Trans Trade RK SA v State Food and Grain Corporation of Ukraine

Neutral Citation Number: [2025] EWHC 1803 (Comm) IN THE HIGH COURT OF JUSTICE KING'S BENCH DIVISION BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES COMMERCIAL COURT Case No: CL-2024-000457, 000458, 000459 Royal Courts of Justice, Rolls Building Fetter Lane, London, EC4A 1NL Date: 17/07/2025 Before : MR JUSTICE ANDREW BAKER - - - - - - - - - - - - - - - - - - - - - Between : TRANS TRADE RK SA - and - STATE FOOD AND GRAIN CORPORATION OF UKRAINE Claimant Defendant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Michael Nolan KC (instructed by W Legal Ltd) for the Claimant Charles Debattista (instructed by Holman Fenwick Willan LLP) for the Defendant Hearing date: 1 July 2025 - - - - - - - - - - - - - - - - - - - - - Approved Judgment This judgment was handed down remotely at 9.30 am on 17 July 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives. ............................. MR JUSTICE ANDREW BAKER MR JUSTICE ANDREW BAKER Approved Judgment Mr Justice Andrew Baker : Introduction Trans Trade v State Food & Grain 1. 2. This judgment concerns three appeals under s.69 of the Arbitration Act 1996 between the same parties. Each appeal concerns a GAFTA Appeal Award dated 31 July 2024 against which Henshaw J gave leave to appeal on 11 February 2025. The appeal in Claim No. CL-2024-000457 is an appeal against Appeal Award No. 4673A; Claim Nos. CL-2024-000458 and 000459 concern Appeal Awards Nos. 4674A and 4675A, respectively. By each Award, the Board of Appeal inter alia upheld a claim by the defendant seller for the contract price of cargo shipped pursuant to a contract for the sale by the seller to the claimant buyer of Ukrainian Feed Corn, 2020 crop, f.o.b. Chernomorsk. The unpaid prices awarded by the Board were: (i) (ii) (iii) by Award No. 4673A, US$8,061,292.40, in respect of a contract dated 14 June 2021 which, as subsequently amended by the parties, provided for the sale of 60,000 m.t. +/- 10% in buyer’s option, delivery 15 June to 31 August 2021, together with compound interest at 4.5% per annum (quarterly rests) from 2 September 2021; by Award No. 4674A, US$3,650,000.00, in respect of a contract dated 12 May 2021 which, as subsequently amended by the parties, provided for the sale of 33,000 m.t. +/- 5% in buyer’s option, delivery 15 May to 10 July 2021, together with compound interest at 4.5% per annum (quarterly rests) from 2 September 2021; and by Award No. 4675A, US$11,049,500.00, in respect of a contract dated 2 June 2021 which, as subsequently amended by the parties, provided for the sale of 35,000 m.t. +/- 10% in buyer’s option, delivery 3 June to 15 July 2021, together with compound interest at 4.5% per annum (quarterly rests) from 2 September 2021. 3. There were also awards in favour of the seller on claims that are not the subject of appeal, so that the relief sought by the appeal in each case relates only to parts of the relevant Award. The additional awards were: (i) under Award No. 4673A, agreed compensation for delay in payment of US$41,696.34, dispatch of US$9,729.93 and US$769.00 in respect of shipments under the contract, and default damages of US$1,001,581.86 in respect of a balance of the contract quantity for which the buyer did not nominate a ship, in each case plus an award of compound interest on the principal sum awarded; (ii) under Award No. 4674A, agreed payment delay compensation of US$18,750.00, and dispatch of US$1,480.65 and US$2,114.84, in each case plus compound interest; (iii) under Award No. 4675A, agreed payment delay compensation of US$57,750.00, dispatch of US$6,341.93, and compound interest. MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain 4. Finally, the Board of Appeal awarded in each case that the buyer was to pay the costs, fees and expenses of the First Tier Arbitration and of the Appeal Arbitration, reimbursing the seller if necessary. The proceedings before the Board of Appeal were conducted on paper, without a hearing, and no award of legal costs was sought by or granted to either side. Facts and Issues 5. Each sale contract was subject generally to the terms of GAFTA Form 49 for the delivery of goods in Central and Eastern Europe in bulk or in bags on f.o.b. terms. 6. Cargo was shipped pursuant to the contracts as follows: (i) as regards Award No. 4673A, a total of 32,930.22 m.t., comprising: (a) 27,797.56 m.t. loaded onto the m.v. Islander S, completing on 19 July 2021, on which date the seller sent the buyer an invoice followed later by scanned copies of shipping documents, a process completed by 3 August 2021; (b) 5,132.66 m.t. loaded onto the m.v. AK Denisa, completing on 16 August 2021. (ii) as regards Award No. 4674A, a total of 32,673.82 m.t., comprising: (a) 20,173.82 m.t. loaded onto the m.v. Gozo; and (b) 12,500 m.t., part of a cargo of 51,000 m.t. loaded on board the m.v. Eider S with loading completed on 10 July 2021, scanned copies of all shipping documents as called for by the contract in respect of the 12,500 m.t. part cargo then being duly tendered by the seller to the buyer; 7. 8. (iii) as regards Award No. 4675A, 38,500 m.t., the balance of the 51,000 m.t. Eider S cargo, in respect of which a full set of scanned copies of shipping documents including the seller’s commercial invoice were sent to the buyer over 12-13 July 2021. The buyer paid the price invoiced by the seller for the AK Denisa and Gozo cargoes, but did not pay for the Islander S and Eider S cargoes. In each arbitration, it pleaded a defence of frustration which failed, but it also denied in any event that the seller was entitled to maintain a claim for the price not paid and that is the subject of the appeal. That denial came in the buyer’s reply submissions before the Board of Appeal. According to the Awards, and so far as material, the procedural sequence before the Board in each case was that: (i) in support of its appeal against a First Tier Award upholding the seller’s claim for the price, the buyer argued “that they were not responsible for the payment of the purchase price as the Contract had become frustrated, or, alternatively, that Sellers had failed to discharge the burden of mitigation”; MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain (ii) (iii) (iv) in response, the seller argued that the price had fallen due according to the terms of the contract and was wrongfully not paid, the contract was not frustrated, and mitigation was irrelevant because the seller was claiming the price, not damages; in reply, the buyer relied on the retention of title clause in the contract (set out in paragraph 11 below) and Caterpillar (NI) Ltd (formerly known as FG Wilson (Engineering) Ltd) v John Holt & Co (Liverpool) Ltd [2013] EWCA Civ 1232, [2014] 1 WLR 2365, for an argument that since “Sellers always kept the cargo documents, the property in the goods shipped has not passed to Buyers and Sellers’ action for the price must therefore fail”; the seller rejoined, denying that the retention of title clause defeated the claim to the price, on the ground that “Sellers’ action is based on s.49(2) of the Sale of Goods Act 1979 and the [amended payment clause in the contract] … . Buyers were obliged to pay 100% of the value of the goods by [the date stated in that clause] and Sellers were fully entitled to maintain their action. Lack of title transfer for the shipped goods does not have any relevance. Buyers’ reference to Caterpillar is irrelevant as this case involves completely different facts and terms in the underlying contract. Still, Caterpillar supports Sellers’ position by explaining s.49(2) of the Sale of Goods Act 1979”; (v) by a surrejoinder, the buyer reiterated reliance on Caterpillar, insisting that s.49 did not apply and that the seller therefore could not maintain a claim for the price. Implicitly, the buyer thus joined issue with the seller’s contention that the amended payment clause in the contract satisfied s.49(2). 9. 10. It is not apparent from the Awards that the argument as to whether s.49(2) was satisfied was developed before the Board of Appeal much, if at all, beyond the seller’s simple assertion that the amended payment clause fell within the sub-section (and that Caterpillar supported that view) and the buyer’s implicit assertion that it did not. It is apparent, however, that (a) the only claim put forward by the seller was a claim for the price and not a claim for damages (in contrast to the position relating to the quantity not shipped under the contract in Award No. 4673A, for which the seller pursued and established a claim for default damages), and (b) the only basis put forward by the seller for its claim for the price was s.49(2), its case being that the amended payment clause brought the claim within the subsection. The Awards also record that in each case the seller alleged before the Board of Appeal, but not so as to put forward any different or additional cause of action, that the goods in question were discharged without production of original bills of lading, at the buyer’s instance, acting dishonestly; and the buyer said in response that there was no evidence to support that claim. The Board of Appeal decided that the seller had not proved that allegation, and the Awards make no findings of fact concerning what happened to the goods for which the buyer did not pay. 11. The retention of title clause to which I referred above, Clause 4.4 of each contract, was in these terms: Title to the Goods shall remain vested in the Seller and shall not pass to the “4.4 Buyer until 100% of the value of the Goods has been paid and received by the Seller. Until title to the Goods passes: MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain 4.4.1 all or any part of the Goods; The Seller is entitled to retake, sell or otherwise deal with and/or dispose of 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; The Buyer shall store and/or mark the Goods in a manner reasonably 4.4.3 sufficient, so that the Goods can at any time be distinguished and separated from goods of third parties.” 12. The terms of the contracts concerning delivery, price and payment, as ultimately amended so as to be the terms applicable to the seller’s claims, were materially identical. For Award No. 4673A, they were as follows: “4. DELIVERY TERMS: 4.1 The Goods shall be delivered on FOB (free on board) INCOTERMS 2020 basis stowed/trimmed/fumigated/cleared basis, 1 (one) safe berth and 1 (one) safe anchorage if required of 1(one) safe port, Chernomorsk, Ukraine. … 5. PRICE OF THE GOODS, CONTRACT VALUE: 5.1 The price of the Goods is 290.00 US Dollar per 1 (one) metric ton, for delivery with FOB (Free on Board) delivery basis … 6. PAYMENT: 6.1 100% of the value of the part of the Goods delivered to fulfilment of the Contract … to the mv :ISLANDER S” according to Bills of Lading No. No 1-6 dd. 19.07.2021 in total amount 27797.56 mt shall be paid by the Buyer via bank transfer on CAD (cash against documents) basis, in full accordance with a commercial invoice from the Seller and by the 1st September 2021 (inclusively) against scan-copies of cargo documents mentioned in Clause 6.2 of the Contract … provided to Buyer’s email, but in any case before breaking bulk. Time of payment is of essence. 6.2 The Seller shall present to the Buyer following scan-copies of documents for payment: - Commercial invoice original; 3 original + 3 non-negotiable copies clean on board Bill of Lading, marked “TO - ORDER” and “FREIGHT PAYABLE AS PER CHARTERPARTY” and blank endorsed; - CERTIFICATE OF ORIGIN …; - PHYTOSANITARY CERTIFICATE …; MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain - FUMIGATION CERTIFICATE …; - WEIGHT, QUALITY and CONDITION CERTIFICATE …; - NON-RADIOACTIVITY CERTIFICATE …; - HOLDS CLEANLINNESS [sic.] CERTIFICATE …; - NON-GMO CERTIFICATE …; - CROP YEAR CERTIFICATE …; - VETERINARY CERTIFICATE if required, to be at buyer’s account.” (For Award No. 4674A the contract price was US$292 per m.t. and under Award No. 4675A it was U$287 per m.t.; the final date for payment was 1 September 2021 in each case.) 13. Clause 6.1, as quoted above, was the amended payment clause upon which the seller relied for its case that its unpaid price claims fell within s.49(2) of the 1979 Act. As reflected by its terms, it was agreed, so as to become the operative payment provision for the relevant goods, after shipment pursuant to Clause 4.1 and presentation of scanned copies of shipping documents under Clause 6.2. 14. By paragraphs 10.8 and 10.9 in each Award, then, the Board of Appeal gave the following brief reasons for concluding that the seller’s claim for the unpaid price succeeded: “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 quote s.49(2) of the Sale of Goods Act 1979: “[sub-section quoted].” As such, an action for the price can be advanced by the Sellers as Buyers have (a) not paid, as admitted, and (b) property has not passed.” 15. The buyer was granted leave to appeal on the following questions of law said to arise in each case out of the Award: (i) Is a seller of goods f.o.b. entitled to maintain an action for the price pursuant to section 49(2) of the Sale of Goods Act 1979 where: (a) the contract provides that the price is payable against documents; MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain (b) property in the goods has not passed; (c) the goods have been delivered on board a vessel but the price has not been paid; (d) the original cargo documents have not been provided to the buyer; or is the seller’s remedy one only in damages? (ii) What is meant by the term “a day certain” in section 49(2)? (iii) On the facts found by the Board of Appeal, should the seller’s claim for the price of the corn shipped on board the relevant vessel have succeeded? 16. The buyer’s case on appeal was that: (i) (ii) on the plain language of the statute, and in accordance with long-standing authority, the price under an f.o.b. contract requiring payment against shipping documents is not a price payable “irrespective of delivery”, within the meaning of s.49(2); a payment date that is not fixed by the contract in such a way that it can be determined independently of the action of either party or any third party is not a “day certain”, within the meaning of s.49(2); (iii) either way, there was no good claim for the price under s.49(2); and (iv) in each case the appeal should be allowed and the Award should be set aside as regards that claim, to be replaced by a dismissal of the claim. 17. 18. The seller did not engage with the appeal proceedings until after leave to appeal had been granted and the final hearing of the appeals had been fixed. On 19 May 2025, eight months out of time, the defendant acknowledged service. By an application notice dated 12 June 2025 in each appeal, the defendant sought an order permitting it to submit evidence and confirming that it would be able to participate at the appeal hearing. Those applications were dealt with on the papers by Foxton J. His orders dated 16 June 2025 did not grant permission for the defendant to submit evidence but did grant permission for it to participate at the hearing. The defendant filed for the hearing, for each appeal, a chronology and dramatis personae as well as counsel’s skeleton argument. The claimant objected that those documents included matters of fact not found in the Awards. I directed that I would not pay any attention to the documents, and I did not read them. I did so because they were not agreed documents and: (i) the facts had to be taken exclusively from the Awards, there being in this instance no dispute over whether the question of the entitlement of the seller to maintain a claim for the price was one which the Board of Appeal was asked to determine (cf CPR PD62, para 12.5), and (ii) those facts were not complex or extensive, so that MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain (iii) to the extent that the defendant’s extra documents stated or summarised facts found in the Awards, they were unnecessary, and if and to the extent that they included points of fact not found in the Awards, as the claimant said they did, they were inadmissible. 19. The defendant’s failure to engage with the proceedings at any earlier stage also meant that there was no respondent’s notice as would have been required by CPR PD62, para 12.6, if the seller had wished to oppose the application for leave to appeal. When it came to the argument of the appeal, the seller advanced three cases, namely that: (i) (ii) the buyer was complaining of an absence or insufficiency of reasons in the Awards to explain the result, which was “procedurally flawed”, the buyer’s proper remedy (if any) having been an application it did not make, to the Board of Appeal under s.57 of the 1996 Act or to the court under s.70(4)(b), to require the Board of Appeal to state (or state more fully) its reasons for upholding the seller’s claim for the price; in the alternative, the Board of Appeal did not err in law in upholding the seller’s claims under s.49(2) of the Sale of Goods Act 1979, because the contract price was “payable on a day certain irrespective of delivery” on a proper interpretation of the sub-section, for which the seller relied on and submitted that I should follow recent decisions of Martin Spencer J in Readie Construction Ltd v Geo Quarries Ltd [2021] EWHC 3030 (QB) and Paul Stanley KC (sitting as a judge of this court) in CE Energy DMCC v Bashar; CE Energy DMCC v Ultimate Oil & Gas DMCC [2025] EWHC 297 (Comm); (iii) in the further alternative, if the Board of Appeal erred in concluding that there were good claims to the prices under s.49(2), the facts they found, as set out in the Awards, justified an award of damages for non-payment of the price, to consider which the Awards should be remitted to the Board. A Procedural Objection 20. 21. 