Mcp International Corp v Sims Metal Bv (BA-22NCvC-57-02/2023)

REX NEW MATERIALS SDN BHD (No. Pendaftaran: 202001011031 (1367351-X) PLAINTIF-PLAINTIF DAN SIMS METAL BV (No. Pendaftaran Jerman: 0834932151) DEFENDAN DAN MAERSK A/S (No. Pendaftaran Denmark: 32345794) PENCELAH GROUNDS OF JUDGMENT Introduction [1] The Plaintiffs filed this action and moved the Court for urgent ex-parte orders on 10-2-2023 to freeze, detain and preserve as well as take samples from certain cargo entering into Malaysia container ship operated by Maersk A/S ( ). The ex-parte orders were granted on 16-2-2023 ( - ). [2] The cargo in question included 23 containers under Maersk Bills of Lading Nos. MAEU223194170 and MAEU222894685 ( Disputed B/Ls ). The 23 containers which were the subject of the Ex-Parte Order ( ) were said to be assets belonging to the Defendant. 12/12/2024 11:15:45 BA-22NCvC-57-02/2023 Kand. 86 S/N vpnvFf8ji0urSIjqVfT6wA [3] Maersk applied to intervene in this action on 4-4-2023 and the Order was granted on 19-9-2023. It also applied vide the same application in Enclosure 29 for various other orders which were not all pursued at the time. [4] Vide Enclosure 48 filed on 3-10-2023, Maersk now seeks to set aside the Ex-Parte Order and claim RM384,878.38 as damages from the Plaintiffs as a result of its compliance with the Ex-Parte Order. Background Facts [5] The application for the Ex Parte Order was filed in aid of the Plaintiffs suit against the Defendant for breach of a sales contract under which the Defendant was to have supplied 350 metric tonnes of zinc-aluminium alloy scrap for USD623,000.00 to the 1st Plaintiff. The 1st Plaintiff was the 2nd [6] The allegation is that the Defendant had shipped scrap metal and not the goods purchased by the Plaintiffs. It suffices for the purpose of this application, to note that the Plaintiffs considered the Defendant a fraudster. In support of their application for the Ex-Parte Order, the Plaintiffs alleged that the Defendant had a modus operandi of shipping cargo and changing the consignee when the containers are in transit to deceive genuine buyers. [7] No one has been able to contact the Defendant and it has not appeared in this action. On that basis, the Plaintiffs pleaded that they had a good case to recover damages from the Defendant and because the Defendant is a Belgium entity with no other assets in the jurisdiction, there S/N vpnvFf8ji0urSIjqVfT6wA was a risk that the cargo identified in the Ex-Parte Order would leave the [8] The Plaintiffs were granted the Ex-Parte Order in the following terms: S/N vpnvFf8ji0urSIjqVfT6wA [9] No inter-partes hearing was ever held and the Ex-Parte Order lapsed after 21 days, i.e. on 9-3-2023. In the meantime, Maersk was served and notified of the Ex-Parte Order on 20-2-2023 with the following cautionary remarks about the need to comply with the Order: There is no response on record in reply to the query from Maersk s local solicitors in response to that letter, inquiring about the inter-partes hearing. S/N vpnvFf8ji0urSIjqVfT6wA Analysis and Findings [10] As an intervener, Maersk filed the present application in Enclosure 48 to set aside the Ex-Parte Order and claim damages. The issues that arose for determination under Enclosure 48 are as follows: Setting Aside an Expired Ex-Parte Order a) Whether the Ex-Parte Order that had lapsed without prior challenge, is liable to be set aside by Maersk Grounds for Setting Aside the Ex-Parte Order b) Whether the Mareva injunction in the Ex-Parte Order should be set aside because it purported to freeze assets that do not belong to the Defendant; c) Whether the Mareva injunction in the Ex-Parte Order should be set aside because the containers under Shipment Nos: 224161401, 224275340 and 223785243 were not within the jurisdiction of this Court ( Overseas Cargo ); d) Whether the other prayers for detention, preservation and sampling of the cargo identified in the Ex-Parte Order should be set aside because they are not the subject matter of the underlying action; and Assessment of Damages e) Whether Maersk is entitled to recovery of storage charges, inspection/survey costs to ascertain the contents of the Detained Cargo and legal fees incurred from 16-2-2023 to 3-5-2023. S/N vpnvFf8ji0urSIjqVfT6wA Setting Aside an Expired Ex-Parte Order [11] The Plaintiffs argued that Maersk is not entitled to apply to set aside the Ex-Parte Order to claim damages at all, because the said order had lapsed automatically on 9-3-2023 without any prior challenge. discharge the Ex-Parte Order before it lapsed meant that it had accepted the validity of the Ex-Parte Order. [12] The Plaintiffs relied on Elias bi Abidin bin Johari [1997] 5 MLJ 359 ( Elias bin Mooin ). In that case, the defendant claimed that since the ex parte injunction had lapsed and an application to extend it had been refused, they were entitled to damages . The argument failed because the Court held that since the ex parte injunction was not sooner revoked or set aside before it lapsed, the Defendant must have accepted that this ex-parte interim injunction was properly taken out. [13] A similar issue was addressed by the Court of Appeal in Middy Industries Sdn Bhd & Ors v Arensi-Marley (M) Sdn Bhd [2013] 3 MLJ 511 ( ). There, the High Court had struck out a notice of appointment to assess damages because (a) a discharge of the ex-parte injunction and (b) a consequential order of the Court that damages be assessed, are both preconditions for any assessment of damages on . The Court of Appeal agreed: discretion whether to enforce it at all and that discretion is not limited in any way. The undertaking is given to the court and not S/N vpnvFf8ji0urSIjqVfT6wA to the respondent. The respondent can ask the court to enforce it but has no right to its enforcement or any right to damages until the discretion is exercised in his favour and damages are awarded by the court (see Cheltenham and Gloucester Building Society v Ricketts and others [1993] 4 [14] The Court of Appeal in Middy Industries also agreed with RIH Services (M) Sdn Bhd v Tanjung Tuan Hotel Sdn Bhd [2002] 3 CLJ 83 which held as follows: defendant is at liberty to file an application for that purpose. It is at the hearing of that application that the court should decide whether to set it aside, if it has not lapsed. If in the meantime, the ex parte order has lapsed, the court should