“4.4 Title to the Goods shall remain vested in the Seller and shall not pass to the Buyer until 100% of the value of the Goods has been paid and received by the Seller. Until title to the Goods passes: 4.4.1 The Seller is entitled to retake, sell or otherwise deal with and/or dispose of all or any part of the Goods; 4.4.2 The Seller and its agents and employees are entitled at any time and without the need to give notice to enter upon any private property upon which the Goods or any part of them are stored, or upon which the Seller reasonably believes them to be kept; 4.4.3 The Buyer shall store and/or mark the Goods in a manner reasonably sufficient, so that the Goods can at any time be distinguished and separated from goods of third parties.”
“10.8 Whilst we could not establish on the evidence before us, if the goods … had been discharged with fraudulent bills of lading, as Sellers claimed, Buyers had ultimately acknowledged that they had not paid for the goods. Buyers contested Sellers’ reliance on their action for payment of the price under s.49(2) of the Sale of Goods Act and relied on Caterpillar. However, the duty to mitigate is, to quote Benjamin (16-065) “is a foundation of the normal rule for the measure of damages” which relates to breach and not to payment of the price or liquidated damages. 10.9 Sellers had retained possession of the original bills of lading, as the Contract provided, but Buyers had simply failed pay for the contractual goods. With that admittance, we do not consider that a retention of title clause or Caterpillar means that Sellers are withheld from seeking payment of the price and have a legitimate claim for [the relevant amount]. In support of our position, we quotes.49(2) of the Sale of Goods Act 1979 : “[sub-section quoted].”
“A respondent who wishes to oppose an application for permission to appeal must file a respondent’s notice which– (1) sets out the grounds (but not the argument) on which the respondent opposes the application; and (2) states whether the respondent wishes to contend that the award should be upheld for reasons not expressed (or not fully expressed) in the award and, if so, states those reasons (but not the argument).”
“… [s.49(2)] does not avail the seller under an ordinary c.i.f. or f.o.b. contract because the ordinary express or implied stipulation that payment is to be against tender of the documents, e.g. “net cash against documents”, or “net cash”, makes the price not “payable on a day certain irrespective of delivery”
“Action for price. 49.--(1) Where, under a contract of sale, the property in the goods has passed to the buyer and he wrongfully neglects or refuses to pay for the goods according to the terms of the contract, the seller may maintain an action against him for the price of the goods. (2) Where, under a contract of sale, the price is payable on a day certain irrespective of delivery and the buyer wrongfully neglects or refuses to pay such price, the seller may maintain an action for the price, although the property in the goods has not passed and the goods have not been appropriated to the contract. (3) Nothing in this section prejudices the right of the seller in Scotland to recover interest on the price from the date of tender of the goods, or from the date on which the price was payable, as the case may be.”
“If … real doubt arises as to the legal meaning of a consolidation Act: (a) the presumption that consolidation is not intended to change the law comes into play; and (b) in applying that presumption, recourse may be had to earlier legislation and case law.” (a) the presumption that consolidation is not intended to change the law comes into play; and (b) in applying that presumption, recourse may be had to earlier legislation and case law.”
“… settled practice may, in appropriate circumstances, be a legitimate aid to statutory interpretation. Where the statute is ambiguous, but it has been the subject of authoritative interpretation in the lower courts, and where businesses or activities, public or private, have reasonably been ordered on that basis for a significant period without serious problems or injustice, there should be a strong presumption against overturning that settled practice in the higher courts.”
“CPR PD62 para 12.6 is not concerned with a respondents’ notice resisting an appeal once leave has been given, but about a respondent’s notice opposing leave (or “permission”). That is clear from the wording of paragraph 12.6 itself, and put beyond doubt by the requirement that the accompanying skeleton argument provide an estimate for the time needed to deal with the application for leave. In this case, the court has granted leave, and the respondent’s notice is spent. It is … too late to amend it, but not for the reasons that Mr Nolan argued [Mr Nolan there, as here, taking the procedural objection on behalf of the appellant party]. A respondent to an appeal under section 69 is not obliged when resisting an application for leave to set out all the grounds on which he intends to resist the appeal: he is not obliged to oppose the application for leave (and serve a respondent’s notice) at all.”
