Ting Chin Siong v 1. ) Sieh Joo Shiong (WA-24NCvC-4493-11/2024)

SIEH JOO SHIONG (NRIC No.: 660507-01-5855)

MESSRS YEOH SHIM SIOW & LAY KUAN (As a law firm and on behalf of its partners) --- DEFENDANTS GROUNDS OF JUDGMENT

The Defendant has filed a Notice of Application in Enclosure 8 made under Order 28 rule 8(1) of the Rules of Court 2012 (“ROC 2012”), seeking to convert the present proceedings commenced by Originating Summons in Enclosure 1 into a Writ action.

The application was premised on the contention that there exist serious disputes of material fact that require oral testimony and a full trial. The Plaintiff opposed the application on the ground that the issues raised are purely documentary and legal in nature, and can be properly determined on affidavit evidence.

Upon perusal of the Affidavits, the written submissions, and hearing the oral submission by both parties on the hearing day, the Court has dismissed the application. The Defendant has filed an appeal. I hereby prepare the Grounds of Judgment accordingly.

The dispute arises from a Consent Judgment dated 25 April 2023 entered in Seremban High Court Civil Suit No. NA-22NCvC-25- 06/2020 between the same parties.

Under that Consent Judgment, the then Defendant (now Plaintiff) was obliged to pay to the then Plaintiff (now 1st Defendant) the sum of RM1,200,000.00 by eleven (11) monthly instalments. It was further agreed that in the event of default, the property known as HSD 224091, PT 11264, Mukim Seremban, Daerah Seremban (“the Property”) would be transferred to the 1st Defendant in satisfaction of the debt.

The Plaintiff paid the first instalment of RM50,000.00, which the 2nd Defendant held, the 1st Defendant’s solicitors, as stakeholder. Thereafter, the Plaintiff defaulted in payment of the subsequent instalments.

In accordance with the terms of the Consent Judgment, the Property was transferred to the 1st Defendant. The Plaintiff now claims that, upon completion of that transfer, the Defendants were duty-bound to refund the stakeholder sum of RM50,000.00 within seven (7) days, as expressly stipulated in the Consent Judgment.

The Defendants, however, failed to refund the said amount. The Plaintiff therefore commenced the present Originating Summons seeking declaratory and ancillary reliefs for the refund of the stakeholder sum and for interpretation of the relevant clauses of the Consent Judgment.

The 1st Defendant, in opposing the Originating Summon, alleged that the Plaintiff had caused severe damage to the Property prior to delivery of possession, resulting in heavy losses, and that such allegations raise triable issues necessitating viva voce evidence. This led to the present application for conversion to a Writ action.

The central issue for determination is whether the proceedings commenced by Originating Summons should be converted into a Writ action pursuant to Order 28 rule 8(1) of the Rules of Court 2012, on the ground that there exist serious and material disputes of fact requiring a trial.

The starting point is Order 5 rule 2(2) and Order 28 rule 8(1) of the ROC 2012. These provisions draw a clear distinction between proceedings appropriate for Originating Summons and those requiring a Writ.

The principle is settled that the Originating Summon procedure is suitable where the dispute turns upon the construction of documents, statutes, or undisputed facts, and where oral evidence is unnecessary. Conversely, a Writ procedure is appropriate when substantial disputes of fact arise that can only be resolved through the examination and cross-examination of witnesses.

The discretion under Order 28 rule 8(1) of the ROC 2012 is to be exercised judicially and sparingly. Discretion must be exercised judicially, and conversion is not automatic. The Court must ascertain whether the alleged dispute of fact is real, material, and bona fide, rather than speculative or peripheral. The threshold is whether the dispute of fact is “material and genuine”, not fanciful. The relevant authorities on this include Ng Hee Thong & Anor v Public Bank Bhd [1995] 3 MLJ 281; WTWT Sdn Bhd v Chew Meu Jong & Ors [2018] 1 LNS 1458; Ho Yaw Ming v Ho Yau Hong [2021] 1 LNS 1915; and NB Poultry Processing Industries Sdn Bhd v HFS Food Solution Sdn Bhd [2021] 1

From these authorities, several guiding principles have been decided, namely –

The test is whether there exists a genuine and material dispute of fact which cannot be fairly resolved on affidavit evidence.

The existence of some factual disagreement, if not material to the determination of the claim, is insufficient to justify conversion.

The discretion must promote the overriding objectives of justice, economy, and expeditious disposal under Orders 1A and 1 B of ROC 2012. E. ANALYSIS AND FINDINGS

Nature of the Plaintiff’s Claim

The Plaintiff’s claim is straightforward, where he seeks the refund of the stakeholder sum of RM50,000.00 pursuant to the explicit terms of the Consent Judgment.

The relevant clause of the Consent Judgment provides that upon the 1st Defendant’s election to transfer the Property in satisfaction of the debt, “all instalments paid shall be refunded to the Defendant within seven (7) days of the completion of transfer.”

The construction and enforcement of that clause are purely legal questions arising from an agreed judgment of the Court. No oral evidence is required to interpret or enforce its terms.

Defendant’s Allegation of Property Damage

The 1st Defendant alleges that the Plaintiff had damaged the Property prior to vacant possession, resulting in significant repair costs. It is said that these issues give rise to material factual disputes necessitating a trial.

With respect, those allegations are collateral and not germane to the subject matter of the Plaintiff’s claim. The Plaintiff’s right to a refund of the stakeholder sum is governed by the terms of the Consent Judgment, not by any subsequent or extraneous allegation of property damage.

Even assuming the damage alleged did occur, it would amount to a separate and independent cause of action which the 1st Defendant may pursue separately. It does not, however, convert a contractual or declaratory claim under the Consent Judgment into a factual controversy requiring viva voce evidence.

Whether Any Genuine Dispute of Fact Exists

The affidavits reveal no genuine or material conflict on facts essential to the Plaintiff’s claim. The execution of the Consent Judgment, the payment of RM50,000.00, the completion of the transfer, and the Defendants’ failure to refund are all undisputed.

The mere assertion of factual complexity does not suffice to displace the Originating Summon procedure. Courts have consistently cautioned that conversion should not be ordered merely because oral evidence is desired, but only where it is necessary to resolve a true factual controversy.

The Court is therefore satisfied that the present case falls squarely within the scope of Order 5 rule 2(2) ROC 2012, a declaratory proceeding founded upon documentary evidence. F.

Having considered the affidavits, the written submissions and the authorities cited, the Court finds that:

No genuine dispute of material fact arises from the affidavits filed by the parties;

The Plaintiff’s claim is confined to the legal construction and enforcement of the Consent Judgment; and

The Defendant’s allegations concerning damage to the Property are collateral and irrelevant to the issues at hand.

Accordingly, the Defendant’s application in Enclosure 8 for conversion of the Originating Summons to a Writ action is dismissed. The action shall proceed by way of Originating Summons. Costs of RM2,000.00 to the Plaintiff. Dated : 13th October 2025 ……………………………………………… (YA PUAN MAHAZAN BINTI MAT TAIB) JUDGE HIGH COURT OF MALAYA KUALA LUMPUR For The Plaintiff : Shahrul Azwan bin Mohammad Shukri Messrs. Azwan & Co For The Defendants :