nonetheless hear the application, not for the purpose of determining whether to set it aside because it has lapsed, but for the purpose of determining whether it should have been made in the first place. This is necessary in order to determine whether damages should be awarded. The fact that an ex parte order lapses automatically after 21 days does not mean that the defendant is automatically entitled to damages. The question is should the ex parte order have been made at all? Only if it should not, then the order for assessment of damages should be made. That has not been It was thus held in Middy Industries that an application to set aside an ex parte interim injunction can still be entertained even after it has lapsed. S/N vpnvFf8ji0urSIjqVfT6wA [15] This Court takes the view that neither Elias bin Mooin nor Middy Industries are an authority for the proposition that an application to set aside an ex-parte interim injunction made after it lapses is automatically non-viable. In both of those cases, no such application was filed at all. [16] An inordinate delay in applying may be relevant in the exercise order an assessment of damages, but I agree with counsel for Maersk that there is no reason in principle why an application to set aside an ex-parte interim injunction cannot be made after the order has lapsed. [17] After all, the purpose of such an application is to determine if the ex-parte interim injunction should have been granted at all. Further, a party served with notice of such an order arrives on the scene at a significant disadvantage. He should not be deemed to have accepted that the ex-parte interim injunction was properly taken out by reason only of a delayed reaction. [18] It should also be noted that both Elias bin Mooin and Middy Industries concerned claims for damage based on the undertaking given in the usual manner by the plaintiffs for any damage suffered by the defendants. The position of an innocent third party cannot be equated with that of the defendant. As it relates to a third party, there may be additional impediments beyond its control. For example, the Order allowing Maersk to intervene was only made on 19-9-2023, even though the application to intervene was filed on 4-4-2023. S/N vpnvFf8ji0urSIjqVfT6wA [19] Although this is not a point contested by the Plaintiffs, it is instructive to highlight the legal basis for a claim by a third party affected by an ex-parte interim injunction, which is the context of this case. In Searose Ltd v Seatrain (UK) Ltd [1981] 1 All ER 806 ( ), Goff J granted a Mareva injunction. However, he did so only upon the condition that an express undertaking is given to pay reasonable costs to that third party bank who will be put to expense to undertake the exercise of identifying the assets to be frozen because the injunction sought did not specify whether or not any assets to which the order applied were in the possession or control of the third party bank. [20] The reason for the imposition of the requirement for an express undertaking to the third party was explained. Third parties are required to support Thus, they should be indemnified if they are put to expense for doing just that. See also Clipper Maritime Co Ltd v Mineralimportexport The Maxie Leonhardt [1981] 3 All ER 664 relating to port authorities affected by Mareva injunctions. [21] Unlike Searose and other cases from that era, there is no express undertaking in the Ex-Parte Order or in the affidavit by the Plaintiffs to pay damages to Maersk as the third party affected by notice of the Ex-Parte Order. However, the law has developed further and it is now recognized that there should be an implied promise or undertaking by the plaintiff directed to and enforceable by the third party as the circumstances require. Per Lord Denning M.R. in Z Ltd v A-Z and AA-LL [1982] Q.B. 558: S/N vpnvFf8ji0urSIjqVfT6wA In so far as the bank, or other innocent third party, is asked to take any action - or the circumstances require him to take any action - and he is put to expense on that account, he is entitled to be recouped by the plaintiff: and in so far as he is exposed to any liability, he is entitled to be indemnified by the plaintiff. This is because when the plaintiff gives notice of the injunction to the bank or innocent third party, he impliedly requests them to freeze the account or otherwise do whatever is necessary or reasonable to secure the observance of the injunction. This implied request gives rise to an implied promise to recoup any [22] Based on the above, a third party may intervene to set aside or vary the injunction, or just to seek the enforcement of an express or implied undertaking by the plaintiff to indemnify it for doing what an injunction impliedly required of it. Distinguishing the nature of the undertaking applicable to third parties, it would seem that all of these options are available to third parties depending on the circumstances, even if there is no application or order made to vary or discharge the ex parte injunction. [23] In this case, Maersk was served with the Ex-Parte Order on 20- 2-2023 and based on the timelines provided, had already discharged the cargo in Port Klang on 2-2-2023. It presumably undertook inquiries into the claims of fraud and ownership of the cargo identified in the Ex-Parte Order and applied to intervene on 4-4-2023 with an affidavit that raised the complaints concerning the validity of the Ex-Parte Order, not knowing that it had lapsed on 9-3-2023. S/N vpnvFf8ji0urSIjqVfT6wA [24] The period that elapsed between 20-2-2023 and when Maersk first formally expressed its objection to the Ex-Parte Order on 4-4-2023 is According to Maersk, it only became aware through its solicitors on 6-4-2023 that the Ex-Parte Order had lapsed. No evidence contradicts this assertion. [25] Though it was submitted that Maersk could have discovered the status of the Ex-Parte Order as soon as local solicitors were on board, this Court is of the view that it lies ill in the mouth of the Plaintiffs to make this argument as the Plaintiffs were no doubt very interested to find out if the contents of the cargo were of value. [26] Thus, this Court finds that Enclosure 48 is properly before the Court for consideration. The fact that the Ex-Parte Order had lapsed before it was filed should only go to the question of quantification of any recoverable damages.

