MatthewsDaniel International Pte Ltd v Kith Marine & Engineering Sdn Bhd

• Jurisdiction: Singapore
• Judge: Andrew Ang SJ
• Judgment Date: 28 March 2018
• Neutral Citation: [2018] SGHC 73
• Plaintiff Counsel: Liow Wang Wu Joseph and Jerrie Tan Qiu Lin (Straits Law Practice LLC)
• Docket Number: Suit No 44 of 2016
• Date: 28 March 2018
• Hearing Date: 09 January 2018,10 January 2018
• Subject Matter: Contract,admissibility of evidence,parol evidence rule,contractual terms,evidence of agency,Agency
• Year: 2018
• Defendant Counsel: Anand S/O Thiagarajan (M P Kanisan & Partners)
• Court: High Court (Singapore)
• Citation: [2018] SGHC 73
• Published date: 03 April 2018

Andrew Ang SJ: Introduction

This is a claim brought by the plaintiff, MatthewsDaniel International Pte Ltd against the defendant, Kith Marine & Engineering Sdn Bhd, for three unpaid invoices amounting to a total of USD 130,642.33. The plaintiff is also claiming interest on the unpaid sums amounting to a total of USD 52,051.02, calculated based on a formula found in the plaintiff’s standard terms and conditions of service (“plaintiff’s Standard Terms”).

The invoices were issued by the plaintiff for marine warranty survey services that it had provided in relation to the transportation of two oil rigs. The sole matter in dispute is who the parties to the contract for the provision of those services were. The plaintiff’s case is that the contract was made between itself and the defendant in its personal capacity. The defendant’s case, on the other hand, is that it was merely contracting with the plaintiff as agent for the representatives of the owners of the oil rigs, namely, Dragon Offshore Industries LLC (“Dragon”). Therefore, the defendant claims that it is not personally liable to pay the plaintiff under the contract.

Facts The parties

The plaintiff is a Singapore incorporated company in the business of, inter alia, providing marine warranty survey services for the transportation of oil rigs. The defendant is a Malaysia incorporated company in the business of providing ship related services, such as ship repair and conversion, and tank cleaning and coating.

Background to the dispute The genesis

On 29 August 2013, the defendant’s General Manager, Mohamed Taib Bin Abdullah (“Taib”), received an email from Amir Ghaffari (“Ghaffari”), a Project Manager from Dragon.¹ Dragon was acting as the agent for Amar Offshore S.A. (“Amar”), the owner of an oil rig named Trident VI. Trident VI was later renamed “United 1”. For the avoidance of confusion, I shall refer to this oil rig as the First Rig.

This email contained a request by Dragon for the defendant to provide towing services for the First Rig. It was further specified in the email that as part of the provision of the towing services, the defendant would have to procure the requisite marine warranty surveyor’s clearance.

On 6 September 2013, the defendant received a further request for towing services to be provided, in relation to a second oil rig known as “GSF 134” (“the Second Rig”). Dragon was also acting as agent for the owner of the Second Rig, namely, Teras Harta Maritime Ltd (“Teras”). The scope of the towing services to be carried out in relation to the Second Rig also included obtaining the requisite marine warranty surveyor’s clearance. The First and Second Rig shall hereinafter be collectively referred to as “the Rigs”.

Concurrently, Miller Insurance LLP (“Miller Insurance”) had been engaged to insure the transportation of the Rigs. As part of the terms of the insurance coverage, there was a condition for a marine warranty survey to be conducted on the Rigs to determine their fitness for transportation. The plaintiff was one of the companies on the approved panel of warranty surveyors for Miller Insurance. In an email dated 10 September 2013, Miller Insurance contacted the plaintiff, informing them of the potential assignment of conducting the marine warranty survey for the Rigs.² The plaintiff’s director, Shaik Esmail Sahib Bin Abdul Rahiman (“Shaik”) replied the same day, stating that the plaintiff would be able to take on the assignment.³ Miller Insurance thereafter provided the plaintiff with the contact details of the defendant, who it said was the representative of the owners of the Rigs.⁴ Meanwhile, Dragon informed the defendant that the plaintiff would be the ones carrying out the marine warranty survey for the Rigs.⁵

The formation of the contract

Subsequently, on 11 September 2013, Shaik and Taib spoke over the phone regarding the marine warranty survey that was to be carried out by the plaintiff on the Rigs. This discussion was followed by an email dated 11 September 2013 (“the 11 September Email”), from Shaik to Taib, copying three representatives of Miller Insurance and two other employees of the plaintiff.⁶ Notably, Dragon was not copied in this email. The email contained the plaintiff’s Standard Terms as well as its schedule of rates. It was undisputed that the plaintiff’s Standard Terms formed part of the contract for the marine warranty survey services rendered.⁷

On 13 September 2013, Shaik and Taib met to further discuss the marine warranty surveys to be conducted. Also in attendance were some representatives from the Marine Department of the Johor Port. Notably, no representative of Dragon was present at this meeting. The minutes of the meeting, which were prepared by Taib and approved by Shaik, show that Shaik had informed Taib that it was the defendant who had engaged the plaintiff, and that Miller Insurance’s role was merely to give the plaintiff the defendant’s contact details.⁸ Nothing was mentioned about the defendant acting as agent for Dragon.

