Forum Services International Ltd & Anor v OOS International BV

A representation agreement covering a specified asset does not extend to other assets merely because the parties collaborated in marketing or promoting them. Extension requires evidence that the parties agreed to apply the agreement to the additional asset. Where parties undertake work in anticipation of a joint venture or similar agreement, and no such agreement is concluded, the commercial risk ordinarily remains with the party undertaking the work. In the absence of an established unjust factor, restitution is unavailable.

Forum claimed commission from OOS under a representation agreement concerning vessels proposed for Petrobras contracts. It alternatively sought rectification or variation of the agreement, and restitution for the benefit of its work. Forum also claimed payment for local services supplied in Brazil. OOS denied that the representation agreement applied to the vessels concerned and claimed repayment of a loan. The principal issues were whether the agreement had been rectified or varied, whether commission or restitution was payable, and what amount was due for local services.

1. Commission and rectification. Forum’s claims for commission failed. The representation agreement identified the “Halani 1” in its completed exhibit. The evidence did not establish a continuing common intention, or outward expression of accord, that the agreement would cover all assets later marketed by the parties. Nor was there sufficient evidence for rectification.
2. Variation by conduct. The parties might have agreed on particular occasions to apply the agreement to another vessel, even without completing a further exhibit. However, collaboration, marketing activity and references to a 3% commission did not establish such an agreement for the “ex SEDCO 700” or the “DP3 SSCV”. The parties’ later relationship was increasingly directed towards a joint venture or similar arrangement, and the representation agreement had been overtaken by events.
3. Restitution. Forum’s unjust-enrichment claim also failed. Forum undertook the relevant work in anticipation of reaching a joint venture agreement. No agreement was concluded. The parties knew their position and there was no default contractual basis for payment. Forum had taken a commercial risk, and the absence of an established unjust factor prevented restitution.
4. Local services. Forum was entitled to payment for local services up to US$50,000, subject to setting off the unpaid loan monies. The loan was not shown to have been converted into an advance payment.

Judgment was therefore entered for the applicable local-services sum, less the unpaid loan, while the commission and restitution claims were dismissed.