Facts
Decision


Facts

On 3 January 2017, a collision occurred between two container vessels, one of which was "APL Denver" (the vessel) at Telok Kabong, Pasir Gudang, Johor. As a result of the collision, oil from the vessels spilled and caused sea pollution.

The plaintiffs' claim against defendant one as the owner of the vessel was for the loss of the plaintiffs' business and income due to the pollution.(1) Plaintiffs one and two were licensed mussel breeders with the fisheries department and plaintiff three was a caged-fish breeder who operated in the area affected by the aforementioned sea pollution.

Defendants two, three and four were later added as co-defendants, and the plaintiffs served them the amended writ and amended statement of claim at their last addresses in Germany. Defendants two, three and four did not enter the suit and so subsequently the plaintiffs obtained a judgment in default of appearance against defendants two, three and four. The court order was sent to Spica Services (M) Sdn Bhd (Spica), which the plaintiffs claimed was defendants two and three's correspondence address in Malaysia.

Defendants two and three applied to set aside the judgment in default of appearance against them on the following grounds:

  • The service of the amended writ and amended statement of claim on defendants two and three in Germany via courier was invalid as it did not comply with order 11 rule 5 of the Rules of Court 2012, which required the service to be in accordance with the laws of the particular foreign country (in this case, Germany).
  • The purported service of the amended writ and statement of claim on Spica was invalid as Spica was not the agent of defendants two and three.
  • Defendants two and three had meritorious defences against the plaintiffs' claims.

The plaintiffs contended that the judgment in default of appearance was proper on the following grounds:

  • Spica was the agent and representative of defendants two and three.
  • The service of the amended writ and amended statement of claim by way of courier was proper as this complied with order 11 rule 5 of the Rules of Court 2012 as well as German law.

Decision

The plaintiffs adduced documentary evidence to show that Spica had previously written to the plaintiffs' solicitors to explain that Spica represented the owner of the vessel and was managing the payments to the fishermen affected by the collision. The High Court found that, although the plaintiffs had not adduced any documentary evidence to show that Spica represented defendants two and three, the admission by Spica and the conduct of Spica in negotiating the plaintiffs' claims implied that Spica was an agent and representative of defendants two and three.

The Court went on to find that service of the amended writ and amended statement of claim via courier was in line with the German Code of Civil Procedure. Thus, there was no irregular service of the amended writ and amended statement of claim.

The Court held that there was no merit in the application of defendants two and three and dismissed it.

The trial against defendant one proceeded and the judge went on to dismiss the plaintiffs' claim against defendant one.

For further information on this topic please contact Rajasingam Gothandapani at Shearn Delamore & Co by telephone (+60 3 2027 2911) or email ([email protected]). The Shearn Delamore & Co website can be accessed at www.shearndelamore.com.

Endnotes

(1) Chew Chin Ping & Ors v APL-NOL (Malaysia) Sdn Bhd & Ors [2022] MLJU 1754.