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2021 MarsdenLR 1660
HIGH COURT MALAYA KUALA LUMPUR
MISC BERHAD – Appellant
Versus
COCKETT MARINE OIL (ASIA) PTE LTD (ENCLS 16 & 22) – Respondent
[Admiralty In Personam No: WA-27NCC-46-05/2020]
The court upheld that the Supply Contract was governed by the Plaintiff's terms, emphasizing explicit contractual terms over hyperlinks that suggest alternative terms.
Headnote:(A) Arbitration Act 2005 – Section 10 – Dispute regarding enforcement of a supply contract – Application for stay of proceedings versus anti-arbitration injunction – The court held that the Supply Contract was formed under the Plaintiff's terms, binding the parties to Malaysian law and the jurisdiction of its courts. (Para 43)
(B) Contract Law – The court found that the use of hyperlinks to terms in communications did not adequately incorporate those terms into the contract when contrasted with explicit terms stated in the invitation to tender. (Paras 43-50)
Facts of the case: Dispute arose from an alleged breach of contract in the supply of bunker fuel; the Plaintiff claimed damages post-termination of the contract due to incidents involving Malaysian authorities. (Paras 1-12)
Findings of Court: The Supply Contract is governed by Plaintiff's terms; the Defendant's attempt to assert its terms via hyperlink was ineffective. (Para 43)
Issues: Determination of the applicable law governing the contract and the legitimacy of the Defendant's application for stay pending arbitration. (Paras 25, 58)
Ratio Decidendi: The court affirmed that explicit contract terms supersede those insinuated through hyperlinks in communications; a step taken in proceedings forfeited the right to request arbitration. (Paras 63-64)
Result: Defendant's application for stay denied; Plaintiff's anti-arbitration injunction granted with costs awarded. (Para 83)
JUDGMENT
[1] This judgment concerns an application for stay of proceedings pending arbitration in London (encl 16) by the Defendant, Cockett Marine Oil (Asia) Pte Ltd, against the Plaintiff, MISC Berhad, and the Plaintiff's anti-arbitration injunction (encl 22) to restrain the Defendant to take further steps in the arbitration proceedings in London. This arose from a dispute arising from an alleged breach by the Defendant under a bunker supply contract between the Plaintiff as buyer and the Defendant as seller.
[2] At the hearing of this application I dismissed encl 16 and allowed encl 22 with costs on 7 January 2021. This judgment contains the full grounds for my decision.
Background Facts
[3] The Defendant is the owner of the vessel "SERI AMANAH" ("the Vessel") and the Claimant is a bunker supplier incorporated in Singapore. On 28 August 2018 the Plaintiff invited the Defendant and a number of other bunker suppliers to tender for the supply of bunkers for delivery by barge to the Vessel on 10 September 2018. This tender had the reference C- MISC-FIN-TCM-QBSP-2018-0017 ("the Tender").
[4] A series of emails were exchanged between the Plaintiff and Defendant's officers on 28.2018 leading to the Tender being awarded to the Defendant. The communications between the Plaintiff and the Defendant started with an email being sent at 0941 hours from the Plaintiff's Tender Secretariat inviting the Defendant to put in its bid. In the email, the Plaintiff's Proposal Form and the Plaintiff's Terms and Conditions of Bunker Spot purchase ("the Plaintiff's Terms") were attached. In the body of the email under the heading "Important Note", item 9 states "9. TERMS AND CONDITIONS (SPOT PURCHASE). Details MISC's Terms and Conditions (spot purchase) is as per attached which are to be applied for this spot purchase." Clause 13 of the Plaintiff's Terms states:
"13. Governing Law
13.1 The provisions of this Agreement shall be subject to and construed and interpreted is accordance with the laws of Malaysia and the parties hereto submit to the exclusive jurisdiction of Malaysian courts."
[5] Later on the same day, the Defendant issued an email to the Tender Secretariat at 1500 hours making an offer to supply bunker fuel at USD725 per metric ton including barging. In response, at 1546 hours the Plaintiff sent an email stating "You have been shortlisted. Please requote your best offer." The reply from the Defendant came at 1554 hours and in the Defendant's email, the Defendant stated that bunker fuel could be supplied at USD724 per metric ton. A telephone conversation then ensued between the Plaintiff and the Defendant's officers and the Defendant issued an email at 1618 hours to state the price of USD718 per metric ton. The Plaintiff responded with an email at 1622 hours agreeing to fix the price at USD718 per metric ton and almost one hour later at 1721 hours the Plaintiff again wrote to the Defendant to confirm the price of USD718 per metric ton for the supply of bunker fuel. In the Defendant's emails of 28 August 2018 at 1500 hours, 1554 hours and 1618 hours, the words appearing under the sign off line are:
"Fuel Supply Terms & Conditions
Privacy Notice."
[6] The words "Fuel Supply Terms & Conditions" carry a hyperlink to the Defendant's website containing the Fuel Supply Terms & Conditions ("the Defendant's Terms").
[7] 2 days later, on 30 August 2018 at 1559 hours following a further telecon with the Plaintiff, the Defendant wrote to the Plaintiff to confirm the price at USD718 per metric ton. In the body of this email, there was a reference to the following statement:
"Terms & Conditions (updated November 2015)
This contract is made subject to our standard terms and conditions of sale ("the standard terms") current at the date hereof a copy of which can be read and downloaded by visiting http://www.cockettgroup.com/information/terms-conditions/. By acknowledging your agreement to this transaction you confirm and represent that you
