Trans-Link Exhibition Forwarding Pte Ltd v Wadkin Robinson Asia Pte Ltd

• Jurisdiction: Singapore
• Judgment Date: 12 March 1996
• Date: 12 March 1996
• Docket Number: Civil Appeal No 139 of 1994
• Court: Court of Appeal (Singapore)

Trans-Link Exhibition Forwarding Pte Ltd

Plaintiff

and

Wadkin Robinson Asia Pte Ltd

Defendant

[1996] SGCA 11

Yong Pung How CJ

,

M Karthigesu JA

and

L P Thean JA

Civil Appeal No 139 of 1994

Court of Appeal

Agency–Evidence of agency–Transportation contract between forwarder and customer–Forwarder transporting goods to customer's distributor without express authority from customer–Forwarder claiming instructions given by authorised third party–No firm evidence that third party so authorised or actually employee of customer–Forwarder assuming distributor was agent of customer–Whether forwarder established authority of third party–Whether distributor had ostensible authority–Contract–Contractual terms–Incorporation of terms–Industry terms expressly incorporated in first and second contracts between parties but not third contract–Express incorporation in form of fine print–Nature of third contract different from first and second contracts–Whether industry terms incorporated in third contract by sufficient previous course of dealing–Tort–Negligence–Defences–Waiver–Victim entered into settlement with one tortfeasor but not other–Settlement did not fully satisfy loss–Whether victim entitled to pursue claim against other tortfeasor

The appellant entered into a series of contracts with the respondent to transport the respondent's exhibits for an exhibition in Jakarta. The first and second contracts governed the transport of exhibits to Jakarta, while the third concerned the transfer of the exhibits to a bonded warehouse after the exhibition. Without taking the respondent's instructions, the appellant delivered the exhibits to Sudagu Dianta (“SD”), the distributor of the respondent's products in Indonesia. The appellant alleged that the delivery was authorised by one Fonteijn who had acted for the respondent. SD subsequently paid the respondent $206,800 in final settlement but the dispute between the appellant and the respondent remained unresolved.

The appellant took out a writ claiming a sum of $29,447.20 for the transportation charges. The respondent denied the claim and counterclaimed the value of the machines that had been misdelivered to SD less the sum that had been paid by SD. The trial judge allowed both the claim and counterclaim and awarded the respondent the cost, stocking cost and profit margin of the exhibits misdelivered. The appellant appealed.

The five issues before the court were: (a) whether the delivery of the machines to SD was authorised by the respondent; (b) whether the Singapore Freight Forwarders Association (“SFFA”) terms were incorporated into the contracts between the parties; (c) whether the payment of $206,800 by SD to the respondent was a satisfaction of the respondent's claim; (d) whether by virtue of the settlement with SD, the respondent had waived the tort committed by the appellant; and (e) the quantum of the award.

Held, allowing the appeal in part:

(1) The judge was correct in finding that Fonteijn had no authority to instruct delivery of the machines to SD and that SD had no apparent or ostensible authority to act on the respondent's behalf. SD was the respondent's distributor or selling agent in Indonesia and nothing more: at [15] and [17].

(2) There was no express incorporation of the SFFA terms in the third contract. There was also no implied incorporation of the SFFA terms as there was no evidence of a sufficient course of dealing between the parties on the basis that the respondent had sufficient notice of the SFFA terms and by implication the same had been incorporated in the third contract: at [19], [22] and [25].

(3) The settlement reached between the respondent and SD was wholly a matter between the two of them, and it was open to the respondent to accept from SD a sum of money which was less than the actual value, leaving the balance to be claimed from the appellant: at [28].

(4) The respondent had not waived the tort committed by the appellant. Both the appellant and SD were tortfeasors. The respondent was entitled to pursue its claims against SD as well as the appellant either together at the same time or separately at different times. Having obtained payment from SD which did not fully satisfy its loss, the respondent was entitled to pursue its claim against the appellant for the balance of the loss: at [29].

(5) The costs of the items were proved, but there was no evidence of the stocking costs and profits. As such, the quantum of damages was reduced by excluding the two items. Interest should be awarded to the respondents for the period from the date of the respondent's counterclaim to the date of judgment: at [39] and [40].

