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Grounds publishedDecided 30 Jul 2012
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High Court

Antariksa Logistics Pte Ltd and Others v McTrans Cargo (S) Pte Ltd

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[2012] SGHC 154Case no. Suit No 856 of 2009

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Grounds of decision

Official text from eLitigation

  1. Belinda Ang Saw Ean J:

  2. Introduction

  3. [1] This action concerned a claim in conversion. The acts which were the subject of the complaint in conversion were alleged against the Defendant, McTrans Cargo (S) Pte Ltd, whose Indonesian principal was PT Prolink Logistics (hereinafter the Indonesian principal is referred to as “Prolink” or “Prolink Logistics”). The Defendant denied liability for conversion and alleged, inter alia, that (a) it was an innocent agent who acted in good faith in relation to the 30 x 40’ FCL containers (hereinafter referred to as “the 30 FCL containers” or “the subject containers”), and that it was the named consignee appointed by Prolink to receive the subject containers from the carriers, handle the customs clearance process and store the subject containers in Singapore; (b) the detention of the 30 FCL containers was in lawful exercise of a possessory lien until storage and ancillary charges were paid, and (c) the Plaintiffs were not entitled to the reliefs claimed as their claims were tainted with illegality.

  4. Overview of the proceedings

  5. [2] These proceedings have had a lengthy procedural history. The history revealed a striking absence of ordinary commercial behaviour on the part of a small forwarder with limited financial resources like the Defendant. A reasonable and commercially minded party in the Defendant’s position would have been anxious to extricate itself from the legal proceedings soonest possible. Instead, it entrenched itself in these proceedings. By the same token, there were opportunities where the Plaintiffs could have adopted a more robust attitude to reign in matters somewhat so that a full blown trial for a case of this nature could be averted. As it happened, the court proceedings dragged on. Even the duration of the trial was extended from 15 days to 20 days.

  6. [3] A notable feature of these proceedings was the inconsistent defences adopted by the Defendant that directly advanced Prolink’s dispute with the first three Plaintiffs, and the Defendant’s own case. The Defendant’s conduct at different stages of the proceedings contradicted the Defendant’s proclaimed role of an innocent agent acting in good faith in relation to the 30 FCL containers. Another unusual feature of this case concerned storage charges for the containers and the Defendant’s willingness and apparent ability to keep up with the storage charges that were allegedly incurred and continued to be incurred at a third party warehouse and bonded godown. Significantly, no counterclaim was brought against the Plaintiffs to recover any of the alleged outstanding storage and ancillary charges.

  7. [4] The Writ of Summons issued on 13 October 2009 was for the 30 FCL containers in the Defendant’s possession. Thereafter, the Defendant over a period of time released about 83.84% of the total volume of the goods shipped in the 30 FCL containers to various cargo interests. I will refer to this lot of cargo as the “Group A Cargo”. At the time I gave judgment, the Defendant was still in possession of the goods consolidated in three FCL containers (ie, the subject matter of the dispute), and I will refer to them as “the Group B Cargo”. The three FCL containers were detained at two locations: Goodway Agencies (Shipping) Pte Ltd at Keppel District Park (“Goodway Agencies”) and at PSA Keppel Godown F5 Module K (“PSA Godown F5”).

  8. [5] At the early days of the trial, I was surprised to learn that the parties had no idea of what the value of the Group B Cargo was and the state of its condition since the last survey conducted in late April 2010. It was amazing to see this case come all the way to trial with little inkling and concern on the part of the Defendant as to whether or not the value of the Group B Cargo exceeded the relatively sizable outstanding charges indicated by the Defendant. The condition of the Group B Cargo ought also to have concerned the Plaintiffs since delivery up was their alternative relief. On my prompting, the parties agreed to conduct a condition survey.

  9. [6] I found myself sufficiently troubled at the early days of the trial to inquire about the Defendant’s intentions. Here was a Defendant who had professed to have no personal knowledge of the subject matter of the various disputes in Indonesia but nonetheless had taken upon itself the task of proving all sorts of matters about liens and relationships arising from bailment as well as the subject of the decisions of the Indonesian courts in connection with the 30 FCL containers.

  10. [7] It was incomprehensible that the Defendant, who had claimed a lien and who had actually withheld the 30 FCL containers until the Defendant’s and Prolink’s charges and expenses were paid, had real difficulties working out the total amount that was being secured by the exercise of the lien for the charges and expenses. Certainly, the difficulties it displayed undermined the credibility of the Defendant’s claim. By the end of the trial, it was patently clear that the Defendant’s claim of lien to justify the detention of the containers was illusory.

  11. [8] The two matters that occupied most of the trial were the proprietary title of the 4 to 8 Plaintiffs, the 10 to 13 Plaintiffs and the 15 Plaintiffs, and the Defendant’s illegality defence. Essentially, these Plaintiffs were put to strict proof of their proprietary title. As for the illegality plea, was there really a case for the illegality defence? Notably, the Group A Cargo was released despite the Defendant’s position on illegality. It appeared that the Defendant was willing to admit that the illegality did not go to the Plaintiffs’ rights to the Group B Cargo so long as they paid for their release. The Defendant’s illegality defence involved allegations that the Plaintiffs smuggled the goods in the 30 FCL containers in contravention of Indonesian customs law and regulations to defraud the Indonesian customs authority, but no expert witness was called to testify on Indonesian law. This led to a late application to call an expert on Indonesian law. Suffice it to say that the application was dismissed for reasons that will be explained later in this Grounds of Decision. There were also other legal and evidential problems that caused the illegality defence to fail.

  12. Dramatis Personae

  13. [10] It would be convenient to begin by briefly identifying the parties to the proceedings, the individuals and their participation in the events giving rise to these proceedings, and those who gave evidence at the trial.

  14. [11] The first three Plaintiffs were companies incorporated in Singapore. The companies operated a door-to-door service for shipment of goods from Singapore to Jakarta, Indonesia. The first three Plaintiffs would consolidate goods belonging to different customers into containers for outward shipment to Jakarta. On arrival at the warehouses designated by the first three Plaintiffs in Jakarta, the containers would be devanned and the parcels within separated and delivered to the first three Plaintiffs’ customers or to their order. At the Indonesian end, insofar as the first three Plaintiffs (who acted as main forwarders) were concerned, they used agents to receive the containers and to arrange for customs clearance and container transport to the designated warehouses.

  15. [12] Tie Hari Mulya (“Hari”) was a director of the 2 and 3 Plaintiffs. Hari’s wife, Linda Irawaty Lim, was the sole director and shareholder of the 1 Plaintiff. The first three Plaintiffs were managed by Hari and his wife. Hari was the person who made arrangements with Nurdian Cuaca (“Cuaca”) in respect of the door-to-door services required to be performed at the Indonesian end for the outward shipment to Indonesia in February 2009 and the return shipment to Singapore in September 2009. Hari gave evidence at the trial on behalf of the first three Plaintiffs.

  16. [13] Lola Heng Kim Mui (“Lola”) was the 3 Plaintiff’s shipping administrator who coordinated the consolidation and shipment of the subject containers from Singapore to Jakarta, Indonesia for discharge and delivery at the container yard designated as “Jakarta UTC 1”. Lola had liaised with Radius Artha Djaya (“Radius”) of Prolink Logistics on the documentation for the subject containers to be landed at “Jakarta UTC 1” in February 2009. She again liaised with Radius on the documentation for the shipment of the subject containers back to Singapore in September 2009. Lola’s impression from her association with Radius was that the latter was from Prolink Logistics. Lola testified at the trial.

  17. [14] Kim Sutandi Tan (“Kim”) was the first three Plaintiffs’ representative in Jakarta. Kim testified at the trial.

