Jiacipto Jiaravanon v Simpson Marine (SEA) Pte Ltd

• Jurisdiction: Singapore
• Judge: Quentin Loh J
• Judgment Date: 22 November 2017
• Neutral Citation: [2017] SGHC 288
• Court: High Court (Singapore)
• Docket Number: Suit No 888 of 2014
• Published date: 26 January 2019
• Year: 2017
• Hearing Date: 13 April 2017,11 April 2017,12 April 2017,18 April 2017,19 April 2017,29 May 2017,10 April 2017
• Plaintiff Counsel: Anna Oei Ai Hoea and Deannie Yap (Tan, Oei & Oei LLC)
• Defendant Counsel: Bazul Ashhab, Lionel Chan Cong Yen and Beatrice Yeo (Oon & Bazul LLP)
• Subject Matter: Restitution,Failure of consideration,Pre-contractual deposits,Contract,Formation,Breach
• Citation: [2017] SGHC 288

Quentin Loh J:

In this suit, the plaintiff, Jiacipto Jiaravanon (“Cip”, or “the plaintiff”), seeks to recover two payments made to the defendant, Simpson Marine (SEA) Pte Ltd (“the defendant”), in relation to the purchase of luxury yachts. The defendant denies that the plaintiff is entitled to recover the payments, and counterclaims for several sums.

The parties

Cip was a male Indonesian national who passed away suddenly at the early age of 40 after commencing this suit.¹ At the time of his death, he was the Vice President Commissioner of PT Charoen Pokphand Indonesia TBK which is part of the Charoen Pokphand Group Indonesia (“the CP Group”).² The CP Group comprises more than 200 companies, which are primarily in the agriculture business.³ After Cip’s death, Anita, his widow, obtained letters of administration in respect of this suit, and an order to carry on these proceedings as the administratrix of Cip’s estate.⁴

The defendant is a Singapore-incorporated company in the business of dealing in luxury yachts.⁵ At the material time, the defendant dealt in yachts produced by Azimut Benetti SpA (“Azimut”), a company incorporated in Italy.

The background to the dispute

In January 2013, Cip and Aina Taslim (“Aina”), the Head of Purchasing (Commercial Division) of the CP Group,⁶ met Peter Mison (“Mison”), a yacht broker for the defendant, and discussed the possibility of Cip purchasing yachts from the defendant. At the material time, Cip was considering the purchase of (at least) one yacht each for use in Hong Kong and Southeast Asia respectively.⁷

On 10 April 2013, Cip signed a contract to buy an Azimut 62S yacht from the defendant (“the Azimut 62S Contract”).⁸ However, this contract was cancelled because Cip did not pay the deposit for this yacht.⁹

On 26 April 2013, Mison met Cip at Cip’s house.¹⁰ The parties do not fully agree on what occurred during this meeting (“the 26 April 2013 Meeting”). But it is undisputed that Cip signed the following two documents: A contract to buy an Azimut 64 yacht (hull number 68) (“the Azimut 64 #68”) for €1,916,675.00 (“the Azimut 64 Contract”) from the defendant.¹¹ An invoice (“the Deposit Invoice”) for the sum of €1m (“the €1m Deposit”). The Deposit Invoice states that the €1m sum was a “holding deposit” against two boats: an Azimut 100 Grande yacht (hull number 12) (“the Azimut 100G #12”) and an Azimut 100 Leonardo yacht (hull number 15) (“the Azimut 100L #15”). I shall refer to these two yachts collectively as “the Azimut 100 yachts”.

On 29 April 2013, Cip paid a €500,000 deposit, in respect of the Azimut 64 Contract, and the €1m Deposit to the defendant. The defendant issued two receipts dated 29 and 30 April 2013 respectively in relation to these payments.¹²

On 30 April 2013, Mison informed Cip that Azimut had sold the Azimut 100G #12 to a Mexican buyer.¹³

On 8 May 2013, Cip met Paul Grange (“Grange”), Kenneth Ng (“Ng”) and Giordano Pellacani (“Giordano”) in Hong Kong and viewed an Azimut 100 Leonardo yacht (“the 8 May 2013 Meeting”).¹⁴ At the material time, Grange was the defendant’s Group Sales Manager who was responsible for sales of Azimut yachts; Ng was the defendant’s Senior Yacht Broker; and Giordano was the Azimut Sales Manager for Asia.¹⁵ The parties dispute what was agreed during this meeting.

On 9 May 2013, the defendant paid a sum of €1m to Azimut.¹⁶

On 18 June 2013, Cip and the defendant agreed, by an Addendum to the Azimut 64 Contract (“the Addendum”), that Cip would receive the Azimut 64 yacht (hull number 64) (“the Azimut 64 yacht”) instead of the Azimut 64 #68.¹⁷ The parties also agreed to change the specifications of the Azimut yacht; consequently, the purchase price increased to €2,017,470.00. Thereafter, the parties further agreed to refit the interior of the Azimut 64 yacht; the purchase price was therefore increased to €2,047,470.00 (“the Azimut 64 Price”).

