Han Kook Capital v Winplus: Admiralty Jurisdiction, Action in Rem & Striking Out
The Court of Appeal of the Republic of Singapore heard Originating Summons No 21 of 2015 and Civil Appeals Nos 58, 59, 60, and 62 of 2015, involving Han Kook Capital Co, Ltd, Winplus Corporation Co, Ltd, Frumentarius Ltd, KRC EFKO-KASKAD LLC, and Mercuria Energy Trading SA, concerning in rem writs against the vessel 'Chem Orchid.' The court dismissed the originating summons and all four appeals, holding that the appeals were akin to appeals against the dismissal of an application to strike out a writ action, thus requiring leave of court which was not obtained.
1. Case Overview
1.1 Court
Court of Appeal of the Republic of Singapore1.2 Outcome
Originating Summons No 21 of 2015 and Civil Appeals Nos 58, 59, 60 and 62 of 2015 dismissed.
1.3 Case Type
Admiralty
1.4 Judgment Type
Grounds of Decision
1.5 Jurisdiction
Singapore
1.6 Description
The Court of Appeal dismissed appeals concerning in rem writs against the vessel 'Chem Orchid,' addressing admiralty jurisdiction and striking out applications.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Han Kook Capital Co, Ltd | Applicant, Appellant | Corporation | Appeal Dismissed | Lost | Heng Gwee Nam Henry, Poh Ying Ying Joanna, Lee Zhen Ying Darius (Li Zhenying) |
| Winplus Corporation Co, Ltd | Respondent | Corporation | Appeal Dismissed | Won | Yogarajah Yoga Sharmini, Subashini Narayanasamy, Lai Kwan Wei |
| Frumentarius Ltd | Respondent | Corporation | Appeal Dismissed | Neutral | |
| KRC Efko-Kaskad LLC | Respondent | Corporation | Appeal Dismissed | Neutral | |
| Mercuria Energy Trading SA | Respondent | Corporation | Appeal Dismissed | Won | Tay Twan Lip Philip, Yip Li Ming |
| Owner and/or Demise Charterer of the Vessel “Chem Orchid” | Appellant, Defendant | Other | Appeal Dismissed | Lost |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Sundaresh Menon | Chief Justice | No |
| Chao Hick Tin | Judge of Appeal | Yes |
| Andrew Phang Boon Leong | Judge of Appeal | No |
| Judith Prakash | Judge | No |
| Quentin Loh | Judge | No |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Heng Gwee Nam Henry | Legal Solutions LLC |
| Poh Ying Ying Joanna | Legal Solutions LLC |
| Lee Zhen Ying Darius (Li Zhenying) | Legal Solutions LLC |
| Yogarajah Yoga Sharmini | Haridass Ho & Partners |
| Subashini Narayanasamy | Haridass Ho & Partners |
| Lai Kwan Wei | Haridass Ho & Partners |
| Tay Twan Lip Philip | Rajah & Tann Singapore LLP |
| Yip Li Ming | Rajah & Tann Singapore LLP |
4. Facts
- Han Kook Capital Co, Ltd (HKC) leased the vessel 'Chem Orchid' to Sejin Maritime Co Ltd (Sejin) on a demise charter.
- Sejin failed to make rental payments to HKC after 4 October 2010.
- HKC incorporated HKA to deal with the recovery of bad debts owed to HKC.
- HKA sent a notice to Sejin on 4 April 2011, claiming termination of the demise charter due to unpaid debts.
- Creditors of Sejin filed four separate in rem writs against the Vessel.
- HKC sought to set aside the in rem writs, arguing that Sejin was no longer the demise charterer at the relevant time.
- The High Court Judge reversed the AR’s decision to set aside the in rem writs.
5. Formal Citations
- The “Chem Orchid” and another matter, , [2016] SGCA 04
6. Timeline
| Date | Event |
|---|---|
| Han Kook Capital Co, Ltd leased the Vessel to Sejin Maritime Co Ltd on a demise charter. | |
| Sejin made its last payment to HKC. | |
| HKC issued a Notice of Credit Transfer to Sejin. | |
| HKC and HKA signed an Asset Transfer Agreement. | |
| HKA sent a notice to Sejin informing it that it had lost all the benefit of time for repaying its outstanding debts. | |
| HKA issued a further formal notice to Sejin emphasising that Sejin had lost all the benefit of time for paying the rental arrears. | |
| Sejin entered into a charter with Frumentarius Ltd. | |
| Sejin responded to HKA’s 9 May 2011 notice. | |
| HKA wrote to Sejin regarding the lease termination. | |
| The Vessel arrived in Singapore. | |
| HKA sent Sejin a final notice for the Vessel’s redelivery. | |
| The Vessel took on more bunkers, which were supplied by Winplus. | |
| Sejin replied to HKA’s final notice. | |
| Sejin sent a further letter to Mr SJ Kim informing him that it would do its best to return the Vessel to South Korea as soon as possible. | |
| Winplus filed Admiralty in Rem No 184 of 2011 against the Vessel and arrested it in Singapore. | |
| The Vessel was sold. | |
| HKC filed OS 21/2015. | |
| Court hearing. | |
| Grounds of decision delivered. |
7. Legal Issues
- Admiralty Jurisdiction
- Outcome: The court held that the appeals were in substance akin to appeals against the dismissal of an application to strike out a writ action, thus requiring leave of court which was not obtained.