22. As well as replying to those cases on their respective merits, which in the present context includes their admissibility as arguments on a s.69 appeal, Mr Nolan KC said of the second alternative case that it was not open to the seller, because there had been no respondent’s notice to raise it. An objection that an argument is not available to a respondent on the final hearing of a s.69 appeal may be an objection that due to the nature of such an appeal, and recognising the primacy of the arbitral process, the argument is one that the court cannot or should not entertain. That is what I mean when referring to the admissibility of an argument on a s.69 appeal. An argument that is inadmissible in that sense cannot affect the outcome of the s.69 appeal for what is, in context, a substantive reason, concerning the proper ambit of intervention by the court under the 1996 Act. Thus for instance, several authorities hold that under s.69 it is no more open to a respondent than it is to an appellant to go behind or beyond the arbitrators’ findings of fact, at all events if, in the case of going beyond those findings, the respondent would be seeking findings it did not seek from the arbitrators: see, for example, The Mary Nour (No.2), CTI Group Inc v Transclear SA MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain 23. 24. 25. 26. 27. [2007] EWHC 2340 (Comm); Cottonex Anstalt v Patriot Shipping Mills Ltd [2014] EWHC 236 (Comm); MUR Shipping BV v RTI Ltd [2022] EWHC 467 (Comm) (on appeal, not touching this point, [2022] EWCA Civ 1406, [2024] UKSC 18). On the other hand, an objection to a respondent’s argument may be that it should not be allowed to rely on it for the procedural reason that the respondent failed to comply with an obligation relating to it that arose under the CPR or a Practice Direction (or an order giving directions in the particular case). That was the additional point taken against the seller’s second alternative case. The premise for the objection was that notice of an intention to pursue the second alternative case should have been given under CPR PD62 para 12.6(2). PD62 para 12.6 is in these terms (as it has been since October 2010, when the default rule became for leave to appeal applications to be dealt with on paper such that oral hearings for leave have become vanishingly rare): “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).” The seller’s second alternative case, as clarified by Mr Debattista in oral argument, did not contend that the Awards should be upheld for reasons other than those given by the Board of Appeal. Rather, it contended that if the appeals were well founded, meaning that the Board was wrong in law to uphold the seller’s claims under s.49(2), the relief granted under s.69(7) should be or should include remission to the Board for it to consider in each case whether to uphold instead a different claim. So if CPR PD62 para 12.6 applied here at all, I would say that sub-paragraph (2) did not require that second alternative case to be stated in the respondent’s notice. However, on its terms, CPR PD62 para 12.6 did not apply anyway. The seller did not oppose the leave to appeal application. On the plain language of the Practice Direction, it therefore came under no obligation to file a respondent’s notice. It might perhaps have been required to do so as a condition of granting it permission to participate, having acknowledged service so far out of time, but in fact unqualified permission was granted. Foxton et al., “Mustill & Boyd: Commercial and Investor State Arbitration”, 3rd Ed. (2024) at 14.167, cite MRI Trading AG v Erdenet Mining Corp LLP [2012] EWHC 1988 (Comm) at [39], for a proposition that, “If a party contends that an award should be upheld for reasons not set out in the award, [it] is required to file a respondent’s notice at the stage of the application for [leave] to appeal”. Eder J’s decision to allow the appeal in that case, and not remit to the arbitrators, was later upheld without reference to the procedural point: [2013] EWCA Civ 156. MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain 28. 29. 30. 31. 32. The procedural objection, taken as it was only against the seller’s second alternative case, was not the subject of fully researched argument. Procedural objections like it have been considered a number of times in the case law, not all of which counsel cited. My dismissal of the procedural objection does not affect the outcome of these appeals because I agree with Mr Nolan KC’s submission that the seller’s second alternative case was inadmissible anyway (see paragraphs 62 to 63 below). I therefore did not delay matters by inviting further submissions on the case law, but Appendix A to this judgment sets out a fuller explanation of my conclusion that there was no good procedural objection, lest a different view be taken as to its decisiveness if the matter goes further. The upshot is that, in my judgment: MRI Trading is not authority for the seemingly absolute proposition stated by Eder J; CPR PD62 para 12.6 should be applied in accordance with its terms; and there was no procedural breach by the seller beyond its failure to acknowledge service within time. After the order granting the seller permission to participate at the hearing, which contained no restriction on the arguments available to it in resisting the appeal, the seller was in the same position as if it had acknowledged service within time but had then chosen not to oppose the application for leave to appeal. The procedural rules do not require such a respondent to do anything more at the leave to appeal stage. If the court grants leave on the papers, then apart from complying with any directions given in the particular case, the respondent’s subsequent procedural obligations are only the usual ones applicable to preparation for and appearance at a hearing in this court, essentially cooperation as to hearing bundles and any other practicalities, and the timely filing and service of a skeleton argument. If CPR PD62 para 12.6 had required the seller’s second alternative case to have been raised by a respondent’s notice filed and served at the leave to appeal stage, so that permission was required to rely on it at the appeal hearing, I would not have granted permission. No respondent’s notice was in fact filed or served. If Mr Debattista’s skeleton arguments were treated as a potential substitute, they came over eight months out of time with no adequate explanation for the delay. The only explanation for the late emergence of the desire to argue the points taken by the seller was Mr Debattista’s assertion without evidence, referred to further below, that the seller had been hampered in some way by financial constraints. He did not even assert that the seller had been unable to participate at the leave to appeal stage. However, for the reasons given in paragraphs 25 to 26 above (and more fully in Appendix A), in my view no permission was required. For completeness, I should deal with what Mr Debattista said in his skeleton arguments, in anticipation of the procedural objection being raised. He said that the seller ought not to be precluded from putting forward the full range of its substantive arguments on the s.69 appeal, firstly, because the seller’s financial position had hindered it from participating properly at the leave to appeal stage and, secondly, because “there is no legal bar to a point being raised at the challenge stage [viz., at the final hearing of an appeal for which leave has been given] which might have been raised earlier at [the] leave stage”, for which Mr Debattista cited Sharp Corp Ltd v Viterra BV [2024] UKSC 14. 33. The first explanation is a factual one for which there was no evidence before the court. MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain 34. 35. 36. The second explanation is not supported by Sharp Corp v Viterra. In that case, Cockerill J dismissed an appeal against a GAFTA Appeal Award because, in her judgment, the appellant buyer had not shown that the Board of Appeal had erred in law. The Court of Appeal allowed an appeal and ordered remission to the Board of Appeal on the basis that, in its judgment, on the facts found the Board of Appeal should have concluded that the terms of the contracts in question had been varied from c&f to ex-warehouse, so the Board had erred in assessing damages by reference to a notional substitute c&f contract. On that point, the Supreme Court allowed an appeal by the seller, holding that whether and if so how the contracts in question had been varied was not a question the Board of Appeal had been asked to determine. The Court of Appeal had therefore allowed an appeal on a question of law upon which leave to appeal had not been, and could not have been, granted. A cross-appeal by the buyer was also allowed, such that the final result was still a remission to the Board of Appeal, but not on the basis of variation. None of that touches at all the question of what arguments are available to a respondent to a s.69 appeal, at the final hearing of the appeal, leave having been granted, either as a matter of substance (admissibility), or as a consequence of the procedural rules applicable in the appeal proceedings. Flawed Appeal (Wrong Remedy)? 37. 38. 39. I take next the seller’s first case (paragraph 19(i) above), by which these appeals were said to be “procedurally flawed”. The Awards state the Board of Appeal’s reasons concisely, but they are sufficient, and clear enough, for the court to be able properly to consider the appeals. It is not difficult to identify how the Board of Appeal directed themselves as to the meaning and effect of s.49(2) of the Sale of Goods Act 1979, or to consider whether as a result they misdirected themselves. By what they said at paragraphs 10.8 and 10.9 of each Award (quoted at paragraph 14 above), the Board directed themselves that it was sufficient, for a claim to the price to be maintained under s.49(2), that there had been an admitted failure to pay the price when it fell due under the contract, and property in the goods had not passed. That seems from the Awards to have been the explanation of s.49(2) put to the Board by the seller. The Awards record the seller’s case to have been that since the amended payment clause created a definite (final) date for payment, and the buyer did not pay, the seller had a good claim under s.49(2) and it did not matter that property had not passed (see paragraph 8(iv) above). The Board’s brief reasons are, in substance, a simple acceptance of that case. The seller’s first alternative case on appeal (paragraph 19(ii) above) effectively conceded that to have been erroneous, but defended the result under the Awards on the basis that the terms of the contracts as found by the Board provided for payment on a day certain irrespective of delivery within the meaning of s.49(2), properly interpreted, so that the claims for the price were sound notwithstanding the Board’s misdirection. That is the question arising on these appeals. It is a question of law and there is no difficulty over considering it on the basis of the Awards. 40. In places, particularly in writing, the buyer’s submissions criticising the Board of Appeal’s reasoning used the language of absence or inadequacy. However, the evident MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain sense of the criticism was that, so the buyer said, the Board’s reasoning disclosed, as a matter of substance, an absence of justification in law, or inadequate basis in law, for upholding the seller’s claim for the price, given the facts found in the Award. In other words, the buyer’s language was only a way of articulating what it said was the error of law disclosed by the Award. 41. There was no room here for any correction by or additional award from the Board of Appeal under s.57 of the 1996 Act, nor was there an absence or insufficiency of reasons in respect of which the buyer might have made an application under s.70(4) of the Act. There was in my view no merit in Mr Debattista’s contention, relying on s.70(2) of the Act, that the appeals were premature and ought not to have been brought, and I therefore turn to the real point arising for determination. Error of Law? 42. I summarised the parties’ respective cases at paragraphs 16(i)-(iii) and 19(ii) above. The argument took in a substantial body of case law, culminating in Readie Construction and CE Energy, supra, relied on by Mr Debattista as justifying the Awards. Mr Nolan KC submitted that those two recent cases do not decide anything to justify the Awards, alternatively that they are wrongly decided and should not be followed. His affirmative argument in support of the appeal was that the established and correct meaning of s.49(2) is clear such that, under each of the subject contracts, the price was neither payable on a ‘day certain’ nor payable ‘irrespective of delivery’. Day Certain 43. 44. The parties advanced detailed submissions about the meaning of ‘day certain’ in s.49(2). Those submissions extended to the question whether Shell-Mex, Ltd v Elton Cop Dyeing Co, Ltd (1928) 34 Com Cas 39 was wrongly decided by Wright J (as he was then). I agree with Mr Nolan KC that the ratio of Shell-Mex is that under s.49(2), a sale contract price was only payable on a ‘day certain’ if it was payable on a date specified in (or ascertainable from) the terms of the contract that did not depend on any future or contingent event, following The Merchant Shipping Co, Ltd v Armitage (1873- 74) LR 9 QB 99, at 114 (although that case concerned a statutory provision for awarding interest that one might have thought not obviously pertinent). That interpretation was also given, obiter, by Roche J (as he was then) in Muller Maclean & Co v Leslie & Anderson (1921) 9 Ll. L. Rep. 328, and by Lord Strachan in the Court of Session (Outer House) in Henderson and Keay Ltd v A. M. Carmichael Ltd 1956 S. L. T. (Notes) 58, and it finds some support in the Australian cases. On the other hand, there is room for the view that it narrowed s.49(2) for no good reason, and may have served to obscure the essence of the sub-section, the requirement for payability ‘irrespective of delivery’; and there are obiter dicta doubting the Shell-Mex interpretation, for instance taking the view that a provision for payment a specified number of days after the date of an invoice would suffice, though the invoice date is a future contingency in the gift of the seller. 45. In the present case, there is a short answer to the appeals on this point. Although it came slightly buried in a final, fall-back argument on payability ‘irrespective of delivery’, Mr Debattista submitted that the relevant payment provision here was always the amended payment clause which fixed an identified, specific date by which the buyer had to pay MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain (see paragraphs 12 and 13 above). There is in my view no answer to the claim that that made the unpaid prices claimed by the seller payable on a ‘day certain’, even if Shell- Mex is still to be followed. 46. The point in this case, ultimately, is that the Board of Appeal treated that as sufficient by itself to satisfy s.49(2), whereas the sub-section requires in addition payability ‘irrespective of delivery’. The question is whether on the findings of fact in the Awards, and the proper interpretation of the sub-section, the prices claimed were so payable. 47. Before I turn to that question, I add on ‘day certain’ that: (i) (ii) I would have agreed with a submission by Mr Debattista that the additional element in the amended payment clause that the buyer was to pay “in any case before breaking bulk” does not affect matters. That imposed on the buyer, in substance, an obligation to ensure that the bulk was not broken if it had not yet paid. If the buyer wished the bulk to be broken before the payment date set by the amended payment clause, it would have to choose to pay early or be in breach of contract if it went ahead. That does not generate relevant uncertainty as to the payment date set by the contract. I would have disagreed with a further submission by Mr Debattista that the additional provision for time of payment to be of the essence affects anything. That displaced the default rule that in a contract for the sale of goods stipulations as to time of payment are not of the essence (s.10(1) of the Act), which affects the rights and liabilities arising upon breach but not the character of the payment obligation as one requiring payment on, or not on, a ‘day certain’. For example, if as the buyer said but I have not needed to decide, ‘7 days after invoice date’ is not a ‘day certain’ under s.49(2) because the invoice date will depend on future events, that relevant uncertainty is not removed by the payment deadline being of the essence. Irrespective of Delivery FOB Contracts and Section 49 48. To understand the case law and the arguments on these appeals, it is necessary to rehearse some basic points about f.o.b. contracts and to explain why the only claim for the price that has to be considered is the claim, if any, under s.49(2) of the Sale of Goods Act 1979. Doing that will dispose of the seller’s second alternative case (paragraph 19(iii) above). 49. Subject as always to the parties’ freedom to provide otherwise by the terms agreed in any given case, under an f.o.b. contract: (i) the seller is obliged to ship or procure shipment of goods conforming to the contract on board the buyer’s nominated tonnage, as long as it presents itself ready for loading thanks to effective shipping instructions given by the buyer; and (ii) by operation of Rule 5 under s.18 of the Sale of Goods Act, property passes on such shipment if the seller does not reserve the right of disposal, and by MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain operation of s.32 of the Act, such shipment “is prima facie deemed to be a delivery of the goods to the buyer”. 50. However, if payment is to be “cash against documents” including bills of lading by the terms and holding of which the seller reserves the right of disposal of the goods: (i) (ii) (iii) s.18 Rule 5 is displaced, and the contract is for property to pass only upon payment against documents, even in the absence of any express reservation of title clause; shipment is a necessary precursor to delivery, but there is no delivery to the buyer on shipment because the seller will have retained constructive possession of the goods in the hands of the carrier, and neither possession nor a right to possession is passed to the buyer on shipment; the seller must present the documents required, and failure to do so will be a failure to deliver in accordance with the contract (Benjamin’s Sale of Goods, 12th Ed. (2024) at 20-048, referring to Uzinterimpex JSC v Standard Bank plc [2008] EWCA Civ 819, per Moore-Bick LJ at [22]); (iv) payment and delivery, therefore, are concurrent conditions, as is the default rule under s.28 of the Act. 51. 