Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd and Another: ComC 21 Jan 2011

The defendants sought to set aside orders allowing the claimants to serve proceedings alleging repudiation of a charterparty in turn allowing a claim against the defendants under a guarantee. The defendant said the guarantee was unenforceable under the 1677 Act not being in writing and signed.
Held: There was no limit to the number of documents to which reference is made to establish the agreement. The guidance in Timmins was not strictly applicable in construing an agreement as such rather than a memorandum of agreement. There was an arguable case since the documents might be read together.
Where a document is executed by an agent which records the terms of the sale, it is not necessary, in order to satisfy the Statute, that the agent should have been authorised to execute the document as a record of the transaction; but it is necessary that the document, which is a record of the transaction, is one that he is authorised to execute by the person sought to be charged. The e-mails which constitute the contract were sufficiently signed by the electronically printed signature of the persons who sent them. It was argued the document itended to be signed by both parties had not been so signed, and ‘The question is whether the charterparty was drawn up with the authority of SMI and records the terms of the guarantee; not whether Howe Robinson was authorised to draw it up as a record of the guarantee, nor whether Howe Robinson was authorised to sign it as a contract. In fact, however, it was drawn up and signed on behalf of the Owners.’ The claimant had an arguable claim that valid contracts existed, that the charter had been repudiated, and that the agreement did not fall foul of the 1677 Act. The claim being governed by English law, the English court could exercise jurisdiction.

Christopher Clarke J
[2011] EWHC 56 (Comm), [2011] 2 All ER (Comm) 95, [2011] 1 CLC 125, [2011] CILL 3022, [2011] 1 WLR 2575
Statute of Frauds 1677
England and Wales
DistinguishedTimmins v Moreland Street Property Co Ltd CA 1958
The Court considered the effect of a note or memorandum evidencing the sale of a property where it was described as ‘6,8 and 41, Boundary Street, Shoreditch (freehold).’ It was sought to connect the signature on a purchaser’s deposit cheque with an . .
CitedElias v George Sahely and Co (Barbados) Ltd PC 1982
(Barbados) The parties entered into an oral agreement for the sale of land to the plaintiff. The plaintiff’s solicitor then wrote to the defendant’s solicitor confirming the oral agreement and setting out its terms. He enclosed a cheque for 10 . .
CitedIn re Hoyle CA 1893
ALSmith LJ discussed the 1677 Act: ‘The object of the Statute was to prevent fraud and perjury by taking away the right to sue on certain agreements if only established by verbal evidence . . The object of the statute being merely to exclude parol . .
Mentioned as incorrectLaw v Jones 1974
A ‘subject to contract’ document might be evidence of an antecedent or oral contract and satisfy section 40 of the Law of Property Act 1925 if the stipulation was later waived. A memorandum or note must, if it is to be effective, not only state the . .
CitedTiverton Estates Ltd v Wearwell Ltd CA 1975
“Subject to Contract” not to be diluted
‘subject to contract’ proposals remain in negotiation until a formal contract is executed. Lord Denning MR said: ‘for over a hundred years, the courts have held that the effect of the words ‘subject to contract’ is that the matter remains in . .
CitedCarlton Communications Plc, Granada Media Plc v The Football League ComC 1-Aug-2002
The applicants sought a declaration that they had not provided guarantees to support a contract between a joint venture company owned by them, OnDigital, and the respondent to screen football matches. The company had become insolvent.
Held: . .
CitedActionstrength Limited v International Glass Engineering In Gl En SpA and others HL 3-Apr-2003
Actionstrength agreed with Inglen to provide construction staff to build a factory for St-Gobain. Inglen failed to pay. Actionstrength claimed against for the amount due. Inglen went into liquidation. The claim was now against St-Gobain. The claim . .
CitedWesthead And Others v Sproson And Piper 1-May-1861
. .
CitedEvans v Hoare 1892
A defendant sought to deny liability under a document relying on the 1677 Statute. the relevant document had been drawn up by a duly authorised agent of the Defendants. The document was a letter from the Plaintiff and the words ‘Messrs Hoare, Marr . .
CitedJohn Griffiths Cycle Corporation, Limited v Humber and Co, Limited 1899
Smith v Webster was not to be taken as meaning that the agent must have had authority to sign the document as a record of the contract. All that Smith v Webster decided was that, in order to satisfy the Statute, it must be shown that the agent . .
CitedElpis Maritime Company Limited v Marti Chartering Company Limited (The Maria D) HL 1991
Brokers (Marti) were to guarantee a charter on the Gencon form, which contained, as one of the additional typed clauses a provision (Clause 24) in the following terms: ‘Demurrage guaranteed and payable directly by charterers to owners. However Marti . .
CitedSmith v Webster CA 1876
P verbally agreed to buy an inn from D. On the next day D told his solicitors that he had entered into a verbal arrangement for the sale and instructed them to prepare an agreement. On the same day they forwarded a draft formal contract to P’s . .
CitedDaniels v Trefusis 1914
Mr Trefusis agreed with an agent called Mr Girdlestone to buy a house for andpound;700. Girdlestone was in fact acting for a Mr Daniels but later claimed to be a principal who had bought from Mr Daniels for andpound;600 and was sub-selling to Mr . .
CitedNorth -v Loomes 1919
N agreed to sell to L certain premises in Chinnor for andpound; 590 and gave him a receipt for a andpound; 50 deposit. The receipt, which was regarded by both parties as their contract, was in the following terms: ‘Received of [L] the sum of . .
CitedBluck v Gompertz 7-Jun-1852
The defendant had signed an undertaking to procure the acceptance of two bills for andpound;200 and andpound;146 for wine supplied to an MP and agreed to see that they were duly paid. The latter draft should have been for andpound;150. The plaintiff . .
CitedLeeman v Stocks 1951
The plaintiff’s was the highest bid for premises at an auction. The auctioneer used a borrowed form for sale by private treaty, though some clauses were inappropriate. A solicitor present edited the document and put in the date for completion. The . .
CitedCaton v Caton HL 1867
A document began by referring to ‘the under mentioned parties’ and then referred to the parties in question by name in relation to various promises. Neither party signed the document and the question was whether the document constituted a sufficient . .
CitedLindsay v O’Loughnane QBD 18-Mar-2010
The claimant had purchased Euros through a foreign exchange dealer. The dealer company became insolvent, causing losses to the claimant, who sought to recover from the company’s managing director, the defendant, saying that he was aware of the . .
CitedMehta v J Pereira Fernandes SA ChD 7-Apr-2006
The parties were in dispute. The now respondent threatened winding up. The appellant had someone in his company send an email requesting an adjournment and apparently giving a personal guarantee to a certain amount. The application was adjourned, . .
CitedArmagas Ltd v Mundogas SA (‘The Ocean Frost’) HL 22-May-1985
Ostensible authority creates estoppel
Apparent authority as agent can arise where an employer by words or conduct has represented that his employee, who has purported to act on behalf of the employer, is authorised to do what he is purporting to do. Ostensible authority depends on a . .
CitedFirst Energy (UK) Ltd v Hungarian International Bank Ltd CA 16-Apr-1993
A manager, though he lacked actual authority to authorise and offer a particular loan facility to the plaintiff, still did so by sending him a letter of offer which was accepted.
Held: Albeit the manager lacked actual authority to make the . .
CitedThe Suwalki 1989
Generally speaking a chartering broker has no actual authority to charter a ship: ‘A broker, or even an exclusive broker, is not in the shipping trade regarded as having authority to commit his principals without reference back to them.’ . .

Cited by:
Appeal fromGolden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd and Another CA 9-Mar-2012
The court was asked ‘whether a contract of guarantee is enforceable where contained not in a single document signed by the guarantor but in a series of documents duly authenticated by the signature of the guarantor. It is common in commercial . .

Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 11 November 2021; Ref: scu.428241