Likpin International Ltd v Swiber Holdings Ltd and another

• Judge: Steven Chong J
• Judgment Date: 01 October 2015
• Neutral Citation: [2015] SGHC 248
• Docket Number: Admiralty in Personam No 113 of 2015 (Registrar’s Appeal No 239 of 2015)
• Hearing Date: 31 August 2015
• Citation: [2015] SGHC 248
• Year: 2015
• Subject Matter: Civil Procedure,Striking Out
• Court: High Court (Singapore)
• Plaintiff Counsel: Tan Hin Wa, Jason (Asia Ascent Law Corporation)
• Defendant Counsel: Jimmy Yim, SC, Arvindran s/o Manoosegaran and Mahesh Rai (Drew & Napier LLC)
• Published date: 05 August 2016

Steven Chong J: Introduction

Likpin International Ltd (“the plaintiff”), together with its consortium member, was awarded a contract by Vietsovpetro to perform a subsea construction project (“the VSP project”) at the Nam Rong and Doi Moi oilfields in Vietnam. As the VSP project required the use of a pipe-laying vessel, the plaintiff entered into negotiations with the defendants to charter a suitable vessel. Swiber Holdings Limited (“the 1st defendant”) is a public listed company while Swiber Offshore Construction Pte Ltd (“the 2nd defendant”) is its wholly owned subsidiary. Two pipe-laying vessels owned by the 2nd defendant were identified for the plaintiff’s chartering requirements.

In order to appreciate the context of the essential facts which will be examined below, it is important always to bear in mind that, at all material times, the plaintiff was only seeking to charter one vessel for the VSP project.

On 29 May 2009, a charterparty was entered into between the plaintiff and the 2nd defendant for one of the two vessels (“the Concorde charterparty”). The charterparty was in fact performed. Disputes, however, arose between the parties. In accordance with the arbitration clause in the Concorde charterparty, an arbitration was commenced by the 2nd defendant against the plaintiff for non-payment of charter hire (“the arbitration”). The plaintiff brought a counterclaim against the 2nd defendant for damages for breach of contract. For reasons which are not relevant for present purposes, the plaintiff and the 2nd defendant resolved their disputes and entered into a settlement agreement dated 24 March 2015 (“the Settlement Agreement”).

The defendants thought that, with the settlement, the dispute was behind them. However, in the course of conducting routine due diligence, the defendants’ banker discovered that a “protective” admiralty in personam writ had been issued by the plaintiff on 15 May 2015 against the 1st defendant for breach of another contract (“the Procurement Agreement”) for the charter of a pipe-laying vessel for the VSP project.1Affidavit of Nitish Gupta dated 22 July 2015 at para 5 The Procurement Agreement allegedly predated the Concorde charterparty.

The plaintiff’s estimate of its unliquidated claim in the accompanying Case Details of the suit is $10,700,000. The claim against the 2nd defendant is for the tort of procuring the 1st defendant’s breach of contract. The defendants entered appearance gratis and applied to strike out the claim in Summons No 3225/2015 (“SUM 3225/2015” or “the striking out application”). The striking out application failed before the assistant registrar (“AR”) in the court below and the defendants’ appeal came before me.

There are two parts to the defendants’ arguments: In respect of the claims against the 1st defendant, their submissions are two-fold. First, they submit that there was never any concluded Procurement Agreement. Second, and in the alternative, they submit that even if the Procurement Agreement had been concluded, it would have been superseded by the Concorde charterparty. In respect of the claim against the 2nd defendant, they submit that the matters complained of in the writ were fully and finally compromised in the Settlement Agreement between the plaintiff and the 2nd defendant.2Defendants’ submissions dated 27 August 2015 (“Defendants’ submissions”) at para 2(c)

Accordingly, the defendants submit that the suit is frivolous, vexatious and/or does not disclose a reasonable cause of action as against the 1st defendant. Insofar as the 2nd defendant is concerned, they submit that the suit is an abuse of process.

The plaintiff’s claim

The plaintiff’s claim is for a breach of the Procurement Agreement which, on the face of the endorsement on the writ, was allegedly concluded between the plaintiff and the 1st defendant only (and not the 2nd defendant) in respect of the vessel, Swiber Conquest. As against the 1st defendant, the plaintiff claims:

… damages for breach of an agreement to procure the supply and/or mobilisation of the ship or vessel known as the Swiber Conquest by 20th May 2009 for the Plaintiffs’ use and/or hire in the Plaintiffs’ projects (the “Agreement”). [emphasis added]

As against the 2nd defendant, the plaintiff claims:

… damages for procuring and/or inducing breaches of the Agreement, and/or interfering with the Agreement.

