The court confirmed that while the duty of full and frank disclosure is critical in ex parte applications, non-disclosures must be material to the court's decision to warrant setting aside an order.

Introduction

[1] This my judgment dismissing the Defendants' Application in encl 19 to set aside the ex parte orders made on 2 May 2023.

[2] The main issue for determination is whether the Plaintiff had failed to make full and frank disclosure of material facts and/or had misled the Court on the facts at the time of the hearing of the ex parte application.

[3] The law on the duty to make full and frank disclosure in respect of an application made ex parte is settled. As such, this judgment will focus on the nature of the disclosure made during the ex parte application and whether the facts which the Defendants contended were not disclosed were material. The Court must examine the nub of the complaint at the time the ex parte application was made and asked if the facts disclosed were sufficient to merit the grant of the orders sought.

Background Facts

[4] Plaintiff is the consignee of 2000 units of brand-new cars manufactured by Cherry Automobile loaded and shipped onboard the vessel, MV "AH SHIN v.011" (IMO No 9177430) ("the Vessel") for carriage by sea under Bills of Lading No AHSLYGYAR2301001, AHSLYGYAR2301002 and AHSLYGYAR2301003 issued on or about 25 January 2023 ("B/Ls") from load port Lianyungang, China to disport, Yarmica, Turkey ("Cargo"). The Cargo is insured with Russian insurance company, VSK ("Cargo Insurers").

[5] The 1st Defendant, AH Shin Shipping SA ("Ah Shin"), is the Vessel's registered owner. The Vessel is entered with Japan P&I Club ("P&I Club").

[6] The 2nd Defendant, Doriko Ltd ("Doriko") is the Ship Manager or Commercial Manager of the Vessel, acting as agent for and on behalf of the 1st Defendant.

[7] The B/Ls are subject to a Charterparty (BIMCO Gencon 1994 amended by the contract of affreightment) between disponent owners, Samjoo Maritime Co Ltd ("Samjoo") and the Plaintiff ("Charterparty").

[8] The Charterparty incorporates an arbitration agreement under cl 19 for all disputes arising thereunder to be resolved by arbitration in Hong Kong in accordance with English law ("Arbitration Agreement").

[9] On or about 3 February 2023, whilst the Vessel was en route from Korea to Singapore for bunkering, a fire broke out on Cargo Deck 8, thereby causing damage to the cargo onboard, including the Plaintiff's Cargo, causing it to suffer substantial losses which are still being fully ascertained.

[10] The Vessel deviated to (2) "refuge" ports, Vietnam, and thereafter, to Kuantan to secure the safety of the maritime adventure or for necessity, which the Defendants claim they are entitled to do under English law. But this was done without the Plaintiff's consent as Consignee under the B/Ls or Charterer or cargo owners and or in infringement of its rights, which are fully reserved and taken up in arbitration.

In Vietnam

[11] As soon as the Vessel arrived in Vietnam sometime in mid-February 2023, the Plaintiff and the Defendants engaged in discussions for a fire investigation on board the Vessel to ascertain the cause of the fire.

[12] Suffice it to state that the