52. That is all consistent with the further provisions of the Act that (a) the unpaid seller of goods the property in which has not passed to the buyer has a right to withhold delivery similar to and co-extensive with the unpaid seller’s right of lien where property has passed (s.39(2) of the Act; and then for the unpaid seller’s right of lien and its effects, see ss.39(1)(a), 41 to 43, and 47 to 48 of the Act), and (b) delivery of goods to a carrier for transmission to the buyer only terminates the unpaid seller’s lien if it is a delivery to the carrier “without reserving the right of disposal of the goods” (s.43(1)(a)). FOB INCOTERMS 2020, which were incorporated generally in the contracts in this case, provide at “A2 DELIVERY” that, “The seller must deliver the goods either by placing them on board the vessel nominated by the buyer … at the named port of shipment or by procuring the goods so delivered”. That does not create an absolute rule capable of displacing the effects set out above of an f.o.b. contract that provides for payment against shipping documents with a reservation of the right of disposal through the bills of lading. 53. That understanding of f.o.b. contracts underlies what has been the conventional view of s.49(2), summarised in Sassoon on CIF and FOB Contracts, 7th Ed. (2020), at 14- 021: “… [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”. The point was raised and decided in Stein, Forbes & Co v County Tailoring Co,89 where payment was to be made “cash against documents on arrival of the steamer”, and the buyers who rejected the documents were sued for the price. Atkin J held that in such a contract the price was MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain payable expressly against delivery, i.e. of the documents, and not on a day certain irrespective of delivery. … Stein, Forbes & Co v County Tailoring Co (1916) 86 L. J. K. B. 448, and per Roche J, Muller, Maclean & Co v Leslie & Anderson (1921) 8 Ll. L. Rep. 328, dismissing the contention that the rule laid down in Stein’s case was based on the terms of the contract there considered, i.e. that payment was to be made on arrival.” Benjamin is to materially like effect, at 20-232, describing it as “the prevailing view”; as is Chitty on Contracts, 34th Ed. (2021), at 46-362, 46-366 at n.1624. 54. 55. It was not suggested by either party in the present case, either to the Board of Appeal or on these appeals, that it should make any difference that the shipping documents were to be, and were, delivered by emailing scanned copies. Part VI of the 1979 Act concerns “ACTIONS FOR BREACH OF THE CONTRACT”, ss.49-50 dealing with “Seller’s remedies”, ss.51-53 with “Buyer’s remedies”, and s.54 with “Interest, etc.” By s.49, concerning specifically the seller’s action for the price, the Act provides as follows: “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.” 56. The 1979 Act was enacted “to consolidate the law relating to the sale of goods”. It did so as regards the seller’s action for the price by reproducing s.49 of the Sale of Goods Act 1893, which was “An Act for codifying the Law relating to the Sale of Goods”. The parties supplemented the oral argument with short written submissions on the principles of statutory interpretation, in which both sides referred to Bennion, Bailey and Norbury on Statutory Interpretation, 8th Ed. (2020), Sections 24.6 and 24.7. On those submissions, it was common ground that: (i) the Barras principle, that legislation re-enacting in identical terms a statutory provision that has been interpreted by the courts may be presumed to have adopted that interpretation (Barras v Aberdeen Steam Trawling and Fishing Co Ltd [1933] AC 402), does not apply to consolidating statutes: MacDonald et al v Carnbroe Estates Ltd [2019] UKSC 57, at [56]; (ii) judicial interpretation of the predecessor to a provision enacted in a consolidating statute may be relevant if there is real doubt as to its meaning. Bennion, Section 24.7(2), rests that principle on the logic that: MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain “If … real doubt arises as to the legal meaning of a consolidation Act: the presumption that consolidation is not intended to change the law (a) comes into play; and in applying that presumption, recourse may be had to earlier (b) legislation and case law.” 57. As regards that second principle, Mr Debattista submitted that care must be taken only to have resort to pre-existing case law where there is real doubt as to meaning that cannot otherwise be resolved: Farrell v Alexander [1977] AC 59, per Lord Wilberforce at 72E-73C, per Lord Simon of Glaisdale at 84G-H, per Lord Edmund-Davies at 96H- 97B. Nonetheless, accepting the existence of the principle as he did, Mr Debattista did not submit that it was impermissible to refer on s.49 to the case law pre-dating the 1979 Act. Indeed, as is common in sale of goods cases, the argument at the hearing on both sides simply treated the authorities on s.49 of the 1893 Act as authorities on s.49 of the 1979 Act, which is also the approach adopted in the sale of goods textbooks. In his supplementary note, Mr Debattista summarised his argument for the seller as having been “that none of the cases decided between 1893 and 1979 were clear or expansive enough definitively to provide a single and binding definition of the [statutory] phrase [viz., “on a day certain irrespective of delivery”]”. 58. For his part, Mr Nolan KC relied also on the statement of principle by Lord Carnwath, JSC, obiter, in R(N) v Lewisham LBC; R(H) v Newham LBC [2014] UKSC 62, [2015] AC 1259, at [95] (with which, in the principal judgment in that case, Lord Hodge, JSC, agreed, at [53]), that: 59. 60. “… 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.” As Bennion notes, it is unclear whether there is any such principle: ibid, Section 24.20(2), and, in the Comment, “Settled practice or understanding” on p.774ff, referring inter alia to the dissenting judgments in R(N); R(H), supra, per Lord Neuberger, PSC, at [142]-[147] and Baroness Hale, DPSC, at [167]-[168]. It is not necessary for me in this judgment to resolve that uncertainty. The decision in Caterpillar is Court of Appeal authority for the proposition that a claim for the price under a contract for the sale of goods may only be maintained if it falls within s.49 of the 1979 Act. I do not accept Mr Debattista’s submission that that is not part of the ratio of the Court of Appeal’s decision. As interpreted by the Court of Appeal in Caterpillar, the combined effect of s.49(1)-(2), read together, might be expressed thus: where under a contract of sale the buyer wrongfully neglects or refuses to pay the price, the seller may maintain an action for that price only if (1) the property in the goods has passed to the buyer, or (2) the price was payable on a day certain irrespective of delivery (even if no goods have been appropriated to the contract). Therefore, since the seller accepted before the Board of Appeal that property had not passed, I would be MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain 61. bound to hold that in law the seller’s price claims before the Board were good claims only if they fell within s.49(2) of the 1979 Act. In The Res Cogitans, PST Energy 7 Shipping LLC et al. v OW Bunker Malta Ltd et al. [2016] UKSC 23, [2016] AC 1034, a contract for the supply of bunkers was held not to be a contract for the sale of goods, so that an action for the price as a debt due under the contract could be maintained without reference to s.49. Lord Mance, JSC, with whom the other Justices of the Supreme Court agreed, said at [58], obiter, that if the contract had been a contract for the sale of goods, he would have held, overruling Caterpillar, “that section 49 is not a complete code of situations in which the price may be recoverable under a contract of sale, and that, in the present case, the price was recoverable by virtue of its express terms in the event which has occurred, namely the complete consumption of the bunkers supplied.” That does not mean that Caterpillar has been overruled. I consider that it remains binding on this court, therefore, and I do not agree with the submission in Benjamin, at 16-003, that “a court”, which I think is intended to mean any court, “should now reject an argument that s.49 comprises a comprehensive code as to the circumstances in which the price is recoverable”. 62. Mr Debattista for the seller did not in fact urge that course upon the court (aside from the suggestion I do not accept that the point was not ratio in Caterpillar). Rather, he relied on Benjamin, 16-028 to 16-029, clarifying in his oral argument that the seller’s second alternative case was limited to claiming the remedy outside s.49 suggested at 16-029, namely damages for failure to pay the price. Caterpillar does not decide against the possible existence of such a claim, since no such claim was advanced in that case (see per Longmore LJ at [55]). 63. However, equally no such claim of that kind was advanced here, before the Board of Appeal. In my judgment, the absence of any such damages claim in the arbitration is fatal to the seller’s second alternative case. Applying the cases referred to in paragraph 22 above, it is not open to the seller in response to these appeals, leave having been granted, to seek through s.69(7) of the Arbitration Act 1996 to introduce a different claim not made in the arbitration, for which it would need findings of fact it did not seek from the Board of Appeal. Case Law on s.49(2) 64. Apart from Readie Construction and CE Energy, upon which Mr Debattista principally relied, the cases cited by the parties on the meaning and effect of s.49(2) of the Sale of Goods Act 1893 or 1979 were, in chronological order of decision: (i) Polenghi Bros v Dried Milk Co, Ltd (1904) 10 Com Cas 42. (ii) Workman Clark & Co, Ltd v Lloyd Brazileño [1908] 1 KB 968. (iii) Stein Forbes & Co v County Tailoring Co (1916) 115 L. T. 215. (iv) Martin et al. v Hogan (1917) 24 CLR 234. (v) Colley v Overseas Exporters [1921] 3 KB 302. (vi) Muller Maclean & Co v Leslie & Anderson (1921) 8 Ll. L. Rep. 328. MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain (vii) A. A. Nortier & Co v Wm. Maclean, Sons & Co (1921) 9 Ll. L. Rep. 192. (viii) Shell-Mex, Ltd v Elton Cop Dyeing Co, Ltd (1928) 34 Com Cas 39. (ix) Henderson and Keay Ltd v A. M. Carmichael Ltd 1956 S. L. T. (Notes) 58. (x) White and Carter (Councils) Ltd v McGregor [1962] AC 413. (xi) Tradax v Goldschmidt [1977] 2 Lloyd’s Rep 604. (xii) Otis Vehicle Rentals Ltd (formerly Brandrick Hire (Birmingham) Ltd) v Cicely Commercials Ltd [2002] EWCA Civ 1064. (xiii) Caterpillar, supra. (xiv) The Res Cogitans, supra (in the Supreme Court) and per Males J at first instance, [2015] EWHC 2022 (Comm). (xv) Garmin Australasia Pty Ltd v B & K Holdings (Qld) Pty Ltd [2018] QCA 353. (xvi) Mitsubishi Corp RTM International Pte Ltd v Kyen Resources Pte Ltd [2019] SGHCR 6. 65. 66. To do justice to the parties’ arguments, and in particular to Mr Nolan KC’s submission that, if required, I should refuse to follow Readie Construction and CE Energy, the prior cases need to be considered quite fully. I have done so in Appendix B below rather than lengthen the main body of this judgment. My conclusions are summarised in paragraphs 66 to 68 below. Firstly, I agree with Mr Nolan KC’s submission (paragraph 16(i) above), that on the statutory language, and as a matter of long-standing authority, the price under an f.o.b. contract requiring payment against shipping documents is not a price payable ‘irrespective of delivery’, within the meaning of s.49(2) of the Sale of Goods Act. (i) (ii) As regards language, that is the ordinary sense of the statutory requirement, which connotes independence of the payment obligation from performance of the delivery obligation. That sense is reinforced when regard is had to the known origins of the sub-section. As regards authority, it was decided by Stein Forbes and Muller Maclean, and not doubted in the century following, that (a) for a price to be payable ‘irrespective of delivery’ within the meaning of s.49(2), the contract must provide for payment not to be conditional upon the prior or simultaneous performance of the seller’s delivery obligation, and (b) a c.i.f. or f.o.b. contract providing that the price is payable against shipping documents by which the seller reserves the right to dispose of the goods as shipped is not such a contract. That understanding of s.49(2) was taken to be correct by the Court of Appeal in Caterpillar, supra, and has been considered established and uncontroversial. (iii) In particular, therefore, I reject Mr Debattista’s submission about the effect of the prior case law, quoted in paragraph 57 above. MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain 67. Secondly, one consequence of that interpretation of s.49(2) is that where the obligation to pay the price is conditional upon prior or simultaneous delivery, and delivery has in fact occurred, but the contract provides for property in the goods not to pass until payment, the remedy of an action for the price is not available to the seller under the Sale of Goods Act: s.49(1) will not apply because property has not passed; s.49(2) will not apply because the contract did not provide for the price to be payable irrespective of delivery. A clear example of that in the case law is Tradax v Goldschmidt. The seller’s only remedy under the Act, if the buyer wrongfully fails to pay in such a case, even though the goods have been delivered, is a claim for damages, but that is not an unjust result precisely because the goods remain the seller’s goods. I am unclear whether what Lord Mance, JSC, said in The Res Cogitans, obiter, at [50], fits entirely with this orthodox understanding, but neither do I think it gives any real support for the seller’s argument on the meaning of s.49(2). 68. Thirdly, if s.49(2) applies, nonetheless there can be no judgment or final award of arbitration for the price of goods not delivered under the contract unless at the date of judgment or award the seller remains willing and able to deliver (Benjamin, 16-001 at n.9). The buyer in this case did not raise any such defence in the arbitration, so it would not have been open to it to appeal against the Awards by reference to it. 69. Subject, then, to Readie Construction and CE Energy, I would follow Stein Forbes and Muller Maclean in holding that in English law: (i) (ii) under a contract for the sale of goods a price is payable ‘irrespective of delivery’ within s.49(2) of the Sale of Goods Act 1979 only where the performance by the seller of its obligation to deliver the goods is not a condition precedent to or concurrent condition of the buyer’s obligation to pay the price; and therefore, under an f.o.b. contract providing for payment by ‘cash against documents’ where the documents include bills of lading by the terms and holding of which the seller reserves a right of disposal, the price is not payable ‘irrespective of delivery’, so that, as Sassoon puts it (paragraph 53 above), s.49(2) does not avail the seller. 70. 71. In that regard, I would consider Stein Forbes and Muller Maclean to be correctly decided, and certainly I would see no reason to consider them bad law or not to follow them. On that view of the law, with respect, the Board of Appeal misdirected themselves as to the correct interpretation of s.49(2), and on their findings of fact the seller’s price claim in each arbitration was bad in law and should have failed. The Seller’s Arguments 72. For the seller, Mr Debattista put forward several rival interpretations of s.49(2). The first formulation in his skeleton argument was that the true question under s.49(2) was “what the contract said about payment and delivery: did it provide for payment of the price independently of what it said about delivery? The central issue is what the contract said about payment and delivery rather than what happened on the ground in terms of delivery: did the contract make the Buyer’s obligation to pay the price dependent on what it said about delivery?” MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain 73. 74. 75. 76. I did not find that easily comprehensible, and Mr Debattista’s oral argument did not leave me clear as to what he meant by the notion of a contract that makes the buyer’s obligation to pay the price dependent on or independent of “what it said about delivery”. It was not in dispute, since it was also Mr Nolan KC’s submission, that s.49(2) calls for an examination of the (meaning and effect of) the terms of the contract, so that the question raised by the sub-section is not whether delivery had or had not occurred in fact. It was therefore likewise not in dispute, in principle, that where property has not passed (so that s.49(1) does not apply), depending on the facts of any given case s.49(2) might justify or not, as the case may be, a seller’s claim for the price, whether the goods had been delivered but not sold (as in Tradax v Goldschmidt) or had been neither delivered nor sold (as in most of the prior authorities). (If they have not been delivered, then in principle the point identified in paragraph 68 above might arise, but that does not concern the meaning of ‘irrespective of delivery’ and does not arise in this case since it was not raised in the arbitrations.) In a subsequent paragraph of his skeleton argument, Mr Debattista submitted that the price here was payable ‘irrespective of delivery’ within s.49(2) because “there is nothing at all in the payment clause … which in any way makes the Buyer’s obligation to pay dependent on the point of delivery agreed in the contract”. This followed a submission that delivery in the present case occurred by and upon shipment, so the argument seemed to be that the obligation to pay did not depend on shipment. But that was a bad argument. Payment was against presentation of documents that required there to have been a shipment. That does not undermine the agreed position that what matters is the meaning and effect of the contract terms. The point is not that as a matter of fact, shipment took place prior to the presentation of the documents that created the obligation to pay the price. It is that the contract provided, as the condition for the payment of the price, the presentation of documents that required shipment to have occurred (i.e. delivery, according to Mr Debattista’s argument). In short, the obligation to pay the price was conditional upon the prior performance of the obligation to deliver the goods, on the seller’s own case as to the content of that delivery obligation. That second argument by Mr Debattista fails in any event because of paragraph 50 above, which in turn is why Stein Forbes and Muller Maclean were decided as they were. The contract provided for the price to be payable ‘cash against documents’ and, on a true analysis, the documentary delivery that would oblige the buyer to pay the price was (the completion of) the seller’s delivery obligation in respect of the goods. The specified latest date for payment in the amended payment clause did not remove that conditionality of the payment obligation. It remained an obligation to pay (only) ‘cash against documents’. In oral argument in the light of Readie Construction, and as a final formulation of the seller’s position, Mr Debattista submitted instead that ‘irrespective of delivery’ meant “other than the contractual date for delivery”. For (as I would now capture the argument) he submitted that on a true reading of s.49(2) as a whole, “a day certain irrespective of delivery” means a definite date, prior to action brought, other than the contractual date for delivery. I consider there is no support for that in the language of the sub-section or the authorities reviewed in Appendix B to this judgment, aside perhaps from the unpersuasive view expressed in Mitsubishi Corp v Kyen Resources. 