POSH Semco Pte Ltd v Makamin Petroleum Services Co and another

JudgeJeremy Lionel Cooke IJ
Judgment Date18 December 2020
Neutral Citation[2020] SGHC(I) 26
Date18 December 2020
Docket NumberSuit No 1 of 2019
Published date31 December 2020
Plaintiff CounselChan Tai-Hui, Jason ("Chan"), Oh Jialing, Evangeline and Gan Yun Han, Rebecca (Allen & Gledhill LLP)
Defendant Counseland the defendants unrepresented, absent.
Hearing Date15 December 2020
CourtInternational Commercial Court (Singapore)
Subject MatterGuarantees and indemnities,Rules of court,Obligation of good faith,Commercial Transactions,Civil Procedure,Credit and Security,Judgment without trial
Jeremy Lionel Cooke IJ: Introduction

This action, SIC/S 1/2019, (“the Action”) was listed for trial on 15 December 2020, following a history which can be seen by reference to the Court of Appeal judgment in this matter dated 22 September 2020 (Offshoreworks Global (L) Ltd v POSH Semco Pte Ltd [2020] SGCA(I) 4 (the “Court of Appeal judgment”)) and to the grounds for my decision when giving summary judgment for part of the plaintiff’s claim against the Second Defendant (“OWG”) on 6 September 2019 in respect of its liability under the guarantee given by it on 24 October 2014 (the “OWG Guarantee”). The part of the claim for which summary judgment was not given is the sum of US$771,779.98 which represents the difference between the “Outstanding Debt” and the “Settlement Sum”, as defined in the Settlement Agreement of 15 November 2015 between the plaintiff and the charterer (“MOS”) whose liability was the subject of the OWG Guarantee.

OWG did not appear on 15 December 2020 following the decision of the Court of Appeal that a foreign defendant in this court could not appear unrepresented. The rationale for that decision appears in the Court of Appeal judgment where Captain Koh Chen Tien (“Cpt Koh”), OWG’s sole shareholder and executive director was permitted to argue the case on appeal from the summary judgment de bene esse, pending the court’s decision as to whether that was technically allowable.

Following the summary judgment, OWG filed an appeal on 4 October 2019. On 3 and 17 March 2020, after the parties had filed their respective appellant’s case and respondent’s case, but before the hearing in the Court of Appeal on 1 April 2020, the solicitors instructed by OWG gave notice that they were ceasing to act in the Action and in the appeal. At each of the hearings of the appeal on 1 April and 5 August 2020, OWG did not appear with counsel or solicitors and Cpt Koh addressed the court, having been given a full opportunity, as set out in the Court of Appeal judgment, to instruct lawyers if he so wished. The court rejected the appeal on the merits as well as ruling that a foreign corporation could not appear unrepresented by lawyers on the record.

Since the date of the Court of Appeal judgment, the plaintiff and the court have persistently corresponded with OWG without obtaining any response. On 1 October 2020, the plaintiff sought information from OWG as to whether it would be appointing solicitors for the conduct of the Action and seeking agreement to various directions that the plaintiff indicated it would request at a forthcoming case management conference. In the same message, the plaintiff informed OWG that it would take further steps in the Action without further reference to OWG if it failed to respond by 9 October 2020. OWG did not respond by that date and on 12 October 2020, the plaintiff explained the position to the Singapore International Commercial Court (“SICC”) Registry (the “SICC Registry”) and said it would seek judgment in default. The SICC Registry fixed a case management conference for the Action on 21 October 2020. OWG was informed of the date but did not appoint solicitors to attend or provide any information as to its intentions in relation to the future conduct of the Action.

Following the case management conference at which I gave directions for the future conduct of the Action, including the filing of evidence and fixed a further case management conference, the plaintiff informed OWG of this order and the fixing of the trial for 15–16 December 2020. The SICC Registry has sought to engage with OWG in a sequence of correspondence to which no reply has ever been received. The orders and directions given by the court have been notified to OWG, including the further directions for the hearing of the trial, given at the later case management conference on 4 December 2020.

