SYNTAX VALLEY PARKING (M) SDN BHD v Majlis Bandaraya Melaka Bersejarah (MBMB) (MA-21NCvC-5-10/2024)

Before the Court is an application by the Defendant in the original action, who is also the Plaintiff in the counterclaim, brought by Notice of Application dated 2 April 2026 (Enclosure 72) under Order 33 rules 2 and 5 of the Rules of Court 2012, Order 92 rule 4 and the inherent jurisdiction of the Court. For convenience, and as the parties themselves adopted, Syntax Valley Parking (M) Sdn. Bhd. is referred to as "the Plaintiff" and Majlis Bandaraya Melaka Bersejarah as "the Defendant".

The substantive dispute arises out of a Privatisation Agreement for Coupon Vehicle Parking Service dated 5 October 2021 ("the Agreement"), pursuant to which the Defendant, a local authority, appointed the Plaintiff to operate coupon vehicle parking services within the Defendant's administrative area. It is common ground that the Defendant thereafter issued a Notice of Termination dated 17 September 2024, purporting to terminate the Agreement with effect from 14 September 2024. By its Writ and Statement of Claim, the Plaintiff challenges the validity of the Notice of Termination and seeks declarations that the Notice is invalid and that the Agreement remains in force, together with injunctive and specific performance relief or, alternatively, damages. By its Defence and Counterclaim, the Defendant contends that the termination was lawful and counterclaims, among other relief, for declarations affirming the validity of the termination and its entitlement to forfeit the Plaintiff's deposit of RM1,866,000.00, together with mandatory and prohibitory injunctions, damages and ancillary relief.

By the present application, the Defendant does not ask the Court to try the action. Instead, it invokes Order 33 rules 2 and 5 of the Rules of Court 2012 for the determination of two preliminary issues. Those issues are framed in Enclosure 72 in the following terms:

"Sama ada, memandangkan pengakuan melalui pliding di dalam Saman Pemula bertarikh 13-5-2025 dan pengakuan melalui keterangan di dalam Afidavit Sokongan yang diikrarkan pada 7-5-2025 di dalam kes Mahkamah Tinggi Malaya di Melaka Saman Pemula No. MA-24NCC-9-05/2025 oleh Plaintif di dalam Tindakan Asal dan Defendan dalam Tuntutan Balas melalui Amirely Bin Daud (No. K/P: 540528-04-5053), iaitu pengarah pada masa material dan pemegang saham, tuntutan Plaintif dalam Tindakan Asal dan Defendan dalam Tuntutan Balas di dalam Writ Saman bertarikh 8-10-2024 dan Pernyataan Tuntutan bertarikh 8-10-2024 telah terbatal?"

(ii) "Sama ada Defendan di dalam Tindakan Asal dan Plaintif dalam Tuntutan Balas berhak memperolehi relif-relif baki dalam Pernyataan Pembelaan dan Tuntutan Balas Defendan bertarikh 9-12-2024 yang kini dipohon di dalam Notis Permohonan ini?" [4] The application is therefore not, in substance, a request to decide a discrete question of law on agreed or undisputed facts. It is a request to dispose of the entire action summarily through the medium of Order 33. The real controversy on this application is whether that course is open on the present state of the pleadings and the affidavit evidence, or whether the matters the Defendant relies upon remain in genuine dispute such that they can be resolved only at trial. [5] These are my grounds for the order I have made on Enclosure 72. B. MATERIAL FACTS AND PROCEDURAL HISTORY [6] The material facts, drawn from the pleadings and the affidavits filed in respect of Enclosure 72, may be stated shortly. Where a fact is admitted, I record it as such; where it is in contest, I record it as an assertion of the party advancing it, without resolving it at this stage. [7] The Defendant is a local authority established under the Local Government Act 1976 (Act 171). Under the Agreement, the Plaintiff was to pay a Vehicle Parking Bay Rent and to reimburse the salaries of the Defendant's personnel deployed on enforcement duties ("Personnel Salary"). The Agreement was expressed to run for ten years from 1 May 2021, with provision for extension. Clauses 3.1.4 and 3.1.5, and the termination machinery in Clause 9, governed default, the giving of notice to remedy, and termination. [8] On 2 July 2024 the Defendant issued a Notice of Demand asserting arrears of Parking Bay Rent and Personnel Salary. On 14 August 2024 the Defendant issued a Notice to Remedy, calling upon the Plaintiff to settle a stated sum of RM2,325,074.67 within 30 days, failing which the Agreement would be terminated. By a Notice of Termination dated 17 September 2024, the Defendant treated the Agreement as terminated with effect from 14 September 2024, asserted that the Plaintiff had ceased to have any right to operate the service, and asserted that the deposit of RM1,866,000.00 was forfeited. [9] It is not in dispute that, in the period before termination, the Plaintiff wrote to the Defendant by letters dated 19 July 2024, 30 July 2024 and 13 September 2024. The Defendant characterises these letters as open written admissions of breach and of indebtedness put by the Defendant, by reference to the letters of 19 July 2024 and 13 September 2024, at RM1,930,611.71 The Plaintiff's position, as deposed in the Affidavit in Reply affirmed by Syahrul Hafiz Bin Md Hashim on 28 April 2026 (Enclosure 74), is that the letters were appeals for further time to settle the arrears and expressions of its commitment to remedy, and that they do not bear the character the Defendant places upon them. [10] On 8 October 2024, the Plaintiff commenced the present action challenging the validity of the termination and simultaneously filed an application for an interlocutory injunction supported by an affidavit affirmed on 3 October 2024 by Amirely Bin Daud, then a director and shareholder of the Plaintiff. On 13 November 2024, an interim injunction