Yokogawa Engineering Asia Pte Ltd v Transtel Engineering Pte Ltd

• Jurisdiction: Singapore
• Judgment Date: 02 January 2009
• Date: 02 January 2009
• Docket Number: Originating Summons No 814 of 2008
• Court: High Court (Singapore)

Yokogawa Engineering Asia Pte Ltd

Plaintiff

and

Transtel Engineering Pte Ltd

Defendant

[2009] SGHC 1

Judith Prakash J

Originating Summons No 814 of 2008

High Court

Civil Procedure–Stay of proceedings–Whether arbitration proceedings should be stayed–Equity–Estoppel–Estoppel by representation–Prerequisites–Whether contractor's conduct and letter constituted operative representations–Whether subcontractor relied on contractor's representations–Whether subcontractor suffered detriment in reliance on contractor's representations

The plaintiff, Yokogawa Engineering Asia Pte Ltd, was selected to execute works (“the Works”) for a project known as the Trans Thailand Malaysia (TTM) Project Gas Project. By an agreement entered into between the plaintiff and the defendant (“the Transtel Sub-Contract”), the defendant agreed to execute the Works for the plaintiff. The Transtel Sub-Contract provided that all disputes were to be settled by arbitration in accordance with the provisions of cl 20 of the General Conditions of Sub-Contract (“General Conditions”). The Transtel Sub-Contract did not enclose a copy of the applicable General Conditions. The one and only copy of the General Conditions provided by the plaintiff to the defendant contained a dispute resolution clause, cl 19, which provided for arbitration in Singapore under the Rules of Arbitration of the ICC International Court of Arbitration (“the ICC”). The plaintiff submitted that this particular version of the General Conditions was outdated and invalid. Clause 20 of the plaintiff's version of the General Conditions provided for arbitration in Thailand in accordance with the rules of the Arbitration Institute of the Ministry of Justice, Thailand. On 5 February 2008, the ICC informed the plaintiff that the defendant had referred disputes which had arisen to arbitration under its jurisdiction. The plaintiff objected to the jurisdiction of the ICC. Nevertheless, the ICC decided that it had jurisdiction to hear and decide the disputes. Accordingly, the plaintiff applied to the High Court for a stay of the arbitration proceedings commenced by the defendant.

Held, dismissing the plaintiff's application:

(1) The plaintiff was estopped, by virtue of its representations, from insisting that the dispute resolution mechanism relating to the Project was not arbitration in Singapore under the Rules of Arbitration of the ICC: at [6].

(2) The plaintiff's conduct in misleading the defendant constituted an operative representation. Although cl 20 was the dispute resolution clause incorporated into the Transtel Sub-Contract, the plaintiff had, by its conduct, misled the defendant into thinking that the wording of cl 20 was as found in cl 19 of the defendant's version of the General Conditions. Since the plaintiff only furnished the defendant this outdated or invalid copy of the General Conditions, it had to have known that the defendant would take this version, with its antecedent dispute resolution clause, to be the applicable version: at [9], [11] and [13].

(3) The plaintiff had a continuing duty to correct the defendant's erroneous view as to the applicable dispute resolution mechanism but failed to do so for more than four years: at [12].

(4) The plaintiff's own letter instructed the defendant to resolve the dispute in relation to the Project by reference to arbitration in Singapore under the Rules of Arbitration of the ICC. This constituted an operative written representation. Taking the plaintiff's conduct together with this written representation, it was clear that the plaintiff had represented that the dispute resolution mechanism provided for in the Transtel Sub-Contract was for arbitration in Singapore under the Rules of Arbitration of the ICC: at [15]and [17].

(5) The defendant had relied on the plaintiff's representations by requesting arbitration from the ICC. It also suffered detriment in the form of the advance for costs it had paid to the ICC as well as by the time wasted. As such, all the elements of estoppel by representation were fulfilled: at [18], [19] and [20].

Keppel Tatlee Bank Ltd v Teck Koon Investment Pte Ltd [2000] 1 SLR (R) 355; [2000] 2 SLR 366 (folld)

United Overseas Bank Ltd v Bank of China [2006] 1 SLR (R) 57; [2006] 1 SLR 57 (folld)

Lawrence Tan and Sandra Tan (Drew & Napier LLC) for the plaintiff

Vincent Chan (Chan & Goh) for the defendant.

Judith Prakash J

Introduction

1 In October 2003, the plaintiff, Yokogawa Engineering Asia Pte Ltd (“the plaintiff”), was selected by Nacap Asia Pacific Sdn Bhd (“Nacap”) to execute, complete and maintain the Supervisory Control and Data Acquisition, Telecommunications and Metering works to be carried out in Thailand and Malaysia (“the Works”) for a project known as the Trans Thailand Malaysia (TTM) Project Gas Project, Onshore Pipeline System (“the Project”).

2 By an agreement entered into between the plaintiff and the defendant, Transtel Engineering Pte Ltd (“the defendant”), on 26 January 2004 (“the Transtel Sub-Contract”), the defendant agreed to execute, complete and maintain the Works for the Plaintiff. The pertinent clause in the Transtel Sub-Contract reads as follows:

All disputes and differences which arise between the CONTRACTOR and the SUB-CONTRACTOR in connection with or...