  18. [15] Cuaca was an Indonesian in the freight forwarding and logistics business. He was Hari’s business associate of four years prior to the outward shipment of the subject containers from Singapore to Jakarta in February 2009. Through Hari, the first three Plaintiffs had an oral arrangement with Cuaca who through Prolink, would handle the receipt, custom clearance and container transport to warehouses designated by the first three Plaintiffs. For these services, they would be paid by the first three Plaintiffs. Cuaca did not testify at the trial.

  19. [16] In May 2009, Hari agreed with Cuaca to appoint Jonny Abbas (“Jonny”) to arrange for the subject containers to be shipped back to Singapore under three bills of lading, two of which were issued by APL Co Pte Ltd (“APL”) on 17 September 2009 and one by Samudera Shipping Line Ltd (“Samudera”) on 17 September 2009. The three bills of lading are collectively referred to as “the September B/Ls”. Jonny and Radius were the controllers of Prolink Logistics and PT Prolink Clare (“Prolink Clare”). Prolink Clare was the party named on the September B/Ls as shipper of the subject containers. The name Prolink Clare also appeared in some documents used in this case. Jonny and Radius did not testify at the trial.

  20. [17] The Defendant was the consignee named on the September B/Ls and was at all material times the agent appointed by Prolink Logistics. Fabian Tan (“Fabian”), the sales director of the Defendant was Jonny’s contact. Fabian took instructions from Jonny in relation to the subject containers. Fabian testified at the trial.

  21. [18] Two other groups also testified at the trial. They were the cargo interests (hereinafter referred to as “the cargo owners”) and suppliers of the Group B Cargo. In this case, the Group B Plaintiffs purchased goods from suppliers in Singapore and other countries, and they individually appointed either the 1 Plaintiff, 2 Plaintiff or 3 Plaintiff to provide door-to-door freight forwarding services from Singapore to Jakarta. The last two persons who took the witness stand were the surveyors of the Group B Cargo.

  22. Circumstances in which the Defendant came into possession of the 30 FCL containers

  23. February 2009 shipment from Singapore to Jakarta

  24. [19] The first stage was the outward shipment from Singapore to Indonesia of the 30 FCL containers in February 2009 (“the February shipment”). In this case, the cargo owners (including the Group B Plaintiffs) purchased general goods from suppliers in Singapore and other countries, and they individually appointed either the 1Plaintiff, 2 Plaintiff or 3 Plaintiff as their freight forwarders to provide door-to-door freight forwarding services. For their services, the customers were charged an “all-in-price”. In January 2009 to early February 2009, the customers’ general goods were consolidated and stuffed into 40’ containers by Euro-Trans Logistics Pte Ltd (“Euro-Trans”) who was appointed by the first three Plaintiffs. Besides Euro-Trans, Lola had appointed the Defendant to stuff two full-container-load of general cargo. Thereafter, the 30 FCL containers were shipped on board the vessels Sinar Sumba and APL Shenzhen pursuant to three bills of lading – B/L No APLU 057309975 and B/L No APLU 057309976 both dated 18 February 2009, and B/L No SSLSGJK1CHB682 dated 15 February 2009 (collectively, “the February B/Ls”).

  25. [20] The February B/Ls were surrendered in Singapore.

  26. [21] Upon the vessels’ arrival at the port of discharge, the carriers were to deliver the subject containers to the consignees named on the February B/Ls. It transpired that the carriers could not deliver the subject containers and they were left at a designated area known as the Temporary Hoarding Area (TPS) which was presumably used by the carriers’ seeing that the first three Plaintiffs had to pay demurrage to carriers when the time came to ship the subject containers back to Singapore in September 2009.

  27. [22] According to Hari, he met Cuaca in Jakarta in February 2009. At this meeting Cuaca informed him that there was a delay as the 30 FCL containers had not yet cleared Indonesian customs. Cuaca was instructed to look into sending the 30 FCL containers back to Singapore if delays persisted. It transpired, and this was not disputed by the parties, that Prolink had written to the Indonesian customs authority for permission to take out the 30 FCL containers in order to ship them back to Singapore on 26 February 2009. Under Indonesian regulations, the Indonesian customs authority had to give its decision within 30 days of the export request. Contrary to the regulations, the Indonesian customs authority replied on 18 June 2009, after more than 3 months, and in its reply rejected Prolink’s request. Prolink then turned to the Jakarta State Administrative Court (“JSA Court”) to review the Indonesian customs authority’s decision. On 14 August 2009, the JSA Court decided that the Indonesian customs authority’s decision of 18 June 2009 was made out of time and directed the latter to issue a “decision letter” to permit export of the February shipment.

  28. September 2009 shipment from Jakarta to Singapore

  29. [23] This stage concerned the shipment of the 30 FCL containers from Jakarta to Singapore in September 2009 (“the September shipment”). After the decision of the JSA Court, Cuaca in August 2009 informed Hari that the Indonesian customs authority had finally permitted the February shipment to be returned to Singapore. Hari and Cuaca agreed that the February shipment was to be returned to the first three Plaintiffs, and the arrangement was to name the 1 Plaintiff as consignee on the bills of lading. Kim had liaised with Jonny on the September shipment.

  30. [24] In early September 2009, Jonny allegedly requested payment of US$170,000 for the carriers, APL and Samudera, and Rp 1.2 billion as demurrage charges. Kim duly paid the following sums on behalf of the first three Plaintiffs:

  31. (a) US$170,000 to Jonny, of which US$120,000 was paid directly to APL and Samudera for costs incurred in relation to the September shipment;

  32. (b) Rp 1.2 billion being the demurrage fees (specifically for store rent and related expenses).

  33. [25] Kim and one Charles Lie (“Charles”), a Singapore representative of the first three Plaintiffs, went to APL’s Jakarta office on 17 September 2009 and obtained pro-forma bills of lading, B/L No APLU 073913272 and B/L No APLU 073913274. The 1 Plaintiff was named as consignee on both pro-forma bills of lading. Arrival notices with the 1 Plaintiff as named consignee were also sent to Lola.

  34. [26] However, things went awry for the first three Plaintiffs thereafter. I noticed from the September B/Ls that the 30 FCL containers were shipped on board the vessel Sinar Sumba on 17 September 2009. Kim learned of the change in the name of the consignee on 18 September 2009. She was informed on 18 September 2009 at 11 am by Samudera’s manager, one Dwi, by text message that the consignee for the Samudera bill of lading, B/L No SSLJKSINCF7963, had been changed to the Defendant. Kim asked Jonny about the sudden change of consignee, but was simply told to inform Hari to contact Cuaca. On the same day, Kim also received a call from one Mr Paulus from APL’s Jakarta office. Mr Paulus informed her that the APL bills of lading had been telex-released to the Defendant.

  35. [27] Hari then tried to call Cuaca. When they eventually spoke sometime on 18 September 2009, Cuaca assured Hari that although the September B/Ls had named the Defendant as consignee, he would arrange for the 30 FCL containers to be released to the first three Plaintiffs.

  36. [28] It was against the backdrop of the narrative set out above that the Defendant took possession of the 30 FCL containers from the carriers on 19 September 2009 and stored them with Goodway Agencies and at PSA Godown F5 pending instructions from Prolink.

  37. Circumstances in which the Defendant released the Group A Cargo

  38. [29] Despite Cuaca’s promise to Hari, the September shipment was not released to the first three Plaintiffs in Singapore. As the evidence unfolded, the change of consignee from the 1 Plaintiff to the Defendant had to do with Prolink’s claim of Rp 45 billion against the first three Plaintiffs, and Prolink wanted to be paid before the first three Plaintiffs could have the subject containers. The first three Plaintiffs’ attempts to secure release of the 30 FCL containers including contacting the Defendant for the same were unsuccessful. On 8 October 2009, Hari met Cuaca during which Cuaca demanded that the first three Plaintiffs pay a further Rp 45 billion for the release of the 30 FCL containers in Singapore. Hari rejected his demand.

