Back
2021 MarsdenLR 3882
HIGH COURT SABAH & SARAWAK KOTA KINABALU
COSCO SHIPPING HEAVY INDUSTRY (DALIAN) CO LTD & ANOR – Appellant
Versus
REGISTRAR OF MALAYSIAN SHIPS AT THE PORT KOT.... – Respondent
[Judicial Review Application No: BKI-13NCvC-22/11-2019]
Duplicity in maintaining parallel proceedings for identical issues constitutes an abuse of process, warranting dismissal of the judicial review application.
Headnote:(A) Merchant Shipping Ordinance 1952 – Sections 11, 16(2), 21(a), and 23 – Application for Judicial Review – Applicants sought to challenge the permanent registration of the vessel 'DALIAN DEVELOPER' and alleged forgery of the Builders' Certificate, which the 2nd Respondent opposed, citing lis alibi pendens and abuse of process – Court found duplicity in claims as identical issues were present in both the KL Action and the Sabah Action and hence struck out the application. (Paras 1-50)
Facts of the case: The Applicants initiated two separate actions over the same registration issue of the vessel 'DALIAN DEVELOPER', claiming forgery of the Builders' Certificate and seeking to deregister the vessel in KL and in Sabah. (Paras 1-20)
Findings of Court: The Court accepted the 2nd Respondent's connection between the proceedings, concluding that continuing with both actions would be vexatious and an abuse of court process. (Paras 52-53)
Issues: Whether the registration was lawful and if maintaining two proceedings for similar reliefs constitutes an abuse of process. (Paras 29-33)
Ratio Decidendi: Duplicity in proceedings is discouraged as it may yield conflicting judgments and undermine public confidence in justice; thus, the Court emphasized adherence to procedural propriety regarding essential public policy interests. (Paras 38-46)
Result: Application for Judicial Review struck out with costs awarded to the Respondents. (Paras 52-53)
JUDGMENT
(Enclosure 40)
[1] This is an application by the 2nd Respondent to strike out the Applicants' application for Judicial Review as being frivolous and vexatious and an abuse of the process of the Court and on the ground of lis alibi pendens. The orders sought by the 2nd Respondent are as follows:
1. The Applicants' application for Judicial Review in the present action be struck out and/or dismissed as being frivolous and vexatious and an abuse of the process of the Honourable Court.
2. The costs of and incidental to this application be paid by the Applicants to the 2nd Respondent.
3. The Honourable Court makes such further or other order as it deems necessary or just.
[2] The grounds of this application are as follows:
a. The relief sought in the present action is essentially to challenge the decision of the Registrar of Malaysian Ships at the Port of Kota Kinabalu to register the vessel "DALIAN DEVELOPER" permanently as a Malaysian vessel in the name of the 2nd Respondent. In particular, the Applicants' claim specifically include a declaration that the permanent registration of the vessel "DALIAN DEVELOPER" at the said Port of Kota Kinabalu was null and void, and an Order for Mandamus to compel the Registry to cancel the permanent registration.
b. The primary ground for the Judicial Review application in this action is that the Builders' Certificate for the vessel which was lodged with the Registry for the permanent registration is a forged document and further that the registration had not satisfied the provisions of s 11, 16(2), 21(a) and 23 of the Merchant Shipping Ordinance 1952 .
c. Prior to commencing the present action, on 12.7.19, the Applicants instituted an action in Admiralty in Personam No WA-27NCC-50-07/2019 in the Kuala Lumpur High Court (the "KL action") against the 2nd Respondent as the Defendant.
d. In that action, the Applicants as the Plaintiffs, claim against the 2nd Respondent, inter alia, an Order that the Defendant de-register or cancel the permanent registration of the same vessel "DALIAN DEVELOPER", at the Port of Registry at Kota Kinabalu.
e. The primary grounds of the Applicants' claim as Plaintiffs, in the KL action, against the 2nd Respondent, are the same as in the present case, namely that the Builders' Certificate lodged with the Registry for the permanent registration is a forged document and the provisions of the Merchant Shipping Act have not been satisfied. The primary relief claimed in both the actions and the grounds relied on are therefore identical.
f. The KL action is still pending, and it is fixed for Trial from 20 July 2020 to 24 July 2020.
g. The Applicants have therefore commenced and maintained 2 separate actions against the same Defendant (Respondent), claiming the same reliefs and relying on the same grounds. This has given rise to a lis alibi pendens and is prima facie an abuse of the process of the Honourable Court, and is oppressive, frivolous and vexatious.
h. Further grounds of this application are set out in the Affidavit of Azman bin Abu Bakar filed herewith.
Brief Factual Background
[3] Sometime in 2014, there was an invitation by the 1st Applicant to the 2nd Respondent to collaborate in a joint venture in Malaysia to participate in Malaysian projects using the 1st Applicant's vessel "DALIAN DEVELOPER". In particular, the target was to secure Petronas projects in Malaysia.
[4] The arrangement was for the 1st Applicant to provide the vessel which was a specially designed deep-water drilling equipment that is an essential device to bid for the Malaysian projects. On the 2nd Respondent's part, it was to contribute its technical knowledge and expertise as well as to tap into its substantive contacts in the industry to secure the Malaysian projects, including Petronas projects.
[5] For the intended joint venture, to pitch for the Malaysian projects including Petronas projects, it was necessary for the 1st Applicant's vessel to be registered as a Malaysian ship with
