Abdul Wahab Patail J:

[1] The matters before the court were as follows:

a. encl 15: Defendant's application to set aside writ and warrant of arrest.

b. encl 18: Defendant's application for orders for sheriff to maintain vessel.

c. encl 47: Defendant's application to set aside notice of discontinuance,

[2] The plaintiff Kertih Port Sdn Bhd had on or about 10 November 2001 commenced this admiralty in rem action against the vessel "Shema" ("the vessel") for a claim for an alleged breach of contract for the hire of two tugboats pursuant to a letter of award executed between the parties. The vessel was arrested at the instance of the plaintiff as a security for its claim under an action filed by the plaintiff. The vessel was arrested at Port Klang on 10 November 2001, at the request of the plaintiff. On or about 12 November 2001, Messrs Liow & Co, the former solicitors of the defendant in this action, issued an immediate notice to the plaintiff 's solicitors informing that the execution of the warrant of arrest against the vessel "Shema" was wrongful and without basis.

[3] Subsequent to the arrest of the said vessel in this action, the plaintiff through its solicitors had on 13 November 21 and 20 November 2001 demanded the defendant to furnish alternative security for its claim in the sum of RM2,384,000 to secure the release of the vessel "Shema" from arrest.

[4] After keeping the vessel under arrest for about 104 days, the plaintiff filed a notice of discontinuance of the action and procured the release of the vessel from arrest. At the time of filing of the notice of discontinuance and release, encl Nos 15 and 18 filed by the defendant, were pending hearing before this court.

[5] The abrupt discontinuance of the action by the plaintiff left the defendant without any reparation, in particular as to costs of the action and/or recovery of all unnecessary and wasted expenses incurred by the defendant whilst the vessel was under arrest for about 104 days. Accordingly, the defendant by encl 47, sought an order that the plaintiff's notice of discontinuance be set aside and that all wasted and unnecessary expenses incurred by the defendant whilst the vessel under arrest be assessed and paid by the plaintiff as Sheriff's costs and expenses.

[6] The notice of discontinuance was set aside by agreement of the parties. Mr TH Liew for the plaintiff informed the court there was no objection to payment of costs to the date of discontinuance. Setting aside the notice of discontinuance, the court deferred decision on other prayers in encl 47 until decision on encls 15 and 18. Except for prayer 5, the remaining prayers in encl 47 are similar to prayers in encls 15 and 18. Hence, prayer 5 was considered as an alternative prayer to damages for wrongful arrest of the vessel. Further, the defendant did not proceed with prayers 1, 5 and 7 of encl 15 for reason they had become academic. Similarly, since the plaintiff had voluntarily released the vessel from arrest, the majority of prayers sought in encl 18, save for prayer 7 pertaining to the issue of costs and unnecessary/wasted expenses whilst the vessel was under arrest, had also become academic.

[7] The remaining prayers pertain to prayers 2, 3, 4 and 6 of encl 15, prayer 7 of encl 18 and prayer 5 of encl 47, and the two main issues are:

a. whether the admiralty jurisdiction of this court has been wrongly and/or improperly invoked by the plaintiff in that the writ of summons in rem and warrant of arrest issued against the vessel "Shema" and the service thereof must be set aside; and

b. whether the defendant is entitled to damages for the wrongful arrest and wrongful continuance of arrest of the vessel "Shema" alternatively Defendant be reimbursed of wasted and unnecessary expenses whilst the vessel under arrest at the instance of the plaintiff.

[8] The first issue was founded upon the argument that the service of the writ of summons in rem and the warrant of arrest on the vessel "Shema" was bad in law sin