Muliar Oleg v Pemunya Dan/Atau Pihak-Pihak yang Mempunyai Milikan atau Kawalan Terhadap Kapal Oriental Dragon DI Pelabuhan Penama (WA-27NCC-11-02/2021)

MULIAR OLEG (Passport No. FE005524) (suing as Master of the Ship "ORIENTAL DRAGON" (IMO No. 7125861))

LI XUEYONG (Passport No.: EB9286099) and 193 other crew members as listed in Annex "A" to the Writ (suing as crew of the Ship "ORIENTAL DRAGON" (IMO No. 7125861)) ... PLAINTIFFS The Owners and/or persons in possession or control of the Ship "ORIENTAL DRAGON" (IMO No. 7125861) of the Port of Panama ... DEFENDANT

BRIT UW LIMITED (UK Company No.: 03217775) (suing as the sole corporate capital provider for Lloyd's Syndicate 2987 for the 2019 year of account)

LAVENHAM UNDERWRITING LIMITED (UK Company No.: 04512130) (suing as corporate capital provider on its own behalf and on behalf of the other corporate capital providers for Lloyd's Syndicate 2468 for the 2019 year of account)

ASIA CAPITAL COMMODITIES TRADE SDN BHD (Company No.: 1343080-H)

PENANG PORT SDN BHD (Company No.: 199301028806 (283544-D)) ... INTERVENERS (Heard Together With) IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA (COMMERCIAL DIVISION) ADMIRALTY ACTION IN REM NO.: WA-27NCC-21-04/2021 Admiralty in rem action against: the ship "ORIENTAL DRAGON" (IMO No. 7125861) of the Port of Panama

CHAN YOKE PENG (NRIC No.: 680403-04-5302) (Malaysia Passport No. A41372901)

BAO HAONAN (PRC Passport No. EE6743531)

DING XINWU (PRC Passport No. EC3322116)

DONG XUEMENG (PRC Passport No. EH0454807)

GONG LIN (PRC Passport No. EH8997375)

HUANG GUOFU (PRC Passport No. E31768170)

JIA QINLIN (PRC Passport No. EC3555767)

LI MENGYAO (PRC Passport No. E95807530)

LIU DONGXUE (PRC Passport No. EC6091671)

LIU YUE (PRC Passport No. EH2719464)

MA NING (PRC Passport No. EG2018122)

NIU MINGJIAO (PRC Passport No. EH0456580)

SU XIAOLONG (PRC Passport No. ED4448421)

SUN LANJUAN (PRC Passport No. E42727975)

WANG YUNLING (PRC Passport No. EH6498651)

YAO MING (PRC Passport No. EH2721630)

YU GENG (PRC Passport No. EB7615241)

ZHANG ZENGRONG (PRC Passport No. G46716929) (suing as crew of the Ship "ORIENTAL DRAGON" (IMO No. 7125861)) ... PLAINTIFFS The Owners and/or persons in possession or control of the Ship "ORIENTAL DRAGON" (IMO No. 7125861) of the Port of Panama ... DEFENDANT JUDGMENT Introduction [1] The equivalent value of our Ringgit Malaysia RM to the United D USD 1.00 as at 20.4.2021, was RM 4.123. However, by 21.8.2023, the value of RM had plunged to RM 4.79 to USD 1.00. [2] The steep fluctuation in the value of RM has given rise in the present case to a dispute as to the proper date for the conversion of the equivalent in RM of claims made in foreign currencies, in particular, claims made in USD currency by the Plaintiffs in the Action in Rem Suit WA-27NCC-11-02/2021 and Action in Rem Suit WA-27NCC- 21-04/2021. [3] This judgment explores the principle in the English House of Lords case of Miliangos v George Frank (Textile) Limited [1976] AC 443. More specifically, the question whether a different consideration ought to be taken in the case where claims in both foreign currencies and local currency are made against a limited fund constituted in RM and where the claimants thereto are ranked differently in priorities. [4] As is shown in this judgment, the conversion date to be used for payment to claims in USD in this case can have significant consequences to the other claimants to the fund. Background Facts Action in Rem No: WA-27NCC-11- Suit 11 and Action in Rem WA-27NCC-21-04/2021 ( Suit 21 the Parties and their Claims against the Vessel [5] Suit 11 is an action filed by the Master and 193 crew members Plaintiffs in Suit 11 for unpaid wages and for disbursements in relation to repatriation costs incurred against the vessel, RIENTAL DRAGON the Vessel . Significantly, the Master and the crew members had quantified their respective claims in the Statement of Claim as follows: For the Master: a) USD 30,660.00 (equivalent to RM 124,571.58 at the rate of exchange of USD 1 to RM 4.063 as at 9.2.2021) for the b) USD 335,179.85 (equivalent to RM 1,361,835.73 at the rate of exchange of USD 1 to RM 4.063 as at 9.2.2021) For the 193 crew members: a) USD1,615,512.28 (equivalent to RM 6,563,826.39 at the rate of USD 1 to RM 4.063 as at 9.2.2021) being the [emphasis added] [6] Suit 21 is also an action for outstanding wages earned and for repatriation costs by 18 crew members (other than those in Suit 11) against the Vessel Plaintiffs in Suit 21 . Similarly, the crew members had quantified their claims in the Statement of Claim as follows: a) USD 117,608.02 (equivalent to RM 484,897.87 at the rate of exchange of USD 1 to RM 4.123 as at 20.4.2021) being the Outstan b) USD 47,260.42 (equivalent to RM 194,854.71 at the rate of exchange of USD 1 to RM 4.123 as at 20.4.2021) being [emphasis added] [7] The Defendant, Worldport Corporation Limited, having its registered address at Room 603, 6/F, Star House, No. 3 Salisbury Road, Tsim Sha Tsui, Kowloon, Hong Kong was the registered owner of the Vessel and or was in possession or control of the Vessel. [8]

The Vessel was arrested by her Master and crew members in Suit The registered owner of the Vessel did not put up security, and the Vessel was appraised and sold by judicial sale pendente lite, together with her bunkers for the total sum of RM 20,802,988.49. The sum (with interest earned thereon) was paid into Court and made available for enforcement of legitimate claims the Fund . [9] In Suit 11, 4 parties had successfully intervened in the action. They were: a) The 1st Intervener, Brit UW Limited (UK Company No.: 03217775), who is suing as the sole corporate capital account; b) The 2nd Intervener, Lavenham Underwriting Limited (UK Company No: 04512130) is suing as the corporate capital provider on its own behalf and on behalf of the other 2019 year of account; [The 1st and 2nd Interveners are the underwriters with respect outstanding remuneration in the event of abandonment and they have the obligation to meet the financial security requirements of Regulation 2.5.2, Standard A2.5.2 and Regulation 4.2, Standard A4.2 Paragraph 1(b) of the Maritime Labour Convention 2006 (as amended)]. c) The 3rd Intervener, Asia Capital Commodities Trade Sdn Bhd (Company No.: 1343080-H) is a limited liability company incorporated in Malaysia who is in the business of operating ships. The 3rd Intervener had issued an Admiralty Writ in in Rem against the Vessel under Admiralty in Action in Rem No.: WA-27NCC-131-12/2020, the proceedings in which are still pending before this Court 3rd Intervener Suit 131 . d) The 4th Intervener, is Penang Port Sdn Bhd (Company No. 199301028806 (283544-D)). The 4th Intervener is the licensed port operator for the Port of Penang. [10] The following claims were received against the Fund: a) s; b) incurred by M/s Shearn Delamore & Co. and M/s Shaikh David & Co; Costs of producer of fund by M/s Shearn Delamore & Co; c) Maritime lien claims of Master and crew for unpaid wages and default judgments obtained by the Plaintiffs in Suit 11 and the Plaintiffs in Suit 21; d) Statutory lien claims for repatriation costs incurred by the Plaintiffs in Suit 21; e) Statutory lien claims for goods and materials supplied, and expenses incurred on account of the vessel by the 3rd Intervener in their own Writ in rem action (now pending full trial). Chronology of Material Events [11] The Writ In Rem Action in Suit 11 was filed by the Plaintiffs in Suit 11 on 9.2.2021. On the same day, the Plaintiffs in Suit 11 took out a Warrant of Arrest against the Vessel. [12] On 11.2.2021, the Bailiff of this Court, Tuan Mohd. Sofian bin Abdul Halim, served the Writ In Rem Action upon the Vessel and executed the Warrant of Arrest on the Vessel within the territorial waters of Malaysia in Penang, as evidenced by the Affidavit of Service affirmed by Tuan Mohd. Sofian bin Abdul Halim on 15.2.2021. [13] On 20.4.2021, the Plaintiffs in Suit 21 filed the Writ in Rem Action against the Vessel. [14] Subsequently, on 10.6.2021, the Plaintiffs in Suit 21 filed an application to have Suit 21 heard together with Suit 11 which was allowed by the Court on 13.8.2021. Thereafter, Suit 21 was heard together with Suit 11. [15] On 19.1.2022, the Plaintiffs in Suit 11 filed a Notice of Application seeking a Judgment in Default of Defence for crew wages and wages and disbursements. On 1.9.2022, after hearing submissions, the Court made the following orders: Penghakiman Ingkar Pembelaan dimasukkan terhadap Defendan berdasarkan terma-terma berikut: -

Memihak kepada Plaintif Pertama:

USD30,660.00 untuk Upah Belum Dijelaskan yang kena dibayar kepada Plaintif Pertama dan diperolehi oleh Plaintif Pertama di atas Kapal tersebut yang tidak dibayar dari bulan September 2020 hingga Januari 2021 seperti yang dibentangkan di Lampiran A kepada Perintah ini;

USD335,179.85 sebagai Pembelanjaan Belum Dijelaskan yang ditanggung oleh Plaintif Pertama untuk Kapal tersebut seperti yang dibentangkan di dalam Lampiran B kepada Perintah ini;

(ii) Memihak kepada Plaintif-plaintif Kedua:

USD1,615,512.28 iaitu Upah Belum Dijelaskan yang kena dibayar dan terhutang kepada Plaintif-plaintif Kedua menurut jumlah dan tempoh perkhidmatan mereka masing-masing seperti yang dibentangkan di dalam Lampiran A kepada Perintah ini;

(iii) Memihak kepada semua Plaintif:

Faedah pra-penghakiman ke atas semua jumlah yang dihakimi sebagai kena dibayar kepada Plaintif-plaintif pada kadar 5% setahun dari tarikh writ in rem ini hingga tarikh penghakiman selaras dengan seksyen 11 Akta Undang-undang Sivil 1956;

Faedah pasca-penghakiman ke atas semua jumlah yang dihakimi sebagai kena dibayar kepada Plaintif-plaintif pada kadar 5% setahun selaras dengan Aturan 42 kaedah 12 Kaedah-kaedah Mahkamah 2012 dari tarikh penghakiman hingga tarikh penyelesaian penuh;

Kos sebanyak RM10,000.00 tertakluk kepada fee alokatur dibayar oleh Pencelah Ketiga kepada Plaintif Suit 11 Judgment in Default [16] Similarly, on 10.2.2022, the Plaintiffs in Suit 21 also filed a Notice of Application seeking for a Judgment in Default of Defence against the Defendant for crew wages and repatriation costs which was subsequently allowed by this Court on 5.4.2022 after hearing submissions on the following terms: Defendan berdasarkan terma-terma berikut:

Defendan hendaklah membayar kepada Plaintif-plaintif USD117,608.02 (bersamaan dengan RM484,897.87 pada kadar pertukaran USD1 kepada RM4.123 setakat

20.4.2021) untuk Upah Belum Dijelaskan yang kena dibayar dan terhutang kepada Plaintif-plaintif menurut jumlah dan tempoh perkhidmatan mereka masing-masing yang dinyatakan bersebelahan dengan nama mereka dalan jadual butir-butir di dalam Lampiran A kepada Notis

Defendan hendaklah membayar (bersamaan dengan RM240,956.49 pada kadar pertukaran USD1 kepada RM4.123 setakat 20.4.2021) dibayar dan terhutang kepada Plaintif-plaintif untuk jumlah masing-masing yang dinyatakan bersebelahan dengan nama mereka dalan jadual butir-butir di dalam Lampiran B kepada Notis Permohonan;

