Ng Choong Wei v 1. ) Kck Dafu Congee Sdn. Bhd. (BA-24NCC-93-08/2024)

KCK DAFU CONGEE SDN. BHD.

KCK RESTAURANTS HOLDING SDN. BHD.

LEE CHEE KHEONG

KCK AGLP SDN. BHD. (SYARIKAT NO: 202201011243 (1456940-K) …DEFENDAN-DEFENDAN JUDGMENT Introduction [1] This is the Defendants’ application in Enclosure 23, to convert this Originating Summons to a Writ action. [2] Having heard and considered the respective submissions by the parties on 8 April, 2025, I dismissed the application in Enclosure 23 with no order as to costs. [3] The Defendants have appeal against the above decision of this Court to the Court of Appeal. [4] The following are the grounds of judgment of this Court in dismissing the Defendant’s application in Enclosure 23. The Application in Enclosure 23 [5] The reliefs sought by the Defendants in Enclosure 23 were as follows:

bahawa Saman Pemula bertarikh 08.08.2024 (“Saman Pemula”) yang difailkan oleh Plaintif ditukarkan kepada satu tindakan Writ;

bahawa arahan-arahan diberikan berkenaan dengan pliding-pliding untuk difailkan oleh pihak-pihak dan arahan-arahan lanjutan diberikan sebagaimana yang dianggap patut dan wajar oleh Mahkamah yang Mulia ini;

bahawa kos permohonan ini dijadikan sebagai kos dalam kausa; dan

relif-relif dan/atau perintah lain-lain dan/atau selanjutnya yang dianggap sesuai dan wajar oleh Mahkamah yang Mulia ini. [6] The above application was made pursuant to Order 28 rule 8 and/or Order 92 rule 4 of the Rules of Court 2012. The Issue in Enclosure 23 [7] The issue for determination before this Court was whether this was a proper case for this Court to allow the said Notice of Application to convert the Originating Summons to a Writ action, together with the necessary consequential directions for the suit to proceed as a Writ action. The Main Action [8] The Plaintiff’s action in this matter was filed under section 346 of the Companies Act 2016 on the basis that, among others, the First Defendant had unfairly oppressed, discriminated against and/or prejudiced the Plaintiff as a minority shareholder. The Defendants’ Grounds in Support of Conversion [9] The Defendants denied the Plaintiff’s allegations of minority oppression in their principal Affidavit-in-Reply, which was supported by relevant affidavit evidence. [10] The Defendants further pointed out that, notwithstanding the exchange of affidavit evidence between the parties, the Plaintiff proceeded to file an application for a Forensic Report in order to challenge and verify the authenticity, accuracy, and legality of the documents submitted by the Defendants. According to the Defendants, this move reflected the Plaintiff’s lack of confidence in the credibility of the Defendants’ affidavit evidence. The Defendants contended that the Plaintiff’s insistence on forensic scrutiny “suggests a fundamental dispute over the authenticity and reliability of the affidavit evidence”. [11] Given that neither party accepts the other’s affidavit evidence as accurate or conclusive, the Defendants argued that an “irreconcilable dispute over material facts” has arisen. In their view, “the only way to fairly resolve these disputed issues is through oral testimony, where witnesses may be cross-examined to ascertain the truth”. The Plaintiff’s Contentions [12] The Plaintiff contended that converting the present Originating Summons into a Writ action would unnecessarily complicate and delay the proceedings, resulting in additional costs being incurred by the parties. [13] The Plaintiff further argued that, should this Court find it necessary for viva voce evidence to be adduced, it is within this Court’s power to order the cross-examination of the deponents and to have the affidavits filed herein stand as evidence-in-chief. [14] In support of this position, the Plaintiff referred not only to the provisions of Order 28 rule 8 and Order 88 rule 2 of the Rules of Court 2012, but also relied on the following authorities: WTWT Sdn Bhd v Chew Meu Jong and 4 Ors [2018] AMEJ 1171; [2018] 1 LNS 1458; [2018] MLJU 1360; [2018] MLRHU 1136, Mohamed Zahid Yon bin Mohamed Fuad v Yakub bin Hussaini and Fat Boys Records Sdn Bhd [2020] 1 AMR 744; [2019] 1 LNS 1669; [2019] MLJU 1286; [2019] MLRHU 1279 (“Mohamed Zahid”); Durable Concrete Sdn Bhd v TH Universal Builders Sdn Bhd [2016] AMEJ 0641; [2000] 6 CLJ 469; [2000] MLJU 123; [2000] 2 MLRH 388 and Siow Yoon Keong v H Rosen Engineering BV [2003] 5 AMR 735; [2003] 4 CLJ 68; [2003] 4 MLJ 569; [2003] 2 MLRA 126. [15] Finally, the Plaintiff urged this Court to not exercise its discretion under Order 28 rule 8 of the Rules of Court 2012 but instead to invoke Order 28 rule 4 of the Rules of Court 2012 to allow for the cross-examination of the deponents, with the affidavits filed by the parties to stand as their respective evidence-in-chief. The Applicable Law and Principles [16] The pertinent provisions of the Rules of Court 2012, in chronological order, are Order 28 rule 4, Order 28 rule 8 and Order 88 rule 2. [17] Order 28 rule 4 of the Rules of Court 2012 states as follows: Directions by Court (O. 28, r. 4)

4.

