Hartanah Bunga Sdn Bhd v Marina Binti Mohamed (BA-24NCvC-1200-06/2025)

Enclosure 5 is the Defendant’s application under Order 28 rule 8 of the Rules of Court 2012 (“ROC 2012”) seeking that these proceedings, originally commenced by Originating Summons (“OS”), be converted into a Writ action.

The Plaintiff commenced these proceedings via OS for an order to cancel the private caveat lodged by the Defendant over the property known as Geran 82121, Lot 1837, Pekan Kinrara, Selangor (“the Property”). 27/11/2025 16:00:29 BA-24NCvC-1200-06/2025 Kand. 21 S/N jTiuTZVsj0qpVV/dDdcoPg

The Defendant contends that the matter is wholly unsuitable for disposal by affidavit evidence and asserts that there are serious and material disputes of fact relating to (i) the true beneficial ownership of the Property, (ii) alleged proxy arrangements, (iii) the Defendant’s asserted caveatable interest, and (iv) competing factual narratives arising from documents, prior Syariah proceedings and factual assertions made by the Plaintiff.

Having considered all affidavits, the authorities, the submissions of both parties and the applicable legal principles, I am satisfied that this is a fit and proper case for the Court to exercise its discretion under Order 28 rule 8 ROC 2012.

For the reasons set out below, Enclosure 5 is allowed. The OS shall proceed as if begun by Writ, with consequential directions as to pleadings. B.

The Plaintiff is the registered proprietor of the Property. The Defendant, on 21.3.2025, lodged a private caveat asserting a purported interest connected to her former marriage to Abdul Azeez (“AA”), whom she alleges to be the true beneficial owner of the Property. S/N jTiuTZVsj0qpVV/dDdcoPg

The Plaintiff disputes these assertions, contending that: i) it has full legal and beneficial ownership of the Property; ii) AA has no legal connection to it; iii) the Defendant possesses no caveatable interest; and iv) the Defendant had, by a Syariah consent judgment, relinquished all claims pertaining to any matrimonial property.

The Defendant contends otherwise. She asserts: v) that AA was the actual beneficial owner of several properties registered under nominees, including the Plaintiff; vi) that she possesses firsthand knowledge of AA’s use of proxies; vii) that the Property formed part of her matrimonial assets; viii) that multiple contemporaneous documents and witnesses can support her position; and ix) that these issues cannot be determined solely by affidavit due to factual conflicts.

These competing narratives lie at the heart of Enclosure 5. C.

The sole issue before this Court is: S/N jTiuTZVsj0qpVV/dDdcoPg Whether the present proceedings ought to be converted from an Originating Summons to a Writ action under Order 28 rule 8 ROC

2012.

The Court is not, at this stage, concerned with the merits of the Plaintiff’s prayer in the OS, nor with determining whether the Defendant indeed possesses any caveatable interest. The only question is procedural suitability.

GOVERNING LEGAL PRINCIPLES Originating Summons – its proper scope

Order 28 rule 1 ROC 2012 provides that proceedings may be commenced by OS where:

the sole or principal question is the construction of a statute, contract, document; or

there is unlikely to be any substantial dispute of fact.

The jurisprudence is well-established: OS is unsuitable where there exist material factual disputes, or where the matter requires viva voce evidence, cross-examination, credibility assessment, or discovery. See:  Ting Ling Kiew v Tang Eng Iron Works Co Ltd [1992] 2 MLJ 217 “Unquestionably, these conflicts in the evidence can only be properly and satisfactorily resolved if oral evidence is adduced S/N jTiuTZVsj0qpVV/dDdcoPg and witnesses cross examined on their evidence which, however, is not possible in proceedings begun by originating summons. To add to the uncertainty of the facts the deponents of both affidavits of the appellants and the respondents were not cross-examined to ascertain the veracity or otherwise of their evidence”.  Husli @ Husly Mok v Jundar Realty Development Sdn Bhd [2014] 3 MLJ 496 [15] Thus O 5 r 4(2)(b) implies that if there is likely to be a substantial dispute as to fact, then it is inappropriate to commence an action by originating summons; instead, it must be begun by a writ action.  Neoh Ah Yan v Ong Leng Choo [2008] 7 MLJ [3] Even assuming that the present action was not a probate action, it still ought to have been commenced by way of writ action. There were substantial and contentious disputes of facts, which could only be determined by viva voce evidence, and not merely by way of affidavit evidence. Further, O 5 r 4 of the RHC would require that the proceedings be commenced by way of a writ action and not by originating summons (see paras 24, 28); Pesuruhjaya Ibu Kota Kuala Lumpur v Public Trustee & Ors [1971] 2 MLJ 30; Ng Wan Siew v Teoh Sin [1963] 29 MLJ 103; and Ting Ling Kiew & Anor v Tang Eng Iron Works Co Ltd [1992] 2 MLJ 217 followed. S/N jTiuTZVsj0qpVV/dDdcoPg

The rationale is straightforward: affidavit evidence, without cross-examination, is inadequate for determining where the truth lies where the facts are highly contentious.

Discretion to Convert to Writ

Order 28 rule 8 ROC 2012 empowers the Court to order, at any stage, that the matter continue as if begun by Writ, if the Court “for any reason” considers it more appropriate.

This is a broad judicial discretion, exercised not mechanically but in the interest of justice.

The Court must assess:  whether substantial factual disputes exist;  whether credibility issues arise;  whether cross-examination is required;  whether the OS mechanism would prejudice a party; and  whether the conversion facilitates the Court’s truth-finding function.

Once such disputes appear on the face of the affidavits, the Court must not attempt to resolve them summarily. This is emphasised in Ting Ling Kiew (supra), where the Supreme Court held: S/N jTiuTZVsj0qpVV/dDdcoPg “These conflicts in the evidence can only be properly and satisfactorily resolved if oral evidence is adduced and witnesses cross-examined… which is not possible in proceedings begun by originating summons.”

The same principle was applied in i) NB Poultry Processing Industries Sdn Bhd v HFS Food Solution Sdn Bhd [2020] MLJU 2641: OS converted due to serious factual disputes. ii) Bank Kerjasama Rakyat v Angkatan Koperasi Kebangsaan [2022] MLJU 3768 iii) Husli @ Husly Mok (supra), where failure to convert was held to be an error.

These authorities bind this Court. E. WHETHER THE PRESENT CASE CONTAINS MATERIAL

Having examined the affidavits, the disputes here are deep, complex, and central to the Plaintiff’s claim and the Defendant’s defence.

True Beneficial Ownership

The Plaintiff asserts sole legal and beneficial ownership. S/N jTiuTZVsj0qpVV/dDdcoPg

The Defendant alleges the Plaintiff is merely a proxy and AA is the actual beneficial owner.

This question cannot be answered by affidavit alone. It requires: i) oral testimony of individuals with personal knowledge; ii) financial tracing; iii) examination of AA’s dealings; iv) credibility assessment of the Defendant’s knowledge as AA’s spouse.

Affidavits alone are insufficient to determine these matters.

Proxy Structure and Corporate Control

The Defendant asserts that the Plaintiff is part of a broader proxy structure involving AA and nominees.

The Plaintiff denies this entirely.

This forms a serious factual conflict requiring viva voce evidence.

Defendant’s Alleged Caveatable Interest

The Defendant claims an interest based on: i) her marriage to AA; ii) alleged promises by AA; iii) AA’s purported intention that the Property be part of her S/N jTiuTZVsj0qpVV/dDdcoPg matrimonial entitlement.

The Plaintiff argues: i) she relinquished all matrimonial claims in a Syariah ii) consent judgment; iii) therefore she has zero caveatable interest.

The circumstances surrounding the Syariah proceedings, including whether: i) the Property was disclosed, ii) the consent was freely given, iii) the parties’ intention encompassed this Property, are factual matters that require evidence-in-chief and cross-examination.