- Category: Jurisdictional
- Sub-Issues:
- Invocation of admiralty jurisdiction
- Demise charterer status at the relevant time
- Striking Out
- Outcome: The court held that the appeals were in substance a request to the court to strike out the in rem actions on a basis similar to that which underlies O 18 r 19 of the ROC.
- Category: Procedural
- Sub-Issues:
- Application to strike out in rem writs
- Grounds for striking out
- Leave to Appeal
- Outcome: The court held that s 34(1)(a) of the SCJA read with para (e) of the Fourth Schedule thereto precluded HKC from appealing against the Judge’s decision, and this court in turn had no jurisdiction to hear the present appeals.
- Category: Procedural
- Sub-Issues:
- Requirement for leave to appeal
- Interlocutory applications
8. Remedies Sought
- Setting aside of in rem writs
- Declaration that leave of court was not required to appeal
- Extension of time to apply for leave to appeal
9. Cause of Actions
- Unpaid bunkers
- Breach of charterparty
- Non-delivery of cargo
10. Practice Areas
- Admiralty
- Shipping
- Civil Litigation
11. Industries
- Shipping
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| The Chem Orchid | High Court | No | [2014] SGHCR 1 | Singapore | The assistant registrar set aside the Creditors’ in rem writs, but the High Court judge reversed the AR’s decision. |
| The Chem Orchid | High Court | No | [2015] 2 SLR 1020 | Singapore | The High Court judge allowed the Creditors’ appeals and reversed the AR’s decision. |
| The Nasco Gem | Court of Appeal | No | [2014] 2 SLR 63 | Singapore | Cited regarding whether an application for a warrant of arrest falls within para (e) of the Fifth Schedule to the SCJA, such that leave of court is needed to appeal against an order refusing to set aside a warrant of arrest. |
| The Bunga Melati 5 | Court of Appeal | Yes | [2012] 4 SLR 546 | Singapore | Cited for the requirements to invoke the court’s admiralty jurisdiction under s 4(4) of the HCAJA. |
| The Bunga Melati 5 | High Court | Yes | [2011] 4 SLR 1017 | Singapore | Cited regarding the standard of proof for disputed jurisdictional facts. |
| The Jarguh Sawit | Court of Appeal | No | [1997] 3 SLR(R) 829 | Singapore | Cited regarding jurisdictional questions and interlocutory challenges to the court’s exercise of admiralty jurisdiction. |
| Vostok Shipping Co Ltd v Confederation Ltd | New Zealand Court of Appeal | Yes | [2000] 1 NZLR 37 | New Zealand | Cited regarding the importance of how the parties run the proceedings and the decision of the New Zealand Court of Appeal. |
| I Congreso del Partido | Queen's Bench | Yes | [1978] QB 500 | England and Wales | Cited regarding the principle that any question of jurisdiction must be dealt with on interlocutory motions and cannot be dealt with as an issue in the actions. |
| The Catur Samudra | High Court | Yes | [2010] 2 SLR 518 | Singapore | Cited regarding the same passage by Goff J in I Congreso del Partido. |
13. Applicable Rules
| Rule Name |
|---|
| Rules of Court (Cap 322, R 5, 2014 Rev Ed) |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| High Court (Admiralty Jurisdiction) Act (Cap 123, 2001 Rev Ed) | Singapore |
| Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- In rem writ
- Demise charter
- Admiralty jurisdiction
- Setting-aside application
- Constructive redelivery
- Leave to appeal
- Interlocutory application
- Balance of probabilities
- Jurisdictional fact
- Asset Transfer Agreement
- Notice of Credit Transfer
15.2 Keywords
- Admiralty jurisdiction
- In rem
- Demise charter
- Striking out
- Singapore
- Court of Appeal
16. Subjects
- Admiralty
- Shipping
- Civil Procedure
- Jurisdiction
17. Areas of Law
- Admiralty Law
- Civil Procedure
- Shipping Law