Glenn William Oneill v Chang AI Nee (WA-24NCvC-3302-09/2024)

TEMPAT LETAK KERETA YANG DIBEZAKAN SEBAGAI B2-623, B2-624, B2-625 & B2-626 DALAM TINGKAT NO. ARAS BAWAH TANAH 2 DAN DUA (2) LEDGES PENGHAWA DINGIN AKSESORI NO. A1806 & A1807 PEMBANGUNAN PERUMAHAN DIKENALI SEBAGAI “RESIDENSI DUTA KIARA"; DALAM PERKARA SURAT KUASA

18.

6.2024 DIDAFTARKAN DI MAHKAMAH

28.6.2024 DI BAWAH WA-SKW- 1379006/2024 KAVEAT PERSENDIRIAN DIDAFTARKAN OLEH CHANG AI NEE NOTIS

21.

6.2024 DALAM PERKARA AKTA UNDANG-UNDANG SIVIL 1956 ANTARA GLENN WILLIAM O’NEILL (NO. PASPOT: RA6286359) ...PEMOHON CHANG AI NEE (NO. K/P: 710422-10-5248) ...DEFENDAN

The Defendant applied to this Court to convert the Originating Summons filed by the Plaintiff into a Writ by virtue of Order 28 Rule 8 of the Rules of Court 2012 (“the Rules”).

Order 28 rule 8 of the Rules provides as follows:

Continuation of proceedings as if cause or matter begun by writ (O. 28 r. 8)

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. Brief facts

In this case the Court noted that the affidavit in support of the OS was riddled with unnecessary and irrelevant facts as well as evidence. Sieving through all these facts what is clear that the dispute between the parties is the non-performance of the sale and purchase agreement entered between the Plaintiff and the Defendant.

The Plaintiff and the Defendant had entered into a sale and purchase agreement dated 28/9/2021 for the sale of a property at Residency Duta situated at Parcel No. A-02-01, Tingkat 2, Bangunan A with the postal address of No. 7, Jalan Duta Hartamas, Kuala Lumpur (“the property”). The Plaintiff was the vendor whereas the Defendant was the purchaser.

On the payment of deposit of 10% the Defendant was allowed to take possession and begin renovation works. The Defendant failed to meet the deadline to make payment as stipulated under the sale and purchase agreement resulting in an additional agreement with extension of time to make the payment as well as pay additional deposits.

On the further failure of the Defendant to make the agreed payment the Plaintiff issued a letter of termination. The Plaintiff by this OS is seeking to validate the termination as well as forfeit the deposits paid by the Defendant as well as be awarded damages for the restoration of the property to its original state. Grounds for the application

The main ground for the application to convert the OS to Writ which is forwarded by the Defendant is that oral testimony is required to determine whether there was an oral agreement between the parties to extend the time for payment of the balance sum and a promise by the Plaintiff not to strictly enforce the timeline.

In determining the issue at hand of whether the commencement of the claim should be by way of a Writ or OS the Court took guidance from the Rules.

The relevant provision for the matter in this case is Order 5 Rule 4 which stipulates that:

Proceedings which may be begun by writ or originating summons (O. 5 r. 4)

Proceedings-

in which the sole or principal question at issue is or is likely to be one of the construction of any written law or of any instrument made under any written law, or of any deed, will, contract or other document, or any other question of law; or

in which there is unlikely to be any substantial dispute of fact, are appropriate to be begun by originating summons unless the plaintiff intends in those proceedings to apply for judgment under Order 14 or Order 81 or for any other reason considers the proceedings are more appropriate to be begun by writ.

In this case there is no substantial dispute of fact as the Defendant has admitted to almost all of the facts as pleaded by the Plaintiff. This includes the existence of the written agreement between the parties. The Defendant further admits that there was a delay in paying the balance sum as stipulated under the agreements thus leading to the various extensions of time.

The only grievance raised by the Defendant is that there was an oral agreement by the Plaintiff not to enforce the agreements strictly indicating that time for payment was at large.

In the Court’s view it is trite law that where there is a written agreement with unambiguous terms the terms of the written agreement cannot be supplanted by any oral evidence to the contrary.

Section 91 of the Evidence Act 1950 is clear on this : When the terms of a contract or of a grant or of any other disposition of property have been reduced by or by consent of the parties to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of the contract, grant or other disposition of property or of the matter except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.

In short, the Court rules that there was no substantial dispute of facts to warrant a conversion of the OS to Writ. In this case oral evidence was not necessary in the face of the written agreements between the parties. Evidence by way of affidavits was sufficient.

In the upshot the Court dismissed the Defendant’s application to convert the OS to a Writ with a cost of RM3,000. Dated: 3.3.2025 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur PARTIES For the Plaintiff: Nama Peguamcara: Elton Ti Chun Ze Tetuan M Scully Suite B-8-13, Gateway Corporate Suites Gateway Kiaramas, No. 1 Jalan Desa Kiara 50480 Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur. For the Defendant: Nama Peguamcara: Deyvinah Tetuan Peter Ling & Van Geyzel, B-19-4, Tower B Northpoint Office Suites, Mid Valley City No. 1, Medan Syed Putra 59200 Kuala Lumpur.