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2025 MarsdenLR 2001
HIGH COURT MALAYA SHAH ALAM
NG CHOONG WEI – Appellant
Versus
KCK DAFU CONGEE SDN BHD & ORS – Respondent
[Originating Summon No: BA-24NCC-93-08/2024]
The court has discretion to convert Originating Summons to Writ action, but must exercise this cautiously to ensure just and efficient resolution of disputes.
Headnote:(A) Rules of Court 2012 - Order 28 r 4, Order 28 r 8, Order 88 r 2 - Application to convert Originating Summons to Writ action dismissed - Court emphasized that the discretion to convert should be exercised cautiously to ensure just disposal of the action - Unresolved disputes of fact necessitate oral testimony for resolution. (Paras 22-26)
(B) Court's discretion - The court retains power to give directions for just and expeditious proceedings even in Originating Summons - Conversion to Writ action is not automatic and must be based on necessity. (Paras 23-24)
Facts of the case:
The Defendants sought to convert the Plaintiff's Originating Summons into a Writ action, citing irreconcilable disputes over affidavit evidence. The Plaintiff argued against conversion, suggesting it would complicate proceedings.
Findings of Court:
The court found that the existing affidavit evidence could be cross-examined to resolve disputes, thus dismissing the Defendants' application.
Issues: The main issue was whether the case warranted conversion from Originating Summons to Writ action due to disputes over material facts.
Ratio Decidendi: The court ruled that while it has the power to convert, it must do so cautiously to ensure just proceedings, suggesting that existing affidavits could be cross-examined instead.
Result: Application dismissed with no order as to costs.
Introduction
[1] This is the Defendants' application in encl 23, to convert this Originating Summons to a Writ action.
[2] Having heard and considered the respective submissions by the parties on 8 April 2025, I dismissed the application in encl 23 with no order as to costs.
[3] The Defendants have appeal against the above decision of this Court to the Court of Appeal.
[4] The following are the grounds of judgment of this Court in dismissing the Defendant's application in Enclosure 23.
The Application In Encl 23
[5] The reliefs sought by the Defendants in encl 23 were as follows:
1. bahawa Saman Pemula bertarikh 8 August 2024 ("Saman Pemula") yang difailkan oleh Plaintif ditukarkan kepada satu tindakan Writ;
2. bahawa arahan-arahan diberikan berkenaan dengan pliding- pliding untuk difailkan oleh pihak-pihak dan arahan-arahan lanjutan diberikan sebagaimana yang dianggap patut dan wajar oleh Mahkamah yang Mulia ini;
3. bahawa kos permohonan ini dijadikan sebagai kos dalam kausa; dan
4. relif-relif dan/atau perintah lain-lain dan/atau selanjutnya yang dianggap sesuai dan wajar oleh Mahkamah yang Mulia ini.
[6] The above application was made pursuant to O 28 r 8 and/or O 92 r 4 of the Rules of Court 2012.
The Issue In Encl 23
[7] The issue for determination before this Court was whether this was a proper case for this Court to allow the said Notice of Application to convert the Originating Summons to a Writ action, together with the necessary consequential directions for the suit to proceed as a Writ action.
The Main Action
[8] The Plaintiff's action in this matter was filed under s 346 of the Companies Act 2016 on the basis that, among others, the First Defendant had unfairly oppressed, discriminated against and/or prejudiced the Plaintiff as a minority shareholder.
The Defendants' Grounds In Support Of Conversion
[9] The Defendants denied the Plaintiff's allegations of minority oppression in their principal Affidavit-in-Reply, which was supported by relevant affidavit evidence.
[10] The Defendants further pointed out that, notwithstanding the exchange of affidavit evidence between the parties, the Plaintiff proceeded to file an application for a Forensic Report in order to challenge and verify the authenticity, accuracy, and legality of the documents submitted by the Defendants. According to the Defendants, this move reflected the Plaintiff's lack of confidence in the credibility of the Defendants' affidavit evidence. The Defendants contended that the Plaintiff's insistence on forensic scrutiny "suggests a fundamental dispute over the authenticity and reliability of the affidavit evidence".
[11] Given that neither party accepts the other's affidavit evidence as accurate or conclusive, the Defendants argued that an "irreconcilable dispute over material facts" has arisen. In their view, "the only way to fairly resolve these disputed issues is through oral testimony, where witnesses may be cross-examined to ascertain the truth".
The Plaintiff's Contentions
[12] The Plaintiff contended that converting the present Originating Summons into a Writ action would unnecessarily complicate and delay the proceedings, resulting in additional costs being incurred by the parties.
[13] The Plaintiff further argued that, should this Court find it necessary for viva voce evidence to be adduced, it is within this Court's power to order the cross-examination of the deponents and to have the affidavits filed herein stand as evidence-in-chief.
[14] In support of this position, the Plaintiff referred not only to the provisions of O 28 r 8 and O 88 r 2 of the Rules of Court 2012, but also relied on the following authorities: WTWT Sdn Bhd v. Chew Meu Jong & Ors & Another Appeals , Mohamed Zahid Yon Mohamed Fuad v. Yakub bin Hussaini and Fat Boys Records Sdn Bhd ; [2020] 1 AMR 744; Durable Concrete Sdn Bhd v. TH Universal Builders Sdn Bhd ; and Siow Yoon Keong v. H Rosen Engineering BV ; ; .
[15] Finally, the Plaintiff urged this Court to not