The Court hearing an originating summons may, if the liability of the defendant to the plaintiff in respect of any claim made by the plaintiff is established, make such order in favour of the plaintiff as the nature of the case may require, but where the Court makes an order under this paragraph against a defendant who does not appear at the hearing, the Court, if satisfied that it is just to do so, may rehear the originating summons.

Unless on the first hearing of an originating summons the Court disposes of the originating summons altogether or orders the cause or matter begun by it to be transferred to a Subordinate Court or makes an order under rule 8, the Court shall give such directions as to the further conduct of the proceedings as it thinks best adapted to secure the just, expeditious and economical disposal thereof.

Without prejudice to the generality of paragraph (2), the Court shall, at as early a stage of the proceedings on the originating summons as appears to it to be practicable, consider whether there is or may be a dispute as to fact and whether the just, expeditious and economical disposal of the proceedings can accordingly best be secured by hearing the originating summons on oral evidence or mainly on oral evidence and, if it thinks fit, may order that no further evidence shall be filed and that the originating summons shall be heard on oral evidence or partly on oral evidence and partly on affidavit evidence, with or without cross-examination of any of the deponents, as it may direct.

Without prejudice to the generality of paragraph (2), and subject to paragraph (3), the Court may give directions as to the filing of evidence and as to the attendance of deponents for cross-examination and any other directions. [18] Order 28 rule 8 of the Rules of Court 2012 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.

Where the Court decides to make such an order referred to in rule (1), Order 34 shall apply with the necessary modifications.

This rule applies notwithstanding that the cause or matter in question could not have been begun by writ.

Any reference in these Rules to an action begun by writ shall, unless the context otherwise requires, be construed as including a reference to a cause or matter proceedings in which are ordered under this rule to continue as if the cause or matter had been so begun. [19] Order 88 rule 2 of the Rules of Court 2012, which applies to proceedings under the Companies Act 2016, reads as follows:

Except for the proceedings specified in Appendix C relating to the winding up of companies and capital reduction under the Act, proceedings under the Act shall be commenced by originating summons. [20] The courts have, on numerous occasions, considered and elucidated the rules governing the application of the above provisions. [21] In addition to the cases mentioned in paragraph [13], this Court in Chow Weng Kheong v WS Weng Soon Electrical Sdn Bhd & 2 Ors [2024] AMEJ 0965; [2024] CLJU 941; [2024] MLJU 993 also explicated the rules and principles governing this aspect of the law. Analysis and Decision [22] There is no dispute that the courts are vested with the power to convert an Originating Summons into a Writ action. This is expressly provided for under Order 28 rule 8 of the Rules of Court 2012. [23] However, it must also be emphasised that in Originating Summons proceedings, Order 28 rule 4 of the Rules of Court 2012 empowers the court to give such directions as it deems appropriate to secure the just, expeditious, and economical disposal of the matter. [24] In Mohamed Zahid, the High Court issued a caution in this regard: [26] As Order 88 is a specific provision catering for proceedings under the Companies Act, it is my view that courts should be slow to exercise their discretion under the general provision found in Order 28 rule 8 of the ROC to treat or continue proceedings that are specifically required to be commenced by originating summons as if they had been begun by writ. Courts should only do so if it is necessary to ensure the just disposal of the action. [25] This Court accepts the Defendants’ contention that where it appears that the matter would more appropriately be determined by writ, owing to serious disputes of fact, the relevant provisions do confer power on the Court to order that the proceedings continue as if commenced by writ, thereby allowing disputed factual issues to be resolved through oral evidence. [26] During the hearing of submissions, this Court invited the Defendants to clarify which witnesses they proposed to call. In response, the Defendants indicated that they intended to call the Third Defendant and a partner of the Second Defendant, who is not a party to these proceedings. [27] Having considered the respective positions of the parties, this Court is of the view that the interests of the Defendants, and indeed all parties, may be adequately safeguarded through the cross-examination of the existing deponents. [28] Accordingly, in order to ensure that the Defendants’ interests are fully protected, this Court grants leave for the said partner of the Second Defendant (whom the Defendants propose to call as a witness) to file an affidavit. [29] All deponents may be subjected to cross-examination. [30] In light of the foregoing directions, the application in Enclosure 23 is dismissed, with no order as to costs. Dated: 1 June, 2025 sgd [CHOONG YEOW CHOY] Judicial Commissioner High Court of Malaya Shah Alam Counsel: Eugene Yeap Zhe Jian for the Plaintiff (Messrs. David Gurupatham & Koay) Cheok Swin Meng for the Defendants (Messrs. Tan Norizan & Assoc.)