The plaintiff has invoked the admiralty jurisdiction of the court. In response to the court’s query as to which limb of the High Court (Admiralty Jurisdiction) Act (Cap 123, 2001 Rev Ed) the plaintiff's claim falls under, the plaintiff’s counsel, Mr Jason Tan (“Mr Tan”), submitted that it is under s 3(1)(h): “any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship” [emphasis added]. He acknowledged that the Procurement Agreement was in substance a charterparty for the use or hire of the Swiber Conquest. This is consistent with the Case Details filed by the plaintiff, where the suit is described as a “Charter Party Claim”.

When the defendants filed SUM 3225/2015 on 1 July 2015, the statement of claim had not been filed by the plaintiff. The statement of claim was only filed on 14 August 2015. At the hearing before me on 31 August 2015, Mr Tan submitted that the striking out application pertained only to the writ and not the statement of claim. Thus, despite having himself relied on the statement of claim in his oral submissions, Mr Tan, after some prevarication, eventually submitted that (notwithstanding the fact that the endorsement on the writ is bereft of essential details) the court is not entitled to take cognisance of the statement of claim when assessing the striking out application.

I must clarify that the claims of misrepresentation and conspiracy raised in the plaintiff’s statement of claim but not endorsed on the writ do not arise for consideration in the striking out application. Order 18 r 15(2) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“Rules of Court”) states that a statement of claim “must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of, facts giving rise to a cause of action so mentioned”. Given that the endorsement does not mention any claim for conspiracy or misrepresentation, and given also that it is common ground between the parties that what is at issue is the striking out of the writ (rather than the statement of claim), I am only concerned with whether the plaintiff’s claims for the breach of the Procurement Agreement and the procuring of the said breach as endorsed on the writ are viable. While the court certainly has the power to give the plaintiff leave to amend its writ, I must emphasise that at no time during the hearing did the plaintiff seek to amend its writ to enlarge it to include the claims for misrepresentation and conspiracy found in the statement of claim. This is consistent with the plaintiff’s submissions at the appeal. Mr Tan did not venture to deal with the claims which were not endorsed on the writ.

Having outlined the plaintiff’s claim, I shall now consider the preliminary issue of whether the court may take cognisance of the statement of claim which was filed after the application was heard before the AR in the court below.

Preliminary issue: can the court take cognisance of the statement of claim?

A brief overview of the short procedural history of the present suit will be helpful to set the application in context: The writ was filed by the plaintiff on 15 May 2015. The defendant entered appearance gratis and filed the application on 1 July 2015. The AR heard and dismissed the application on 31 July 2015. The defendants filed a notice of appeal against the AR’s decision on 12 August 2015. The plaintiff filed its statement of claim on 14 August 2015. The appeal was heard before me on 31 August 2015.

At the hearing before me, Mr Tan submitted that, as a matter of “natural justice”, the court should consider the application based only on the circumstances as at the date when the application was filed. Thus, since the statement of claim was not in existence when the application was first filed, the plaintiff had no opportunity to address issues arising from it in its affidavits and, consequently, the court cannot take cognisance of it. Taken to its logical conclusion, the effect of Mr Tan’s submission is that the court, on the hearing of an appeal against an AR’s decision, is only entitled to consider matters which had been placed before the AR.

Not only was Mr Tan unable to adduce any authority in support of his submission, this is plainly wrong. As the Court of Appeal in Chang Ah Lek and others v Lim Ah Koon [1998] 3 SLR(R) 551 noted at [20], an appeal from the registrar to a judge in chambers is not an appeal in the true sense: the judge in chambers deals with the appeal “as though the matter came before him for the first time” (see Evans v Bartlam [1937] AC 473 per Lord Atkin at 478). The judge in chambers is also free to allow the admission of fresh evidence in the absence of contrary reasons (see Lian Soon Construction Pte Ltd v Guan Qian Realty Pte Ltd [1999] 1 SLR(R) 1053 at [38]). It would be odd if the court were entitled to consider fresh evidence at an appeal hearing but unable to take cognisance of pleadings filed after the hearing.

It is curious that the plaintiff would object to the court taking cognisance of its own statement of claim and it certainly does not lie in the mouth of the plaintiff to now complain that it did not have an opportunity to address questions arising from its own statement of claim. The plaintiff, like any party in any legal proceedings, must accept the consequences of its own pleadings. If any objection...