The court held that an application to convert an originating summons into a writ action requires substantial factual disputes, which the defendant failed to demonstrate.

Roz Mawar Rozain J:

Enclosure 23: The Defendant's Application To Convert The Plaintiffs' Os Into A Writ Action

[1] Out of the legal web of suits filed in our courts since 2017 by the Defendant against his father (the 1st Plaintiff) and Raub Mining & Development Group of Companies (RMDC Group), and vice versa, another appeal is borne from this Court's decision on 4 March 2025. This Court had dismissed the Defendant's application to convert the Plaintiffs' originating summons (OS) into a writ action. The OS was filed to move this Court to declare the Defendant a vexatious litigant.

[2] At the arguments of the Defendant's application to have the OS converted into a writ action, he claimed that the deponent of the Plaintiffs' affidavit in support of their OS had no personal knowledge of the contents therein. The deponent, one Edward Kam Tai Keong, a director of the 2nd to the 11th Plaintiff, had adduced the purported shareholder's agreement between the father and son, company searches, the pleadings involved, and the respective judgments and orders by the High Court, Court of Appeal and Federal Court. Also exhibited were the relevant grounds of judgments by the courts. The Plaintiffs' OS was premised on the claim that the Plaintiff vide his fresh actions before the Kuala Lumpur High Court in WA-22NCC-103-02/2024[Dato Sri Andrew Kam Tai Yeow V. Tan Sri Dato Kam Woon Wah & Ors [2025] MLRHU 912] (Suit 103) attempted to revisit the same issues already adjudicated by our courts including the apex Court. Except for the case of WA-22NCC-352-09/2017 (Suit 352), the Defendant cited the lack of personal knowledge on the part of Edward Kam Tai Keong, which warranted the OS to be converted into a writ action.

[3] The Defendant submitted that at a trial, he would be able to cross¬examine Edward Kam Tai Keong and also one Linda Kam Thai Eng, another director of the 2nd to the 11th Plaintiff and also the Defendant's sister, who had affirmed an affidavit in reply to the Plaintiffs application under encl 23. The Defendant claimed that Linda Kan Thai Eng also possessed no personal knowledge of the averments she deposed in response to the Defendant's contentions. The Defendant repeatedly stated that there were contradictions of facts. It was submitted that although the documents may be enough, viva voce evidence was required to see the intention of the Plaintiffs.

[4] The learned counsel for the Plaintiffs responded by highlighting that the issue before this Court was whether in view of the Court of Appeal's decision in 2022 that struck out the Defendant's suit and also having ruled on the concept of indirect shareholdings held by the 1st Plaintiff was non sequitur which was affirmed by the Federal Court in 2023, to raise again and revisit those same issues through suits filed before Justice Wan Muhammad Amin Wan Yahya and Justice Mohd Radzi Harun make the Defendant a vexatious litigant. The Plaintiffs maintained that there were no factual disputes as this Court's determination would rely on the documents - all of which were exhibited in the affidavits. This Court heard the Plaintiffs submitted that as personal knowledge was secondary - and with no factual dispute in existence, there was no justification by the Defendant to convert the Plaintiffs' OS into a writ action. The Plaintiffs implored this Court to consider the Defendant's subsequent conduct after the decision by the Court of Appeal and the Federal Court which were evident via his filing of subsequent lawsuits in our courts.

[5] This Court then considered the Defendant's response that in the alternative, he be allowed to cross-examine Edward Kam Tai Keong and in return offered himself to be cross-examined as a middle ground. The Defendant's counsel submitted that the issue of recusal of judges and garnishee proceedings cannot be taken into account to find the Defendant a vexatious litigant. But, submitted the Defendant's counsel, it ought to be on the finding of repeated litigation on sub