On or about 31 July 2013, Cip met Mison (“the 31 July 2013 Meeting”). What the parties agreed during this meeting is also disputed. But it is clear that Cip and Mison agreed that half of the €1m Deposit would be applied to the purchase price of the Azimut 64 yacht (“the Compromise Agreement”).¹⁸

On 1 August 2013, the defendant issued a revised payment invoice for the Azimut 64 yacht. This reflected the Compromise Agreement: the calculation of the balance payable for the Azimut 64 yacht accounted for half of the €1m Deposit.¹⁹ Thereafter, Cip paid the balance sum and the defendant accordingly issued an invoice on 5 August 2013.²⁰

On 16 September 2013, the Azimut 64 yacht arrived in Singapore.²¹

On 2 October 2013, Cip, Anita, Toh Chee Ping (“Toh”, Cip’s personal assistant),²² and Ken Pun Tze Chung (“Ken”, Cip’s boat surveyor), met Mison at Raffles Marina to inspect the Azimut 64 yacht (“the 2 October 2013 Meeting”). Additionally, it seems that Lau Man Tung, another of Cip’s assistants, and Andi Sasmita, Cip’s Indonesian boat captain, were present.²³ Upon viewing the yacht, Cip discovered that the yacht’s two gearbox serial numbers differed from those stated on the warranty certificate (“the First Certificate”).²⁴ Then, an altercation between Cip and Mison ensued. The details of this altercation are disputed. Mison claimed that Cip punched him three times; the plaintiff denied this claim.

On 3 March 2014, with Cip’s agreement, the defendant resold the Azimut 64 yacht to a third party for €1,865,510.00 (“the Resale Price” or “the Resale Proceeds”).²⁵

On 15 August 2014, Cip commenced this suit.²⁶

On 12 December 2014, the defendant paid €1,666,837.89 to Cip. The defendant avers that this sum represents the balance of the Resale Proceeds after deducting the sums claimed in its first three counterclaims (see [27(a)–27(c)] below).²⁷ The plaintiff does not dispute this computation.

The witnesses

The plaintiff called Anita, Toh and Aina as factual witnesses and Mr Sum Chee Keong (“Sum”), a yacht dealer with 45 years of experience,²⁸ as an expert witness.

The defendant called Mison, Grange, and Paul Whelan (“Whelan”), who was the defendant’s General Manager for Southeast Asia at the material time,²⁹ as factual witnesses. The defendant also called Mr Donald Richard Arthur Lamble (“Lamble”), a marine surveyor with more than 40 years’ experience in the shipping and pleasure craft business,³⁰ as its expert witness.

The parties’ cases The statement of claim

The plaintiff’s case has two prongs. First, in respect of the €1m Deposit, the plaintiff’s case is that the parties made two oral agreements: During the 26 April 2013 Meeting, Cip agreed to pay the €1m Deposit to the defendant as a holding deposit for the Azimut 100 yachts (“the 1st Holding Agreement”). It was an express or implied term of the 1st Holding Agreement that the defendant would return the €1m Deposit to Cip if he did not subsequently contract to purchase a yacht. Since Cip did not agree to buy either of the Azimut 100 yachts, the €1m Deposit was repayable to Cip.³¹ Upon making the Compromise Agreement, by which half of the €1m Deposit was applied towards the purchase of the Azimut 64 yacht, the parties also agreed that the defendant would hold the other half of the €1m Deposit (“the €500k Remainder”) while Cip considered buying another yacht (“the 2nd Holding Agreement”). It was an express or implied term of the 2nd Holding Agreement that the defendant would return the €500k Remainder to Cip if he did not subsequently buy another yacht from the defendant. As Cip did not buy another yacht from the defendant, Cip is entitled to recover the €500k Remainder either in accordance with the 2nd Holding Agreement or by way of restitution.³²

Secondly, in respect of the Azimut 64 yacht, the plaintiff claims that the defendant repudiated the Azimut 64 Contract by failing to hand over the Azimut 64 yacht and by selling it to a third party. The plaintiff accepted the repudiation. Therefore, there was a total failure of consideration and the plaintiff is entitled to the purchase price of €2,047,470.00 by way of restitution.³³

The plaintiff thus claims a total of €2,547,470.00 (comprising the €500k Remainder and the purchase price of the Azimut 64 yacht) by way of restitution, as well as interest and costs from the defendant.³⁴ However, I note that the defendant has already paid some of the Resale Proceeds to Cip (see [18] above). Therefore, as Anita acknowledged, the maximum sum which I may award to Cip in respect of the Azimut 64 yacht is €380,632.11 (being the difference between the Azimut 64 Price and the quantum of the Resale Proceeds already paid to the plaintiff).³⁵ The total maximum sum which the plaintiff may obtain for his entire claim is therefore €880,632.11.

The defence and counterclaim

The defendant avers that, in March 2013, Cip agreed to purchase two yachts: either of the Azimut 100 yachts, and a smaller yacht.³⁶

In respect of the €1m Deposit, the defence is, in gist, that the €1m Deposit was paid as a non-refundable deposit. In particular, the defendant pleads as follows: First, on or about 26 April 2013, Cip agreed to pay the €1m Deposit as earnest monies for Azimut to hold the Azimut 100 yachts off the market for three weeks pending Cip’s viewing and decision to purchase either yacht. There was an express agreement by incorporation of the defendant’s Standard Terms and Conditions (“the T&C”) that the €1m Deposit would be non-refundable, or alternatively an implied term to that effect.³⁷ Secondly, on or about 8 May 2013, Cip agreed with Grange that the €1m Deposit would be paid to Azimut as a non-refundable deposit to reserve the Azimut 100L #15 and another Azimut 100 Grande yacht (hull number 15) (“the Azimut 100G #15”). Moreover, the plaintiff is estopped from claiming the €500k Remainder as the defendant paid the €1m Deposit to Azimut in reliance on Cip’s representation that he was prepared to pay the €1m Deposit as a non-refundable...