Gan Heng Wan v Yong Keng Fong (BA-24NCC-103-09/2025)

These are the grounds of my decision in respect of the Plaintiff’s Notice of Application in Enclosure 24, filed on 23 January 2026.

By Enclosure 24, the Plaintiff sought an order that the present proceedings, which were commenced by Originating Summons, be continued as though the cause or matter had been begun by writ.

The application was made pursuant to Order 28 rule 5, Order 28 rule 8, Order 92 rule 4 of the Rules of Court 2012, and the inherent jurisdiction of the Court.

The Plaintiff also sought a stay of the hearing of the Originating Summons pending the disposal of Enclosure 24, directions for pleadings, further directions, costs in the cause, and such further relief as the Court deemed fit.

The principal issue before the Court was whether the Plaintiff had shown that the factual disputes raised in the affidavits were of such a nature that the Originating Summons could not fairly be disposed of on affidavit evidence and should instead be converted into a writ action. S/N 98Ioy7efaE2wj1jz98WuSA

Having considered the affidavits, exhibits, written submissions, authorities and oral submissions, I dismissed Enclosure 24. B.

The Notice of Application stated, in substance, that:

(a) the affidavits filed by the parties disclosed disputed facts which ought to be investigated at a full trial with oral evidence;

(b) there was a need for discovery and inspection of important documents;

(c) there was a need to call or subpoena material witnesses; and

(d) there was a need for a full trial.

In the Plaintiff’s supporting affidavit in Enclosure 25, the Plaintiff stated that the Originating Summons ought to be converted into a writ action because there were material disputes of fact, a need for discovery and inspection of financial documents, a need to call or subpoena material witnesses, and a need for a full trial.

The factual disputes identified by the Plaintiff included: S/N 98Ioy7efaE2wj1jz98WuSA

(a) whether the Plaintiff had voluntarily left the WhatsApp group or had done so because of intimidation and oppressive conduct;

(b) whether the Plaintiff had abandoned his duties as director;

(c) whether the Defendants had denied the Plaintiff access to accounts and company documents;

(d) whether decisions were made unilaterally by the Defendants;

(e) whether the funds or income of the 3rd Defendant were improperly channelled through the account of Tee Kong Peng;

(f) whether the Plaintiff’s removal as director was valid; and

(g) whether the Plaintiff had been excluded from management.

The Plaintiff’s written submission further contended that the Defendants’ documents consisted largely of WhatsApp screenshots, voice recordings, pictures and financial screenshots, the authenticity and completeness of which were challenged. The Plaintiff argued that a writ action was necessary to compel discovery of original financial records, S/N 98Ioy7efaE2wj1jz98WuSA payment vouchers, general ledgers and complete bank statements.

The Plaintiff also submitted that Tee Kong Peng was a third party who had not filed an affidavit and could not be cross-examined in an Originating Summons, but could be subpoenaed at a writ trial.

The Plaintiff relied on authorities to contend that where there are substantial disputes of fact, an Originating Summons may be converted into a writ action, and submitted that the present matter involved factual disputes, third-party witnesses and documentary authenticity issues which required oral evidence. C.

The Defendants opposed Enclosure 24.

The Defendants submitted that Enclosure 24 was an afterthought. The hearing of Enclosure 1 had been fixed for 28 January 2026, but Enclosure 24 was filed only on 23 January 2026, after the parties had already exchanged written submissions for Enclosure 1. The Defendants therefore submitted that the application was not bona fide and was intended to delay the proceedings.

The Defendants further submitted that the 3rd Defendant had 19 shareholders, that the Plaintiff held 80,000 shares S/N 98Ioy7efaE2wj1jz98WuSA representing 8%, that the 1st Defendant also held 8%, and that the 2nd Defendant held 10%. The Defendants contended that the 1st and 2nd Defendants were not majority shareholders.

In answer to the Plaintiff’s reliance on the Tee Kong Peng issue, the Defendants contended that the arrangement for income from the sale of oil palm produce to be paid into Tee Kong Peng’s account was within the Plaintiff’s knowledge and was requested by the Plaintiff. The Defendants further contended that income and transfers were disclosed in the WhatsApp group, that the Plaintiff had not objected at the material time, and that the Plaintiff had not produced documents proving misappropriation or loss.

