The release of the said security was merely a formality expected to be done within 3 months from the date of the Agreement, and any extension of time for the release of the security was also expected not to be long, as the works had already been completed. (collectively referred to as "the Representations"). [5] The Defendant contended that it had relied on the Representations and agreed to enter into the Agreement, and that the Defendant had no knowledge of the events that had occurred in CZC, where the works relating to the Project had experienced significant delays due to poor management by CZC’s previous management team before the takeover by the Defendant. [6] The claim by the Plaintiff for the sum of RM6,125,221.76 relates to a performance bond in the form of a bank guarantee for the due performance of the feasibility study and detailed design for a project (Works) known as “Package 1, Package 2 and Package 3 of the Penang Major Roads & Third Link” (Project). It is the Plaintiff’s case that the only condition for payment stipulated in Clause 2(a)(i) of the Agreement is for PSG to release its lien over the Performance Bond. [7] For convenience, Clause 2(a)(i) of the Agreement provides- “i. A sum equivalent to the HSBC Security (RM6,125,221.76) shall be paid within one (1) month from the date the State Government of Penang releasing this lien over this HSBC Security. LCH shall endeavour to procure this release of the HSBC Security from the State Government of Penang within three (3) months from the date of this Agreement or at an extension of time mutually agreed by both Parties.” [8] The Defendant then discovered that PSG had, on several occasions, informed CZC (which at that time was still under the control and ownership of the Plaintiff) that the feasibility study and detailed design for Package 1, Package 2 and Package 3 under the Project had not been properly carried out. As a result, the performance bond for the Works had to be renewed. However, the performance bond was not renewed, and, according to the Defendant, the bank also refused to renew CZC’s performance bond because CZC had been red-flagged by Bank Negara and investigated by the Malaysian Anti-Corruption Commission (MACC) in relation to the Penang Undersea Tunnel project under the previous management. [9] Furthermore, as a result of CZC’s failure under the Plaintiff’s ownership to renew the Performance Bonds, which was caused by CZC’s internal issues, the Performance Bonds for the Project were cancelled by Public Bank Berhad as stated in Paragraph 29 of the Defendant’s Affidavit in Support. [10] All this evidence and/or the related documents were actively suppressed and/or concealed by the Plaintiff from the Defendant, as stated in Paragraph 12, the Defendant’s Affidavit in Response. [11] According to the Defendant, all the above could only be resolved by the Defendant, among others, by replacing the existing Bank Guarantee Performance Bond with financial collateral as security to the PSG. [12] The Plaintiff contended that the Defendant's contractual obligation to pay the sum of RM6,125,221.76 arises upon PSG releasing its lien on the HSBC Security, and that the Works' completion status is irrelevant. On the contrary, the Defendant contended that the Plaintiff’s claim ought not to have been commenced by way of an Originating Summons as there are conflicting versions and discrepancies in facts and/or evidence which cannot be satisfactorily resolved through the exchange of affidavits alone. There are substantial factual disputes, and Phase 1 of the Project has not been completed. Thus, the filing of this application by the Defendant. Parties Contention Plaintiff’s Contention [13] The Plaintiff objected to the Defendant’s application to convert the Originating Summons into a writ action. The Plaintiff contended that the dispute in the present proceedings is only on the interpretation of Clause 2(a)(i) of the Agreement dated 30.12.2021. [14] The Plaintiff submitted that the Defendant’s grounds do not warrant a conversion as this Originating Summons turns entirely on the interpretation of Clause 2(a)(i), which is central to the Plaintiff’s entitlement to payment. The Plaintiff’s position is that the completion status of the Works is irrelevant to such entitlement. The Defendant, by contrast, asserts that the completion status is a relevant fact and, on that basis, seeks to produce oral evidence to establish the status of the Works to defeat the Plaintiff’s claim. [15] The Plaintiff contended that the necessity of considering oral evidence, or any evidence as to the status of completion, can only arise once this Court has