Ownership of the Detained Cargo [27] To obtain the Mareva injunction in paragraph (1) of the Ex-Parte Order, the Plaintiffs must have satisfied the Court firstly that it had a good arguable case; secondly that the Defendant had assets within the jurisdiction and thirdly, that there was a real risk of the assets being dissipated or removed before judgment. S/N vpnvFf8ji0urSIjqVfT6wA [28] The thrust Ex-Parte Order is that the elements to be proved by the Plaintiffs for such an order to be granted were not met by the Plaintiffs, in that the Detained Cargo were not assets belonging to the Defendant. [29] During the ex-parte hearing for the Ex-Parte Order, the Plaintiffs had based their assertion that the Detained Cargo belonged to the Defendant on the fact that t appears on the Disputed B/Ls as the shipper/seller. [30] In response to the challenge made by Maersk, the Plaintiffs further sought to confirm its presumption by the fact that no one else has come forward to claim ownership with the original Disputed B/Ls and relied on section 25 of the Sale of Goods Act 1957 ( ) which provides that: ) Where there is a contract for the sale of specific goods or where goods are subsequently appropriated to the contract the seller may by the terms of the contract or appropriation reserve the right of disposal of the goods until certain conditions are fulfilled. In such case, notwithstanding the delivery of the goods to the buyer or to a carrier or other bailee for the purpose of transmission to the buyer, the property in the goods does not pass to the buyer until the conditions imposed by the seller are fulfilled.