“(1) state the grounds on which the respondent opposes the grant of permission; (2) set out any evidence relied on by [the respondent] relating to the matters mentioned in section 69(3) of the 1996 Act; and (3) specify whether the respondent wishes to contend that the award should be upheld for reasons not expressed (or not fully expressed) in the award and, if so, state those reasons.”
“It is important that this is done so as to ensure that decisions on permission to appeal are made on an informed basis: Acada Chemicals Ltd v Empresa Nacional Pesquera SA[1994] 1 Lloyd’s Rep 428 at 432. Whilst the court does have jurisdiction to permit grounds to be raised later, “appropriate cases are likely to be rare” (per HHJ Havelock-Allan [QC] in P T Petrabali Adyamulia v Société est Epices (The Intan 6)[2003] 2 Lloyd’s Rep 700 at page 709 col 1).”
“Before the Judicature Acts the price of goods sold could be recovered under the common indebitatus counts. The count for goods sold and delivered was applicable where the property had passed and the goods had been delivered to the buyer, and the price was payable at the time of action brought. The count for goods bargained and sold was applicable when the property had passed to the buyer and the contract had been completed in all respects except delivery, and the delivery was not a condition precedent to the payment of the price. Now it is sufficient to shew facts disclosing either cause of action.”
“Where the property in the goods has passed.–The seller frequently insists that property in the goods is to pass only when he is paid. It has been suggested that this is a provision which the seller may in some circumstances be entitled to waive, it being for his benefit alone, thereby causing the property to pass to the buyer, so as to entitle him to sue for the price (f). This may assist him where the price is otherwise payable on delivery and the buyer refuses to take delivery. But in other circumstances, if the price is due, the seller may be entitled to claim it in any event at common law, apart from the provisions of sub-s. (2) of this section (g), and if the price is paid the property will then pass under the terms of the contract. (f) Napier v Dexters, Ltd. (1926), 26 Ll. L. Rep. at pp. 63-64, per Roche, J., and on appeal at pp. 187-188, per Bankes, L.J.; Martin v Hogan (1917), 24 C.L.R. 231 (H.C. of Aus.). (g) See post, “On a day certain irrespective of delivery”.” (ii) (on pp.224-225): “On a day certain irrespective of delivery.–In order to succeed in a claim under sub-s. (2) it is necessary to prove that the price payable on a day certain irrespective of delivery. “Day certain” has been held to mean a time specified in the contract not depending on a future or contingent event (i), and it has frequently been held that where payment is against shipping documents it is not on a day certain irrespective of delivery, so that no action for the price may be maintained (k). (i) Merchant Shipping Co. v Armitage (1873), L.R. 9 Q.B. 99; Shell Mex, Ltd. v Elton Cop. Dyeing Co. (1928), 34 Com. Cas. 38; Muller Maclean & Co. v Lesley and Anderson, [1921] W. N. 235. But in Workman Clark & Co. v Lloyd Brazileno, [1908] 1 K.B. 968, the Court of Appeal all considered that s. 49(2) applied in a case where an instalment of the price was payable when the keel of a ship was laid. The judgments as reported refer only to s.49, but it is clear from the terms of the contract, under which the property had not passed, and from the argument of counsel that only s. 49(2) could apply. See also Colley v Overseas Exporters [1921] 3 K.B. 302, 306. (k) Muller Maclean & Co. v Lesley and Anderson, supra; Stein Forbes & Co v County Tailoring Co. (1916), 115 L.T. 215. But cf Polenghi v Dried Milk Co., Ltd. (1904), 10 Com. Cas. 42. But if this construction is correct, it would seem that this section does not cover all the situations in which an action for the price might have been maintained at common law where the property in the goods have not passed. In Workman Clark & Co v Lloyd Brazileno (l), the Court of Appeal held that a seller was entitled at common law to summary judgment for an instalment of the price of a ship which under the terms of the contract was payable “when the keel … is laid”
“The plaintiff has therefore mistaken his remedy; he should have declared merely for damages for the non-completion of the contract, whereas here his only [declaration of] breach is the non-payment of the purchase-money, which, on this statement, he is not entitled to …” (7 M&W 481). Lord Abinger C.B., and Parke B., with whom Gurney B. and Rolfe B. concurred, decided that while the pleading of the claim had been imperfect, it had been sufficient for a conclusion that the allegation, in substance, was “the same as if it had been averred that the defendants had refused to execute a conveyance actually tendered to them” (per Lord Abinger C.B., 7 M&W 484-485), or that “Upon the facts alleged …, the plaintiff is substantially in the same situation, for the purpose of recovering the money, as if all had been done on his part which he engaged to do. It does not follow