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[K27-03-2005] MALAYSIA IN THE HIGH COURT IN SABAH AND SARAWAK AT KOTA KINABALU ADMIRALTY IN REM NO.

K27-03 OF 2005

BETWEEN

PT MENARA SAMUDERA

... PLAINTFF

AND

THE PERSON IN POSSESSION OF THE VESSEL M.V. "HO SHUN" ... DEFENDANT

GROUNDS OF DECISION

The plaintiff, PT Menara Samudera took out an admiralty in rem action on 17.8.2005 and on the same day obtained an order to have the vessel "Ho Shun" (the vessel) arrested and it was arrested the next day while berthing in Sandakan. The vessel is registered in Indonesia. The defendant, Rozario Ltd then applied to have the action and the arrest order set aside. On 24.1.2006 the Deputy Registrar set aside the warrant of arrest of the vessel on the ground of material non-disclosure. She also stayed the action on the ground that another court was the more appropriate forum.

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Both parties appealed to the High Court against the relevant parts of the Deputy Registrar's decision. At the conclusion of the appeal on 5.5.2006 Ian Chin J inter alia made the following order:

"(1)

that the vessel be released to the plaintiff upon the plaintiff paying into

court within 14 days hereof a sum of US$400,000.00 which sum is to await the decision of a court in Indonesia, which action the defendant or any entities claiming ownership of the vessel or part thereof must take out against the plaintiff in Indonesia (the action is to be taken in Indonesia is because the vessel is registered there) within 60 days hereof to claim ownership of the vessel and such other relief the parties think fit; and the plaintiff must submit to the jurisdiction of the court in Indonesia,"

The defendant appealed to the Court of Appeal against the High Court order but the appeal was dismissed on 29.11.2007. No further appeal to the Federal Court was filed by the defendant. The defendant subsequently commenced an action against the plaintiff in a court in Indonesia on 28.1.2008. However on 18.3.2008 the District Court of Jakarta Barat ordered the action filed by the defendant to be terminated and considered as completed. The relevant part of the Indonesian court order signed by Mutarto S.H. the "Hakim Ketua Majelis" reads as follows:

"2.

Menetapkan bahwa pemeriksaan perkara perdata Nombor:

029/PDT.G/2008/PN.JKT.BAR. dihentikan dan dianggap selesai;"

Apparently the case was withdrawn by the defendant as it was filed in the wrong court. It was not caused by the plaintiff refusing

[K27-03-2005] to submit to the jurisdiction of the Indonesian court. Thereafter the defendant did not take further steps to take out an action against the plaintiff in an Indonesian court. The defendant only sprung into action after the plaintiff filed the present application (enclosure 104) for the release of the US$400,000.00 security sum on 15.5.2008 whereupon the defendant started to issue letters to the plaintiff's solicitors demanding for information with regard to its Indonesian court proceedings. By this time some 9 months had lapsed since the action in the Indonesian court was withdrawn.

Counsel for the plaintiff submitted that there is presently no action in a court in Indonesia against the plaintiff to claim ownership of the vessel and that therefore the US$400,000.00 ought to be returned to them. The defendant while admitting that they had filed the case in the wrong court in Indonesia is now putting the blame on the plaintiff for the mistake. It was asserted that the mistake was due to the plaintiff's deliberate act of changing its address in Indonesia to evade service. On their part the defendant through summons in chambers dated 18.7.2008 (enclosure 165) now demands that the plaintiff provide them with all information, including its most up to date address in Indonesia so that they can start a new suit against the plaintiff in Indonesia.

It is obvious that the defendant had slept on their rights. In Negara Properties Sdn Bhd v Akitek Bersekutu Malaysia (sued as a firm) & Ors [1995] 2 MLJ 185 Visu Sinnaduray J said at page 102:

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"However, it must be remembered that the rules of the court impose a duty on the plaintiff to get the machinery moving for the early disposal of the plaintiff's claim. Strictly speaking, the defendant is not burdened with a similar duty. If the defendant chooses not to take advantage of the rules which are in his favour he bears the consequences of his omissions."

The defendant's complaint that the filing of the case in the wrong court in Indonesia was caused by the plaintiff is baseless. Clearly it was their duty to make sure that the case was filed in the right court and not to blame anyone, least of all the plaintiff for the mistake. The defendant argued that the withdrawal or revocation of the case in Indonesia does not stop them from filing a fresh suit. With due respect to counsel he is missing the point. The question is not whether the defendant has the right to file a fresh suit in Indonesia. The question is why did they sleep on their rights for 9 months? The defendant would still be in deep slumber if not for the present application by the plaintiff. The defendant's failure to take out an action in Indonesia and their indolence had caused injustice to the plaintiff in that the plaintiff is deprived of the monies it had paid into court pursuant to the court order of 5.5.2006.

As for the defendant's application

to be provided

with all

information including the plaintiff's up to date address in Indonesia I do not think there is any basis for the application. It also lacks bona fide as it was obviously filed to counter the plaintiffs application for the return of the US$400,000.00. In any event the issue raised in the application is res judicata as the admiralty in

[K27-03-2005] rem action had been disposed of by the High Court and subsequently by the Court of Appeal.

This is also not the first time the defendant had applied to this court asking for reliefs after the disposal of the admiralty in rem action on 5.5.2006. They had by summons in chambers dated 22.5.2006 applied for various orders which prompted Ian Chin J to make the following remarks:

"As for the defendant's application for this court to review in total the judgment given by this court on 5 May 2006 against which they have filed an appeal to the Court of Appeal, again whatever the legal arguments, given the circumstances of this case and particularly given the appeal that is already pending in the Court of Appeal, this court should not venture into rehearing the matter and then varying all the conclusions that it had arrived and which the defendant is asking for. There will be no end to such application since the plaintiff may in the review again ask for a review."

The issues raised by the defendants in their summons in enclosure 165, namely prayer (a) (iii) - asking for an order that the plaintiff increase the security sum paid into court to US$1,750,000.00, prayer (b) - asking to set aside the 5.5.2006 order, and prayer (c) - asking that the security sum of US$400,000.00 paid by the plaintiff into court be released to them have all been ventilated before and decided by the High Court on 5.5.2006. The defendant is in fact asking this court to reverse its own decision in the earlier proceeding which has been affirmed by the Court of Appeal. It is obvious that the defendant is stretching the meaning of "liberty to

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apply" in paragraph (3) of the court order of 5.5.2006 too far. When a litigant is given liberty to apply it does not mean that he is at liberty to come back to court anytime he likes and apply for whatever order he likes. The liberty must be confined to consequential orders and pursuant to the order itself. It cannot be used, as the defendant is attempting to do, to re-agitate and relitigate issues which have been finally decided by the court. This is prohibited by the doctrine of res judicata.

For reasons stated above the plaintiff's application (enclosure 104) is allowed and the defendant's application (enclosure 165) is dismissed with costs.

SGD (DATO' ABDUL RAHMAN SEBLI)


Judicial Commissoner High Court Kota Kinabalu Sabah 2nd April 2009

Dated

For the Plaintiff

Ting Shu Kiong of Messrs Ng & Ting

For the Defendant

Chen Kok On of Messrs Peter Lo &Co