Where goods are shipped and by the bill of lading the goods are deliverable to the order of the seller or his agent, the S/N vpnvFf8ji0urSIjqVfT6wA [31] The effect of the above provision was explained in Pemunya dari Pelabuhan Jakarta Indonesia and other actions [2011] 7 MLJ 145 ( Istana VI . In that case, the issue arose is whether the plaintiff buyer of cargo on the vessel had locus standi to sue the ship owner for tort and other causes resulting from the loss of cargo which had been discharged elsewhere than intended. [32] In Istana VI, the shipper, KPB, retained a right of disposal by consignee. The issue of locus standi turned on whether property had passed to the plaintiff buyer if the bill of lading was made to the order of the shipper. The Court found that section 25(2) of SOGA raised a rebuttable presumption that the passing of property is precluded by the of the shipper, ie KPB. As such in accordance with s 25(2), it would appear that the seller, ie KPB has prima facie, reserved the right of disposal thereby precluding the passing of property from itself to the buyer plaintiff. [33] The above is relevant because the Plaintiffs contended that the Disputed B/Ls in this case were also made to the order of the Defendant as shipper and the Defendant had reserved the right of disposal, thereby precluding the passing of property from itself to any other party. S/N vpnvFf8ji0urSIjqVfT6wA [34] On reviewing the Disputed B/Ls in this case, this Court has noted that they were specifically consigned to named consignees and it is not apparent that the Disputed B/Ls were made to the order of the Defendant or that the Defendant reserved the right of disposal. The consignees for the Disputed B/Ls (referred to as Shipment Nos: 223194170 and 222894685 in the Ex-Parte Order) were identified as Rainbow Metal Recycle Sdn Bhd ( ) and LLS International Trading Sdn Bhd ( ). [35] Based on evidence produced through inquiries made by Maersk:

The initial consignees for 5 of the 23 containers were Taizhou Mingyi Metal Co Ltd ( ) who had notified Maersk on 1-2-2023 that there was fraud in relation to 7 containers shipped by the Defendant, the Defendant could not be reached and that the shipments had been re-routed to Port Klang, Malaysia;

A police report was later lodged by LLS International on 15- 3-2023 to say that they were unable to contact the agent to clear customs. The report was lodged as a precaution in case of claims by Maersk against it for port charges; and

Rainbow Metal refused to take delivery of the containers consigned to it. [36] Maersk took the position that Taizhou and LLS International were therefore asserting ownership rights of the 5 and 13 containers respectively, from among the Detained Cargo. More generally, Maersk S/N vpnvFf8ji0urSIjqVfT6wA took the position that it was unable to ascertain the lawful owner of the Detained Cargo. [37] Maersk came to know later (it is not stated when) that both Rainbow Metal and LLS International were not claiming ownership over the Detained Cargo. However, it is not clear if they never had ownership rights or if they had simply abandoned the Detained Cargo. [38] As it became apparent later on, the Detained Cargo turned out to be more trouble than they were worth and no one wanted to be saddled with it. In particular, even the Plaintiffs who had moved the Court for a Mareva injunction was not interested in the Detained Cargo. [39] Considering all this, was the cargo identified in the Ex-Parte Order assets of the Defendant? [40] Based on first principles, a bill of lading is a symbol of the goods represented by it, and evidences possession, not property. Where the bill of lading is transferred to the buyer, the property passes, strictly speaking, by the contract and not by the transfer of the bill. This accords with section 19 of SOGA:

Where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.

