Creek Bridge General Trading Co LLC v Cresdev Marketing Pte Ltd

• Jurisdiction: Singapore
• Judge: Seah Chi Ling
• Judgment Date: 18 May 2012
• Neutral Citation: [2012] SGDC 113
• Court: District Court (Singapore)
• Docket Number: DCA 8 of 2012, DC Suit No. 877 of 2010
• Year: 2012
• Published date: 14 June 2012
• Hearing Date: 01 December 2011,22 February 2012,02 December 2011
• Plaintiff Counsel: Mr Gong Chin Nam [Hin Tat Augustine & Partners] - Plaintiff
• Defendant Counsel: Ms Anna Oei [Tan Oei & Oei LLC]- Defendant
• Citation: [2012] SGDC 113

District Judge Seah Chi Ling:

The Plaintiff, Creek Bridge General Trading Co LLC (“Plaintiff”), is a corporate entity incorporated under the laws of Dubai. The Defendant, Cresdev Marketing Pte Ltd (“Defendant”), is a private company incorporated under the laws of Singapore. Both the Plaintiff and the Defendant are in the commodity trading business.

By a contract entered into on 18 August 2009 evidenced by Proforma Invoice No. CDPL/583 dated 18 August 2009 (the “Contract”), the Plaintiff agreed to purchase, and the Defendant agreed to supply, 150 metric tonnes of Tumeric Fingers Kyaukse (hereinafter, “turmeric fingers”) at a price of USD 1,100 per metric tonne (“PMT”), for an aggregate price of USD 165,000.

The other salient terms of the Contract are as follows: Payment is to be made “20% advance and balance by [telegraphic transfer]”. Clause 2: The Buyer should remit the [payment amounts] without any deduction. If any deduction [is made] by the remittance bank, it will be borne by the Buyer. Clause 6: + or - 5% in quantity and amount is acceptable. Clause 7: Any bank charges including correspondent bank charges except Singapore local bank charges are [on] Buyer’s account. Clause 9: Deposit amount [is to be paid] within 2 days from the date of contract. Clause 12: Balance payment [to be] by [telegraphic transfer] before [collection] of documents from [the seller’s] Dubai office.

It is not disputed that the Defendant would be purchasing the turmeric fingers from its upstream supplier, before on-selling the turmeric fingers to the Plaintiff.

This is the first transaction between the Plaintiff and the Defendant. In the present transaction, Majid Khanbani, the manager of the Plaintiff (“PW1”), dealt with the following two persons from the Defendant company: (i) S.Ziyaudeen Ahmed (“DW3”), the export manager of the Defendant; and (ii) Ishmit Singh Bajaj (“DW1”), the son of Hardip Singh Bajaj s/o Mahn Singh Bajaj (“DW2”), a director of the Defendant.

While this is the first transaction between the Plaintiff and the Defendant, the Plaintiff had dealt with Crescent Developments Private Limited (“Crescent”), a company affiliated with the Defendant, on at least 3 prior occasions. Transactions between the Plaintiff and Crescent were conducted through PW1 (on behalf of Plaintiff), and DW2 and DW3 (on behalf of Crescent). As at the date of the Contract, amounts are allegedly owed by the Plaintiff to Crescent, and Crescent has commenced a separate action before the Singapore courts seeking recovery of such amounts.

The dispute

The current dispute stemmed from the Plaintiff’s failure to pay a 20% initial payment amounting to USD 33,000 required under the Contract (the “Initial Payment”) by the contractual due date of 20 August 2009.

The remittance advice produced by the Plaintiff at trial showed that the Plaintiff had wired USD 27,000 in part payment of the Initial Payment on 30 August 2009 (see PBD 11), after numerous reminders from the Defendant. This left a shortfall of USD 6,000.

From 30 August 2009 onwards, the Defendant sent various reminders to the Plaintiff seeking payment of the balance of the Initial Payment. In these reminders, the Defendant repeatedly stressed to the Plaintiff that payment of the full 20% Initial Payment was required, that the Defendant’s upstream supplier was chasing for payment, and that the Defendant was at risk of losing their upstream supplier if the balance of the Initial Payment was not paid expeditiously (see PBD 7, 14, 15, 18 and 19).

The remaining USD 6,000 of the Initial Payment was finally paid by the Plaintiff on 10 September 2009 (see PBD 24). The Plaintiff was however informed, after the balance of the Initial Payment was wired to the Defendant’s account, that the Defendant had lost its upstream supplier. The Defendant notified the Plaintiff that they would now have to “work on finding a new supplier”, and that if a new supplier were found, the supply would be based on “new price, quantity and shipment terms”, which would be notified to the Plaintiff (see NE 62C-63C; PBD 31 and 33).

The Defendant never secured an alternate upstream supplier and proceeded to terminate the Contract shortly thereafter. At trial, DW1 testified that he had verbally informed the Plaintiff on or around 8 September 2009 that the Contract had been terminated (see NE 64C-F). This position was reinforced in an e-mail dated 2 October 2009, in which the Defendant reiterated in writing that the Contract had been cancelled by reason of the Plaintiff’s late payment (see PBD 33).

