The "Hull 308"

JurisdictionSingapore
CourtCourt of Three Judges (Singapore)
Judgment Date09 October 1991
Date09 October 1991
Docket NumberCivil Appeal No 105 of 1987

[1991] SGCA 34

Court of Appeal

Yong Pung How CJ

,

L P Thean J

and

Chan Sek Keong J

Civil Appeal No 105 of 1987

The “Hull 308”

C Arul (C Arul & Partners) for the appellant

Sarjit Singh Gill (Shook Lin & Bok) for the respondent

Steven Chong and Lim Tean (Drew & Napier) for the intervener.

Aro Co, In re [1980] Ch 196 (folld)

Exchange Securities & Commodities Ltd, Re [1983] BCLC 186 (folld)

Lim Bock Lai v Selco (Singapore) Pte Ltd [1987] SLR (R) 466; [1987] SLR 423 (folld)

Oak Pits Colliery Co, In re (1882) 21 Ch D 322 (folld)

Preston Banking Co v William Allsup & Sons [1895] 1 Ch 141 (refd)

St Nazaire Co, In re (1879) 12 Ch D 88 (refd)

VGM Holdings Ltd, Re [1941] 3 All ER 417 (refd)

Companies Act (Cap 50, 1988 Rev Ed) ss 231, 255 (2), 259, 260, 262 (3), 334

High Court (Admiralty Jurisdiction) Act (Cap 123, 1985 Rev Ed) ss 3, 4

Administration of Justice Act 1956 (c 46) (UK) ss 1, 3

Companies Act 1948 (c 38) (UK) s 231

Civil Procedure–Jurisdiction–Application to serve writ in rem made after commencement of winding-up proceedings against owner of vessel–Plaintiff obtaining leave before defendant obtaining order to set aside writ–Whether hearing of defendants' application amounted to rehearing of plaintiffs' application and order under appeal was variation of earlier order–Companies–Winding up–Application to serve writ in rem made after commencement of winding-up proceedings against owner of vessel–Whether to set aside writ–Whether granting leave to commence proceedings amounting to giving plaintiff security over asset it never possessed

The plaintiff supplied the defendant with equipment and engines for the construction of a vessel, Hull 308. A petition for the winding up of the defendant was subsequently presented and provisional liquidators were appointed by the court. One month later, the plaintiff took out a writ in rem against Hull 308 without obtaining leave to commence the action under s 262 (3) of the Companies Act (Cap 50, 1988 Rev Ed) (“the Act”).

The plaintiff later applied for and successfully obtained leave to serve the writ in rem on Hull 308. Subsequently, the defendant applied to set aside the writ in rem.Standard Chartered Bank joined the proceedings as intervener. The High Court granted the defendant's application. The plaintiff appealed, arguing that: (a) the court's decision amounted to a rehearing of the plaintiff's application and variation of the earlier order; and (b) the judge erred in allowing the defendant's application.

Held, dismissing the appeal:

(1) The defendant's application was an entirely different application and was not affected by the outcome of the plaintiff's application. The plaintiff's application was for leave to serve the writ on the vessel; no arguments were advanced at the hearing on whether leave for commencement of the action ought to be granted. The defendant's application was for the writ to be set aside on the basis that leave to commence the action had not been granted. Even if the defendant had successfully appealed against the order made on the plaintiff's application, its application to set aside the writ would still have been required. The hearing of the defendant's application therefore did not amount to a rehearing of the plaintiff's application and the order under appeal was not a variation of the order previously made: at [4].

(2) The plaintiff, having taken out the writ after the commencement of the winding up against the defendant, could not immediately before the commencement of the winding up assert that it had any security on the vessel. Accordingly, leave to commence the action against the vessel would not have been granted if the plaintiff had applied for it at the date when it took out the writ: at [13].

(3) Section 262 (3) of the Act conferred on the court the discretion to do what was right and fair in the circumstances of each case. Such discretion should not be exercised in favour of the plaintiff, as it would confer upon the plaintiff a security on an asset of the defendant which the plaintiff otherwise did not have and could not have. This would be unfair to the other unsecured creditors. The primary object of the winding-up provisions in the Act was to put all unsecured creditors upon an equality and to pay them pari passu:at [14].

