The Number of Times a Writ in Rem May be Extended in Malaysia in Fimbank Plc v The Owners and/or Demise Charterers of The Ship or Vessel ‘Nika’ Now Known As ‘Bao Lai’ [2022] MLJU 1352 (High Court, Kuala Lumpur) per Azlan Sulaiman JC

What happens when you have a writ in rem in your hands, waiting for the offending ship to arrive in Malaysian waters, in order to serve the writ and arrest that ship, but that ship never arrives? How many times are you allowed to renew that writ in rem? Could the writ in rem survive forever, ie by repeated renewal? These were the questions facing Judicial Commissioner Azlan Sulaiman in The 'Bao Lai' case at the High Court of Kuala Lumpur.

A writ in rem is to be served on the ship, see Order 70, rule 7(1) of the Rules of Court. Service of this writ is only possible in Malaysian waters. Hence, a Claimant has to wait patiently until the offending vessel (or her sister ship) comes into Malaysian waters. When the writ in rem is first issued, it is valid for six months, see Order 6, rule 7(1). Note, this is period of validity is applicable to all writs, including writs in rem. On the facts of The 'Bao Lai' case, the writ in rem was filed on 17 May 2019. It was thus valid for this initial period until 16 November 2019. Therefore, the writ in rem had to be served on the offending ship before 16 November 2019. If the writ was served on the ship outside this period of validity, any subsequent judgment entered into was bad in law and could be set aside ex debitio justitiae.

Therefore, when the validity period of the writ in rem comes to an end, it has to be renewed in accordance with Order 6, rule 7(2). For Admiralty actions, a writ in rem may be extended 5 times. Order 6, rule 7(2A) mandates that the renewal must be made before the expiry of the writ in rem, by way of an ex parte notice of the application with a affidavit showing that efforts had been made to serve the defendant within one month from the date of issue of the writ, and more efforts were made subsequent to that.

Unfortunately for the Claimant, the writ in rem in The 'Bao Lai' case remains unserved. It has been renewed five times since it was first issued. The expiry period after the fifth renewal of the writ in rem was on 16 May 2022. The Claimant / Plaintiff has been diligently monitoring vessel movements through Lloyd's List Intelligence and/or Marine Traffic, but the ship has not been in Malaysian waters. Thus, there has not been a reasonable opportunity to effect service of the writ in rem.

Order 6, rule 7(2A) was introduced to prevent by Plaintiffs abusing procedure by filing writs and sleeping on the writ without making the effort to serve the writ, see Duli Yang Amat Mulia Tunku Ibrahim Ismail ibni Tunku lskandar Al-Haj Tunku Mahkota Johor v Datuk Captain Hamzah Bin Mohd Noor [2009] 4 MLJ 149 per Zaki Azmi CJ. In The 'Bao Lai' case, Judicial Commissioner Azlan Sulaiman commented that inactivity is something which the courts loathe as it was inconsistent with the administration of justice. His Lordship explained that it crated backlogs and resulted in a false number of pending cases.

The learned Judicial Commissioner held that any application for extension of a writ should be scrutinised very closely. The court must be satisfied that serious effort has been made to serve the writ. His Lordship said this meant details as to when, where and how attempts to service the writ must be furnished.

Judicial Commissioner Azlan Sulaiman noted that In many jurisdictions, the absence of a vessel from the waters was good grounds for extending a writ, see The Lircay [1997] 1 SLR(R) 699; Pan United Shipyard Pte Ltd v Ship 'Rodolfo Mata' [2004] FCA 117; The Chong Beng [1997] 3 HKC 579; The Berny [1979] QB 80. An extension numerous times on this ground was common in Commonwealth jurisdictions such as England, Singapore, Hong Kong and Australia.

His Lordship also acknowledged that there are also further reasons why injustice would be caused to the Plaintiff / Claimant:

[1] A fresh writ in rem could not be issued as the ownership of the vessel had since changed ownership three times. As a result, under a fresh writ, the claim could not proceed again Bao Yi Shipping Co Ltd in personam;

[2] The Plaintiff /Claimant was not at fault for non-service of the writ, and thus should not be deprived of substantive right by a procedural rule intended to punish abuse and lack of action;

[3] Deprivation of an innocent Plaintiff's substantive rights was surely not the intent of the five times extension limit under Order 7, rule 6(2);

[4] The Court had the power to extend the writ for a sixth time using its inherent powers under Order 1A and Order 3 rule 5(1), see National Union Bank of Employees v Director General of Trade Unions [2013] 6 MLJ 167.

