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2022 MarsdenLR 210
HIGH COURT MALAYA KUALA LUMPUR
BANK KERJASAMA RAKYAT MALAYSIA BERHAD – Appellant
Versus
ANGKATAN KOPERASI KEBANGSAAN MALAYSIA BERHAD & ANOR – Respondent
[Originating Summons No: WA-24M-18-04/2021]
The court established that substantial factual disputes warrant converting an originating summons to a writ, necessitating oral evidence for resolution.
Headnote:(A) Rules of Court 2012 – Order 28 r 8(1) – Conversion of originating summons to writ – Plaintiff sought to convert originating summons to writ due to substantial disputes of fact arising from affidavits – Court emphasized need for oral evidence to resolve conflicts – Application allowed with costs in the cause. (Paras 55, 43, 46)
Facts of the case: The Plaintiff sought conversion of an originating summons to a writ to address significant disputes of fact regarding the ownership and management of Assigned Proceeds between the parties involved, after the second Defendant failed to remit payments under various financial agreements. (Paras 1-14)
Findings of Court: The court noted multiple substantial conflicts of evidence necessitating a full trial to determine factual issues surrounding Assigned Proceeds and alleged data manipulation. (Paras 44, 55)
Issues: Whether the Plaintiff is the beneficial owner of the Assigned Proceeds, the legality of data transfer by the second Defendant, and the need for accounts. (Paras 14, 30)
Ratio Decidendi: The court determined that due to significant factual disputes and the requirement for oral evidence, it is proper to convert the originating summons into a writ for fair resolution. (Para 46)
Result: Application to convert the OS to a writ was allowed with costs in the cause.
JUDGMENT
Introduction
[1] This is an application via encl 77 by the Plaintiff to convert the Plaintiff's Originating Summons ("the OS") against the Defendants pursuant to O 28 r 8 of the Rules of 2012 (' ROC 2012'). At the conclusion of the hearing, this Court allowed the Plaintiff's application. The following are the Grounds of Judgment of this Court.
Background Facts
[2] Between 208 and 2013, the Plaintiff, a co-operative society carrying out a banking and finance business, granted amongst others, 7 Term Financing-i Facilities ("the Financing Facilities") to the 2nd Defendant, another co-operative society. The Financing Facilities were Islamic facilites based on the Bai Al-lnah principle provided to the 2nd Defendant which were then utilised by the 2nd Defendant to provide Islamic financing to the 2nd Defendant's members or customers. The 2nd Defendant's members or customers who avail themselves to the Islamic financing provided by the 2nd Defendant will be referred to herein as "the KOIMAN Members". Pursuant to the Financing Facilities, the Plaintiff and the 2nd Defendant have executed the relevant Asset Sale Agreements ("ASAs"), Asset Purchase Agreements ("APAs") and Assigned Proceeds Deeds of Assignment ("Assigned Proceeds DOAs").
[3] Specifically, the Assigned Proceeds DOAs are 7 deeds of assignment dated 22 September 2008, 16 April 2009, 22 October 2009, 12 October 2010, 18 November 2011, 4 September 2012 and 5 December 2013 respectively.
[4] Pursuant to the terms of the ASAs, APAs and Assigned Proceeds DOAs, the KOIMAN Members are under the obligation to pay back the 2nd Defendant by making payments to the 1st Defendant, a co-operative society representing the co-operative movement, which provides a service, known as Biro Perkhidmatan Angkasa ("BPA"), to collect the payment of financing facilities on behalf of financial institutions and cooperatives, including the Plaintiff and the 2nd Defendant.
[5] The payments of the personal financing granted by the 2nd Defendant to the KOIMAN Members are collected by the 1st Defendant on behalf of the 2nd Defendant. The KOIMAN Members have agreed to have their salaries deducted by their employers and to be paid to the 1st Defendant as payment for the personal financing. This is done under BPA B0332. The 1st Defendant will then remit the deducted salaries collected from the KOIMAN Members directly to the Plaintiff which would then be remitted directly to the 2nd Defendant's saving account opened with the Plaintiff bearing account number 22-019-128785-0 ("the Designated Account').
[6] Pursuant to the Assigned Proceeds DOAs in respect of the Financing Facilities, the 2nd Defendant has assigned absolutely its rights in respect of the deducted salaries collected from the KOIMAN Members ("the Assigned Proceeds").
[7] On 30 November 2017, due to the arrears of payment of the Financing Facilities, the 2nd Defendant executed a Supplemental Asset Sale Agreement dated 30 November 2017, a Supplemental Asset Purchase Agreement dated 30 November 2017 and Deed of Assignment of PGM Proceeds in the Designated Account dated 30 November 2017 ("PGM Proceeds DOA") in respect of the Term Financing-i Facility of RM80,000.00, one of the Financing Facilities, particularly for the deducted salaries ("PGM Proceeds"). The 2nd Defendant assigned the PGM Proceeds to the Plaintiff pursuant to the PGM Proceeds DOA. The PGM Proceeds collected by the 1st Defendant would be remitted directly to the Designated Account.
[8] The 2nd Defendant also absolutely and irrevocably assigned its right in respect of the Non-Performing Portfolios ("NPP Proceeds") to the Plaintiff. NPP Proceeds are monies recovered by the 2nd Defendant from the KOIMAN Members that have defaulted in the personal financing granted by the 2nd Defendant using Financing Facilities granted by the Plaintiff.
[9] In respect of the NPP Proceeds, the 2nd Defendant executed a Supplemental Asset Sale Agreement dated 30 November 2017, a Sup
