K v A

Michael Nolan QC (instructed by W Legal Limited) for the Claimant Lawrence Akka QC and Oliver Caplin (instructed by Hill Dickinson LLP) for the Defendant Hearing dates: 17 April 2019 ____________________

(1) Although it appeared to be common ground that a fraud had occurred and that an email account was likely to have been manipulated, the Board considered that it could not make any finding on the evidence before it as to how the fraud occurred. What the parties and Vicorus variously alleged must have happened had to be treated as supposition. The Board therefore declined to make any finding on when or how the fraud occurred but proceeded on the basis that it had to identify the allocation of liability based on risk (Award paragraph 9.9).

(2) The claim was for payment of the balance of the price, not a claim for damages (Award paragraph 9.19).

(3) The emails and invoices sent by A to Vicorus contained the correct bank details for payment into A's nominated bank account. By reason of clause 18 of GAFTA 119, the emails and attachments sent by A to Vicorus constituted good notice under the contract because Vicorus were acting in their capacity as Broker (Award paragraph 9.28).

(4) Accordingly under the contract it was K which bore the risk of receipt of the incorrect bank details which was what caused payment to be made into the incorrect account. K's duty was to transfer the price "into the account nominated by [A]", which K had failed to do. "Accordingly, WE FIND THAT Sellers did send a correct invoice under the Contract to Buyers via Brokers (or direct) and further that Buyers were in breach of contract by their failure to pay Sellers the correct value of the goods into the correct bank account nominated by Sellers". (Award paragraph 9.29).