No duty of full and frank disclosure in Malaysia arrest proceedings

Until recently,it was not clear whether a party seeking to arrest a vessel in Malaysia had a duty to make full and frank disclosure in its affidavit leading to the warrant of arrest ("arrest affidavit"). The Malaysia High Court in Premium Vegetable Oils Sdn Bhd v The Owners and/or Demise Charterers of The Ship or Vessel ‘Ever Concord’ of The Port of Zanzibar, Tanzania [2021] 9 MLJ 936 has since clarified that there is no such duty, and that the arresting party only has to comply with the relevant provision in the Malaysian Rules of Court 2012. 

Facts

The Plaintiff was the buyer of palm kernel to be shipped in Malaysia. The Defendant was the owner of the "Ever Concord" (the "Vessel"). Upon arrival at the discharge port, the Plaintiff discovered that the top surface of the cargo appeared white and the cargo was believed to be mouldy. A report was produced stating that there were traces of chloride. 

The Plaintiff commenced an action in rem against the Vessel, for loss of and/or damage to the cargo during the voyage caused by the Defendant's negligence and/or breach of duty and/or breach of contracts in the carriage. The Plaintiff arrested the Vessel. 

The Defendant applied to set aside the writ and warrant of arrest, on the basis that the Plaintiff had failed to make full and frank disclosure in its arrest affidavit. 

Judgment

The Malaysia High Court held that there were no grounds to set aside the writ and warrant of arrest. It held, amongst other things, that: 

1. Similar to England, the issue of a warrant of arrest is not a discretionary remedy, but a right for the plaintiff. 

2. There is no requirement of full and frank disclosure and the arresting party only has to demonstrate that he has complied with the relevant provision in the Malaysian Rules of Court 2012¹. As the arrest affidavit fulfilled the requirements under the provision, the warrant of arrest was properly issued. 

3. In Singapore, the issue of the warrant is not as of right as it is under the Malaysian Rules of Court. Hence, the warrant of arrest remains a discretionary remedy in Singapore and the arresting party has a duty of full and frank disclosure when applying for the arrest. (Please click here for the Club's article, discussing the principles governing the duty of full and frank disclosure in Singapore arrest proceedings).

4. The general proposition that a party seeking an order based on an ex parte application must make full and frank disclosure of material facts to the court is not applicable in a request for the issuance of a warrant of arrest where specific and different requirements apply. 

5. In relation to the issue of whether the writ should be set aside, the Defendant failed to establish that the Plaintiff's claim was either legally or factually unsustainable. 

Comments

This decision provides clarity on the duty owed by the arresting party when preparing an arrest affidavit. While there is no duty of full and frank disclosure when arresting a vessel in Malaysia, an arresting party should ensure that the arrest affidavit satisfies the relevant requirements in the Malaysian Rules of Court 2012 when applying for a warrant of arrest.