Faedah pra-penghakiman ke atas semua jumlah yang dihakimi sebagai kena dibayar kepada Plaintif-plaintif pada kadar 5% setahun dari tarikh writ in rem hingga tarikh penghakiman selaras dengan seksyen 11

Faedah pasca-penghakiman ke atas semua jumlah yang dihakimi sebagai kena dibayar kepada Plaintif-plaintif pada kadar 5% setahun selaras dengan Aturan 42 kaedah 12 Kaedah-kaedah Mahkamah 2012 dari tarikh penghakiman hingga tarikh penyelesaian penuh;

Kos sebanyak RM20,000.00 tertakluk kepada fee alokatur dibayar oleh Defendan kepada Plaintif plaintif; dan

Kebebasan untuk memohon . [emphasis added] Suit 21 Judgment in Default [17] As can be seen above, although the Plaintiffs in Suit 11 and the Plaintiffs in Suit 21 had, in their respective Statement of Claim filed in Suit 11 and Suit 21, expressly converted their claims from USD amount into the RM equivalent as at the date of their respective Writs, the Suit 11 Judgment in Default did not mirror the stated reliefs thereto but only stipulated the sums claimed in the USD currency. However, it is not submitted before this Court that the Plaintiffs in Suit 11 had made an application to amend their reliefs in the Writ in Rem and Statement of Claims [18] By an order of Court dated 13.8.2021, it was ordered that the Vessel and its bunkers, fuel, lubricants and other consumables on board, if any the Bunkers Sheriff of the High Court, pendente lite the Order for Sale Pendente Lite [19] The Court also ordered that the proceeds of the judicial sale of the s, costs and expenses and all sums ordered therein to be costs and expenses, including such sums as may have been paid by the Plaintiffs and or their managers and costs and expenses [20] The terms of the Order for Sale Pendente Lite, inter alia, further ordered that within 2 weeks from the date of the payment into court, the proceeds of the judicial sale shall be invested in a bank in Malaysia as approved by the Accountant General to earn the best commercial interest rate pursuant to Order 90 rules 6 and 12(2) of the Rules of Court 2012. [21] The Vessel and its bunkers were judicially sold to one Virma Maritime Corp (Corporation No.: 108465) with its registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Republic of the Marshall Islands MH 96960 on 15.12.2021 for the sums stated below the Judicial Sale :

Proceeds of sale of the Vessel RM20,555,920.80

Proceeds of sale of the bunkers RM247,067.69 Total RM20,802,988.49 [22] Subsequent to the above Judicial Sale, the total sum of RM20,802,988.49 was lodged with the Court pending an order of Court for the determination of the order of priority of the claims and payment out of the same to the parties so entitled. [23] Pursuant to the Judicial Sale of the Vessel, the Sheriff of the High Court of Malaya at Kuala Lumpur executed a Bill of Sale for the Vessel in favour of Virma Maritime Corp (Corporation No.: 108465). Subsequent to the Judicial Sale, the Sheriff of the High Court of Malaya at Kuala Lumpur gazetted and caused the publication of notices in respect of the proceeds of sale of the Vessel and the Bunkers with the following publishers: a) Percetakan Nasional Malaysia Berhad (Government Gazette) on 20.12.2021; b) Star Media Group Berhad (The Star) on 20.12.2021; c) d) NHST Global Publications (TradeWinds) on 31.12.2021. Determination of Priorities and Payment Out Order [24] On 21.10.2022, the Plaintiffs in Suit 11 filed a Notice of Application for Determination of Priorities and for Payment Out of the Fund. [25] The Application for Determination of Priorities and for Payment Out of the Fund Harun on 15.2.2023 and 7.3.2023. [26] On 20.3.2023, the Learned Judge delivered his decision in respect of the said Application for Determination of Priorities and for Payment Out of the Fund. In summary, the High Court ordered that the proceeds of the sale of the Vessel be paid out to the following

Bahawa susunan keutamaan bagi semua tuntutan terhadap hasil berjumlah RM20,802,988.49 (Ringgit Malaysia Dua Puluh Juta Lapan Ratus Dua Ribu Sembilan Ratus Lapan Puluh Lapan dan Sen Empat Puluh Sembilan sahaja) termasuk bunker yang telah diserahsimpan dalam Mahkamah bersama-sama dengan faedah yang diperolehi seperti berikut:

Pertama, komisyen Syerif berkaitan dengan jualan Kapal tersebut;

(ii) Kedua, perbelanjaan Syerif yang perlu dibayar kepada Plaintif-plaintif dan Pencelah Keempat;

(iii) Ketiga, kos penahanan Plaintif-plaintif dan kos perintah untuk pentaksiran dan jualan Kapal tersebut dan semua prosiding di dalam ini, termasuk kehadiran di hadapan Syerif dan Yang Arif Hakim Admiralti setakat dan termasuk Notis Permohonan untuk Penentuan Keutamaan dan untuk Pembayaran Keluar ini;

(iv) Keempat, lien maritim; a. jumlah yang dihakimi sebagai perlu dibayar kepada Plaintif-plaintif dalam Mahkamah Tinggi Kuala Lumpur Tindakan Admiralti In Rem No.: WA-27NCC21- upah anak kapal, selaras dengan Penghakiman Ingkar Pembelaan bertarikh 5.4.2022 yang diperolehi dalam Guaman 21; dan b. jumlah yang dihakimi sebagai perlu dibayar kepada Plaintif-plaintif dalam Mahkamah Tinggi Kuala Lumpur Tindakan Admiralti In Rem No.: WA-27NCC11- upah anak kapal dan pembelanjaan Nakhoda selaras dengan Penghakiman Ingkar Pembelaan bertarikh 1.9.2022 yang diperolehi dalam Guaman 11;

Kelima, lien statutori iaitu jumlah yang dihakimi sebagai perlu dibayar kepada Plaintif-plaintif dalam Mahkamah Tinggi Kuala Lumpur Tindakan Admiralti In Rem No.: WA27NCC-21- untuk Kos Penghantaran Balik, selaras dengan Penghakiman Ingkar Pembelaan bertarikh 5.4.2022 yang diperolehi dalam Guaman 21 tertakluk kepada lien statutori ini disusun secara pari passu dengan lien statutori lain yang mungkin diperintahkan (as may be ordered) dan melibatkan manamana pihak di sini dalam Guaman Mahkamah Tinggi Kuala Lumpur Tindakan Admiralti In Rem WA-27NCC-131- 12/2020.

Bahawa sejajar dengan susunan keutamaan bagi tuntutan-tuntutan di dalam ini, pembayaran keluar daripada Kumpulan Wang hendaklah dibuat seperti berikut:

Pertama, kepada Penolong Kanan Pendaftar Mahkamah Tinggi Kuala Lumpur, sebanyak RM520,099.71 (Ringgit Malaysia Lima Ratus Dua Puluh Ribu Sembilan Puluh Sembilan dan Sen Tujuh Puluh Satu sahaja) iaitu komisyen Syerif berhubung dengan jualan kapal tersebut melalui lelong awam;

(ii) Kedua, a. kepada Tetuan Shearn Delamore & Co., sebagai peguamcara Plaintinf-plaintif, jumlah sebanyak USD1,731,366.42, CNY529,468.14, dan RM9,616.35 untuk pembayaran balik wang yang telah didahulukan oleh Plaintif-plaintif kepada akaun perbelanjaan Syerif; b. kepada Tetuan Shaikh David & Co., sebagai peguamcara Pencelah Keempat, jumlah sebanyak RM145,350.00 untuk caj pelabuhan;

(iii) Ketiga, kepada Tetuan Shearn Delamore & Co., sebagai peguamcara Plaintif-plaintif, jumlah sebanyak RM340,444.97 (Ringgit Malaysia Tiga Ratus Empat Puluh Ribu Empat Ratus Empat Puluh Empat dan Sen Sembilan Puluh Tujuh sahaja) iaitu kos penahanan, kos pentaksiran dan jualan Kapal tersebut dan semua prosiding di dalam ini, termasuk kehadiran di hadapan Syerif dan Yang Arif Hakim Admiralti setakat dan termasuk Notis Permohonan untuk Penentuan Keutamaan dan untuk Pembayaran Keluar ini;

(iv) Keempat, kepada Tetuan Shearn Delamore & Co, jumlah berikut bagi lien maritim: - a. sebanyak USD117,608.02 (bersamaan dengan RM484,897.87 pada kadar pertukaran USD1 kepada RM4.123 setakat 20.4.2021) untuk Upah Belum Dijelaskan yang dihakimi sebagai perlu dibayar dan terhutang kepada Plaintif-plaintif dalam Guaman 21 menurut Lampiran A pada Kand. 56, bersama-sama dengan faedah pra-penghakiman ke atas semua jumlah yang dihakimi sebagai kena dibayar kepada Plaintif-plaintif dalam Guaman 21 pada kadar 5% setahun dan kos sebanyak RM20,000.00 selaras dengan Penghakiman Ingkar Pembelaan bertarikh 5.4.2022 (Kand. 75) dalam Guaman 21; b. b. sebanyak USD365,839.85 (bersamaan dengan RM1,486,407.31 pada kadar pertukaran USD$1 kepada RM4.063 setakat 9.2.2021) yang dihakimi sebagai perlu dibayar kepada Plaintif Pertama dalam Guaman 11, dan sebanyak (bersamaan dengan RM6,563,826.39 pada kadar pertukaran USD$1 kepada RM4.063 setakat 9.2.2021) yang dihakimi sebagai perlu dibayar kepada Plaintif-plaintif Kedua dalam Guaman 11, bersama-sama dengan faedah pra-penghakiman dan faedah pasca-penghakiman ke atas semua jumlah yang dihakimi sebagai kena dibayar kepada Plaintif-plaintif dalam Guaman 11 pada kadar 5% setahun dan kos sebanyak RM10,000.00 selaras dengan Penghakiman Ingkar Pembelaan bertarikh 1.9.2022 (Kand. 462) dalam Guaman 11;

Kelima, kepada Tetuan Shearn Delamore & Co, lien statutori bagi jumlah sebanyak (bersamaan dengan RM240,956.49 pada kadar pertukaran USD1 kepada RM4.123 setakat 20.4.2021) untuk Kos Penghantaran Balik yang dihakimi sebagai perlu dibayar dan terhutang kepada Plaintif-plaintif dalam Guaman 21 seperti yang ditetapkan dalam perenggan 1(b) Penghakiman Ingkar Pembelaan bertarikh 5.4.2022 dalam Guaman 21 bersama-sama dengan faedah prapenghakiman dan faedah pasca-penghakiman masing masing seperti yang ditetapkan dalam perengganperenggan 1(c) dan 1(d) Penghakiman Ingkar Pembelaan bertarikh 5.4.2022 dalam Guaman 21 yang sama, tertakluk kepada lien statutori ini dibayar secara pari passu dengan lien statutori lain yang mungkin diperintahkan (as may be ordered) dan melibatkan mana-mana pihak di sini dalam Mahkamah Tinggi Kuala Lumpur Tindakan Admiralti In Rem No. WA- 27NCC-131- [27] In essence, the High Court ordered that the proceeds of sale to be paid out to the following parties and in the following order of priorities: a) the Senior Assistant Registrar of the High Court of Kuala Lumpur, the sum of RM520,099.71 (RM Five Hundred Twenty Thousand Ninety Nine and Cents Seventy One only) being the Commissions in respect of the sale of the Vessel by public auction; b)

to Messrs Shearn Delamore & Co., as solicitors for the Plaintiffs, the sum of USD1,731,366.42, CNY529,468.14, GBP2,560.00 and RM9,616.35 for reimbursement of monies advanced by the Plaintiffs to

