Ting Chin Siong v 1. ) Sieh Joo Shiong 2. ) Tetuan Yeoh Shim Siow & Lay Kuan

Case Significance

Illustrates the distinction between originating summons and writ proceedings and the court's approach to a conversion application where the real issues are ones of legal construction rather than disputed fact.

This High Court decision at Kuala Lumpur concerns an application to convert proceedings commenced by originating summons into a writ action, and the principles distinguishing the two modes of commencement. The plaintiff had brought an originating summons concerning the construction and enforcement of a consent judgment entered in an earlier Seremban High Court suit between the same parties, under which the plaintiff was to pay a sum of RM1,200,000.00 by monthly instalments, failing which a specified property would be transferred to the first defendant in satisfaction of the debt. The first defendant applied under Order 28 rule 8(1) of the Rules of Court 2012 to convert the originating summons into a writ action, contending that there existed serious disputes of material fact requiring oral testimony and a full trial, while the plaintiff opposed the application on the ground that the issues were purely documentary and legal and could properly be determined on affidavit evidence. The court's task, informed by Order 5 rule 2(2) and Order 28 rule 8(1), which draw a clear distinction between matters suitable for originating summons and those requiring a writ, was to decide whether the case genuinely raised disputed questions of fact that could not be resolved on affidavits. Having considered the affidavits, the written submissions and the authorities, the court found that no genuine dispute of material fact arose from the affidavits, that the plaintiff's claim was confined to the legal construction and enforcement of the consent judgment, and that the defendant's allegations concerning damage to the property were collateral and irrelevant to the issues. It accordingly dismissed the application, directed that the action proceed by way of originating summons, and awarded costs of RM2,000.00 to the plaintiff. The judgment is a useful illustration of the distinction between originating summons and writ proceedings and of the court's approach to a conversion application where the real issues are ones of legal construction rather than disputed fact.