  39. [30] In the meantime, on Prolink’s instructions the 30 FCL containers were unstuffed between 25 September 2009 and 12 October 2009. Radius was present at the unstuffing.

  40. [31] After their earlier failed attempts to contact the Defendant for the release of the 30 FCL containers, the first three Plaintiffs appointed Messrs Rajah & Tann (“R&T”), to write to the Defendant on 12 October 2009 demanding that the Defendant deliver up the subject containers to the 1 Plaintiffs. The Defendant did not respond by the deadline stipulated in R&T’s letter of demand. Thereafter, the first three Plaintiffs instituted these proceedings on 13 October 2009 and, at the same time, applied for a mandatory injunction vide Summons No 5358 of 2009 (“SUM 5358/2009”) to compel the Defendant to deliver up the subject containers. The Defendant responded with an application to strike out the Writ of Summons vide Summons No 5649 of 2009 (“SUM 5649/2009”) on 29 October 2009.

  41. [32] I will refer to the two applications (ie, SUM 5358/2009 and SUM 5649/2009) as “the 2009 Interlocutory Applications”, and affidavits filed in relation thereto as “the Interlocutory Affidavits”.

  42. [33] In his Interlocutory Affidavit filed on 29 October 2009, Fabian said that he was contacted by Prolink Logistics on or about 14 or 15 September 2009 to receive the 30 FCL containers. More than a year later, in his Affidavit of Evidence-in-Chief affirmed in May 2011, the contact date was changed to on or about 18 September 2009. The next day, ie 19 September 2009, the Defendant took delivery of the 30 FCL containers.

  43. [34] At the time the instructions to receive the subject containers were given either on 14, 15 or 18 September 2009, the fact of the matter was that in September 2009, Prolink had clearly no authority to represent the cargo owners or deal with their goods. However, the situation had changed by the time Fabian filed his Interlocutory Affidavit on 29 October 2009 whereby Fabian stated in paragraph 11 that the Defendant was obliged to “take instructions from PT Prolink Logistics Indonesia on behalf of the owners of the Cargo with regards to the distribution of the Cargo to the owners of the Cargo in Singapore.” It transpired from a later Interlocutory Affidavit filed on 19 November 2009 that Fabian was alluding to Powers of Attorney granted to Prolink by the owners of the Group A Cargo (“the Prolink POAs”). It was nonetheless clear that as at 29 October 2009, the Defendant did not have copies of the Prolink POAs.

  44. [35] What happened was that Prolink had contacted various cargo owners (ie, the first three Plaintiffs’ customers) to secure the appointment of Prolink Logistics and/or Prolink Clare as attorney to deal with the goods in the Defendant’s possession, and Prolink also concurrently sought the revocation of the authority previously given to the first three Plaintiffs. Powers of Attorney were executed at various dates ranging from 14 October 2009 to 13 November 2009. It is worthwhile setting out the text of the standard Power of Attorney, and in particular the paragraph revoking the authority of the first three Plaintiffs:

  45. [36] I now turn to the Defendant’s Further & Better Particulars filed on 22 June 2010 (“June F&PB”) wherein the Defendant acknowledged that Fabian had received oral instructions from Jonny to release the cargo from about the first week of October 2009 to the third week of November 2009. This was despite the Defendant’s averment that it did not know the dates that the Prolink POAs were granted since it was Prolink who had obtained them. However, it was clear that Fabian had wanted the release of the goods to be authorised by cargo owners. Prolink POAs were granted to either Prolink Clare or to both Prolink Logistics and Prolink Clare.

  46. [37] In addition, the June F&BP stated the actual release of cargo started as early as 13 October 2009 to Comstar Mobile Pte Ltd (“Comstar”). The documentation covering the cargo released to Comstar included Prolink Clare’s cargo release authorisation to the Defendant dated 12 October 2009, which was marked for Fabian’s attention as well as the Defendant’s Delivery Order to Comstar dated 13 October 2009 and signed by Comstar to acknowledge receipt of the goods. This release to Comstar on 13 October 2009 was before the Power of Attorney was executed by Comstar on 14 October 2009. Another instance of an early authorisation to release of cargo was to one Henri Dedy Yanto. The documentation covering the cargo released to UBTS Technologies (“UTBS”) on behalf of Henri Dedy Yanto included Prolink Clare’s cargo release authorisation to the Defendant dated 13 October 2009 and marked for Fabian’s attention. The release authorisation was before the relevant Power of Attorney which was executed a day later. The Defendant’s delivery order to UBTS was dated 14 October 2009.

  47. [38] As at 19 November 2009, the Group A Cargo was released. Furthermore, the Group A Cargo was released before any substantive hearing of the 2009 Interlocutory Applications.

  48. Subsequent events

  49. Joinder of 4 to 16 Plaintiffs in 2010

  50. [39] After the Group A Cargo was released, R&T, on behalf of the remaining cargo owners, repeatedly asked the Defendant to provide the full claim amount of the charges and expenses allegedly owing to the Defendant so that the cargo owners could consider payment into court in lieu of the Defendant withholding the Group B Cargo as security. No figure on the quantum was forthcoming. I would venture to state that had the Plaintiffs taken a more robust attitude on this issue, the illusory lien would have come to light much earlier in the proceedings. Instead, their response was to file an application to join the 4 to 16 Plaintiffs to the action, and an order was obtained on 25 January 2010. Their pleaded case was conversion by detention: that the Group B Cargo was detained by the Defendant, and that this detention amounted to conversion. The Defendant adopted the same three defences outlined in [1] above against the Group B Plaintiffs.

  51. Outcome of the Interlocutory Applications

  52. [41] SUM No 5649/2009 (ie, the defendant’s application to strike out the Writ of Summons) was dismissed by the Assistant Registrar on 20 January 2010.

  53. The main issues

  54. [42] The claim in this action was in conversion. The determinative issues raised by the Defendant to challenge the claim in conversion were as follows:

  55. (a) Issue 1: Conversion.

  56. (i) Whether the Plaintiffs had locus standi to sue the Defendant in conversion; and

  57. (ii) Whether the Defendant was an “innocent agent”, and if not, whether its conduct amounted to acts of conversion rather than mere ministerial acts of a bona fide intermediary.

  58. (b) Issue 2: Possessory lien as a defence to conversion

  59. (i) Whether the Defendant enjoyed a lien over the September shipment including the Group B Cargo and was entitled to claim storage and other charges pursuant to a possessory lien.

  60. (c) Issue 3: Illegality

  61. (i) Whether the Plaintiffs’ claim was tainted by illegality and as such the Plaintiffs were not entitled to the reliefs claimed.

  62. [43] I will set out the grounds for my decision on Issue 1 first. The other two issues were easily disposed of primarily because they were not made out as a matter of law and evidence. The Defendant’s blunderbuss arguments not only undermined the credibility of its defences, but also contributed to this lengthy Grounds of Decision.

  63. Issue 1: Conversion

  64. General principles

  65. [44] To succeed in a claim for conversion, a plaintiff must show that:

  66. (a) it has actual possession of, or the right to immediate possession of the chattel converted; and that

  67. (b) the right to sue for conversion existed at the time of the conversion; and that

  68. (c) the defendant acted in a manner inconsistent with the plaintiff’s superior possessory title.