The Defendants also submitted that the witnesses proposed by the Plaintiff were unnecessary because the contemporaneous documents before the Court should be preferred over oral testimony.

The Defendants relied on the principle that not every dispute of fact requires conversion of an Originating Summons into a writ action. The Defendants also submitted that oppression proceedings are commonly commenced by Originating Summons and may involve some factual disputes, but that does not automatically render the Originating Summons procedure unsuitable. S/N 98Ioy7efaE2wj1jz98WuSA

The Defendants further submitted that the Plaintiff had not met the threshold of oppression under section 346 of the Companies Act 2016, and that the matter could be decided by the Court on the affidavits filed by the parties. D.

Order 28 rule 8 of the Rules of Court 2012 gives the Court a discretion, where a matter has been commenced by Originating Summons, to order that the proceedings continue as though begun by writ if it appears to the Court that the proceedings should for any reason be so continued.

The discretion is a broad one, but it is not automatic. The Court must consider whether the disputes of fact are material to the determination of the real issues and whether those disputes are incapable of fair resolution on affidavit evidence.

The mere existence of competing affidavit evidence is not sufficient. Many Originating Summons proceedings, including oppression proceedings under the Companies Act 2016, contain disputed assertions. If every factual dispute automatically required conversion, the statutory and procedural purpose of allowing such proceedings to be commenced by Originating Summons would be undermined.

The proper question is whether oral evidence and cross-examination are necessary for the just disposal of the matter, or S/N 98Ioy7efaE2wj1jz98WuSA whether the Court can fairly determine the issues by reference to the affidavits, exhibits and contemporaneous documents.

The Court must also distinguish between:

(a) factual disputes which are central and cannot be resolved without testing credibility;

(b) factual disputes which are peripheral or immaterial;

(c) disputes concerning the interpretation and legal effect of documents; and

(d) disputes which may be resolved by considering contemporaneous records.

In considering whether to convert an Originating Summons into a writ action, the Court is also entitled to consider delay, procedural history, the stage of the proceedings, and whether conversion would promote or obstruct the just, expeditious and economical disposal of the matter. E. ANALYSIS E1. The Timing of Enclosure 24

I first considered the timing of the application. S/N 98Ioy7efaE2wj1jz98WuSA

The Originating Summons in Enclosure 1 had been filed on 27 September 2025. Affidavits had been exchanged. Written submissions and reply submissions had also been filed. The hearing of Enclosure 1 had already been fixed.

Enclosure 24 was filed on 23 January 2026, only shortly before the scheduled hearing date of 28 January 2026 and after the parties had already prepared and filed submissions on Enclosure

1.

Delay alone is not necessarily fatal to an application under Order 28 rule 8. However, in the circumstances of this case, the timing of Enclosure 24 was relevant. The Court had to consider whether the application was genuinely necessary for the fair disposal of the matter or whether it would derail the hearing of an Originating Summons which was ready for determination.

I found that the late filing of Enclosure 24 weighed against the Plaintiff, especially where the matters relied upon were matters already apparent from the affidavits filed earlier. E2. The Nature of the Plaintiff’s Case

The Plaintiff’s substantive claim in Enclosure 1 is an oppression claim under section 346 of the Companies Act 2016.

The Plaintiff’s case rests substantially on documentary materials, namely WhatsApp communications, screenshots of S/N 98Ioy7efaE2wj1jz98WuSA financial transactions, company documents, correspondence, resolutions and related records.

The Plaintiff did not place before the Court a case that depended primarily on undocumented oral conversations. The Court was instead asked to consider whether the documentary materials established oppression, unfair prejudice or unfair discrimination.

In my view, the core question was the legal significance of the documents and whether those documents, read in context, established the statutory elements of section 346 of the Companies Act 2016. That was a question capable of determination on affidavit evidence. E3. WhatsApp Communications

A major part of the Plaintiff’s complaint concerned WhatsApp communications.

The Plaintiff argued that he had been excluded, intimidated or marginalised, and that the WhatsApp materials were incomplete or selectively disclosed.

The Defendants responded that the Plaintiff had voluntarily left the WhatsApp group, had been added back, had continued to participate in communications, and had failed to properly discharge his duties. S/N 98Ioy7efaE2wj1jz98WuSA

I accepted that the parties disagreed on the interpretation of the WhatsApp communications. However, I was not persuaded that this disagreement required conversion to writ.

