DYNAMIC NAVIGATION SDN BHD v CARIMIN ENGINEERING SERVICES SDN. BHD.

Case Significance

Illustrates that an extension of time to appeal will be refused where the proposed appeal is academic — the court retaining the power to assess damages on an undertaking despite an arbitration stay — and would prejudice the other party's recovery for a wrongfully obtained injunction.

This High Court decision, sitting in its appellate jurisdiction, concerns an application for an extension of time to file a notice of appeal out of time, in the context of an assessment of damages arising from a set-aside Mareva injunction. The appellant sought an extension of time to appeal against part of a Sessions Court decision which had allowed the respondent's application, under section 10 of the Arbitration Act 2005, to stay the Sessions Court proceedings while permitting the assessment of damages flowing from the setting aside of an earlier Mareva injunction order to proceed without prejudice to that stay. The respondent's position was that the Mareva injunction order that had been set aside was not subject to the arbitration clause in the parties' agreements, that the assessment of damages was a separate proceeding not arising from those agreements and not arbitrable, and that it would be rendered futile if it could not proceed in the Sessions Court; the appellant had not objected to that course below. The court dismissed the extension-of-time application. It reasoned that the assessment of damages was separate and distinct from the proceedings stayed in favour of arbitration, which arose from charter-party agreements containing arbitration clauses; that the power to assess general damages — which the appellant had undertaken when it obtained the Mareva injunction — remained with the court under Order 37 of the Rules of Court 2012; that, arbitration at the arbitration centre having since commenced, the proposed appeal was academic; and that the appellant, which had filed no affidavit for the assessment, would cause further prejudice to the respondent's entitlement to recover damages for the wrongfully obtained injunction. Because the extension was refused, the appeal was irregular and was struck out, with costs of RM3,000.00. The judgment illustrates that an extension of time will be refused where the proposed appeal is academic and would prejudice the other party's recovery.