  69. These elements have been set out in The Cherry and others [2003] 1 SLR(R) 471 at [58] (“The Cherry”) and Tat Seng Machine Movers Pte Ltd v Orix Leasing Singapore Ltd [2009] 4 SLR(R) 1101 (“Tat Seng”) (see also Clerk & Lindsell on Torts (Michael A Jones & Anthony Dugdale gen and consultant eds) (Sweet & Maxwell, 20th Ed, 2010) (“Clerk & Lindsell”); and Gary Chan Kok Yew & Lee Pey Woan, The Law of Torts in Singapore (Academy Publishing, 2011) (“The Law of Torts in Singapore”)).

  70. [45] Conversion can take many forms. At its core, an act of conversion occurs when there is an unauthorised taking of possession of a chattel with the “intention of exercising a permanent or temporary dominion over it” (Tat Seng at [45] affirming R F V Heuston and R A Buckley, Salmond & Heuston on the Law of Torts (Sweet & Maxwell, 21st Ed, 1996); see also Clerk & Lindsell at para 17-09 to 17-10). Conversion has also been characterised as “conduct which has the effect of denying the claimant of his superior possessory title in the goods” (The Law of Torts in Singapore at para 11.004 citing Sarah Green & John Randall, The Tort of Conversion (Hart Publishing, 2009) at p 65–66). Generally, it is not a viable defence to a claim in conversion that the defendant was ignorant of the plaintiff’s rights or was merely acting innocently as an agent for someone else (Clerk & Lindsell at para 17-72 to 17-73).

  71. [46] However, an innocent agent’s act in ignorance of the plaintiff’s rights has been successfully raised as a defence in cases involving an intermediary agent whose act was seen as prima facie ministerial because it was performed in good faith and without notice of his principal’s lack of title. Given the factual scenario outlined, it is hardly surprising that no presumption of a conversion can be raised (Clerk & Lindsell at para 17-75). The Court of Appeal in Tat Seng held at [48] that:

  72. [47] The underlying rationale of the line of cases on innocent intermediaries was explained in Tat Seng (at [58]) as arising from “the compelling need to ameliorate the hardship engendered by the remedy of conversion... for intermediaries who deal[t] with goods in good faith”. Thus, in Francis Hollins v George Fowler (1874–5) LR 7 HL 757 (“Fowler”) at 766–767 (affirmed in Tat Seng at [58]–[60]), Blackburn J observed in Fowler that:

  73. In relation to warehousemen (though I should add that the Defendant was not one), Blackburn J observed at 767 that:

  74. [48] “Ministerial acts” are acts that do not sufficiently interfere with the rights of the true owner, or to put it in another way, are not extensive enough to amount to an encroachment on the true owner’s right of use and possession (Tat Seng at [87] and [92]). Tuckey LJ in Marcq v Christie Manson & Woods Ltd [2004] QB 286 put it as such (at [14]):

  75. [49] One way to prove bona fide belief is to adduce evidence that whatever was done was consistent with the ordinary business conduct of the intermediary. Once there is prima facie evidence of the defendant’s bona fide belief that it was dealing with the owner or with his authority, the evidential burden of proving conversion shifts to the plaintiff (see Tat Seng at [87] and [94]).

  76. [50] The facts of Tat Seng, in brief, are as follows. Orix Leasing Singapore Ltd (“Orix”) leased a Heidelberg 4-colour off-set print machine (‘the machine”) to a company, Rav Graphics Pte Ltd (“RGPL”), on hire-purchase terms. In 2006, RGPL shifted its office from Toh Guan to new premises. One Crispian Tan (“Crispian”) who was a director and shareholder of RGPL hired Kenzone Logistics Pte Ltd (“Kenzone”) to facilitate the shift. Kenzone then approached Tat Seng to transport the machine to the new premises. The initial instruction from RGPL was to shift the machine to a warehouse owned by a third party, Hock Cheong Transport Co (Singapore) Pte Ltd. The warehouse refused to accept the machine when Tat Seng’s lorries arrived. Kenzone then requested Tat Seng to provide temporary storage space for the machine. Tat Seng stored the machine for four days until 4 September 2006, when it was removed from their premises at the request of Crispian and loaded on Malaysian-registered trailers pursuant to an alleged sale that Crispian had arranged. Orix sued Tat Seng for conversion of the machine.

  77. [51] The Court of Appeal in Tat Seng at [96] helpfully laid down the approach to be applied (and where the burden of proof lies) where a defendant seeks to rely on the argument that it is an innocent intermediary:

  78. [52] With the above principles and guidance in mind, I now turn to the various issues identified earlier.

  79. The first three Plaintiffs

  80. [53] It is reasonably clear that all that is required to sue in conversion is a right to immediate possession. This right to immediate possession arises from the existence of a legal relationship of bailor and bailee as a matter of general principle of law on bailment.

  81. [54] I examined the course of dealings to see whether the first three Plaintiffs and the customers who had engaged them for their door-to-door freight forwarding services in respect of the subject containers stood in a bailor and bailee relationship. I was satisfied that the evidence supported the relationship as described. It was not disputed that the first three Plaintiffs received and through Euro Trans (who was appointed by the first three Plaintiffs) consolidated the goods into containers. At the consolidation stage, so far as the possession of the goods was concerned, the legal position is that the goods were sub-bailed to Euro-Trans into whose actual possession the goods came into. The Defendant was also involved with the consolidation of goods into two other containers. More importantly, the 30 FCL containers were loaded on board the vessels Sinar Sumba and APL Shenzhen for carriage from Singapore to Jakarta for discharge and delivery at Jakarta UTC 1 container yard. During this voyage by sea, the carriers were in possession of the 30 FCL containers as sub-bailees.

  82. [55] The first three Plaintiffs had appointed, as their receiving agent, Prolink Logistics (which Hari believed was Cuaca’s company), to make the necessary arrangements for customs clearance of the 30 FCL containers and other services for which the first three Plaintiffs had undertaken responsibility vis-à-vis their customers. As such, the first three Plaintiffs would have had a right of indemnity against their sub-bailee in respect of any loss that the first three Plaintiffs might incur.

  83. [56] It was not disputed that it was the responsibility of the first three Plaintiffs vis-à-vis their customers to send back the 30 FCL containers to Singapore after the carriers could not deliver the 30 FCL containers. After all, the first three Plaintiffs as head bailees under the door-to-door service agreement with their customers who had purchased the goods were entitled, if not obliged, to protect and preserve the February shipment. It was not surprising, and it was clear on the evidence, that the first three Plaintiffs had appointed their receiving agent (ie, sub-bailee), Prolink Logistics, to arrange for the 30 FCL containers to be shipped back to Singapore. The first three Plaintiffs’ rights and interests in the 30 FCL containers were acknowledged by Cuaca and/or Prolink as evident from the efforts they took to keep the subject containers out of the control and possession of the first three Plaintiffs in order to pressurise Hari into paying what Prolink wanted. It was not clear on the admissible evidence what the precise dispute between Hari and Cuaca and/or Prolink was save that Hari was asked to pay Rp 45 billion. Their dispute presumably had to do with services of Prolink that were rendered to the first three Plaintiffs.

  84. [57] After permission to ship back the subject containers was obtained, it was incumbent upon Prolink to ensure that the subject containers were consigned to the 1 Plaintiff as instructed by the first three Plaintiffs, and not to unilaterally send the subject containers to a different consignee. By reason of the unauthorised switch of consignee to the Defendant as Prolink’s agent, I held that the sub-bailment ended and the right of possession to the bailed property (ie, the 30 FCL containers) re-vested in the first three Plaintiffs as the head bailees (Tat Seng at [52]).

