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MALAYSIA

 

IN THE HIGH COURT IN KUALA LUMPUR COMMERCIAL TRIAL NO. D1-22-1807-2001

 

Between

 

THOR EAGLE MARITIME AGENCIES … PLAINTIFF

 

And

 

INNOVEST BERHAD … DEFENDANT

 

BEFORE THE HONOURABLE JUDICIAL COMMISSIONER Y.A. DR. HAJI HAMID SULTAN BIN ABU BACKER

 

IN OPEN COURT

 

JUDGMENT

 

This is my judgment in respect of the plaintiff’s claim against the 2nd defendant for dead freight charges amounting to USD256,760.00 after deducting from the freight, the sum of USD63,243.00 being costs the plaintiff would have to pay if the shipment had been effected. This matter was part heard before a different judge. Both parties have consented for this matter to continue before me and pronounce the judgement.

 

1. At the commencement of the hearing, parties have agreed that the case can be heard by way of: (i) witness statement for examination in chief; (ii) preliminary cross-examination witness statement, with full liberty to further cross-examine orally (for purposes of cross-

 

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examination); (iii) preliminary re-examination statement with full liberty to further re-examination if there is further oral examination. The court is extremely grateful to the parties for agreeing to such a mode as the preliminary cross-examination witness statement will save much of the court’s time to deal with peripheral matters and for all practical purposes, preliminary cross-examination witness statement will stand as interrogatories and answers thereto only, as the right of oral cross-examination to the litigant is preserved during the whole trial.

 

Brief Facts

 

2. The plaintiff’s claim against the defendant is for deadfreight which is freight for shipment of cargo as per contract but not shipped, less mitigating of costs of shipment and ancillary expenses which was not spent. The contract of shipment referred to as ‘conline booking’ stated that the time of shipment to be about 10-15 August 1998 i.e. the arrival of vessel. Evidence was given to show that about one week before shipment the defendant has informed its clear intention to repudiate the contract. The ship only arrived on 16.08.98. The defendant did not perform as contracted. The defendant in his defence says that they did not cancel the said contract of shipment and asserts the time was essence of the contract and says as the vessel did not berth before 15th August 1998 the plaintiff was in repudiatory breach of the contract and the defendant is entitled to rescind the contract. And also alleges the plaintiff has failed to mitigate its

 

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losses. And in the submission says that in the event the court finds the defendant liable then the award must not exceed USD80, 000.00 a sum proposed by the plaintiff at an early stage in view of an amicable settlement.

 

Preliminaries

 

3. 3 witnesses gave evidence for the plaintiff. The defendant did not

 

give evidence. However the defendant counsel had informed the court that their main witness had been subpoenaed by the plaintiff who gave evidence as PW1. And the previous judge had given permission for the defendant to call him also as defendant witness after the plaintiff had closed their case. Both parties had agreed in lieu of calling again PW1 as the defendant’s witness the defendant be liberty to recall PW1 before the close of plaintiff’s case, which the defendant did. At the close of the plaintiff’s case the defendant informed court that the defendant is not going to give evidence and will like to submit no case to answer. I had immediately cautioned the defendant the danger of doing so.

 

The Jurisprudence Relating to No case to Answer

 

In Abang Haji Jaya bin Datu Benteral v Chee Kian Sian (1954)

 

SCR 12 the court opined that when Magistrates are adjudicating in civil cases they should normally follow the practice approved in English civil cases of not ruling that there is no case to answer until the defence have made their election whether they will call evidence.

 

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If the defence elects to give evidence, that evidence should first be heard. A distinction should be borne in mind between a case where at the close of the plaintiff’s evidence the judge is asked to rule as a matter of law that the plaintiff has failed to establish his case, and a case where at the close of the plaintiff’s case the judge is asked to rule that the evidence is insufficient to support it. In U.N. Pandey v Hotel Marco Polo Pte Ltd (1980) 1MLJ 4 Sinnathuray J observed:-

 

“On the subject of no case to answer, a summary of the practice of the Court of England is to be found in the White Book at 35/7/2. The last time the practice, was judicially considered is in the Court of Appeal decision Storey v Storey.