(iii) to Messrs. Shaikh David & Co., as solicitors of the 4th Intervener, the sum of RM145,350.00 for port charges; c) to Messrs Shearn Delamore & Co., as solicitors for the Plaintiffs, the sum of RM340,444.97 (RM Nine Hundred Ten Thousand Four Hundred Forty Four and Cents Ninety Seven only) being the costs of arrest, costs of the order for appraisement and sale of the Vessel and all proceedings herein, including attendances before the Sheriff and the Admiralty Judge up to and including the Notice of Application for Determination of Priorities and for Payment Out; d) to Messrs. Shearn Delamore & Co, the following amounts for maritime lien: i) the sum of USD117,608.02 (equivalent to RM484,897.87 at the exchange rate of USD1 to RM4.123 as at 20.4.2021) for Unpaid Wages adjudged as payable and owing to the Plaintiffs in Suit 21 in accordance to Annexure A to Enclosure 56, together with the pre-judgment interest and the post-judgment interest on all sums adjudged to be due to the Plaintiffs in Suit 21 at the rate of 5% per annum and costs amounting to RM20,000.00 pursuant to the Judgment in Default of Defence dated 5.4.2022 (Encl. 75) in Suit 21; ii) the sum of USD365,839.85 (equivalent to RM1,486,407.31 at the exchange rate of USD$1 to RM4.063 as at 9.2.2021) adjudged as payable to the First Plaintiff in Suit 11, and the sum of USD1,615,512.28 (equivalent to RM6,563,826.39 at the exchange rate of USD$1 to RM4.063 as at 9.2.2021) adjudged as payable to the Second Plaintiffs in Suit 11, together with the pre-judgment interest and the post judgment interest on all sums adjudged to be due to the Plaintiffs in Suit 11 at the rate of 5% per annum and costs amounting to RM10,000.00 pursuant to the Judgment in Default of Defence dated 1.9.2022 (Encl. 462) in Suit 11; iii) to Messrs. Shearn Delamore & Co, the statutory lien with the sum of USD58,442.03 (equivalent to RM240,956.49 at the rate of USD1 to RM4.123 as at 20.4.2021) for Repatriation Costs adjudged as payable and owing to the Plaintiffs in Suit 21 as stated under paragraph 1(b) of Judgment in Default of Defence dated 5.4.2022 in Suit 21 together with pre judgment and post-judgment interest respectively stated in paragraphs 1(c) and 1(d) of the Judgment in Default of Defence dated 5.4.2022 in Suit 21, subject to other statutory lien in Suit 21 as set out in paragraph 1(b) of the Order dated 5.4.2022 in that Suit 21 together with the pre-judgment interests and post-judgment interests as set out in paragraphs 1(c) and 1(d) respectively of the Order dated 5.4.2022 in that same Suit 21, subject to this statutory lien to be paid out in pari passu with other statutory lien as may be ordered involving any of the party herein in the 3rd Intervener Suit 131. [28] The abovesaid ranking of priorities and payment of claims out of the Fund can be better represented in the following table: Order Claim Amount (RM) Amount (foreign currency) Paragraph 2(i) 520,099.71 Paragraph 2(ii)(a) expenses to M/s Shearn Delamore & Co. USD1,731,366.42 CNY529,468.14 Paragraph 2(ii)(a) expenses to M/s Shaikh David & Co. 145,350.00 Paragraph 2(iii) Costs of producer of funds to M/s Shearn Delamore 340,444.97 Paragraph 2(iv)(a) Maritime lien claim to M/s Shearn Delamore for unpaid wages (equivalent to RM484,897.87 at the exchange rate of USD1=RM4.123 as at 20.4.2021) Pre-judgment interest on the judgment sum at the rate of 5% in accordance with Judgment in default of Defence dated 5.4.2022 in Suit 21 Costs 20,000.00 Paragraph 2(iv)(b) Maritime lien claim to M/s Shearn Delamore & Co. for unpaid wages disbursements USD365,839.85 (equivalent to RM1,486,407.31 at the exchange rate of USD1=RM4.063 as at 9.2.2021) Maritime lien claim to M/s Shearn Delamore for unpaid wages (equivalent to RM6,563,826.39 at the exchange rate of USD1=RM4.063 as at 9.2.2021) Pre-judgment and post-judgment interest on the judgment sum at the rate of 5% in accordance with Judgment in default of Defence dated 1.9.2022 in Suit 11 Costs 10,000.00 Paragraph 2(v) Statutory lien claim to M/s Shearn Delamore & Co. for repatriation costs (equivalent to RM240,956.49 at the exchange rate of USD1=RM4.123 as at 20.4.2021) Pre-judgment and post-judgement interest on the judgment sum at the rate of 5% in accordance with Judgment in default of Defence dated 5.4.2022 in Suit 21 To rank equally and be paid pari passu with any other statutory lien that may be order or involve parties in Suit 131 the 3rd admiralty action which is pending [29] No objections were raised at the hearing of the Application for Priorities and Payment Out Order save for the following: a) The first objection was a common objection from the Defendant and the 3rd Intervener and it was as to the quantum to be awarded to the Plaintiffs as costs of the producer of the fund; b) The second objection was only from the 3rd Intervener and it-judgment interests in both Suit 11 and Suit 21. The Defendant claimed that the post-judgment interests of the Plaintiffs in both Suit 11 and Suit 21 must be capped only up until the date of filing of the Application i.e. 21.10.2022. [30] There was no issue raised with the payment of claims in Paragraphs 2(i), 2(ii)(b) and 2(iii). However, in respect of Paragraphs 2(ii)(a), 2(iv)(a) and (b) and 2(v), which are awards in foreign currency, the Order of Priorities and Payment Out does not specify: a) the conversion date of payment of the claims stated in foreign currencies into RM; b) the amount of pre-judgment and post-judgment interest to be paid in respect of the Suit 11 Judgment in Default and the Suit 21 Judgment in Default i.e. whether interest should be calculated on the USD amount that was ordered or the RM equivalent that was prayed. [31] In any case, after the Court made the Order of Priorities and Payment Out, neither the Defendant nor the 3rd Intervener appealed against the decision. [32] It is also to be noted that in the Order of Priorities and Payment Out, the conversion date for the USD to RM was expressly stated to be that applicable as at 9.2.2021 as was prayed in the Writ in Rem and Statement of Claim in Suit 11. Payment Out by the Court [33] Between April 2023 to August 2023, Messrs Shearn Delamore as solicitors for the Plaintiffs and 1st and 2nd SD corresponded with the Sheriff, the Finance Department of Kuala Lumpur (KL) High Court and to the Accounts Department, Federal POJ Fund. [34] More specifically, on 24.5.2023, SD set out to the Sheriff a summary of the amounts to be paid from the Fund to the Plaintiffs in Suit 11 and the Plaintiffs in Suit 21 pending the determination of the 3rd Intervener Suit 131 SD letter dated 24.5.2023 in the following manner: No. Perkara Amaun 1 Pemulangan Deposit Syerif bagi penahanan Kapal (Sila juga rujuk Penyata Sherif bertarikh 6.4.2023 di Kand. 503) RM15,000.00 2 Wang yang didahulukan oleh pihak Plaintif-plaintif kepada akaun perbelanjaan Syerif (Sila rujuk Perakuan Pendaftar bertarikh 23.4.2022 di Kand. 440 dan perenggan 2(i)(a) Perintah Mahkamah bertarikh 13.3.2023 di Kand. 500) USD1,731,366.42 CNY529,468.14 RM9,616.35 3 Kos Penahanan Plaintif (Sila rujuk perenggan 2(iii) Perintah Mahkamah bertarikh 13.3.2023 di Kand. 500) RM340,444.97 4 Jumlah Penghakiman bagi lien maritim sebanyak USD117,608.02 dalam Guaman 21 (Sila rujuk perenggan 2(iv) (a) Perintah Mahkamah bertarikh 13.3.2023 di Kand. 500) bersamaan dengan RM484,897.87 pada kadar pertukaran USD1 kepada RM4.123 setakat 20.4.2021). 5 Faedah pra-penghakiman dari 20.4.2021 sehingga 5.4.2022 dalam Guaman 21 (Sila rujuk perenggan 2(iv) (a) Perintah Mahkamah bertarikh 13.3.2023 di Kand. 500) Untuk ditentukan 6 Faedah pasca-penghakiman dari 5.4.2022 sehingga tarikh penyelesaian penuh ke atas jumlah penghakiman dalam Guaman 21 (Sila rujuk perenggan 2(iv)(a) Perintah Mahkamah bertarikh 13.3.2023 di Kand. 500) Untuk ditentukan 7 Kos sebanyak RM20,000.00 bagi Penghakiman RM20,000.00 Ingkar Pembelaan bertarikh 5.4.2022 (Guaman 21) Sila rujuk perenggan 2(iv)(a) Perintah Mahkamah bertarikh 13.3.2023 di Kand. 500) 8 Jumlah Penghakiman bagi lien maritim sebanyak USD365,839.85 kepada Plaintif Pertama dalam Guaman 11 (Sila rujuk perenggan 2(iv)(b) Perintah Mahkamah bertarikh 13.3.2023 di Kand. 500) (bersamaan dengan RM1,486,407.31 pada kadar pertukaran USD$1 kepada RM4.063 setakat 9.2.2021) 9 Jumlah Penghakiman bagi lien maritim sebanyak USD1,615,512.28 kepada Plaintif-plaintif Kedua dalam Guaman 11 (Sila rujuk perenggan 2 (iv)(b) Perintah Mahkamah bertarikh 13.3.2023 di Kand. 500) (bersamaan dengan RM6,563,826.39 pada kadar pertukaran USD$ 1 kepada RM4.063 setakat 9.2.2021) 10 Faedah pra-penghakiman dari 9.2.2021 sehingga 1.9.2022 dalam Guaman 21 (Sila rujuk perenggan 2(iv) (b) Perintah Mahkamah bertarikh 13.3.2023 di Kand. 500) Untuk ditentukan 11 Faedah pasca-penghakiman dari 1.9.2022 sehingga tarikh penyelesaian penuh ke atas Untuk ditentukan jumlah penghakiman USD1,981,352.13 dalam Guaman 21 (Sila rujuk perenggan 2(iv)(b) Perintah Mahkamah bertarikh 13.3.2023 di Kand. 500) 12 Kos sebanyak RM10,000.00 bagi Penghakiman Ingkar Pembelaan bertarikh 1.9.2022 (Guaman 11) (Sila rujuk perenggan 2(iv)(b) Perintah Mahkamah bertarikh 13.3.2023 di Kand. 500) RM10,000.00 [35] In SD letter dated 24.5.2023, SD provided details of their RM account to receive the payments. No USD Account was provided. [36] On 28.6.2023, the Sheriff forwarded to SD for their confirmation Sheriff email dated 28.6.2023 an email that he received from POJ on POJ email dated 28.6.2023 informing that the Fund that was deposited earlier with the Court had been received amounting to RM 20,817,988.49 and the said email also set out a sum of RM 19,101,778.36 to be paid to Messrs Shearn Delamore, excluding the pre-judgment interests. The details for the sum of RM 19,101,778.36 were set out and the table is reproduced below: BIL PENERIMA BAYARAN USD CNY GBP *kadar RM 1 KOMISYEN SYERIF (Hasil Kerajaan) 520,099.71 2 1,731,366.42

4.5506 7,878,756.03 Peguamcara Plaintif Peguamcara Plaintif 529,468.14

0.6525 345,477.96 Peguamcara Plaintif 2,560.00 5.6871 14,558.98 Peguamcara Plaintif 9,616.35 SHAIKH DAVID & CO PENCELAH KEEMPAT 145,350.00 3 Peguamcara Plaintif 340,444.97 4a Peguamcara Plaintif 117,608.02

4.5506 535,187.06 Faedah Pra Penghakiman ? Kos (Penghakiman Ingkar) 20,000.00 4b Peguamcara Plaintif (1) 365,839.85

4.5506 1,664,790.82 Peguamcara Plaintif (2) 1,615,512.28

4.5506 7,351,550.18 Faedah Pra Penghakiman ? 10,000.00 Kos (Penghakiman Ingkar) 5 Peguamcara Plaintif 58,442.03