It is in these circumstances that the plaintiff submits that judgment should be entered for it against OWG without any trial. It relies on O 35, r 1(2) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) which apply to the SICC by virtue of O 110, r 3(1) of the same Rules. Order 35 r 1(2) provides that:

If, when the trial of an action is called on, one party does not appear, the Judge may proceed with the trial of the action or any counterclaim in the absence of that party, or may without trial give judgment or dismiss the action, or make any other order as he thinks fit.

In support of that submission that I should give judgment without a trial, the plaintiff contends that it is clear that OWG has no intention of defending the remaining part of the claim, relying upon the history of the matter that I have just set out. I accept the submission that OWG has no intention of defending the balance of the claim in the Action as being the inevitable inference of what has occurred. Nonetheless, in circumstances where OWG had submitted evidence in relation to the balance of the plaintiff’s claim when resisting summary judgment (and, in particular, evidence of Saudi Arabian law (“Saudi law”) which governs the relationship between the plaintiff and MOS, the charterer of the vessel POSH Pelican), in the light of which I found that there was a matter which should go to trial, I consider that it would not be appropriate to give judgment without exploring that evidence and the evidence adduced by the plaintiff. As a matter of discretion, it seems to me to be right that I should determine the points which I have held to be arguable on the application for summary judgment.

The plaintiff submitted that the burden was on OWG to make good its defence under the law of the Kingdom of Saudi Arabia (“Saudi Arabia”) and that, when the court, in discussion at the application for summary judgment had made it plain that there were questions which it would have wanted OWG’s appointed expert to answer, the fact that it did not proceed with the defence of the Action spoke for itself. Whilst the plaintiff also submits that it is prejudiced in being prevented from cross-examining OWG’s appointed expert in Saudi law, Mr Al-Qahtani, Saeed Ahmad M (“Mr Al-Qahtani”), on the points then raised by the court, it has adduced evidence on Saudi law from its own appointed expert lawyer, Dr Baassiri, Faisal Adnan S (“Dr Baassiri”), whose evidence is before the court and who was available for cross examination, should OWG appear, and to answer any questions the court might have. He specifically addressed the points that the court had previously raised.

In all the circumstances, it appeared to me that I should weigh the evidence of Dr Baassiri against, and in the light of, the previous evidence, supported by affidavit from Mr Al-Qahtani.

I therefore decided that I should proceed with the trial on the basis of the evidence before me and the previous evidence from Mr Al-Qahtani. The plaintiff’s witness, Mr Teo Kim Leng, Kelvin confirmed the accuracy of his 6th and 7th affidavits filed in the Action as his evidence-in-chief. That evidence set out the history underlying the dispute between the parties and established the balance of the Outstanding Debt in the figure set out at [1] above. His evidence also showed that, in seeking to have the Action stayed in favour of Saudi Arabia as the appropriate forum, OWG had told the court that interest could be awarded by the courts there, in an attempt to show that there was no detriment to the plaintiff in having liability under the OWG Guarantee determined in that jurisdiction.

The plaintiff’s appointed expert in Saudi law, Dr Baassiri confirmed his affidavit and expert report as his evidence in the Action.

The remaining claim

No purpose would be served in a detailed account of the facts which are recorded in the Court of Appeal judgment to which reference...

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2 cases
  • Kiri Industries Ltd v Senda International Capital Ltd and another
    • Singapore
    • International Commercial Court (Singapore)
    • 8 Diciembre 2021
    ...SICC (BXS v BXT [2019] 5 SLR 48; BYL and another v BYN [2020] 4 SLR 204; POSH Semco Pte Ltd v Makamin Petroleum Services Co and another [2021] 3 SLR 203) and we exercise our discretion accordingly. Second, we agree with Senda that interest should run from the date that costs are assessed or......
  • Kiri Industries Ltd v Senda International Capital Ltd
    • Singapore
    • High Court (Singapore)
    • 8 Diciembre 2021
    ...2 SLR 524 (refd) Maryani Sadeli v Arjun Permanand Samtani [2015] 1 SLR 496 (folld) POSH Semco Pte Ltd v Makamin Petroleum Services Co [2021] 3 SLR 203 (refd) Ralls Builders Ltd (No 2), Re [2016] 1 WLR 5190 (refd) Scintronix Corp Ltd v Ho Kang Peng [2011] SGHC 28 (refd) Senda International C......

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