IN THE HIGH COURT OF THE REPUBLIC OF …

1 IN THE HIGH COURT OF THE REPUBLIC OF SINGAPORE[2018] SGHC 73 Suit No 44 of 2016 BetweenMATTHEWSDANIEL INTERNATIONAL PTE Plaintiff AndKITH MARINE & ENGINEERING SDN Defendant JUDGMENT[Agency] [evidence of agency][Contract] [contractual terms] [admissibility of evidence][Contract] [contractual terms] [parol evidence rule]iTABLE OF TO THE formation of the services were duly rendered by the defendant s difficulties in obtaining payment from defendant s request for the plaintiff to invoice Dragon defendant s continued failure to PARTIES TO BE 1: WHETHER THE DEFENDANT SHOULD, AS A MATTER OF LAW, BE PERSONALLY LIABLE UNDER THE CONTRACT GIVEN THAT ITS SIGNATURE WAS 2: WHETHER EXTRINSIC EVIDENCE CAN BE ADDUCED TO CONTRADICT WHAT IS STATED IN THE CONTRACT AS TO WHO THE PARTIES EQUIVOCALITY OF THE 17 SEPTEMBER 3.

2 WHETHER DRAGON S SUBSEQUENT RATIFICATION OF THE CONTRACT ABSOLVES THE DEFENDANT OF PAYABLE BY THE judgment is subject to final editorial corrections approved by the COURT and/or redaction pursuant to the publisher s duty in compliance with the law, for publication in LawNet and/or the Singapore Law International Pte Ltd vKith Marine & Engineering Sdn Bhd [2018] SGHC 73 High COURT Suit No 44 of 2016 Andrew Ang SJ9, 10 January 201828 March 2018 Judgment Ang SJ:Introduction1 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, The plaintiff is also claiming interest on the unpaid sums amounting to a total of USD 52, , calculated based on a formula found in the plaintiff s standard terms and conditions of service ( plaintiff s Standard Terms ).

3 2 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 MatthewsDaniel International Pte Ltd v[2018] SGHC 73 Kith Marine & Engineering Sdn Bhd2hand, 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 ).

4 Therefore, the defendant claims that it is not personally liable to pay the plaintiff under the The parties 3 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 to the disputeThe genesis4On 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 was acting as the agent for Amar Offshore ( Amar ), the owner of an oil rig named Trident VI.

5 Trident VI was later renamed United 1 . For the avoidance of confusion, I shall refer to this oil rig as the First Rig. 5 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 1 Affidavit of Mohamed Taib Bin Abdullah dated 24 November 2017 ( Taib s Affidavit ), MT-1, p International Pte Ltd v[2018] SGHC 73 Kith Marine & Engineering Sdn Bhd3the requisite marine warranty surveyor s clearance. 6On 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 ).

6 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 .7 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.

7 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 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 Miller Insurance thereafter provided the plaintiff with the contact details of the defendant, who it said was the representative of the owners of the Meanwhile, Dragon informed the defendant that the plaintiff would be the ones carrying out the marine warranty survey for the Affidavit of Shaik Esmail Sahib Bin Adbul Rahiman dated 24 November 2017 ( Shaik s Affidavit )

8 , SESBAR-3, p Shaik s Affidavit, SESBAR-4, p Shaik s Affidavit, SESBAR-4, p Taib s Affidavit, MT-1, p International Pte Ltd v[2018] SGHC 73 Kith Marine & Engineering Sdn Bhd4 The formation of the contract8 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 Notably, Dragon was not copied in this email.

9 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 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 Nothing was mentioned about the defendant acting as agent for 17 September 2013, Taib sent an email to Shaik, copying Ghaffari from Dragon ( the 17 September Email ).

10 The email stated as follows:Shaik,6 Shaik s Affidavit, SESBAR-5, p Taibs Affidavit, para Shaik s Affidavit, SESBAR-7, p International Pte Ltd v[2018] SGHC 73 Kith Marine & Engineering Sdn Bhd5 Please refer email below which is will furnish the Appointment Letter/PO the above in order and do not hesitate to call , QUOTE Dear Mohamed,Please arrange a MWS with Mattews [sic] Daniel and get required approvals for the 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.