Adam Primus Varghese Bin Abdullah v KHEE SAN FOOD INDUSTRIES SDN. BHD.

Case Significance

Confirms that conversion from an originating summons to a writ action will be refused where the dispute can be fairly determined on comprehensive documentary evidence, and it discourages using conversion as a delaying tactic against a court-appointed officer's remuneration claim.

This High Court decision at Kuala Lumpur, sitting in its commercial division, concerns a former interim judicial manager's claim to have his remuneration assessed and approved, and a defendant's attempt to convert those proceedings into a writ action. The plaintiff, suing in his capacity as the former interim judicial manager of the defendant company, had brought an originating summons seeking the assessment and approval of the remuneration he claimed as a court-appointed officer, invoking the provisions of the Companies Act 2016 governing judicial management and the Companies (Corporate Rescue Mechanism) Rules 2018. The defendant company applied to convert the originating summons into a writ action, contending that substantial factual disputes existed that required a trial, and pointing to a proposed counterclaim.

The court considered whether conversion was justified — that is, whether there were substantial factual disputes requiring a trial, whether the documentary evidence was sufficient for the matter to be determined on the summons, and whether cross-examination under Order 38 rule 2 of the Rules of Court 2012 was an adequate alternative to full conversion. It reasoned that contemporaneous documents carry superior evidential value to oral testimony, and that the extensive documentary evidence already before the court, together with the plaintiff's undertaking as to future disclosure, eliminated any legitimate need for the more cumbersome and expensive writ procedure. It was wary of conversion being used as a tactical countermeasure to frustrate a legitimate claim for a court officer's remuneration, and considered that the interests of justice favoured determining the assessment on the comprehensive material already filed.

The court dismissed the application to convert the originating summons into a writ action, with costs of RM10,000. The judgment illustrates that conversion from an originating summons to a writ will be refused where the dispute can be fairly resolved on comprehensive documentary evidence, and it discourages the use of conversion as a delaying tactic against a court-appointed officer's remuneration claim.