1. ) Yan Choon Poh v Hatten Property Management Sdn. Bhd. (MA-12ANCvC-1-01/2026)

(a) whether MVSB had taken over all of the Respondent's rights, interests, benefits, obligations and liabilities under, inter alia, the Tenancy Agreement, the Power of Attorney and the Deed of Mutual Covenant, all dated 14 October 2014, in respect of the Unit; and

(b) whether the Appellants are estopped from disputing that takeover so long as they have not set aside the Scheme of Arrangement ("the Scheme"). [6] The real legal controversy on this appeal is, at this stage, the prior procedural one. It is not whether those two questions are to be answered for or against the Respondent on their merits. It is whether they were properly amenable to determination by way of preliminary issue under Order 33 rules 2 and 5 of the ROC 2012, on the affidavit evidence filed in the application below and in advance of trial. That issue, in turn, requires this Court to examine the nature and reach of Order 33 rules 2 and 5, the limits placed upon that procedure by binding authority, and whether the relevant material facts were, in truth, undisputed - as the Respondent contends - or were disputed in a manner which placed the matter outside the proper scope of the rule. [7] The central issue may therefore be put compendiously: whether, on the state of the pleadings and the affidavit evidence, the Sessions Court was entitled in the proper exercise of its discretion to direct the trial of the two questions as preliminary issues, and to dispose of those issues without a trial of the action. B. MATERIAL FACTS AND PROCEDURAL HISTORY [8] The material facts, drawn from the Statement of Claim, the Defence, the Reply, the affidavits filed in the Order 33 application below, and the contemporaneous documents exhibited in the Record of Appeal (Volumes 1 and 2 and the Supplementary Record of Appeal), may be set out shortly. They are set out at this stage without findings of fact and without prejudice to whatever view of the evidence may emerge at trial. [9] By a Sale and Purchase Agreement dated 14 October 2014, MVSB (then known as Fuyuu Ventures Sdn Bhd) agreed to sell, and the Appellants agreed to purchase, Parcel B-21-37 measuring 71.6282 square metres on the 21st floor of Block B of Imperio Residence @ Hatten City, Melaka, for a price of RM678,500.00. A copy of the Sale and Purchase Agreement is exhibited at Record of Appeal Volume 2, pages 32 to 61. [10] On the same day, the Appellants entered into a Tenancy Agreement with the Respondent (Record of Appeal Volume 2, pages 62 to 118). By that agreement the Appellants, as landlords-to-be, agreed to lease the Unit to the Respondent as tenant for an initial term of three years upon the issuance of the Certificate of Completion and Compliance and the delivery of vacant possession. Clause 3, read with section 8 of the First Schedule, fixed the rent at six per cent of the purchase price per annum, namely RM40,710.00, payable quarterly at RM10,177.50 (after agreed deductions) within seven days of the expiry of each quarter. [11] Two further provisions of the Tenancy Agreement bear specific mention. By clause 7.1, neither party reserved any right to terminate the Tenancy Agreement during its currency. By clause 8.1, on which the Appellants placed reliance below and on this appeal, written notice of any intended assignment by the Respondent of its rights and obligations was required to be given to the Appellants. The precise terms of clause 8.1 are exhibited in the Tenancy Agreement at the pages just cited and need not be set out at this procedural stage. [12] On 23 December 2016, the Respondent and MVSB executed the instrument relied upon as the Novation Agreement, exhibited at Record of Appeal Volume 2, pages 119 to 123. By that instrument (so the Respondent contends) MVSB took over all of the Respondent's rights, interests, benefits, obligations and liabilities under, inter alia, the Tenancy Agreement and the Power of Attorney granted in conjunction with it, and the Respondent was to be released from those rights, interests, benefits, obligations and liabilities absolutely. It is not disputed that the Appellants were not parties to that instrument. It is in dispute whether they were given written notice of, or in fact consented to, the arrangement which it purported to effect. [13] By a letter dated 29 March 2019, MVSB notified the Appellants that the Certificate of Completion and Compliance had been issued and that vacant possession of the Unit was ready for delivery. The three-year term under the Tenancy Agreement is taken by both sides to have commenced on 29 September 2019 and to have ended on 28 September 2022. [14] From 21 January 2020 onwards, the Appellants began to receive payments of rent into their account. The bank statements exhibited at Record of Appeal Volume 2, pages 124 and 125 show that those payments were made by MVSB and not by the Respondent. The Respondent relies on those payments, and on the Appellants' acceptance of them without protest until the demand letter of 8 August 2024, both as evidence of consent to the arrangement of 23 December 2016 and as the foundation of an estoppel. The Appellants, in the First Appellant's Affidavit in Reply at paragraphs 17 to 19 (Record of Appeal Volume 2, pages 17 to 18), accept that the payments were received but state that they were treated as payments by a third party in discharge of the Respondent's contractual obligation, and that the Appellants were not at any material time informed of, or asked to consent to, any release of the Respondent's primary liability. [15] On 18 December 2020, a meeting of MVSB's scheme creditors was convened pursuant to section 366 of the Companies Act 2016. The meeting voted, by 96.7 per cent in value of those present and voting, to approve a Scheme of Arrangement contained in an Explanatory Statement under which, among other things, MVSB acknowledged debts to a list of scheme creditors. The Appellants appear at line 697 of the Third-Party Scheme Creditors' List in respect of a sum of RM228,416.13 (Record of Appeal Volume 2, page 199). [16] By an order of this Court dated 6 January 2021, made in Originating Summons No. MA-24NCC-4-07/2020 on the petition of MVSB, the Scheme was sanctioned (Record of Appeal Volume 2, pages 126 to 347). The effective date of the Scheme is 19 January 2021. The Cut-Off Date defined in the Explanatory Statement is 20 September 2020. By letter dated 20 May 2021 (Record of Appeal Volume 2, pages 348 to 349), the Explanatory Statement was made available to the scheme creditors, including the Appellants. The Appellants have not, to date, applied to set aside the order of 6 January 2021. Two provisions of the Explanatory Statement bear specific mention. Clause 30 (Record of Appeal Volume 2, page 147) provides: "Upon the Effective Date, MVSB shall be irrevocably, permanently, unconditionally, completely and absolutely released and discharged from all Claims and liabilities (whether actual, contingent or otherwise) and indebtedness (whether as principal debtor or surety) of MVSB, to each and all the Scheme Creditors whatsoever and howsoever arising out of or in connection with any and all agreements, transactions, dealings and matters effected or entered into or occurring at any time on or prior to the Cut-Off Date." [17] Clause 57(iii) (Record of Appeal Volume 2, page 158) operates as a moratorium prohibiting the bringing of proceedings against MVSB during the Scheme Period as therein defined. [18] On 8 July 2022, the Respondent delivered up vacant possession of the Unit and the Tenancy Agreement was treated by both sides as having come to an end. [19] On 8 August 2024, the Appellants' solicitors issued a letter of demand for arrears of rent in the sum of RM112,761.12 in respect of the period from 29 September 2019 to 8 July 2022. No payment was received. [20] On 6 March 2025, the Appellants commenced two proceedings at the Sessions Court at Melaka: the underlying suit against the Respondent, registered as Civil Suit No. MA-A52NCvC-11- 03/2025, and a separate proceeding against MVSB, registered as Civil Suit No. MA-A52NCvC-10-03/2025 ("Suit 10"), in which liquidated and ascertained damages in the sum of RM121,572.32 are claimed against MVSB. [21] Two procedural steps in the suit below merit specific mention. First, the Respondent filed an application for a stay of proceedings (Enclosure 23 below), which it states was filed pending the determination of its application in Suit 10 for the consolidation of the two suits. That stay application was withdrawn by the Respondent on 28 August 2025 without a substantive hearing. Secondly, on 27 August 2025 the Respondent filed the Notice of Application now under appeal (Enclosure 27 below) under Order 33 rules 2 and 5 of the ROC 2012, by which the two preliminary issues set out at paragraph 5 above were placed before the Sessions Court for determination in advance of trial. [22] On 23 December 2025, the Sessions Court allowed the application. The SCJ's reasons, set out at paragraphs 22 to 24 of the Alasan Penghakiman in the Supplementary Record of Appeal at pages 426 to 427, may be summarised as follows. The SCJ held: that the Appellants had full knowledge of the assignment, having received rent from MVSB and not from the Respondent from 21 January 2020 onwards without protest; that as a general principle a person who knowingly accepts a benefit under a contract is estopped from denying its validity or binding effect, the Appellants accordingly being estopped from contesting the Novation Agreement; and that, the Appellants having taken no step to set aside the order of 6 January 2021, they were deemed to have agreed to the terms of the Scheme of Arrangement and the Explanatory Statement, both of which bound them as scheme creditors. [23] It is from that decision that the present appeal is. C. ISSUES FOR DETERMINATION [24] Four issues fall for determination on this appeal:

(a) the standard by which this Court, sitting on appeal from a subordinate court under section 29 of the Courts of Judicature Act 1964, reviews a decision allowing an application under Order 33 rules 2 and 5 of the ROC 2012;

(b) the principles which govern the exercise of the discretion under Order 33 rules 2 and 5, and in particular the circumstances in which questions arising in a cause are properly amenable to determination by way of preliminary issue;

(c) whether, on the pleadings and the affidavit evidence in the suit below, the material facts necessary to dispose of the two preliminary questions were undisputed or were, in truth, the subject of genuine dispute; and

(d) whether the determination of those questions, even if proper, would substantially have disposed of the cause or rendered the trial of the cause unnecessary. D. STATUTORY AND LEGAL FRAMEWORK

(i) The character of the appeal [25] Section 29 of the Courts of Judicature Act 1964 provides: "All civil appeals from a subordinate court shall be by way of re-hearing, and the High Court shall have the like powers and jurisdiction on the hearing of appeals as the Court of Appeal has on the hearing of appeals from the High Court." [26] Order 55 rule 2 of the ROC 2012 is to similar effect. The character of an appeal from the Sessions Court to this Court is therefore that of a re-hearing on the materials before the Sessions Court. The High Court, sitting on appeal, is not confined to a review of the trial judge's exercise of discretion but may itself reach a fresh conclusion on the same material - albeit with appropriate respect for the advantages enjoyed by the court below where credibility findings of primary fact are involved: United Malayan Banking Corporation Berhad v Pembinaan KSY Sdn Bhd & Ors [1993] 3 CLJ 612 (Supreme Court); Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97 (Court of Appeal). [27] The "plainly wrong" formulation, on which the Respondent placed reliance, is an articulation of the deference to which findings of primary fact and credibility are entitled at first instance. It is not a separate gateway and does not displace the rehearing principle. On a question of law, or on the application of settled principles of procedure to undisputed facts, the appellate court is in as good a position as the court below. The present appeal turns upon the legal characterisation of the materials before the Sessions Court and the proper application of Order 33; the standard of review is correspondingly less constrained than it would be on a challenge to primary findings of fact made after trial.

(a) the court's jurisdiction under Order 33 rules 2 and 5 is engaged only where the material facts necessary to dispose of the question are admitted or proved or are otherwise no longer in dispute between the parties;

(b) the inquiry whether facts are "not in dispute" is not satisfied by identifying primary facts that are not denied (such as the bare existence of a document or the bare receipt of a payment); it requires that the legal characterisation of those primary facts, and the inferences sought to be drawn from them, are also not in dispute, or at least that those inferences are the only reasonable inferences open on the materials;

(c) where there is a genuine dispute as to material fact - the resolution of which depends on the credibility of witnesses, the inferences to be drawn from primary documents, or the weighing of evidence - the proper course is to decline the procedure and to set the matter down for trial;

(d) the court should be additionally cautious where the question, although ostensibly one of law, is so framed that it cannot be answered without first making findings on contested facts;

(e) the discretion is not to be exercised unless the answer to the preliminary question will substantially dispose of the cause or, at least, render the residual trial significantly less extensive: the procedure is, in the words of Hiap Soon Hong at paragraph 29, "useful only if [it has] the effect of disposing of the cause or matter as envisaged by O.33 r.5"; and

(f) the preliminary question itself must be carefully and precisely framed, so that what falls to be decided is clear at the outset and the answer is not embedded in the question.

(i) an intention to novate;

(i) Whether the material facts are undisputed In its Hujahan Balasan dated 8 May 2026, the Respondent identifies three matters which it says are not in dispute: that the Respondent entered into the Novation Agreement with MVSB by which MVSB assumed all of the Respondent's rights and liabilities under, inter alia, the Tenancy Agreement; that, following the Novation Agreement, MVSB made payments of rent to the Appellants from 21 January 2020 which were received without protest; and that the Scheme of Arrangement is still in force and its terms continue to bind MVSB and the Appellants. The Respondent says that these three pillars are sufficient to support the Sessions Court's decision. [39] Each of those three matters is, at the level of bare primary fact, common ground. The Novation Agreement was executed; payments were made by MVSB from 21 January 2020 and were received without contemporaneous written protest; and the order of 6 January 2021 has not been set aside. The difficulty, however, is that the Respondent's formulation conflates the existence of those primary facts with the legal characterisation which they bear and the inferences which the Respondent invites the court to draw from them. The Hiap Soon Hong requirement that the relevant facts be "not disputed" is not satisfied merely by identifying common ground at the level of bare existence; it requires that the facts necessary for disposal of the question are undisputed (paragraph 27 of Hiap Soon Hong). What is necessary for disposal of the preliminary issues includes the following propositions, none of which is admitted:

(a) that written notice of any intended assignment was given to the Appellants in accordance with clause 8.1 of the Tenancy Agreement (the Appellants say no such notice was given);

(b) that the Appellants knew of the Novation Agreement and consented to it (the Appellants say they did not);

(c) that the payments from MVSB were made and accepted on the footing that MVSB had been substituted for the Respondent as the obligor under the Tenancy Agreement, rather than on the footing that MVSB was paying as a third party for the account of the Respondent (the Appellants say they treated the payments in the latter sense); and