For the purpose of ascertaining the intention of the parties regard shall be had to the terms of the contract, the conduct of the parties and the circumstances of the case. S/N vpnvFf8ji0urSIjqVfT6wA

Unless a different intention appears the rules contained in sections 20 to 24 are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer [41] Further, in Sewell v Burdick (1884) 10 App.Cas. 74, the House of Lords held that: the custom of merchants the indorsement and delivery of the bill of lading is equivalent to the taking possession of the goods; but the property in the goods does not pass unless it is intended by the contract that it shall pass. There is no direct decision that the mere indorsement of a bill of lading passes the whole property in the goods when it is not so intended; and there are decisions inconsistent with such a proposition [42] Thus, without the sale contracts or any endorsement on the Disputed B/Ls that they were made to the order of the Defendant to raise a presumption of reservation of title/ right of disposal according to section 25(2) of SOGA on the Disputed B/Ls, it is fair to say that ownership of the cargo identified in the Ex-Parte Order was disputable on the face of the documents when the Ex-Parte Order was sought. [43] All that being said, the real question to be asked is to what standard the Plaintiffs were required to prove the Defend of the Detained Cargo as one of the elements of its application for the Mareva injunction at the ex-parte hearing. Even if it was subsequently S/N vpnvFf8ji0urSIjqVfT6wA ascertained that the Defendant did not own the Detained Cargo, this does not necessarily mean that the Ex-Parte Order was wrongly granted. [44] The grant of the Ex-Parte Order was an exercise of discretion by the Judge hearing the matter and who would have at the forefront of his mind, whether justice requires the urgent ex-parte interim injunction to be granted. The discretion is not unfettered and as noted in Metrowangsa Asset Management Sdn Bhd & Anor v Ahmad B Hj Hassan & Ors [2005] 1 MLJ 654: A Mareva injunction would be refused if there is no evidence that the particular defendant possesses any removable assets within the jurisdiction (Rasu Maritama SA v Perushaan Pertambangan Minyak Dan Gas Bumi Negara (Pertamina) [1978] QB 644; [1977] 3 All ER 324 CA). An injunction too will be refused if the value of the assets is nominal and their ownership is in question (Rasu Maritama SA v Perushaan Pertambangan Minyak Dan Gas Bumi Negara (Pertamina) [45] Relying on Creative Furnishing Sdn Bhd v Wong Koi [1989] 2 MLJ 153 ( ), Maersk submitted that in this case, the Court was misled by the submission that the cargo identified in the Ex-Parte Order were assets belonging to the Defendant. The Plaintiffs represented ownership of the cargo as a fact and to the extent that it was ventilated, reference to the bills of lading was an The Court held as follows in Creative Furnishing: S/N vpnvFf8ji0urSIjqVfT6wA Further, in presenting affidavit evidence to establish the necessary ingredients for an ex-parte order for a Mareva injunction, it is incumbent on the applicant to make frank and full disclosure of all material facts. Every material representation must not be misleading, and there must not be any suppression of material facts. Failure to do so at the crucial time of making [46] On a review of the facts, evidence and law on the matter, this Court agrees that the Plaintiffs did overstate its case for a Mareva injunction. The Plaintiffs presumed the fact of ownership of all the cargo identified in the Ex-without drawing the . [47] In so doing, the Plaintiffs failed to make full and frank disclosure to the Court that bills of lading were inconclusive and there may be multiple ownership claims to the cargo in question. experience with the Defendant under the contracts in dispute in this action did not prove the modus operandi of the Defendant of pretending to ship cargo with no intention to transfer property in it to defraud buyers. [48] For the above reasons, this Court finds that the Mareva injunction in the Ex-Parte Order was wrongly granted on the premise of a S/N vpnvFf8ji0urSIjqVfT6wA