was granted. Following the inter partes hearing, that injunction was set aside by order dated 28 November 2024. Subsequently, on 21 March 2025, judgments in default of defence to the Defendant's counterclaim for liquidated and unliquidated damages were entered against the Plaintiff. [11] Two further matters appearing on the Court's record bear directly on the present application. First, Amirely Bin Daud commenced Originating Summons No. MA-24NCC-905/2025, in which the present Plaintiff and Defendant were named as the third and fourth defendants respectively. That Originating Summons, together with the supporting affidavit affirmed by Amirely Bin Daud on 7 May 2025, forms the foundation of the Defendant's present application. The Originating Summons was subsequently dismissed by order dated 27 February 2026. Secondly, the two judgments in default entered on 21 March 2025 became the subject of the Plaintiff's application dated 23 April 2025 (Enclosure 47) seeking to set them aside. That application was dismissed by order dated 3 March 2026 (Enclosure 69). [12] The Defendant's application in Enclosure 72 rests principally upon statements made by Amirely Bin Daud in Originating Summons No. MA-24NCC-9-05/2025 and in his supporting affidavit affirmed on 7 May 2025. In particular, the Defendant relies upon statements that the Plaintiff had failed or neglected to make payment to the Defendant, thereby causing the Agreement to be terminated, and that there existed serious mismanagement within the Plaintiff. The Defendant contends that, Amirely having been a director of the Plaintiff throughout the material period, those statements constitute admissions binding upon the Plaintiff and, when read together with the Plaintiff's own letters dated 19 July 2024, 30 July 2024 and 13 September 2024, place the Plaintiff's breach beyond genuine dispute. [13] The Plaintiff resists the application on two broad grounds. First, that the statements of Amirely Bin Daud cannot be received as admissions binding the Plaintiff, because they were made in proceedings he brought in his own interest, which were dismissed, and not in any capacity representing the Plaintiff. Secondly, and independently, that there exists a genuine and material factual dispute which can only be resolved at trial namely the Plaintiff's contention that its inability to pay was caused, in part, by the Defendant's own failure to pay to the Plaintiff a 50 per cent share of compound collections on paid notices of offence ("NPK") under Clauses 5.1.3 and 5.1.4 of the Agreement, which the Plaintiff puts, on its own records, at RM1,759,402.57 as at June 2024 a sum which the Plaintiff, in its Reply (Enclosure 25), advances as a contributory cause of its own default and reserves the right to recover by amendment of its Amended Statement of Claim, rather than as a presently subsisting head of claim and its further contention that the termination was effected in bad faith. C. ISSUES FOR DETERMINATION [14] The application is to be approached in a particular order. The question is not, at this stage, which party is right on the merits of the termination. The question is whether the merits can properly be decided on this application at all. Three issues arise, the first being dispositive:

the threshold issue — whether this is a fit case for the determination of preliminary issues under Order 33 rules 2 and 5, that is, whether the facts necessary to answer the proposed issues are admitted or are not in genuine dispute, and whether their determination would substantially dispose of the cause or matter;

the admissions issue whether the statements of Amirely Bin Daud in Originating Summons No. MA- 24NCC-9-05/2025 and in his affidavit affirmed on 7 May 2025 are capable of operating as admissions binding the Plaintiff in this action; and

the consequential issue — whether, if the application does not succeed in disposing of the claim, the Defendant is nonetheless entitled at this stage to the balance of the reliefs sought in its Defence and Counterclaim. [15] The second and third issues only arise if the first is answered in the Defendant's favour. As will appear, the centre of gravity of this application lies in the threshold issue. D. THE LEGAL FRAMEWORK GOVERNING ORDER 33 [16] The procedure for the trial of a preliminary issue is not seriously contested between the parties as a matter of principle; both relied on substantially the same line of authority. The provision may therefore be stated economically. Order 33 rule 2 of the Rules of Court 2012 empowers the Court to order any question or issue, "whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise", to be tried before, at or after the trial of the cause or matter. Order 33 rule 5 provides that if the decision of a question so tried separately "substantially disposes of the cause or matter or renders the trial of the cause or matter unnecessary", the Court may dismiss the cause or matter or give such judgment as may be just. [17] The object of the rule is the saving of time and costs where a discrete question can be isolated and answered without the expense of a full trial. But the power is discretionary and its exercise is disciplined by settled limits. Those limits are well captured in the decision of the High Court in Krishnan Rajan a/l N Krishnan v Bank Negara Malaysia & Ors [2003] 1 MLJ 149 (HC), where the principles distilled from the authorities were stated to be: that the rule confers a wide discretionary power; that an application under the rule "may not be appropriate where the facts are in dispute or where extrinsic evidence is required to be adduced"; that the overriding consideration is whether the application would result in a substantial saving of time and expenditure; and that the Court should be wary and warn itself against the abuse