77. Finally, before turning to Readie Construction and CE Energy, Mr Debattista advanced an alternative argument that on the buyer’s construction of s.49(2), the sub-section MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain applied because the amended payment clause was only agreed after shipment and the sending by email of scanned copies of the shipping documents. He submitted (and I have agreed) that the amended payment clause specified a fixed date by which payment had to be made, a ‘day certain’ even on the buyer’s case. He submitted, then, that since “delivery had already occurred when the “day certain” was agreed …, … consequently that “day certain” was clearly agreed “irrespective of delivery”.” 78. In my view, that misunderstands and therefore misapplies the buyer’s orthodox reading of s.49(2). The price was still a price payable in respect of, and on condition of, the performance by the seller of its obligation to deliver, ‘cash against documents’. If the condition was satisfied, in fact, when the price clause was agreed, that does not affect the conditional nature of the price obligation created. If the buyer is correct, as I would say it is unless Readie Construction or CE Energy should lead me to a different view, that s.49(2) is defeated by such conditionality of the obligation, then it was defeated in this case. Readie Construction & CE Energy 79. For the reasons set out below, I have concluded that: (i) the ratio of Readie Construction is that (a) the contract price in that case was payable ‘irrespective of delivery’ within the meaning of s.49(2) of the Act, on the ground that that required the payment date not to be the contractual delivery date, not that the obligation to pay be not conditional upon delivery, and (b) the payment clause in the contract precluded the defence of abatement asserted by the defendant; (ii) as regards (a), Readie Construction is wrongly decided and should not be followed; (iii) Readie Construction does not decide anything about the meaning of ‘day certain’ in s.49(2), since that point was conceded; (iv) the ratio of CE Energy, so far as concerns one of the claims on which summary judgment was granted under a guarantee, is (or at any rate includes) that (a) it had to be shown that an action for the price in question could have been maintained under s.49(2) against the primary obligor, and (b) such an action could have been maintained because that price was payable on a ‘day certain’ within the meaning of s.49(2), as to which Shell-Mex should no longer be followed; (v) CE Energy is wrong to treat Readie Construction as an authority on ‘day certain’, but I do not need to decide anything about that part of s.49(2) or, therefore, about the decision in CE Energy not to follow Shell-Mex; (vi) CE Energy does not decide anything about the meaning of ‘irrespective of delivery’ in s.49(2), and I respectfully take a different view of Readie Construction to the view taken, obiter, in CE Energy, which was that the difficulties with Readie Construction are not such as should lead to a refusal to follow it. MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain 80. 81. 82. 83. In Readie Construction, the claimant buyer contracted to buy from the defendant seller a quantity of GSB Type 1 aggregate at £19.50 per tonne, for delivery to a construction site at Marston Vale, Wootton, Beds. There was a retention of title clause. 31,000 tonnes of GSB Type 1 were delivered, invoiced and paid for. 9,576 tonnes were delivered, invoiced and not paid for, because (so the defendant alleged) after heavy rainfall at the site over the weekend of 13-14 October 2018, “the aggregate” had liquified and turned into slurry and the defendant decided to suspend payments (per Martin Spencer J at [4]). By then, 34,000 tonnes of the GSB Type 1 delivered by the seller had been laid at the site, creating a sub-base that was 87% complete (ibid). The judgment does not say whether “the aggregate” that had become slurry was (said to be) all of it (40,576 tonnes), the quantity not paid for (9,576 tonnes), the quantity not yet laid (6,576 tonnes), or some other portion. The payment clause required payment “in full without any deduction or withholding whatsoever on any account by the end of the calendar month following the month in which the relevant invoice was dated” (Clause 4.1, quoted by Martin Spencer J at [5]). The buyer conceded that that made the price payable on a ‘day certain’ within s.49(2) (per Martin Spencer J at [21]). In the Central London County Court, HHJ Johns QC granted summary judgment to the seller for the unpaid price, and the buyer appealed, claiming an entitlement to abate the price that was not precluded (so it argued) by the terms of the payment clause, alternatively that s.49(2) was not satisfied by that clause. Martin Spencer J dismissed the appeal. As regards s.49(2), the appeal was dismissed on the ground that s.49(2) did not concern the conditionality or unconditionality of the obligation to pay the price upon performance by the seller of its obligation to deliver, but concerned instead (per Martin Spencer J at [48]) “the time of delivery and the time of payment. Once these are divorced from each other under the terms of the contract, the contract becomes one whereby the price is payable on a day certain irrespective of delivery” (original emphasis). Hence Mr Debattista’s submission that the question, following Readie Construction, is whether the contract provides for payment to be made on a ‘day certain’ that is not the contractual delivery date. 84. In taking that view of s.49(2), Martin Spencer J, at [48], adopted “the judgment and reasoning of Judge Yang [sic., Asst. Registrar Tan] in Mitsubishi”, adding that in his view: (i) (ii) the default rule of concurrent conditions (payment and delivery) under s.28 of the Act supported the construction he was applying (ibid); and (at [49]) it was further supported by what Longmore LJ said, obiter, in Caterpillar, supra, at [44] (as to which Martin Spencer J agreed with HHJ Johns QC that Longmore LJ’s dictum was referred to apparently without criticism by Lord Mance, obiter, in The Res Cogitans, supra, at [50]), and by what Males J had said, obiter, at first instance in The Res Cogitans, supra, at [73]. 85. The seller’s argument in Readie Construction was that payment was linked to invoicing rather than delivery and even if invoices in fact followed deliveries, payment was not MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain concurrent with delivery as envisaged by s.28 of the Act – delivery prior to payment had the effect of breaking the linkage between the two (per Martin Spencer J at [33]). 86. I find myself persuaded by Mr Nolan KC’s argument that Readie Construction is wrongly decided and should not be followed. If it was a considered decision after full argument not to follow the long-standing first instance decisions with which it is inconsistent, I may have needed to hesitate longer over whether I ought nonetheless to follow it despite my disagreement with it. However, and it is one of the reasons why I respectfully consider that Readie Construction is not a satisfactory decision, Martin Spencer J did not identify that he was not following long-standing prior authority and was “depart[ing] from conventional understandings of s.49(2) as being based on independent promises irrespective of delivery …” (Benjamin, at 16-027, n.197). 87. For the reasons given in my discussion of Mitsubishi, Caterpillar, and The Res Cogitans in Appendix B, in my respectful view: 88. 89. (i) (ii) Mitsubishi is not even weak persuasive authority on the meaning of s.49(2) of the Act; the obiter dicta of Longmore LJ in Caterpillar and Males J in The Res Cogitans provide no reason to doubt or depart from what has been the accepted understanding of ‘irrespective of delivery’ in s.49(2), which (in my view) simply gives effect to the ordinary meaning of the statutory language; and (iii) the obiter dictum of Lord Mance in The Res Cogitans at [50] is unclear, but not a basis for departing from Stein Forbes and Muller Maclean. As regards Lord Mance having referred without criticism to Longmore LJ’s dictum (per Martin Spencer J within [49], quoting HHJ Johns QC at [39]), that concerned ‘day certain’, which was not in issue in Readie Construction, and not ‘irrespective of delivery’, which was. At [48], Martin Spencer J noted that on the interpretation advocated by counsel for the buyer, “the fact I have held that delivery, or purported delivery, is a pre-condition to the obligation to pay the price would mean that section 49(2) is not fulfilled”, and continued: “However, in my judgment that interpretation is not correct”, citing Mitsubishi. If by that Martin Spencer J was drawing a distinction between cases where delivery and payment are concurrent conditions (to which s.49(2) would not apply) and cases where delivery is a condition precedent to payment (to which s.49(2) would apply, subject to ‘day certain’), that would, I think, still be inconsistent with the ratio of the prior decisions. There is also an internal inconsistency there, I think, in that Martin Spencer J’s conclusion that delivery was a pre-condition for payment was in these terms, at [39]: “The starting point is, as [counsel for the buyer] submitted, that this contract is one which provides that delivery of the goods is a “condition precedent” to payment of the price. … . Thus, this is not one of those contracts such as in Totsa [], where the obligation to pay arose on delivery of documents, irrespective of delivery of the goods” (my emphasis). MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain 90. 91. 92. 93. 94. In Totsa, viz. Totsa Total Oil Trading SA v Bharat Petroleum Corp [2005] EWHC 1641 (Comm), s.49 of the Act was not raised or considered. The contract was an f.o.b. contract, payment against invoice and usual shipping documents not later than 30 days after the bill of lading date. Martin Spencer J does not identify a source for the view that the price in Totsa was payable irrespective of delivery. If it was simply the contrast he drew between a delivery of usual shipping documents and a delivery of goods, in my view that misunderstood the ordinary incidents of international sales. As it happens, therefore, I think it was incorrect to say that the contract in Totsa provided for the price to be payable ‘irrespective of delivery’; but that does not remove the internal inconsistency in Readie Construction between holding at [39] that the contract was not a contract providing for payment irrespective of delivery, and deciding the case at [46]- [49] on the basis that it was such a contract. At [22]-[24], Martin Spencer J recorded that the buyer relied on Stein Forbes, Muller Maclean, the obiter dictum of Lord Keith of Avonholm in White & Carter (Councils) Ltd v McGregor, and Otis Vehicle Rentals, and submitted that they decided between them that “a contract cannot be “irrespective of delivery” if delivery and payment are interdependent …”. The judge did not say anything different as to what those cases decided, and in my view the buyer’s submission was correct, save that, strictly, the point was decided only in Stein Forbes and Muller Maclean, as I explain in Appendix B. From his summary of the seller’s argument at [35]-[36] and his adoption of HHJ Johns QC’s reasoning at [49], I respectfully wonder if Martin Spencer J may have been led astray by dicta that, properly understood, concern ‘day certain’, which had been conceded before him, and do not touch ‘irrespective of delivery’, which was in issue. In CE Energy, Paul Stanley KC granted summary judgment on claims under a guarantee, one of which, he decided, required it to be shown that there had been a debt due from the primary obligor, which required in turn that the claimant could have maintained an action for the price against that party under a contract for the sale of goods, namely (in the event) 14,941.015 m.t. of industrial gasoil on the m.t. Kmarin Restraint, for delivery ex-ship offshore Lomé, Togo. By the contract, payment was to be made “latest 45 calendar days from NOR Lagos (NOR=1) to seller’s nominated bank account …”, and there was a retention of title clause. At [27], the learned deputy judge said that initially it was common ground that the NOR triggering the payment obligation was “the first notice of readiness given by a daughter vessel that was to tranship the cargo after its arrival at Lome”, but that it became common ground finally that it was “the first notice of readiness given on the arrival of the daughter vessel at Lagos to unload”. If I have understood the facts of CE Energy correctly, the daughter vessels to which the deputy judge was referring were those that would receive delivery ex-ship Lomé from Kmarin Restraint, and their envisaged subsequent voyage to Lagos for discharge would come after such receipt. The learned deputy judge said (ibid) that nothing turned on the change in counsel’s joint position on the meaning of the payment clause, and it is clear from [103] that he decided the case on the basis, therefore, that the case did not turn on the meaning of ‘irrespective of delivery’, only on whether payment a fixed number of days after a NOR anticipated by the contract amounted to payment on a ‘day certain’. There may be a subtlety about that: MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain (i) (ii) (iii) I would envisage that the arrival of a first daughter vessel at Lagos ready to discharge was not conditional upon the performance of the delivery obligation ex-ship Lomé for the balance of the contractual quantity not delivered by Kmarin Restraint to that first daughter vessel; however, as regards the quantity so delivered, it might have been thought that that daughter vessel could not give the NOR Lagos required by the contract as a condition of payment without that part performance of the ex-ship delivery obligation; however again, there is no hint in the judgment that any point was taken about that, so that in judging what CE Energy can be said to have decided and, if it arises, whether I should refuse to follow it, I think it right to treat it, as Mr Nolan KC submitted, as a case in which the only point in issue under s.49(2) was ‘day certain’. That means CE Energy decided nothing of relevance to these appeals, which turn on payability ‘irrespective of delivery’. As regards ‘day certain’, Mr Stanley KC decided CE Energy on the ground, [102], that an obligation to pay latest 45 days after a defined NOR was an obligation to pay on a ‘day certain’ within s.49(2). I agree with Mr Nolan KC’s submission that the learned deputy judge erred in treating Readie Construction as a decision on ‘day certain’ (ibid and [99]), whereas the point was conceded in that case. But that is not the limit of Mr Stanley KC’s reasoning, and he did reach a considered view, after full argument, that Shell-Mex is not good law and should not be followed on the meaning of that term under s.49(2). Since the point does not arise here, though, I say no more about it. As regards ‘irrespective of delivery’, Mr Stanley KC, at [100]-[101], and in part of [102], recognised that there were difficulties with the view adopted by Martin Spencer J, particularly its inconsistency with Stein Forbes, Muller Maclean and (the learned deputy judge thought) Otis Vehicle Rentals. Recognising that it did not affect the outcome in CE Energy, Mr Stanley KC indicated, at [101], that his doubts about the correctness of Readie Construction would not have led him to refuse to follow it. Having been persuaded by a clear margin that Readie Construction was wrongly decided, I do not consider that Mr Stanley KC’s obiter reluctance to say that he would not have followed it, despite concerns as to its correctness, is reason enough to decide these appeals on what I would consider to be an erroneous view of the meaning and effect of s.49(2) of the Act. 95. 96. Conclusions 97. 98. These were not procedurally flawed appeals pursuing the wrong remedy, as the seller argued. They were properly brought, and not premature so as to be defeated by s.70(2) of the Arbitration Act 1996. The Board of Appeal, with respect, misdirected themselves as to the meaning of s.49(2) of the Sale of Goods Act 1979 in such a way as to eliminate the key requirement that by the subject contracts for the sale of goods, the price had to have been payable ‘irrespective of delivery’. I answer the questions of law on which leave to appeal was granted as follows: MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain (i) Is a seller of goods f.o.b. entitled to maintain an action for the price pursuant to section 49(2) of the Sale of Goods Act 1979 where: (a) the contract provides that the price is payable against documents; (b) property in the goods has not passed; (c) the goods have been delivered on board a vessel but the price has not been paid; (d) the original cargo documents have not been provided to the buyer; or is the seller’s remedy one only in damages? Answer: Such a seller may not maintain an action for the price under s.49(2). Its only claim (in principle) is for damages, but no such claim was made in the arbitration. (ii) What is meant by the term “a day certain” in section 49(2)? Answer: The question of law does not arise. On any view, the amended payment clause under which the seller made its claim in each arbitration provided for the price to be payable on a day certain within s.49(2). (iii) On the facts found by the Board of Appeal, should the seller’s claim for the price of the corn shipped on board the relevant vessel have succeeded? Answer: No, in each arbitration the seller’s claim for the price was bad in law and should have been dismissed by the Board of Appeal. 99. These appeals must therefore be allowed. In each appeal, relevant parts of the Award will be set aside and substituted with a dismissal of the seller’s claim. There is no need or basis for remission to the Board of Appeal. MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain Appendix A – The Procedural Objection A1. A2. In Vitol SA v Norelf Ltd [1996] AC 800, a case under the Arbitration Act 1979, at 814B Lord Steyn explained, in holding that a respondent did not require leave to argue on appeal that an award should be upheld on grounds not expressed in the award, that to require such leave could imperil the finality of arbitration awards because a perfectly good award might be set aside. Field J considered that in The Mary Nour (No.2), supra, concluding nonetheless that the grounds on which a respondent to a s.69 appeal may rely to uphold an award as correct for reasons not given by the arbitrators “must be based on a point or points of law. It does not follow from Vitol that because under the 1979 Act … leave … was [not] required … a respondent can rely on grounds that are not points of law.” (ibid, at [13]). The permissibility in principle of arguing, substantially in line with a case advanced in the arbitration, that on the facts set out in an award, a result reached by the arbitrators is correct in law, even if the reasons they gave for it disclose an error of law, not only promotes the policy noted by Lord Steyn of upholding awards where possible. It is also consistent with the principle, noted by Ambrose et al., “London Maritime Arbitration”, 4th Ed. (2018) at 22.41, that the grant of leave to appeal does not create an issue estoppel debarring the court on the appeal from considering afresh, in an appropriate case, whether the question raised is one of law after all, or was a question put to the arbitrators for decision. A3. These are matters going to what I have called the admissibility of arguments in response to s.69 appeals. It is a different question, for the Civil Procedure Rules Committee (‘CPRC’), whether to require a respondent’s notice prior to the hearing of an appeal, and if so in what circumstances, when and with what content. A4. On that question, in Ramburs Inc v Agrifert SA [2015] EWHC 3548 (Comm) at [10], Andrew Smith J considered that: “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.” A5. That view was not decisive in Ramburs Inc, because “the argument that the [respondent] buyers seek to raise … was not argued in the arbitration, and certainly not distinctly argued … . More importantly, the secondary argument is not a pure point of law but a mixed question of law and fact – hence Mr Nolan properly submitted that the sellers might properly have adduced relevant evidence” (ibid, at [11]). Applying The Mary Nour (No.2) and Cottonex Anstalt (see paragraph 22 above), Andrew Smith J concluded that it was not open to the buyers to pursue the argument in question. That MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain is to say, the argument was dismissed as inadmissible, so that whether or not it was precluded on procedural grounds did not affect the outcome A6. MRI Trading (paragraph 27 above) was not referred to in Ramburs Inc, and according to the report at [2016] Bus. L. R. 135, Andrew Smith J was not referred in argument to any cases not mentioned in the judgment. That said, the CPR and Practice Directions should wherever possible be given effect simply in accordance with their terms; and certainly they should not be allowed, if it can be avoided, to be a potential trap for the unwary. Just on the language of CPR PD62 para 12.6, I respectfully agree with most, but not quite all, of Andrew Smith J’s view of its effect. A7. Where a respondent does oppose a leave to appeal application under s.69, so that CPR PD62 para 12.6 requires a respondent’s notice to be filed and served, the requirement in sub-paragraph (2) to state any reasons not expressed or not expressed fully in the award for which the respondent “wishes to contend that the award should be upheld” appears to be additional to the requirement in sub-paragraph (1) to state the grounds on which leave to appeal is opposed. I say that as a simple response to the structure and language of the Practice Direction. Furthermore, unless a contention that an award should be upheld for reasons not given by the arbitrators is asserted to be powerful enough to warrant a refusal of leave to appeal even if the court concludes that the award on its face is obviously wrong in law or open to serious doubt (as applicable), it is not relevant at the leave to appeal stage; and if such a contention is said to be that powerful, then it would be a ground for opposing leave to appeal and sub-paragraph (1) would require it to be stated as such. The better reading of sub-paragraph (2), therefore, I think, is that its subject matter is indeed what the respondent will wish to say, if leave to appeal is granted, when the appeal is then argued. A8. A9. That leads me not to agree with the view that a respondent’s notice filed and served under CPR 62 para 12.6 is in every respect ‘spent’, as Andrew Smith J expressed it in Ramburs Inc, once the leave to appeal application has been determined. Where the respondent opposes the leave to appeal application, so that para 12.6 then applies and requires (as I read it) disclosure of any desire to contend on the appeal, if leave be granted, that the award should be upheld for reasons not given by the arbitrators, then the appellant will naturally assume, and the respondent should reasonably expect, that no contention of that kind not disclosed by the respondent’s notice will be advanced, absent agreement or permission. Here, though, CPR PD62 para 12.6, on its own terms, did not apply, with the result that no respondent’s notice was required. In MRI Trading, Eder J indeed stated in unqualified terms, at [39], that “a party who wishes to contend that an award should be upheld for reasons not expressed (or not fully expressed) in the award is required to file a respondent’s notice at the stage of the application for permission to appeal in accordance with CPR PD 62 Para 12.6.” That was not essential to Eder J’s relevant decision, which was to refuse to remit the matter to the arbitrators upon the success of the appeal, because he judged the claim that a remission, if ordered, might be capable of affecting the ultimate outcome to be entirely speculative. A10. Furthermore, although the present case disproves, with respect, Jacobs J’s claim in MUR Shipping v RTI (paragraph 22 above), at [49], that it is “invariably the case” that the respondent to an application for leave to appeal under s.69 will oppose the application, it is certainly not the norm for leave to be unopposed. I consider it MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain reasonable to infer, absent any indication to the contrary, that the respondent in MRI Trading will have opposed the application for leave to appeal and that Eder J will not have had in mind the atypical case of non-opposition. Likewise Hamblen J (as he was then) in Cottonex Anstalt (paragraph 22 above again), who also expressed himself, obiter, in unqualified terms, saying at [41] that “If a respondent wishes to contend that the award should be upheld on other grounds, it should do so at the permission to appeal stage, as required by PD 62 para 12.6” (emphasis added). That was obiter because Hamblen J dismissed the relevant contentions as inadmissible since they either sought to go behind a finding of fact in the award or required findings of fact not sought from the arbitrators (ibid at [34]-[40]). Again there is no reason to suppose that Hamblen J had in mind the unusual case of a respondent not opposing the leave to appeal application but participating in the appeal after leave had been granted. A11. I therefore do not consider that either MRI Trading or Cottonex Anstalt is authority for the proposition that CPR 62 para 12.6 requires a respondent who does not oppose the leave to appeal application to file or serve a respondent’s notice; and as I have already indicated, I consider that is not what para 12.6 says, but rather on its own terms it plainly does not apply at all to such a respondent. In MUR Shipping, supra, at [46]-[49], Jacobs J, obiter, favoured the view that where a respondent has in fact opposed the leave to appeal application, then indeed permission (or consent) is required to pursue at the hearing of the appeal, if leave is granted, a contention that the award should be upheld for reasons not given by the arbitrators that was not identified in a respondent’s notice served in accordance with para 12.6. That was obiter because Jacobs J in fact dealt with all of the respondent’s arguments on their merits. A12. Jacobs J’s view, for the case where a respondent does oppose the leave to appeal application, is in my view consistent with what I have said in paragraph A8 above. The careful way in which Jacobs J expressed himself, and what he said about Ramburs Inc at [48], in my view recognised that the position at all events might be different, and on the plain language of para 12.6 appears to be so, for the atypical case of non-opposition at the leave to appeal stage. Most recently, in Mitsui & Co (USA) Inc v Asia-Potash International Investment (Guangzhou) Co Ltd [2023] EWHC 1119 (Comm), at [84]- [85], Picken J adopted the same approach, following what Jacobs J had said in MUR Shipping, yet again obiter (since in the Mitsui case counsel for the respondent conceded that he required permission to amend the respondent’s notice to pursue the intended new point). A13. Stepping back, there might perhaps be room to consider that it would be better to require a respondent that opposes the leave to appeal application to file and serve a document setting out the grounds on which it does so (but not the argument, which would come in a skeleton argument) in good time before the court will determine the application (nowadays normally on the papers), and separately to require a respondent to an appeal for which leave has been granted to file and serve a respondent’s notice in good time before the hearing of the appeal. That is not, however, the regime now provided for by CPR PD62 para 12.6. I wonder if there might also be room to consider whether, in the context of s.69 appeals, the language of CPR PD62 para 12.6(2) covers all matters on which it would be valuable to require a respondent to set out its stall substantially in advance of its skeleton argument for the appeal hearing (cf paragraph 25 above). A14. In MRI Trading, Eder J cited, as do Russell on Arbitration, 24th Ed. (2015) at 8-167, and Ambrose et al. at 22.29, the decision of Moore-Bick J (as he was then) in Icon MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain Navigation Corp v Sinochem International Petroleum (Bahamas) Co Ltd [2002] EWHC 2812 (Comm), that where on the final argument of an appeal the court had concluded that the arbitrators had erred on the question of law on which leave to appeal had been granted, it was not open to the respondent to contend, under s.69(7) of the 1996 Act, that the award should be upheld because it was unfair of the arbitrators to have proceeded to determine that question. That was by nature a complaint of procedural irregularity, but it did not give the respondent any basis to challenge the award because the award was in its favour. A15. Moore-Bick J concluded that a contention of that kind was not a contention that the award should be upheld for a reason not expressed within the award, but an argument that it was not just and proper for the court to determine the question of law, so that under s.69(3)(d) of the 1996 Act leave to appeal should not have been granted (ibid, at [23]-[24]). He considered that it was not open to the respondent, in effect, to reopen on such a ground the question whether leave to appeal should have been granted. Icon Navigation was an unusual case, and I do not consider it is an authority on the availability of arguments by respondents to s.69 appeals that are to the effect that, on the facts set out in the award, the result was correct in law even if the arbitrators erred in their reasoning as contended by the appellant. Nor is it contrary to the principle that leave to appeal decisions do not create issue estoppels for the appeal. The terms of s.69(1) require the court on the argument of the appeal to consider for itself whether any question on which leave to appeal was granted, and on which therefore the appeal will have been argued, is a question of law arising out of the award. The leave to appeal criterion that Moore-Bick J considered to be uniquely engaged by the point the respondent sought to argue in Icon Navigation, set by s.69(3)(d), does not arise as part of applying s.69(1)/(7) at the final hearing of the appeal. A16. In his reasoning, Moore-Bick J observed (ibid, at [22]) that s.69(7) of the 1996 Act “must be read in the context of s.69 as a whole. The intention of the legislation is that the powers of the court under this subsection should be exercised in a manner that will best give effect to its conclusions on the issues of law that arise on the appeal, including any issues of law raised by the defendant under para 6.12(3) [sic., para 12.3(3)] of the practice direction seeking to uphold the award. It does not, in my view, give the court a wider discretion or allow it to take into account matters outside the scope of the appeal itself …”. That is the dictum relied on by Eder J in MRI Trading. However, CPR PD62 para 12.3(3) as it was, to which Moore-Bick J referred, was not the provision applicable now or in MRI Trading. When Icon Navigation was decided, CPR PD62 para 12.3 required written evidence, to be filed by the respondent to an application for leave to appeal under s.69 not later than two clear days prior to the hearing of that application, to: “(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.” MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain A17. That was also the applicable provision when Field J decided The Mary Nour (No.2). At that time, therefore, a respondent was required, whatever their stance in relation to the grant of leave to appeal, to specify at the leave to appeal stage whether they wished to contend that the award should be upheld for reasons not given by the arbitrators. On the face of things, as I noted above, that is not now the position under the different language of CPR PD62 today (and as it was when MRI Trading was decided). A18. In Cottonex Anstalt, supra, at [41], having stated in seemingly unqualified terms that a respondent wishing to contend that the award should be upheld on other grounds had to do so at the leave to appeal stage, Hamblen J added that: “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).” A19. Acadia Chemicals, to which Hamblen J referred, a decision of Colman J under the 1979 Act, concerned what was then RSC Order 73, rule 5(9). That rule, like CPR PD62 para 12.3(3) that followed, but unlike CPR PD62 para 12.6 now, required a respondent who wished to contend on an arbitration appeal that the award should be upheld on grounds not expressed or not fully expressed in the award to lodge with the court and serve on the appellant a notice specifying the grounds of that contention not less than two clear days before the hearing of the application for leave to appeal. The observation of HHJ Havelock-Allan QC in The Intan 6 was obiter, as the learned judge in fact allowed the additional argument in question to be put, and disposed of it on its merits rather than on procedural grounds. A20. I respectfully question the notion that there is an importance to leave to appeal decisions, almost always made on paper and intended to be made promptly and at modest cost to the parties, being made on a fully informed basis that is sufficient to outweigh the policy of upholding awards not shown to have been wrong in law in their results. Moreover, a failure to identify at the leave to appeal stage that, if leave is granted, the respondent will contend that the award should be upheld for reasons not given by the arbitrators, could only make a difference if that argument in prospect would persuade the court not to grant leave to appeal although (else the question would not arise at all) it was otherwise satisfied on the papers that it was a proper case for leave. The court hearing the appeal can expect to be in a good position to assess whether that would have been the position and to take it into account when dealing with costs. A21. It is fair to expect a respondent to be limited, as in Cottonex Anstalt itself, to points it took before the arbitrators that, if sound, would defeat or avoid a point which the appellant has brought to court by its appeal. But a corollary, if leave to appeal is granted, is that the appellant should not be taken by surprise if the respondent’s skeleton argument for the appeal hearing seeks to defend the appeal by relying on such a respondent’s point. It will be familiar to the appellant from the arbitration. A22. None of that is to say that it might not be thought reasonable to require some respondent’s notice, well ahead of skeleton arguments, where a respondent had chosen not to oppose the leave to appeal application; but I adhere to my view that whether to MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain impose any such requirement is a matter for the CPRC and that, as things stand, CPR PD62 para 12.6 does not do so. MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain Appendix B – Case Law on s.49(2) Sale of Goods Act 1893 / 1979 B1. Chalmers, “The Sale of Goods Act 1893”, took the form of a commentary on the Act by its draftsman, Sir Mackenzie Chalmers. On p.91, Chalmers explained the understanding of the law that underlay the