The court ruled that substantial factual disputes necessitate converting an originating summons to a writ action, allowing for oral evidence to resolve conflicting claims and ensure justice.

[Enclosure 14]

Introduction

[1] This is an application filed by the 2nd, 3rd and 4th Defendants seeking for, inter alia, an order that this Originating Summons ("OS") be converted into a writ action.

[2] As a brief background, in 1992, the 1st Defendant was married to the 1st Plaintiff and since then they have been living at No 12, Jalan Dedap 26, Taman Johor Jaya, Johor Bahru. The 2nd Plaintiff is their daughter.

[3] Before this, the 1st Defendant was married to Tan Ah Guan (now divorced) and they were blessed with four children, namely:

(a) the 2nd Defendant;

(b) the 3rd Defendant;

(c) the 4th Defendant (f); and

(d) Mak Chi Cheong, a mentally disordered person.

[4] The 1st Defendant is currently 88 years old and the Plaintiffs aver that the former is incapable of managing himself and his own affairs due to his mental incapacitated.

[5] Hence, on 7 December 2023 the Plaintiffs took out the present OS pursuant to the Mental Health Act 2000 ("MHA") seeking for the following prayers, inter alia:

(a) a declaration that the 1st Defendant is incapable of managing himself and his own affairs;

(b) an inquiry to be held pursuant to s 52 and/or s 54 of the MHA and directions thereof be given by this Court;

(c) that the Plaintiffs be appointed as the committee of estate of the 1st Defendant pursuant to s 58 of the MHA and shall have powers as may be necessary, reasonable and expedient to carry out the management of the estate of the 1st Defendant comprising all movable and immovable assets, tangible and intangible assets including but not limited to a company incorporated under the laws of Malaysia namely, Tai Yip Sdn Bhd ("TYSB") and the said powers shall include the following:

(i) to accept all notices relating to the shareholders' and directors' meetings of TYSB to attend the same on behalf of the 1st Defendant and to exercise shareholders' and directors' powers vested in the 1st Defendant in the said meetings;

(ii) to appoint proxy to attend shareholders' meeting on behalf of the 1st Defendant and to exercise powers vested in him in the said meetings;

(iii) to appoint or engage persons with the necessary and relevant expertise and knowledge to assist the Plaintiffs in their decision making affecting the rights and interests of the 1st Defendant;

(iv) to authorise any one or more member(s) of the committee of estate to sign or execute all documents on behalf of the 1st Defendant including banking instruments, land instruments, cheques as may be required for the purpose of the management and operation of the TYSB;

(v) to sell or charge or otherwise dispose of any assets, moveable or immovable, and whether in possession, reversion, remainder, contingency or expectancy of the 1st Defendant as they deem expedient and necessary pursuant to s 63 of the MHA;

(vi) all powers as provided under s 64 of the MHA, wherein they shall, in the 1st Defendant's name and on his behalf, to execute all such conveyances and instruments of transfer in relation to any sale, charge or other disposition of the estate of the 1st Defendant and shall exercise all powers vested in the 1st Defendant, whether the powers are vested in him for his own benefit or in his capacity as a trustee or guardian; and

(vii) to manage and operate all bank accounts belonging to the 1st Defendant;

(d) that the 1st Defendant be handed over to the care of the Plaintiffs pursuant to s 73(2) of the MHA; and

(e) that all costs incurred by the committee of estate in exercising their duties as the committee of estate of the 1st Defendant shall be borne by the 1st Defendant from his estate.

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