Badan Pengurusan Bersama Arte Plus @ Jalan Ampang v Ampang Property Sdn. Bhd. (WA-24NCvC-4892-12/2024)

AMPANG PROPERTY SDN. BHD. [Company No: 201101045319 (973439-A)]

N JAYA SDN. BHD. [Company No: 200001000103 (502708-K)] …DEFENDANTS

This matter comes before me by way of the second defendant’s application dated 21 March 2025 seeking an order to convert the originating summons commenced by the plaintiff on 9 December 2024 into a writ action. The application is resisted by the plaintiff who contends that the matters in dispute can properly be determined by way of affidavit evidence and that there are no substantial disputes of fact that would warrant conversion. Having heard the counsels and considered the extensive written submissions and authorities filed by both parties, I now deliver my judgment.

The factual background to this application is relatively straightforward, though the legal principles involved require careful consideration. The plaintiff is a joint management body established under the Strata Management Act 2013 ("Act 757") on 28 May 2022 in respect of a development known as Arte Plus @ Jalan Ampang. The defendants are the developers of this development. By virtue of section 7(2) of Act 757, the developer’s management period ended one month after the establishment of the joint management body, being 28 June 2022.

The originating summons seeks, inter alia, mandatory injunctions requiring the defendants to transfer all balances of moneys in the maintenance and sinking fund accounts to the plaintiff, to deliver a duly signed Form 4 under the Strata Management (Maintenance and Management) Regulations 2015, and to provide audited accounts. The plaintiff’s case is that the defendants have failed, refused or neglected to comply with their statutory obligations under section 15 of Act 757, which mandates the transfer of all balance moneys held in the maintenance and sinking fund accounts to the joint management body before the expiry of the developer’s management period.

The defendants, through the second defendant, have raised a counterclaim alleging outstanding electricity charges and transit losses amounting to RM467,661.12, which they seek to set off against the sums said to be due for transfer. It is this counterclaim, particularly in relation to the alleged transit losses, that forms the basis of the second defendant’s application to convert these proceedings into a writ action. The second defendant contends that the determination of these transit losses requires oral evidence and cross-examination of witnesses, particularly from Tenaga Nasional Berhad and the Energy Commission, which cannot be adequately accommodated within the originating summons framework.

The legal principles governing the conversion of proceedings commenced by originating summons into a writ action are well-established. Order 28 rule 8(1) of the Rules of Court 2012 provides: 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. [Emphasis is mine]

The discretion conferred upon the court by this provision is not unfettered. The authorities consistently hold that such an order should only be made where there are serious disputes of fact that cannot be properly resolved on affidavit evidence alone. In Capitol Avenue Development Sdn Bhd v Gamwon Properties Sdn Bhd (and 3 Other Appeals) [2021] MLJU 403, the Court of Appeal affirmed: “[6] As the sole and principal issue is the construction of the architect's certificate of extension of time under the SPA and the facts of the case are mainly undisputed the plaintiff filed an OS pursuant to Order 5 r 4 Rules of Court 2012 ("ROC 2012"). The only live issue to be resolved is whether the defendant is entitled to rely of the architect's certificate for extension of time to reduce the sum to be paid for liquidated damages. The determination of the issues by OS is not only sensible but the correct approach. [7] In response, learned counsel for the defendant argued that there are dispute of facts and issues which could not be determined by affidavit evidence. The High Court should have converted the OS to a writ action which would have enabled the architect to testify and give evidence to support his opinion. The proper mode of commencement [12] In so far as to whether the mode of commencement by OS is the correct mode we agreed with learned counsel for the plaintiff as the sole issue is in relation to the proper construction of the issuance of the architect's certificate of extension of time and there being no dispute of facts, the proper mode is by OS." [Emphasis is mine]

