Offshoreworks Global v POSH Semco: Guarantee, Summary Judgment & Corporate Representation
Offshoreworks Global (L) Ltd (“OWG”) appealed against the High Court's decision to grant summary judgment to POSH Semco Pte Ltd (“POSH”) for US$3,306.446.50 under a guarantee. The Court of Appeal of the Republic of Singapore, comprising Andrew Phang Boon Leong JA, Arjan Kumar Sikri IJ, and David Edmond Neuberger IJ, dismissed OWG's appeal, affirming the lower court's findings. The court also addressed the issue of corporate self-representation by foreign entities in Singapore International Commercial Court (SICC) matters, concluding that it is not permitted under the current legal regime.
1. Case Overview
1.1 Court
Court of Appeal of the Republic of Singapore1.2 Outcome
Appeal Dismissed
1.3 Case Type
Civil
1.4 Judgment Type
Judgment
1.5 Jurisdiction
Singapore
1.6 Description
Appeal regarding summary judgment on a guarantee. The court addressed corporate self-representation for foreign entities and upheld the summary judgment.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| POSH Semco Pte Ltd | Respondent, Plaintiff | Corporation | Judgment for Plaintiff | Won | |
| Makamin Petroleum Services Co | Defendant | Corporation | |||
| Offshoreworks Global (L) Ltd | Appellant | Corporation | Appeal Dismissed | Lost | Koh Chen Tien of Offshoreworks Global (L) Ltd |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Andrew Phang Boon Leong | Judge of Appeal | Yes |
| Arjan Kumar Sikri | International Judge | No |
| David Edmond Neuberger | International Judge | No |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Gan Yun Han Rebecca | Allen & Gledhill LLP |
| Chan Tai-Hui Jason | Allen & Gledhill LLP |
| Kek Meng Soon Kelvin | Allen & Gledhill LLP |
| Oh Jialing Evangeline | Allen & Gledhill LLP |
| Koh Chen Tien | Offshoreworks Global (L) Ltd |
4. Facts
- POSH applied for summary judgment against OWG for S$4,078,226.48 and a declaration that a guarantee issued by OWG was an “on-demand performance guarantee”.
- OWG and MPS are shareholders of Makamin Offshore Saudi Ltd, with OWG being the majority shareholder.
- The Charterer entered into a time charterparty with POSH in relation to the vessel “POSH Pelican” on 28 October 2013.
- POSH claimed that the Charterer owed POSH over US$3.7m pursuant to the Original Charterparty as of 17 October 2014.
- OWG issued a guarantee in favor of POSH, guaranteeing the due and faithful performance by the Charterer of all its obligations.
- The Charterer and POSH entered into a settlement agreement on 15 November 2015 regarding the outstanding debt.
- The Charterer failed to make payment of the 3rd instalment under the Settlement Agreement by the agreed date.
- POSH withdrew its vessel and terminated the Charterparty for the Charterer’s alleged repudiatory breach on 26 March 2016.
5. Formal Citations
- Offshoreworks Global (L) Ltd v POSH Semco Pte Ltd, Civil Appeal No 180 of 2019, [2020] SGCA(I) 4
6. Timeline
| Date | Event |
|---|---|
| Original Charterparty entered into | |
| POSH claimed Charterer owed over US$3.7m | |
| Guarantees signed by OWG, MPS, Cpt Koh, and Dr Abdullah Aseeri Ali | |
| Settlement Agreement entered into | |
| Charterer failed to make payment of the 3rd instalment | |
| POSH demanded Charterer fulfil obligation to pay remaining Outstanding Debt | |
| POSH demanded Charterer fulfil obligation to pay remaining Outstanding Debt | |
| POSH withdrew its vessel and terminated the Charterparty | |
| Saudi Court ordered the Charterer to pay POSH US$2,812,904.26 | |
| SIC/Suit No 1 of 2019 filed | |
| Civil Appeal No 180 of 2019 filed | |
| Hearing before the Court of Appeal | |
| Adjournment until the week commencing 25 May 2020 | |
| Final hearing before the court | |
| Judgment reserved |
7. Legal Issues
- Corporate Self-Representation
- Outcome: The court held that under the present legal regime, the prohibitions against corporate self-representation in O 5 r 6(2) and O 12 r 1(2) do apply to SICC matters and that the leave mechanism in O 1 r 9(2) is not available to foreign bodies corporate appearing in SICC matters.
- Category: Procedural
- Consideration for Guarantee
- Outcome: The court held that there was sufficient consideration in law for the OWG Guarantee.
- Category: Substantive
- Interpretation of Guarantee
- Outcome: The court held that the Post-Addendum Charterparty fell within the general purview of the OWG Guarantee.
- Category: Substantive
- Termination of Charterparty
- Outcome: The court held that POSH was entitled to terminate the Post-Addendum Charterparty.
- Category: Substantive
- Settlement Agreement and Guarantee
- Outcome: The court held that the terms of the Settlement Agreement and the obligations which arise under it do fall within the ambit of the OWG Guarantee.
- Category: Substantive
- Relevance of Saudi Court Judgment
- Outcome: The court held that the amount that the Saudi Court had ordered the Charterer to pay POSH should not be in any way relevant to or binding on the principal amount that the Judge had entered summary judgment for in the court below.
- Category: Substantive
- Interest on Claim
- Outcome: The court held that OWG was liable for the interest amounts claimed by POSH under Invoice Nos 2008041 and 2008387 and that the indemnity provision in paragraph 4 of the OWG Guarantee was wide enough to include the interest on the claim.
