is only upon attornment on presentation of a genuine warehouse receipt that any relationship is created between Access World and the endorsee. It also failed on the facts because no genuine warehouse receipt had ever been presented.

The Court also rejected an argument that there was a warranty in the form of a collateral contract, there being no evidence of any intention to create legal relations nor any contractual offer.

A further point of note is the Court’s consideration of Marex’s arguments on estoppel. Marex had argued that Access World’s confirmation of the authenticity of the PC4-5 warehouse receipts and Marex’s reliance upon such representations estopped (i.e. precluded) Access World from later denying the authenticity of the receipts, with the consequence that Access World was obliged to deliver up the metal described in the warehouse receipts to Marex upon the presentation of the counterfeit receipts.

Marex’s argument faced many difficulties, including the long-standing principle that ‘an estoppel does not found a cause of action’. Having found there was no contract between Marex and Access World, the court concluded that the estoppel on which Marex relied could not exist as otherwise estoppel would be used as a sword and not a shield. Even if there had been a contract, the estoppel could not have resulted in an obligation to deliver the metal, owned by third parties, as an estoppel is personal and does not establish title against the world.

Turning to the case in negligence, the Court found that Access World owed Marex, but not Natixis, a duty of care in authenticating the receipts and that it had not exercised reasonable skill and care in its authentication of the receipts presented to it for this purpose, which related to the PC4 to PC5 transactions only. However, the Court also found that Marex’s conduct in the transactions that it had entered into with CHH constituted contributory negligence which should lead to the recoverable damages being reduced by 25%, but rejected the argument that it was sufficient to break the chain of causation.

Nevertheless, the Court also held that, notwithstanding the gratuitous/non-contractual nature of the authentication exercise, Access World was entitled to rely on the limitation of liability contained in its standard terms and conditions. In this regard, Marex had argued that if (as the judge found) there was no binding contract between Access World and Marex there was no proper basis for holding Marex to be bound by Access World’s terms and conditions. Secondly, it argued that if those terms and conditions applied the limitation of liability provision did not meet the reasonableness requirement within the Singaporean equivalent to the UCTA 1977.

20 | ADMISI - The Ghost In The Machine | November/December 2019

Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32