Similarly, in Cheah Shu Boon & Anor v. Kuala Lumpur Golf & Country Club Berhad & Anor [2020] 1 LNS 1246, the court held: "[18] First and foremost, it is germane for this Court to state here that regarding this application to convert this Originating Summons into a Writ action, it is a discretion of the Court as held in the case of Premier Model (M) Sdn Bhd v. Phileo Promenade Sdn Bhd & Anor [2000] 1 MLJ 364, thus: The Court of Appeal in Abdul Rahim bin Aki v. Krubong Industrial Park (Melaka) Sdn Bhd [1995] 3 MLJ 417 unequivocally emphasized the discretionary power vested in this Court whether 'to permit the conversion of proceedings commenced by Originating Summons into a Writ action'. [19] It is also settled law that the conversion of an Originating Summons into a Writ action will only be allowed if there is a serious dispute on issues as to fact as held in the case of Punithavathi @ Pushipambigai Ponniah v. Goh Mary & Ors [2011] 1 MLJ 826 thus: [20] The Defendants have also referred my attention to the following cases that state very clearly that where there are serious issues as to fact, then under O. 28 r. 8 Rules of the High Court this Court should convert the OS into a Writ action: Persuruhjaya Ibu Kota Kuala Lumpur v. Public Trustee & Ors [1971] 2 MLJ 30; Neoh Ah Yan v. Ong Leng Choo & Anor [2008] 7 MLJ 151; [2007] 10 CLJ 410 and Lim Pey Lin v. Chia Foon Tau & Anor [2001] MLJU 626; [2002] 1 CLJ 420. [21] I have no difficulty endorsing and indeed would fully embrace the principle enunciated. However this is not a case where converting the OS into a Writ action is necessary or justified. [22] Taking into consideration all the circumstances of the case I see no necessity nor justification to convert the OS filed herein into a Writ action and I had therefore dismissed the Defendants' application with costs of RM2,500.00. Both Plaintiff and Defendants are at liberty to apply for leave to cross-examine deponents of the various affidavits filed herein." [Emphasis is mine]

Applying these principles to the present case, I must first consider whether there are substantial disputes of fact in relation to the plaintiff’s claim as pleaded in the originating summons. The plaintiff’s claim is founded primarily on the construction and application of section 15 of Act 757, which imposes a clear statutory obligation on the developer to transfer all balance moneys in the maintenance and sinking fund accounts to the joint management body before the expiry of the developer’s management period. The facts material to this claim are largely undisputed. The plaintiff was established on 28 May 2022; the developer’s management period ended on 28 June 2022; and the defendants have failed to transfer the balance moneys as required by statute.

The second defendant does not seriously contend that there are disputes of fact in relation to these matters. Indeed, in their written submissions for the originating summons, the second defendant conceded that "D2 is always ready to transfer the Account to the Plaintiff". The real dispute arises from the second defendant’s counterclaim, which seeks to set off alleged outstanding electricity charges and transit losses against the sums said to be due for transfer.

Turning to the counterclaim, I note that the electricity charges component of RM107,813.56 has been settled by the plaintiff. The remaining component of RM359,847.56 relates to alleged transit losses for the period from September 2022 to December

The second defendant’s case is that these transit losses are calculated based on the difference between the electricity supplied by Tenaga Nasional Berhad to the development and the electricity billed to individual units and common property.

The critical question is whether the determination of these alleged transit losses necessitates a full trial with oral evidence or whether it can be adequately resolved on the affidavit evidence already filed. The second defendant contends that witnesses from Tenaga Nasional Berhad and the Energy Commission are required to explain the concept of transit losses and how they are calculated. However, upon careful examination of the affidavits filed, I find that the second defendant has failed to provide any substantive evidence to support their claim for transit losses.

