LIEW MOONG JU v 1. ) PENINSULAR STEEL GALVANISING SDN BHD 2. ) NG KONG CHEN @ NG TING MIEW 3. ) Ng Jin Yeong

Case Significance

Illustrates that although a section 346 oppression action must be commenced by originating summons under Order 88, the court may order it to continue as if begun by writ under Order 28 rule 8(1) where seriously disputed facts require pleadings and cross-examination.

This High Court decision in Kuala Lumpur concerns an application to have a minority-oppression action, commenced by originating summons, continue as if it had been begun by writ, so that the disputed facts could be tried with oral evidence. The plaintiff, who held a thirty-five per cent shareholding in the first defendant company, had brought an originating summons against the second and third defendants — directors holding fifty-five per cent and ten per cent of the shares respectively — seeking relief under section 346 of the Companies Act 2016 on the ground that the company's affairs were being conducted, or the directors' powers exercised, in a manner oppressive to him as a member. Because Order 88 of the Rules of Court 2012 requires an action under section 346 to be commenced by originating summons, the plaintiff applied under Order 28 rule 8(1) for the proceedings to continue as if begun by writ, and invoked Order 28 rule 4 to enable cross-examination. The defendants resisted, characterising the application as a fishing expedition. The Court held that where the facts are seriously in dispute and cannot be justly resolved on affidavit evidence alone, conversion to a writ action is appropriate, allowing pleadings to define the issues and the parties to be cross-examined. It dismissed the defendants' objection and allowed the plaintiff's application to proceed as if the matter had been begun by writ, granting the prayers sought with costs in the cause, and gave directions for the filing of a statement of claim, defence and reply. The decision illustrates the interplay between the mandatory originating-summons procedure for oppression claims and the court's power to convert such proceedings to a writ where the factual disputes call for a full trial. The Court's approach shows that the mandatory originating-summons route for oppression claims exists for efficiency, but does not compel a court to determine seriously contested facts on paper where justice requires the fuller procedure of pleadings and oral testimony, which the conversion power under Order 28 is designed to provide.