of the process. [18] The Court of Appeal affirmed the same orientation in Petroleum Nasional Bhd v Kerajaan Negeri Terengganu [2004] 4 CLJ 337 (CA), recognising that the procedure is available even in a complicated case where the questions of law are "clear and definite" and the issues "clearcut", but only after a "real and serious attempt" has been made to identify the material facts which are "obviously undisputed or which should not have been disputed", and then to apply the law to the facts as found. That formulation is important for what it requires as a condition of the procedure: a substratum of fact that is either common ground or not genuinely open to dispute. [19] The decision most directly in point on the converse situation where the facts are not agreed is the Court of Appeal's decision in Hiap Soon Hong Sdn Bhd v Leopad Assets Sdn Bhd [2018] MLJU 2267 (CA). There, in the context of an Order 33 determination concerning, among other things, whether the termination of an agreement was justified, the Court of Appeal held that the judge ought to have declined to answer the questions and to have set the matter down for trial. The Court emphasised that, for Order 33 to have efficacy, the judge must ensure at the outset that the relevant facts are not in dispute, whether by the parties agreeing the facts in the pleadings or by an agreed statement of facts; that all material facts necessary for the consideration of the matter must have been proved or admitted for the Court to have jurisdiction to hear the matter under Order 33; and that, where the parties cannot agree the necessary facts, the judge must decline to proceed and set the matter down for trial. [20] The recent decision in 3 Two Square Sdn Bhd v Perbadanan Pengurusan 3 Two Square [2026] MLJU 1840 restates the same discipline: the power is to be exercised only where doing so would result in a substantial saving of time and costs; an application "should not be allowed where the issues are unclear, whether in fact or in law, and are more appropriately determined at the full trial"; and the preliminary question must be framed with clarity and precision to avoid any ambiguity as to the issue to be tried. [21] Two propositions emerge from these authorities and govern this application. First, the availability of Order 33 turns on a factual precondition: the facts material to the proposed question must be admitted or not genuinely in dispute. Order 33 is not a vehicle for resolving contested questions of fact on affidavit. Secondly, even where that precondition is met, the answer must substantially dispose of the cause or matter. These are cumulative requirements. If the first is not satisfied, the second does not arise. E. ANALYSIS AND DETERMINATION The Threshold Issue: Whether the Facts Are Undisputed [22] The proper starting point is to identify what the Plaintiff must establish at trial and to ask whether the facts bearing on it are open to genuine dispute. The Plaintiff's pleaded claim challenges the validity of the termination. Its case, as developed on affidavit, is twofold: that the termination was wrongful because the Defendant disregarded its appeal and commitment to remedy within a reasonable time, and that the Plaintiff's default was itself caused or contributed to by the Defendant's own breach in failing to account to the Plaintiff for the 50 per cent NPK compound share. The Defendant's answer is that the Plaintiff's breach is admitted and that the validity of the termination follows as a matter of course. [23] The difficulty with the Defendant's approach is that it treats as closed a question that the affidavits show to be open. The NPK counter-allegation is not a peripheral matter. In the Affidavit in Reply (Enclosure 74), the Plaintiff deposes, by reference to its own records exhibited to that affidavit, that the Defendant's failure to pay the 50 per cent NPK share under Clauses 5.1.3 and 5.1.4 of the Agreement gave rise to a sum of RM1,759,402.57 in the Plaintiff's favour as at June 2024, and that this failure contributed to the Plaintiff's inability to pay. (I say "exhibited to that affidavit" advisedly: the exhibits "SH-1" and "SH-2" were marked, and nothing turns on the marking.) The Defendant, in the Affidavit in Reply affirmed by Muhammad Firdaus Bin Shariff on 13 May 2026 (Enclosure 76), squarely denies that account. It asserts the opposite: that, far from owing the Plaintiff, it had in fact overpaid the Plaintiff by RM398,798.67 on the 50:50 NPK division for the period May 2021 to December 2023, supported by a tabulation of figures and a demand for repayment dated 25 July 2024 exhibited as "MBMB-4". [24] That is a direct and material conflict on the affidavit evidence. The two accounts cannot both be correct. One party puts the NPK balance at over RM1.75 million in its own favour; the other puts it at near RM400,000 the other way. The resolution of that conflict requires an examination of the underlying records of compound collections, the reconciliation of the competing tabulations, and in all likelihood the testing of that documentary material by oral evidence. It is precisely the kind of dispute that Krishnan Rajan identifies as making the Order 33 procedure inappropriate a case where "the facts are in dispute" and "extrinsic evidence is required to be adduced". (The Defendant's further contention that this conflict has been foreclosed by the two judgments entered in default is considered at [40] to [43] below; for the reasons there given, it does not have that effect.) [25] The Defendant sought to meet the conflict on affidavit by invoking the principle, associated with the advice of the Privy Council in Eng Mee Yong & Ors v V Letchumanan [1979] 2 MLJ 212 (PC) and applied by the Federal Court in Lori (M) Bhd (Interim Receiver) v Arab-Malaysian Finance Bhd [1999] 3 MLJ 81 (FC), that a judge is not bound to accept uncritically every assertion on affidavit that is equivocal, lacking in precision, inconsistent with undisputed contemporaneous documents, or inherently improbable. That principle is sound, but it does not assist the Defendant here. It is a principle for evaluating an assertion that stands against undisputed contemporaneous documents; it is not a licence to prefer one side's figures over the other's where each is supported by its own records and each is denied. The Plaintiff's NPK account is not, on its face, equivocal or inherently improbable: it is a positive, particularised assertion supported by an exhibited report. To reject it on affidavit would be to do the very thing Eng Mee Yong warns against — to resolve a genuine conflict of evidence without trial. [26] The same theme was developed by reference to the summary judgment jurisprudence under Order 14 of the Rules of Court 2012. Reliance was placed on the statement of the Supreme Court in Bank Negara Malaysia v Mohd Ismail Ali Johor & Ors [1992] 1 MLJ 400 that the duty of a judge does not end as soon as a fact is asserted by one party and denied or disputed by the other in an affidavit: where the assertion, denial or dispute is equivocal, or lacking in precision, or inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself, the judge has a duty to reject it, thereby rendering the issue not triable. That statement was applied in Test Rite International Company Limited v Careglove Global Sdn Bhd [2024] MLRHU 1518 (HC), where a defendant which had repeatedly admitted the sum due in its correspondence, and had sought only to defer payment, was held to have raised a clear afterthought in questioning its obligation for the first time in the litigation, and in KLK Construction Bhd Sdn & Ors v MZEC Corporation Sdn Bhd [2023] MLRHU 1149 (HC), where the same passage guided the court. Both decisions concern the test under Order 14; but I accept that the underlying discipline that a court is not obliged to treat every assertion on affidavit as raising a genuine dispute informs the threshold enquiry under Order 33 no less. The difficulty for the Defendant is that the principle condemns a particular species of assertion, and, for the reasons given at [25], the Plaintiff's NPK account does not answer its description: it is particularised to the ringgit, supported by an exhibited report, and met not by an unanswerable contemporaneous record but by a rival tabulation which is itself disputed. Nor do the letters of 19 July 2024 and 13 September 2024 supply the inconsistency the principle requires: they acknowledge arrears and seek indulgence, but they nowhere state that no NPK sums were owed, and silence in a letter seeking time is not the contradiction the principle contemplates. And unlike the defendant in Test Rite, which questioned its obligation for the first time in the litigation, the Plaintiff raised the Defendant's alleged failure to account for the NPK share in its solicitors' letter dated 17 September 2024, written in reply to the Notice of Termination itself: the contention entered the correspondence with the termination, not with the writ. [27] The Defendant pressed a further characterisation: that the NPK counter-allegation is an afterthought, raised in none of the Plaintiff's letters of 19 July 2024, 30 July 2024 and 13 September 2024, which the Defendant says consist only of admissions and appeals for time; surfacing for the first time in the solicitors' letter of 17 September 2024, after those admissions; and unaccompanied by any explanation why, if the NPK share was then owed, the point was not taken in those letters as a justification for non-payment or by way of set-off. That may prove to be so. But whether a positive and particularised account, supported by exhibited records, is a genuine contention or a late invention is itself a question of fact and of credibility, and one that can only be answered by the testing of evidence at trial. Nor can the counter-allegation be consigned to the category identified in Petroleum Nasional of facts "which should not have been disputed", or to the vice there condemned — that "no party has any liberty to disagree just for the sake of disagreeing to any fact pleaded which is obviously undisputed". That category is directed at bare or contrived denials of matters admitting of no honest contest. A rival account of the NPK reconciliation — met, on the Defendant's own side, by a competing tabulation and an assertion of overpayment which the Plaintiff in turn does not accept — is not disagreement for the sake of disagreeing; it is the very kind of contest that only a trial can resolve. [28] The Defendant also relied upon Ong Siang Pheng v Millenium Mall Sdn Bhd & Ors [2021] MLRHU 732 (HC) for the proposition that Order 33 does not prohibit the trial of a preliminary question which involves a factual dispute. The proposition, so stated, is correct, but it does not carry the Defendant's case. Order 33 rule 2 in terms extends to questions "of fact or law or partly of fact and partly of law"; a disputed question of fact may accordingly be ordered to be tried separately, upon evidence properly adduced and tested at that separate trial. What the rule does not authorise is the summary determination of a disputed question of fact on conflicting affidavits, which is what the Defendant in substance seeks. The distinction is between directing a separate trial of an issue and dispensing with trial altogether. Indeed, the Defendant's own authority of Tay Bok Choon v Tahansan Sdn Bhd [1987] 1 MLJ 433 (PC) points away from its position: where allegations in affidavits are credibly denied, the judge must, in the absence of oral evidence or cross-examination, ignore the disputed allegations and decide the matter