Burn v Morris (1834) 4 Tyr 485 (refd)

Circle Freight International Ltd v Medeast Gulf Exports Ltd [1988] 2 Lloyd's Rep 427 (distd)

Eastman Chemical International AG v NMT Trading Ltd [1972] 2 Lloyd's Rep 25 (distd)

Morris v Robinson (1824) 3 B & C 196; 107 ER 706 (refd)

Olley v Marlborough Court Limited [1949] 1 KB 532 (refd)

Rice v Reed [1900] 1 QB 54 (folld)

Verschures Creameries, Limited v Hull and Netherlands Steamship Company, Limited [1921] 2 KB 608 (distd)

Unfair Contract Terms Act1977 (c 50) (UK)

Belinda Ang and Goh Kok Leong (Ang & Pnrs) for the appellant

Yeo Hock Cheong and Jimmy Yap (Hock Cheong & Co) for the respondent.

Judgment reserved.

L P Thean JA

(delivering the judgment of the court):

1 This is an appeal from the decision of the High Court allowing the counterclaim of the respondents for damages for wrongful delivery by the appellants to an Indonesian company of several items of machinery belonging to the respondents. The material facts that gave rise to this appeal are as follows.

The facts

2 The appellants are a member of a group of companies involved in transportation and exhibition logistics and were the official forwarders of exhibits and materials for an exhibition, Woodworking and Forestry Indonesia '88, in Jakarta in 1988. The respondents were one of the participants in that exhibition and had to transport their exhibits, which were woodworking machines, from Singapore to Jakarta. Arrangements were made between the appellants and the respondents for the shipment of the exhibits which was duly carried out by the appellants in September 1988. Two shipments in all were made by the appellants.

3 In Jakarta, the appellants assisted the respondents, who were then represented by one Swee Geok Khoon (“Swee”), to set up the exhibits. Upon the setting up of the exhibits but before the start of the exhibition, Swee returned to Singapore. Arrangements were then made between the respondents and the appellants for the transfer of the exhibits, through the latter's Indonesian counterparts, to a bonded warehouse after the close of the exhibition. Accordingly, after the exhibition the exhibits were transferred to the bonded warehouse. Subsequently, the appellants' Indonesian counterparts delivered some of the exhibits to an Indonesian company, PT Sudagu Dianta (“Sudagu Dianta”), who were the distributors of the respondents' products in Indonesia. In total, six machines were delivered to Sudagu Dianta, and they consisted of the following:

(a) A Wadkin Robinson Moulder, model GA220/2S+1;

(b) A Wadkin Robinson Moulder, model GB-220M;

(c) A Wadkin Robinson Moulder, model XJ-220;

(d) A Wadkin Robinson Grinder, model NXU-230S;

(e) A Wadkin Robinson Cross-Cut Saw, model BRA-350/4; and

(f) A CKD Dust Extractor.

4 This delivery was made pursuant to a request by Sudagu Dianta. The appellants did not verify with the respondents the legitimacy of the request. The respondents subsequently informed the appellants that no delivery of any machine was to be made without instructions from the former, but this direction came too late, as delivery had by then been made. A dispute then arose between the parties. Subsequently, negotiations took place between Sudagu Dianta and the respondents and a settlement was reached, under which Sudagu Dianta paid to the respondents a sum of $206,800 in final settlement. However, the dispute between the appellants and the respondents remained unresolved, and the respondents refused to pay the appellants the charges for the services rendered by the latter.

5 In 1990, the appellants took out a writ in the District Court claiming a sum of $29,447.20 being the charges for the transport of the exhibits to Jakarta, as well as for moving them to the bonded warehouse and the return of some other exhibits to Singapore. The respondents denied the claim and counterclaimed the value of the machines that had been misdelivered to Sudagu Dianta. The matter was eventually heard in the High Court.

The appellants' case

6 In support of their claim for the services rendered, the appellants contended that the transactions between the parties were contained in separate contracts: two to move two sets of exhibits to Jakarta, one to move the exhibits to the bonded warehouse, and finally one to move a small number of the exhibits back to Singapore. The total amount due under these contracts came to $29,447 and the appellants claimed that they were entitled to this amount for the services rendered, notwithstanding the allegation of misdelivery of the exhibits.

7 As regards the counterclaim, several defences were raised by the appellants. First, they contended that the delivery to Sudagu Dianta were authorised by one Jay J Fonteijn (“Fonteijn”) acting for the respondents. Fonteijn was present at the exhibition and was seeking employment from the respondents, and at some stage he was employed by the respondents. They alleged that Swee told the appellants' representative, one Danny Khor Beng Leong (“Khor”), that Fonteijn would be giving instructions on the disposal of the exhibits. The appellants were also informed by Swee that Sudagu Dianta were the respondents' agents, and that was understood by the appellants to mean that Sudagu...