 

There are, however, two sets of circumstances under which a defendant may submit that he has no case to answer. In the one case, there may be a submission that, accepting the plaintiff’s evidence at its face value, no case has been established in law, and in the other that the evidence led for the plaintiff is so unsatisfactory or unreliable that the court should find that the burden of proof has not been discharged.

 

In my judgment, it would be a desirable practice in our courts to allow a submission of no case to answer at the end of the plaintiffs case, without putting the defendant to his election, whether to call evidence or not, if his submission fails. It is trite to say that we have a young legal profession and a fused one. Most are small practitioners and engage in many fields of law. The time and effort put in litigation matters are diffused. Such a practice therefore will ensure not only that there is a thorough preparation of the case before trial, but also a careful presentation of it at the hearing. Altogether, the practice will bring about a saving of costs for the parties. ”

 

In contrast to U.N. Pandey, the Singapore Court of Appeal in Tan

 

Song Gou v Goh Ya Tian [1983] MLJ 60 stated that the proper

 

practice, if counsel for defendant wishes to make a submission of no

 

case to answer, is for the judge to refuse to rule on it unless counsel

 

elects to call no evidence.

 

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In Ramayee a/p Gengan (f) & 9 Ors [1983] 21 CLJ 326 on the issue of no case to answer, Mohd. Dzaiddin J (as he then was) observed:-

 

“Counsel for the defendants then informed the Court that he would submit there was “no case to answer”. Before deciding whether to accept his request, I reminded counsel of the election available to the defence and that his case would stand or fall on his submission of “no case to answer”. Counsel indicated that he would abide by such decision.

 

In allowing counsel’s application, I relied on the English practice. In the Supreme Court Practice 1979, Volume I, page 571, under heading “No Case to Answer”, it is stated as follows:-

 

“As to the inconvenience of asking a Judge sitting alone to hold that there is no case to answer at the conclusion of the evidence of the party on whom the onus lies, see Alexander v Rayson (1936) 1 K.B. 169. The Judge should generally refuse to rule on such a submission by the defendant unless he makes it clear that the does not intend to call evidence [Laurie v Raglan Co. (1942) 1 K.B. 152 CA] but the Judge is not bound so to refuse, and if he does not put the party to his election whether to call evidence or not, the latter retains his right to call it if his submission fails [Young v Rank (1950) 2 K.B. 510; Storey v Storey (1961) P. 63 CA]. A submission of no case may be made either if no case has been established in law or the evidence led is so unsatisfactory or unreliable that the court should hold that the burden has not been discharged [ibid. and Yuill v. Yuill, (1945) p. 15]. ”

 

In addition to the White Book, I also rely on the decision of Thomson C.J. (as he then was) in Simirah v. Chua Hock Lee & Anor (1963) MLJ 239 @ 241

 

CA. At page 241, he stated as follows:-

 

“Having come to that conclusion the question then arises what this Court should do in view of the course taken at the trial by counsel for the defendants when he submitted that there was no case to answer. ”

 

It is a great pity that when this submission was made the advice of goddard, L.J., (as he then was) in the case of Parry v Aluminium Corporation, Ltd. was disregarded. His Lordship then observed that in cases of negligence if a Judge is to rule at the end of the plaintiff’s case that the plaintiff had made out no case it is most desirable that he should put counsel for the defence to his election as to whether he wishes to call evidence for the defence and should refuse to give a ruling unless counsel elects to call no evidence. That

 

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statement as to the practice which should be followed in such circumstances has been approved again and again [Laurie v Raglan Building Co. Ltd, supra; Yuill v Yuill, Storey v Storey]. ”

 

If there are more than one defendants and not all of the defendants submit no case to answer, in such circumstances the court ought to reject the submission of no case to answer and proceed to hear the evidence of other defendants before the court arrives at a decision (see Ng Neoh Ita & Ors v. Maniam & Ors [1994] 1MLJ 434).

