Inter Equipos Navales SA v Lew Kah Choo
| Jurisdiction | UK Non-devolved |
| Judgment Date | 18 November 1985 |
| Date | 18 November 1985 |
| Docket Number | Privy Council Appeal No 32 of 1984 |
| Court | Privy Council |
[1985] SGPC 9
Privy Council
Lord Keith of Kinkel
,
Lord Fraser of Tullybelton
,
Lord Roskill
,
Lord Brandon of Oakbrook
and
Lord Mackay of Clashfern
Privy Council Appeal No 32 of 1984
George Newman QC and Austin Allison (Coward Chance) for the appellant
Leolin Prince, Cheong Yuen Hee and Andrew De La Rosa (Jaques & Lewis) for the respondents.
Civil Procedure–Appeals–Appeal against findings of fact by trial judge–Principal witness found by trial judge to be unreliable on issues involving witness' reliability and accuracy of memory–Trial judge accepting evidence of principal witness in relation to what he saw–Whether appellate court entitled to interfere with findings of trial judge
This case involved a claim brought by the appellant in respect of goods supplied on consignment to the respondents. The goods had been supplied pursuant to an arrangement the precise nature and extent of which were in dispute.
The respondents contended that an oral agreement had been reached, under which they had been appointed as the appellant's sole agents and distributors for the Far East and Asean region for a two-year period (“the arrangement”). However, the appellant contended that the respondents' appointment had been a provisional one, and was only confirmed subsequently. The appellant also alleged that the respondents' distributorship rights related only to Singapore, Malaysia and Hong Kong, that there was no sole agency and that the appointment was not for any fixed period.
In addition, the respondents brought a counterclaim for damages. The respondents alleged that the appellant had breached the arrangement by incorporating a company for the sale of its products in the Far East and Asean regions.
The trial judge held that the respondents were the sole distributors or agents for the appellant's goods for the Far East and South East Asia, and that the respondents had committed a repudiatory breach of contract by fabricating copies of the appellant's goods without the latter's knowledge or approval. The appellant was thus justified in terminating the arrangement and no damages for breach of contract were due. In reaching this conclusion, the trial judge accepted the evidence of Merten, the appellant's President and principal witness, that he had seen the unauthorised fabrication occurring at the respondents' factory (“the crucial matter”).
The Court of Appeal reversed the trial judge's decision and held that the trial judge had overlooked or failed to consider vital documentary evidence and the unchallenged testimony of independent witnesses which contradicted his findings on issues of fact.
The appellant appealed. The respondents sought to challenge the trial judge's acceptance of Merten's evidence. Given that the trial judge had found Merten unreliable on other matters such as the nature of the arrangement, the respondents contended that it was perverse for the trial judge to accept Merten's evidence on the crucial matter without giving very full reasons for his so doing.
Held, allowing the appeal:
(1) The Court of Appeal was not justified in interfering with the trial judge's findings of fact on the basis of the reasons they gave for so doing: at [21].
(2) While the evidence given by Merten on other matters involved questions of his reliability and accuracy of memory, the central issue as to unauthorised fabrication was one on which there was no room for mistake. As regards the central issue, Merten's evidence was either true or a deliberate falsehood. It was given clearly and considered by itself in the judge's notes, it contained nothing which would stigmatise it as unworthy of credit. The only evidence challenging it was vague and unsatisfactory: at [22].
Judgment reserved.
Lord Mackay of Clashfern(delivering the judgment of the Board):
1 This appeal from an order of the Court of Appeal in Singapore (Wee Chong Jin CJ, T S Sinnathuray and Abdul Wahab Ghows JJ) dated 8 July 1983, the grounds of judgment for which were issued on 31 January 1984, setting aside an order of T Kulasekaram J dated 28 June 1982, is confined to the question whether the counterclaim has been correctly dealt with in the courts in Singapore.
2 The plaintiffs, who are the appellants before this Board, are a company incorporated in Spain whose principal activity is the manufacture and sale of lashing systems for securing cargo and of cargo handling equipment, the latter category including spreaders which are used to lift containers from quay to shop orvice versa. The appellants' claim was in respect of goods supplied on consignment to the defendants, who are the respondents here, pursuant to an arrangement the precise nature and extent of which were in dispute. The respondents contended that by the arrangement made by oral agreement in September 1977 they were appointed the appellants' sole agents and distributors for the Far East and Asean (Singapore, Malaysia, Thailand, Indonesia and the Philippines) regions for a period of two years from January 1978. The appellants contended that provisionally in September 1977 and finally in January 1978 the respondents were appointed as their distributor for Singapore, Malaysia and Hong Kong only, that there was no sole agency and that the appointment was not for any fixed period. The claim and the counterclaim, so far as relating to commission on the goods which are the subjects of the claim, have been decided by the judge in a manner not criticised before their Lordships by either party.
3 In their counterclaim the respondents alleged that the appellants, by incorporating on 30 May 1978 a company for the sale of the appellants' products in the Far East and Asean regions, had breached this arrangement and they counterclaimed for damages for the unexpired portion of the two...
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