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2025 MarsdenLR 2749
HIGH COURT MALAYA SHAH ALAM
KMC PARTNERS BERHAD – Appellant
Versus
VICTOR SAW SENG KEE & ORS (ENCLS 2 79 & 102) – Respondent
[Originating Summons No: BA-24NCC-140-11/2023]
The court dismissed the application to convert the Originating Summons to a Writ, reaffirming that without a serious factual dispute, conversion is unwarranted.
Headnote:(A) Rules of Court 2012 - Order 28 r 4 and r 8 - Application to convert Originating Summons to Writ dismissed - Court ruled that applicant failed to show a serious dispute of facts justifying conversion - Applicant's allegations of collusion and fraudulent activity found unsupported by evidence - Parties bound by their respective pleaded cases; court determined it unnecessary to convert to Writ. (Paras 10, 19, 24, 26, 30)
(B) Legal principles regarding conversion of Originating Summons to Writ - Court's inherent power under Order 28 r 8 (1) requires serious factual disputes for conversion - Courts maintain adherence to previously established rulings unless compelling reasons indicate otherwise. (Paras 9, 28)
Facts of the case:
Applicant sought removal of a receiver and validity of security documents over land initially owned by a failed joint venture, implicating creditors and allegations of mismanagement and fraud.
Findings of Court:
The Court found that the applicant presented insufficient evidence of fraud or dispute to warrant conversion from Originating Summons.
Issues: Central issue was whether factual disputes justified converting proceedings; further issues pertained to the applicant's standing and claims of fraud against 2nd respondent.
Ratio Decidendi: The court emphasized the importance of factual foundations in legal pleadings and ruled that the applicant's assertions did not constitute a valid basis for conversion.
Result: Application dismissed with costs.
| Table of Content |
|---|
| 1. application background and ownership details. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8) |
| 2. court's power to convert originating summons. (Para 10 , 11) |
| 3. applicant's claims regarding alleged disputes. (Para 12 , 13 , 14 , 15) |
| 4. 1st and 2nd respondents' counterarguments. (Para 16 , 17) |
| 5. analysis of applicant's submissions and court's reasoning. (Para 19 , 20 , 21 , 22 , 23 , 24 , 26 , 27 , 28) |
Introduction
[1] Enclosure 79 is an application by the applicant to convert Originating Summons into a Writ under O 28 r 4 and O 28 r 8 of the Rules of Court 2012. On 20 November 2024, the application was dismissed by this Court. Hence, the applicant filed an appeal to the Court of Appeal.
Background
[2] The applicant had filed Originating Summons against the respondents on 10 November 2023 and had prayed as follows:
i. The 1st respondent be dismissed and removed as the receiver of TSA Land Sdn Bhd (In Receivership) (In Liquidation);
ii. Both the respondents are prohibited from disposing of the assets of TSA Land Sdn Bhd (In Receivership) (In Liquidation);
iii. Any encumbrances entered and/or imposed by the 2nd respondent on the TSA Land Sdn Bhd (In Receivership) (In Liquidation) be declared null and void; and
iv. The 2nd respondent to take any necessary action to discharge the lands of TSA Land Sdn Bhd (In Receivership) (In Liquidation).
[3] The land held under Geran HS(D) 19463, PT 4612, Mukim Setapak, District of Gombak, Selangor Darul Ehsan, measuring approximately 28,327.068 square metres (the Land) was owned by Melawati Recreation Berhad. On 9 October 2006, Melawati Recreation Berhad (MRB), vide its liquidator, entered a Sale and Purchase Agreement with the applicant to sell the Land. Then, on 29 March 2011, the applicant entered into a Joint Venture Agreement with 3rd respondent, TSA Land (formerly known as Tristar Award Sdn Bhd) concerning the Land. The 3rd respondent was in the property development business. Later, the applicant sold the Land to the 3rd respondent under the Sale and Purchase Agreement dated 25 April 2011.
[4] On 13 May 2011, Messrs Lee Hishamuddin Allen & Gledhill, acting for MRB's liquidator, terminated the Sale and Purchase Agreement entered between the applicant and MRB. After the termination, MRB vide its liquidator sold the Land to the 3rd respondent on 5 October 2011, in which United Overseas Bank (M) Berhad financed the 3rd respondent and the 3rd respondent registered as the owner of the Land.
[5] Later on, the 3rd respondent executed the legal charges of the said Land, dated 6 December 2012 and 29 June 2018, in favour of the 2nd respondent, Sabah Development Bank Bhd The assets of the 3rd respondent were also charged to the 2nd respondent under the Debentures dated 7 January 2012 and 29 June 2018. The 3rd respondent executed the legal charges and the debentures as security for the repayment of its indebtedness under credit facilities totaling RM138 million, which the 2nd respondent granted, consisting of:
(i) Term Loan 1, worth RM23 million, to redeem the Land from United Overseas Bank (M) Berhad.
(ii) Bridging loan of RM85 million to finance the construction cost of building a Small Office Home Office and serviced apartments on the Land by the 3rd respondent.
(iii) Term Loan 2 of RM30 million partially funded the project's preliminary expenses and earthworks.
[6] The 2nd respondent is the registered charge of the Land held under Geran 310783, Lot 16838, s 1, Bandar Ulu Kelang, Daerah Gombak, Negeri Selangor (formerly held under HS(D) 19463, PTD 4612 Mukim Setapak, Daerah Gombak, State of Selangor) and now held under HS(D) 81751, PT5241 and HS(D) 8[1752] PT 5242 both located at s 1 Bandar Ulu Kelang, Daerah Gombak, Negeri Selangor following subdivisions.
[7] On 22 September 2021, the Bank obtained Judgment against the 3rd respondent for RM146,279,883.54 as of 19 April 2021 because the 3rd respondent defaulted on the Credit Facilities. Then, the 1st respondent, Mr Victor Saw Seng Ke
