The court emphasized that conversion of Originating Summons to Writ action is only warranted in cases with serious disputes of fact, confirming the sufficiency of affidavit evidence.

Ahmad Bache J:

A. Introduction

[1] The 2 Plaintiffs being paying members of the Defendants' Club had filed an action against the Defendants for amongst others, a breach of s 10 of the Competition Act 2010 , for "deliberately and arbitrarily" increasing the prices for both Individual Membership and Bumiputera Individual Membership and Transfer Fee notwithstanding that since 2014 the Club has ceased issue such memberships.

[2]Vide Enclosure (38), the 1st Defendant is making an application to convert the Plaintiffs' Originating Summons to a Writ of Summons pursuant to O 28, r 1 of the Rules of 2012. By virtue of O 28, r 1, 2 and 3 of the Rules of 2012, the Defendants are also making an application dated 6 November 2019 to seek an order from this Court that proceedings in this action be continued as if it had been begun by Writ and other consequential directions ("1st Defendant's Application").

[3] After hearing submissions by both parties, this Court had dismissed the 1st Defendant's application with costs of RM5,000.00.

[4] Dissatisfied, the Defendants had filed a Notice of Appeal to the Court of Appeal. Herewith are the grounds for that decision.

B. Brief Facts Of The Case

[5] The detailed background facts are set out in the 1st Defendant's Affidavit in Opposition to the Originating Summons affirmed by Asniza binti Aminuddin on 15 July 2019 on behalf of the 1st Defendant ("1st Defendant's AIR").

[6] Simply put, the 1st Defendant owns, manages and operates the Tournament Players Club ("TPC KL"). The 1st Plaintiff in his individual capacity is an Individual Member of TPC KL and the 2nd Plaintiff in his individual capacity is a Bumiputera Individual Member of TPC KL.

[7] The Plaintiffs have filed the present action "on behalf of past and present Individual Members and Bumiputera Individual Members of TPC KL".

[8] By way of the Originating Summons filed herein, the Plaintiffs seek to assert a purported breach of s 10 of the Competition Act, 2010 against the 1st Defendant, in respect of the increase of prices for Individual Memberships and Bumiputera Individual Memberships ("the Increase of Price of Membership Issue") and the increase of the transfer fee rate ("Transfer Fee Rate Issue").

[9]Vide Enclosure (38), the 1st Defendant had made this application because according to him from the outset, the Affidavits filed have plainly and clearly raises serious and substantial disputes of facts between the parties which can only be properly resolved only by way of oral evidence of witnesses at a full trial.

[10] According to the 1st Defendant this was evident from the fact that the Plaintiffs have filed a total of 7 Affidavits and the 1st Defendant has filed a total of 4 Affidavits, which in themselves demonstrate that there are substantial disputes of facts between the parties which warrant a full trial and consequently this Originating Summons should be converted to a Writ of Summons.

C. The Law And Arguments By Parties

[11] The application was made by the 1st Defendant pursuant to O 28 r 8 of the Rules of 2012, which states as follows:

"8. Continuation of proceedings as if cause or matter begun by writ (O 28, r 8)

(1) Where, in the case of a cause or matter begun by originating summons, it appears to the Court at any stage of the proceedings that the proceedings should for any reason be continued as if the cause or matter had been begun by writ, it may order the proceedings to continue as if the cause or matter had been so begun and may, in particular, order that pleadings shall be delivered or that any affidavits shall stand as pleadings, with or without liberty to any of the parties to add thereto or to apply for particulars thereof.

(2) Where the Court decides to make such an order referred to in r 1, O 34 shall apply with the necessary modifications.

(3) This rule applies notwithstanding that the cause or matter in question could not have been begun by writ.

(4) Any reference in these Rules to an action begun by writ shall, unless the con