determined the proper interpretation of Clause 2(a)(i). Until that threshold issue is resolved, the Defendant’s request for conversion is plainly premature. In any event, the Defendant’s allegations of fraud and misrepresentation are inherently improbable. [16] The Plaintiff contended that the Defendant's contractual obligation to pay the sum of RM6,125,221.76 arises once SGP releases its lien on the HSBC Security. The Plaintiff contended that by way of SGP’s letter dated 13.7.2022, SGP confirmed with HSBC Bank for the release of the performance bond. The Plaintiff further contended that the payment of a sum equivalent to the HSBC Security by the Defendant fell due one (1) month after the date of the said letter, i.e., on 14.8.2022. [17] It is also the submission of the Plaintiff that the Agreement does not impose any additional requirement that the feasibility study and detailed design works for Packages 1, 2 and 3 of the Project must be completed before payment becomes due. [18] The Plaintiff also submitted that the release of the lien over the HSBC Security was confirmed by PSG through its letter dated 13.7.2022. Thus, the Defendant’s obligation to pay the sum equivalent to the HSBC Security arose one month after the date of the said letter. [19] Further, the Plaintiff submitted that there is no credible factual matrix to support the Defendant's allegations of fraud or representations. It is submitted that the Defendant’s attempt to introduce disputes concerning the completion status of the Project works is misconceived. [20] The Plaintiff contended that the Defendant was fully aware of the incomplete works prior to entering into the Agreement, and that the allegation of fraud was raised only after the commencement of these proceedings and thus is an afterthought of the Defendant. [21] Further, the Plaintiff contended that the Agreement contains the entire understanding clause, which provides that all prior representations or understandings are superseded by the Agreement. Thus, it is the submission of the Plaintiff that the Defendant cannot rely on alleged prior representations to defeat the Plaintiff’s contractual entitlement under the Agreement. [22] For these reasons, the Plaintiff submitted that the present dispute can be determined by interpreting the written Agreement and does not require the introduction of oral evidence. [23] The Plaintiff also submitted that the Court is to first hear the submissions of the parties pertaining to the Originating Summons before deciding whether the proceedings should be converted into a writ action. The Plaintiff argued that the factual disputes raised by the Defendant are irrelevant until and unless this Court determines that the completion of the Works forms a condition precedent to payment under Clause 2(a)(i) of the Agreement. Defendant’s Contention [24] The Defendant contended that the Plaintiff’s claim ought not to have been commenced by way of Originating Summons as there are conflicting versions and discrepancies in facts and/or evidence which cannot be satisfactorily resolved through the exchange of affidavits alone. Further, the Defendant also contended that the matter cannot be satisfactorily disposed of without a trial, examination in chief and cross-examination, which would allow oral evidence to be presented before the Court. [25] The Defendant further contended that Order 28 Rule 8 of the ROC 2012 gives the Court the power to order proceedings begun by Originating Summons to continue as if the proceedings had been begun by writ. The Defendant submitted that where there are substantial factual disputes involving allegations of fraud/misrepresentation (as in the present case), the matter must be heard by way of a writ action. This would give the Court the opportunity to scrutinise and probe those conflicting versions in their entirety, having heard the witnesses' oral evidence. [26] The Defendant contended that the Plaintiff’s claim is premature on the grounds that-i. Part 1 of the Project has not been completed; and ii. The HSBC Security in question has been converted into cash collateral [27] The Defendant also contended that Clause 2(a)(i) of the Agreement is conditional upon the completion of the feasibility study and detailed design works for Packages 1, 2 and 3 of the Project, as well as the release of the HSBC Security by the State Government of Penang upon such completion. [28] The Defendant submitted that relevant works had not been completed and thus the HSBC Security had not been released. The State Government of Penang had informed CZC (while under the Plaintiff’s control) that the feasibility/design works were not