(d) that, by their failure to protest at the material time, the Appellants made an unequivocal representation upon which the Respondent acted to its detriment (the Respondent has not yet identified any specific reliance or detriment, and the Appellants deny the representation). [40] Each of these propositions is the subject of express denial in the Reply (Record of Appeal Volume 1, pages 36 to 37, paragraph 7) and in the First Appellant's Affidavit in Reply at paragraphs 17 to 19 (Record of Appeal Volume 2, pages 17 to 18). They are not merely formal denials; they go to the very factual foundation upon which the Defence depends. Where the answer to a preliminary question requires the court to make findings on such matters, the procedure under Order 33 is unsuited to the task: Majlis Peguam Malaysia v Raja Segaran (above). [41] The Respondent invited the Sessions Court, and invites this Court on appeal, to treat the payments from MVSB without protest as conclusive of consent. With respect, that submission attempts to convert a piece of conduct, capable of more than one legal meaning, into a determinate legal conclusion - and to do so on the affidavits alone. A long-established principle is that performance of a contractual obligation by a third party does not, without more, discharge the original contracting party. The proposition that receipt of payments amounted to consent to a substitution of obligor, and not to acceptance of performance by a third party for the account of the Respondent, is contestable as a matter of law and turns on a complete picture of the parties' dealings, including any communications accompanying the payments, the entries in the Appellants' books and accounts, and the surrounding factual matrix. None of that is available on the affidavits, and the omission of any deposition by the Respondent that written notice was given pursuant to clause 8.1 is itself telling. [42] The burden of establishing a novation, like the burden of establishing an affirmative defence generally, lies on the party asserting it: sections 101 and 102 of the Evidence Act 1950; Nanyang Development (1966) Sdn Bhd v How Swee Poh [1969] 1 LNS 116 (Federal Court). A party which has not addressed a key contractual condition in its affidavits cannot have the issue determined in its favour summarily on the basis that the other side has not affirmatively disproved it. The lacuna in the Respondent's affidavit evidence on clause 8.1 is, in itself, sufficient to take the question outside the scope of Order 33. [43] Similarly, the principle in Fawziah Holdings v Metramac is an estoppel founded squarely on knowledge, election and the receipt of benefits. Each of those elements is, in this case, controverted. The Appellants' position - that they treated the payments as thirdparty performance and only formed a settled view of the position when arrears began to accrue - is itself a denial of the requisite knowledge and election. Whether that explanation is to be accepted is a paradigm function of trial, requiring the testing of witnesses. It cannot be foreclosed at the Order 33 stage. [44] For these reasons, the first proposition in the Respondent's analysis - that the material facts are undisputed - is, with respect, not made good. The primary facts are common ground; the contested inferences are not.

(v) The earlier withdrawn stay application and Suit 10 [56] I record, but place no decisive weight upon, two further procedural matters. The first is the Respondent's earlier application for a stay (Enclosure 23 below), which the Respondent explains was filed in order to await the outcome of its consolidation application in Suit 10. The withdrawal of that application on 28 August 2025 is consistent with a tactical reconsideration of routes to the same effective end. The second is that, on the Respondent's own case, the Appellants' separate suit against MVSB at the Sessions Court (Suit 10) is in train. That fact rather undermines, than supports, the characterisation of the present action as a backdoor attack on the Scheme: the Appellants have, in Suit 10, taken proceedings against MVSB directly, in which the issues arising from the Scheme can be agitated as between those parties. The present action against the Respondent is therefore not a vehicle for circumventing the Scheme; it is a separate claim against a separate contractual obligor.

(a) the appeal is allowed;

(b) the order of the Sessions Court at Melaka dated 23 December 2025 in Civil Suit No. MA-A52NCvC-11-03/2025 is set aside;

(c) the Respondent's application under Order 33 rules 2 and 5 of the Rules of Court 2012 dated 27 August 2025 is dismissed;

(d) the suit is remitted to the Sessions Court at Melaka for case management and trial in the ordinary way;

(e) the order for costs of RM2,000.00 made below is set aside, and the costs of the Order 33 application below shall be costs in the cause;

(f) the Respondent shall pay the Appellants the costs of this appeal in the sum of RM5,000.00, subject to allocator; and

(g) liberty to apply. Dated 22 May 2026 (MELAKA) Lawyer For Appelant : Encik Choo Yeong Shing Bersama Cik Chong Yeng Nee & Cik Wayne Lau Xiao Wei Tetuan Milavieri Chong Partnership Peguambela dan Peguamcara No. 27-1, Jalan BPM 13, Taman Bukit Piatu Mutiara, 75150 Melaka. Lawyer For Responden : Encik Abraham Kuah Juhn Uei Tetuan Chee Siah Le Kee & Partners Peguambela dan Peguamcara No. 2B, Jalan KLJ 4, Taman Kota Laksamana Jaya, 75200 Melaka.