ANSON ANG v 1. ) LOO KAISIN 2. ) BUSINESS PIXEL SDN. BHD.

Case Significance

Illustrates that an unsupported assertion of a factual dispute will not justify converting an originating summons on a contract-construction claim into a writ, the interpretation of a deed being a question of law for the court.

This High Court decision in the Commercial Division at Kuala Lumpur concerns an application to convert an originating summons into a writ action where the substantive dispute turned on the construction of a written deed. The plaintiff, a former director of the second defendant company, had taken out an originating summons seeking declaratory relief against the defendants in relation to a Deed of Agreement and Indemnity dated 30 March 2021, and an order compelling the defendants to take the steps necessary to set aside a judgment in default of appearance obtained by a third party against the plaintiff and the defendants in another suit. The defendants applied under Order 28 rule 8 of the Rules of Court 2012 to convert the originating summons into a writ, and the plaintiff opposed. The question was whether the defendants had shown, by reference to circumstances and documentary evidence, that there were fundamental and substantial disputes of fact and complex legal issues requiring the calling of witnesses and a full trial. The court held that they had not. It noted that the reliefs sought were founded on the terms of the deed, and that although the defendants did not deny signing the deed, they asserted that the plaintiff had signed it much later and only for the purposes of the present suit, and that subsequent events negated the terms of the deed; but they had exhibited no evidence to support the assertion that subsequent events negated the deed, so that the bare assertion carried no evidential value and was disregarded. Emphasising that the terms of a written contract are to be determined within its four corners and that the interpretation of the deed is a question of law for the court and not for any witness, applying NVJ Menon v The Great Eastern Life Assurance Co Ltd, the court held that no genuine and substantial dispute of fact warranted conversion. It accordingly dismissed the conversion application. The judgment is a useful illustration that an unsupported assertion of factual dispute will not justify converting an originating summons on a contract-construction claim into a writ.