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2023 MarsdenLR 2773
COURT OF APPEAL PUTRAJAYA
FIMBANK PLC – Appellant
Versus
PEMILIK DAN/ATAU PENCARTER DEMIS KAPAL ATAU VESEL “NIKA” KINI DIKENALI SEBAGAI BAO L.... – Respondent
[Civil Appeal No: W-02 (IM)(ADM)-1031-06-2022]
The court upheld the limitation of five renewals for an admiralty writ in rem as per Order 6 r 7(2) of the Rules of Court 2012, emphasizing adherence to procedural rules over judicial discretion.
Headnote:(A) Rules of Court 2012 - Order 6 r 7(2) - Admiralty writ in rem - The court addressed the issue of whether an admiralty writ in rem can be extended beyond five renewals as prescribed by the rules. The appellant's claim involved misdelivery of cargo and sought an extension of the writ's validity, which was denied. (Paras 2, 24, 26, 28)
(B) Judicial Discretion - The court emphasized that specific provisions limit the number of extensions for writs in rem, and inherent powers of the court cannot override this limitation. (Paras 24, 27, 28)
Facts of the case:
The appellant, a bank, filed a writ against the owners of the vessel 'NIKA' for misdelivery of cargo, having made five previous applications for extension due to the vessel not being in Malaysian waters since the original writ was issued. (Paras 5, 16)
Findings of Court:
The learned Judicial Commissioner correctly interpreted Order 6 r 7(2), which limits extensions to five, and found no basis for applying inherent jurisdiction to grant a sixth extension. (Paras 24, 26, 27)
Issues: The main issues were whether the court could extend the writ's validity beyond five renewals and if inherent powers could overcome the limitation imposed by the rules. (Paras 2, 24)
Ratio Decidendi: The court held that the specific provision of Order 6 r 7(2) must be adhered to, and the inherent powers of the court do not allow for bypassing clearly defined rules. (Paras 26, 28)
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. appeal against high court decision (Para 1 , 2 , 3) |
| 2. background on writ in rem and its claims (Para 4 , 5 , 6 , 14 , 15 , 16) |
| 3. rules governing extension of writ validity (Para 11 , 12 , 19) |
| 4. arguments on procedural fairness and extensions (Para 17 , 18 , 24 , 25) |
| 5. judicial interpretation of inherent jurisdiction (Para 20 , 21 , 22 , 23) |
| 6. court's decision on writ extension limitations (Para 26 , 27 , 28) |
Introduction
[1] The appeal by the appellant (plaintiff) is against the decision of the High Court given on 12 May 2022, dismissing the appellant's Notice of Application (encl 46) to extend the validity of the writ in rem for the sixth time.
[2] This appeal raised the issue of whether the Court can extend the validity of an admiralty writ in rem beyond the fifth time as prescribed under O 6 r 7(2) of the Rules of Court 2012.
[3] We heard and dismissed the appeal on 15 November 2022.
Brief Facts
[4] The appellant, Fimbank PLC is a Maltese bank and a trade financier. The respondents are the former owner of the vessel "NIKA".
[5] On 17 May 2019, the appellant filed a writ in action in rem against "The Owners and/or Demise Charterers of the ship or vessel "NIKA". The writ is endorsed with the following claims:
"The plaintiffs (appellant herein), as persons entitled to immediate possession of and/or having other legal or equitable interests in and/or having rights of suit in respect of a cargo of approximately 17,300 MT of Ukrainian Milling Wheat from the Latest Crop (2017) (the Cargo) shipped on board the vessel "NIKA" (IMO No 9254513) (the Vessel) for carriage from Chornomorsk, Ukraine to one Egyptian Mediterranean Port under the Bills of Lading BL Nos 1 to 26 and BL No 61 dated on or about 22 March 2018 (Bills of Lading), and/or as lawful holders and/or indorsees of the Bills of Lading, claim against the defendants (the respondents) as carriers and/or persons being in physical possession of the cargo. The plaintiffs' claims are for:
(a Damages for breach of the contract(s) of carriage contained in and/or evidenced by the Bills of Lading, and/or breach of duty, and/or negligence, and/or breach of duty as bailees, and/or wrongful interference, and/or injury to the plaintiffs' interests in the Cargo by the defendants, their servants and/or agents in and about the bailment, loading, stowage, handling, custody, care, discharge and delivery of the Cargo and the shipment and carriage thereof on board the Vessel on or around the date and for the voyage as specified in the Bills of Lading, and/or for a declaration for indemnity in respect of all loss, liability, costs and/or expenses suffered and/or incurred or which may be suffered and/or incurred by the plaintiffs as a result of the defendant's breaches as aforesaid;
(b) Interest;
(c) Costs; and
(d) Other relief deems fit by the Court.
[6] In summary, the appellant's claim is for misdelivery of the Cargo by the respondents to unauthorized third parties without presentation of the original Bills of Lading which at all material times were in the appellant's possession.
[7] Order 70 r 7(1) of the Rules of Court 2012 ( ROC ) states "a writ by which an action in rem is begun shall be served on the property against which the action is brought." Put simply, it means the writ was to be served on the vessel NIKA itself, in the manner prescribed by O 70 r 10 and substituted service could neither be ordered nor effected.
[8] Pursuant to O 70 r 7(1), the writ could only be served on the vessel "NIKA" if it comes into Malaysian waters.
[9] A writ is valid for 6 months from the date it was issued. This is provided for in O 6 r 7(1) of the ROC wherein it is stated "a writ is valid at first instance for six months beginning from the date of its issue". Thus, having filed the writ on 17 May 2019, it is valid until 16 November 2019.
[10] Therefore, the appellant is required to serve the writ on the vessel on or before 16 November 2019.
[11] If a writ cannot be served on