satisfactorily completed and thus the Performance Bonds had to be renewed. However, the banks refused to renew the bonds due to MACC investigations on CZC and had cancelled CZC’s Performance Bonds. Following these events, the State had not received proper notification of the Performance Bonds' renewal. The Defendant contended that the Plaintiff suppressed and concealed material documents, including reminders from PSG. [29] Thus, it is the submission of the Defendant that the Plaintiff’s affidavit does not represent the entirety of facts to support his claim, particularly in light of the fact that the works secured by the HSBC Security are not complete. The Defendant submitted that these matters came to light only after it had taken control of the company involved in the Project. [30] It is the Defendant’s contention that, on a proper construction of Clause 2(a)(i) of the Agreement, the Plaintiff’s entitlement to the sum of RM6,125,221.76 does not arise upon the release of the HSBC Security alone, but is instead conditional upon the completion of the Works. [31] In view of these allegations and the parties' conflicting factual assertions in their affidavits, the Defendant submitted that the dispute cannot be fairly determined without a full trial involving oral testimony and cross-examination of witnesses. ANALYSIS AND FINDINGS [32] Order 5 Rule 4 of the ROC 2012 provides that “proceedings… which there is unlikely to be any substantial dispute of fact, are appropriate to be begun by originating summons.”, while Order 5 Rule 2 of the ROC 2012 stated that “Proceedings in which a substantial dispute of fact is likely to arise shall be begun by writ.”. [33] Thus, the most important task to ascertain whether a proceeding is to be by way of an originating summons or a writ action is to see whether there is a substantial dispute of fact. If there is unlikely to be any substantial dispute, then the proceeding can be by way of an Originating Summons, and if otherwise, it has to be by a writ action. [34] The Defendant contended that on a proper construction of Clause 2(a)(i), the Plaintiff’s entitlement to the sum of RM 6,125,221.76 does not arise upon PSG’s release of the HSBC Security alone, but is instead conditional upon the completion of the Works. In this regard, the Defendant further contended that the Plaintiff fraudulently misrepresented to Tan Sri Khor Eng Chuen, who is the ultimate shareholder and director of the Defendant (TSK) that the Works had been completed, and that PSG’s release of the HSBC Security was a mere formality expected to take place within 3 months from the date of the Agreement as in the Representations. [35] TSK (vis-à-vis for the Defendant) relied on the Representations and caused the Defendant to enter into the Agreement. However, the Works have not been completed. As such, the sum under Clause 2(a)(i) is not due, and the Plaintiff’s claim is premature. [36] The Plaintiff, on the other hand, contended that the completion of the Works is not a condition to such entitlement for payment. The Plaintiff submitted that a conversion of the Originating Summons to a writ is not warranted because the factual matrix in support of the Representations is far from credible. [37] Therefore, the Defendant intended to call witnesses to prove that the Works are incomplete, which will in turn show that the payment under Clause 2(a)(i) is not due, and in view of the allegations of fraud, viva voce and/or parol evidence is required to enable a conclusive determination of the completion status of the Works [38] To this Court, these contradictory versions of the Plaintiff’s and Defendant’s clearly show substantial factual disputes that require evidence from witnesses to confirm whether such Representations existed, and whether the completion of the Works is a condition precedent to the release of the performance bond sum. [39] In Synergy Promenade Sdn Bhd & Anor v. Federal Land Development Authority & Anor [2022] MLRHU 703; [2022] MLJU 961; [2022] CLJU 977, Justice Nazlan (as he then was), referred to the Supreme Court case of Ting Ling Kiew & Anor v. Tang Eng Iron Works Co Ltd [1992] 1 MLRA 336; [1992] 2 MLJ 217; [1992] 1 CLJ (Rep) 331; [1992] 1 AMR 90 and held- “[56] This would be in accord with the observation made by Jemuri Serjan CJ (Borneo) in the Supreme Court case in Ting Ling Kiew & Anor v. Tang Eng Iron Works Co Ltd [1992] 1 MLRA 336; [1992] 2 MLJ 217; [1992] 1 CLJ (Rep) 331; [1992] 1 AMR 90 as follows: In any case it is most inappropriate and iniquitous to decide disputed facts summarily by relying simply on affidavit evidence and in this respect, we would echo the words of Lord