on the undisputed facts alone. On the undisputed facts here — the Agreement, the notices, the letters and the entry of the judgments in default — the proposed issues cannot be answered in the Defendant's favour, for the reasons given above and below. [29] The Plaintiff's further allegation that the termination was effected in bad faith compounds the difficulty. Whatever its ultimate merit, an allegation of bad faith is quintessentially a matter of fact and inference, turning on the conduct, knowledge and motive of the Defendant's officers. It cannot be determined on affidavit on a summary application. The Defendant's answer that the allegation is a baseless tactical manoeuvre calculated to tarnish its image, contradicted by the Plaintiff's own letters and raised in none of the Plaintiff's contemporaneous correspondence may well prove compelling at trial; but it is itself an argument about motive, conduct and credibility, and for precisely that reason it is an argument that must be made good by evidence, not resolved on affidavit. Its presence in the pleaded case is a further indication that the action is not amenable to disposal under Order 33. [30] I should address the Plaintiff's letters of 19 July 2024, 30 July 2024 and 13 September 2024, on which the Defendant placed considerable weight. It is correct that the Plaintiff does not dispute writing them, and that they acknowledge arrears and seek time. But an acknowledgment of arrears and a request for time are not, without more, an admission that the termination was lawful or that the Plaintiff has no answer to it. An admission that sums are owed does not concede their quantum, which the NPK counter-account places directly in issue; still less does it concede that the contractual machinery for termination was validly operated, or foreclose the Plaintiff's case that its default was induced by the Defendant's own non-performance. Whether those letters amount to an admission of a fundamental breach justifying termination, or are instead consistent with the Plaintiff's case that its default was caused by the Defendant's own breach, is itself a matter of construction and context that cannot be foreclosed at this stage. The letters do not convert a disputed case into an undisputed one. [31] It follows that the factual precondition for the exercise of the Order 33 power is not satisfied. The material facts are not agreed; there has been no agreed statement of facts; and the central matters are the subject of direct and substantial conflict on the affidavits. On the authority of Hiap Soon Hong, the proper course in that situation is to decline to answer the preliminary issues and to allow the matter to proceed to trial. [32] There is a further and independent difficulty, which goes to the form of the issues themselves. 3 Two Square requires that the preliminary question be framed with clarity and precision, so as to avoid any ambiguity as to the issue to be tried. The first issue in Enclosure 72 does not pose a discrete question of law or fact capable of separate trial; it asks whether, by reason of the asserted admissions, the Plaintiff's claim "telah terbatal" that is, it assumes the disputed premise and states the conclusion for which the Defendant contends. The second issue is broader still: it asks, compendiously, whether the Defendant is entitled to the balance of the reliefs in its counterclaim. Neither is a "question or issue" in the sense contemplated by Order 33 rule 2; each is, in substance, a prayer for final judgment. This defect of framing is not the ground of my decision, but it reinforces the conclusion that the application is, in truth, an attempt to obtain summary judgment through a procedure not designed to yield it. [33] Because the threshold issue is dispositive of the application, it is not strictly necessary to decide whether the statements of Amirely Bin Daud bind the Plaintiff. The point was, however, fully argued and lies at the foundation of the Defendant's case, and it is right to address it, if only because the Defendant's contention that the facts are "not in genuine dispute" depends upon it. [34] The statements relied upon were made by Amirely Bin Daud in Originating Summons No. MA-24NCC-9-05/2025 and in his affidavit affirmed on 7 May 2025. The character of those proceedings matters. They were proceedings he brought in his own name, seeking leave to pursue a derivative action and to intervene. In those proceedings the Plaintiff was not the moving party; it was named as a defendant. The Originating Summons was dismissed on 27 February 2026. A statement made by an individual, in his own cause, advancing his own interest against the company among others, is not self-evidently a statement made by or on behalf of the company so as to bind it as a formal admission in separate litigation to which the company is a party in a different capacity. [35] The Defendant's answer is that Amirely was a director of the Plaintiff throughout the currency of the Agreement and had knowledge of its affairs, so that his statements should be attributed to the Plaintiff. Directorship at the material time and knowledge of the company's affairs are relevant considerations, but they do not, without more, establish that a statement made in the director's personal litigation is an admission binding the company. Whether his statements bind the Plaintiff depends on the capacity in which they were made, the authority (if any) under which they were made on the company's behalf, and the use to which they may properly be put each of which the Plaintiff disputes on affidavit, deposing that the statements were not made in any representative capacity and were made to serve Amirely's personal interest. At its highest for the Defendant, the weight and effect of those statements is a matter for trial. It is not