4.5506 265,946.30 3,888,768.60 529,468.14 2,560.00 19,101,778.36 [37] From the email of 28.6.2023, it is clear that POJ had converted the sums ordered to be paid in USD currency to their equivalent in RM currency based on the exchange rate issued by the a [38] With the payments to SD of RM 19,101,778.36, the 28.6.2023 further stated that there would be a balance sum of RM 1,701,210.13 left from the Fund. [39] On 20.7.2023, SD SD letter dated 20.7.2023 which effectively adopted the computations stated in the POJ email dated 28.6.2023 except that SD had removed the RM equivalent of all the sums ordered to be paid in USD currency. In the said letter, SD stated that the balance sum after the payments was estimated to be RM 806,000.00 which should be paid out to SD for the costs of USD 58,442.03 incurred for the Suit 11 and Suit 21 Judgments in Default and to meet the 3rd Intervene rd Intervener Suit 131 on a pari passu basis. SD also provided details of their RM account and USD account for the payments to be received. The SD letter dated 20.7.2023 is reproduced below: [40] The SD letter dated 20.7.2023 was copied to all the solicitors involved in Suit 11 and Suit 21. not enclosed. [41] The effect of SD letter dated 20.7.2023 was that SD wanted the sums ordered in USD in the Order of Priorities and Payment Out to be paid to them in USD currency. No one took any objections to the contents of the SD letter dated 20.7.2023 although the same disclosed a clear intention that SD was seeking payment out of the Fund in USD instead of in RM. This of course means that the costs for the conversion from RM to USD would not be borne by SD but POJ. [42] However, in the present application, the 3rd Intervener is taking objections to the following in SD letter dated 20.7.2023: a) In Paragraph 2(ii)(a), the claims in CNY and GBP were to be paid based on the conversion rate as at June 2023, when this is not stipulated in the Order of Priorities and Payment Out; b) In Paragraph 2(ii)(a), the claim in USD is to be paid based on whichever conversion rate applicable on the date the funds are disbursed, when this is not stipulated in the Order of Priorities and Payment Out. c) In Paragraph 2(iv)(a) and (b), the claim is to be paid in USD currency, when the Order of Priorities and Payment Out specifically and expressly stipulated payment out in the RM equivalent of the USD judgment sums as at the date of their respective Writs in Rem the terms of the Suit 11 Judgment in Default and Suit 21 Judgment in Default; d) The pre-judgment and post-judgment interest under Paragraph 2(iv)(a) and (b) were calculated on the USD judgment sums when the Order of Priorities and Payment Out specifically and expressly stipulates payment out on the RM equivalent of the USD judgment sums. e) That post-judgment interest on the judgments sums under Paragraph 2(iv)(a) and (b) were calculated up to 31.7.2023, when this is not stipulated anywhere in the Order of Priorities and Payment Out or the Suit 11 Judgment in Default and the Suit 21 Judgment in Default; [43] Coming back to the events that have since unfolded, on 3.8.2023, the Sheriff issued a letter to POJ Sheriff letter dated 3.8.2023 to outline the payment arrangement according to the Order of Priorities and Payment Out to assist POJ. The Sheriff a [44] On 13.9.2023, POJ sent an email to the Sheriff and SD POJ email dated 13.9.2023 copied to all the other parties in Suit 11 and Suit 12 (except the Defendant) informing that POJ had on 21.8.2023 paid to SD the sum of USD 4,088,837.33 which at the exchange rate on that date at USD 1 to RM 4.79 amounted to the equivalent in RM to be RM 19,585,530.70 and in RM the sum of RM 740,098.24. This said sums when taken together with the Commissions of RM 520,099.71 and to Messrs Shaikh David of RM 145,350.00 means that a total of RM 20,988,404.90 had been paid out by POJ. This of course means that POJ had erroneously paid out a sum of RM 185,416.49 in excess of the total Fund of RM 20,802,888.78. [45] By reason of the overpayment, POJ sought from SD the return of the sum of RM 185,416.49 vide its email of 13.9.2023: From: Maimunah binti Endut <maimunahendut@kehakiman.gov.my> Sent: Wednesday, September 13, 2023 11:18 AM To: Mohd Zamir Suhaimee <zamir@kehakiman.gov.my>; Nik Azila Shuhada <nik.azila@shearndelamore.com> Cc: Rohani binti Che Mie <rohanicmie@kehakiman.gov.my>; Aishah @ Noorliza Binti Hassan <noorlizahassan@kehakiman.gov.my>; Mohd Hairulzaki bin Hassan <hairulzaki@kehakiman.gov.my>; Noor Jannah binti Hj. Abdullah <jannah@kehakiman.gov.my>; Rajasingam Gothandapani <rajasingam@shearndelamore.com>; Justin Tong Wei Hang <justin.tong@shearndelamore.com>; Ally Ong Tze Xian <ally.ong@shearndelamore.com>; Matthew Jerome van Huizen <matthew@jnplaw.my>; Ellia Kamarul <ellia@sdco.com.my>; Norli binti Talip <NorliTalip@kehakiman.gov.my> Subject: RE: PENGESAHAN PEMBAYARAN BAGI NO. KES: WA-27NCC-11- 02/2021 - TINDAKAN ADMIRALTI IN REM TERHADAP KAPAL 'ORIENTAL DRAGON' DARI PELABUHAN PANAMA Assalamualaikum Warahmatullahi Wabarakatuh & Salam Sejahtera, Tuan/Puan, Saya dengan hormatnya merujuk kepada pembayaran sebanyak USD4,088,837.33 kepada Tetuan Shearn Delamore & Co.

Dibawah adalah jumlah deposit yang diterima bagi kapal oriental dragon. Deposit tahanan telah dibayar secara berasingan.

Baki RM20,802,988.49 telah dibayar dengan kepada penerima bayaran dibawah dan bayaran untuk matawang USD adalah dianggarkan dengan kadar anggaran seperti berikut:

Berdasarkan anggaran semasa pada bulan Ogos 2023, jumlah deposit boleh menampung pembayaran sehingga aturan keempat dan masih mempunyai baki sebanyak RM387,429.62.

Walaubagaimanapun, setelah pihak JPM membuat bayaran kepada Tetuan Shearn Delamore & Co pada 21.08.2023, kadar pertukaran sebenar adalah 4.7900. Ini telah menyebabkan deposit yang ada tidak dapat menampung sebahagian pembayaran pada aturan keempat. Ringkasan pembayaran sebenar adalah seperti dibawah:

Pembayaran ini telah menyebabkan kurangan pada akaun deposit sebanyak RM185,416.49. Sehubungan itu, Tetuan Shearn Delamore & Co diminta untuk membuat pulangan sebanyak RM185,416.49 kepada pihak kami dengan segera.