Credibility Issues

Multiple issues turn on the credibility of the Defendant, AA, and others.

The credibility of witnesses cannot be assessed on affidavit alone.

The Court must hear live testimony to meaningfully determine truthfulness. S/N jTiuTZVsj0qpVV/dDdcoPg

Documentary Conflicts

There are discrepancies between: i) corporate searches, ii) prior Syariah documents, iii) alleged financial contributions, iv) the Plaintiff’s internal documentation.

These discrepancies demand a full trial with discovery and inspection.

Need for Cross-Examination

Order 38 rule 2 ROC permits cross-examination in OS proceedings, but this mechanism is not designed to replace a full trial.

Where cross-examination becomes necessary and extensive, the proper procedure is Writ, as affirmed in: i) Ting Ling Kiew (supra) ii) Husli @ Husly Mok (supra) iii) Neoh Ah Yan (supra)

This case requires cross-examination of multiple witnesses on contested factual issues central to the dispute. OS is therefore inappropriate. S/N jTiuTZVsj0qpVV/dDdcoPg F. WOULD MAINTAINING THE OS PREJUDICE THE DEFENDANT?

Yes.

Deciding this OS without permitting the Defendant the full procedural rights of a writ action including discovery, inspection, interrogatories, and cross-examination—would significantly prejudice her ability to defend.

The Plaintiff, on the other hand, suffers no prejudice by converting the matter into writ: i) the relief sought is still available; ii) the matter can be fully ventilated on its merits; iii) justice is better served by a comprehensive factual inquiry. G.

The disputes raised in this case are not peripheral. They go to: i) ownership; ii) intention; iii) matrimonial context; iv) proxy arrangements; v) factual credibility.

The OS procedure is only suitable when facts are straightforward. Here, the opposite is true. S/N jTiuTZVsj0qpVV/dDdcoPg

I find that: i) the Defendant has raised bona fide disputes; ii) these disputes cannot be dismissed as frivolous or speculative; iii) resolving them requires oral testimony and cross-examination; iv) the overriding interest of justice favours full ventilation of evidence.

The affidavits reveal that this matter is fact-heavy and complex, and the Court must give effect to the truth-seeking process. H.

I therefore hold that:

There exist serious, material disputes of fact;

Such disputes cannot be resolved through affidavit evidence;

Cross-examination and viva voce evidence are essential;

The OS procedure is inappropriate for the determination of these issues; and

It is in the interest of justice that the matter proceeds as a writ action.

Accordingly, the Court exercises its discretion under Order 28 rule 8 ROC 2012. S/N jTiuTZVsj0qpVV/dDdcoPg I.

Enclosure 5 is allowed.

The Originating Summons is hereby directed to continue as if begun by Writ.

The Court makes the following consequential directions: i) The Plaintiff shall file and serve its Statement of Claim within 21 days;

(ii) The Defendant shall file and serve her Statement of Defence within 21 days thereafter;

(iii) The Plaintiff may file a Reply within 14 days thereafter;

(iv) All interlocutory applications shall thereafter follow writ procedures;

Costs of Enclosure 5 shall be in the cause. J. CONCLUSION

For all the reasons above—grounded in the factual matrix, the governing law, and binding authorities—I am satisfied that this matter cannot be justly disposed of via OS.

Justice demands that the dispute be ventilated through the full mechanism of a writ action. S/N jTiuTZVsj0qpVV/dDdcoPg

Enclosure 5 is therefore allowed. Dated this 26th November 2025 -sgd- ………………………………….. Datin Asmah binti Musa Pesuruhjaya Kehakiman Mahkamah Tinggi Malaya Mahkamah Tinggi Shah Alam Counsel for Plaintiff : Mr. Chen Hui Ken (Mr. Tun Muhammad Seth bin Tun Rafaee with him) Messrs. Jec Siose & Co Counsel for Defendant : Mr. Rafique Rashid Messrs Law Practice of Rafique S/N jTiuTZVsj0qpVV/dDdcoPg