Euronav Shipping NV v Black Swan Petroleum DMCC
[2024] EWHC 896 (Comm)
Tumpuan Megah Development Sdn Bhd v ING Bank NV & Anor
17 September 2024
[2024] EWHC 2350 (Comm)
High Court
A company tried to sue two others for failing to pay for fuel, but it missed the deadline and its arguments were already decided in a previous court case it didn't appeal. The judge threw out the case, saying the company's claims were pointless and repeated previous failures.
Key Facts
- •Tumpuan Megah Development Sdn. Bhd. (TMD) commenced legal proceedings against ING Bank N.V. and O.W. Bunker Far East (Singapore) Pte. Ltd. (OWB) on the last day of the limitation period.
- •The dispute concerns the supply of marine gas oil in 2014, with a total value of around US$937,353.
- •Prior arbitrations took place: a London-seated arbitration (LMAA Award) ruled against TMD, and a Malaysian arbitration (AIAC Award) also ruled against TMD based on the LMAA Award.
- •TMD's current claim alleges breach of a Malaysia-seat arbitration agreement (SOA-AA) by ING and OWB for commencing and pursuing the London arbitration and resisting the Malaysian arbitration.
- •ING and OWB applied to set aside various orders and stay or dismiss the claim, arguing preclusion, abuse of process, and improper forum.
- •TMD's claim was time-barred except for the extension of the claim form's validity granted by Mr Justice Knowles CBE, which was challenged.
Legal Principles
Extension of validity of claim form under CPR 7.6(2) requires 'good reason'.
CPR 7.6(2)
Permission to serve out of the jurisdiction under CPR 6.36/6.37 requires satisfying threshold merits, jurisdictional gateways, and proper forum.
CPR 6.36/6.37
Stay of proceedings under section 9 of the Arbitration Act 1996, unless exceptions in section 9(4) apply.
Arbitration Act 1996, s.9
Res judicata and issue estoppel principles apply to prevent repetitive litigation.
Arbitration Act 1996, ss.58(1), 73(2)
A party can choose between 'active' and 'passive' challenges to arbitral jurisdiction.
Arbitration Act 1996, ss.32, 67, 66(3), NYC
Outcomes
Knowles Order set aside; claim against OWB dismissed.
TMD failed to show good reason for extension of validity under CPR 7.6(2), and the claim against OWB was time-barred.
Claim against ING struck out.
Claim precluded by the LMAA Award and Cockerill Order, rendering it hopeless and abusive. TMD's failure to challenge the LMAA Award in the UK courts resulted in the preclusive effect of the award.
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