Arrest Of Vessels In Malaysia - No Duty Of Full And Frank Disclosure

• Published date: 29 September 2021
• Subject Matter: Transport, Marine/ Shipping
• Law Firm: SKRINE
• Author: Trishelea Ann Sandosam

The Malaysian Admiralty Court in Premium Vegetable Oils Sdn Bhd v The Owners and/or Demise Charterers of The Ship or Vessel 'Ever Concord' of The Port of Zanzibar, Tanzania [2021] 9 MLJ 936 has clarified a long debated question of whether a party wishing to procure a warrant of arrest against a vessel ("arresting party") in Malaysia has a duty to make full and frank disclosure in its affidavit leading to the warrant of arrest ("arrest affidavit"). The High Court held that there is no such requirement, and that the arresting party only has to comply with the relevant provision of the Malaysian Rules of Court 2012 ("ROC 2012").

The case concerned an application by the defendant for, amongst others, the warrant of arrest to be set aside and for the vessel to be released from arrest, together with damages. The defendant alleged that the plaintiff had failed to make full and frank disclosure in its arrest affidavit, where according to defendant the plaintiff had failed to disclose material facts and misrepresented and suppressed material facts in order to obtain the ex parte warrant of arrest from the court.

High Court's analysis

After a review of the authorities, the High Court found that the position in Malaysia is the same as that in England, where the issue of a warrant of arrest is a right¹ of the plaintiff, and not a discretionary remedy (applying the English Court of Appeal decision of The Varna [1993] 2 Lloyd's Rep 253).

The Learned Judicial Commissioner carefully reviewed the wording of the ROC 2012, which contemplates that a warrant of arrest is merely issued, upon certain criteria being met. This is in contrast with the ROC 2012's predecessor, the Rules of the High Court 1980 which provides that a party must apply for the issuance of a warrant of arrest.

The position in Singapore was also distinguished. There, the rules of court also provide that a party applies for a warrant of arrest. The High Court therefore held that cases such as The Vasiliy Golovnin [2008] 4 SLR 994 and The 'Eagle Prestige' [2010] 3 SLR 294 which imposed a requirement for full and frank disclosure are inapplicable in Malaysia, due to the differences in both sets of rules of court.

What needs to be in an arrest affidavit?

The High Court was of the view that the arresting party only has to satisfy the requirements under Order 70 rules 4(6) and 4(7) of the ROC 2012, which provide that an arrest affidavit must contain the following particulars²:

1. the name, address and occupation of...