On 17 September 2013, Taib sent an email to Shaik, copying Ghaffari from Dragon (“the 17 September Email”). The email stated as follows:

Shaik,

Please refer email below which is self-explanatory.

We will furnish the Appointment Letter/PO tomorrow.

Trust the above in order and do not hesitate to call me.

Regards,

MTA

…

“QUOTE”

Dear Mohamed,

Please arrange a MWS with Mattews [sic] Daniel and get required approvals for the operation.

Please keep us in the loop.

“UNQUOTE”

The quoted portion at the bottom of the email was reproduced from a prior email that was sent from Ghafarri to Taib. Apart from this, nothing more specific was mentioned about the defendant being the agent for Dragon in relation to procuring the marine warranty survey services from the plaintiff.

On 19 September 2013, Taib, on behalf of the defendant, sent the plaintiff a purchase order for marine warranty surveys to be carried out on the Rigs (“the Purchase Order”).⁹ The letterhead at the top left corner of the Purchase Order displayed the defendant’s company name and contact details. The box located at the bottom of the Purchase Order, above the line for “Authorised Signature”, contained the company stamp of the defendant, with a corresponding signature next to it. This Purchase Order was acknowledged and duly signed by Shaik on behalf of the plaintiff. It was accepted by Taib during cross examination that there was nothing on the face of the Purchase Order that indicated that the defendant was contracting with the plaintiff on behalf of Dragon.¹⁰

Both parties did not dispute that the 11 September Email (which included the plaintiff’s Standard Terms) and the Purchase Order together formed the written agreement for the provision of the marine warranty survey services in relation to the Rigs (“the Contract”).

Upon the plaintiff’s acceptance of the Purchase Order, Taib wrote to Ghaffari from Dragon on 22 September 2013 informing him of the same.¹¹ Ghaffari replied the same day, stating in his email:

…[O]nce the job [is] done and you [the defendant] have received their [the plaintiff’s] final invoice for two (2) rigs Lump Sum, you [the defendant] shall forward [the] same to us at cost plus 10% and then payment will be executed within 3 working days.

The services were duly rendered by the plaintiff

It was undisputed that in compliance with the Contract, the plaintiff rendered services to the defendant, including conducting engineering reviews of the Rigs, conducting surveys on the Rigs and reporting the same. No objections or complaints were raised by the defendant and the assignment went smoothly.

Subsequently, the plaintiff issued four invoices to the defendant for the services rendered under the Purchase Order (collectively, “the Invoices”):¹² Invoice No 14178 dated 21 October 2013 for the sum of USD 16,818.15 (“the First Invoice”); Invoice No 14233 dated 27 November 2013 for the sum of USD 30,000.00 (“the Second Invoice”); Invoice No 14326 dated 17 January 2014 for the sum of USD 43,641.67 (“the Third Invoice”); and Invoice No 14426 dated 25 March 2014 for the sum of USD 57,000.66 (“the Fourth Invoice”).

It is undisputed that apart from the First Invoice, the other Invoices have remained unpaid to date.

On 24 October 2013, the defendant invoiced the owner of the Second Rig, Strategic Excellence Ltd (formerly known as Teras). This invoice was for the plaintiff’s fees as stated in the First Invoice, plus an additional 10% being the defendant’s “Service Charge”. This amounted to a total of USD 18,499.96.¹³ Pursuant to this invoice from the defendant, Strategic Excellence Ltd made full payment by way of a cheque dated 30 October 2013.

The defendant thereafter made full payment of the First Invoice to the plaintiff, by way of a cheque dated 13 November 2013 drawn on Standard Chartered Bank Singapore.¹⁴

The defendant’s difficulties in obtaining payment from Dragon

Beginning from as early as December 2013, the defendant sought to obtain payment from Dragon in relation to the marine warranty survey services that had been provided by the plaintiff. As was done with the First Invoice, the defendant billed Dragon based on the plaintiff’s fees, plus an additional 10% for the defendant’s service charge.

However, despite repeated attempts on the part of the defendant to obtain payment, Dragon failed to comply. When payment was still not made by the end of March 2014, Taib personally went to Dubai to meet with Ghaffari to demand payment.

Negotiations between the defendant and Dragon resulted in a settlement agreement dated 14 April 2014.¹⁵ Clause 6 of the settlement agreement states that the debt that the defendant was claiming included “amounts for agency fees and other disbursements relating to the pilotage, tug services security fees, a marine warranty survey and surcharges”. It should be noted that in a Statement of...