Segala kerjasama dan perhatian pihak tuan/puan berkaitan perkara ini amat dihargai. Sekian, Terima Kasih Saya yang menjalankan amanah, Maimunah Binti Endut C.A.(M) Ketua Penolong Pengarah (Akaun) Mahkamah Persekutuan Malaysia PUTRAJAYA Tel: 03-8880 4228 [46] However, instead of refunding the overpaid amount, SD responded stating that they were taking instructions from their clients and stated further that they believed that POJ would need to apply to Court for the refund of the said RM 185,416.49. [47] The aforesaid, which obviously also means that there would be nothing left in the Fund to meet the claims in the 3rd Intervener Suit 131 against the Defendant prompted the 3rd Intervener to scrutinise the payments made under the Order of Priorities and Payment Out. [48] Quite understandably, the fact that SD appeared hesitant to even refunding the sum of RM 185,416.49 was disconcerting for the 3rd Intervener. Enclosure 520 [49] The 3rd Intervener, jointly with the Defendant proceeded to ask this Court for a case management date to bring this matter to the attention of the Court. Parties attended before me on 4.10.2023, and the 3rd Intervener thereafter together with the Defendant immediately filed the present application in Enclosure 520 seeking, inter alia, for the following orders: a) That the RM equivalent conversion rate for the payment of USD 1,731,366.42, CNY 529,468.14 and GBP 2,560.00 out of the proceeds of sale of the Vessel be the date of the Certificate Sheriff on 23.4.203 or alternative the date of the Order of Priorities and Payment Out on 20.3.2023; b) That the RM equivalent conversion rate for the payment of USD 117,608.02 and USD 58,442.03 in Suit 21 and USD 365,839.85 and USD 1,615,512.28 in Suit 11 be 20.4.2021 and 9.2.2021 respectively; c) That the pre-judgment and post-judgment interest adjudged in Suit 21 and Suit 11 be computed based on the RM equivalent stated in the respective Writs and Statements of Claim thereto. [50] In the interim, SD quite rightly undertook not to release the sum of USD4,088,837.33 in their custody until the final determination of the application or further order of the Court. [51] It is the 3rd Intervene SD request vide the SD letter dated 20.7.2023 for the payment out and the calculation on the conversion to RM currency was not in accordance with the law or the Order of Priorities and Payment Out. [52] By adopting a wrong approach on the payments, both the Plaintiffs and or SD and the Sheriff have caused an incongruous position where the Plaintiffs and SD have effectively been paid more than the amount available in the Fund for the enforcement of claims against the same. [53] In view of the above, it was contended that the Sheriff letter dated 3.8.2023 authorising POJ to make payment is defective. As a consequent, it is further contended that the payment out to SD as per the terms thereof that were made on 21.8.2023 is also defective, and must be forthwith corrected by this Court. The Sheriff letter dated 3.8.2023 cannot be relied on to authorise POJ to make payment. The Sheriff must issue a fresh authorization letter for payment that is in accordance with the terms of the Order of Priorities and Payment Out. [54] It was also contended that the payment out of the Fund ought not issued. [55] Accordingly, this Court was urged to intervene and give effect to the Order of Priorities and Payment Out by: a) an order to rectify the defective and irregular payments made to SD; b) an order that POJ provides the correct conversion date for the foreign currency claims, and calculation of payment of the claims in order of priority out of the Fund as allowed under the Order of Priorities and Payment Out; c) although the 5th ranking claims (ranked equally and to be paid pari passu) are deferred pending conclusion of the 3rd in rem action, an order directing POJ to provide 2(v) and its RM equivalent. For clarity, the 3rd claim is in RM currency, thus requiring no conversion date to be determined. d) an Order that any surplus wrongly retained by SD be forthwith refunded and paid into the Fund, to satisfy the 5th ranking claims. [56] The Plaintiffs opposed the 3rd Intervener and application in Encl. 520, contending that: a) this Court is Functus Officio; b) there is no overpayment by the Court. The Plaintiffs are entitled to be paid in the foreign currency i.e USD as adjudged and ordered in the Judgments in Default and in the Order of Priorities and Payment Out, particularly paragraph 2(ii)(a), 2(iv)(a) and (b) and paragraph 2(v) thereof; c) the effective date of USD to RM conversion in respect of USD currency amounts ordered to be paid under paragraph 2(ii)(a), 2(iv)(a) and (b) and paragraph 2(v) of Order of Priorities and Payment Out is the date of payment; d) the Plaintiffs are entitled to be paid pre-judgment and post-judgment interest upon the principal sums expressed in the foreign currency as adjudged and ordered in the Order of Priorities and Payment Out. e) t Statement. [57] Essentially the core issue for determination is the proper date to affix the conversion rate that ought to be used for the payment of the foreign currency sums as ordered under the Order of Priorities and Payment Out as certified by the Admiralty Sheriff, the sums adjudged under the Suit 11 Judgment in Default and Suit 21 Judgment in Default and the payments of both the pre-judgment and post-judgment interest on the adjudged sums in these 2 Suits. A. Court whether functus officio [58] The Plaintiffs contended that the 3rd Enclosure 520 is defective and or is an attempt to sidestep the doctrine of functus officio. That this application seeks to invite this Court to reopen, alter, amend and or re-litigate the Order of Priorities and Payment Out. [59] In support, learned counsel for the Plaintiffs, Mr Tong Wei Hang cited the Federal Court case of Serac Asia Sdn Bhd v Sepakat Insurance Tab 5 Brokers Sdn Bhd [2013] 5 MLJ 1, where Abdull Hamid Embong FCJ speaking for the Federal Court held: We conclude by saying that once a regularly obtained order or judgment has been perfected, the court is functus officio. The matter as decided vide encl 6 is thus res judicata and cannot be re-litigated. It needs to be emphasised that the order made under encl 6 was appealed and affirmed right up to the Federal Court. It cannot now be revisited or reasserted under any guise in a subsequent proceeding. The issues raised by the respondent in encl 29 could have been brought up during the appeal process. The law does not allow the respondent to have a second bite of the cherry and in the manner as it did. This passage from Tenaga Berhad explains the rationale: There was no merit in the appellant's argument that the second application to set aside the default judgment was justified because it was based upon a different ground from that relied upon in the first application. The doctrine of res judicata in its wider sense was applicable in the present case. It was certainly open to the appellant to ground its first application on the basis that the default judgment was irregular. It was therefore an issue which properly belonged to the first application. But it chose not to rely upon that ground. Once the first application was dismissed, it was not open to the appellant to make a second application to set aside the judgment on a different ground. It would amount to presenting one's case in installment which the law does not permit. [45] In our judgment too, the re-litigation of a regularly and properly concluded matter as determined by the court is prohibited by the wide doctrine of res judicata. The judicial process rests on the twin pillars of certainty and finality. A final order or a judgment must therefore be vigorously protected by this doctrine, a position taken by the common law courts ever since Henderson (emphasis added) [60] Thus, it was submitted that the 3rd-litigate, and re-open and re-write a regularly obtained Judgment on the e [61] Further, in the Federal Court case of Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ at p. 417 - 418, Peh Swee Chin FCJ referred to a point relied by Court of Appeal that a perfected order, is not capable of being amended or altered except for certain exceptions as stated in Hock Hua Bank v Sahari bin Murid [1981] 1 MLJ 143: same action to alter, vary or set aside a judgment regularly obtained after it has been entered or an order after it is drawn up except under the slip rule in O28 r 11 of Rules of Supreme Court 1957 (O20 r 11 of Rules of High Court 1980) so far as necessary to correct errors in expression the intention of the court, unless it is a judgment by default or made in the absence of a party at the trial or hearing. But if a judgment or order has been obtained by fraud or where further evidence which could not possibly have ben adduced at the original hearing is forthcoming, a fresh action will lie to impeach the original judgment. The hearing of the action Peh Swee Chin J stated that: perfected in the manner described in the above passage, a party to the judgment generally and subject to the same passage, or any other written law, and apart from any appeal, cannot reopen the matter finalized in the judgment by seeking to alter it or amend it for the court would be functus officio by virtue of the ratio of Hock Hua Bank v Sahari bin Murid. Once perfected, a judgment of the High Court is also entitled to the obedience and respect from the parties to it on the basis of a command from a superior court of unlimited civil jurisdiction in the course of contentious litigation classic for its incontestable precedent wise correctness, clarity (emphasis added) [62] I respectfully disagree with Mr Tong Wei Hang. The Federal Court has clarified that where it is necessary to work out or give effect to an order, the functus officio rule is not transgressed; the Court is empowered under its inherent jurisdiction to grant consequential orders. [63] In fact, the Federal Court in Stone World Sdn Bhd v Engareh (M) Sdn Bhd [2020] 12 MLJ 237 expressly addressed the issue of functus official: In discussing the doctrine of functus officio, the High Court found that the application for reinstatement made pursuant to the grant of the earlier final declaratory orders, was not an application to re-open the original case so as to vary, alter or amend that final judgment and order. It was held that the deliberate refusal and disobedience to comply with the original declaratory orders. As such the plaintiff had no option but to seek consequential orders so as to give effect to the original judgment and declaratory orders handed down by the High Court. [33] The court went on to examine the principle of finality and concluded that the ap judicata and corollary to it the rule of issue estoppel and . Importantly the court pointed out that the application for consequential orders was neither a rehearing nor a re-opening of the case. The judge cited Fritz v Hobson [1880] 14 Ch D 542 at p 561, which sets out the fundamental principle expounded by Fry J at p 561 on liberty to apply in relation to orders of court. It bears repeating here: In the next place, it is said that I have no jurisdiction to amend the judgment or to grant this application, because the Court has no jurisdiction to rehear an action. In my opinion I have jurisdiction to grant this application. In the first place, it is to be borne in mind that an order was made, although it was not drawn up, directing the motion in question to stand until the trial. According to my understanding of the practice (and this is confirmed by what the Master of the Rolls has said) all orders of the Court carry with them in gremio (in gremio legis is a Latin to the court. [34] The rationale above was relied upon by this court in Sungai Biak Tin Mining per Suffian LJ. Additionally the above ratio has been consistently followed by our courts (see Societe Des Etains De Bayas Tudjuh v Woh Heng Mining Kongsi [1978] 2 MLJ 267 at p 270; Sungei Biak Tin Mines Ltd v Saw Choo Theng & Anor (No 2) [1970] 2 MLJ 226 at p 227, Leong Ah Weng v Neoh Thean Soo & Anor [1983] 2 MLJ 119 at p 120). [35] From our case-law it is evident that liberty to apply for consequential orders in order to work out or give effect to the final judgment or order of the court is well within the inherent jurisdiction of the court. To this extent the rule of functus officio is not transgressed. And in the instant appeal both the High Court and the Court of Appeal concluded on well-articulated grounds that the consequential order was required to give effect to the original judgment against Stone World for liability in detinue. There would be no reason to disagree with the courts below, with great respect. [36] Support for our exposition of the law is also to be found in Singaporean case-law. In Tan Yeow Khoon & Anor v Tan Yeow ordered the examination of accounts of several parties owned by the parties. An expert was appointed but the parties could not agree on the incorporation of certain terms. The plaintiffs applied court) to resolve the issue. [37] The High Court in Singapore held, inter alia, that where the incorporation of terms were for the purposes of sustaining or working out the earlier order made and is nothing more than a complementary or enabling direction to work out the judgment of the court such an incorporation would be allowed under the rule. More significantly the court went on to hold that even if the further direction was to be regarded as a variation, it would be allowed if it was intended to to the original order. In that case the court had occasion to comment on the unreasonableness and obduracy of the plaintiffs there. [emphasis added] [64] Just like in the Stone World case, Enclosure 520 is not designed to re-open the case to vary, alter or amend the final judgments made in favour of the Plaintiffs, or the terms of the Order of Priorities and Payment Out. Enclosure 520 is necessitated by the Plaintiffs and or Order of Priorities and Payment Out any conversion date and maintaining that the correct conversion date is the date of payment. The Plaintiffs also refused to return the sum overpaid, which they argued is only refundable by way of a Court Order. [65] To my mind, there is no doubt that this Court is fully empowered to grant the consequential orders to complement and enable the working out of the terms of the Order of Priorities and Payment Out. B. [66] At the outset, it must be stated that it has long been accepted that the Malaysian Courts have the jurisdiction and power to pronounce judgment in a foreign currency. [67] The Supreme Court in the case of New Kok Ann Realty Sdn Bhd v Development & Commercial Bank Ltd, New Hebrides (In Liquidation) [1987] 1 MLJ 57 2 approved the ratio decidendi in the English House of Lords case of Miliangos v George Frank (Textile) Limited [1976] AC 443 Miliangos decision to award the judgment for the loan sum in USD. [68] The issue of what should be the conversion date for enforcement of foreign currency debts was also deliberated and determined by the House of Lords in the Miliangos. [69] Briefly, Miliangos was a Swiss textile producer who sold and delivered textiles to George Frank Ltd, a textile trader located in England. George Frank refused to pay for the textiles. Miliangos sued George Frank in England for the amount of the debt in the currency of the contract which was Swiss francs. Over the time of the litigation, the exchange rate between the Swiss franc and the pound dropped dramatically. The traditional rule required that the debt in Swiss francs be converted to pounds on the date of the breach. Miliangos would lose a significant amount of the value of the money owed if paid in pounds due to the exchange rate. The issue before the House of Lords was whether the English courts could order a judgment in any currency besides pounds sterling. The Lords ruled that the debt could be paid in Swiss francs, breaking a line of authority over 200 years old. As for the conversion rate, the Lords ruled that it should be at the date the court authorised enforcement of the judgment in terms of sterling: As regards the conversion date to be inserted in the claim or in the judgment of the court, the choice, as pointed out in the Havana Railways case [1961] A.C. 1007, is between (i) the date of action brought, (ii) the date of judgment, (iii) the date of payment. Each has its advantages, and it is to be noticed that the Court of Appeal in Schorsch Meier and in the present case chose the date of payment meaning, as I understand it, the date when the court authorises enforcement of the judgment in terms of sterling. The date of payment is taken in the convention annexed to the Carriage of Goods by Road Act 1965 (article 27 (2)). This date gets nearest to securing to the creditor exactly what he bargained for. The date of action brought, though favoured by Lord Reid and Lord Radcliffe in the Havana Railways case, seems to me to place the creditor too severely at the mercy of the debtor's obstructive defences (cf. this case) or the law's delay. It may have been based on an understanding of the judgment of Holmes J. in the Deutsche Bank case (272 U.S. 517) now seen to be probably mistaken (see Mann, The Legal Aspect of Money, 3rd ed. (1971), p. 355 and cases cited). The date of judgment is shown to be a workable date in practice by its inclusion in the Carriage by Air Act 1961 which gave effect to the Hague Convention of 1965 varying, on this very point, the Warsaw Convention of 1929, but, in some cases particularly where there is an appeal, may again impose on the creditor a considerable currency risk. So I would favour the payment date, in the sense I have mentioned. In the case of a company in liquidation, the corresponding date for conversion would be the date when the creditor's claim in terms of sterling is admitted by the liquidator. In the case of arbitration, there may be a minor discrepancy, if the practice which is apparently adopted (see the Jugoslavenska case [1974] Q.B. 292, 305) remains as it is, but I can see no reason why, if desired, that practice should not be adjusted so as to enable conversion to be made as at the date when leave to enforce in sterling is given. [65] However, learned counsel for the Plaintiffs and the 3rd Intervener differed in their interpretation of the above passage. [66] According to learned counsel for the Plaintiffs, the House of Lords in Miliangos decided that the conversion date is the date of payment which in this case it was contended was on 21.8.2023 when POJ made the payments from the Fund to SD. [67] Reference was made to the case of In Re P Suppiah (Tara Rajaratnam, Judgment Creditor) [1989] 2 MLJ 479 where the learned Judge, LC Vohrah J, had this to say on the relevant date of conversion in relation to the enforcement of a costs order: s concern international contracts, the to give the law new direction in a particular case where on principle and in reason it appears right In the present case having regard to the continuing monetary trend I would favour the date of payment as the choice of the judgment debtor to pay either the exact amount in sterling as taxed or the equivalent in Malaysian currency at the time of the payment. The delay in payment by the judgment debtor should not have the effect of causing the judgment creditor any financial loss or imposing upon her any [emphasis added] [68] However, learned counsel for the 3rd Intervener, Mr Jeremy Joseph, contended that where the judgment is expressed in foreign currency, the appropriate conversion date should be the date of payment , but as understood and clarified by the House of Lords to be the date when the court authorises enforcement of the judgment in terms of the local currency , citing the 2 examples given by Lord Wilberforce in the last sentence of the aforesaid passage. [69] Mr Jeremy Joseph pointed out that In Re P Suppiah, the learned judge had to determine between the conversion date prevailing when the costs were actually ordered and the conversion date at the time when the bankruptcy notice was issued. The learned judge rightly chose the latter as that was the date when the Court authorised the enforcement of the taxed costs following the decision of the House of Lords in Miliangos. Significantly, the Court did not apply the conversion date as at the time of payment as contended by learned counsel for the Plaintiffs. [70] To my mind, the confusion between the date of payment and the date when the Court authorises the enforcement of the judgment is easily resolved when one reads the judgments of Lord Edmund-Davies and Lord Fraser of Tullyberton in Milliangos. This was what they said: Per Lord Edmund-Davies: see it, the core of this litigation is not really whether judgments given by the courts of this country must always be expressed in sterling, though that point was expansively canvassed. I say this because the probability, nay, the certainty is that if a money judgment is given in our courts is to be enforced here there will inevitably come a stage when if the judgment is one expressed in a foreign currency, it must be converted into sterling so that those responsible for enforcing the judgment (whether by levying execution or otherwise) may know what steps are open to them and how far they can go. As Roskill L.J said in Jugoslavenska Oceanska Plovidba v Castle Investment award: can issue for a sum other than a sterling amount. I therefore think that the necessary conversion should be effected and deposed to in an affidavit before the application for leave to enforce is made. Leave can then issue under section 26 [of the Arbitration Act 1950] to enforce the award in the same manner as a Per Lord Fraser of Tullyberton: currency into sterling so that it can be enforced in this country. The question is what the conversion date should be. Theoretically, it should, in my opinion, be the date of actual payment of the debt. That would give exactly the cost in sterling of buying the foreign currency. But theory must yield to practical necessity to this extent that, if the judgment has to be enforced in this country, it must be converted before the date when the [70] Thus, one must u judgment in Miliangos payment or, failing such payment, the date on which the court authorises enforcement of the judgment. The date of actual payment applies in the case where judgment is given in foreign currency and the judgment creditor satisfies the judgment voluntarily without the need for the judgment creditor to take execution proceedings to enforce the same. However, where the judgment debtor fails to pay and the judgment creditor has to apply to the Court to enforce the judgment through execution proceedings, then the conversion date is the date when the Court authorises the enforcement. This date is used more out of procedural efficacy so those responsible for enforcing the judgment (whether by levying execution or otherwise) may know what steps are open to them and how far they can go The principle that the court may give judgment in foreign currency is, after all, essentially one of a procedural character. [71] However, what must be appreciated is that Miliangos was not a case involving claims made by several claimants over a limited fund, where there is a possibility that the available funds may not be sufficient to meet all the claims and where there is a ranking of priorities among the various claimants in terms of receiving payments. This significant distinction was highlighted by Miss Vinodhini, learned co-counsel for the 3rd Intervener. [72] The present case is analogous to that of a winding up of an insolvent company. The case of Re Dynamics Corporation of America [1976] 1 W.L.R. 757 is a case in which it was held by Oliver J. that on the compulsory winding-up of an insolvent registered company a creditor's claim for a debt in foreign currency, and any set-off in foreign currency against such a debt, must be converted into sterling at the date of the winding-up order. The learned judge did not follow the opinion of Lord Wilberforce in Miliangos that in the case of a company in liquidation, the corresponding date for conversion would be the date when the creditor's claim in terms of sterling is admitted by the liquidator. [73] Oliver J opined that the purpose of the relevant provisions of the Companies Act 1948 (and their predecessors) was to ascertain the liabilities of the company as at the date of liquidation and to secure the division of the debtor's property among the claimants pro rata according to the values of their claims at that time. His Lordship therefore held that foreign debts must be valued in terms of sterling as at the date of the liquidation. In other words, in a compulsory winding up of an insolvent company, the conversion date for foreign debts is the date of the winding up because the relevant statutory provisions provided for the liabilities of the company to be ascertained as at that date. [74] Another analogous situation to the present case is where a shipowner who faces or anticipates several claims arising out of the same casualty obtains a decree from the court limiting his liability. [75] In Owners of the mv Eleftherotria v Owners of the mv Despina R; The Despina R, [1977] 3 All ER 874, the plaintiff brought an action against the defendant claiming damages for a collision caused by determine whether the plaintiff was entitled to be awarded the damages in the currencies in which the expenditure or losses were directly and immediately incurred i.e RMB, yen, sterling and US dollars or damages in US dollars, the currency in which the plaintiff operated. Brandon J held that the plaintiff was entitled to be awarded as damages the amount of reasonable expenditure and loss expressed in US dollars or the sterling equivalent of such amounts as that was the currency in which the loss had effectively been borne. [76] In reference to 3 situations arising in Admiralty law which will give rise to special problems if damages for tort are in appropriate cases awarded in foreign currencies, Brandon J made a reference to the limitation action under section 504 of the Merchant Shipping Act