L P Thean J

(delivering the grounds of decision of the court):

1 Between September 1984 and December 1985, the plaintiffs supplied certain equipment and engines to the defendants for the construction of, inter alia, a ship or vessel called Hull 308. The construction was almost completed by December 1985 except for certain outstanding works to be carried out. On 3 December 1985, receivers and managers of the defendants were appointed on application by Standard Chartered Bank. On 17 February 1986, a petition for the winding up of the defendants was presented by one of its creditors. On 18 February 1986, the receivers and managers were discharged by an order of court, and on the same day provisional liquidators were appointed by the court pending the winding up of the defendants. One month later, on 18 March 1986, the plaintiffs took out a writ of summons in Admiralty in Rem No 155 of 1986 against the ship or vessel, Hull No 308. No leave was obtained by the plaintiffs for commencing the action. However, on 18 April 1986, the plaintiffs applied by Summons in Chambers No 3926 of 1986 (“the plaintiffs' application”) for leave to serve the writ in rem on the vessel, Hull No 308, and to arrest her. About a month later, on 15 May 1986, the defendants took out an application, Summons in Chambers No 5636 of 1986 (“the defendants' application”), applying to set aside the writ in rem.The plaintiffs' application was heard four days later, on 19 May 1986, before Lai Kew Chai J who made an order giving leave to serve the writ on the vessel, Hull 308,and to arrest her. The writ was served and the vessel was arrested. Soon thereafter, Standard Chartered Bank applied for leave to intervene, and leave was given and the bank joined in these proceedings as the interveners. Subsequently, the defendants' application came on for hearing also before Lai Kew Chai J who then made an order setting aside the writ in rem taken out by the plaintiffs. Against that order, this appeal was brought, and at the conclusion of the hearing we dismissed it with costs. We now give our reasons.

2 There are two issues before us: one is procedural and the...

To continue reading

Request your trial
10 cases
  • Kuo Fen Ching and Another v Dauphin Offshore Engineering & Trading Pte Ltd
    • Singapore
    • Court of Three Judges (Singapore)
    • 2 July 1999
    ...The [1994] 3 SLR (R) 574; [1994] 3 SLR 864 (folld) Gemma, The [1899] P 285 (refd) Helene Roth, The [1980] QB 273 (refd) Hull 308, The [1991] 2 SLR (R) 643; [1991] SLR 304 (folld) J Gadsden Pty Ltd v Australian Coastal Shipping Commission (1977) 131 FLR 157; [1977] 1 NSWLR 575 (refd) Kusu Is......
  • Dauphin Offshore Engineering & Trading Pte Ltd Inc v Owners of the Vessel Capricorn
    • Singapore
    • High Court (Singapore)
    • 6 November 1998
    ...in the exercise of his discretion and he granted leave to the plaintiffs to continue the actions in rem. 16.In The Hull 308 [1991] SLR 304 [1991] 3 MLJ 393 , the plaintiffs had provided certain equipment and engines to the defendants for the construction of, inter alia, a vessel called `Hul......
  • The "Oriental Baltic"
    • Singapore
    • High Court (Singapore)
    • 30 March 2011
    ...with its action. The first approach focuses on whether or not an applicant for such leave is a secured creditor. In The Hull 308 [1991] 2 SLR(R) 643, the Court of Appeal, relying on Re Aro, reiterated at [10] that the proper test for determining whether the plaintiffs in any given case are ......
  • The ‘Turtle Bay’
    • Singapore
    • High Court (Singapore)
    • 30 August 2013
    ...Norske Bank ASA v Owners of the ship ‘Margo L’ [1997] HKEC 767 (folld) Honshu Gloria, The [1986] 2 Lloyd's Rep 63 (refd) Hull 308, The [1991] 2 SLR (R) 643; [1991] SLR 304 (refd) International Marine Banking Co v Dora [No 2] [1977] 1 FC 603 (folld) Jarvis Brake, The [1976] 2 Lloyd's Rep 320......
  • Request a trial to view additional results
1 books & journal articles
  • Insolvency Law
    • Singapore
    • Singapore Academy of Law Annual Review Nbr. 2011, December 2011
    • 1 December 2011
    ...In considering the issue of whether leave ought to be granted, the learned judge held that the principles enunciated in The Hull 308[1991] 2 SLR(R) 643 (The Hull 308) (a case concerned with an application for leave under s 262(3) of the Companies Act) were equally applicable to the present ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT