A party cannot approbate and reprobate, as doing so constitutes an abuse of court process and renders a claim unsustainable.

[1] This judgment is in respect of the Plaintiff's application in encl 61 to strike out the Defendant's Memorandum of Appearance and Defence and Counterclaim and also the Defendant's application in encl 69 for an extension of time to file the Defendant's Defence and Counterclaim filed on 28 December 2020 and for the same to be admitted as the Defendant's Defence and Counterclaim in these proceedings. I heard both these applications together and on 21 June 2021, I allowed encl 61 and dismissed encl 69.

[2] These are my grounds in respect of of both decisions.

Background Facts

[3] On 13 March 2013 and 13 September 2013 the Plaintiff entered into 2 commercial agreements ("the Commercial Agreements") with Fujian Heli Industry Trade Co ("Fujian Heli"), a company incorporated in China. The arrangement between the Plaintiff and Fujian Heli was for Fujian Heli to salvage sunken ships along the Straits of Malacca ("the Works"). In performing this, Fujian Heli would provide and use a vessel called "Inaimerak Super" ("the Vessel") to perform the Works. The Vessel was previously named "Zhong Run 26", and was registered at the Xiamen Maritime Bureau, China since 16 November 2012. The Vessel, which is the res in this dispute, is now presently named "Awana Salvage". Fujian Heli was represented by a Chinese national named Chen Dijie.

[4] Fujian Heli breached the terms of the Commercial Agreements and the Plaintiff demanded repayment of monies advanced at the sum of RM1,882,552.47 which Fujian Heli did not pay. The Plaintiff then commenced Admiralty In Rem Suit No WA-27-NCC-23-03/2016 in the High Court of Malaya at Kuala Lumpur on 7 March 2016 (Suit 23") to claim for damages due to contractual breach of obligations by Fujian Heli.

[5] Fujian Heli did not enter an appearance for Suit 23 but instead, an Indonesian company named PT Jatim Perkasa Lines, which is the Defendant in the present action, entered appearance on 21 March 2016, claiming to be the owner of the Vessel. It was in evidence in Suit 23 that on or about 1 August 2015, Chen Dijie and Zhong Xiang Run Shipping (Xiamen) Co Ltd ("Xiamen Zhong Xian Run Shipping"), a company incorporated in China had executed a Memorandum of Agreement dated 1 August 2015 with the Defendant as the buyer of the Vessel for a sum of USD1,000,000.00. Sierra Leone registry documents also showed the Defendant to be the owner of the Vessel.

[6] The Defendant applied to strike out Suit 23 and this was allowed by the Court on 28 June 2016 ("the Striking Out Decision"). This was on the ground that the Plaintiff had no legal standing to invoke an in rem action of the High Court's admiralty jurisdiction as at the commencement of the suit, the Defendant was the owner of the Vessel, and not Fujian Heli. The Plaintiff in the application was not able to establish that Fujian Heli were common partners with Chen Dijie and that the Defendant was the agent of Chen Dijie. There was also no evidence to demonstrate collusion of the various parties to present the Defendant as the new owner of the Vessel.

[7] The Plaintiff appealed against the Striking Out Decision on 29 June 2016 to the Court of Appeal, but a settlement was eventually reached between the Plaintiff and the Defendant on 13 January 2017. According to the Plaintiff, a settlement was agreed in writing between the Plaintiff and the Defendant in a Settlement Agreement dated 13 January 2017 ("the Settlement Agreement'), signed by Lin Qi Qiang on behalf of the Defendant and Chee Teck Fah on behalf of the Plaintiff, where it was agreed that:

a) The Defendant acknowledged there was a debt due and owing of RM5,919,427.30 to the Plaintiff which would no longer be disputed and would be repaid in full;

b) To repay the debt, the Vessel would operate in the waters of Malaysia, and thus, revenue generated therefrom would be used to set-off the debt in favour of the Plaintiff; and

c) It is only after the debt is repaid in full, that the Vessel would be released