The relevant passages are reproduced below: The third situation is where a tortfeasor, who has or anticipates a number of claims against him arising out of the same casualty, having either admitted liability or had it established against him, brings an action to limit the total amount of his liability in respect of all claims under s 504 of the Merchant Shipping Act 1894. In such a case, assuming that it is agreed or decided that he is entitled to limit his liability, and assuming further that the total amount of all the claims exceeds his limit, the fund out of which a dividend on such claims will have to be paid will be a sterling fund. If the damages claimed by one or more of the claimants are put forward and proved in a foreign currency, a question will arise as to the date at which conversion into sterling should take place. With regard to this, my provisional view is that it should be one of three dates: either that of the decree of limitation, or that of the constitution of the limitation fund, or that of proof of the claim against the fund. The situation which arises when a tortfeasor limits his total liability under s 504 of the 1894 Act is a form of statutory insolvency: see Burrell v Simpson & Co ((1877) 4 R (Ct of Sess) 177 at 182) by the Lord President (Lord Inglis) and The Liverpool (No 2) ([1960] 3 All ER 307 at 312, [1963] P 64at 83) by Harman LJ. The date of conversion should, therefore, be the same as it would be in a bankruptcy or company liquidation. In the Miliangos case ([1975] 3 All ER 801 at 814, 838, [1976] AC 443 at 469, 498) Lord Wilberforce and Lord Cross of Chelsea both expressed the view that, in a company liquidation, the date for conversion equivalent to the date of payment in an ordinary case should be the date when proof of the creditor's claim was admitted by the liquidation. The corresponding date in Admiralty limitation proceedings would, I think, be the date on which the Admiralty registrar on the reference found a claim proved against the fund. In a company liquidation case subsequent to the Miliangos case, however, Re Dynamics Corpn of America, Oliver J regarded the observations of Lord Wilberforce and Lord Cross of Chelsea referred to above as obiter dicta only, and decided not to follow them. His conclusion, based on other earlier authorities, was that the right date for conversion, equivalent to the date of payment in ordinary cases, was the date of the winding-up order. If this view be correct, as to which it is not necessary that I should express any opinion, the corresponding date in Admiralty limitation proceedings would, I think, be the date of the decree of limitation. [77] , albeit provisional, was that in a limitation action where the fund is insufficient to meet all the claims, where there is a claim in foreign currency, the conversion date ought to be the date of the decree of limitation equating the said date to the date of a situation which arises when a tortfeasor limits his total liability under s.504 of the 1894 Act [78] In both cases, namely, compulsory winding up of an insolvent company and in a limitation action under the Admiralty law, the Court did not choose the date of actual payment or distribution of dividends as the conversion date. Instead, the date of the winding up order and the decree of limitation was thought to be most appropriate. So, in the case like the present where claims with different priorities are made against the proceeds of sale of the vessel, what should be the appropriate conversion date? Should it be the date of constitution of the Fund i.e the date the proceeds of sale are paid into Court, the date of judgment of the claims against the Fund, the date where the Sheriff certifies the expenditure and claims, the date of determination of priorities or the date of payment out? [79] To begin, I would not equate the claims made against the Fund in the present case as akin to a liquidation process or limitation action where the premise is that the available pool of fund will be because in the present case, the Vessel is sold because the Defendant had chosen not to defend the claims in Suit 11 and to permit the Plaintiffs to seek the recovery of their claims from the proceeds of sale of the Vessel. I do not think that the sale of a vessel under arrest to meet the claims in an in rem action is a form of statutory liquidation as opined by Brandon J in The Despina R to be the case in a limitation action. [80] I agree that in cases where there are one or more claimants in foreign currencies to a limited fund (which is denominated in the local currency) together with other claimants, there must be just one unit of account, which invariably would be in the currency of the fund and a conversion date that is common to all the claimants (unless otherwise agreed or ordered). The reason for the same is simply that the Court is concern not only to deal with the currency problem but also to ensure fairness and equality of treatment among the different competing claimants of different ranking in priorities. [81] It seems to me that in the case of claims against a limited or common fund, a common conversion date is necessary to avoid the uncertainty resulting from the fluctuation in the currency of payment vis-à-vis the foreign currency debts which will impact the available amount in the fund to the other claimants. [82] To illustrate - where the fund constituted is RM 10,000.00 and the claimants to the fund consist of A, B and C for the sums of USD 1,000, USD 750 and RM 2,500 respectively. If at the date the fund was constituted, the USD to RM conversion rate is USD 1 to RM

4.20, the sums to be paid out to meet the claims would be RM 4,200, RM 3,150 and RM 2,500 to A, B and C respectively. The fund in fact has a balance of RM 150. This is scenario 1. [83] However, if payments were made, let say, 1 year after the fund was constituted and if the US dollars were to appreciate by then to become 1 USD to RM 4.80, and assuming all the claims were made on the same date, the sums to be paid out of the fund to A, B and C would be RM 4,800, RM 3,600 and RM 2,500 respectively. The total sum would exceed the fund by RM 900 in which case, assuming all the claimants rank pari passu, the amounts that they would receive would be proportionately reduced. In this case, C would receive about RM 2,293.60 (2,500/10,900 x 10,000). This is scenario 2. [84] constituted but B and C were paid a year later A would have received RM 4,200 leaving an available balance of RM 5,800 in the fund. By the time B and C made their claims for RM 3,600 and RM 2,500 respectively, the fund would have been short of RM 300 and both have to accept a proportionate reduction as full satisfaction of their claims. Here A received his full claim but not B and C. This is scenario 3. [85] were made one year after the fund was constituted, after paying the sums of RM 4,800 and RM 3,600 to them, C will only receive RM 1,600. This is scenario 4. [86] What is clear from the abov position are as follows: a) the delay in payments from the fund can subject C to currency fluctuation risks which may impact his ability to recover his full claims; b) the difference in the time of payment to the foreign currency c) w the risk of currency fluctuation may impact his ability to recover his full claims. [87] Learned counsel for the Plaintiffs contended that the loss to C in the above scenarios is merely the function of the ranking of priority and the principle in Miliangos that the payment to the foreign creditor will, as nearly as possible, compensate him for his loss. Thus, if the conversion date at the time of payment results in C receiving less, this is an incident of the different ranking in priority of payment and the principle in Miliangos that must be accepted. This is because the fluctuation in the currency may also work in favour. [88] With respect, I do not agree. Given the different ranking in priority of claims, it is not uncommon that the time of payments will invariable be different for the different claimants. If the conversion date is based on the time of payment, whilst the foreign currency debtors with higher ranking will receive their claims in the form of the equivalent in RM of their foreign currency at the time of payment and thereby compensated for their actual loss, the remaining claimants with lower ranking will have to bear the risks of the fund diminishing. The result is that the risk of the deteriorating RM is borne only by the lower ranking claimants. [89] To my mind, although the principle in Miliangos that a foreign currency debtor ought to be paid as nearly as possible for his actual loss which means that the applicable conversion date is the time of payment or the date when the Court authorises the enforcement of the payment, a different consideration must apply in cases where the claims made against a limited fund consist of different ranking of priorities and in foreign currencies. In this regard, I adopt the following comments of Michael Howard, John Knott and John Foreign Currency Claims, Judgments and Damages order of priority. These include claims by successive arrested for a maritime claim. Although these situations are very diverse, we think the principle to be applied is common to all of them. The question of the order in which liabilities are to be satisfied can be decided at any time as a matter of principle. It is not necessary to know even which claims are valid to determine in what order they should be paid. But the same is not true of the identification of the date of conversion. On that depends the amount that is left for each creditor after those with priority have established their claim. That does demand for a single date of conversion. Otherwise, those whose interests are deferred suffer the double disadvantage not only of being behind in the queue but also of having to endure the risk of exchange value of their claim diminishing while they stand there. [emphasis added] [90] The obvious question is of course which conversion date ought to be applied. Mr Jeremy Joseph proposed the date the Admiralty the Order of Priority and Payment Out was made. [91] Mr Jeremy Joseph argued reimbursement of costs incurred by the arresting party in its original currency, and only determined and payable after they are taxed by the Sheriff under Order 70 r. 22, the correct conversion date should be the . [92] In an admiralty in rem action where the res is sold and proceeds made available for enforcement by legitimate claimants, each claimant becomes entitled to its claim on the date the Court recognizes and authorises enforcement of its claim against the sale proceeds. In the case of reimbursement of Sh expenses, it is standard admiralty practice to seek the approval of the Sheriff before incurring the expense, as the party incurring the expense (usually the arresting party) is only entitled to be reimbursed such expenses that are taxed and approved by the Sheriff. [93] Following the aforesaid, it was contended that SD became entitled all invoices, statements of accounts, bills, payment vouchers, receipts and all other d were inspected and taxed by the Sheriff and the Sheriff issued his Certificate on 23.4.2022. [94] amounts recoverable by the arresting party. In support, the following passage in Dilingham Corporation Canada Ltd v. The Ship Shinyu Maru [1980] 1 FC 303 was quoted to this Court: although they are determinable, and the amount can only be determined by taxation of same, converting the amounts expressed in Japanese yen to Canadian dollars as of that date, it is more equitable to choose the date of certification of the bill of costs as the appropriate conversion date. The fact that this will prove more costly to plaintiff is not a fact to be taken into consideration, as the Japanese yen might have fallen in value in relation to the Canadian dollar in the interval instead of increasing in value, and the decision would have to be the same. An appropriate date for conversion appears to me to be the date on which the amount to be paid can be ascertained and payment made. [emphasis added] [95] s expenses. It has no relevance to the other claims in foreign currencies made against the Fund in the present case e.g. the judgment sums in Suit 11 and 21. More importantly, whilst the document authorising the enforcement of the said sum. [96] As regards the conversion date being the date of the Order of Priorities and Payment Out, could this be said to be the date of enforcement of the maritime claims made against the proceeds of sale of a res, ie. when court authorises enforcement of the [97] It is trite admiralty law and procedure that an in rem judgment or case) must be first recognized and ranked in the order of priorities and ordered to be paid out of the proceeds of sale. [98] Mr Jeremy Joseph contended that having a judgment in rem or a claim for compensation alone does not recognise or authorise a claimant for enforcement against the proceeds. He cited O 70. r. 20(9) where the Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this rule. This can in rem action, or any other intervener in the action where the res is arrested and sold and proceeds paid into Court, under O.70 r 16. [99] However, to my mind, the fact that the judgment in rem may be set aside does not mean that the judgment is not recognised or not enforceable. Notwithstanding the aforesaid, it must be noted that what is being considered here is the enforcement of claims against the proceeds of sale of the Vessel. At the time of the judgment in rem, it may be the case that there is no common fund existing e.g the defendant may have provided an alternative security to the plaintiff or that the proceeds of sale have not been constituted. In fact, even if the fund from the proceeds of sale were constituted, the judgment in rem could not be enforced against the fund until the determination of the claims and the order of priority has been made. [100] O. 70 r 22(5) recognises that when proceeds of sale of the res had been accounted for, any person who has an interest in the proceeds of the sale shall be entitled to be heard. Once the proceeds of sale are paid into Court, any party who has an in rem judgment can apply to Court under Order 70 r. 21 for an order to determine the order of priority of claims against the proceeds of sale and for the payment out of the claims. [101] At this point, the Court will consider all claims against the proceeds of sale (both local and foreign currencies) and rank them in their order of priority (based on established law) and order payments in accordance with that priority. In this regard, I agree with Mr Jeremy Joseph that this is the moment when the Court enforcement of the judgment in terms of the local currency or , following the Milliangos. As Lord Edmund-Davies said in the Miliangos, the judgments or claims expressed in foreign currency, must be converted into [Ringgit Malaysia] so that those responsible for enforcing the judgment (whether by levying execution or otherwise) may know what steps are open to them and [102] Therefore, it is my judgment that the operative date when the Court authorises enforcement of the judgment in rem and the claims against proceeds of sale of a res, would be the date when the Court makes an order to determine the priorities of the claims and order the payment out in accordance with that priority, ie. the date of the Order for Priorities and Payment Out in the present case. [103] Thus, I agree with Mr Jeremy Joseph and hold that in the present case, the conversion date is the date of the Order of Priorities and Payment Out which was on 20.3.2023. By this date the proceeds of sale of the Vessel have been paid into Court and the Fund certified and given their priority, an order for the payment out of the Fund to account of the same can be made and was in fact made. The Suit 11 Judgment in Default and Suit 21 Judgment in Default had also been entered by the time the Order of Priorities and Payment Out was made. The only other claim against the Fund yet to be determined and ascertained is the 3rd Intervene claims in the 3rd Intervenor Suit 131. This claim is made in RM currency and entails no conversion date. [104] It is my judgment that applying the date of the Order of Priorities and Payment Out as the conversion date strikes a right balance between meeting the principle in Miliangos i.e for the payment to be such that it would put as nearly as possible the actual loss in foreign currency on the one hand and the need not to place the other the double disadvantage not only of being behind in the queue but also of having to endure the risk of exchange value of their claim diminishing while they stand there on the other hand. [105] The conversion date fixed on the date of the Order of Priorities and Payment Out will be less prejudicial to the foreign currency claimants compare to say, the date of the constitution of the Fund, i.e the date the proceeds of payment is paid into Court since the Order of Priorities and Payment Out is the nearer date to the time of payment than the date the Fund is constituted. C. Suit 11 Judgment in Default and Suit 21 Judgment in Default [106] The Suit 11 Judgment in Default and the Suit 21 Judgment in Default were entered against the Vessel on 1.9.2022 and 5.4.2022 respectively. By this time, the Fund had already been constituted, the judicial sale of the Vessel had taken place on 15.12.2021 when a Bill of Sale was signed with one Virma Maritime Corp from the Republic of the Marshall Islands for the total sum of RM 20,802,988.49. [107] At the Order of Priorities and Payment Out, the Suit 11 Judgment in Default and the Suit 21 Judgment in Default were duly recognised and expressly provided for by the High Court in Paragraph 2(iv)(a) and (b) which stipulate that: For Suit 11 Judgment in Default: a) the sum of USD365,839.85 (equivalent to RM1,486,407.31 at the exchange rate of USD1=RM4.063 as at 9.2.2021) be paid to the Master for his wages and disbursements; b) the sum of USD1,615,512.28 (equivalent to RM6,563,826.39 at the exchange rate of USD1=RM4.063 as at 9.2.2021) to be paid to the crew as unpaid wages; c) pre-judgment and post-judgment interest on the judgment sum at the rate of 5% in accordance with Judgment in Default of Defence dated 1.9.2022; d) costs fixed at RM 10,000.00. For Suit 21 Judgment in Default a) the sum of USD117,608.02 (equivalent to RM484,897.87 at the exchange rate of USD1=RM4.123 as at 20.4.2021); b) pre-judgment interest on the judgment sum at the rate of 5% in accordance with Judgment in default of Defence dated 5.4.2022; c) costs fixed at RM 20,000.00. [108] Clearly, from the express terms of the Order of Priorities and Payment Out, the Court had authorised enforcement of the judgment sums obtained in Suit 11 and Suit 2 in terms of the currency stipulated therein, which is the RM equivalent as prayed in the in rem, namely, the sums of RM 1,486,407.31 and RM 6,563,826.39 for the Master and the crew members in Suit 11 and the sum of RM 484,897.87 for the crew members in Suit 21. [109] Notwithstanding the aforesaid, Mr Tong Wei Hang, learned counsel for the Plaintiffs contended that the conversion date stated in the s in rem in both the Suit 11 and Suit 21 were nothing more than to comply with the common practice when filing a claim in foreign currency to state the equivalent value in RM at the time of the Writ. It was submitted that the Plaintiffs are by no means barred from insisting on payment of judgment in foreign currency. [110] Reference was made to the English Civil Procedure Volume 1 (White Book 2023) where at para 16.3.3, it states thus: Money claim expressed in a foreign currency Where a claim is for a sum of money expressed in a foreign currency the claim form must expressly state a variety of matters including the Sterling equivalent of the sum at the date of the claim and the source of the exchange rate relied on to calculate the Sterling equivalent (PD 16 para 9.1 (See para 16PD9 below)). [111] Mr Tong Wei Hang also referred to the case of The Owners of Cargo Gang Cheng ion to amend an order (which had not been perfected) for damages to be awarded in USD because of the fall of the value of the RM as support that the Courts in Malaysia has the power and jurisdiction to pronounce judgment in a foreign currency. [112] The brief facts in Gang Cheng are as follows: a) the suit was brought by cargo owners against a shipowner for cargo damage. It was not disputed that the cargo purchased in USD and freight paid in USD. However, the cargo was delivered in Malaysia and salvaged in Malaysia; b) when the suit was filed, the plaintiff pleaded only general damages and did not specifically plead for the judgment to be given in USD; c) during trial, the plaintiff led evidence in RM to calculated its losses and sought RM1,800,000.00 in damages, based on the exchange rate of RM2.55 to the USD; d) for the sum consternation, this would have meant that the judgment was worth only some USD450,000.00 rather than USD700,000.00 and the Plaintiff had, due to the effluxion of time and the sharp downward value of the RM to the USD lost about USD250,000.00. The plaintiff immediately filed a notice of motion seeking the variation of the judgment to receive the judgment in USD. [113] In rejecting the objection from counsel for the defendant, the learned Kamalanathan Ratnam J held: Mr Arun for the defence vociferously argued that since in their submission the plaintiffs had asked for damages in Ringgit, they were awarded what they had asked for. But such a submission fails to consider the very purpose and nature of this notice of motion. It is because of that error that the plaintiffs now seek to rectify the order that has not been perfected. In fact, in Ling Nam Rubber Works the appellants' counsel had 'forgotten to ask then and there for interest as well, so that the order was tacit with regard thereto'. In the result an application was made, like in this case, before the order was passed and entered, for an amendment to include the interests. The same has happened in this case. Counsel had omitted to ask for the award of damages in the currency that best expressed the party's loss. Perhaps at that stage he might have thought it was unnecessary. In any case, I cannot even in this case consider this omission as an error. It is the intervening act of the fall of the value of the Ringgit between the pronouncement of the judgment and the perfection of the order that had necessitated this amendment to the order. Therefore, it is not correct for the defence to contend that by submitting for the award of damages to be in Malaysian Ringgit or its equivalent in United States currency, the plaintiffs were bound by what they received by way of judgment in Malaysian Ringgit. Counsel for the defence also argued that if I allowed this application I would be opening the flood gates to many such applications in that every plaintiff who has a judgment which can be expressed in more than one currency could come forward to seek a variation whenever the fluctuation benefits the plaintiff. This submission is flawed from inception. If the facts denote as in this case that there was a clear trading in United States currency and unchallenged evidence was adduced as to the rate of the Malaysian Ringgit to the US$1, then whether it is one case or a hundred, the road to justice must be open to each and every one of them. The flood gate principle must not be used to shut out the legitimate claim of a litigant. [emphasis added] [114] Further, in Inter Diam Pte Ltd v PJ Diamond Centre Sdn Bhd [2002] 7 MLJ 189, Mohd Hishamudin J held that where it had been agreed between the parties that in respect of some of the transactions, payment should be in USD, it would be wrong in principle to deny the plaintiff's rights to be paid in USD. In any case, there was no legal impediment with regard to giving judgment in USD or to giving judgment in the manner as prayed for in the statement of claim, namely, 'the sum of USD86,488.10 or its equivalent in Ringgit Malaysia on the date of judgment' of conversion can either be the date of judgment or the date of payment. [115] Armed with the aforesaid cases, Mr Tong Wei Hang contended that this Court should always uphold the principle that a plaintiff should be compensated in the currency that best expressed his loss. Since in this case, the wages and disbursements of the Master and crew members were paid in USD, the payment out from the Fund representing the proceeds of sale of the Vessel should be in USD converted at the date of payment. [116] With respect I disagree. [117] As a start, in Malaysia there is no equivalence to the English White Book 2023 requirement for a claim expressed in a foreign currency to convert the RM equivalent sum in the Writ or Statement of Claim as at the date of the claim although it may be a good practice to do so. However, the plaintiff claiming a sum in foreign currency is always at liberty to pray in his reliefs from the Court at the time of judgment for the payment of the foreign sum without specifying a conversion date or specifying the conversion date as at the time of judgment or time or payment. [118] Instead, in both the Suit 11 and Suit 21, the Plaintiffs had expressly prayed in the reliefs the sums in USD converted to RM as at the date of the Writ filed, namely, on 9.2.2021 and 20.4.2021 respectively. In other words, the Plaintiffs have unequivocally opted to recover their claims in RM instead of USD at the time of filing their Writs in Rem. The Plaintiffs had the opportunity to amend the reliefs when they proceeded to obtain the Suit 11 Judgment in Default and the Suit 21 Judgment in Default but chose not to do so. [119] This was precisely what happened in Den Norske Bank ASA v The [1998] MLJU 55, where an amendment was made before judgment for the conversion rate to be the date as at payment instead of the date when the claim was filed as was originally pleaded by the 1st intervener. In rejecting the objection by the plaintiffs, Abdul Malik Ishal J (as he then was) held as follows: The learned counsel for the plaintiffs mortgagee, argued that having provided the Malaysian Ringgit equivalent of their claim as at the date of the filing of the statement of claim the 1st intervenors were said to be bound by the amount in the Malaysian Ringgit equivalent as stated in their pleadings. Mr. Raj Sativale further contended that the 1st intervenors have chosen to crystallise the debt owing to them by the defendants. Mr. Clarence Edwin for the 1st intervenors argued that the writ and the statement of claim both pleaded the debt in Greek Drachmas and the statement of claim prayed for judgment in the Greek Drachmas and merely provided for the Malaysian Ringgit equivalent at the date of filing. Mr. Raj Sativale in advancing his argument relied heavily on the decision of K.L. Rekhraj JC (now J) in Ascot International Pte Ltd v. Elevic Trading Sdn Bhd [1996] 2 CLJ 645 where his Lordship held the view that a plaintiff filing a writ in Malaysia for a claim in foreign currency must express his claim in Malaysian Ringgit before filing the writ in court. The learned Judicial Commissioner relied on a 1936 decision of Terrell J in the case of Overseas Chinese Banking Corporation Ltd v. Firm of Yaik Joo Ann [1936] MLJ Rep 88. : Mr. Raj Sativale contended that the first intervenors were bound by their pleadings. This is indeed true. But there was a failure to mention that the law too provide for an amendment of pleadings. Order 20, rule 3 (1) of the RHC states as follows: "A party may, without the leave of the court, amend any pleadings of his once at any time before the pleadings are deemed to be closed and, where he does so he must serve the amended pleading on the opposite party." and it allows an amendment to the pleadings to be made once without leave and before the close of pleadings subject, of course, to certain obligations as to the service of the amended pleadings and in certain circumstances as to the necessity of amendments by the other party [emphasis added] [120] In our instant case, the Plaintiffs never applied for any amendments to their Writs in Rem in Suit 11 and Suit 21 and were happy to have their judgments to be expressed in RM as at the date of the Writs in Rem. Further, even at the Order of Priorities and Payment Out, the Plaintiffs were contended to have their claims expressed in similar terms as in their Suit 11 Judgment in Default and Suit 21 Judgment in Default. [121] Indeed, the Plaintiffs, when making the Priorities and Payment Out Application, specifically fixed the RM equivalent of their Judgment sums as at the date of their Writ in Rem actions, that is, 20.4.2021 for Suit 21 and 9.2.2021 for Suit 11. [122] Accordingly, it is my judgment that the Plaintiffs are no longer entitled to expect payments of their claims in Suit 11 and Suit 21 in USD and or its equivalent as at the date of payment. The claims have already been converted into RM as at the date of the Writ in Rem when the judgments were granted and the sums to be paid out as ordered in the Order of Priorities and Payment Out had been expressly stated in RM. D. Pre-judgment and Post-judgment interests [123] -judgment interest in both the Suit 11 and Suit 21 also run from the date of the action. [124] Paragraph (2)(iv)(a) and (b) of the Order of Priorities and Payment Out authorised the payment of pre-judgment interest and post-judgment interest on all sums adjudged to be due to the Plaintiffs under the Suit 11 Judgment in Default and Suit 21 Judgment in Default. [125] I agree with Mr Jeremy Joseph that since the Court authorised enforcement of the Judgment sums in their RM equivalent, it should follow that the interest rate of 5% p.a should be applied on the RM equivalent. [126] This was the intention of the Plaintiffs as expressed in the following manner: a) by fixing the conversion date for their claims in the RM equivalent as the date the action was brought, that is,