The WhatsApp communications were contemporaneous documentary materials. Their contents could be examined directly by the Court. The issue was not whether the Court needed witnesses to prove that those messages existed. The issue was what legal significance, if any, should be attached to those messages.

In my view, oral evidence would not materially assist the Court in determining whether the WhatsApp communications, taken at their highest, established oppression within the meaning of section 346 of the Companies Act 2016. E4. Alleged Need for Discovery

The Plaintiff submitted that discovery was required because the Defendants had produced only selective screenshots and because the Plaintiff required original financial documents, payment vouchers, ledgers and complete bank statements.

I was not persuaded that this justified conversion of the entire proceeding into a writ action.

A general desire to obtain more documents is not, without more, a sufficient reason to convert an Originating Summons into a S/N 98Ioy7efaE2wj1jz98WuSA writ action. The Plaintiff had to show that the documents sought were necessary to determine the actual oppression claim and that the matter could not fairly be determined without them.

The Plaintiff’s request was broad. It was framed in terms of original financial records, payment vouchers, ledgers and bank statements. However, the Plaintiff did not identify with sufficient precision how each category of document was necessary to resolve the issues in Enclosure 1.

The Court was not satisfied that the discovery sought was necessary for the fair disposal of Enclosure 1. The Plaintiff’s own case was already founded on the documents he had chosen to exhibit. The Court was able to assess whether those documents established oppression.

In any event, the need for a particular document, if properly shown, does not automatically require conversion into a writ action. The Court has procedural powers to give appropriate directions where necessary. Conversion is not to be ordered merely because one party wishes to conduct a wider evidential inquiry. E5. Tee Kong Peng and Alleged Third-Party Witnesses

The Plaintiff placed emphasis on the alleged transfer of company income or funds into the account of Tee Kong Peng. The Plaintiff submitted that Tee Kong Peng was a third party S/N 98Ioy7efaE2wj1jz98WuSA who could not be cross-examined in the Originating Summons and who would need to be subpoenaed at trial.

I considered this point carefully.

The Defendants’ evidence was that the arrangement involving Tee Kong Peng was known to the Plaintiff, that the Plaintiff had requested or participated in the arrangement, and that the relevant income and transfers were stated in the WhatsApp group.

The Plaintiff disputed the Defendants’ explanation. However, the question remained whether the dispute required conversion to writ.

I was not persuaded that it did. The existence of transfers, the WhatsApp communications relating to them, and the parties’ explanations were already before the Court. The Court could determine whether the Plaintiff had proved oppression by reference to those materials.

The Plaintiff had not produced sufficient particulars to show that the evidence of Tee Kong Peng was essential to the determination of the oppression claim. Nor had the Plaintiff shown that without subpoenaing Tee Kong Peng, the Court could not fairly decide whether the pleaded oppression was made out. S/N 98Ioy7efaE2wj1jz98WuSA

The Plaintiff’s allegation of misappropriation or financial misconduct had to be supported by evidence. A conversion application cannot be used as a speculative mechanism to search for a better case. E6. Removal of the Plaintiff as Director

The Plaintiff also relied on his removal as director, contending that the removal was invalid, oppressive and effected without proper notice or proper process.

The Defendants contended that the Plaintiff had failed or refused to sign documents required for annual returns and audited financial statements, and that his removal was undertaken so that the 3rd Defendant would not be prejudiced or exposed to penalties.

The Plaintiff disputed the propriety and validity of the removal. However, the relevant materials concerning the alleged removal, including the resolution and correspondence, were documentary in nature.

The issue for Enclosure 1 was not merely whether there had been a procedural irregularity in the removal. The issue was whether the Plaintiff had established oppression in his capacity as a member of the 3rd Defendant. S/N 98Ioy7efaE2wj1jz98WuSA

On the material before the Court, the validity and effect of the removal could be assessed on the affidavits and documents. I was not satisfied that oral evidence was necessary to determine this issue. E7. Whether the Disputes Were Material

I accepted that the parties’ affidavits contained competing allegations.