  85. [58] The legal position (as I found) was that the first three Plaintiffs had (as early as 18 September 2009, and certainly by 13 October 2009) a cause of action in conversion against Prolink, and the cause of action could not be extinguished by virtue of the fact that Prolink had purported to perfect (or perfected) its subsequent possessory title to the goods by virtue of the Prolink POAs obtained from the owners of the Group A Cargo.

  86. [60] The fact that the Defendant was the named consignee on the September B/Ls did not add anything to its bare possessory title. As named consignee on a bill of lading, this status merely gave the Defendant a contractual right to obtain delivery of the containers vis-à-vis the carrier (Sir Richard Aikens, Richard Lord and Michael Bools, Bills of Lading (Informa Law, 2006) at para 5.3 (“Bills of Lading”)). This proposition was succinctly laid down by the court in The “Future Express” [1992] 2 Lloyd’s Law Reports 79 at 96 (which was affirmed on appeal in The “Future Express” [1993] 2 Lloyd’s Law Reports 542) (see also Bills of Lading at para 5.11 to 5.18):

  87. [61] Therefore, as between the first three Plaintiffs and the Defendant, the former as head bailees had a title superior to the Defendant’s bare possessory title to the 30 FCL containers. The first three Plaintiffs had the right to immediate possession of the 30 FCL containers, and, therefore, had the right to sue the Defendant in conversion on 13 October 2009. This was clearly the legal position until their authority to act for the owners of the Group A Cargo was revoked by the Prolink POAs obtained between 14 October 2009 and 13 November 2009. However, the first three Plaintiffs continued to enjoy the right to immediate possession of the Group B Cargo as against the Defendant.

  88. The Group B Plaintiffs

  89. [62] The Defendant also challenged the Group B Plaintiffs’ proprietary title to the Group B Cargo. For easier reading of this already lengthy Grounds of Decision, the detailed findings on this issue are found in Annexure A to this Grounds of Decision. Suffice it to say for present purposes that I found for the Group B Plaintiffs on the issue of proprietary title. I was satisfied on the evidence that they had fully paid for their respective goods. Representatives of the Group B Plaintiffs and, in some cases, the suppliers from whom they purchased the goods came to testify that the goods were paid for. Whilst the Defendant tried to attack some of Group B Plaintiffs’ proprietary title for the incomplete documentary proof, the overall evidence on a balance of probabilities was in favour of the Group B Plaintiffs’ claim to proprietary title. An added factor in their favour was that at no point in time had any other person come forward to make an adverse claim for the goods. I was satisfied with the evidence on the Group B Plaintiffs’ proprietary title, and I found in their favour on the issue of ownership of the Group B Cargo.

  90. [63] Besides their proprietary title, counsel for the Plaintiffs, Mr Winston Kwek (“Mr Kwek”), submitted that the Group B Plaintiffs had the right to immediate possession by virtue of their “paramount possessory rights” as owners of the Group B Cargo, with the reversionary interests or title to sue for their respective goods in the Group B Cargo. I digress for a moment to emphasise that ownership is neither a necessary nor determinative criterion for the purposes of determining whether a party can sue for conversion (see Tat Seng at [49] affirming "The Cherry" at [58] and [64]). Ownership and the right to immediate possession are distinct concepts and the distinction is important in a claim for conversion (see generally The Law of Torts in Singapore at para 11.020 for an explanation of this distinction in a claim for conversion).

  91. [64] Returning to the Group B Plaintiffs’ status, I was satisfied that the Group B Plaintiffs enjoyed the right to immediate possession as bailors of their respective shares in the Group B Cargo. This is notwithstanding the evidence that the Group B Plaintiffs never came into actual possession of the Group B Cargo – actual possession of the goods is not necessary to constitute a party as bailor (Belvoir Finance Co Ltd v Stapleton [1971] 1 QB 219 at 217 (“Belvoir”)). The learned authors of Goods in Transit and Freight Forwarding (Sweet and Maxwell, 2nd Ed, 2010) thus noted at p 165:

  92. [65] In Belvoir, the plaintiff finance company purchased three cars from motor dealers. Belgravia Car Hire Co Ltd (“Belgravia”) obtained these cars from the plaintiff under a hire-purchase agreement. Belgravia then let these cars out on hire. The plaintiff did not take actual possession of the cars; the cars were instead delivered by the dealers directly to Belgravia. The defendant, Belgravia’s assistant manager, subsequently sold the three cars to another party, without the plaintiff’s consent. The plaintiff sued the defendant for conversion. The defendant sought to argue that the contracts of sale between the motor dealers and the plaintiffs were tainted with illegality, and that the plaintiff had to rely on the illegal contract as it never gained possessory title in the cars. Lord Denning MR dismissed the appeal, holding the following (at p 217):

  93. [66] While these observations were made in the context of a hire purchase contract, I was of the view that the principle to be drawn was that the party with the “ultimate possessory entitlement” could be a bailor notwithstanding that it never came into actual possession of the goods (Palmer on Bailment (Thomson Reuters (Legal) Limited, 3rd Ed, 2009) (“Palmer on Bailment”) at para 2-015). This was exemplified in the relationship between the Group B Plaintiffs and the first three Plaintiffs. Title passed to the Group B Plaintiffs when the goods they ordered from their suppliers were delivered to the first three Plaintiffs as their appointed agents, or, at the latest, when payment for the goods was made in full (where payment was subsequent to the delivery of possession to the first three Plaintiffs). On the facts, I was satisfied that the Group B Plaintiffs were bailors of the goods with the ultimate right to immediate possession.

  94. Concurrent standing to sue

  95. [67] I now turn to a related argument. Mr Timothy Tan (“Mr Tan”), counsel for the Defendant, claimed that the first three Plaintiffs as head bailees and the Group B Plaintiffs as bailors could not concurrently enjoy the right to immediate possession to the Group B Cargo. Mr Tan submitted that “it is not possible for all the Plaintiffs to have rights of immediate possession of all of the [30 FCL containers] all at the same time”, and complained that the Plaintiffs had put forth “contradictory and overlapping claims” through the joinder of the Group B Plaintiffs to the action. This submission was ill-founded and erroneous.

  96. [68] Mr Tan made no distinction between a bailment for a term and a bailment at will. It is true that where there is a bailment for a term, only the bailee enjoys the right to immediate possession during the subsistence of that term. Hence, only the bailee, and not the bailor, can sue in conversion (see Siew Kong Engineering Works (a firm) v Lian Yit Engineering Sdn Bhd and another [1993] 1 SLR(R) 736 at [9] & [10]; The Law of Torts in Singapore at para 11.028). On the other hand, under a bailment at will, both the bailor and the bailee enjoy the concurrent standing to sue third parties and sub-bailees for conversion (The “Endurance 1” ex “Tokai Maru” [2000] 2 SLR(R) 120 at [33] (“Tokai Maru”); The Law of Torts in Singapore at para 11.028). In East West Corpn v DKBS AF 1912 A/S and another; Utaniko Ltd v P & O Nedlloyd BV [2003] QB 1509, Mance LJ at [27] affirmed the principle that the bailee and bailor’s standing to sue in conversion can be concurrent:

  97. [69] In this case, the relationship between the first three Plaintiffs and the Group B Plaintiffs was a bailment at will, because the first three Plaintiffs received the Group B Cargo on their behalf for the primary purpose of shipping them to the Group B Plaintiffs in Indonesia, rather than for a term. The Group B Plaintiffs had the right to revoke the bailment at any time; indeed, it was intended that the first three Plaintiffs send the Group B Cargo to the Group B Plaintiffs in Indonesia as quickly as possible. Until delivered, the first three Plaintiffs were obliged to preserve and protect the Group B Cargo. In fact, the Group B Plaintiffs confirmed the authority of the first three Plaintiffs to continue to deal with the Group B Cargo by granting Powers of Attorney in favour of Hari and his wife (below at [82]). My conclusion that the bailment was a bailment at will was reinforced by the ease in which the owners of Group A Cargo could and did revoke at will the first three Plaintiffs’ authority by signing the Prolink POAs. Accordingly, both the first three Plaintiffs and the Group B Plaintiffs had concurrent standing to sue in conversion.