drafting of s.49 as follows: “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.” B2. The references to “goods sold” are to goods the property in which has passed to the buyer pursuant to the sale contract. That historical account of the indebitatus counts for recovery of the price of goods sold, therefore, related only to s.49(1) of the Act. Nothing was said about s.49(2), except that a footnote to the text of the sub-section on p.90 cited Dunlop et al. v Grote (1845) 2 Car & K 153, the case which has always been taken to have inspired it. It may be noted, however, that the count for goods bargained and sold, the main recognised exception to the need for goods to have been sold and delivered before an action for the price was available at common law, did not apply if under the contract delivery was a condition precedent to payment. It should not be a surprise, therefore, if the codified further exception, not requiring property to have passed, followed suit. B3. The last edition of Chalmers is the 18th Ed. (1981). The footnote citing Dunlop v Grote remains (p.222); and the paragraph quoted above is retained as a statement of the “History” of s.49 (p.223). The “COMMENT” section thereafter includes the following: (i) (on p.224): “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 MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain 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”. In principle there seems no reason why the rules of common law should be excluded by this section, and there is some authority that where a contract clearly provides for the unconditional (m) payment of the price in given circumstances which arise, then the seller may claim the price (n). Thus, if the buyer has accepted delivery and not rejected the goods, payment being 90 days after delivery, and there being a provision that property should not pass until payment, the seller cannot claim damages for non-acceptance for the buyer has accepted the goods, and there seems no good reason why he should not claim the price. (l) [1908] 1 K. B. 968, C. A. In Colley v Overseas Exporters, [1921] 3 K. B. 302, at pp. 309-310, MCCARDIE, J., says that no action will lie for the price of the goods until the property has passed except under the rule now embodied in s. 49(2). But at p. 306, he clearly interprets the Workman Clark case, as coming within sub-s. (2). (m) Payment “on delivery” or “against documents” is not unconditional in this sense. (n) Minister of Supply and Development v Servicemen’s Co-operative Joinery Manufacturers, Ltd. (1951), 82 C. L. R. 621 (H. C. of Aus.) (“net cash before delivery”). See also McEntire v Crossley Brothers, [1895] A. C. 497, , per LORD HALSBURY; Sandford v Dairy Supplies, Ltd., [1941] N. Z. L. R. 141. Polenghi Dried Milk Co., Ltd. (1904), 10 Com. Cas. 42 (payment on arrival of ship against documents) also supports this proposition, but the case is inconsistent with Stein Forbes & Co. v County Tailoring Co. (1916), 115 L. T. 215, where ATKIN,J., construed a similar provision as meaning payment upon delivery.” B4. The view expressed in Chalmers, that in some circumstances a claim for a sale contract price might lie outside s.49, is the view expressed 35 years later by the Supreme Court, obiter, in The Res Cogitans (paragraph 61 above). That is not an approach that it is open to me to adopt or that I was asked to or could properly consider in the present case (see paragraphs 61 to 63 above). More pertinent for these appeals is that Chalmers takes it to be clear that a contract providing for payment against shipping documents does not afford the seller a claim to the price under s.49(2) (p.224 at note (k)). MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain B5. B6. B7. B8. In Dunlop v Grote, a contract for 1,000 tons of No.1 Clyde or Dundyvan pig-iron, at 95s. cash per ton, stipulated that payment was to be made on 30 April for any balance of the contract quantity not by then called for by the buyer. The plaintiff sellers sued on that stipulation for the price of 400 tons not called for. That was by nature an obligation to pay that was not conditional upon the prior or concurrent performance by the seller of its obligation to deliver. The defendant argued that the case was like Laird v Pim (1841) 7 M & W 474, in which Parke B. had said, at 478, that “a party cannot recover the full value of a chattel, unless under circumstances which import that the property has passed to the defendants, as in the case of goods sold and delivered, where they have been absolutely parted with, and cannot be sold again”. The plaintiffs, relying on Pordage v Cole (1607) 1 Wms Saund 320, argued that Laird v Pim did not apply because they were suing upon “a day fixed for the payment of money”. A verdict was entered for the plaintiffs, Cresswell J taking the view that “the plaintiffs are entitled to recover the whole sum, as it was agreed to be paid on a day certain”. In Laird v Pim, a purchaser had been let into possession of land it had contracted to buy, but the sale was not completed. The vendor’s claim for payment of the price failed, but at trial it was awarded damages of £750 (the price was £4,125). The vendor challenged the refusal to award it damages equal to the price. The dictum of Parke B. relied on by the seller in Dunlop v Grote concerned the measure of damages, not the claim to the price. Parke B., with whom Alderson B., Gurney B. and Rolfe B. agreed, held that “The question is, how much worse is the plaintiff by the diminution in the value of the land, or the loss of the purchase-money, in consequence of the non-performance of the contract? It is clear he cannot have the land and its value too.” For its part, the purchaser sought to overturn the award of damages inter alia on the basis that under the law as to dependent and independent covenants set out in the notes to Pordage v Cole, a vendor “may declare for non-payment of the purchase-money on a certain day, although no conveyance has been executed” (7 M&W 480), but the contract at hand did not so stipulate and there had been no good plea of breach to support the damages claim: “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 MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain “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 goods arrived but the buyer refused to pay against the shipping documents, claiming that s.15(2)(b) of the 1893 Act entitled it to an opportunity to inspect the bulk for conformity with the sample before it paid. The seller sued for (i) a declaration that, in the absence of a rejection by the buyer, it was bound to pay for the goods on arrival in London against the shipping documents, and (ii) the contract price of a particular consignment of two tons, namely £105 18s. 10d., said by the seller to have been due on tender of the shipping documents relating to it. Kennedy J (as he was then) gave judgment for the seller, on the basis that the only preconditions to payment were that the goods had become arrived goods and the seller had produced the shipping documents. “Payment on delivery is excluded by express stipulation, which provides for payment on arrival”, and “If the goods do not answer the description, the buyer has a right to reject, which right is not impaired by the express condition in the contract that “payment is to be made … in London on arrival of the powders against shipping or railway documents”” (ibid, at 47). B12. The seller’s claim for the price seems to have been treated as standing or falling with its claim for a declaration, and s.49 was not mentioned either in argument or in the very short judgment. The seller accepted that a buyer was not bound to accept the goods without inspection, but argued that that “only affects payment in cases where the payment and acceptance are to be concurrent, and that is so in the absence of agreement to the contrary” (ibid, at 46). That may explain Kennedy J’s slightly opaque statement (ibid) that “As a general rule, section 15 of the Sale of Goods Act, 1893, applies and gives the buyer an opportunity of inspecting the goods before payment”. In fact, s.15 of the 1893 Act provided only, so far as material, that in a contract for sale by sample there was “an implied condition that the buyer shall have a reasonable opportunity of comparing the bulk with the sample”. It said nothing as to whether that condition had to be satisfied before the buyer might be obliged to pay the price. However, s.34 of the Act linked the opportunity to examine with delivery and acceptance; and s.28 made payment and delivery prima facie concurrent conditions. B13. Kennedy J was not asked to decide, and did not purport to decide, anything about the meaning or effect of s.49(2), and Polenghi Bros therefore does not assist either side in the present case. Benjamin submits at 19-376 that the money judgment in Polenghi Bros is “hard to reconcile … with the requirements of s.49(2)”. The simple explanation for that, in my judgment, is that the point was not taken. MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain (ii) Workman Clark & Co, Ltd v Lloyd Brazileño [1908] 1 KB 968. B14. The Court of Appeal dismissed an appeal against a decision of Walton J upholding a summary judgment granted by a Master (strictly, his order granting leave to sign judgment for the amount claimed under what was then Order XIV, rule 1). The claim was for the first instalment of the price under a shipbuilding contract, payable when the keel of the steamer was laid. The contract provided that the hull and materials of the ship under construction, her engines, boilers, machinery and fittings, whether on board or in the yard and whether wrought or not, would “from time to time, after the first instalment of the purchase price … shall have been paid, and thenceforth until the vessel shall be completed and actually delivered to the purchasers, become and remain the absolute property of the purchasers, subject only to the lien of the builders for any unpaid purchase-money …”. B15. Order XIV, rule 1, required the plaintiff’s claim to have been for a “debt or liquidated demand in money” within what was then Order III, rule 6. The ground of appeal was that, since no property had passed, the claim for the first instalment was not such a claim. The defendant relied on what it said had been the pleading rule that “Where a sum was payable by instalments an action of debt would not lie for one or more of the instalments before the whole was due” ([1908] 1 KB 970). It was said to follow that “There cannot be five actions of debt on one contract for the price of the same article” (ibid at 971). It was argued for the plaintiff that “an action of assumpsit was maintainable for one instalment of a sum payable by instalments under the old law where the debt would not lie” (ibid at 972), that therefore an action could be maintained for the first instalment alone, and “The Sale of Goods Act, 1893, s. 49, sub-s. 2, applies …” (ibid at 973). In reply, the only objection to the applicability of s.49(2) was an argument that it “only applies to an action for the whole of the price of goods”. (I think it is therefore not right to say, as the learned deputy judge did in CE Energy, supra, at [78], that neither side in Workman Clark argued that s.49 applied. The shipbuilder said that s.49(2) applied and the buyer joined issue on that but only on the ground, rejected by the court, that it did not apply to individual instalments where a price was payable in instalments.) B16. There was no issue before the Court of Appeal, therefore, as to the meaning of “a day certain irrespective of delivery”, and Workman Clark is no authority on that. In any event, the relevant instalment was plainly payable irrespective of delivery, so if the case is any decision on s.49(2) it is only on ‘day certain’, which does not concern me in these appeals. B17. The ground of decision (per Lord Alverstone CJ at 974-975, per Farwell LJ at 978, per Kennedy LJ at 979-981), was that whatever the rules had been concerning the old, distinct common law actions of debt and indebitatus assumpsit, an instalment that had fallen due for payment according to the terms of a contract for the construction of a ship was a “liquidated demand in money” within Order III, rule 6. In finding that there was no authority against that interpretation of Order III, rule 6, Lord Alverstone CJ said (at 976) that the case was within the note to Pordage v Cole that “if a day be appointed for payment or money, or part of it, and the day is to happen, or may happen, before the thing which is the consideration of the money, an action may be brought for the money before performance.” As regards s.49(2), he said (at 977) that he could see no reason why it did not apply to a case “where the price of an article sold is payable by instalments”, but “however that may be, I think it is clear that there was here such a MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain liquidated demand in money as suffices to bring the case within Order III, r. 6, and therefore within Order XIV, r.1.” B18. Farwell LJ, at 978-979, considered that “any action falling under any of the eight common indebitatus counts, which is brought on an executed consideration for a fixed sum to be paid for such execution” was within the language of Order III, rule 6. He considered s.49 only as to whether it applied to individual instalments in a case of the sale of goods for a price to be paid by instalments, concluding that it did; and Kennedy LJ, at 981, said that one would expect to find suitable words of limitation in s.49 if it were intended not to apply where the price of goods is payable by instalments. B19. Benjamin, at 19-375, n.1686, says that there is doubt as to whether Workman Clark is any authority on the interpretation of s.49(2) because there are several reports of the case and, “In the Law Reports only Lord Alverstone C. J. refers to s.49(2); Kennedy and Farwell LJJ. refer simply to s.49. In the other reports, these two Lords Justices also refer to s.49(2).” I do not agree that that would prevent Workman Clark from being authoritative as to s.49(2). The only issue raised or considered in the Court of Appeal concerning s.49 was whether s.49(2) applied, if otherwise it did apply, to a claim for payment of a single instalment of a price payable by instalments; and there is no room for an argument that s.49(1) and s.49(2) might be different in that respect. B20. It is doubtful nonetheless that Workman Clark decides anything about s.49(2), but that is because it is arguable that what all three judges said about it is obiter. I do not need to take a final view about that, however, because if Workman Clark did decide anything about s.49(2), it is only that narrow point whether s.49(2) was inapplicable to a claim for a single instalment of a price payable by instalments, or, if I am wrong about that, possibly also a point on ‘day certain’. (iii) Stein Forbes & Co v County Tailoring Co (1916) 115 L. T. 215. B21. That brings me to Stein Forbes, a decision of Atkin J (as he was then). Benjamin, at 19- 379, n.1702, suggests that a difference in the sellers’ respective abilities readily to resell the goods “may account for the difference in the results reached in [Stein Forbes and Workman Clark] which, on the wording of the Sale of Goods Act 1979 s.49, are not easy to reconcile.” I do not find any basis for that in the respective judgments. As with my comment on Polenghi Bros (paragraph B13 above), if the result in Workman Clark is inconsistent with the subsequent decision in Stain Forbes on the meaning of s.49(2), the surer explanation is that the point decided in Stein Forbes was not taken, and therefore was not decided, in Workman Clark. B22. Stein Forbes was not about instalment prices, so I think it no surprise that Workman Clark is not mentioned, although Atkin J can be taken to have been familiar with it having been counsel for the successful plaintiff in the Court of Appeal. In Stein Forbes, the plaintiff sued for the price of six bales of sheepskins contracted to be sold to the defendant. The contract was for “About 12,000 dressed sheepskins for prompt shipment, and about 33,000 ditto for shipment as quickly as possible (September [1915], if possible) at 8d. per square foot, c.i.f. London or Liverpool. Payment: Net cash against documents on arrival of the steamer.” Some 317 bales of sheepskins were shipped, 94 on the s.s. Devonian, 217 on the s.s. Bohemian, and 6 on the s.s. Den of Glamis. All three shipments arrived at Liverpool, and the defendant paid for the 311 bales shipped MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain on Devonian and Bohemian, but did not pay for the final 6 bales shipped on Den of Glamis. B23. Various defences raised by the defendant failed, leading Atkin J to conclude that it had broken the contract by not taking up the documents, and paying, for the Den of Glamis sheepskins, and then (at (1916) 115 L. T. 216): “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.” B24. The first argument for the plaintiff was that it was entitled to the price although property had not passed on the ground that “here was a sum certain payable at a fixed time and that, as the defendants had prevented delivery, they could not rely upon non-delivery as a condition precedent”. Atkin J rejected that argument on the basis that the case was not one of “a day appointed for payment of money and the day happening before the thing which is the consideration for the payment”. Such a case fell within the well- known rules in the notes to Pordage v Cole and was now provided for by s.49(2) of the Act; “But this is not a case where the price is payable on a day certain irrespective of delivery. On the contrary, it is payable expressly against delivery.” The second argument for the plaintiff was that property had passed, and that was also rejected by Atkin J (ibid at 216-217), leading him to the following final conclusion (at 217): “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.” B25. Stein Forbes is, therefore, authority that a contract for the sale of goods for delivery c.i.f., payment “cash against documents on arrival of the steamer”, is not a contract falling within s.49(2) of the Act, because the price under such a contract is payable against delivery. It is part of the ratio of Stein Forbes that: (i) if delivery is a condition of the obligation to pay the price, then within the meaning of s.49(2), the price is not payable “on a day certain irrespective of delivery” (emphasis added); and (ii) if payment is “cash against documents” under a c.i.f. sale, then delivery is a condition of the obligation to pay the price. B26. Although Stein Forbes concerned a c.i.f. sale, there is no basis for a different analysis of an f.o.b. sale where the price is payable against shipping documents through which the seller retains constructive possession of the goods and the right to dispose of them. (iv) Martin et al. v Hogan (1917) 24 CLR 234. B27. Martin v Hogan is an unusual decision in the High Court of Australia. It is unusual because the Court sat as a constitution of six judges (Barton, Isaacs, Higgins, Gavan Duffy, Powers and Rich JJ) and was evenly split, with the result that the appeal was dismissed for failure to persuade a majority to overturn the decision of the Supreme MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain Court of New South Wales. By a contract for the sale of goods, the plaintiff agreed to sell and the defendant agreed to buy 50 tons of chaff, f.o.b. shipped in New Zealand during June or July 1915, at £6 5s per ton, “cash against documents”. At trial, the plaintiff obtained a jury verdict for payment of the price. The trial judge had refused a motion by the defendant for a nonsuit on the ground that the plaintiff’s only remedy was in damages. The point of substance underlying the motion was that an action for the price could not be maintained, property not having passed and the price not being payable irrespective of delivery. The appeal was dismissed because (per Barton, Gavan Duffy and Powers JJ), given the way the defendant had pleaded and conducted the case, the point of substance was not open to it and the plaintiff was entitled to hold its verdict. The point of substance therefore did not arise for, and was not addressed by, those justices. B28. The dissenting justices concluded that the defendant was not precluded on procedural grounds from relying on the point of substance. Their judgments (a joint judgment from Isaacs and Rich JJ, and a further judgment from Higgins J) therefore considered the point. (i) Isaacs and Rich JJ would have held that property did not pass and payment was not agreed to be made upon a day certain irrespective of delivery because ((1917) 24 CLR 261-262) ““a day certain” in that sense means a day ascertained – that is, fixed – at the time of the contract, and not left to be ascertained afterwords (Dunlop v Grote [2 Car. & K., 153]…; Staunton v Wood [16 Q. B., 638]). If entitled to anything, it is clearly damages only. Sec. 49 of the Sale of Goods Act is not in force in New South Wales, nevertheless it represents the common law. The common law proceeds on a just principle. If the consideration for the price passes, the price can be recovered simpliciter. But in a sale of goods the consideration does not pass unless the property passes. If, again, there has been an agreement to pay the money on a day fixed by the contract, irrespective of the consideration passing – then, again, the sum can be recovered. But apart from that exception, the common law says, however strictly a man may have promised to pay the price on any given event, his failure to pay on that event is to be compensated for by ascertaining the amount of damage the promisee has sustained.” (ii) Higgins J noted (ibid at 265) that both sides in argument had appealed to the 1893 Act as correctly stating the law of New South Wales, and would then have held that (a) no property had passed to the defendant, so there was no good claim for the price under s.49(1) (ibid at 265 to 267), and (b) nor was there a good claim for the price under s.49(2), because (1) s.49(2) would only be satisfied by a contract by which the obligation was to make payment on (or by) a date “delivery or no delivery before that date” (ibid at 267 to 268), and (2) an f.o.b. contract requiring payment “cash against documents” is not such a contract. B29. Those dissenting judgments therefore give support to Mr Nolan KC’s submission that the inapplicability of s.49(2) of the Act to an f.o.b. contract providing for payment against documents, on the ground that the Act requires the payment obligation not to be conditional upon delivery, has been regarded as settled and uncontroversial for over a century. MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain (v) Colley v Overseas Exporters [1921] 3 KB 302. B30. A quantity of leather belting was contracted to be sold f.o.b. Liverpool. The goods to be sold under the contract were not ascertained when the contract was concluded, but leather belting was prepared by or on the instructions of the plaintiff for shipment at Liverpool. The buyer failed to make effective shipping arrangements, and nothing was shipped. The seller sued for the price, relying solely on an argument under Mackay v Dick (1881) 6 App. Cas. 251, that since it was through the buyer’s default that no goods were shipped, “the plaintiff must be treated as if the goods had been put on board. The buyer’s conduct precludes him from alleging that the property has not passed”, while the buyer insisted that the seller’s only claim was for damages (see at [1921] 3 KB 303). B31. McCardie J gave judgment for the buyer, dismissing the claim for the price. At 306, he said that s.49(2) of the Act “does not apply, as it apparently did in Workman, Clark & Co. v Lloyd Brazileño, where the price was payable by stated instalments on stated dates. The parties before me here made no special agreement as to the payment of the price.” That was a passing observation on a point that did not arise, and I explained when considering Workman Clark, above, why I do not consider the Court of Appeal decided that s.49(2) applied in that case. At 309-310, McCardie J considered the history behind s.49, and concluded on the statutory language and common law principle that Mackay v Dick did not allow a seller to maintain a claim for the price, under a contract not said to fall within s.49(2), in respect of a default by the buyer before property has passed. (vi) Muller Maclean & Co v Leslie & Anderson (1921) 9 Ll. L. Rep. 328. B32. In Muller Maclean, there was a contract for the sale of steel padlocks, prompt shipment with payment cash against documents in London, the price being £90 4s 3d and described in the headnote as a price “f.o.b. New York to Bombay”, but which Roche J’s judgment suggests may have been c&f Calcutta (“padlocks to be shipped by the plaintiffs from the United States of America to Calcutta”, where the contract “was by its terms a contract to ship the goods at a certain price covering cost and freight …”: (1921) 8 Ll. L. Rep. at 329 lhc, 330 lhc). Goods were shipped on the s.s. City of Norwich, and insured for the transit by the seller at the buyer’s request. The seller claimed that it had tendered conforming shipping documents and that the buyer wrongfully refused to accept them and pay. The buyer contended that it had been entitled to reject the documents for late shipment and non-conformity, and in the alternative that the seller was entitled to maintain at most an action for damages, not an action for the contract price. B33. The seller’s claim for the price failed (ibid, at 330 lhc-331 lhc). The seller said that s.49(2) applied. Roche J dismissed that claim, following and applying Stein Forbes. He rejected a submission that Stein Forbes turned on the fact that the price was payable against documents “on arrival”, whereas in Muller Maclean it was payable against documents simpliciter (meaning it was payable whether the ship arrived or not); and concluded in any event that, “in a case where delivery of the documents was the manner in which performance of the contract was to be implemented, and payment is to be made against delivery of documents, that price is not payable on a day certain irrespective of delivery within the meaning of [s.49(2)]” (ibid at 330 rhc, my emphasis for clarity as to the point decided). He also considered, obiter, that the price was not payable on a ‘day certain’, because it was not sufficient that by reason of events subsequent to the MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain contract, a certain day on which payment ought to have been made had come to exist. Roche J considered that did not make the day certain under or by virtue of the contract, referring to The Merchant Shipping Co, Ltd v Armitage, despite its very different subject matter (see paragraph 43 above). (vii) A. A. Nortier & Co v Wm. Maclean, Sons & Co (1921) 9 Ll. L. Rep. 192. B34. It is not clear from the report of Nortier v Maclean that any claim for the price was made, as opposed to claims for damages. The case concerned two separate contracts between the same parties, one for horse-shoe bars as per sample, c.i.f. Manchester, and one for steel bars and other steel items, f.o.b. Glasgow. The headnote records the action as having been for damages, and the summary of the plaintiff’s opening at (1921) 9 Ll. L. Rep. 192 appears to confirm that the only claim was for damages for non-acceptance, the plaintiff having “not got the contract price, and having had the goods thrown on their hands they had to sell them”, so that the claim was for “the difference between the contract price and the amount which the goods actually realised under the conditions at which they were sold”. Yet Greer J expressed himself at 194 lhc, separately for each contract, as if he was deciding that only a damages claim could be made, and in respect of the c.i.f. contract said in terms that it had been “an action for the price of goods”. Mr Nolan KC relied on those dicta, but I do not consider that Nortier v Maclean can sensibly be read as an authority on the meaning of s.49(2). (viii) Shell-Mex, Ltd v Elton Cop Dyeing Co, Ltd (1928) 34 Com Cas 39. B35. That brings me to Shell-Mex, under which a contract for the sale of 1,000 tons of fuel oil, for delivery by instalments, gave the seller (by Clause 15): “the right 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.” Delivery was at the buyer’s works in Bury, Lancs., by seller’s road tankers, and aside from that special payment provision under Clause 15, the general payment provision was Clause 9. It required payment “in net cash within fourteen days from the date of despatch of each consignment, or net cash before delivery, if required by sellers”. B36. After some deliveries under the contract, the buyer refused further instalments and repudiated (the balance of) the contract. The seller invoiced for the contract price of the quantity not delivered (some 466 tons) and sued for that price. The buyer contended that the seller could only sue for damages (for non-acceptance), which were nominal since the market price was above the contract price. Wright J gave judgment for the buyer, holding that (i) no property had passed, and (ii) the price was not payable under the contract on a day certain irrespective of delivery, so there could be no claim under s.49(2) of the Act. B37. It is not easy to see that Clause 15, the special payment clause, did not provide for a price payable ‘irrespective of delivery’ as much as, and on that point in the same way as, the clause in Dunlop v Grote. At whatever point in time the seller invoked Clause 15, if it did, the remainder of the contract would have been for the sale of an as yet undelivered quantity, and on its plain terms, it might be thought, Clause 15 then obliged the buyer to pay as invoiced, though ex hypothesi there had not yet been any delivery or obligation to deliver in respect of the invoiced quantity. It thus provided, it might be MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain considered, for an obligation to make payment prior to, and independently of, any performance of the seller’s obligation to make delivery, within the rules stated in the notes to Pordage v Cole. B38. However, Wright J concluded that any price invoiced under Clause 15 “still remains the price as of goods sold and delivered”, or was “still the price payable under the contract, which includes the sellers’ services in actually delivering the goods to the buyers’ works” (ibid, at 44-45). He considered that Clause 15 fulfilled the same purpose for a quantity in respect of which the buyer had not given delivery instructions as was served by the seller’s right under Clause 9 to require payment before delivery for quantities despatched pursuant to delivery instructions given; and it had been conceded by the seller that if the buyer failed to pay under Clause 9 and then failed to take delivery, the seller could not claim the price but only damages for non-acceptance (ibid, at 44-45). The basis of that concession is not apparent, but if it was a notion that Clause 9 did not provide for a price payable ‘irrespective of delivery’, then it seems to me questionable. Whatever the position as to that, the decisive impact of the concession means, I think, that Shell-Mex does not determine anything on the meaning of that phrase within s.49(2). B39. The real ground on which Wright J decided Shell-Mex was that Dunlop v Grote could be distinguished, and s.49(2) did not apply, because Clause 15 of the sale contract did not provide for a ‘day certain’ within the meaning of the sub-section. That is the point that does not arise for decision in the present case (see paragraphs 43 to 45 above). (ix) Henderson and Keay Ltd v A. M. Carmichael Ltd 1956 S. L. T. (Notes) 58. B40. This decision (per Lord Strachan in the Outer House of the Court of Session) concerns only ‘day certain’ and is to the same effect as Shell-Mex, per Wright J. (x) White and Carter (Councils) Ltd v McGregor [1962] AC 413. B41. This well-known case concerns the circumstances in which a contracting party that can complete performance of its obligations without any input from its counterparty is entitled to do so, and claim the consideration provided for by the contract for having done so, in the face of a renunciation of the contract by the counterparty. It has been considered relevant in the present context, and was cited by Mr Nolan KC, because in his dissenting speech Lord Keith of Avonholm referred to the claim for the price under s.49(2) as “a clear case of a contractual debt unconditioned by any question of performance by the other party” (ibid at 437). That treats the subject matter of s.49(2) as being the conditionality of obligations, in line with Pordage v Cole and Dunlop v Grote, which gave rise to s.49(2), and with Stein Forbes and Muller Maclean, decided under it. (xi) Tradax v Goldschmidt [1977] 2 Lloyd’s Rep 604. B42. In this case, decided by Slynn J (as he was then), the buyer under a contract for the sale of White Syrian barley f.o.b. stowed trimmed Lattakia, payment “Cash against documents on presentation”, refused to take up or pay for the shipping documents on a certain shipment under the contract. By agreement between the parties the goods were sold ‘as is’, without prejudice, for net sale proceeds of US$89,242. In arbitration, a GAFTA Board of Appeal decided that the buyer had not been entitled to reject the MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain goods or the shipping documents and that the seller was entitled to the sum of US$26,728.24, which was equal to the unpaid contract price less the net sale proceeds of the post-rejection sale. B43. That decision was upheld on an appeal by way of case stated under the Arbitration Act 1950. The first question stated for the court was whether the seller was entitled to recover US$26,728.24 (or any, and if so what, sum) “as the balance of the price monies due and/or as damages” ([1977] 2 Lloyd’s Rep 610 rhc). It was argued for the seller that since the goods had in fact been taken by the buyer, the price was due, but that was rejected by Slynn J on the ground that, “There is no entitlement to the price if the contract provided for cash against documents and the property did not pass to the buyers”, so that “The buyers’ claim … is for damages for non-acceptance” (ibid, 614 lhc). That made no difference to the outcome, as Slynn J also rejected the buyer’s claim that the amount awarded was not the correct amount to award as damages. But the basic principle was evidently considered well established: none of Mr Saville QC (as he was then) for the buyer, Mr Hallgarten (as he was then) for the seller, or Slynn J, thought it necessary to cite authority for it; the only issue was whether (as Mr Hallgarten submitted) the fact that the goods had been delivered to the buyer, which then did acts inconsistent with the rights of the seller so as to be deemed by s.35 of the 1893 Act to have accepted them, made any difference to the seller’s ability to sue for the price. Slynn J decided that it did not, the claim for the price still failed. (xii) Otis Vehicle Rentals Ltd [2002] EWCA Civ 1064. B44. In November 1994, the defendant sold 14 Mercedes Benz tractor units to Mercedes Benz Finance Ltd which let them to the claimant on hire purchase terms. The claimant had a contractual option to require the defendant to repurchase the vehicles after two or three years at, respectively, 60% or 45% of the original purchase price. In October 1997, the claimant notified the defendant that it would require the defendant to repurchase pursuant to that option. Shortly before trial in the Birmingham Mercantile Court (as it was then), the defendant conceded liability for breach of contract. At trial it contested only (a) the claim that the buy-back price could be recovered, as opposed to damages, and (b) the quantification of damages if that was the proper claim. The claimant obtained judgment upon the trial for the buy-back price as invoiced, some £362,104.83. B45. The claimant had pleaded readiness and willingness to deliver the tractor units pursuant to the repurchase contract created by the exercise of its option, but by the time the case came to trial the claimant had disposed of them. The trial judge held, obiter, that if the proper claim was damages, the measure was £150,003.91. On the appeal, the defendant conceded that damages amount, and there was no cross-appeal. The Court of Appeal allowed the defendant’s appeal (on which the claimant did not appear, having become debarred from doing so: see per Potter LJ at [21]-[22]), and a judgment for damages in that amount was substituted for the judgment for the buy-back price as a debt. B46. There were two grounds for the Court of Appeal’s decision (per Potter LJ at [14]-[16]): (i) firstly, the