In the second defendant’s affidavit in to oppose the originating summons, at paragraph 9, it is stated: "Saya sesungguhnya menyatakan bahawa Kerugian Transit ini merupakan suatu caj penggunaan yang telah dikenakan oleh TNB terhadap D2. Namun, caj penggunaan yang dikeluarkan oleh TNB terhadap D2 ini adalah lebih tinggi berbanding caj penggunaan yang telahpun dibilkan oleh D2 terhadap penduduk-penduduk di Hartanah tersebut dan kepada Plaintif sendiri." [Emphasis is mine]

Similarly, in paragraph 6.6 of the second defendant’s affidavit in support of this application, it is stated: Bil-bil yang dikeluarkan oleh D2 kepada Plaintif adalah merangkumi penggunaan elektrik dan juga kerugian transit. Kerugian Transit ini adalah berdasarkan kepada bil-bil yang dikeluarkan oleh TNB kepada D2, setelah ditolak jumlah penggunaan individu bil dan harta bersama. Jumlah tenaga Elektrik yang disalurkan ke Hartanah tersebut telah dikira oleh pihak TNB dan kemudiannya bil telah dikeluarkan oleh pihak TNB kepada D2. [Emphasis is mine]

These explanations are notably lacking in particularity. The second defendant has not produced any documentary evidence to substantiate how the transit losses are calculated or why they should be borne by the plaintiff. More significantly, the second defendant has refused to provide the plaintiff with electricity bills for the 1146 individual units in the condominium and the Risda building, which would be necessary to determine where the transit losses allegedly occurred. The second defendant’s explanation for this refusal is that they are constrained by the provisions of the Electricity Supply Act 1990 and the Personal Data Protection Act 2010.

This explanation cannot be sustained. Section 6(2)(e) of the Personal Data Protection Act 2010 (“PDPA”) expressly permits the processing of personal data "for compliance with any legal obligation to which the data user is the subject, other than an obligation imposed by a contract" or "for the administration of justice". Similarly, section 45(2)(d) of the same Act permits disclosure "for the purposes or in connection with any order or judgment".

For convenience, section 6(2)(e) of the PDPA is reproduced as follows:

Notwithstanding paragraph (1)(a), a data user may process personal date about a data subject if the processing is necessary –

for the administration of justice; or

Likewise, section 45(2)(d) of the PDPA provides:

Exemption

There shall be exempted from the provisions of this Act personal data processed by an individual only for the purposes of that individual’s personal, family or household affairs, including recreational purposes.

Subject to section 46, personal data –

that is necessary for the purpose of or in connection with any order or judgement of a court shall be exempted from the General Principle, Notice and Choice Principle, Disclosure Principle and Access Principle and other related provisions of this Act;

The proper construction and application of these provisions has been addressed in recent cases. In Newlake Development Sdn Bhd v Zenith Delight Sdn Bhd & Ors (No 2) [2021] 7 CLJ 88, the court held: “[54] In this instance however, the PDPA itself permits disclosure of documents if necessary for compliance with any legal obligation to which the data user is subject or for the administration of justice. Furthermore, the PDPA grants an exemption in favour of disclosure of personal data that is necessary for the purpose of any court order or judgment. [55] This is stipulated in s. 45(2)(d) of the PDPA which reads:

Subject to section 46, personal data:

that is necessary for the purpose of or in connection with any order or judgement of a court shall be exempted from the General Principle, Notice and Choice Principle, Disclosure Principle and Access Principle and other related provisions of this Act; (emphasis added) [56] So where the court makes a ruling that the documents in question are relevant and admissible (as is the case here), a party cannot use the PDPA as a shield to prevent the said documents from being produced at the trial under the guise of personal data protection. [57] In my opinion, making available the bank statements as evidence in the trial would be permitted under the PDPA as it is necessary for the administration of justice. It would be against the interests of justice if the bank statements were prevented from being admitted as evidence at the trial due to reasons of personal data protection.” [Emphasis is mine]