  98. [70] This proposition is, of course, subject to the rule that if either the bailor or the bailee recovers from a wrongdoer in full, the other may not bring a “separate and independent” claim against the wrongdoer (Palmer on Bailment at para 4-116). In Tokai Maru, the High Court held at [38] that:

  99. [71] During the course of the trial, Mr Kwek confirmed that there would be no claims for the same loss, and that there were no contradictory and overlapping claims. He confirmed that the reliefs sought by the Group B Plaintiffs were different from that of the first three Plaintiffs whose claim was limited to seeking an indemnity against any recourse by their customers by reason of the Defendant’s conversion.

  100. Was the Defendant an innocent intermediary?

  101. Overview

  102. [72] The Defendant’s sales director, Fabian, who was the Defendant’s only witness (other than a cargo surveyor), maintained that the Defendant did not know of the arrangements between the first three Plaintiffs and Cuaca, Jonny, Radius, and Prolink. He maintained that the Defendant was authorised by Prolink to receive the 30 FCL containers on behalf of the cargo owners, and that the Defendant was entitled to take possession of the 30 FCL containers as the consignee named on the September B/Ls. To demonstrate that the Defendant’s appointment was in the ordinary course of business, Fabian testified that Prolink had contacted the Defendant to inquire about its charges in July or August 2009, and that he had responded with the usual quotation. He did not hear from Prolink after the quotation was sent until September 2009. Arrival notices from APL and Samudera were then sent to the Defendant on 18 September 2009 (“the Arrival Notices”). The Defendant as consignee took possession of the 30 FCL containers on 19 September 2009. The unstuffing of the 30 FCL containers were authorised by Prolink. The subsequent release of Group A Cargo and detention of Group B Cargo were on the instructions of Prolink. For all intents and purposes, Mr Tan submitted that the Defendant’s acts were ministerial in nature and no claim in conversion was maintainable against the Defendant.

  103. [73] In response, Mr Kwek pointed out that it would not lie in the mouth of the Defendant to claim that it had no reason to even suspect that the first three Plaintiffs’ rights had been interfered with before the Writ of Summons was filed.

  104. [74] The Defendant’s assertion that it was a mere intermediary carrying out its principal’s instructions without notice of any competing claims and in the bona fide belief that the principal were in a position to give lawful instructions could not be further from the truth. In fact, the Defendant’s acts and conduct were intentional and had the effect of denying the first three Plaintiffs of their superior possessory title to the subject containers. The evidence showed that, at all material times, the Defendant knew that the first three Plaintiffs were entitled to the 30 FCL containers, and that the Defendant’s principal had no authority to give lawful instructions in relation to the subject containers. The evidence also showed that the Defendant assisted Prolink to interfere with and to undermine the first three Plaintiffs’ right to immediate possession.

  105. Analysis of the evidence

  106. [75] In this part of the grounds, the matters set out under the sub-heading “Arrangement between Prolink and the Defendant to release cargo” (above at [33] to [38]) will be considered in the context of my analysis of the overall evidence.

  107. [76] A good starting point is 18 September 2009 when Lola spoke to Brendan Wee (“Brendan”), the Defendant’s managing drector, about the 30 FCL containers. Her unchallenged testimony was that in that telephone conversation, Brendan acknowledged that the 30 FCL containers were supposed to be consigned to the first three Plaintiffs, but he would require Fabian’s permission before releasing the 30 FCL containers to the first three Plaintiffs. Lola called Brendan again on the same day, but was informed that Fabian was in a meeting. Brendan again reiterated that he would need specific instructions from Fabian before he could release the 30 FCL containers to the first three Plaintiffs. Lola and Charles attended the unstuffing of the Cargo from 25 September 2009 to 12 October 2009 at Goodway Agencies after Lola was informed of the unstuffing of the 30 FCL containers by Radius. Lola was further notified by Radius that the unstuffing would go ahead whether Lola was present or not. At the unstuffing, Lola met Radius and she demanded the release of the 30 FCL containers from Radius.

  108. [77] Fabian was present at the unstuffing. He admitted in cross-examination that he knew that the first three Plaintiffs were interested in the goods as he saw their representatives at the unstuffing:

  109. [78] Incidentally, Lola was no stranger to Fabian. As Fabian admitted, she had given him some business by engaging the Defendant to consolidate two full-container-load that was part of the February shipment. The same two containers (ie, Container No TCNU 831958-2 (Seal No 0226555) and Container No TRLU 698671-5 (Seal No 0142149)) were returned and received by the Defendant on 19 September 2009.

  110. [79] After Lola’s oral demands went unheeded, R&T sent a letter of demand on 12 October 2009 on behalf of the first three Plaintiffs. Contemporaneously, the Defendant had received Prolink’s instructions to release the goods since the first week of October 2009 (above at [36]). Prolink approached some of the first three Plaintiffs’ customers to obtain their Powers of Attorney in exchange for release of their goods in the Defendant’s possession. The evidence showed that Powers of Attorney required by the Defendant served two purposes: to revoke the authority of the first three plaintiffs to deal with the goods and in their stead appoint Prolink to deal with the goods. Thus, Fabian’s reaction on being told by Brendan of R&T’s letter of demand was to “hurry” Jonny to obtain Powers of Attorney from the cargo owners. The reaction was understandable seeing that the Defendant released goods to Comstar on 13 October 2009 before the relevant Power of Attorney was executed on 14 October 2009 (above at [37]). I was satisfied on the evidence that by the time the letter of demand was received, the Defendant already knew that the Defendant’s principal had no authority to give instructions to the Defendant for the release of the goods. The urgency of obtaining Powers of Attorney was explained by Fabian under cross-examination:

  111. [80] Prolink was able to obtain Powers of Attorney (ie, the Prolink POAs) from the owners of the Group A Cargo. The text of the standard Power of Attorney has been previously set out (above at [35]). Crucially, the Prolink POAs revoked “any previous authority or approval that had been given to Antariksa and/or any other third parties by [the cargo owners] as the [sic] deal with or handle the cargo and/or its shipment and/or to take possession, custody or control of the cargo has been fully and unconditionally revoked and withdrawn [emphasis added]”.

  112. [81] That was not all. The Defendant’s refusal to part with the Group B Cargo continued even after it was stated in clear terms by 18 customers that the first three Plaintiffs were their freight forwarders authorised to deal with the Group B Cargo and not the Defendant’s principal.

  113. [82] On 16 October 2009, these 18 customers including the Group B Plaintiffs issued Powers of Attorney to confirm Hari (as director of the 2 and 3 Plaintiffs) and his wife Linda Irawaty Lim (as director of the 1 Plaintiff) as their appointees. These Powers of Attorney were exhibited in Hari’s Interlocutory Affidavit filed on 9 November 2009 (“the Plaintiffs’ POAs”). In effect, the Plaintiffs’ POAs confirmed that the first three Plaintiffs whose managers were Hari and his wife were authorised to recover and deal with the Group B Cargo and to seek consequential damages from the Defendant. The Plaintiffs’ POAs also stated that the grantors did not recognise nor had they authorised the Defendant as their agents in respect of the forwarding or return of the Group B Cargo.

  114. [83] Marshalling all the pieces of evidence before me, what transpired between the first week of October 2009 and 14 October 2009 (the date 14 October 2009 was the earliest execution date of the Prolink POAs) was important, and based on the overall evidence, I was able to make the following findings of fact and conclusion of law:

  115. (a) The Defendant was aware of the right of the first three Plaintiffs to immediate possession of the 30 FCL containers, and of the first three Plaintiffs’ demand for their release from Lola’s telephone conversations with Brendan on 18 September 2009, and her conversation with Radius at the time the goods were being unstuffed from the 30 FCL containers on 25 September 2009;

  116. (b) The Defendant was aware that Prolink could not lawfully instruct it to release the goods in the 30 FCL containers before 14 October 2009;

  117. (c) The Defendant was, however, willing to bypass the first three Plaintiffs and to release the goods to any third party. To safeguard the Defendant, Fabian wanted the cargo owners to revoke the previous authorisation to the first three Plaintiffs, and in their place appoint the Defendant as their attorney to deal with the goods including the release of goods to cargo owners or to parties instructed by cargo owners;

  118. (d) The Defendant intentionally withheld release of the goods to the first three Plaintiffs and continued to withhold the same despite receiving R&T’s letter of demand on 12 October 2009. The Defendant did not reply within the time stipulated in the letter of demand. In the context of the prevailing facts and circumstances, it was reasonable to interpret the non-communication or silence as a refusal to release the goods. The non-communication or silence was intentional in order to buy time for the Defendant and Prolink to contact the cargo owners and to persuade them to revoke the authority of the first three Plaintiffs and to execute Powers of Attorney to new attorneys. It was significant that the goods were withheld until such time as Prolink obtained and the Defendant received the requisite revocation of the Group A Cargo owners’ previous authority given to the first three Plaintiffs;

  119. (e) As at 13 October 2009, the authority of the first three Plaintiffs had not been revoked; and

  120. (f) As at 14 October 2009, five owners of the goods in the Group A Cargo appointed Prolink as their attorney to deal with the Group A Cargo and, at the same time, revoked the authority of the first three Plaintiffs. The rest of the Prolink POAs were executed thereafter between 19 October 2009 and 13 November 2009.

  121. [84] After the Group A Cargo were released, R&T, now also acting for the owners of the Group B Cargo, repeatedly asked the Defendant to provide its claim amount so as to consider payment into court in lieu of the withholding of the Group B Cargo. No figure on the quantum was forthcoming. Mr Kwek, for the Plaintiffs, questioned Fabian as to why he did not recognise the Plaintiffs’ POAs, but Fabian was evasive and he prevaricated by not answering the question directly. Instead, he complained that the Plaintiffs had not paid for the release of the goods:

  122. [85] The detention of the 30 FCL containers and thereafter the Group B Cargo was also to further its principal’s interest in these proceedings. The Defendant continued to take instructions from its principal and it withheld the Group B Cargo because its principal had unspecified “charges in Jakarta” to settle with the first three Plaintiffs. The Defendant was instructed not to release the goods until the first three Plaintiffs paid Prolink. This was the pleaded case in the Defence as early as March 2010, and repeated in the amended Defence filed on 13 September 2011 and deposed to in Fabian’s affidavit filed on 20 September 2011 in support of Summons No 4218 of 2011 (“SUM 4218/2011”, the Defendant’s application for declaration that it had a lien over the remaining cargo that was still in its possession for storage and ancillary charges) in which he stated (at paragraph 10):

  123. [86] It was also not disputed that the Defendant’s initial legal fees were funded by its principal. A Singapore-incorporated company called D’League Pte Ltd (in which Cuaca was a director with a 70% beneficial interest) provided $15,000 for the Defendant’s legal fees. Although there was no further evidence that financial support for the litigation continued, it bears noting that the Defendant as late as 5 September 2011 was still accepting instructions from Prolink. The Defendant continued to withhold the Group B Cargo with the concomitant daily storage charges despite appearing to be balance-sheet insolvent based on the statement of accounts for three successive financial years of 2007, 2008 and 2009. A reasonable and commercially minded party in the Defendant’s position would have been anxious to extricate itself from the legal proceedings soonest possible. Instead, the Defendant became firmly entrenched in the proceedings having taken on Prolink’s fight with the first three Plaintiffs in Singapore. As stated, it was openly pleaded in the Defence filed on 17 March 2010 that “storage charges and ancillary charges and expenses incurred in respect of or in connection with the cargo, which as at 31 March 2010 stands at S$264,831.67 (including various charges incurred by Prolink eg, unstuffing which they have instructed the Defendants to claim and/or exercise a lien over the cargo for)” [emphasis added]. Some 18 months later, the Defendant was still taking instructions from Prolink. In the amended Defence filed on 13 September 2011, the Defendant disclosed Prolink’s instructions on 5 September 2011 which the Defendant continued to obey by not parting with the Group B Cargo. The amended pleadings referred to:

  124. [87] Fabian and Cuaca were no strangers to each others. Fabian admitted that Cuaca was Fabian’s boss when Fabian was working for another forwarding company in 1996 or 1997. Moreover, the Defendant had enjoyed business relations with Prolink Logistics since 2002 or 2003. Fabian was also on familiar terms with Cuaca, Jonny and Radius. In the circumstances, it was plausible and not unreasonable to deduce that they were people whose goodwill Fabian was willing to further cultivate, develop and maintain for the sake of future business.

  125. [88] In conclusion, for all the reasons stated, the Defendant was not an innocent intermediary and its involvement and participation in the detention of the 30 FCL containers could not be characterised as ministerial acts. The Defendant’s acts were not performed in good faith and the Defendant knew of its principal’s lack of authority and possessory title.

  126. Decision on the Defendant’s liability for conversion

  127. [89] In this case, there were two categories of conduct that could amount to conversion: (1) the taking of the 30 FCL containers and (2) the Defendant’s refusal to deliver up the 30 FCL containers on demand. I found that there were sufficient facts in evidence to make out a case of conversion in both categories.

  128. [90] The Plaintiffs’ case in conversion proceeded mainly on the Defendant’s refusal to deliver up the 30 FCL containers on demand. The Defendant attacked the first three Plaintiffs’ evidence of a “demand and refusal” arguing that the elements of a demand and refusal were not established before issuance of the Writ of Summons, and there was thus no cause of action at the time the Writ of Summons was filed (see Clayton v Le Roy [1911] 2 KB 1031 (“Clayton”)). It should be noted that the plaintiff’s case in Clayton was based primarily on detinue and not conversion. However, the majority was of the view that the same would apply to a claim in conversion where the plaintiff relied on “demand and refusal” as the mode of proof (notwithstanding a strong dissent by Vaughan Williams LJ). Fletcher Moulton LJ in Clayton held at p 1050:

  129. [91] Apart from Lola’s oral demands, R&T’s letter of demand also stated that “unless we receive your confirmation by 3.00 pm today (12 October 2009) that you will forthwith deliver up the Containers and their contents to our clients, our clients shall have no alternative [sic] but to commence legal proceedings to compel you to deliver up the same”. I was satisfied that this letter constituted an unequivocal demand for delivery up. As an illustration, in Tavoulareas v Lau and another [2007] EWCA Civ 474, it was found there was an unequivocal demand for return as constituted by the following statement at [14] that:

  130. [92] The written demand was specific (as opposed to a merely general demand) because the 1 Plaintiff claimed to be entitled to the goods in the 30 FCL containers pursuant to the “3 Bills of Lading”, which expression was reasonably referable to the pro-forma bills of lading from APL and Samudera for the September shipment enclosed in the letter of demand. The container numbers stated in the pro-forma bills of lading corresponded with that on the Arrival Notices sent to the Defendant on 18 September 2009. It was also not alleged by the Defendant that there was any misapprehension as to the goods that were the subject of the demand in this letter. The Defendant, however, argued that the letter of demand was not a “proper demand” made for delivery up of the Group B Cargo because the letter was only written on behalf of the 1 Plaintiff, and it was made on the wrong basis given that the Defendant, and not the 1 to 3 Plaintiffs, was the named consignee on the September B/Ls. This argument was misconceived. The first three Plaintiffs were not demanding for the Group B Cargo as consignee but in their capacity as head bailees, and the direction was for the Group B Cargo to be released to the 1 Plaintiff.