- Category: Substantive
8. Remedies Sought
- Monetary Damages
- Summary Judgment
- Declaration that a guarantee was an on-demand performance guarantee
9. Cause of Actions
- Breach of Contract
- Breach of Guarantee
10. Practice Areas
- Commercial Litigation
11. Industries
- Shipping
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Melvin International SA v Poseidon Schiffahrt GmbH (The “Kalma”) | Unknown | Yes | [1999] 2 Lloyd’s Rep 374 | England and Wales | Distinguished from the present facts regarding the fundamental nature of variations to a charterparty. |
| Allergan, Inc v Ferlandz Nutra Pte Ltd | High Court | Yes | [2015] 2 SLR 94 | Singapore | Cited for its observations on the amendments to Order 1 Rule 9 of the Rules of Court in 2014. |
| Arris Solutions, Inc v Asian Broadcasting Network (M) Sdn Bhd | Singapore International Commercial Court | Yes | [2017] 4 SLR 1 | Singapore | Cited as an example of the SICC adopting relevant rules in the High Court. |
| CPIT Investments Ltd v Qilin World Capital Ltd and another | Singapore International Commercial Court | Yes | [2017] 5 SLR 148 | Singapore | Cited as an example of the SICC adopting relevant rules in the High Court. |
| Telemedia Pacific Group and another v Yuanta Asset Management International Limited and another | Singapore International Commercial Court | Yes | [2017] 4 SLR 26 | Singapore | Cited as an example of the SICC adopting relevant rules in the High Court. |
| BNP Paribas SA v Jacob Agam and another | Court of Appeal | Yes | [2019] 1 SLR 83 | Singapore | Cited for the application of Order 110 Rules 1(1) and 3 of the Rules of Court in relation to the issue of the service of court documents. |
| Bulk Trading SA v Pevensey Pte Ltd and another | High Court | Yes | [2015] 1 SLR 538 | Singapore | Cited for the observations that the court should be more willing to grant leave pursuant to O 1 r 9(2) where the company is the defendant because the defendant company is effectively before the court involuntarily. |
| Sim Tony v Lim Ah Ghee (trading as Phil Real Estate & Building Services) | Court of Appeal | Yes | [1995] 1 SLR(R) 886 | Singapore | Cited for the principle that the past consideration rule does not simply look at strict chronology. |
| Rainforest Trading Ltd and another v State Bank of India Singapore | Court of Appeal | Yes | [2012] 2 SLR 713 | Singapore | Cited for the principle that a strictly chronological approach in determining whether consideration is past or not is deeply unrealistic and unnecessarily restrictive. |
| Gay Choon Ing v Loh Sze Ti Terence Peter and another appeal | Court of Appeal | Yes | [2009] 2 SLR(R) 332 | Singapore | Cited for the principle that the courts look to the substance rather than the form of the transaction regarding past consideration. |
| Williams v Roffey Bros & Nicholls (Contractors) Ltd | English Court of Appeal | Yes | [1991] 1 QB 1 | England and Wales | Cited for the principle that consideration need not be a legal benefit to the counterparty but could be a factual or practical benefit obtained or detriment avoided. |
| Sea-Land Service Inc v Cheong Fook Chee Vincent | Court of Appeal | Yes | [1994] 3 SLR(R) 250 | Singapore | Cited as a Singapore case that recognized Williams v Roffey Bros & Nicholls (Contractors) Ltd. |
| Teo Seng Kee Bob v Arianecorp Ltd | High Court | Yes | [2008] 3 SLR(R) 1114 | Singapore | Cited as a Singapore case that recognized Williams v Roffey Bros & Nicholls (Contractors) Ltd. |
| PT Jaya Sumpiles Indonesia and another v Kristle Trading Ltd and another appeal | Court of Appeal | Yes | [2009] 3 SLR(R) 689 | Singapore | Approved the Re Kitchin principle that a judgment against a principal debtor is not binding on the guarantor. |
| Ex parte Young; In re Kitchin | Unknown | Yes | (1881) 17 Ch D 668 | England and Wales | Cited for the principle that a judgment or an award against a principal debtor is not binding on the guarantor. |
13. Applicable Rules
| Rule Name |
|---|
| Rules of Court (Cap 322, R 5, 2014 Rev Ed) |
| Order 5 Rule 6(2) of the Rules of Court |
| Order 12 Rule 1(2) of the Rules of Court |
| Order 1 Rule 4(2) of the Rules of Court |
| Order 1 Rule 9(2) of the Rules of Court |
| Order 1 Rule 9(6) of the Rules of Court |
| Order 1 Rule 9(5) of the Rules of Court |
| Order 110 Rule 1(1) of the Rules of Court |
| Order 110 Rule 3 of the Rules of Court |
| Order 57 Rule 18(1) of the Rules of Court |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) | Singapore |
| Companies Act (Cap 50, Rev Ed 2006) | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Guarantee
- Charterparty
- Settlement Agreement
- Outstanding Debt
- Summary Judgment
- Corporate Self-Representation
- SICC
- Consideration
- Post-Addendum Charterparty
- OWG Guarantee
15.2 Keywords
- Guarantee
- Summary Judgment
- Corporate Representation
- SICC
- Singapore International Commercial Court
- Charterparty
- Consideration
17. Areas of Law
| Area Name | Relevance Score |
|---|---|
| Guarantee | 80 |
| Contract Law | 75 |
| Guarantees and indemnities | 70 |
| Civil Procedure | 60 |
| Rules of court | 50 |
| Commercial Law | 40 |
| Non-compliance | 40 |
| Banking and Finance | 30 |
| Arbitration | 20 |
16. Subjects
- Contract Law
- Civil Procedure
- Corporate Law
- International Commercial Law