Diplock in American Cyanamid v. Ethicon Ltd 4 at p 407: It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial... The same law Lord spoke in almost similar vein in Eng Mee Yong & Ors v. Letchumanan 5 at p 216: Their Lordships must therefore turn to the evidence that was before the High Court on the hearing of the application bearing in mind that if there appears to be any conflict of evidence which is not on the face of it implausible, such a conflict ought not to be disposed of on affidavit evidence only. It leaves a serious question to be tried. [57] There are a number of material dispute of facts in this OS that require witness testimony in a full trial. For one there is that issue on the approval by the Minister pursuant to s 3(3)(c) of the LDA. Whilst the plaintiffs averred that they had no knowledge that the Minister's approval was obtained, the first defendant said that the plaintiffs were fully aware that the Minister's approval was in fact not obtained. Secondly, on the issue of the initial transfer and sale of the Said Lands to the plaintiffs, whilst the plaintiffs affirmed that the first defendant had knowledge of the same, the first defendant denied any such knowledge. Thirdly, on the re-transfer of the Said Lands to the first defendant which was now challenged by the plaintiffs in the OS, the first defendant averred that the initial sale and transfer of the Said Lands to the plaintiffs was fraudulently executed, despite the second defendant having consented to the re-transfer. [58] And fourthly, relevant to the first defendant's opposition to this OS is the allegation of conspiracy on the initial transfer, but that the plaintiffs stated that the execution and approval of all the documents and agreements in favour of the plaintiffs are internal matters between the first defendant and its subsidiary, FIC. The first defendant - FELDA - affirmed that there are concerted efforts by the plaintiffs and other alleged wrongdoers with the intent to defraud and injure the first defendant, conspired and combined together to defraud FELDA by unlawful means or for unlawful ends. Indeed, an allegation of fraud or conspiracy to defraud, with its elements as highlighted in cases such as the Court of Appeal decision in Cubic Electronic Sdn Bhd (In Liquidation) v. MKC Corporate & Business Advisory Sdn Bhd & Another Appeal [2016] 3 MLRA 517; [2016] 3 MLJ 797; [2016] 3 CLJ 676 - regardless of whether it is unlawful or lawful means conspiracy - would be more eminently fairly and naturally suited to be adjudicated by hearing witness testimony in a full trial. [59] In other words, the affidavits in this OS reveal such seriously disputed conflicts and inconsistencies of material facts, which could thus only be properly and satisfactorily resolved if oral evidence is adduced in a full trial. Accordingly, this OS should properly be converted into a writ action pursuant to O 28 r 8 of the Rules of Court 2012, such that parties would now be directed to file the requisite pleadings (see Fullrise Resources Sdn Bhd v. Ng Ah Toh & Anor [2004] 1 MLRH 728; [2004] 6 CLJ 302; [2004] 4 AMR 501), and the matter to be further case managed. In light of the similarity of the underlying issues, I also find it just, expeditious and economical for this new writ to be heard together under O 4 r 1 of the Rules of Court 2012 with Suit 843 (which is already registered in this Court).”. [40] Even though the case of Synergy Promenade (supra) is a dispute pertaining to an application for declarations as registered proprietors, the issue of conversion under Order 28 Rule 8 of the ROC 2012 was thoroughly discussed, and it was decided by the Court that- [54] Nevertheless I am inclined to also hold that the real issues in dispute in this OS cannot be resolved by affidavit evidence. In my judgment, although the case for the plaintiffs in this OS is less than convincing and may even be devoid of merit, given the circumstances of this OS, and considering the interlocutory nature of the findings by the High Court in the Suit 477 and the Suit 843, the case is not especially suitable to be determined by affidavit evidence. The affidavits filed by the parties herein would readily demonstrate that there are many and various disputed facts that would justifiably warrant further investigation that could only be resolved by way of a full trial. Instead, viva voce evidence is imperative for the true and proper determination of the validity and propriety of the sale and transfer of Lot 390 and Lot 29788. [55] This means that this OS should be converted into a writ action pursuant to O 28 r 8 of the Rules of Court 2012 which reads as follows: