Asia Capital Commodities Trade Sdn Bhd v Worldport Corporation Limited, Hong Kong (W-02(ADM)(W)-421-03/2024)

This judgment discusses, among others, a novel question of whether an owner of a vessel (Vessel Owner) could rely on a defence that gambling is illegal, in an admiralty action in rem by a company appointed by the Vessel Owner to operate and maintain the vessel as-

a passenger cruise vessel; and

a casino (when the vessel was in international waters). B. Background

We shall refer to parties as they were in the High Court.

The defendant company (Defendant) owned a vessel named "Oriental Dragon" (Vessel).

By way of a letter dated 12.11.2019 [Defendant's Letter (12.11.2019)], the Defendant appointed the plaintiff company (Plaintiff) as follows: "Re: Appointed as Ship Operator for Handle Operations Matter of "Oriental Dragon" We are pleased to appoint your esteem [sic] company on behalf of Ship Owner, as the operator to attend and arrange for smooth operation as required at Penang Port, Malaysia. We look forward to your kind cooperation and smooth handling to arrange the necessary formalities and clearance with the relevant port authorities and department involved." (emphasis added).

Mr. Cheah Kah Chye (Mr. Cheah) -

owns 50% of the shares in the Plaintiff; and

is a director of the Plaintiff.

The Defendant entered into a Memorandum of Understanding dated 7.12.2019 with Mr. Cheah (MOU). According to the MOU, among others-

recital B and clause 1.2 stated that Mr. Cheah would provide an "interest-free fund" of HK$30,000,000.00 to the Defendant to carry out "certain business operations" on board the Vessel;

clause 2.5 provided that, among others, the Defendant "shall be entitled to claim, in accordance with the share apportionment of the joint venture entity, from such fund all its incurred costs and expenses arising from the voyage and operation of the Vessel from Hong Kong (HK) to the Destination" (defined as the Penang Port in clause 2.1);

clause 3.1 stated that subject to clause 3.2, for the first two years from the date of the MOU, the parties shall distribute "dividends" on a "50/50 basis";

clause 5.1 provided that the MOU and "any non-contractual obligations arising from or in connection with" the MOU, "shall in all respects be governed by and interpreted in accordance with the laws of [HK]"; and

both the Defendant and Mr. Cheah "irrevocably" agreed in clause 5.2 that the HK courts are to have "exclusive jurisdiction over any dispute(s) arising from or in connection with" the MOU or relating to "any noncontractual obligations arising from or in connection with" the MOU.

The Defendant sent another letter dated 18.12.2019 to the Plaintiff [Defendant's Letter (18.12.2019)]. The contents of the Defendant's Letter (18.12.2019) were the same as in the Defendant's Letter (12.11.2019).

The Vessel was operated and maintained by the Plaintiff for the following business:

passenger cruise business (Passenger Cruise Business); and

casino business (Casino Business). The Casino Business was only run in international waters.

The Plaintiff paid for the operation and maintenance of the Vessel [Plaintiff's Payments (Vessel)].

Due to the Covid-19 pandemic (Pandemic) -

the Vessel could not continue the Passenger Cruise Business and Casino Business;

the Vessel was docked in Penang port;

the Vessel's crew (Crew) stayed onboard the Vessel;

the Defendant did not pay for-

the expenses regarding the Vessel [Expenses (Vessel)]; and

the salaries of the Master and Crew [Salaries (Crew)]; and

the Defendant did not reimburse the Plaintiff with regard to the Plaintiff's Payments (Vessel).

The Plaintiff sent a letter dated 21.10.2020 to the Defendant [Plaintiff's Letter (21.10.2020)] which stated as follows, among others:

due to the Pandemic-

the Vessel could not operate;

the Plaintiff had suffered "major losses for the past 8 months"; and

the Plaintiff terminated its operation and management of the Vessel with immediate effect;

the Plaintiff would proceed with the "necessary action to claim all the incurred costs and expenses" from the Defendant; and

the Plaintiff would no longer be responsible and liable for the Vessel in Penang.

An email dated 23.10.2020 was sent by the Plaintiff to the Defendant [Plaintiff's Email (23.10.2020)]. Attached to the Plaintiff's Email (23.10.2020) was the Plaintiff's Letter (21.10.2020). The Plaintiff's Email (23.10.2020) stated that the Plaintiff terminated its operation and management of the Vessel with immediate effect.

The Plaintiff sent an email dated 27.10.2020 to the Defendant [Plaintiff's Email (27.10.2020)]. According to the Plaintiff's Email (27.10.2020), the Plaintiff's Email (27.10.2020) "served as a formal notification and reminder" of the Plaintiff's termination of its operation and management of the Vessel.

The Defendant did not reply to the Plaintiff's Letter (21.10.2020), Plaintiff's Email (23.10.2020) and Plaintiff's Email (27.10.2020).

The Crew filed a writ in rem with regard to the Vessel (Crew's Suit) and claimed for the Salaries (Crew). In the Crew's Suit-

the Crew obtained an order from the High Court for the sale of the Vessel (Sale Order);

the Vessel was sold pursuant to the Sale Order [Sale (Vessel)]; and

the proceeds from the Sale (Vessel) were to be distributed by the court according to the priority of the claims. C. Proceedings in the High Court

The Plaintiff filed a writ in rem in respect of the Vessel (This Suit) and claimed for, among others, a reimbursement of the Plaintiff's Payments (Vessel) totaling RM8,130,181.34.

After a trial, the High Court dismissed This Suit with costs of RM20,000.00 (High Court's Decision). According to the learned High Court Judge's Grounds of Judgment-

the Vessel was brought to Malaysia in fulfilment of the MOU;

the Plaintiff's appointment as an operator of the Vessel was part of the MOU;

the Plaintiff was the party intended by the MOU to be responsible for expenses incurred for the operation and maintenance of the Vessel in Penang; and

This Suit could not be maintained outside the MOU. D. Proceedings in the Court of Appeal

The Plaintiff appealed to the Court of Appeal against the High Court's Decision (This Appeal).