[5] There are numerous examples of the Courts exercising its inherent powers, from Arab Malaysia Credit Bhd v Tan Seang Meng [1995] 1 MLJ 525 to Joseph Clement Louis Arokiasamy v Singapore Airlines Ltd [2020] 5 SLR 869.

In The 'Bao Lai' case, the Plaintiff / Claimant hoped that Judicial Commissioner Azlan Sulaiman would be inspired by judicial activism of Gopal Sri Ram JCA in Arab-Malaysian Credit Bhd v Tan Seang Meng [1995] 1 MLJ 525. In that case, the Court of Appeal led by Gopal Sri Ram JCA approved of the ingenious approach of the Plaintiff simultaneously filing eight separate applications, each for a twelve-month extension, which if allowed would collectively resuscitate and bring the writ back to life, even though the writ had expired years ago.

After considering all these authorities, Judicial Commissioner Azlan Sulaiman first acknowledged that nothing in the Rules limited the inherent powers of the court to make any order as may be necessary to prevent injustice. As much as His Lordship sympathised with the Plaintiff / Claimant, there are two reasons why this inherent power should not be exercised in this case:

[1] The inherent power should only be exercised where is a lacuna in the Rules, see Yomeishu Seizo Co. Ltd & Ors v Sinma Medical Products (M) Sdn Bhd [1996] 2 MLJ 334 per VC George. As there is no lacuna in this context, and the Rules specifically govern this point, there is no scope for the inherent jurisdiction to be exercised.

[2] The Rules via Order 6 rule 7(2) specifically, expressly and clearly provides that the writ in rem can only be extended 5 times. This has not always been the case. Before 21 September 2000, the equivalent of Order 6 rule 7(2) did not specify a limit for the renewals. Back then, a writ could technically be renewed over and over again, provided cogent reasons were provided for the renewal. However, since that fateful date, the Rules Committee headed by the Chief Justice, not only cut down the validity period of a writ from 12 months to 6 months, but also curtailed renewals to 5 times for writs in rem. This amended Order 6 rule 7(2) of the 1980 Rules has carried over into the Rules of Court 2012 which is currently in use today. Hence, under Malaysian procedural law, unlimited extensions such as that found in numerous Commonwealth jurisdictions, are no longer permitted. Renewals are therefore capped at five time for Admiralty actions. The express intentions of the Rules Committee cannot be overridden or circumvented, see Order 92 rule 4.

In conclusion, Judicial Commissioner Azlan Sulaiman commented that allowing the extension would create uncertainty, because if the writ subjected to the 6th extension was not served, the issue would arise as to whether the seventh extension should be given. Unfortunately, a line had to be drawn somewhere. His Lordship also gave this reminder: The Amended renewal cap has been put in place by the Rules Committee for over 20 years. If the Rules Committee had grounds to change, it would have been done so by putting the discretion for the number of renewals in the hands of the courts.

Thank you for reading IMSML Website Article 15/2022

Stay tuned for the next IMSML Website Article 16/2022:

Letter of Undertaking Deposited into Court to Constitute a Limitation Fund and Its Discharge and Cancellation in Rising Star Shipping Sdn Bhd & Anor v Pelabuhan Tanjung Pelepas Sdn Bhd & Ors [2022] MLJU 1299 (High Court, Kuala Lumpur) per Azlan Sulaiman JC

Signing-off for today,

Dr Irwin Ooi Ui Joo, LL.B(Hons.); LL.M (Cardiff); Ph.D (Cardiff); CMILT

Professor of Maritime and Transport Law

Head of the Centre for Advocacy and Dispute Resolution

Faculty of Law

Universiti Teknologi MARA Shah Alam

Selangor, Malaysia

26 October 2022

Note that I am the corresponding author for the IMSML Website Articles. My official email address is: uijoo310@uitm.edu.my