repurchase arrangement was a contract for the sale of goods that did not contain any provision negativing the normal rule that payment was to be made against, and in consideration for, delivery, so the trial judge had erred in deciding that s.49(2) of the Act applied; MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain (ii) secondly, if s.49(2) had applied, nonetheless any entitlement to maintain an action for the price under it depended upon the seller’s continuing willingness and ability to deliver the goods to the buyer (see Maclean v Dunn and Watkins (1828) 6 LJ (O. S.) CP 184, and Benjamin at 16-001), but prior to trial the claimant had disposed of the vehicles and put it out of its power to tender them against payment of the buy-back price. (When Otis Vehicle Rentals was decided, Benjamin was in its 5th Ed.; the statement of principle still appears in the 12th Ed., 16-001 at n.9.) B47. The first ground did not require the Court of Appeal to consider the meaning of s.49(2) in any detail or to decide anything about it pertinent to the present case. The second ground might perhaps have provided the buyer in the present case with a defence, depending on what happened to the goods for which it did not pay. However, there is no hint in the Awards that the buyer raised any such defence before the Board of Appeal, and the Awards made no findings about what happened to the goods beyond the ‘negative’ finding that the seller had not proved its allegation that the goods had been taken dishonestly by the buyer using fraudulent documents. (xiii) Caterpillar (NI) Ltd [2013] EWCA Civ 1232, [2014] 1 WLR 2365. B48. In Caterpillar, s.49 of the Act was relevant because the defendant buyer claimed to set off against claims for unpaid invoices two larger claims it asserted against the claimant, and contended that a clause excluding set-off (i) did not apply to the type of set-off asserted, in any event (ii) applied only to claims for the price but the claimant’s claims could not be for the price because a retention of title clause meant that property had not passed. The Court of Appeal allowed the appeal against a summary judgment granted to the claimant in this court, on the ground that (i) the no set-off clause did apply to the type of set off asserted, but (ii) the buyer was correct that it applied only to claims for the price and that property had not passed so there were no such claims. The decision that property had not passed in that case, differing from Popplewell J (as he was then) in this court, was by a majority (Patten and Floyd LJJ, Longmore LJ dissenting). The defendant had admitted throughout that the sums claimed by the claimant had fallen due for payment under the contract (subject to set-off, if available). That conceded (subject to the set-off argument) that there had been a wrongful failure and refusal to pay the price in accordance with the contract, but not that an action for the price was available to the seller as a remedy for it. B49. The claim for the price in Caterpillar, then, like the claim for the price in Tradax v Goldschmidt, supra, was not a claim for goods sold and delivered, nor for goods bargained and sold, but a claim for goods delivered but not sold, because property was only to pass upon payment and the buyer had not paid (leaving aside the set-off argument in Caterpillar, if it might have gone that far). In such a case, the failure to pay the price prima facie does not cause the seller loss equal to the amount of the price, but loss equal to any difference between the price not paid and a lower value at the time of the default of goods that the seller, in consequence, still owns. If there is no failure to take reasonable steps to mitigate, yet the seller is deprived of its goods or their value, the seller ought to have its remedy for that loss outside the sale contract and/or the correct measure of damages for the buyer’s breach of the sale contract might be the full unpaid contract price after all. There is therefore no injustice to the seller if it cannot maintain an action for the price in respect of goods delivered but not sold where the contract falls outside s.49(2). There is therefore, in turn, no need to construe s.49(2) MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain otherwise than in accordance with its plain language so as to increase the situations in which an action for the price will be available in respect of goods delivered but not sold. B50. For summary judgment purposes, the payment clause in Caterpillar was taken to have required payment on the twenty-fifth day of the fifth month after the month in which the invoice was dated, meaning that a valid invoice issued in (say) mid-June had to be paid on 25 November (per Longmore LJ at [7]-[8]). That extended the credit period under the seller’s standard payment clause that otherwise applied. It provided that, “Seller may invoice buyer on or at any time after delivery for any amounts still due … and buyer shall pay within thirty (30) days of the date of invoice”. The seller was thus only entitled to invoice for the price of goods that had been delivered, so that the obligation to pay the price was conditional upon prior performance of the obligation to deliver and any claim for the price would always be an obligation to pay for goods delivered but not sold, as just discussed. The seller did not argue that s.49(2) of the Act applied to that payment term (per Longmore LJ at [23]); nor had it relied on s.49(2) at first instance (see per Popplewell J, [2013] EWHC (Comm) at [37]). B51. In the section of his judgment concluding that there could be no claim for the price outside s.49 of the Act (which forms part of the ratio in Caterpillar as to which the court was unanimous), Longmore LJ (at [45]) took Stein Forbes, Colley v Overseas Exporters and Muller Maclean (together with Plaimar Ltd v Waters Trading Co Ltd (1945) 72 CLR 304, per Dixon J at 318) as establishing that a contract providing for payment against shipping documents by possession of which the seller reserved the right to dispose of the goods fell outside s.49(2), and he described that as the “traditional approach of English law” (at [46], when discussing Minister for Supply and Development v Serviceman’s Co-operative Joinery Manufacturers Ltd (1951) 82 CLR 621, in which Plaimar Ltd had not been cited). At [49], Longmore LJ referred to Lord Keith’s description of the effect of s.49, in White and Carter (Councils) v McGregor, supra, at 437, as “the orthodox view” of the section. Lord Keith’s description included the understanding that s.49(2) required a payment obligation that was not in any way conditional upon performance of the seller’s delivery obligations (see paragraph B41 above). B52. I have laboured that slightly because it makes clear, I think, that Longmore LJ took it to be settled law that ‘irrespective of delivery’ in s.49(2) required the obligation to pay the price not to be conditional upon performance of the seller’s obligation to deliver the goods. At [44], he commented, obiter, that “if a seller is happy to allow a buyer use of the goods without paying for them but wishes to ensure that he retains property in the goods and that he can sue for the price, he only has to provide for payment to be due on a day certain. That is what one would usually expect a seller to do; indeed that is what FG Wilson’s terms and conditions do under the heading “Prices and payments” where it is provided that the buyer is to pay within 30 days of the date of the invoice. It is only the subsequent variations that have muddied the waters” (my emphasis). B53. On the orthodox view of English law recognised and otherwise adopted by Longmore LJ, the payment clause in FG Wilson’s terms and conditions did not provide for the price to be payable irrespective of delivery. I cannot imagine that Longmore LJ meant to contradict that by contemplating that the FG Wilson term might have created a ‘day certain’. The dictum at [44], in my view, was focusing only on that, separate, requirement of s.49(2), and is support, obiter, for the view, contrary to Shell-Mex, that if the price is payable irrespective of delivery, and the payment clause is for payment MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain on (or by) a fixed number of days after an invoice date, then s.49(2) is satisfied because a contract providing for the fixing of a payment date in that way is a contract providing for payment on a ‘day certain’ within the meaning of the sub-section. (xiv) The Res Cogitans, [2015] EWHC 2022 (Comm), [2016] UKSC 23, [2016] AC 1034. B54. In The Res Cogitans, arbitrators decided that the bunker supply contract at issue was not a contract for the sale of goods to which s.49 applied. That decision was upheld by Males J on appeal, and again in both the Court of Appeal and the Supreme Court. B55. At first instance, Males J said (at [71]-[73]) that if s.49 had applied, he would have held that a price payable within a fixed period after delivery was a price payable “on a day certain irrespective of delivery” within s.49(2). That was ‘doubly obiter’ because (i) the appeal was decided on the basis that the contract was not a contract for the sale of goods and (ii) if, per contra, it had been such a contract and if it had fallen within s.49(2), a claim for the price under the sub-section would have failed for other reasons. Leave for a cross-appeal so as to rely on s.49(2) was refused by Males J, so the question whether the contract did provide for a price payable “on a day certain irrespective of delivery” was not before the Supreme Court (per Lord Mance, JSC, at [14]). B56. I respectfully disagree with the reasons Males J gave for his ‘doubly obiter” view, to the extent that it concerned the meaning of ‘irrespective of delivery’: (i) Males J cited, and would have differed from, Benjamin’s submission (at the time, 9th Ed. at 16-027) that “the better view is that a day can be ‘certain’ under s 49(2) only if it is fixed in advance by the contract in such a way that it can be determined independently of the action of either party or any third party”. (The 12th Ed., still at 16-027, is expressed differently, but that is because of Readie Construction and CE Energy, the cases that Mr Nolan KC’s argument called into question and invited me not to follow.) (ii) Differing from Benjamin’s then view as to ‘day certain’ did not justify a conclusion that the price was payable ‘irrespective of delivery’ within s.49(2). Males J cited Stein Forbes and Colley v Overseas Exporters, but did not identify that (unlike Shell-Mex and Henderson and Keay, which he also cited) they were decisions about that requirement, holding that the payment obligation must not be conditional on the performance by the seller of its delivery obligation, and not about the requirement of a ‘day certain’, as interpreted in Shell-Mex. B57. Nothing was said, obiter, about the meaning or effect of s.49 in the Court of Appeal in The Res Cogitans (per Moore-Bick, Longmore and McCombe LJJ, [2016] AC 1034 at 1039 to 1051). B58. In the Supreme Court, as I noted at paragraph 61 above, it was said, obiter, that Caterpillar should be overruled on whether a claim for the price under a sale contract may lie outside s.49 of the Act; I explained in paragraphs 61 to 63 above why the present case does not raise for decision the possible incorrectness of Caterpillar on that point; and I explained in paragraph B55 above why the question whether a claim for the price might have fallen within s.49(2), if the contract had been a contract for the sale of goods, was not before the Supreme Court. MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain B59. In reasoning to the conclusion that, had it mattered, Caterpillar would have been overruled on the exclusivity of s.49 for claims to the price in sale of goods contracts, at [45], Lord Mance, JSC, referred to Dunlop v Grote as establishing a common law exception to the general rule that a seller cannot sue for the price where property had not passed, “where the price is payable on a day certain, in which case the seller may enforce its payment, provided that he is ready and able at the same time to deliver to the buyer the goods and the property in them: the Otis Vehicle Rentals case [2002] EWCA Civ 1064 at [16] per Potter LJ.” B60. Lord Mance continued (ibid) by mentioning Longmore LJ’s obiter dictum in Caterpillar to the effect that a price payable within 30 days of an invoice date would be a price payable on a ‘day certain’, and the fact that Males J had also been of that view, obiter, in the case at hand. Those comments cannot be taken, I think, to have been intended to say anything about the separate requirement of s.49(2) that the price be payable ‘irrespective of delivery’. At [50], Lord Mance recognised that that would also be required for any claim under the sub-section, and said of it that: “… 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”. Section 49 does not focus on the position existing where delivery is made, title is reserved but the price is agreed to be paid, albeit not on a particular “day certain”. Even less does it focus on the position where all these features are present and the buyer is permitted to dispose of or consume the goods or they are at the buyer’s risk and are destroyed or damaged. The question is whether in all these cases an action for the price is excluded [viz., because it would not fall within s.49], and the seller is forced to look around for other means of redress.” B61. I do not find it easy to identify the meaning of s.49(2) that Lord Mance had in mind. The reference to s.49(2) possibly having a ‘main focus’ on cases where there has not been delivery might suggest a view that a case of goods delivered but not sold is always outside the sub-section. That would take ‘irrespective of delivery’ to mean “although the goods have not been delivered”, or perhaps just “prior to delivery”. That is not a construction of the Act proposed by either party before me. B62. However, the sentence which follows (“Section 49 does not focus …”) might suggest a view that a claim for the price of goods delivered but not sold is within s.49(2), if the price is payable on a ‘day certain’; but in that case the meaning being given to the key requirement that the price be payable ‘irrespective of delivery’ is obscure, except seemingly that it would not be, after all, about whether delivery had occurred in fact. (xv) Garmin Australasia Pty Ltd v B & K Holdings (Qld) Pty Ltd [2018] QCA 353. B63. By contractual arrangements enabling the defendant to operate as a dealer in Garmin products, the defendant was obliged to pay for products ordered 45 days from invoice, the plaintiff was to issue invoices at the time of shipment, and the defendant was entitled to pay at a discount of 3% off the invoice if it paid within 20 days of delivery. There was also a retention of title clause. The plaintiff sued for the price not paid of goods “ordered, sold, delivered and invoiced”; the defendant denied that the goods had been sold (i.e. that property had passed), and pleaded inter alia that the plaintiff could not sue for the price, only for damages. Mullins J in the Supreme Court at Brisbane refused an application by the plaintiff for summary judgment and to strike out parts of the defence. The plaintiff appealed to the Supreme Court of Queensland. MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain B64. The New South Wales Sale of Goods Act 1923 applied, s.51(1)-(2) of which (quoted at [20]) are identical to s.49(1)-(2) of the Acts of 1893 and 1979. On the appeal, it was held that s.51(2) did not justify the price claim, on the ground (per Holmes, CJ, at [30] and [39], read as a whole) that since the contract made it plain that delivery was to occur (without passing title) prior to payment, the price was not payable on a day certain irrespective of delivery. Earlier decisions to like effect in Style Finnish (Qld) Pty Ltd v Abloy Security Pty Ltd [1994] 2 Qd R 203 (a first instance decision), and Ledger v Cleveland Nominees Pty Ltd [2001] WASCA 269 (Full Court of the Supreme Court of Western Australia) were followed. (xvi) Mitsubishi Corp RTM International Pte Ltd v Kyen Resources Pte Ltd [2019] SGHCR 6. B65. This is a decision of Asst. Registrar Tan Xue Yang (Elton) (‘Tan AR’) in the High Court of Singapore. It concerned a contract for the sale of aluminium ingots by the plaintiff to the defendant, which contained a retention of title clause but also authorised the defendant to sell the goods prior to payment, in which case it was to hold any sale proceeds for the plaintiff. The Singapore Sale of Goods Act 1979 (Cap 393, 1999 Rev Ed) contained an identical s.49(1)-(2) to the Acts of 1893 and 1979. The plaintiff claimed the price of ingots delivered but not sold that the defendant had sold on to a third party, in each case shortly after it had received the relevant shipment. As regards payment, the contract required: “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”. I do not think that is correct. The orthodox English law view, and the argument put that had become academic, was that ‘irrespective of delivery’ required the performance of the seller’s obligation to MR JUSTICE ANDREW BAKER Approved Judgment Trans Trade v State Food & Grain deliver not to be a precedent or concurrent condition of the buyer’s obligation to pay the price. Tan AR said that in his view, [62], “the phrase “irrespective of delivery” means that the time for payment may be, but need not be contingent on delivery or the time for delivery. Accordingly, a term requiring payment at a time that is ascertainable with reference to delivery or the time for delivery is capable of falling within the scope of s.49(2)” (original emphasis). I do not consider that to be a coherent reading of s.49(2), and in my view Tan AR’s analysis proceeded upon a misapprehension that payability ‘irrespective of delivery’ is about timing rather than about (un)conditionality of obligations. B69. I do not consider that Mitsubishi Corp v Kyen Resources can be regarded as even weak persuasive authority as to the meaning and effect of s.49(2) of the Act under English law; and I note also that Tan AR concluded in any event (at [87], [92]) that property had passed, as conceded by the buyer, so that s.49(1) applied (meaning, I think, that s.49(2) was irrelevant, not (as Tan AR said at [92]) that the seller could maintain its claim under either sub-section).