputes. There could therefore be no incorporation of cl 38 of the warehousing considerations, as cl 38, which was an agreement between the parties to refer their disputes to arbitration, set out a method for resolving disputes: at [26] and [27].

[Observation: There might well be an exceptional case where “liability” might have an extended meaning, viz, one which included the resolving of disputes as to liability, if the relevant clause stated something like this: “The liability of the parties shall be subject to the warehousing conditions including the arbitration clause.”: at [24] and [25].]

Aughton Ltd v MF Kent Services Ltd [1992] ADRLJ 83 (refd)

Nerarno, The [1996] 1 Lloyd's Rep 1 (refd)

Star-Trans Far East Pte Ltd v Norske-Tech Ltd [1996] 2 SLR (R) 196; [1996] 2 SLR 409 (folld)

T W Thomas & Co, Limited v Portsea Steamship Company, Limited [1912] AC 1 (refd)

Varenna, The [1984] QB 599; [1983] 2 Lloyd's Rep 592 (refd)

Arbitration Act (Cap 10,1998 Rev Ed)s 2

International Arbitration Act (Cap 143A, 1995 Rev Ed)ss 5 (2) (b) (ii), 26 (3),First ScheduleArt 7 (2)

Rules of Court (Cap 322,R 5, 1997 Rev Ed)O 7r 3 (1)

Kenneth Pereira and Marcus Yip (Allen & Gledhill) for the plaintiff

Belinda Ang Fong Saw Ean SC and Anna Quah (Ang & Partners) for the defendant.

Lim Teong Qwee JC

1 This is an appeal against the decision of the deputy registrar dismissing the plaintiff's application for Mrs Schenk, Mr Neeman and Mr Van Gool to be appointed “arbitrators in the claim by the plaintiff against the defendant pursuant to an agreement dated 13 November 1995 made between the plaintiff and the defendant”. At the conclusion of the hearing on 28 July 1999 I dismissed the appeal. The plaintiff has given notice of appeal and these are my written grounds.

2 The application was made by originating summons. Order 7 r 3 (1) provides that every originating summons must include a statement of the questions on which the plaintiff seeks the determination of the court or as the case may be a concise statement of the relief or remedy claimed in the proceedings. This originating summons states:

By this summons the plaintiff seeks the determination of the court on the following:-

No question is then stated. Instead an order for the appointment of arbitrators is asked for. This is the relief or remedy claimed. Order 7 r 3 (1) goes on to provide that where a statement of the relief or remedy claimed is included there must be sufficient particulars to identify the cause or causes of action. This originating summons has not given such particulars. Nothing turns on these irregularities but I have encountered them very often and I think it is right that attention is drawn to the requirements of O 7 r 3 (1).

The agreement dated 13 November 1995

3 In this agreement between the parties the plaintiff is referred to as “CAT” and the defendant as “CHS” and I shall refer to them as such. I shall also refer to this agreement as “the service agreement”. The service agreement provides by way of a recital:

CAT carries on the business of a trading company, trading in commodities and has entered into a series of contracts with Lam Guan Chan (Pte) Ltd … (hereinafter referred to as 'LGC') for the delivery of Latin American and USA origin bulk Commodities.

The Conditions of sale are CAD ex Warehouse in either Sembawang Port, Port Butterworth or Port Klang within 90 days from Vessel Discharge Date.

CHS carries on the business of an Independent Warehouseman and In-house Surveyor and having the ability to provide Warehouse Management to control the inventory.

To ensure that the commodities supplied by CAT to LGC are controlled both CAT and LGC agree to accept the Warehouse Management Services provided by CHS.

“CAD” probably means “cash against documents” but no attempt has been made by either party to say what it stands for. LGC is not a party to the service agreement although it is provided that both CAT and LGC agree to accept...