In support of This Appeal, the Plaintiff's learned counsel had submitted as follows, among others:

the learned High Court Judge committed the following "plain errors" -

the Plaintiff was not a party to the MOU and This Suit was an admiralty action in rem which was not based on the MOU;

Mr. Cheah was not a party in This Suit;

the MOU is subject to HK law and any dispute regarding the MOU shall be exclusively decided by the HK court; and

the Defendant had commenced a suit in a HK court against Mr. Cheah based on the MOU (Defendant's HK Suit). The Plaintiff had not been sued in the Defendant's HK Suit;

the Plaintiff did not receive any profit under the MOU but after the Defendant abandoned the Vessel in Penang Port-

the Plaintiff's Payments (Vessel) had to be made; and

the Defendant did not reimburse the Plaintiff with regard to the Plaintiff's Payments (Vessel);

the Plaintiff was the Defendant's "agent of necessity" who took care of the Vessel and Crew (which is the Defendant's responsibility as the owner of the Vessel); and

the Plaintiff was not the "Joint Venture entity under the MOU (JV Entity) which was responsible for the Expenses (Vessel) and Salaries (Crew).

The Defendant resisted This Appeal on the following grounds, among others:

the Amended Statement of Claim in This Suit (ASOC) was defective because the ASOC did not plead that the Plaintiff had a cause of action in contract against the Defendant;

the Plaintiff was the JV Entity which was incorporated by Mr. Cheah to implement the MOU. Consequently, the Plaintiff (not the Defendant) should be liable for the Expenses (Vessel) and Salaries (Crew);

the Defendant's appointment of the Plaintiff under the Defendant's Letter (12.11.2019) was ancillary to the MOU;

as Mr. Cheah and/or the Plaintiff was or were responsible under the MOU for the Expenses (Vessel) and Salaries (Crew), the Plaintiff had wrongly filed This Suit as an admiralty action in rem; and

Mr. Cheah was the "alter ego" of the Plaintiff.

During the first oral hearing of This Appeal, we posed the following two questions to learned counsel for both parties [2 Questions (Court)]:

on the assumption that the Plaintiff was the Defendant's agent with regard to the operation and management of the Vessel, whether ss 175, 176 and 178 of the Contracts Act 1950 (CA) applied in This Appeal; and

could the court on its own motion, "pierce" (not merely "lift') the corporate veil of the Plaintiff, when the Defence did not plead for the piercing of the Plaintiff's corporate veil?

The Defendant's third written submission dated 28.3.2025 (court enclosure no.93), was filed to answer the 2 Questions (Court) （Defendant's 3 $ ^{rd} $ Written Submission). In the Defendant's 3 $ ^{rd} $ Written Submission, without leave of the Court of Appeal, the Defendant's learned counsel raised for the very first time the following submission:

the Casino Business would render-

the MOU; and

the agreement between the Plaintiff and Defendant [Contract (Plaintiff-Defendant)] void pursuant to -

s 26(1), (2) and (4) of the Civil Law Act 1956 (CLA); and

(ii) ss 24(a), (b), (e) and 31(1) of the Contracts Act 1950 (CA); and

reliance was placed on the judgment of Nordin Hassan FCJ in the Federal Court case of Dato' Ting Ching Lee v Ting Siu Hua [2025] 2 MLJ 295. E. Issues

In addition to the question regarding the legality of the MOU and Contract (Plaintiff-Defendant) raised for the first time in This Appeal (please refer to the above paragraph 22), the following issues will be determined:

whether This Suit was correctly filed by the Plaintiff as an admiralty action in rem under s 20(1)(a), (2)(m) and (p) of United Kingdom's (UK) Senior Courts Act 1981 [SCA (UK)] read with s 24(b) of the Courts of Judicature Act 1964 (CJA);

did the ASOC plead sufficient "material facts" as required by O 18 r 7(1) of the Rules of Court 2012 (RC) with regard to the Plaintiff's cause of action in contract against the Defendant?;

after the entry of the Defendant's appearance in This Suit, could the Plaintiff proceed with This Suit against the Defendant as an action in personam?;

had the Defendant appointed the Plaintiff as the Defendant's agent to operate and manage the Vessel [Agency (Plaintiff-Defendant)]? In this regard, was the Defendant estopped by its two letters and conduct from denying the existence of the Agency (Plaintiff-Defendant)?;

if the Agency (Plaintiff-Defendant) existed -

whether the Plaintiff's Payments (Vessel) had been made with -

the implied authority of the Defendant within the meaning of ss 139 and 140 CA;

(ii) the authority conferred by s 141(1) and (2) CA; and/or

(iii) s 142 CA; and

is the Defendant liable to indemnify the Plaintiff in respect of the Plaintiff's Payments (Vessel) pursuant to ss 175,176 and/or 178 CA?;

whether the learned High Court Judge had committed a "plain error" of mixed law and fact in deciding that the Agency (Plaintiff-Defendant) was part of the MOU;

did the MOU provide for the Plaintiff to be the JV Entity?; and

could the Defendant apply to court to pierce or lift the corporate veil of the Plaintiff so as to reveal that the "alter ego", "directing mind and will" or "controller" of the Plaintiff is Mr. Cheah? F. Whether the MOU and Contract (Plaintiff-Defendant) were illegal on the ground that the Casino Business was prohibited by Malaysian law

We reproduce below s 26 CLA, ss 24 and 31 CA: "CLA s

Agreement by way of gaming or wagering to be null and void

All contracts or agreements, whether by parol or in writing, by way of gaming or wagering shall be null and void.

No action shall be brought or maintained in any Court for recovering any sum of money or valuable thing alleged to be won upon any wager or which has been deposited in the hands of any person to abide the event on which any wager has been made.

Subsections (1) and (2) shall not be deemed to apply to any subscription or contribution, or agreement to subscribe or contribute, for or toward any plate, prize, or sum of money to be awarded to the winner of any lawful game, sport, pastime or exercise.

Any promise, express or implied, to pay any person any sum of money paid by him under or in respect of any contract or agreement rendered null and void by subsections (1) and (2), or to pay any sum of money by way of commission, fee, reward or otherwise in respect of any such contract or of any services in relation thereto or in connection therewith, shall be null and void, and no action shall be brought or maintained to recover any such sum of money. CA s 24. What considerations and objects are lawful, and what not The consideration or object of an agreement is lawful, unless -

it is forbidden by a law;

it is of such a nature that, if permitted, it would defeat any law;

it is fraudulent;

it involves or implies injury to the person or property of another; or

the court regards it as immoral, or opposed to public policy. In each of the above cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void. s 31. Agreements by way of wager void

Agreements by way of wager are void; and no suit shall be brought for recovering anything alleged to be won on any wager, or entrusted to any person to abide the result of any game or other uncertain event on which any wager is made. Exception in favour of certain prizes for horse racing

This section shall not be deemed to render unlawful a subscription or contribution, or agreement to subscribe or contribute, made or entered into for or toward any plate, prize, or sum of money, of the value or amount of five hundred ringgit or upwards, to be awarded to the winner or winners of any horse race.