In response, by its lawyer’s letter dated 26 January 2010, the Plaintiff also purported to terminate the Contract on account of the Defendant’s repudiation of the Contract (see PBD 38). The Plaintiff does not dispute that the Initial Payment was paid out of time, but contends that the Defendant had granted an extension of time of up to end September for the Initial Payment to be paid. The Plaintiff further asserts that even if there were a breach by the Plaintiff in paying the Initial Payment out of time, the breach did not entitle the Defendant to terminate the Contract. The Plaintiff claims a refund of the Initial Payment amounting to USD 33,000, and damages of USD 100,083 representing the additional costs incurred by the Plaintiff in procuring tumeric fingers from alternate sources (see PBD 36 and 37).

At the end of the trial, I decided as follows: The Defendant did grant the Plaintiff an extension of time to effect payment of the Initial Payment. The final timeline for the payment of the Initial Payment agreed to by the Defendant was 7 September 2009. Since the Plaintiff did not dispute that the Initial Payment was only paid in full on 10 September 2009, the Initial Payment was paid out of time. It was likely that the Defendant had lost their upstream supplier on 8 September 2009, and in any event by 10 September 2009 (the date the Initial Payment was made in full). The market prices of turmeric fingers were on an upward trend between August 2009 and December 2009. Under these circumstances, if the Defendant were still required to perform the Contract in accordance with its original terms, the Defendant would have had to purchase the turmeric from alternate sources at a higher cost price, and still sell it to the Plaintiff at the original contract price of $1,100 PMT. The net effect of the Plaintiff’s delay in paying the Initial Payment was to have deprived the Defendant of substantially of all the benefit it was intended that the Defendant should get under the Contract if the Defendant were still required to perform the Contract in accordance with its original terms. The Defendant was therefore entitled, with effect from 8 September 2009, to elect to treat the Contract as discharged under Situation 3(b) set out in RDC Concrete Pte Ltd v Sato Kogyo (S) Pte Ltd and another appeal [2007] 4 SLR(R) 413 (“RDC Concrete”). The Defendant elected to terminate the Contract, and communicated its election to the Plaintiff (whether in writing, verbally and/or through other unwritten modes of communication), by no later than 15 September 2009. In addition to exercising its right of termination, the Defendant was also entitled to claim damages arising from the Plaintiff’s breach: see RDC Concrete’s case at ¶114; and Alliance Concrete Singapore Pte Ltd v Comfort Resources Pte Ltd [2009] 4 SLR(R) 602 at ¶31 (“Alliance Concrete”). I also concluded that, as at the date of termination, there was no concurrent breach by the Defendant of its obligations under the Contact as the timeline for the shipment and delivery of the goods by the Defendant (which parties agreed was 40 days after the receipt of the Initial Payment) had not yet expired (see NE 13E-F and 54C-D; and PBD8). There is accordingly no issue of damages being concurrently payable by the Defendant to the Plaintiff. Notwithstanding that the Defendant is entitled to damages, the Defendant has not adduced sufficient proof of the damages claimed by it. In this regard, the trial was on both liability and damages. I proceeded to award the Defendant nominal damages of USD 500 in respect of their counterclaim. Based on a construction of the Contract, I further held that the Initial Payment was not liable to forfeiture upon a termination of the contract by reason of the Plaintiff’s breach. I accordingly ordered the Initial Payment to be refunded to the Plaintiff, subject to the retention by the Defendant of such amounts awarded to the Defendant by way of their counterclaim.

The Defendant has appealed against part of my decision, namely my rulings in paragraphs 13(i) and (j) above. The Plaintiff did not cross-appeal. I will therefore give my detailed reasons for my conclusions reached in paragraphs 13(i) and (j) above. These relate primarily to the issues of: (a) the quantum of damages which ought to be awarded to the Defendant in respect of its counterclaim; and (b) whether the Initial Payment is liable to be forfeited by the Defendant.

Quantum of Damages to be Awarded to the Defendant

At the conclusion of trial, I found that the Defendant was entitled to, and did elect to, terminate the Contract on account of the Plaintiff’s late payment. Independent of the Defendant’s right to elect to treat the Contract as discharged, the Defendant was also entitled to claim damages on account of the Plaintiff’s breach: see RDC Concrete’s case at ¶114; and Alliance Concrete’s case at ¶31.

With regards to the measure of damages, the Defendant is claiming USD 51,450, being: (x) the difference between the market price of turmeric fingers as at the date of breach (which the Defendant asserts is USD 1,400 PMT) and the Defendant’s cost price of the tumeric fingers (which the Defendant asserts is USD 1,000 PMT), less (y) the Defendant’s freight costs of USD 8,550 (see Defendant’s Closing Submissions at para. 89).

The general...