  131. [93] In applying the law to the evidence, it is important to start from the point in time when the first three Plaintiffs decided to nominate the 1 Plaintiff to receive the 30 FCL containers in Singapore, and duly instructed Prolink to name the 1 Plaintiff as consignee on the September B/Ls. As regards Prolink’s unauthorised and unilateral switch of consignee to their own agent, this act constituted taking of the 30 FCL containers in respect of which no demand in law was necessary (see Cuff v Broadlands Finance [1987] 2 NZLR 343). This name change effectively prevented the 1 Plaintiff from taking delivery of the 30 FCL containers from the carriers. The switch also manifested Prolink’s intention to exercise dominion or control over the 30 FCL containers for a time and to deprive the first three Plaintiffs of their right to immediate possession of the 30 FCL containers.

  132. [94] The receipt of the 30 FCL containers in Singapore by the Defendant as agent for Prolink constituted taking of the 30 FCL containers which excluded the first three Plaintiffs from the containers. I have already analysed the events that transpired between the first week of October 2009 and 14 October 2009 (above at [83]). As I have already found, the Defendant intentionally detained the 30 FCL containers to give Prolink time to get Powers of Attorney from owners of the goods in the 30 FCL containers. Put another way, the Defendant’s refusal was in disregard of the first three Plaintiffs’ possessory title, and (a) was designed to buy time in order to strip the first three Plaintiffs of their authority, and hence their right to immediate possession of the 30 FCL containers as head bailees; and (b) was for the purpose of enabling Prolink to claim possession of the 30 FCL Containers. Clearly, Prolink and the Defendant had acted in a manner that had the effect of denying the first three plaintiffs of their superior possessory title (ie, in their right to immediate possession of the 30 FCL containers), and that denial was a substantial interference with their right, and it was committed with clear intention of exercising a temporary dominance over the 30 FCL containers (Tat Seng at [45]) for the purpose of enabling Prolink to claim possession of the 30 FCL containers and give instructions in relation to the same.

  133. [95] Mr Tan submitted that the reason the Defendant did not revert by the deadline stipulated in the letter of demand of 12 October 2009 was because the Defendant was taking instructions from Prolink, and that reasonable time should be given for that purpose. I did not accept the submission. First, there was no evidence that Fabian had specifically sought instructions on the letter of demand. This was a case in which the Defendant had been made aware of the first three Plaintiffs’ interest in the 30 FCL containers for a considerable period of time before the Writ of Summons was filed. The Plaintiffs had also made several prior attempts to contact the Defendant for the 30 FCL containers. The letter of demand also alluded to this, stating that “[o]ur client’s representatives had on several occasions spoken to your Mr Brendan Wee and Mr Fabian Tan, as well as sent SMS to the latter, in relation to release of the Containers and their contents to our clients, but Mr Wee and Mr Tan have not reverted in substance, only to say that they are awaiting instructions”. Second, ostensibly the deadline was missed deliberately and I found the Defendant’s silence to be tantamount to an unequivocal refusal to release the 30 FCL containers to the first three Plaintiffs (see Eady J’s observations in Schwarszchild v Harrods Ltd [2008] EWHC 521 at [22]).

  134. [96] As at 19 November 2009, the Group A Cargo was released. In my view, the release of Group A Cargo would not assist in determining whether the Defendant converted the Group B Cargo on 13 October 2009. The release of Group A Cargo must be viewed in the context of how the Prolink POAs were obtained.

  135. [97] I had no difficulty concluding that as against the first three Plaintiffs, the Defendant had converted the 30 FCL containers.

  136. [98] I now come to the Group B Plaintiffs’ case.

  137. [99] The Defendant raised a technical argument: that no cause of action or “demand and refusal” arose before the issuance of the Writ of Summons. This technical argument would not affect the Group B Plaintiffs’ claim in conversion at all. The Group B Plaintiffs were joined as co-plaintiffs on 25 January 2010.

  138. [100] I should mention that upon joinder of a person as party to an action, that person becomes a party (and the amendment correspondingly only takes effect) from the date the Writ of Summons was amended and served on him (O 15 r 4(8) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“Rules of Court”); Singapore Civil Procedure (G P Selvam ed) (Sweet & Maxwell, 2007) at para 20/8/3). The amendment does not date back retrospectively to the time the Writ of Summons was first filed (Ketteman and others v Hansel Properties Ltd and Others [1987] 1 AC 189). Thus, even if the Group B Plaintiffs’ cause of action was not constituted before the Writ of Summons was filed on 13 October 2009, it was sufficient that their cause of action was constituted by the time they were joined as parties to the action (Teo Gracie v Tay Leng Hong and others [1987] SLR(R) 315 at [9] to [10]). That was indeed the case here.

  139. [101] The Group B Plaintiffs had refused to grant Powers of Attorney in favour of Prolink Logistics. The Group B Plaintiffs had consistently maintained that the Defendant was not in lawful possession of the Group B Cargo, and subsequently engaged R&T to represent them. By letters dated 9, 23 and 28 December 2009, the lawyers proposed that the Defendant specify the nature and quantum of sums demanded from them. It was also stated that they would consider paying these sums into Court to avoid further delay in delivery of their cargo on a without prejudice basis. When no reply on quantum was forthcoming, the Group B Plaintiffs applied to be joined as co-plaintiffs in this action vide SUM 6569/2009 filed on 29 December 2009. As previously stated, they were finally joined as party to the action on 25 January 2010.

  140. [102] It was patently clear that the Defendant’s conduct up till the 25 January 2010 was consistent with an intention to exercise dominion over the Group B Cargo and to act inconsistently with the Group B Plaintiffs’ entitlement to the goods:

  141. (a) The Defendant continually maintained that it had the right to detain the Group B Cargo and refused to release the goods to the first three Plaintiffs as the appointed freight forwarders. In its letter of response to R&T, the Defendant maintained that they would “vigorously defend the action brought against them” as well as SUM 5358/2009. As bailors of the Group B Cargo, the Group B Plaintiffs were entitled to interpret this conduct as an act of conversion by the Defendant.

  142. (b) Another act of conversion was evident from the Defendant detention of the 30 FCL containers initially, and thereafter the Group B Cargo, in purported exercise of a lien which I found at [105]–[130] below that the Defendant did not in fact possess (see Tear v Freebody (1895) 140 ER 1071).

  143. [103] For completeness, I should mention that the 3 February 2010 letter from the Defendant’s lawyers in response to the Plaintiffs’ proposal that the sums be paid into court (above at [101]) was unhelpful. The Defendant alleged in the letter that it was the Plaintiffs who had failed to contact them and did not provide verification that the Group B Plaintiffs were in fact the owners of the Group B Cargo. Given that the description of the Group B Cargo was provided to the Defendant, and that the release of Group B Cargo was on a without prejudice basis, the reply was with hindsight indicative of the Defendant’s inability to fix a quantum. Almost two years later, the Defendant was still struggling to state the quantum at the trial.

  144. [104] In conclusion, for the reasons stated, I was satisfied that the Defendant was liable to the Group B Plaintiffs in conversion in respect of the Group B Cargo.

  145. Issue 2: Possessory lien as a defence to a claim in conversion

  146. Whether the Defendant enjoyed a possessory lien over the 30 FCl containers

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