However, not every disagreement in affidavit evidence requires conversion to a writ action. The Court must identify the real issues and determine whether oral evidence is necessary to resolve those issues.

In this case, the central issue was whether the Plaintiff had established oppression, unfair prejudice or unfair discrimination under section 346 of the Companies Act 2016.

The disputes relied upon by the Plaintiff were either:

(a) disputes as to the interpretation of documentary evidence;

(b) disputes which were peripheral to the statutory oppression inquiry;

(c) disputes which could be assessed by reference to contemporaneous documents; or S/N 98Ioy7efaE2wj1jz98WuSA

(d) matters which did not require the testing of witness demeanour.

I was not satisfied that a full trial would materially assist the Court in resolving the real issues in dispute.

The Plaintiff relied on authorities where conversion to writ had been ordered where there were substantial factual disputes, credibility issues and insufficient affidavit evidence.

I accepted the general principle that where substantial and material disputes of fact cannot fairly be resolved on affidavit evidence, the Court may order conversion under Order 28 rule 8.

However, each case depends on its own facts.

The present case was not one where the Court was unable to understand the issues without oral testimony. Nor was it a case where the Court could not assess the Plaintiff’s complaints without discovery or third-party witnesses.

The Plaintiff’s case was based primarily on documents. The Court could examine those documents and decide whether they established the elements of oppression.

I therefore distinguished the authorities relied upon by the Plaintiff. S/N 98Ioy7efaE2wj1jz98WuSA E8. Prejudice and Proportionality

The Court must also consider proportionality.

If Enclosure 24 were allowed, the proceedings would be transformed from an Originating Summons into a writ action, pleadings would have to be filed, discovery would be undertaken, witnesses would be called, and the matter would proceed to trial.

Such a course would substantially delay the determination of the substantive oppression claim. `The delay would only be justified if the Plaintiff had shown that conversion was necessary for a fair determination. I found that the Plaintiff had not shown this.

The Court was satisfied that the matter could be determined fairly on the affidavit evidence and documentary exhibits already before the Court. F.

Having considered the totality of the evidence and submissions, I found as follows: S/N 98Ioy7efaE2wj1jz98WuSA

(a) the Plaintiff had not shown that the disputes of fact were of such a nature that the matter could not fairly be determined on affidavit evidence;

(b) the Plaintiff’s complaints were founded substantially on WhatsApp communications, screenshots, financial transaction records and company documents;

(c) the issues before the Court concerned the interpretation, context and legal effect of those documents;

(d) the alleged need for discovery was too broad and insufficiently tied to the real issues requiring determination;

(e) the alleged need to call Tee Kong Peng and other witnesses was not shown to be necessary for the fair disposal of the oppression claim;

(f) the dispute concerning the Plaintiff’s removal as director could be assessed on the documents and affidavits;

(g) the application was filed late, after written submissions for Enclosure 1 had been exchanged; and

(h) conversion would not further the just, expeditious and economical disposal of the matter. S/N 98Ioy7efaE2wj1jz98WuSA

I, therefore held that the threshold for conversion under Order 28 rule 8 of the Rules of Court 2012 had not been met. G.

For the reasons stated above, I dismissed Enclosure 24.

I was satisfied that the Originating Summons could be fairly determined on the affidavit evidence and documents before the Court.

A full trial would not materially assist the Court in determining whether the Plaintiff had established oppression under section 346 of the Companies Act 2016.

The Plaintiff’s application in Enclosure 24 was therefore dismissed. S/N 98Ioy7efaE2wj1jz98WuSA H.

I made the following order:

(a) Enclosure 24 is dismissed; and

(b) costs are awarded to the Defendants in the sum of RM5,000, being costs for Enclosures 1 and 24. Dated 4 Jun 2026 -sgd-ANITA BINTI HARUN JUDICIAL COMMISSIONER HIGH COURT OF MALAYA SHAH ALAM SELANGOR DARUL EHSAN To the parties’ solicitors: For the Plaintiff : Quah Wen Jun, Hannah Yeoh Yi Han & Alliya Ysabel Anak Asri (Messrs Low & Partners) S/N 98Ioy7efaE2wj1jz98WuSA For the Defendants : Gok Chia Wen (Messrs Chia Wen & Co.) S/N 98Ioy7efaE2wj1jz98WuSA