This principle was subsequently affirmed in My Home Budget Hotel Sdn Bhd v CIMB Bank Bhd [2022] 5 CLJ 604, where the court held: “[85] In the recent decision of Newlake Development Sdn Bhd v. Zenith Delight Sdn Bhd & Ors (No 2) [2021] 7 CLJ 88, the court ruled that the PDPA does not apply to the data of a body corporate. Further, the court also ruled that where the documents in question were relevant and admissible, a party could not use the PDPA as a shield to prevent the said documents from being produced at trial under the guise of personal data protection.” [Emphasis is mine]

The cases of Newlake Development and My Home Budget (supra) demonstrate that the PDPA cannot be used as a shield to prevent the disclosure of documents required for the proper administration of justice. The second defendant’s reliance on these statutes to justify their failure to produce relevant documentation is therefore untenable.

Furthermore, the second defendant elected to file their counterclaim within the originating summons proceedings and took steps to substantiate it through affidavit evidence. Having made this election, the second defendant cannot now be heard to complain that the matter cannot be properly determined without a full trial. In Cheah Theam Kheng v. City Centre Sdn Bhd (In Liquidation) & Other Appeals [2012] 2 CLJ 16, the Court of Appeal, at paragraph 105, stated: "[105] We categorically say that the liquidator cannot blow hot and cold to suit him whenever he feels like it. He cannot approbate and reprobate in the same breath. On the one hand, he claims that the High Court order dated 26 July 2001 overrides or displaces a statute which render the said order invalid and yet he has the audacity to continue to act as a liquidator by virtue of the said order. In the words of Sir Nicolas Browne-Wilkinson VC in Express Newspapers Plc v. News (UK) Ltd And Others [1990] 3 All ER 376, at pp. 383 to 384: There is a principle of law of general application that it is not possible to approbate and reprobate. That means you are not allowed to blow hot and cold in the attitude that you adopt. A man cannot adopt two inconsistent attitudes towards another: he must elect between them and, having elected to adopt one stance, cannot thereafter be permitted to go back and adopt an inconsistent stance." [Emphasis is mine]

The second defendant’s counterclaim is also distinct from the plaintiff’s claim in the originating summons. The plaintiff’s claim relates to the statutory obligation to transfer funds that had accumulated in the maintenance and sinking fund accounts by 28 June 2022, when the developer’s management period ended. The counterclaim, by contrast, relates to alleged transit losses for the period from September 2022 to December 2024, which arose after the developer’s management period had expired. These are separate matters that can be determined independently.

It follows that, in the present case, the second defendant has no legal right to withhold the transfer of the balance moneys in the maintenance and sinking fund accounts based on a counterclaim that relates to a different period and different matters. The plaintiff is entitled to the transfer of these funds as a matter of statutory obligation, and the second defendant’s remedy, if any, lies in pursuing a separate claim for the alleged transit losses. The Court will not permit one party to frustrate the clear statutory rights of another by asserting an unrelated counterclaim as a justification for non-compliance with their legal obligations.

In any event, even if I were to accept that there are disputes of fact in relation to the counterclaim, Order 28 rule 7(3) of the Rules of Court 2012 provides a mechanism for dealing with such a situation: "(3) If it appears on the application of a plaintiff against whom a counterclaim is made under this rule that the subject matter of the counterclaim ought for any reason to be disposed of by a separate action, the Court may order the counterclaim to be struck out or may order it to be tried separately or make such other order as may be expedient." [Emphasis is mine]

This provision would allow the court to order that the counterclaim be tried separately if it were satisfied that this was the appropriate course. However, the second defendant has not sought such an order, and in my judgment, the circumstances do not warrant the conversion of the entire proceeding into a writ action.

For these reasons, I am satisfied that there are no substantial disputes of fact in relation to the plaintiff’s claim in the originating summons that cannot be properly resolved on affidavit evidence. The second defendant’s application to convert the originating summons into a writ action is therefore dismissed.

However, this does not resolve the procedural dilemma presented by the continued presence of the second defendant's counterclaim within the originating summons proceedings. The parties have presented the court with a binary choice, in that, the plaintiff asks for the counterclaim to remain in the originating summons, while the second defendant asks for the entire action to be converted to a writ. I am not confined to these two options.