a matter that can be resolved against the Plaintiff on a summary application, still less one that renders the underlying facts "undisputed" for Order 33 purposes. [36] Two further considerations, each drawn from material the Defendant itself placed before the Court, reinforce that conclusion. The first concerns capacity in point of time. Amirely Bin Daud was a director of the Plaintiff from 9 September 2020 until 23 September 2024. The Originating Summons is dated 13 May 2025 and the supporting affidavit was affirmed on 7 May 2025 — some seven months after he had ceased to hold office. Whatever may be said of a serving director, the statements relied upon were made by a former director, at a time when he held no office in the Plaintiff from which any authority to speak for it could be implied. The second concerns the nature of the proceedings themselves. It was pressed upon me that a derivative action under sections 345 to 350 of the Companies Act 2016 is, by definition, an action brought on behalf of the company, and that the Originating Summons was filed expressly to intervene in these proceedings and to defend the Plaintiff. But the statutory mechanism proceeds on precisely the opposite premise: the complainant does not yet speak for the company, and requires the leave of the Court before he may do so. The Originating Summons was dismissed. Statements deposed in support of an unsuccessful attempt to obtain authority to act on the company's behalf cannot, by that route, be elevated into statements of the company itself. The dismissal determined that Amirely Bin Daud was not entitled to intervene, defend or negotiate for the Plaintiff; it would be a curious inversion to treat what he swore in that failed attempt as the Plaintiff's own voice. [37] Nor is the difficulty overcome by Ranhill Bersekutu Sdn Bhd v Konsortium Lapangan Terjaya Sdn Bhd [2001] 1 MLRH 142 (HC), upon which considerable reliance was placed. In that case admissions made in collateral proceedings filed in court were held to fall within the ambit of section 18 of the Evidence Act 1950 and, as "clear and unambiguous statements made by the party in proceedings", to be admissible to negate the element of dispute. The proposition is sound so far as it goes, and I do not doubt that statements made on oath in one proceeding may be received in evidence in another. But the passage proceeds on the footing that the statements were made by the party. That is the very question here. Section 18 identifies the persons whose statements are receivable as admissions against a party; whether the statements of a former director, deposed in his own cause and in proceedings in which the company was itself a defendant, are the statements of the Plaintiff at all is the contested antecedent question, and Ranhill does not answer it. It is one thing to say that a director deposing in the company's cause cannot be treated as a stranger making personal observations; it is another to attribute to the company what a former director swore, months after leaving office, in litigation of his own brought against it. Admissibility is one thing; attribution, and the weight the statements should carry against the Plaintiff, are another. Those remain matters for trial. Finally, it was said that the Plaintiff approbates and reprobates that it relies where convenient upon the affidavit affirmed by Amirely Bin Daud on 3 October 2024 in support of its own injunction application, while disavowing his statements in the Originating Summons as made in his personal capacity, contrary to the principle stated by the Court of Appeal in Johan Properties Sdn Bhd v Lee Yin Chuan & Ors [2012] 1 MLRA 76 that "the law will not allow a party to approbate and reprobate on a matter". The principle is not in doubt; the question is whether it is engaged. Approbation and reprobation is concerned with a party adopting inconsistent positions in respect of the same matter in order to secure inconsistent advantages. There is no inconsistency in a company relying upon an affidavit affirmed in its own cause and in support of its own application, while disputing that statements made by the same individual months later, after he had left office, in proceedings brought in his own name against the company among others, are attributable to it. The two affidavits were affirmed in different proceedings, in different causes and on the Plaintiff's case, which cannot be rejected on affidavit in different capacities. Whether that case withstands scrutiny at trial is another matter; the doctrine of election does not foreclose it now. [39] I should add that the dismissal of the Originating Summons does not assist the Defendant. The Defendant's submission that the admissions "still apply" notwithstanding the dismissal may be accepted as a general proposition a dismissal does not expunge what was said but it does not advance the present question, which is not whether the statements were made but whether they bind the Plaintiff and place the facts beyond dispute. For the reasons given, they do not. The Reliance on the Two Judgments in Default [40] The Defendant advanced a further submission founded upon the doctrine of merger, by which a cause of action that has been reduced to judgment is taken to pass into the judgment and to be extinguished (transit in rem judicatam). As developed in paragraphs 50 and 51 of the Defendant's written submission (Enclosure 82), the contention is that, the two judgments in default of defence to counterclaim having been entered on 21 March 2025 (Enclosures 42 and 43), all the facts and issues in the Defence and Counterclaim "in respect of the reliefs ordered" in those judgments including the Plaintiff's indebtedness can no longer be challenged, having merged into them. The submission was supported by authority, to which I shall return; its centrepiece is the contention that the NPK question was not merely considered but affirmatively adjudicated the judgment for liquidated damages having ordered the repayment of RM398,798.67 as the Defendant's overpayment on the 50:50 division of the paid notices of offence so that it is no longer open to the Plaintiff to assert the existence of any NPK debt as a substantial dispute of fact. Its premise is intact: the Plaintiff's application to set those judgments aside (Enclosure 47) was dismissed by order dated 3 March 2026 (Enclosure 69), and the judgments accordingly stand. The submission nonetheless fails, for two distinct reasons. [41] The first is one of scope, and it is fatal on the Defendant's own formulation. The contention is, by its own terms, confined to the facts and issues "in respect of the reliefs ordered" in the two judgments, and it is therefore necessary to identify what those reliefs were. The judgment for liquidated damages (Enclosure 42) ordered the payment of defined monetary sums — arrears of Parking Bay Rent (RM2,328,980.97) and of Personnel Salary (RM734,830.67), sums referable to the period of the ex-parte injunction, the repayment of an NPK overpayment (RM398,798.67), and a sum for medical treatment — together with interest and costs. The judgment for unliquidated damages (Enclosure 43) ordered the taking of an account and damages to be assessed under various heads, again with interest and costs. What neither judgment ordered is any declaration that the Notice of Termination dated 17 September 2024 was valid, or that the Agreement was lawfully terminated; nor did either order the forfeiture of the deposit of RM1,866,000.00 or the delivery of the decrypted source code. The validity of the termination was not among the reliefs ordered. It follows that, even taking the doctrine at its highest and on the Defendant's own framing, the question at the heart of the Plaintiff's claim whether the termination was valid neither did nor could merge into the two judgments. That claim was never the subject of those judgments, which were entered upon the Plaintiff's failure to serve a defence to the counterclaim, not upon any adjudication of the Plaintiff's claim. [42] There is a second and more fundamental answer, which concerns the reach of the doctrine rather than its existence. Merger and the unchallengeability of facts and issues are not the same thing. Merger operates upon a cause of action: it bars the party who has obtained judgment from bringing a fresh action upon the same cause, the cause having passed into the judgment. It does not render the facts found, or that might have been found, in support of that cause unchallengeable for all purposes and in all proceedings. That is the office of issue estoppel, which precludes the re-litigation of an issue only where the issue has been distinctly raised and judicially determined. It is at this point that the authorities relied upon must be given their proper weight. They establish — and I accept that a judgment in default is as binding as a judgment given after a trial on the merits, and can give rise to an estoppel against the party against whom it was entered: Loo Chooi Ting v United Overseas Bank Limited [2015] MLRAU 220 (CA), applying Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993 (PC); and that it is no objection that the issue was not decided on its merits, provided the point was distinctly put in issue and determined with finality: Lim Oh & Ors v Allen & Gledhill [1998] 4 MLJ 645, applied in Bakti Insani Sdn Bhd v Anjung Perkasa Sdn Bhd [2018] MLRHU 546 (HC). But the same authorities fix the measure of what a default judgment concludes. In the passage from Kok Hoong adopted in Loo Chooi Ting, the question "is not whether there can be such an estoppel, but rather what the judgment prayed in aid should be treated as concluding and for what conclusion it is to stand". A judgment entered in default of pleading concludes what is necessarily determined by the relief it grants, and nothing more, for nothing more was distinctly put in issue. In Bakti Insani itself the estoppel operated because the very breach sought to be litigated afresh had already been decided by the judgment in default: the doctrine reached the matter which that judgment had concluded, and went no further. The two judgments here were entered in default of pleading; they are the product of the Plaintiff's procedural default, not of any determination of the merits. No issue — neither the cause of the Plaintiff's default, nor the lawfulness of the termination, nor the allegation of bad faith — was raised and decided when those judgments were entered. Measured by the test in Kok Hoong, the two judgments stand as conclusive of the sums they order to that extent, in the language of Goh Chin Seng v RHB Bank Berhad [2015] 4 MLRA 340 (CA), the judgment "becomes the truth between such parties" but they cannot be pressed into service to conclude questions that were never prayed, never ordered and never necessarily determined by their entry. The Defendant's submission, carried to its conclusion, would require this Court to treat a judgment obtained upon the Plaintiff's procedural default as conclusive of the merits of the Plaintiff's claim, and so to do, through the doctrine of merger, the very thing Order 33 forbids directly: the summary resolution against the Plaintiff of facts that remain genuinely in dispute, in the absence of any admitted or agreed factual substratum. [43] That leaves the particular reliance upon the order for repayment of RM398,798.67 as the Defendant's overpayment on the NPK division. I accept that the order stands, that the application to set it aside failed, and that the sum ordered is, as between the parties, no longer open to question. It does not follow that the