SHIPPING LAW – SHIP ARREST – MORTGAGE – ACTION IN REM – SERVICE WITHIN MALAYSIA

Q: Can I file a Writ In Rem in Kuala Lumpur and have the ship arrested in Kota Kinabalu?

A: Yes. This is because Section 7(2) of the Courts Judicature Act 1964 (“CJA 1964”) allows any writ and warrant issued within the High Court Malaya be executed or served anywhere in Malaysia. This would include Sabah and Sarawak.

Cases In Point: Re Aro Co Ltd [1980] 1 All ER 1067 (EWCA); The Monica S [1967] 2 Lloyd’s Rep 113; ‘The Fierbinti’ [1994] 3 SLR 864 and Nassau Maritime Holdings Designated Activity Co v The Owners of the Ship or Vessel ‘Cape Lambert’ [2020] 11 MLJ 561

Q: What is a Writ In Rem?

A: A Writ In Rem is a legal document that invoke the admiralty jurisdiction of the High Court against “the thing” or “res” in dispute. The thing or res is usually a ship. A Writ In Rem can be distinguished from a normal writ which is issued against a person or body of person. This is also known as a Writ In Personam. A Writ in Rem may be issued even when the res is outside the territorial jurisdiction of the court. It can then be served when the res eventually comes within the court’s territorial jurisdiction.

 

Q: How can I invoke the admiralty jurisdiction of the High Court?

A: Admiralty jurisdiction of the High Court may be invoked if the criteria set out in Sections 20 and 21 of the UK Seniors Court Act 1981 (“SCA 1981”) are fulfilled.

Q: My company has failed to pay the loans of the bank in respect of a ship mortgaged to the bank. Can the bank arrest the ship of my company?

A: Yes. Mortgage or charge on a ship falls within the category in Section 20(2)(c) of the SCA 1981. Admiralty jurisdiction of the High Court may be invoked.

Q: What if my company has sold the ship to a new buyer. Can the bank still pursue the claim against the res i.e. the ship?

A: Yes. Mortgage claim falls within the category where an action in rem may be brought against the res in connection with the mortgage. Unlike in a situation of cargo damage claim (which is explained in our previous legal update), the bank does not have to show the owner is liable in personam to pay the loan. Hence, even if the owner of the vessel has changed, an action in rem can still be brought against the res i.e. the ship.

Recent Post

INDUSTRIAL LAW – NAVIGATING THE LEGALITIES OF RETRENCHMENT

The dismissal of X by Company ABC, citing economic downturns, presents a compelling case on the complexities of employment termination and retrenchment legality. X contested his redundancy, claiming his role in property management and services was unaffected by the property development market’s challenges. This case probes into the legitimacy of retrenchment under economic duress and the employer’s duty to act in good faith, as guided by Section 20(3) of the Industrial Relations Act 1967. The burden rests on Company ABC to prove the necessity and genuineness of X’s redundancy, with failure to do so possibly leading to a verdict of unjustified termination. This scenario underscores the critical importance of evidence and intention in retrenchment cases, as reflected in precedents like Akilan a/l Subramanian v. Prima Awam (M) Sdn Bhd.

Read More »

PROPERTY LAW – LEGAL IMPLICATIONS OF SALE AND PURCHASE AGREEMENT BREACHES AND THE RIGHT TO OFFSET IN MALAYSIAN PROPERTY TRANSACTIONS

In the realm of Malaysian property transactions, the intricacies of Sale and Purchase Agreements (SPAs) and the enforcement of Liquidated Ascertained Damages (LAD) play pivotal roles in safeguarding the interests of both developers and purchasers. This article delves into the legal framework governing the rights and obligations of parties involved in property transactions, particularly focusing on the consequences of contractual breaches and the conditions under which a purchaser can exercise the right to offset against LAD. Through the examination of relevant case law and statutory provisions, we illuminate the legal pathways available for resolving disputes arising from the failure to adhere to the terms of SPAs, thereby offering insights into the equitable administration of justice in the context of Malaysian property law.

Read More »

WINDING-UP – OFFICIAL RECEIVER AND LIQUIDATOR (“ORL”)

In cases of compulsory winding up, the court would appoint a liquidator under s.478 of the Companies Act 2016 (“CA 2016”) to expeditiously recover and realise the assets of the wound-up company for the distribution of dividends to creditors and administer any outstanding matters involving………..

Read More »

JUDICIAL REVIEW – PROCEDURAL FAIRNESS AND LOCUS STANDI

This excerpt illuminates the foundational principles of judicial review as outlined in Order 53 of the Rules of Court 2012. It highlights the criteria for challenging public decisions on grounds of illegality, irrationality, or procedural impropriety. Central to the discussion is the question of timing in judicial review applications, particularly in cases of procedural unfairness. The practical scenario underscores the significance of a “decision” by the relevant authority as a prerequisite for locus standi, drawing insights from the case of Hisham bin Halim v Maya bt Ahmad Fuad & Ors [2023] 12 MLJ 714.

Read More »

CONTRACT LAW – CONTRACTUAL INTERPRETATION REMEDIES UNVEILED: DECIPHERING CONTRACTUAL CLAUSES AND LEGAL BALANCE

This legal updates explore the principles governing the interpretation of agreements, emphasizing the importance of clarity and unambiguity in contractual terms. It delves into a key issue involving restrictions on remedies for breach of contract, shedding light on the court’s commitment to upholding plain meanings. The illustrative scenario involving shareholders X and Y dissects a pertinent clause, showcasing the delicate balance between restricting remedies and ensuring fairness in legal proceedings.

Read More »
en_USEnglish
× How can I help you?