Cargo Located Outside the Jurisdiction [49] Based on the evidence produced in support of the Ex-Parte Order, the Overseas Cargo under Shipment Nos. 224161401, 224275340 and 223785243 were being shipped from Antwerp to Ningbo, China. According to Maersk, these containers had been sent back to the port of origin in Antwerp, Belgium. [50] This point did not appear to be disputed by the Plaintiffs. In other words, it was asserted that the Overseas Cargo under these 3 shipments were assets of the Defendant in the jurisdiction of the Court when this was clearly not the case. Based on this, the Mareva injunction in the Ex-Parte Order should not have been granted in respect of those containers.

Cargo Not the Subject Matter of Litigation [51] It was a further substantive objection by Maersk to the Ex-Parte Order that as per paragraphs (2) and (3) of the Ex-Parte Order, the Plaintiffs had sought and obtained the orders to detain, preserve and take samples from all the 32 containers listed in the Ex-Parte Order. They were granted pursuant to the following provisions in Order 29 of the Rules of

Detention, preservation of subject matter of cause or matter (O. 29 r. 2)

On the application of any party to a cause or matter, the Court may make an order for the detention, custody or preservation of any property which is the subject matter of the cause or matter, or as to which any question may arise therein, or for the inspection of any such property in the possession of a party to the cause or matter. S/N vpnvFf8ji0urSIjqVfT6wA

Power to order samples to be taken (O. 29 r. 3)

Where the Court considers it necessary or expedient for the purpose of obtaining full information or evidence in any cause or matter, the Court may, on the application of a party to the cause or matter, and on such terms, if any, as it thinks just, by order authorize or require-

any sample to be taken of any property which is the subject matter of the cause or matter or as to which any question may arise therein; [52] This point was also not seriously contested by the Plaintiffs. It appeared to be common ground that the Detained Cargo were not, in fact, the subject matter of the action against the Defendant. is for breach of sale contracts relating to cargo in 10 containers shipped on the same vessel under CMA CGM Bill of Lading No. HBG1708173E and CMA CGM Waybill No. HBG1708173D on 22-12-2022 from Hamburg to Port Klang. [53] Thus, the cargo identified in the Ex-Parte Order was unrelated to the sale contracts under dispute in this action. They were simply assets sought by the Plaintiffs to be secured to satisfy a prospective judgment in this action, by preventing them from being removed from the jurisdiction. As such, there was no proper basis to invoke Order 29 Rules 2 and 3 of the Rules of Court 2012 to obtain paragraphs (2) and (3) of the Ex-Parte Order. S/N vpnvFf8ji0urSIjqVfT6wA [54] In the final analysis, this Court finds that the Ex-Parte Order should not have been granted in the first place. [55] underscore the standards to be met when moving the Court for ex-parte interim injunctions, especially when third party rights may be adversely affected. [56] This Court adopts the views expressed in Galaxia Maritime SA v Mineral Importexport; The Eleftherios [1982] 1 All ER 796 ( Galaxia ). The Court of Appeal discharged a Mareva injunction which restrained a cargo of coal loaded on a vessel belonging to another shipowner which was [57] In Galaxia Maritime, the Court of Appeal held that the rights of the mere proffering of an indemnity in whatever form does not displace that balance. [58] For all of the above reasons, the Ex-Parte Order is set aside and an order for assessment of damages suffered by Maersk by reason of the Ex-Parte Order is allowed. S/N vpnvFf8ji0urSIjqVfT6wA Assessment of Damages [59] According to Maersk, the Ex-Parte Order interfered with ut for the Ex-Parte Order, Maersk contended that it would have exercised its rights as a carrier to deal with the Detained Cargo, including to return them or otherwise dispose of them. Instead, Maersk claims to have suffered damages in the sum of RM384,878.38 comprising the following components:

RM113,160.00 charged by Northport being daily storage/detention costs for the 23 containers detained from 16-2-2023 until 3-5-2023

RM261,302.38 being legal costs incurred for advice and assistance that Maersk required upon being served with the