that he shall recover the whole purchase-money, but he is in the same situation for the purpose of recovering damages for the non-payment of the price, as if all had been done by him” (per Parke B., 7 M&W 485). B9. Properly understood, therefore, Laird v Pim and Dunlop v Grote concerned the distinction elaborated in the notes to the report of Pordage v Cole, between dependent and independent covenants. In Dunlop v Grote, the seller’s argument that it was suing upon “a day fixed for the payment of the money”, allowing it to recover the price although property had not passed, and Cresswell J.’s ground of decision, that the price “was agreed to be paid on a day certain”, did not concern the existence of an exact payment date, or when such a date had become identified, but the fixedness or certainty of the payment obligation as one that was by nature independent of the performance by the seller of its obligations relating to the delivery of goods under the contract, although of course the price needed to have fallen due for payment before the action was brought or the buyer would not have been in default at all. B10. Against that background, I can turn to the cases listed in paragraph 64 above that were cited by the parties. (i). Polenghi Bros v Dried Milk Co, Ltd (1904) 10 Com Cas 42. B11. Polenghi Bros concerned a contract for the sale of dried milk powder by sample, where the delivery might be either c.i.f. London or f.o.b. Genoa. It provided that: “Payment is to be made in cash in London on the arrival of the powders against shipping or railway documents, or with the vendors’ consent by 90 days’ bills [i.e. bills of exchange], …”
“The material question that remains is as to the plaintiffs’ remedy. The plaintiffs have sued only for the price. If they are not entitled to the price they ask for leave to amend and claim damages … but the defendants intimated that they were not prepared with evidence on that footing, and should require an adjournment if such was the relief that the plaintiffs were entitled to. I think the plaintiffs’ request not unreasonable, and, therefore, there must be an adjournment unless I come to the conclusion that the plaintiffs are entitled to the price.”
“Unless the property has passed I do not think that in this case the plaintiffs can sue for the price; and in my opinion it has not passed. The plaintiffs’ claim, therefore, is for damages. The case will be adjourned to enable the defendants to deal with the question of damages in case the parties cannot agree.”
“theright at any time to invoice to buyers the due quantities of oil not taken up, and to demand payment of the invoice amounts, and such quantities (or a proportionate quantity of the bulk) shall be at buyers’ risk and expense, or the sellers may, at their option, instead of invoicing, cancel such undelivered balance.”
“… the main focus of section 49(2) may well have been on cases where delivery has not been made – hence the phrase “irrespective of delivery”
“100% net cash via wire transfer within 30 working days after Seller’s presentation of the documents” (judgment at [6]). B66. The seller sought judgment on admissions for the total unpaid price amounts, arguing that the buyer’s pleaded admissions that it entered into the contract, that the goods were delivered to and received by it, and that the invoices in question accurately reflected the purchase prices and had fallen due for payment but not been paid, entitled it to judgment, [18]-[19]. The buyer initially relied on Caterpillar against any suggestion that s.49(1) might justify the claim, and argued that s.49(2) did not justify it either as the contract did not provide for payment irrespective of delivery, [21]. In response, the seller argued (see at [24]) that the contract was like the bunker supply contract in The Res Cogitans so that s.49 was immaterial, alternatively property passed so that the claim was justified under s.49(1), alternatively the price was payable on a day certain irrespective of delivery so that the claim was justified under s.49(2), alternatively Caterpillar should not be followed in Singapore as to whether s.49 was exhaustive. B67. In written reply submissions, the buyer conceded that the seller could maintain its claim for the price (and it seems, more particularly, that property had passed, [113]). It requested only a decision that the seller was entitled to the price and nothing else, [26], which Tan AR declined to consider on the ground that the only application before the court was for judgment on the price claim, [114]. B68. Tan AR’s discussion of the bases upon which the seller put the claim to the price was therefore academic. As regards s.49(2), at [62], he disagreed with what had been the submission for the buyer, in line with the orthodox understanding under English law, that since by the contract payment followed, and required, a presentation of documents, i.e. delivery, s.49(2) did not apply. Tan AR suggested at [61] that the argument read ‘irrespective of delivery’ as requiring “that the time for payment stipulated in the agreement cannot depend on the occurrence of delivery”