Nothing in this section shall be deemed to legalise any transaction connected with horse racing forbidden by any written law." (emphasis added).

The Defence in this case did not plead illegality as a ground to resist This Suit. Nor did the Defendant raise any submission in the High Court regarding any illegality. Notwithstanding all these facts, illegality can be raised at any stage of the proceedings. We rely on the following judgment of the High Court in Dr HK Fong Brainbuilder Pte Ltd v SG-Maths Sdn Bhd & Ors [2018] 11 MLJ 701, at [33] and [34]: [33] When a party alleges a contract or transaction is unlawful, I will adopt the approach as stated in Barisan Tenaga Perancang (M) Sdn Bhd v Dr Mansur bin Hussain & Ors [2017] 2 MLRH 177, at paragraph 39, as follows: [39] This court will adopt the following approach in deciding whether [two agreements] were a cloak for a transaction which is illegal and unenforceable under [MoneyLenders Act 1951]:

illegality need not be pleaded - please see the Supreme Court's judgment delivered by Peh Swee Chin SCJ in Lim Kar Bee v Duofortis Properties (M) Sdn Bhd [1992] 2 MLJ 281, at 288. ...;

a party may raise an issue on illegality at any stage of the proceedings, even at the appellate level. In Keng Soon Finance Bhd v MK Retnam Holdings Sdn Bhd [1989] 1 MLJ 457, at 460-462, the breach of s 5(1) [Housing Development (Control & Licensing) Act 1966] was only raised for the first time during the hearing of the appeal before the Privy Council. Despite the fact that the illegality issue had not been pleaded and raised in the High Court and the then Federal Court, the Privy Council in a judgment delivered by Lord Oliver, allowed such a question to be raised. ...;

proviso (a) to s 92 EA allows oral and documentary evidence to be admitted to contradict a contract on the ground of illegality please refer to the Supreme Court's judgment delivered by Peh Swee Chin SCJ in Lim Kar Bee, at p. 289;

there is no privilege attached to a communication between a client and his or her practising [Advocate & Solicitor (A&S)] (Legal Communication) in the following circumstances

when the Legal Communication was made in furtherance of any illegal purpose please see proviso (a) to s 126(1) EA; and/or

when the A&S observed any fact in the course of the A&S's employment which showed any crime or fraud had been committed since the commencement of the A&S's employment - please see proviso (b) to s 126(1) EA;

in deciding whether there is an illegality in a case, the court has the discretion to lift and/or pierce a corporate veil - please refer to Lim Kar Bee, at 291;

the court is not bound by the label or description of the agreement in question - please see Gopal Sri Ram JCA's (as he then was) judgment in the Court of Appeal case Sia Siew Hong & Anor v Lim Gim Chian & Ors [1996] 3 CLJ 26, at 32;

the court can and should go should behind the agreement or transaction to ascertain -

the true nature of the agreement or transaction - Gopal Sri Ram JCA's judgment in the Court of Appeal case of Sri Kelangkota-Rakan Engineering JV Sdn. Bhd. v Arab-Malaysian Prima Realty Sdn. Bhd. [2001] 1 MLJ 324, at 333-334. The Court of Appeal's judgment in Sri Kelangkota has been affirmed by the Federal Court in a judgment given by Abdul Malek Ahmad FCJ (as he then was) - please refer to [2003] 3 MLJ 257; and

the true nature of the relationship between the parties - please see the judgment of Gopal Sri Ram JCA in the Court of Appeal in Pan Global Equities Sdn Bhd & Anor v Taisho Co Sdn Bhd [2006] 1 MLJ 158, at 161; and

in Lori Malaysia Bhd v Arab-Malaysian Finance Bhd [1999] 2 CLJ 997, at 1010 and 1015-1016, the Federal Court recognised the trend in other Common Law countries that courts should be slow to strike down commercial transactions on illegality. The Federal Court has incorporated such a trend as part of Malaysian Common Law in Lori Malaysia Bhd." The Court of Appeal has affirmed the decision in Barisan Tenaga Perancang. [34] If there is an illegal contract or transaction, the court is duty bound to take cognizance of the illegality and cannot enforce the illegal contract or transaction (even if the illegality is not pleaded or raised by any party) - please see Tan Kang Hai v Slimming Sanctuary [2016] 5 MRLH 651, at paragraphs 11, 49 and 50." (emphasis added).

In Dato' Ting Ching Lee, at [1], [7], [11] to [19], [41] to [43], [46] to [73], [87] to [92] and [94] -

the respondent orally granted two credit lines totaling US$1,500,000.00 and an advance of rolling rebate for US$193,800.00 for the appellants to gamble in "Naga Casino", Cambodia (Credit Facilities);

the appellants utilized the Credit Facilities to gamble but did not repay the sums due to the respondent pursuant to the Credit Facilities [Debts (Credit Facilities)];

the appellants sued the respondent for defamation (Original Action) and the respondent counterclaimed for the Debts (Credit Facilities) (Counterclaim);

the High Court dismissed both the Original Action and Counterclaim. According to the High Court, the dismissal of the Counterclaim was due to the fact that the Counterclaim was an attempt to recover gambling debts which was prohibited by s 26 CLA, ss 24 and 31 CA;

the Court of Appeal upheld the High Court's dismissal of the Original Action but reversed the High Court's decision with regard to the Counterclaim on the ground that the Debts (Credit Facilities) were incurred as loans by the respondent to the appellants so as to enable the appellants to obtain casino chips (to bet in the casino). According to the Court of Appeal, the appellants were liable for the Debts (Credit Facilities) to the respondent; and

the Federal Court decided as follows-

the Credit Facilities did not constitute a genuine loan which was independent of the appellant's gambling activities. This was because the Credit Facilities were meant for the sole purpose of the appellants' gambling activities. Without the Credit Facilities, the appellants would not be able to obtain the casino chips for their gambling activities;

the Credit Facilities were invalid due to a contravention of s 26 CLA, ss 24 and 31 CA. Accordingly, the Federal Court reversed the Court of Appeal's decision and held that the appellants were not liable to the respondent for the Debts (Credit Facilities).

