The court can convert an originating summons to a writ when substantial facts are disputed and based on allegations of oppression by shareholders against minority interests.

Leong Wai Hong J:

Application to proceed with oppression Originating Summons as if begun by way of a Writ]

Introduction

[1] The plaintiff holds a 35% share in Peninsular Steel Galvanising Sdn Bhd ("PSG"), the first defendant in this case. The second defendant [Ng Kong Chen @ Ng Ting Miew (NRIC No.: 490325-10-5455) and the third defendant [Ng Jinn Yeong (NRIC No.: 810326-14-5547] are directors of PSG, with the second defendant owning 55% of the shares and the third defendant owning 10% of the shares in PSG.

[2] The plaintiff has filed an Originating Summons dated 23 April 2024 in encl 1 ("OS") against the 2nd and 3rd defendants seeking a remedy premised on s 346 of the Companies Act 2016 [" CA 2016"] on the ground:

i. that the affairs of PSG are being conducted or the powers of the directors are being exercised in a manner oppressive to him as a member;

ii. or in disregard of his interests as a member.

[3] Affidavits were filed by the parties. Subsequently, the plaintiff filed an application in encl 13 dated 3 October 2024 under O 28 r 8(1) Rules of Court 2012 [" ROC 2012"] to proceed with the OS as if it was begun by way of a Writ. This is opposed by the defendants.

Plaintiff's Contentions

[4] The plaintiff contends it cannot proceed with the OS format but needs a conversion to a writ as a trial is required because:

i. the defendants deny there is oppression;

ii. there are factual allegations made by the plaintiff which are denied by the defendants; and

iii. the plaintiff needs to subpoena witnesses to testify on disputed facts.

[See Enclosure 21 plaintiff's written submissions at para 3]

Defendants' Contentions

[5] The defendants contend a trial is not needed because "if there is any conflict of facts, which the plaintiff has failed to prove, the plaintiff could resort to the process under O 28 r 4 ROC 2012 to cross-examine the 2nd and 3rd defendants", unquote. [See encl 19 defendants' written submissions at para 18].

[6] The defendants also contend a trial is not needed because:

i. It is mandatory under O 88 Rules of Court 2012 for an action under s 346 CA 2016 to be commenced by way of an OS;

ii. Issues raised are irrelevant to oppression and do not in any way prove that the plaintiff's rights as a shareholder have been affected. It is trite law that mismanagement of the company, if any, do not amount to oppression;

iii. The plaintiff is embarking on a fishing expedition via a trial; and

iv. The plaintiff offered no explanation why the 2nd and 3rd defendants could not be cross-examined on the affidavits.

[See Enclosure 19 defendants' written submissions at para 5]

Law On Conversion Of OS To writ

[7] Where the facts are contradicted on substantial grounds, the Court has the discretion under O 28 r 8(1) ROC 2012 to order that the proceedings be continued as if the cause or matter had been begun by writ.

[See Malaysian Civil Procedure 2024 Volume 1 Sweet and Maxwell at 28/8/1 and 88/2/4, Ting Ling Kiew & Anor v. Tang Eng Iron Works Co Ltd 1992 MarsdenLR 284; 1992 MarsdenLR 829 ; ; [1992] 1 AMR 90 SC [" Ting Ling Kiew "] and Khoo Kheng Sim v. Khoo Chooi Leong & Anor 2001 MarsdenLR 862; , HC [" Khoo Kheng Sim "]].

[8] The plaintiff may by his own accord make such an application for conversion. However, the Court may dismiss the conversion applica