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2025 MarsdenLR 528
HIGH COURT MALAYA SHAH ALAM
KMC PARTNERS BERHAD – Appellant
Versus
VICTOR SAW SENG KEE & ORS (ENCLS 2 79 & 102) – Respondent
[Originating Summons No: BA-24NCC-140-11/2023]
The court dismissed the application to convert an Originating Summons into a Writ, emphasizing that parties are bound by their pleaded cases and new allegations cannot be introduced without merit.
Headnote:(A) Rules of 2012 - Order 28 Rules 4 and 8 - Application to convert Originating Summons into a Writ - The court dismissed the application as the applicant failed to demonstrate a serious dispute of facts warranting conversion - The applicant's claims were found to be based on new facts unrelated to the original summons - The court emphasized that parties are bound by their pleaded cases and that the introduction of new allegations is not permissible. (Paras 10, 11, 19, 20, 24, 25, 26, 30)
(B) Legal principles - The court has the inherent power to convert proceedings from an Originating Summons to a Writ if justified - The necessity for viva voce evidence is determined by whether factual disputes are crucial for resolving the real issues. (Paras 10, 27, 28)
Facts of the case:
The applicant filed an Originating Summons against the respondents seeking to remove the receiver of TSA Land Sdn Bhd and to declare encumbrances null and void, following a series of financial disputes and defaults involving the 3rd respondent and the 2nd respondent. (Paras 2, 3, 4, 5, 7)
Findings of Court:
The court found that the applicant did not establish a serious factual dispute and that the allegations made were not part of the original affidavit, thus dismissing the application for conversion. (Paras 20, 30)
Issues: The main issue was whether there was a serious dispute of facts justifying the conversion of the Originating Summons into a Writ. (Paras 11, 21)
Ratio Decidendi: The court ruled that the applicant's failure to demonstrate a serious dispute of facts and the introduction of new allegations precluded the conversion of the Originating Summons into a Writ. (Paras 20, 24, 30)
Result: Application dismissed with costs subject to allocator.
JUDGMENT
Introduction
[1] Enclosure 79 is an application by the applicant to convert Originating Summons into a Writ under O 28 r 4 and O 28 r 8 of the Rules of 2012. On 20 November 2024, the application was dismissed by this Court . Hence, the applicant filed an appeal to the Court of Appeal.
Background
[2] The applicant had filed Originating Summons against the respondents on 10 November 2023 and had prayed as follows:
i. The 1st respondent be dismissed and removed as the receiver of TSA Land Sdn Bhd (In Receivership) (In Liquidation);
ii. Both the respondents are prohibited from disposing of the assets of TSA Land Sdn Bhd (In Receivership) (In Liquidation);
iii. Any encumbrances entered and/or imposed by the 2nd respondent on the TSA Land Sdn Bhd (In Receivership) (In Liquidation) be declared null and void; and
iv. The 2nd respondent to take any necessary action to discharge the lands of TSA Land Sdn Bhd (In Receivership) (In Liquidation).
[3] The land held under Geran HS(D) 19463, PT 4612, Mukim Setapak, District of Gombak, Selangor Darul Ehsan, measuring approximately 28,327.068 square metres (the Land) was owned by Melawati Recreation Berhad. On 9 October 2006, Melawati Recreation Berhad (MRB), vide its liquidator, entered a Sale and Purchase Agreement with the applicant to sell the Land. Then, on 29 March 2011, the applicant entered into a Joint Venture Agreement with 3rd respondent, TSA Land (formerly known as Tristar Award Sdn Bhd) concerning the Land. The 3rd respondent was in the property development business. Later, the applicant sold the Land to the 3rd respondent under the Sale and Purchase Agreement dated 25 April 2011.
[4] On 13 May 2011, Messrs Lee Hishamuddin Allen & Gledhill, acting for MRB's liquidator, terminated the Sale and Purchase Agreement entered between the applicant and MRB. After the termination, MRB vide its liquidator sold the Land to the 3rd respondent on 5 October 2011, in which United Overseas Bank (M) Berhad financed the 3rd respondent and the 3rd respondent registered as the owner of the Land.
[5] Later on, the 3rd respondent executed the legal charges of the said Land, dated 6 December 2012 and 29 June 2018, in favour of the 2nd respondent, Sabah Development Bank Bhd The assets of the 3rd respondent were also charged to the 2nd respondent under the Debentures dated 7 January 2012 and 29 June 2018. The 3rd respondent executed the legal charges and the debentures as security for the repayment of its indebtedness under credit facilities totaling RM138 million, which the 2nd respondent granted, consisting of:
(i) Term Loan 1, worth RM23 million, to redeem the Land from United Overseas Bank (M) Berhad.
(ii) Bridging loan of RM85 million to finance the construction cost of building a Small Office Home Office and serviced apartments on the Land by the 3rd respondent.
(iii) Term Loan 2 of RM30 million partially funded the project's preliminary expenses and earthworks.
[6] The 2nd respondent is the registered charge of the Land held under Geran 310783, Lot 16838, s 1, Bandar Ulu Kelang, Daerah Gombak, Negeri Selangor (formerly held under HS(D) 19463, PTD 4612 Mukim Setapak, Daerah Gombak, State of Selangor) and now held under HS(D) 81751, PT5241 and HS(D) 8[1752] PT 5242 both located at s 1 Bandar Ulu Kelang, Daerah Gombak, Negeri Selangor following subdivisions.
[7] On 22 September 2021, the Bank obtained Judgment against the 3rd respondent for RM146,279,883.54 as of 19 April 2021 because the 3rd respondent defaulted on the Credit Facilities. Then, the 1st respondent, Mr Victor Saw Seng Kee, was appointed as the receiver of the 3rd respondent under the terms of the Debentures. On 19 September 2022, the Court ordered the 3rd respondent to be wound up, and Kumarakuru, a/l Jai Prakash, and Andrew Heng were appointed as its Liquidators.
[8] Then, on 10 November 2023, KMC Partners filed the Originating Summons in this Court against the 2nd respondent to impugn the 2nd respondent's right over t