We do not accept the submission by the Defendant that the MOU and Contract (Plaintiff-Defendant) are illegal. Our reasons are as follows:

by virtue of clause 5.1 MOU, the MOU "shall" be interpreted in accordance with the laws of HK (not Malaysian law). Consequently, Malaysian law (including s 26 CLA, ss 24 and 31 CA) does not apply to the MOU;

in clause 5.2 MOU, both the Defendant and Mr. Cheah had "irrevocably" agreed for HK courts to have "exclusive jurisdiction" over any dispute regarding the MOU. In other words, Malaysian court has no jurisdiction to decide on the validity of the MOU or otherwise;

the Defendant is barred by clauses 5.1 and 5.2 MOU from invalidating the MOU in Malaysian courts based on Malaysian law;

Dato' Ting Ching Lee can be easily distinguished from this case because the oral Credit Facilities in Dato' Ting Ching Lee were offered and accepted in Malaysia. Hence, it was not disputed in Dato' Ting Ching Lee that Malaysian courts had the jurisdiction to decide on the legality of the Credit Facilities based on Malaysian law; and

even if assuming that clauses 5.1 and 5.2 MOU do not apply in this case, namely-

Malaysian courts have jurisdiction with regard to any dispute in respect of the MOU; and

Malaysian law applies to the MOU - we have no hesitation to decide that the Contract (Plaintiff-Defendant) was lawful and enforceable because-

in substance, reality and effect, the Contract (Plaintiff-Defendant) was for the Plaintiff to operate and maintain the Vessel for not only the Casino Business but also for the Passenger Cruise Business (which was not prohibited by Malaysian law);

(ii) the Contract (Plaintiff-Defendant) was not intended for the sole purpose of the Casino Business; and

(iii) in accordance with the judgment of the Federal Court delivered by Edgar Joseph Jr FCJ in Lori Malaysia Bhd v Arab-Malaysian Finance Bhd [1999] 2 CLJ 997, at 1010 and 1015 to 1016, our courts should be slow to strike down commercial transactions on illegality; and

the Defendant cannot now blow hot and cold by-

alleging that the MOU is invalid in Malaysian courts under Malaysian law; and

enforcing the MOU in accordance with, among others, clauses 5.1 and 5.2 MOU by the filing of the Defendant's HK Suit. G. Had the Plaintiff correctly filed This Suit as an action in rem with regard to the Vessel?

The relevant parts of ss 20, 21 SCA (UK) and s 24(b) CJA state as follows: s 20. Admiralty jurisdiction of High Court.

The Admiralty jurisdiction of the High Court shall be as follows, that is to says 21. Mode of exercise of Admiralty jurisdiction

jurisdiction to hear and determine any of the questions and claims mentioned in subsection (2);

The questions and claims referred to in subsection (1)(a) are s 21. Mode of exercise of Admiralty jurisdiction

any claim in respect of goods or materials supplied to a ship for her operation or maintenance;

any claim by a master, shipper, charterer or agent in respect of disbursements made on account of a ship; ...

In the case of any such claim as is mentioned in section 20(2)(e) to (r), where -

the claim arises in connection with a ship; and

the person who would be liable on the claim in an action in personam ("the relevant person") was, when the cause of action arose, the owner or charterer of, or in possession or in control of, the ship, an action in rem may (whether or not the claim gives rise to a maritime lien on that ship) be brought in the High Court against

that ship, if at the time when the action is brought the relevant person is either the beneficial owner of that ship as respects all the shares in it or the charterer of it under a charter by demise; or

(ii) any other ship of which, at the time when the action is brought, the relevant person is the beneficial owner as respects all the shares in it. CJA s 24. Civil jurisdiction - specific Without prejudice to the generality of section 23, the civil jurisdiction of the High Court shall include-

the same jurisdiction and authority in relation to matters of admiralty as is had by the High Court of Justice in England under [SCA (UK)]; ...”

The Plaintiff's Payments (Vessel) comprised the following seven sums:

Penang Port related expenses in an amount of RM1,501,423.49;

provision and supply to the Vessel in a sum of RM1,092,353.45;

supply of bunkering, lubricant and additives to the Vessel amounting to RM3,200,300.00;

a sum of RM328,932.00 for cost of insurance and classification of the Vessel;

hardware and software for the Vessel (for the Passenger Cruise Business and Casino Business) in a sum of RM1,195,546.91 (Vessel's Hardware/Software);

Crew's expenses amounting to RM1,846,111.45; and

a sum of RM1,195,546.91 constituted "offshore expenses" with regard to the setting up of an offshore office to support the Passenger Cruise Business and Casino Business (Offshore Expenses).

Firstly, the Defendant's learned counsel had submitted that in addition to compliance with s 20 SCA (UK), there should also be a fulfillment of s 21(4) SCA (UK) before Malaysian courts can have admiralty jurisdiction. With respect, we are of the following view:

s 24(b) CJA stipulates that our High Court has the "same jurisdiction and authority in relation to matters of admiralty as is had by the High Court of Justice in England" under SCA (UK);

s 20 SCA (UK) provides for the admiralty jurisdiction of UK's High Court while s 21 SCA (UK) concerns the "Mode of exercise of Admiralty jurisdiction";

by virtue of s 24(b) CJA, for our High Court to have admiralty jurisdiction, the only provision which is applicable is s 20 SCA (UK) (regarding the admiralty jurisdiction of UK's High Court); and

s 21 SCA (UK) concerns the mode of exercise of the admiralty jurisdiction of UK's High Court. Section 21 SCA (UK) does not provide for the admiralty jurisdiction of UK's High Court. If our High Court has admiralty jurisdiction pursuant to s 20 SCA (UK) read with s 24(b) CJA, our High Court should exercise the admiralty jurisdiction in the manner prescribed by O 70 RC (Admiralty proceedings) [not pursuant to s 21 SCA (UK)].

Secondly, we are not able to find any case in UK which has interpreted s 20(2)(p) SCA (UK). Giving a literal construction of s 20(2)(p) SCA (UK), if a "master, shipper, charterer or agent" of a vessel has incurred "disbursements made on account" of the vessel, the master, shipper, charterer and agent of the vessel can file an admiralty action in rem in our High Court under s 20(2)(p) SCA (UK) read with s 24(b) CJA. As explained in paragraph 37 below, the Agency (Plaintiff-Defendant) had been proven in this case by the Plaintiff on a balance of probabilities. Consequently, This Suit could be filed by the Plaintiff as a suit in rem pursuant to s 20(2)(p) SCA (UK) read with s 24(b) CJA. This is because-

the Plaintiff's Payments (Vessel) had been made by the Plaintiff as the Defendant's agent for the operation and maintenance of the Vessel; and

the Plaintiff's Payments (Vessel) could be claimed as "disbursements" made by the Plaintiff on account of the Vessel. On the above ground alone, This Suit had been properly filed as an admiralty action in rem under s 20(2)(p) SCA (UK) read with s 24(b) CJA.

Thirdly, the following four cases (in chronological order) have given a wide interpretation of s 20(2)(m) SCA (UK):

s 4(3)(m) of Australia's Admiralty Act 1988 (Commonwealth) [AA (Australia)] states as follows - "s 4(3) A reference in this Act to a general maritime claim is a reference to:

a claim in respect of goods, materials or services (including stevedoring and lighterage services) supplied or to be supplied to a ship for its operation or maintenance;...” (emphasis added). It is to be noted that s 4(3)(m) AA (Australia) has the same term "operation" as in s 20(2)(m) SCA (UK). Hence, the relevance of the following Australian case which had construed the term "operation" in s 4(3)(m) AA (Australia). In Port of Geelong Authority v The Ship "Bass Reefer" (1992) 109 ALR 505, at 518 to 519, Foster J in the Federal Court of Australia (as a court of first instance) gave a wide interpretation of the term "operation" in s 4(3)(m) AA (Australia) as follows- "I am of the view that the term "operation" should not be confined in its interpretation to matters relating to the mere movement or propulsion of the ship from one port to another. In The "River Rima" in the Court of Appeal [1987] 2 Lloyd's Rep 106 at 113, Nourse LJ said in relation to the supply of the containers under consideration that he was "also prepared to accept that it is possible to concede of a state of affairs in which they would have been goods supplied to a ship for the operation". He did not consider that such a state of affairs had been disclosed on the evidence. In the circumstances of the case he found that the containers had been provided to the shippers rather than to the ship. In the House of Lords, Lord Brandon was prepared to assume without deciding that "the use of a container... on board a ship designed to carry containers... is a use for the operation of such a ship within the meaning of para (m)": [1988] 1 WLR 758 at 762-3. I can see no valid reason for excluding from the concept of "operation of a ship" considerations relating to any special characteristics of the ship, such as its being a freighter or tanker or to any special use or voyage upon which it may be engaged, at least when these latter factors were reasonably within the contemplation of the supplier of the services and the operator of the ship." (emphasis added);

in UK's High Court case of Centro Latino Americano De Commercio Exterior SA v The Owners of the Ship, "Kommunar" [1996] CLC 1919, at 1921, 1924, Clarke J (as he then was) decided as follows "The question is whether the plaintiffs' claims are claims in respect of goods or materials supplied to those ships for their operation or maintenance. In my judgment, in one sense at least, they plainly are. They are claims to be repaid sums which the plaintiffs have paid to the sub-agents who have supplied the goods. However, Miss Birch correctly submits on behalf of the defendants that it is necessary to have regard to the nature of the alleged contract and to the true nature of the plaintiffs' business. ... I should have said earlier that I accept Mr Steel's submission that the words 'in respect of are wide words which should not be unduly restricted. ..." (emphasis added);

according to Peter Gross QC, sitting as a Deputy Judge in UK's High Court case of The Edinburgh Castle [1999] 2 Lloyd's Rep 362, at 363 - "To address these concerns, Mr. Charkham helpfully invited my attention to a number of the authorities and to such discussion as there is on s 20(2)(m) and its predecessors. Taking the matter very shortly, for present purposes, the following propositions emerge:

The words "in respect of" are wide words which should not be unduly restricted: The Kommunar [1976] 1 Lloyd's Rep. 1, at p. 5.

Section 20(2)(m), which is derived from the equivalent provision in the Administration of Justice Act, 1956, contains a jurisdiction which is no narrower than the predecessor jurisdiction in respect of claims for "necessaries": The Fairport (No. 5) [1967] 2 Lloyd's Rep 162, The Kommunar, supra.

No distinction is drawn: ... between necessaries for the ship and necessaries for the voyage, and all things reasonably requisite for the particular adventure on which the ship is bound are comprised in this category, [Roscoe, The Admiralty Jurisdiction and Practice, 5th ed., at p. 203; The Riga (1872) LR 3 Ad. & Ecc.516].

The jurisdiction extends to the provisions of services: The Equator (1921) 9 LI.L.Rep. 1: The Fairport (No. 5), supra." (emphasis added); and

in UK's High Court case of Lavington International Ltd v Bareboat charteres of vessels, "Nore Challenger" and "Nore Commander" [2001] CLC 1217, at [12] and [14] to [17], David Steel J delivered the following judgment- [12] Brandon J, now Lord Brandon, had a further opportunity to review the scope of subs. (m) in The River Rima [l9881 2 L1 Rep 193. The primary issue was whether the court had jurisdiction in rem in relation to a claim for damages to containers on the basis that the containers were 'goods supplied to a ship for her operation'. By now s.1 of the 1956 Act had been replaced by s.20 of the Supreme Court Act 1981 but in all material respects without amendment. The House of Lords concluded that the supply of the containers was to a ship owner and not to a ship and thus not within (m), but in support of this conclusion consideration was given to the source of (m) namely para. (k) in art. l(1) of the 1952 Arrest Convention: '(k) A claim arising out of ... goods or materials wherever supplied to a ship for her operation or maintenance.' [14] Having regard in particular to the use of the word 'wherever' in art. l(l)(k), Lord Brandon concluded as follows: 'It is I think clear that, insofar as the list of types of claims in Article l(1) of the Convention was derived as a whole from the list of types of claims in Section 22(l)(a) of the 1925 Act, the particular type of claim specified in paragraph (k) of Article l(1) of the Convention was derived from paragraph 7 of the latter list. In other words what is now called a claim in respect of goods and materials supplied to a ship for her operation and maintenance is the equivalent of what used to be called a claim for necessaries, but without the restrictions that formerly applied to such a claim.' [15] It follows that, despite the use of the words 'goods or materials' which might suggest the supply of purely physical items, the subsection incorporates all necessaries. Necessaries [16] Before considering whether the concept of necessaries encompasses the provision or supply of crew, it is important to bear in mind that it has long been established that no distinction need be drawn between the supply of necessaries and the payment for such supply: 'It cannot be questioned that the cases of The Rio Tinto and The Heinrich Bjorn amongst others, established that the person who pays for necessaries supplied to a ship has, as against that ship and her owners, as good a claim as the person who actually supplied them, and, further, that he who advances money to the person who thus pays, for the purpose of enabling him to pay, stands in the same position as the person to whom the money is advanced: ' see Foong Tai v Buchheister [l9081 AC 458 at p. 466. [17] But is the provision of crew services (or payment of wages, in that respect) a supply of necessaries? The fist point to make is that the expression has traditionally been given a broad construction: 'whatever is fit and proper for the service on which a vessel is engaged, whatever the owner of that vessel, as a prudent man, would have ordered if present at the time, comes within the meaning of the term necessaries, as applied to those repairs or things provided for the ship by order of the master, for which the owners are liable:' see The Riga (1872) LR 3 A & E 516 at p. 522." (emphasis added).

