Mahadev Shankar JCA

(delivering the judgment of the court): The 26 respondents in this appeal are the master and crew of the MV Brihope ('the ship') which was owned by the appellant Finego Enterprise Sdn Bhd ('Finego'). The ship was the subject of two mortgages to Hong Leong Leasing Sdn Bhd ('Hong Leong'). She was registered in the Port of Penang on 21 October 1992. We heard this appeal together with two other appeals (P 02–69–94 and P 02–332–94) and dismissed each of them with costs. These respondents are also the respondents in the other two appeals. The subject matter is the same. Our reasons for dismissing this appeal now follows.

First Appeal (Civil Appeal No P–02–369–94)

In March 1994, the ship arrived in Penang with cargo belonging to Messrs Lam Guan Chuan Sdn Bhd ('Lam Guan'). After arrival in Penang, Lam Guan had problems with their cargo. So they filed Penang High Court Admiralty in Rem Action No 27–1–94 ('the first action') and arrested the ship on 26 March 1994. Thereafter, the cargo was unloaded under the direction of the sheriff. On 30 March 1994, the ship's master and crew aforesaid (collectively referred to as 'the crew') filed a caveat against the release of the ship and also against payment out of court of the proceeds of the sale thereof if so ordered.

On 13 April 1994, the crew commenced Penang High Court Admiralty in Rem Action No 27–2–94 ('the second action') to effect recovery of the wages and disbursements they claimed were due to them. The defendants named were 'Pemunya Kapal dan orang-orang lain yang mempunyai kepentingan dalam Kapal MV Brihope' (or in English, 'the owner and all other persons having an interest in the ship MV Brihope).

Their statement of claim averred that their wages and disbursements as recorded in the crew's monthly wages account and due to them by the shipowners came to an alleged total of RM468,300 as at 31 March 1994. The arrest of the ship in the first action was referred to. The judgment prayed for was:

(a) in respect of the amount claimed as wages due to them;

(b) a reference to the SAR to assess the amount due to each of them; and

(c) interest, cost and such other relief as may be just.

Service of the writ was affected as provided by O 70 r 10 of the Rules of the High Court 1980 ('the RHC'). On 28 April 1994, Finego's solicitors entered appearance, but the form of the memorandum of appearance used did not state that appearance was being entered for Finego Enterprise Sdn Bhd, but stated: 'Masukan kehadiran untuk pemunya kapal dan orang-orang lain yang mempunyai kepentingan dalam kapal MV Brihope'.

On 6 May 1994, the crew filed an O 14 application for summary judgment in the second action for the amount claimed, interest thereon and for an order that the ship be sold by public auction or private treaty to settle the plaintiffs' claims. This application was supported by an affidavit affirmed by the master on 4 May 1994, for himself and his crew. This affidavit is in Form 18 of the RHC. It stated that the defendants were justly and truly indebted to them for RM468,300 as wages and allowances. By way of further particulars, the master annexed copies of the agreement and account of the crew made pursuant to s 99 of the Merchant Shipping Ordinance 1952 ('the Ordinance') and the crew's monthly wages account. He again referred to the arrest of the ship in the first action, and the failure of the defendants to provide them food and necessaries. And he averred that he believed there was no defence to the action. In short, the form of this affidavit complied with O 14 r 2(1) of the RHC. The application was fixed for hearing on 13 May 1994. It was adjourned at the instance of the defendants' solicitors (on grounds of short service) to 7 June 1994. On the same day, ie 13 May 1994, Lam Guan's solicitors sent a letter by AR registered to Hong Leong giving notice of the commencement of the first action; the arrest of the vessel; the proposed application for an order of sale and req