1. NB Poultry Processing Industries Sdn Bhd 2. Baharudin Bin Ahmad 3. Norliza Binti Mohd Yunus 1. HFS Food Solution Sdn Bhd 2. HFS Food Processing Sdn Bhd 3. Khairul Rizam Bin Othman

1. NB Poultry Processing Industries Sdn Bhd 2. Baharudin Bin Ahmad 3. Norliza Binti Mohd Yunus 1. HFS Food Solution Sdn Bhd 2. HFS Food Processing Sdn Bhd 3. Khairul Rizam Bin Othman

The Court found that the exchanged affidavits disclose serious and material disputes of fact (existence and terms of the 18 Sept 2019 meeting, amounts paid, and asserted damages) which cannot be resolved on affidavit evidence alone; therefore conversion to a writ action under Order 28 r 8 is warranted and appropriate and the contested affidavit was admissible under Order 41 r 5; conversion would not prejudice the parties.

Citation
BA-24NCVC-1460-10/2019 (Mahkamah Tinggi)
Parties
First Plaintiff: NB POULTRY PROCESSING INDUSTRIES SDN BHD; Second Plaintiff: BAHARUDIN BIN AHMAD; Third Plaintiff: NORLIZA BINTI MOHD YUNUS; First Defendant: HFS FOOD SOLUTION SDN BHD; Second Defendant: HFS FOOD PROCESSING SDN BHD; Third Defendant: KHAIRUL RIZAM BIN OTHMAN
Court
High Court
Jurisdiction
Malaysia
Judgment Date
24 January 2020
Case Number
BA-24NCVC-1460-10/2019 (Mahkamah Tinggi)
Procedural Posture
Originating Summons Converted to Writ Action / Interlocutory Application Under Order 28 R 8 Rules of Court 2012
Outcome
Defendants' application to convert originating summons to writ action granted; affidavits to stand as pleadings; costs in the cause
Legal Topics
Conversion of Originating Summons to Writ, Termination of Sale and Purchase Agreement, Admissibility of Affidavits, Assessment of Disputed Facts, Order 28 R 8 Rules of Court 2012
Source Language
Malay/English
Contract Civil Procedure Property Law Company Law Conversion of Originating Summons to Writ Termination of Sale and Purchase Agreement Admissibility of Affidavits Assessment of Disputed Facts +1 more

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Parties

NB POULTRY PROCESSING INDUSTRIES SDN BHD

First Plaintiff

BAHARUDIN BIN AHMAD

Second Plaintiff

NORLIZA BINTI MOHD YUNUS

Third Plaintiff

HFS FOOD SOLUTION SDN BHD

First Defendant

HFS FOOD PROCESSING SDN BHD

Second Defendant

KHAIRUL RIZAM BIN OTHMAN

Third Defendant

Procedural Posture

Originating Summons Converted to Writ Action / Interlocutory Application Under Order 28 R 8 Rules of Court 2012

Legal Issues

  1. 1 Whether the termination of the Sale and Purchase Agreement was regular or premature
  2. 2 Amount paid by Defendant under the Sale and Purchase Agreement and Tenancy Agreement
  3. 3 Whether damages in the defendant's counter-claim should be assessed at trial

Ratio Decidendi

The Court found that the exchanged affidavits disclose serious and material disputes of fact (existence and terms of the 18 Sept 2019 meeting, amounts paid, and asserted damages) which cannot be resolved on affidavit evidence alone; therefore conversion to a writ action under Order 28 r 8 is warranted and appropriate and the contested affidavit was admissible under Order 41 r 5; conversion would not prejudice the parties.

Court Disposition

Defendants' application to convert originating summons to writ action granted; affidavits to stand as pleadings; costs in the cause

Orders

  • Originating Summons converted to a writ action pursuant to Order 28 r 8 Rules of Court 2012
  • Affidavits filed shall stand as pleadings with liberty to apply for particulars