Plaintiff's NPK counter-account has been adjudicated out of existence for every purpose in this action. First, applying Kok Hoong, what the order necessarily concludes is the Plaintiff's obligation to repay the sum ordered; the tabulation to which the Defendant's own affidavit evidence ties that figure is referable to the period May 2021 to December 2023, whereas the Plaintiff's account is drawn to June 2024 and its causative case is directed to the position subsisting at the termination in September 2024. What further conclusion the order "is to stand" for, beyond the sum it orders, is itself a contested question and a contested question is not an undisputed fact. Secondly, the office the NPK account performs in the Plaintiff's claim is causative: it is advanced to explain the Plaintiff's default and to impugn the termination. Even were the state of the account taken to be concluded against the Plaintiff, the questions the claim raises whether the contractual machinery of termination was validly operated, and whether the termination was effected in bad faith would remain untouched, for the reasons already given. Thirdly, the very fact that the parties join issue over what the judgments should be treated as concluding demonstrates that this is not one of those matters, obviously undisputed, upon which alone Order 33 can safely operate. The estoppel contention, taken at its highest, narrows the account between the parties; it does not supply the undisputed factual substratum which the application requires and which is absent. Whether the Determination Would Substantially Dispose of the Matter [44] Given my conclusion on the factual precondition, the second requirement of Order 33 that the determination substantially dispose of the cause or matter does not arise for decision. I would observe only that it is not met either. Even if the proposed issues were answered in the Defendant's favour, the Plaintiff's NPK counter-allegation and its bad-faith allegation would remain to be tried, and the counterclaim itself seeks reliefs including forfeiture of the deposit and mandatory delivery of decrypted source code which depend on findings the application cannot supply. The application would not, on any view, bring the litigation to an end. It would fragment it. The Balance of the Reliefs Sought in the Counterclaim [45] The second preliminary issue, and prayers 2 to 6 of Enclosure 72, seek substantive final relief on the counterclaim: a declaration that the Agreement was validly terminated; a declaration of entitlement to forfeit the deposit of RM1,866,000.00; a mandatory order for delivery of the decrypted source code under Clause 2.3.4; a prohibitory injunction; and indemnity costs. Each of these depends on the very findings of fundamental breach and valid termination which, for the reasons given, cannot be made on this application. The Court does not reach the entitlement to these reliefs. They abide the trial. I would add that to grant final substantive relief of this kind on a summary determination, while the Plaintiff's causative and bad-faith allegations remain untried, would be to pre-empt the very issues the trial exists to decide. F. CONCLUSION [46] The single question on this application is whether the action is fit for summary disposal through the trial of preliminary issues under Order 33. It is not. The facts material to the proposed issues are not admitted and are not free from genuine dispute. The competing NPK accounts are in direct conflict on the affidavits, and are neither foreclosed by the contemporaneous correspondence nor of the character which Bank Negara Malaysia v Mohd Ismail Ali Johor requires a court to reject; the allegation of bad faith is inherently unsuitable for summary determination; the effect of Amirely Bin Daud's statements is contested and, at highest, a matter for trial, they having been made by a former director in his own cause a question of attribution which neither Ranhill Bersekutu nor the rule against approbation and reprobation resolves in the Defendant's favour; and the merger and estoppel contention, even on the footing that the two judgments in default stand and bind as conclusively as judgments after trial, reaches only the Plaintiff's liability on the counterclaim and not the validity of the termination, which lies at the heart of the Plaintiff's claim and remains genuinely in dispute. The proposed issues are, moreover, framed not as questions capable of separate trial but as the very conclusions for which the Defendant contends. In those circumstances the proper course, consistent with Hiap Soon Hong Sdn Bhd v Leopad Assets Sdn Bhd [2018] MLJU 2267 (CA), is to decline to determine the preliminary issues and to allow the action to proceed to trial in the ordinary way. G. ORDERS OF THE COURT [47] For these reasons, I make the following orders: (a) the Defendant's application in Enclosure 72 is dismissed;

the action shall proceed to trial in the ordinary course, and case management directions will be given accordingly;

costs of and occasioned by Enclosure 72 are awarded to the Plaintiff in the sum of Rm 5,000 and

liberty to apply. [48] Nothing in these grounds is to be taken as an expression of any view on the merits of the Plaintiff's claim or of the Defendant's counterclaim, both of which remain to be determined at trial. Dated 3 July 2026 (YA Dato' Sri Raja Segaran A/L S. Krishnan) (Judicial Commisioner) High Court Of Malaya Malacca High Court (MELAKA) Lawyer For Plaintiff : Encik Zul Fahmi bin Abu Bakar Tetuan Zul Bakar Chamber Peguambela dan Peguamcara B1-15-2(F4), Space U8, Persiaran Pasak Bumi, Bukit Jelutong, Seksyen U8, 40150 Shah Alam, Selangor. Lawyer For Defendant Encik Joshua Vijayan Dharmaraj Tetuan Bell & Lee Peguambela dan Peguamcara No. 183-A, Jalan Merdeka, Taman Melaka Raya, 75000 Melaka.