Premised on the cases explained in the above paragraph 32, we have no hesitation to decide that This Suit was properly filed by the Plaintiff as an admiralty action in rem with regard to the Vessel pursuant to s 20(2)(m) SCA (UK) read with s 24(b) CJA. This decision is premised on the following reasons:

according to The Bass Reefer, in considering the term "operation" of a ship in s 20(2)(m) SCA (UK), the court may take into account the "special use or voyage" of the Vessel, namely the Passenger Cruise Business and Casino Business. The nature of the Contract (Plaintiff-Defendant) and the "true nature" of the business should be considered - please refer to The Kommunar. Based on The Bass Reefer and The Kommunar, having considered the Agency (Plaintiff-Defendant), the Passenger Cruise Business and Casino Business run by the Vessel in this case, the Plaintiff's Payments (Vessel) fell within the phrase "any claim in respect of goods or materials supplied to [the Vessel] for her operation or maintenance" in s 20(2)(m) SCA (UK);

the phrase "in respect of" in s 20(2)(m) SCA (UK) should be given a wide interpretation - please refer to The Kommunar and The Edinburgh Castle. The Plaintiff's Payments (Vessel) clearly constituted a "claim in respect of goods or materials" supplied to [the Vessel] for her operation or maintenance" within the meaning of s 20(2)(m) SCA (UK); and

according to The Edinburgh Castle and The Nore Challenger, s 20(2)(m) SCA (UK) encompasses the provision of "services" to the ship in question. Consequently, the Vessel's Hardware/Software and Offshore Expenses constituted "services" provided to the Vessel so as to enable the Vessel to carry out the Passenger Cruise Business and Casino Business. H. Did the ASOC plead sufficient "material facts" regarding the Plaintiff's cause of action in contract against the Defendant?

The Defendant's learned counsel contended that the ASOC was defective because the ASOC had not pleaded against the Defendant a cause of action in contract. We are not able to accede to such a submission because paragraphs 3,7 to 11, 13,14 and 17 to 28 ASOC had pleaded sufficient "material facts" as understood in O 18 r 7(1) RC for the Plaintiff to claim for the Plaintiff's Payments (Vessel) from the Defendant based on the Agency (Plaintiff-Defendant). O 18 r 7(1) RC states as follows: "Facts, not evidence, to be pleaded O18r7(1) Subject to the provisions of this rule and rules 10, 11 and 12, every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement shall be as brief as the nature of the case admits." (emphasis added). The following material facts had been pleaded in the ASOC-

the Defendant had appointed the Plaintiff to operate and manage the Vessel - paragraphs 7 to 10 ASOC;

the Plaintiff operated and managed the Vessel - paragraphs 11, 13 and 14 ASOC;

the Plaintiff's Payments (Vessel) had been made - paragraphs 14,17,18,20,21 and 25 to 27 ASOC;

the Plaintiff requested for the Defendant to pay for the expenses to continue the operation and maintenance of the Vessel but such a request was not fulfilled by the Defendant - paragraph 19 ASOC;

by way of the Plaintiff's Letter (21.10.2020), Plaintiff's Email (23.10.2020) and Plaintiff's Email (27.10.2020), the Plaintiff terminated its operation and maintenance of the Vessel - paragraphs 21 to 23 ASOC; and

the Plaintiff claimed for, among others, the Defendant's reimbursement of the Plaintiff's Payments (Vessel) - paragraphs 25 to 28 ASOC. I. Can the Plaintiff proceed with This Suit against the Defendant as an action in personam?

In This Suit, the Defendant entered appearance on 16.11.2020. Thereafter, This Suit continued as a hybrid action, namely, as an action in rem as well as an action in personam. This is clear from the following judgment of Wee Chong Jin CJ in the Court of Appeal of Singapore in Owners of the Ship or Vessel "Kusu Island" v Owners of Cargo Lately Laden on board the Ship or Vessel "Brani Island" [1989] 3 MLJ 257, at 261- "The principles that can be deduced from these authorities are briefly these. In an admiralty action in rem where a defendant enters an unconditional appearance, he submits to the jurisdiction of the court personally and from then onwards the action continues as an action in rem and in personam, and judgment may be entered and enforced against him to the full extent of the damages awarded to the plaintiff and is not limited to the value of the res or the bail which represents the res. In consequence, if judgment is entered for the plaintiff and is not fully satisfied by enforcement thereof against the res, execution proceedings for the balance may be initiated against the defendant personally: it is a judgment in rem against the res as well as in personam against the defendant personally." (emphasis added). Premised on The Kusu Island, the Plaintiff could proceed with This Suit against the Defendant as an action in personam. J. Had the Defendant appointed the Plaintiff as the Defendant's agent to operate and manage the Vessel?

Sections 135 and 138 CA state as follows: "s 135. Agent and principal" An "agent" is a person employed to do any act for another or to represent another in dealings with third persons. The person for whom such act is done, or who is so represented, is called the "principal". s 138. Consideration not necessary No consideration is necessary to create an agency." (emphasis added).

The following evidence and reasons, in our view, proved on a balance of probabilities the existence of the Agency (Plaintiff-Defendant) in this case:

by way of the Defendant's Letter (12.11.2019) and Defendant's Letter (18.12.2019), the Defendant had appointed the Plaintiff as the Vessel's "operator to attend and arrange for smooth operation as required at Penang Port". The Defendant did not withdraw these two letters at any time. Accordingly, the Defendant as a "principal" (as defined in s 135 CA), had appointed the Plaintiff as an "agent" (within the meaning in s 135 CA) to operate and manage the Vessel;

by reason of s 138 CA, no consideration [as understood in s 2(d) CA] was necessary to create the Agency (Plaintiff-Defendant);

the Defendant had allowed the Plaintiff to operate and manage the Vessel without any condition, reservation or objection by the Defendant. In this regard, we rely on the judgment of the Court of Appeal delivered by Gopal Sri Ram JCA (as he then was) in KGN Jaya Sdn Bhd v Pan Reliance Sdn Bhd [1996] 1 MLJ 233, at 237, as follows- "In the first place, the law does not require that an agency or sub-agency agreement must be in writing. See Bowstead & Reynolds on Agency (17th Ed) at p 55 et seq. Further, Part X [CA], which contains the relevant provisions on agency does not contain any requirement that the appointment of an agent or subagent has to be in writing or be evidenced in writing. Hence the appointment may be express or implied, that is to say, it may be gathered from the facts and circumstances of a case and from the conduct of the parties: see, Kuchwar Lime & Stone Co v Dehri Rohtas Light Railway & Co Ltd AIR 1969 SC 193. Another way of stating the proposition is that a party may, by his conduct in all the circumstances of a particular case, be estopped from asserting the absence of an agency relationship between him and he who claims to be his principal." (emphasis added);

all the Plaintiff's Payments (Vessel) had been made without any protest or objection by the Defendant. Furthermore, prior to the filing of This Suit, the Defendant had not disclaimed its liability to reimburse the Plaintiff with regard to the Plaintiff's Payments (Vessel);

when the Plaintiff's representative requested the Defendant's representative (through Whatsapp messages) for the Defendant's payments of expenses related to the Vessel, the Defendant did not deny any obligation on the part of the Defendant to make such payments; and

when the Plaintiff terminated the Agency (Plaintiff-Defendant) by way of the Plaintiff's Letter (21.10.2020), Plaintiff's Email (23.10.2020) and Plaintiff's Email (27.10.2020), the Defendant did not deny-

the existence of the Agency (Plaintiff-Defendant);

the fact that the Plaintiff's Payments (Vessel) had been made; and

the Defendant's liability to reimburse the Plaintiff with regard to the Plaintiff's Payments (Vessel).

A party's conduct is relevant under s 8(2) of the Evidence Act 1950 (EA). Section 8(2) EA provides as follows: "The conduct of any party, or of any agent to any party, to any suit or proceeding in reference to that suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant if the conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto." (emphasis added). It is our decision that -

the Defendant's Letter (12.11.2019);

the Defendant's Letter (18.12.2019); and

the Defendant's conduct as explained in the above subparagraphs 37(1) and (3) to (6) - would estop the Defendant from denying the existence of the Agency (Plaintiff-Defendant). In this regard, we rely on the following judgment of the Court of Appeal in KGN Jaya, at p.238- "To put it another way, the appellant, by its silence coupled with the other circumstances of the case, encouraged the respondent to believe that it intended to raise no challenge to the existence of a prior legal relation between the parties or to the figure which the account showed as owing by it. Having done so, it ought not to be permitted to now contend otherwise. It follows that it does not, therefore, lie in the mouth of the appellant to now deny the respondent's claim. It would be plainly inequitable to do so. An examination of the facts leads us to this conclusion. The legal basis upon which such a conclusion may be sustained is well-settled and is now beyond question. See Boustead Trading (1985) Sdn Bhd v ArabMalaysian Merchant Bank Bhd [1995] 3 MLJ 331." (emphasis added). K. Whether the Plaintiff was authorized to make the Plaintiff's Payments (Vessel)

We reproduce below ss 139 to 142 CA: "s 139. Agent's authority may be expressed or implied The authority of an agent may be expressed or implied. s 140. Definitions of express and implied authority An authority is said to be express when it is given by words spoken or written. An authority is said to be implied when it is to be inferred from the circumstances of the case; and things spoken or written, or the ordinary course of dealing, may be accounted circumstances of the case. s 141. Extent of agent's authority

An agent having an authority to do an act has authority to do every lawful thing which is necessary in order to do the act.

An agent having an authority to carry on a business has authority to do every lawful thing necessary for the purpose, or usually done in the course of conducting such business. s 142. Agent's authority in an emergency An agent has authority, in an emergency, to do all such acts for the purpose of protecting his principal from loss as would be done by a person of ordinary prudence, in his own case, under similar circumstances." (emphasis added).

We unhesitatingly find that the Plaintiff's Payments (Vessel) had been made with -

the implied authority of the Defendant pursuant to -

s 139 CA (The authority of an agent may be ... implied); and

s 140 CA (An authority is said to be implied when it is to be inferred from the circumstances of the case; and things spoken or written, or the ordinary course of dealing, may be accounted circumstances of the case); and/or

the authority conferred by -

s 141(1) CA (An agent having an authority to do an act has authority to do every lawful thing which is necessary in order to do the act); and/or

s 141(2) CA (An agent having an authority to carry on a business has authority to do every lawful thing necessary for the purpose, or usually done in the course of conducting such business).

We note that the Defendant did not allege that the Plaintiff's Payments (Vessel) had been made without any authority by the Defendant.

We agree with the contention by the Defendant's learned counsel that the Plaintiff could not rely on s 142 CA because s 142 CA only applies in an "emergency". The Pandemic, in our view, was not an "emergency" as understood in s 142 CA. L. Was the Defendant liable to indemnify the Plaintiff with regard to the Plaintiff's Payments (Vessel)?

Sections 175, 176 and 178 CA provide as follows: "s 175. Agent to be indemnified against consequences of lawful acts The employer of an agent is bound to indemnify him against the consequences of all lawful acts done by the agent in exercise of the authority conferred upon him. s 176. Agent to be indemnified against consequences of acts done in good faith Where one person employs another to do an act, and the agent does the act in good faith, the employer is liable to indemnify the agent against the consequences of that act, though it cause an injury to the rights of third persons. s 178. Compensation to agent for injury caused by principal's neglect The principal must make compensation to his agent in respect of injury caused to the agent by the principal's neglect or want of skill." (emphasis added)

In our view, the Defendant is bound to indemnify the Plaintiff in respect of the Plaintiff's Payments (Vessel) pursuant to -

s 175 CA - the Plaintiff's Payments (Vessel) constituted "consequences of all lawful acts done by the agent [Plaintiff] in exercise of the authority conferred upon [the Plaintiff); and/or

s 176 CA applies in this case because -

the Defendant had appointed the Plaintiff to operate and manage the Vessel; and

the Plaintiff's Payments (Vessel) were made in good faith. The Defendant did not aver that the Plaintiff's Payments (Vessel) had been made in bad faith.

The Plaintiff cannot invoke s 178 CA as no "injury" had been caused to the Plaintiff by the Defendant's "neglect or want of skill". M. Whether the Defendant was liable to the Plaintiff for a breach of the Agency (Plaintiff-Defendant)?

As explained in the above paragraph 35, the Plaintiff could proceed with This Suit against the Defendant as an action in personam.

As the Defendant had refused to reimburse the Plaintiff in respect of the Plaintiff's Payments (Vessel), the Defendant had breached the Agency (Plaintiff-Defendant) [Defendant's Breach (Agency)].

With regard to the Defendant's Breach (Agency), the Defendant is liable to pay damages to the Plaintiff under s 74(1) CA. Section 74(1) CA is worded as follows: "s 74. Compensation for loss or damage caused by breach of contract

When a contract has been broken, the party who suffers by the breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from the breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it." (emphasis added). The quantum of damages for the Defendant's Breach (Agency) would be the Plaintiff's Payments (Vessel) because -

the Plaintiff's Payments (Vessel) "naturally arose in the usual course of things" from the Defendant's Breach (Agency) within the meaning of the first limb of s 74(1) CA; and/or

both the Plaintiff and Defendant knew, when they made the Agency (Plaintiff-Defendant), that the Plaintiff's Payments (Vessel) was "likely to result" from the Defendant's Breach (Agency) as understood in the second limb of s 74(1) CA. N. Was the Agency (Plaintiff-Defendant) part of the MOU?

The issue of whether the Agency (Plaintiff-Defendant) was part of the MOU, was a question of mixed law and fact.

An appellate court can only set aside a trial court's finding of mixed law and fact if such a finding is "plainly erroneous" - please refer to the Court of Appeal's judgment in SPM Energy Sdn Bhd & Anor v Multi Discovery Sdn Bhd [2015] 3 AMR 953, at [56].

The learned High Court Judge committed a plain error of mixed law and fact in deciding that the Agency (Plaintiff-Defendant) was part of the MOU because-

the Plaintiff was not a party to the MOU. As explained in paragraph 57 below, there is no basis for the court to pierce or lift the corporate veil of the Plaintiff in this case;

the Defendant's Letter (12.11.2019) was sent before the MOU was concluded. In other words, the Agency (Plaintiff-Defendant) pre-dated the MOU and could not be part of the MOU;

the MOU did not allude to the Agency (Plaintiff-Defendant); and

the Defendant's Letter (18.12.2019) was sent after the conclusion of the MOU. If the Agency (Plaintiff-Defendant) was indeed part of the MOU, the Defendant's Letter (18.12.2019) could have easily stated as such. However, the Defendant's Letter (18.12.2019) did not even refer to the MOU. O. Did the MOU provide for the Defendant to be the JV Entity?

Firstly, the Defence did not plead that the Plaintiff was the JV Entity. Hence, the Defendant could not rely on such a contention to resist This Appeal.

Secondly, the MOU did not state that the Plaintiff was the JV Entity.

Thirdly, the Plaintiff could not be the JV Entity because -

the Defendant did not own any shares in the Plaintiff; and

the Defendant's representative was not appointed to be a director of the Plaintiff. P. Should the court pierce or lift the Plaintiff's corporate veil?

There is a difference between an exercise of the court's discretionary power to "pierce" a company's corporate veil and to "lift" such a veil. We refer to the High Court's judgment in Chanel v Melvani2 International Sdn Bhd & Ors [2017] 10 MLJ 592, at [16(3)], as follows: [16] I am of the following view regarding the piercing or lifting of a company's corporate veil:

there is a difference between the piercing of a corporate veil and its lifting. A company's corporate veil is pierced by a party when the party seeks to impose personal liability on an individual who may or may not be the company's director, shareholder or employee. The Court lifts the corporate veil of a company to ascertain the true factual position without imposing any personal liability on a particular individual [please see Staughton LJ's judgment in the English Court of Appeal case of Atlas Maritime Co SA v Avalon Maritime Ltd (The Coral Rose) (No.1) [1991] 4 All ER 769, at 779, which was followed in KTL Sdn Bhd & Anor v Leong Oow Lai & other cases [2014] AMEJ 1458, at paragraphs 66 and 67]; ...” (emphasis added).

In the Federal Court case of Ong Leong Chiou & Anor v Keller (M) Sdn Bhd & Ors [2021] 3 MLJ 622, at [98] and [99], Nallini Pathmanathan FCJ had explained the two principles for the court to pierce or lift a company's corporate veil:

the "Evasion Principle" is invoked for the courts to ensure that an individual should not evade personal liability for, etc., fraud or breach of fiduciary duties committed by the individual; and

the courts rely on the "Concealment Principle" to ascertain the true factual position behind a company (without imposing any personal liability on a particular individual).

In this case, neither the Evasion Principle nor the Concealment Principle can be applied to pierce or lift the Plaintiff's corporate veil because -

Mr. Cheah is not evading any liability owed to the Defendant under the MOU.In fact,the Defendant's HK Suit had already been filed against Mr. Cheah; and

there was no concealment of any material fact by the Plaintiff in this case. Indeed, the Defendant did not allege that the Plaintiff had concealed material facts by relying on the Plaintiff's corporate veil. Q. Outcome of This Appeal

Premised on the above evidence and reasons-

This Appeal is allowed;

the High Court's Decision is set aside;

judgment in a sum of RM8,130,181.34 (Judgment Sum) is entered in favour of the Plaintiff against-

the Vessel (judgment in rem); and

the Defendant (judgment in personam);

the Plaintiff shall be entitled to interest at the rate of 5% per annum on the Judgment Sum from 30.10.2020 (date of filing of the writ of This Suit) until full payment of the Judgment Sum; and

costs here and below in a sum of RM50,000.00 shall be paid by the Defendant to the Plaintiff (subject to allocatur fee).

A draft copy of this judgment (Draft) had been previously forwarded to Che Mohd. Ruzima bin Ghazali and Ismail bin Brahim JJCA. Both my learned brethren had expressed their concurrence with the Draft. DATE: 4 SEPTEMBER 2025 WONG KIAN KHEONG Judge Court of Appeal Counsel for Mr. Jeremy Mark Joseph, the Appellant: Ms. Vinodhini Benjamin Samuel & Encik Muhamad Irfan Bin Jafri (Messrs Joseph & Partners) Counsel for Mr. Khoo Guan Huat, Mr. Siva Kumar Kanagasabai the Respondent: Ms. Dhanyaa Shreeya, Mr. Royce Bong Jun Ting, Ms. Grace Teoh & Mr. Khoo Yuan Ping (Messrs Skrine)