Nambu PVD v UBTS: Exclusion Clauses & Contractual Terms in Machine Transport
Nambu PVD Pte Ltd sued UBTS Pte Ltd for damages to a Prefabricated Vertical Drain machine that was damaged by fire during transport under a contract. The High Court found UBTS negligent but awarded Nambu only $248,240.00 in damages. Nambu appealed the quantum of damages, and UBTS appealed the finding that the Singapore Logistics Association's standard terms were not incorporated into the contract. The Court of Appeal dismissed both appeals, agreeing with the High Court's reasoning on quantum and incorporation.
1. Case Overview
1.1 Court
Court of Appeal of the Republic of Singapore1.2 Outcome
Both appeals dismissed.
1.3 Case Type
Civil
1.4 Judgment Type
Judgment
1.5 Jurisdiction
Singapore
1.6 Description
Appeal concerning fire damage to a machine during transport. Court dismissed appeals regarding damages and incorporation of logistics association terms.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Nambu PVD Pte Ltd | Appellant, Plaintiff | Corporation | Appeal Dismissed | Lost | |
| UBTS Pte Ltd | Respondent, Defendant, Appellant | Corporation | Appeal Dismissed | Lost |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Andrew Phang Boon Leong | Justice of the Court of Appeal | Yes |
| Judith Prakash | Justice of the Court of Appeal | No |
| Tay Yong Kwang | Justice of the Court of Appeal | No |
4. Counsels
4. Facts
- Nambu and UBTS entered into a contract for UBTS to transport a Prefabricated Vertical Drain machine.
- The vehicle from UBTS which carried the Machine caught fire during the course of the carriage, and the Machine was damaged.
- Nambu sued UBTS for fire damage to the Machine.
- The High Court judge found that the fire was due to negligence on UBTS’s part.
- The Judge only awarded Nambu $248,240.00, together with interest and costs of $160,000.00 (excluding disbursements).
- UBTS argued that the SLA T&Cs had been incorporated in the subject contract by virtue of a previous course of dealing.
- The invoices and DOs were always issued after a contract between Nambu and UBTS had been orally concluded.
5. Formal Citations
- Nambu PVD Pte Ltd v UBTS Pte Ltd and another appeal, Civil Appeals Nos 2 and 16 of 2021, [2021] SGCA 98
6. Timeline
| Date | Event |
|---|---|
| Machine damaged by fire during transport. | |
| UBTS sent Nambu an email asking it to take back the Machine. | |
| Nambu expressed its unhappiness that UBTS was asking it to take back the Machine. | |
| Judge decided that the Machine could have been repaired by this date. | |
| Loss insurer contacted the parties to reject Nambu’s claim. | |
| Suit No 889 of 2019 filed. | |
| Appeals heard. | |
| Judgment reserved. |
7. Legal Issues
- Incorporation of Standard Terms and Conditions
- Outcome: The court held that the Singapore Logistics Association's standard terms and conditions were not incorporated into the contract through either reasonable notice or a previous course of dealing.
- Category: Substantive
- Sub-Issues:
- Previous course of dealing
- Reasonable notice
- Quantum of Damages
- Outcome: The court upheld the Judge's assessment of damages, finding that the Machine could have been repaired for less than its replacement cost and that Nambu's claims for loss of use, storage, and relocation charges were limited to a six-month period.
- Category: Substantive
- Sub-Issues:
- Assessment of repair costs
- Loss of use
- Storage and relocation charges
- Loss of profits
- Negligence
- Outcome: The High Court found that the fire was due to negligence on UBTS’s part.
- Category: Substantive
8. Remedies Sought
- Monetary Damages
9. Cause of Actions
- Negligence
- Breach of Contract
10. Practice Areas
- Commercial Litigation
- Contract Disputes
11. Industries
- Transportation
- Construction
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Nambu PVD Pte Ltd v UBTS Pte Ltd | High Court | Yes | [2021] SGHC 20 | Singapore | The Court of Appeal upheld the High Court's findings on negligence and incorporation of terms, but disagreed on the quantum of damages. |
| Tat Seng Machine Movers Pte Ltd v Orix Leasing Singapore Ltd | Court of Appeal | Yes | [2009] 4 SLR(R) 1101 | Singapore | Cited for the principle that appellate intervention in a trial judge's findings of fact is only warranted when the assessment is plainly wrong or manifestly against the weight of the evidence. |
| Tan Mui Teck v Public Prosecutor | High Court | Yes | [2003] 3 SLR(R) 139 | Singapore | Cited for the principle that expertise may be acquired either through study or through experience. |
| Wartsila Singapore Pte Ltd v Lau Yew Chong and another suit | High Court | Yes | [2017] 5 SLR 268 | Singapore | Cited for the principle that reasonable notice and previous course of dealing are distinct grounds of incorporation. |
| R1 International Pte Ltd v Lonstroff AG | Court of Appeal | Yes | [2015] 1 SLR 521 | Singapore | Cited as an example of incorporation by reference, where contracting parties supplement an otherwise bare agreement with more detailed terms subsequently. |
| Chapelton v Barry Urban District Council | English Court of Appeal | Yes | [1940] 1 KB 532 | England and Wales | Cited for the principle that a term will not be incorporated into the contract if the document containing the term is intended merely as a receipt and not as a contractual document. |
| Olley v Marlborough Court Limited | English Court of Appeal | Yes | [1949] 1 KB 532 | England and Wales | Cited for the principle that a term will not be incorporated into the contract if the document containing the term is intended merely as a receipt and not as a contractual document. |
| La Rosa v Nudrill Pty Ltd | Court of Appeal of Western Australia | Yes | [2013] WASCA 18 | Australia | Discussed and not followed for its obiter observations that a term sought to be incorporated by way of a previous course of dealing need not have been incorporated in a previous contract. |
| Rinaldi & Patroni Pty Ltd v Precision Mouldings Pty Ltd | Supreme Court of Western Australia | Yes | [1986] WAR 131 | Australia | Cited as an authority supporting the proposition that non-contractual documents do not give rise to a course of dealing. |
| DJ Hill & Co Pty Ltd v Walter H Wright Pty Ltd | Supreme Court of Victoria | Yes | [1971] VR 749 | Australia | Cited as an authority supporting the proposition that non-contractual documents do not give rise to a course of dealing. |
| Brambles Holdings Ltd v WMC Engineering Services Pty Ltd | Supreme Court of Western Australia | Yes | [1999] WASCA 1010 | Australia | Cited as an authority supporting the proposition that non-contractual documents do not give rise to a course of dealing. |
| Henry Kendall & Sons v William Lillico & Sons Ltd | House of Lords | Yes | [1969] 2 AC 31 | United Kingdom | Cited as a case where a course of dealing concerned contractual documents. |
| Huationg Contractor Pte Ltd v Choon Lai Kuen (trading as Yishun Trading Towing Service) | High Court | Yes | [2020] SGHC 129 | Singapore | Cited as a case where non-contractual documents were found not to give rise to a course of dealing. |
| Vinmar Overseas (Singapore) Pte Ltd v PTT International Trading Pte Ltd | Court of Appeal | Yes | [2018] 2 SLR 1271 | Singapore | Cited as a case where a course of dealing was found to have been effective in incorporating an exclusive jurisdiction clause because the clause constituted express terms of the previous contracts. |
| Circle Freight International Ltd v Medeast Gulf Exports Ltd | English Court of Appeal | Yes | [1988] 2 Lloyd's Rep 427 | England and Wales | Distinguished from the present case because the consignor's managing director knew that some terms applied and that forwarding agents might impose terms which would frequently deal with risk. |
| British Crane Hire Corp Ltd v Ipswich Plant Hire Ltd | English Court of Appeal | Yes | [1975] 1 QB 303 | England and Wales | Cited as a case related to the doctrine of trade practice, where the parties concerned were plant hirers who were therefore in the trade and who were of equal bargaining power. |
| Hollier v Rambler Motors (AMC) Ltd | English Court of Appeal | Yes | [1972] 2 QB 71 | England and Wales | Distinguished from British Crane Hire because the plaintiff and defendants were from 'wholly different walks of life'. |
| Pondcil Pty Ltd v Tropical Reef Shipyard Pty Ltd | Federal Court of Australia | Yes | [1994] FCA 1206 | Australia | Cited as an authority supporting the proposition that non-contractual documents do not give rise to a course of dealing. |
| Remath Investments No 6 Pty Ltd v Chanel (Australia) Pty Ltd | New South Wales Court of Appeal | Yes | [1992] NSWCA 208 | Australia | Cited as an authority supporting the proposition that non-contractual documents do not give rise to a course of dealing. |
13. Applicable Rules
| Rule Name |
|---|
| No applicable rules |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| No applicable statutes | |
15. Key Terms and Keywords
15.1 Key Terms
- Prefabricated Vertical Drain machine
- Standard terms and conditions
- Incorporation of terms
- Course of dealing
- Reasonable notice
- Exclusion clause
- Invoices
- Delivery Orders
15.2 Keywords
- contract
- exclusion clause
- negligence
- damages
- transport
- incorporation
- standard terms
- course of dealing
17. Areas of Law
16. Subjects
- Contract Law
- Transportation
- Civil Litigation