RM10,416.00 being the survey fees to Links Survey (M) Sdn Bhd incurred in respect of the Ex-Parte Order and Consent Order. [60] In response, the Plaintiffs submitted that there is no direct causal link between the Ex-Parte Order and the damages claimed since the Ex-Parte Order lapsed on 9-3-2023. I deal with each of the heads of loss below. Survey of the Detained Cargo [61] Maersk had on 4-4-2023 filed Enclosure 29 with various prayers and on 6-4-2023, the Plaintiffs consented to prayer 6 in these terms ( : S/N vpnvFf8ji0urSIjqVfT6wA [62] The survey which was the subject of the Consent Order was carried out and completed on 27-4-2023 and 3-5-2023 ( ). As the parties had agreed that would form part of the costs of Enclosure 29, I disallow the claim for RM10,416.00 as damages. [63] Based on the terms of the Consent Order, the intention of the parties appears to be that all costs associated with the Survey would constitute an out-of-pocket disbursement recoverable as part of the costs of Enclosure 29. [64] Costs of Enclosure 29 was eventually decided on 19-9-2023 as costs in the cause. Storage Charges [65] I allow this claim from 20-2-2023 to 6-4-2023. [66] There is no basis for the claim for storage charges between 16- 2-2023 and 20-2-2023 because the Detained Cargo was already discharged on 2-2-2023 at the port quite independently of the Ex-Parte S/N vpnvFf8ji0urSIjqVfT6wA Order. The period terminates on 6-4-2023 because Maersk was at that point, entirely at liberty to disregard the Ex-Parte Order. [67] More importantly, I disallow storage charges for the Detained Cargo for the period between 6-4-2023 and 3-5-2023 because these charges were necessitated by the Consent Order, and not the Ex-Parte Order. sufficiently connected to the costs of the Survey to be regarded as part of the contemplated out-of-pocket disbursements associated with the Survey. Legal Fees [68] I disallow the claim for legal fees as damages based on Golden Star & Ors v Ling Peek Hoe & Anor and Anorther Appeal [2024] 6 CLJ 487 where the Federal Court has drawn a clear distinction between costs recoverable in litigation and damages: [25] There is in place in our system of civil justice a fairly elaborate costs regime. [26] The term "costs" is not defined in Act 91 but it is defined in the Rules of Court 2012. Order 59 r. 1 defines "costs" "includes fees, charges, disbursements, expenses and remuneration". From the evidence led before the High Court, it is apparent that the respondents were claiming as special damages, fees, charges, disbursements, expenses and remuneration as well as the refresher and retainer fees that they had to pay their lawyers in maintaining the action against the appellants. We are in no doubt that these claims fall well within the terms of the costs S/N vpnvFf8ji0urSIjqVfT6wA order of 28 November 2012 and it was not open to the respondents to ignore that order. These claims were also claimable as costs in O. 59, and were thus not claimable as damages. [69] Based on a review of the bills of Messrs Joseph & Partners this Court finds that charges were incurred almost exclusively in connection with this litigation. The work commenced on 24-2- solicitors, reviewing and drawing up court papers and attending these court proceedings and generally, advice and getting up for the filing of an application to set aside the Ex-Parte Order. There is no doubt that they fall within the meaning of costs and are only recoverable as such in these legal proceedings. Costs in the Proceedings [70] I award the costs of Enclosure 48 to Maersk on an indemnity basis based on the rationale in Project Development Co Ltd SA v KMK Securities Ltd [1983] 1 All ER 465 i.e.: since innocent third parties are entitled to expenses against plaintiffs incurred as a result of complying with Mareva injunctions, it followed that the intervener should be indemnified for the expenses it had incurred in successfully applying to vary the order by permitting the intervener to recover all the costs in established as being reasonable; that, accordingly, an order accordance with R.S.C., Ord. 62 r. 29 on a solicitor and own client basis but with a direction that, notwithstanding the terms of S/N vpnvFf8ji0urSIjqVfT6wA rule 29(1), it was for the intervener to establish that the costs had [71]