 

4. I have heard the evidence, read the notes of proceeding, witness statement, documents submission etc in detail. I do not wish to deal with the evidence and submission in detail as parties have adequately dealt with it in their submissions. I take the view that the plaintiff’s claim must be allowed partly. My reasons are as follows:

 

(a) I reject the contention of the defendant that as per the terms of the contract time is of essence of the contract. In the instant case the contract does not say so. On the contrary it says ‘about’ 10 to 15 August 1998 as the date of arrival of the ship. There was also evidence led through PW1 that on the previous occasions, the defendant has loaded goods even though the vessel did not arrive on the schedule dates. It is trite that in contracts relating to shipping, time may not be essence and it all depends on the terms of the contract, intention of parties, custom, practice etc. In the Mihalis Angelos [1971] 1QB 164 Edmund Davies L.J. Megaw L.J observed:

 

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“It is not disputed that when a charter includes the words ‘expected ready to load… ’ a contractual obligation on the part of the shipowner is involved. It is not an obligation that the vessel will be ready to load on the stated date, nor about the stated date, if the date is qualified, as here, by ‘about ’. The owner is not in breach merely because the vessel arrives much later, or indeed does not arrive at all. The owner is not undertaking that there will be no unexpected delay. But he is undertaking that he honestly and on reasonable grounds believes, at the time of the contract, that the date names is the date when the vessel will be ready to load. Therefore in order to establish a breach of that obligation the charterer has the burden to showing that the owner’s contractually expressed expectation was not his honest expectation, or, at the least, that the owner did not have reasonable grounds for it. ”

 

(b) In the instant case there was also evidence led by the plaintiff to

 

show that the defendant had cancelled the shipment and there were

 

no goods for the defendant to load. There is much merit in the

 

plaintiff’s contention that once the defendant cancelled the said

 

shipment contract the said vessel need not be ready to load on the

 

agreed date. Support for the proposition is found in the case of

 

“The Reunion”; Uni-Ocean Lines Pte. Ltd. V Kamal Sood t/a Toshiba

 

Kamal Enterprise [1983] 2 MLJ189 where it was stated:

 

“Once the Defendant had repudiated the charterparty and had evince an intention that she no longer would ship on the plaintiff’s vessel, the plaintiff need not proceed to be ready on January 25… ”

 

(c) As the plaintiff says that the defendant has cancelled the contract then there will be a duty in law to mitigate losses and damages to that extent have to be reduced. The plaintiff did not adduce evidence to show the losses were in fact mitigated to reduce damages. However there is unrebutted evidence and the fact that

 

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the plaintiff had made attempts to mitigate losses and more importantly the plaintiff had proposed a settlement sum of USD80, 000.00 as full and final settlement of the plaintiff’s claim. On the facts of the case I think it will be just and equitable to assess damages to be the proposed sum of USD80,000.00 taking into consideration the fact that there was no clear evidence of payment by the plaintiff to the ship owner etc and/or account thereof.

 

5. For reasons stated above, I allow the plaintiff’s claim for the sum of USD80, 000.00 the equivalent in Malaysian ringgit following the current rate of exchange at the date of the judgment with interest at 8% per annum from the judgement sum from the date of filling of the writ until the date of realisation with costs. The getting up fees shall not exceed RM30, 000.00. If costs cannot be agreed the plaintiff is at liberty to tax costs.

 

I hereby order so.

 

(Y.A. DR. HAJI HAMID SULTAN BIN ABU BACKER)

 

Judicial Commissioner High Court (Commercial Division)

 

KUALA LUMPUR

 

Date: 01st June 2009

 

For the Plaintiff: Mr. K.M. Tan;Messrs. KM Tan & Tee

 

For the Defendant: Mr. Sandosh Anandan; Messrs. Sandosh Anan

 

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