The "Courageous Colocotronis"

JurisdictionSingapore
JudgeT Kulasekaram J
Judgment Date25 May 1978
Neutral Citation[1978] SGHC 31
Docket NumberAdmiralty in Rem No 472 of 1977
Date25 May 1978
Year1978
Published date19 September 2003
Plaintiff CounselDenis Murphy and Raj Kumar (Donaldson & Burkinshaw)
Citation[1978] SGHC 31
Defendant CounselS Selvadurai (Selvadurai & Emmanuel),P Selvadurai (Rodyk and Davidson)
CourtHigh Court (Singapore)
Subject MatterWarrant of arrest,Duty of disclosure,Bare claim,Admiralty and Shipping,O 70 r 4(6)(b) Rules of the Supreme Court 1970,Practice and procedure of action in rem

The plaintiffs Minos Colocotronis and his two nephews Alexander Georgiadis and Antony Georgiadis commenced an admiralty suit in rem no 472/1977 on 27 October 1977 and the ship Courageous Colocotronis of the port of Piraeus now known as the Atlantic Conqueror of the Port of Monrovia (hereinafter referred to as the said vessel) lying at a dockyard in the Port of Singapore, was arrested on 23 November 1977 on a Warrant of Arrest issued on 22 November 1977.

In the affidavit leading to the warrant of arrest Mr Loh Boon Huat, solicitor acting for the plaintiffs, had stated that plaintiffs` claim is for a declaration that they are the sole beneficial owners of the said vessel and had also exhibited an affidavit sworn by Minos Colocotronis on behalf of himself and the two other plaintiffs on 3 November 1977 at London.
In that affidavit Minos Colocotronis stated that the plaintiffs are the sole beneficial owners of all the issued and outstanding shares of Navegantes Universal SA (hereinafter referred to as Navegantes), a Panamanian Corporation, which were the registered owners of the said vessel. The Navegantes owned just this vessel.

The defendants, the European American Banking Corp, (hereinafter referred to as EABC) are a New York banking corporation which financed Navegantes in the sum of US$6,600,000 on a loan agreement for the purchase of the said vessel supported by the mortgage of the ship by Navegantes to EABC and in addition the personal guarantees of the plaintiffs.


The defendants EABC entered a conditional appearance and applied by way of motion to have the writ of summons and all subsequent proceedings struck out on the grounds:

(a) That they are frivolous or vexatious, alternatively.

(b) That they are an abuse of the process of the court.

(c) That the writ, affidavit leading to the warrant of arrest and the warrant of arrest herein are defective in law.



Another corporation called the United Maritime No 2 Tanker Transport, Inc (hereinafter called UMTT) who claimed to be the present owners of the said vessel having purchased the said vessel from Reefer Transportation Co who had in turn purchased it from Navegantes also entered a conditional appearance and made a similar application to that of the defendants EABC, on similar grounds.


Both these motions were heard together and I propose to deal first of all with the ground that the writ, the affidavit leading to the warrant of arrest and the warrant of arrest herein were defective in law.


It is the contention of the defendants that the affidavit leading to the warrant of arrest was defective in that it did not comply with O 70 r 4(6)(b).
This rule reads:

Every affidavit must state -

(b) the nature of the claim or counterclaim in respect of which the warrant is required and that it has not been satisfied.



The affidavit leading to the warrant of arrest alleges that the plaintiffs claim to be the beneficial owners of the said vessel on the basis that they hold all the shares of Navegantes the company which is the registered legal owner of the said vessel.
In the absence of any further allegation or circumstances this bare claim by the plaintiffs is not a proper one in law. If that were so it would amount to the plaintiffs not having disclosed the nature of their claim in the affidavit. It is submitted by the defendants that such non-compliance of the rule would render the warrant of arrest a nullity and not an irregularity which could be cured and they rely on the decision in The Hoe Lee [1970] 1 MLJ 45 .

Mr Murphy for the plaintiffs submitted that the Hoe Lee decision was based on our old O LXIII r 1 of the 1934 Rules of the Supreme Court which was the same as the old English O 70 r 1 before it was revised in 1962.


The distinction between irregularity and nullity has been removed by O 2 of our present 1970 Rules of the Supreme Court as has been the case in England since 1965 when their new rules were brought into force.
It must be remembered that Re Pritchard, deceased [1963] Ch 502 on which the Hoe Lee decision was based was good authority to follow in Singapore as we were then still on the old rules but it was not so in England which had by then adopted their new rules. This also explains certain remarks to which I was referred to in The Simba [1970] 1 MLJ 121 decision, which was decided about the same time.

Mr Murphy submitted that the provisions of O 2 of the rules were designed to save rather than destroy and to cure that which was capable of cure in matters arising out of non-compliance with the rules.
This I agree would generally be the position provided the failure to comply with the rules is not so serious as to be contrary to natural justice and to render the proceedings in which they occur or any order made under it a nullity.

During the hearing of these two motions at the end of the day`s hearing on 19 January 1978 Mr Murphy applied to amend the writ of summons in terms of a draft he submitted and his application was granted.
The original endorsement of claim on the writ of summons read:

The plaintiffs` claim is for a declaration that they are the sole beneficial owners of the vessel `Courageous Colocotronis` of the port of Piraeus.



and the amended endorsement now reads:

The plaintiffs as beneficial owners of the vessel `Courageous Colocotronis` otherwise
...

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4 cases
  • The "Golden Petroleum"
    • Singapore
    • High Court (Singapore)
    • 5 October 1993
    ... ... Counsel for the defendants in this regard primarily relied on the case of The `Courageous Colocotronis`; EMJ Colocotronis & Ors v European American Banking Corp & Ors .1 The facts and ruling in that case are set out in the headnotes as follows: ... The plaintiffs issued a warrant of arrest against the ship Courageous Colocotronis on 22 November 1977. The affidavit leading to the warrant ... ...
  • The 'Rainbow Spring'
    • Singapore
    • Court of Appeal (Singapore)
    • 29 July 2003
    ...to comply with the rules could render the warrant of arrest a nullity as Kulesekaram J so held in the “Courageous Colocotronis” [1978-1979] SLR 337. We agree that The Varna is not applicable to our O 70 r4. Apart from the differences between our Rules and the English Rules pointed out by th......
  • The Rainbow Spring
    • Singapore
    • High Court (Singapore)
    • 29 October 2002
    ...to comply with the rules could render the warrant of arrest a nullity as Kulesekaram J so held in The "Courageous Colocotronis" [1978-1979] SLR 337. 31. In Singapore, the issue of a warrant of arrest is a discretionary remedy and, as on any ex-parte application for a discretionary remedy, f......
  • The 'Rainbow Spring'
    • Singapore
    • Court of Three Judges (Singapore)
    • 29 July 2003
    ...to comply with the rules could render the warrant of arrest a nullity as Kulesekaram J so held in the “Courageous Colocotronis” [1978-1979] SLR 337. We agree that The Varna is not applicable to our O 70 r4. Apart from the differences between our Rules and the English Rules pointed out by th......

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