Kedudukan undang-undang mengenai Aturan 28 kaedah 8 KKM 2012 telah diperjelaskan dengan nyata oleh Mahkamah Rayuan dalam Siow Yoon Keong v H Rosen Engineering BV [2003] 4 MLJ 569 where Abdul Hamid Mohamad JCA memutuskan seperti berikut- “The case of Tay Bok Choon, a Privy Council judgment cited by the learned counsel for the appellant was in respect of a petition for winding up. It was inter alia, held: [3] if allegations are made in affidavits by the petitioner and those allegations are credibly denied by the respondent’s affidavits, then in the absence of oral evidence or cross-examination, the judge must ignore the disputed allegations. The judge must then decide the fate of the petition by consideration of the undisputed facts; [4] in this case the Board is satisfied that the judge confined his consideration of the petition to the undisputed facts and rightly concluded that the petitioner had made out his case that it was just and equitable to wind up the company; It is clear that the law is not that, so long as an allegation of fact made by one party in an affidavit is denied by the other party, the court must automatically shirk for making a finding of fact, even though the denial is merely a bare denial and contemporaneous documents are in evidence. The court may also decide on facts as agreed, as in Tay Bok Choon. In this case, the proceedings that began by an Originating Summons (which it should not) was converted to a writ action and all affidavits filed were to be treated as pleadings. (Even though this is allowed by the rules, we would not encourage such practice. A solicitor should know from the very beginning or, at the very least, after the defendant has filed his affidavit in reply, whether the action is one that should be begun by a writ action or by way of an originating summons. Secondly, contents of affidavits and pleadings are different in nature. Pleadings contain statement of facts while affidavits contain statement of facts and also evidence, including documentary exhibits. Thirdly, it causes confusion in the statistics kept by the Registry. Fourthly, it also causes confusion in the preparation of the record of appeal, subsequently. A party beginning an action by way of an originating summons when he should have begun by a writ should withdraw the originating summons and file a fresh writ action. He should realize that if he does not do so, he may be estopped from filing a fresh action if the court, after hearing the originating summons on affidavit evidence alone dismisses it). [Penekanan ditambah] Di dalam kes Neoh Ah Yan v. Ong Leg Choo & Anor [2007] 10 CLJ 410, Hishamudin Mohd Yunus J telah memutuskan bahawa: [33] Order 28 r. 8 of the RHC, as referred to by the learned counsel by the plaintiff, gives the court the discretionary power to order the present proceedings to continue as if the cause or matter had begun by writ. [34] … [35] Since the present case involves serious disputes as to the facts, I think that it is inconvenient that this action should proceed by way of anoriginating summons. I am not inclined to invoke my powers under O. 28 r. 8 of the RHC, as suggested by the learned counsel. For it is clear, from the very beginning the plaintiff ought to have known that there are likely to be serious disputes as to the material facts. In other words, right from the very beginning the plaintiff must have known that originating summons is not the appropriate mode. [36] Hence, the originating summons is struck off with costs with liberty to the plaintiff to proceed afresh by way of a writ action. [Penekanan ditambah]