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Judgment:

2 Coram: Lai Siu Chiu J

3 GROUNDS OF DECISION

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7 The background

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14 1. Price -- US$154 per long ton lightweight;

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17 Pahlsson counter-offered to Cleaves on the same day the following terms:

18 1. Price -- US$160 per long ton:

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20 Cleaves responded by telex also on 9 September 1993 as follows:

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22 1. Price --US$155 per longton lightweight less three centum total commission here.

23 followed by another telex from Cleaves to Pahlsson which stated:

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27 Pahlsson responded to the above telex as follows:

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29 Pahlsson sent another telex to Cleaves on 10 September as follows:

30 Confirm deal as per exchange fixed on main terms sub detls.

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42 In response to Miller's affidavit, the defendants filed another affidavit by Armoush.

He contended that the plaintiffs had obtained the injunction without disclosing to the

court the existence of the 'subject mutual terms contract' and 'subject to details'

clauses. Counsel for the defendants argued that on the principles enunciated in Bank

Mellot v Nikpour < 1985 > FSR 87 and Brink's - Mat Ltd v Elcombe < 1988 > 3

AER 188 and adopted by Singapore courts in Png Siaw Luan v Wong Tui San < 1990 > 3

MLJ 340, the plaintiffs had abused the process of the court and the injunction ought to be

discharged.

43 Further if indeed there was a concluded contract, why was there a need for amendments

to be made to the draft MOA as proposed by the plaintiffs? It was incorrect to say the

defendants had sold the vessel on 10 September 1993 to another party, the telex from

Pahlsson to Cleaves informing of the sale was dated 16 September 1993, meaning the sale

was made that day itself. The defendants dissociated themselves from Pahlsson's telexes

(2) to Cleaves dated 16 September 1993 which contents can only be attributed to Pahlsson.

He was surprised that an experienced broker like Miller could say that the plaintiffs'

offer to purchase the vessel at US$115 per longton on an 'as is where is basis' subject to

the plaintiffs finding a suitable tug was only a suggestion -- it cannot be other than a

new offer. Therefore, counsel for the defendants contended, the plaintiffs do not have a

case at all and their action should be dismissed or struck out (see Star Steamship Society

v Beogradska Plovidba (The Junior K) < 1988 > 2 LLR 583 and CPC Gallia <1994>

1 LLR 68.

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48 3. it is not correct for the court to apply the meaning to the phrase 'subject details'

as decided in The Junior K and The Nissos Samos < 1985 > 1 LLR 378 as the meaning

must be ascertained against the contextual scene (per Steyn J in The Junior K). In our

case the meaning as decided in the two cases is displaced by the fact that agreement had

already been reached between the parties;

49 4. the court must make a distinction between essential and non-essential terms (see

Trietel on The Law of Contract 8 ed (1991) and Pagnan SpA v Feed Products Ltd < 1987

> 2 LLR 601). In this case the following essential terms had been agreed:

50 (i) subject matter -- the vessel;

51 (ii) parties to the contract;

52 (iii) purchase price;

53 (iv) place of delivery;

54 (v) mode of payment;

55 (vi) broker's commission:

56 (vii) lay/can.

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60 The decision

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62 Whilst it is true that the phrase 'subject to details' has been interpreted in cases

such as The Junior K and CPC Gallia to mean there was no binding contract, it is the

factual matrix in which the phrase is used that ultimately determines whether a contract

has or has not been concluded. Counsel for the plaintiffs had also cited a different line

of authorities (Pagnan v Feed Products < 1987 > 2 LLR 601 and The Blankenstein

<1985> 1 LLR 93) which supported his argument that parties were in law capable of

making an interim agreement and later sort out the details against the background of a

concluded contract. The mere fact that the parties intended that there should be a formal

contract in the agreed standard form (MOA) signed by the parties did not mean that a

binding contract of sale had not come into effect on 10 September 1993. In the present

case, apart from the defendants' bald statement by their director Armoush that they

dissociated themselves from their brokers' telexes (2) dated 16 September 1993 there was

no other evidence to contradict Pahlsson's said telexes which can only be understood to

mean that the defendants instructed the master of the vessel to steam to Alang (the port

of delivery) in compliance with the agreement reached with the plaintiffs; the defendants

changed their mind on the contract after they found out that the vessel could not perform

the voyage.

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64 There were clear disputes of facts and law involved and it cannot be said that the

plaintiffs' action was so clearly unsustainable as to warrant that it should be struck out

under O 18 r 19 of the RSC as frivolous and vexatious and an abuse of the process of the

court. I agreed with counsel for the plaintiffs that this was not an appropriate case for

the court to exercise its discretion under that rule which should only be done sparingly

in line with such authorities as Ko Teck Siang v Low Fong Mei < 1992 > 1 SLR 454.