The court has a duty to manage its own proceedings and to prevent an abuse of its process, a duty enshrined in the court's inherent jurisdiction and codified in Order 92 of the Rules of Court 2012. Order 92 rule 4 states that the inherent power of the High Court shall not be limited by any express provision of the Rules and, where there is no express provision, the court may act in such manner as it considers just:

Inherent powers of the Court (O. 92 r. 4) For the removal of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court. [Emphasis is mine]

The action of a judge raising an issue or making an order of their own motion, without an application from any party, is known as acting sua sponte. While neither party has applied for the counterclaim to be struck out with liberty to file afresh, I am of the firm view that it would be a proper exercise of my judicial duty to make such an order sua sponte. My reasons are threefold.

First, it is necessary to prevent procedural mismanagement and potential injustice. Allowing a factually complex counterclaim, which the second defendant itself argues requires a full trial with oral evidence, to remain in the originating summons action is procedurally unfair to the plaintiff. It risks transforming the originating summons into a mini-trial, defeating its purpose of speed and cost-efficiency, and delaying the resolution of the plaintiff's statutory claim. Conversely, granting the conversion application sought by the second defendant would be a disproportionate response, dragging the plaintiff's straightforward claim into a full writ action. The court has a duty to protect a party from being procedurally ambushed and to ensure that its process is used fairly and efficiently. To stand by and watch a procedurally improper situation develop when it has the power to prevent it would be an abdication of my judicial responsibility.

Second, this approach is fair to both parties. For the plaintiff, it achieves its primary objective of obtaining a final decision on its claim for the transfer of funds without being delayed by the counterclaim. For the second defendant, it is not a punitive measure. By granting "liberty to file afresh", the Court acknowledges the second defendant's right to pursue its claim but requires that this be done in the correct procedural forum, that is, in a writ action, where it will have all the tools it claims to need. This prevents the second defendant's potentially meritorious claim from being procedurally hobbled, which could lead to an injustice if it were forced to proceed in an unsuitable forum. This balanced solution is derived from the arguments the parties themselves have presented. The court is not inventing a new issue but applying a logical solution to the procedural conundrum.

Third, this course of action is permissible pursuant to Order 28 rule 7(3), which allow the court, aside from making an order for the counterclaim to be struck out or to be tried separately, to make such other order as may be expedient. This provision, read in conjunction with the court’s inherent powers, empowers the court to make any order necessary to prevent injustice or to ensure that the overriding objective is met. This principle ought to extend to counterclaims that are procedurally incompatible with the originating process. The court is not adjudicating the substantive merits of the counterclaim, it is making a purely procedural determination to ensure the just and efficient management of the litigation before it.

In the circumstances, the most appropriate and principled course is to exercise my inherent jurisdiction sua sponte. I will order that the second defendant's counterclaim be struck out from these originating summons proceedings. However, in the interest of justice and to afford the second defendant a full opportunity to pursue its claim on its merits, I shall grant the second defendant liberty to commence a fresh writ action against the plaintiff in respect of the same subject matter. This is a surgical solution that precisely addresses the procedural problem, protects the integrity of the originating summons process, and ensures fairness to both parties.

The parties shall bear their own costs of the second defendant's application to convert the originating summons. In relation to my sua sponte order striking out the counterclaim with liberty to file afresh, I shall make no order as to costs, as this is a necessary intervention for the proper administration of justice and no party should be penalised for it. Dated the 9th day of January 2026 … SGN … ……………………………………………….. MOH KOK WAI JUDICIAL COMMISSIONER OF THE HIGH COURT HIGH COURT (CIVIL DIVISION NCvC14) HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF MALAYSIA Counsel for the Plaintiff : Jeannie Chong Messrs Philip Mathew Counsel for the Defendants : Masitah binti Alias and Noreen binti