20.4.2021 for Suit 21 and 9.2.2021 for Suit 11 in Prayers 2 (iv)

and (b) and Prayer 2 (v) of the Priorities Application. b) by the use of the words, -sama dengan faedah pra-penghakiman dan faedah pasca-penghakiman ke atas semua jumlah yang dihakimi sebagai kena dibayar kepada Plaintif-Plaintif dalam Penghakiman Ingka in Suit 11 and Suit 21, the Plaintiffs intended interest to be charged on the judgment sums, which are stated in the RM equivalent. [127] the correct interest payable to the Plaintiffs to be as follows. Interest (RM) Suit 21 Default Judgment Paragraph 2(iv)(a) Unpaid Wages of converted to RM484,897.87 as at 20.4.2021 Pre-judgment interest on RM484,897.87 at the rate of 5% p.a on from 20.4.2021 (date of action) until 5.4.2022 (date of Judgment) 23,314.95 Post-judgment interest on RM484,897.87 at the rate of 5% p.a from 6.4.2022 until date of full satisfaction (date of payment out of the Fund)

66.42 per day Suit 11 Default Judgment Paragraph 2(iv)(b) Unpaid Wages of USD30,660.00 converted to RM124,571.58 as at 9.2.2021 Pre-judgment interest on RM 124,571.58 at the rate of 5% p.a from 9.2.2021 (date of action) until 1.9.2022 9,726.82 Post-judgment interest on RM 124,571.58 at the rate of 5% p.a from 2.9.2022 until date of full satisfaction (date of payment out of the Fund)

17.06 per day Suit 11 Default Judgment Paragraph 2(iv)(b) of USD335,179.85 converted to RM1,361,835.73 as at 9.2.2021 Pre-judgment interest on RM 1,361,835.73 at the rate of 5% p.a from 9.2.2021 (date of action) until 1.9.2022 106,335.12 Post-judgment interest on RM1,361,835.73 at the rate of 5% p.a from 2.9.2022 until date of full satisfaction (date of payment out of the

Fund) 55 per day Suit 11 Default Judgment Paragraph 2(iv)(b) Unpaid Wages of converted to RM6,563,826.39 as at 9.2.2021 Pre-judgment interest on RM6,563,826.39 for at the rate of 5% p.a from 9.2.2021 (date of action) until 1.9.2022 512,517.95 Post-judgment interest on RM6,563,826.39 at the rate of 5% p.a from 2.9.2022 until date of full satisfaction (date of payment out of the

Fund) 15 per day

(2)(v) Repatriation Costs of USD58,442.03 converted to RM240,956.49 as at 20.4.2021 Pre-judgment interest on RM240,956.49 at the rate of 5% p.a from 20.4.2021 (date of action) until 5.4.2022 11,585.72 Post-judgment interest on RM240,956.49 at the rate of 5% p.a from 6.4.2022 until date of full satisfaction (date of payment out of the

Fund) 01 per day Erroneous Payments [128] From the POJ email dated 13.9.2023, it would appear that POJ had used the conversion rate of USD1=RM4.7900 as at 21.8.2023 for all the USD claims including the Suit 11 Judgment in Default and Suit 21 Judgment in Default notwithstanding the express stipulations in the Order of Priorities and Payment Out. [129] It is also confirmed that POJ had also used the conversion date as at 21.8.2023 for the claims in CNY and GBP. [130] Also, in respect of the pre-judgment and post-judgment interests on the Suit 11 Judgment in Default and Suit 21 Judgment in Default, interests at 5% p.a. were imposed over the sum in USD and not in RM. [131] Not only were the wrong conversion date used for the foreign currency, POJ had also over paid a sum of RM 185,416.49 in excess of the Fund. It is trite that the payments to the claimants to the Fund are limited by the quantum representing the Fund. [132] All the aforesaid errors necessarily mean that the payments made to SD by POJ pursuant to the Order of Priorities and Payment Out were not properly made in accordance with the law. As such, this Court will make the appropriate orders to regularise the payments. To my mind, there can be no doubt that this Court has the jurisdiction to do so. [133] Before concluding and for completeness, during oral submissions, it was highlighted that there was prepared by the Sheriff as to the details of payment out on the sums due to the Plaintiffs pursuant to the Order of Priorities and Payment Out. [134] Although not specifically provided for under O 70 of our Rules of Statement and it is unfortunate that this was not done in this case. the present case. [135] As regards the sum of RM 185,416.49, SD clarified at a further hearing subsequent to the main oral hearing of Enclosure 520 that the total sums that SD had received from POJ did not in fact exceed the Fund (RM20,802,988.49) if the sum of RM520,099.71 that had previously been paid out to the Sheriff and the sum of 145,460.00 paid to Messrs Shaikh David are not considered. However, SD conceded that the sum of RM 185,416.49 demanded by POJ to be refunded is in fact a sum that is over and above the balance of the Fund available at the material times for payment to them. On this ground, SD intimated that it was prepared to make the refund of the sum. [136] Before concluding and making my orders in respect of Enclosure 520, I need to further state that the payment out of the Fund in the present case should have been made to the claimants in the local currency and such payments ought not to have been converted into the foreign currencies as requested by SD which had resulted in POJ having to bear the costs for the conversion. Conclusion [137] Based on my above analysis and findings, I hereby make the following orders: a) that the RM equivalent conversion rate for the payment of USD 1,731,366.42, CNY 529,468.14 and GBP 2,560.00 out of the proceeds of sale of the Vessel be the date of the Order of Priorities and Payment Out, namely on 20.3.2023; b) that the RM equivalent conversion rate for the payment of USD 117,608.02 and USD 58,442.03 in Suit 21 and USD 365,839.85 and USD 1,615,512.28 in Suit 11 be 20.4.2021 and 9.2.2021 respectively; c) that the pre-judgment and post-judgment interest at 5% p.a. that are adjudged in Suit 21 and Suit 11 be computed based on the RM equivalent amounts as stated in the respective Writs and Statements of Claim thereto. The computation is as set out in paragraph 127 above; d) that Messrs Shearn Delamore to refund to the Court all excess payments made on 21.8.2023 forthwith after computing the correct sums payable based on the conversion rates as ordered herein. The sum refunded after deducting the RM 185,416.49 (which shall be paid back to PJO) shall be kept by the Court for payments to all the pari passu claimants under the Order of Priorities and Payment Out; e) costs of this application to be borne by the Plaintiffs fixed at RM 25,000.00 subject to allocator. f) there be liberty to apply. Dated the 8th day of December 2023 ONG CHEE KWAN Judge of the High Court of Malaya High Court of Kuala Lumpur, NCC2 Counsel:

Nik Azila Shuhada together with Mr. Tong Wei Hang and Ms. Ong Tze Xian for Plaintiffs / 1st and 2nd Interveners

Mr. Lionel Noel for Defendant

Mr. Jeremy Mark A/L Joseph Jayaraj S. together with Ms. Vinodhini Benjamin Samuel and Mr. Matthew Jerome van Huizen for 3rd

Miliangos v George Frank (Textile) Limited [1976] AC 443 2. Serac Asia Sdn Bhd v Sepakat Insurance Tab 5 Brokers Sdn Bhd [2013] 5 MLJ 1 3. Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393 4. Hock Hua Bank v Sahari bin Murid [1981] 1 MLJ 143 5. Stone World Sdn Bhd v Engareh (M) Sdn Bhd [2020] 12 MLJ 237 6. New Kok Ann Realty Sdn Bhd v Development & Commercial Bank Ltd, New Hebrides (In Liquidation) [1987] 1 MLJ 57 7. Miliangos v George Frank (Textile) Limited [1976] AC 443 8. In Re P Suppiah (Tara Rajaratnam, Judgment Creditor) [1989] 2 MLJ 479 9. Re Dynamics Corporation of America [1976] 1 W.L.R.

Owners of the mv Eleftherotria v Owners of the mv Despina R; The Despina R, [1977] 3 All ER 874 11. Dilingham Corporation Canada Ltd v. The Ship Shinyu Maru [1980] 1 FC 303 12. [1998] 6 MLJ 492 13. Inter Diam Pte Ltd v PJ Diamond Centre Sdn Bhd [2002] 7 MLJ 189

[1998] MLJU 55

Companies Act 1948 2. Section 504 of the Merchant Shipping Act 1894 3. Order 90 rules 6 and 12(2) of the Rules of Court 2012 4. O 70 of our Rules of Court 2012