Seng San Bing 1. Peter Charles Smerling 2. Satin Straits Sdn. Bhd.

Seng San Bing 1. Peter Charles Smerling 2. Satin Straits Sdn. Bhd.

The Striking Out Application was dismissed and the Conversion Application allowed because the court found there were substantial and disputed issues of fact and credibility (notably loss of major customers and the reasons Listing/Trade Sale failed) that could not be satisfactorily resolved on affidavit evidence and...

Source-derived case information.

Citation
24NCC-452-09/2020 (Mahkamah Tinggi)
Parties
Plaintiff: Seng San Bing; 1st Defendant: Peter Charles Smerling; 2nd Defendant: Satin Straits Sdn. Bhd.
Court
High Court
Jurisdiction
Malaysia
Judgment Date
12 April 2021
Case Number
24NCC-452-09/2020 (Mahkamah Tinggi)
Procedural Posture
Originating Summons (investment Dispute) / Interlocutory — Decision on Conversion and Striking Out Applications
Outcome
Striking Out Application dismissed; Conversion Application allowed; costs awarded against Plaintiff
Legal Topics
Conversion of Originating Summons to Writ, Striking Out for Delay/frivolousness/abuse of Process, Res Judicata, Interpretation of Investment Agreement, Viva Voce Evidence V Affidavits, Costs
Contract Law Civil Procedure Company Law Conversion of Originating Summons to Writ Striking Out for Delay/frivolousness/abuse of Process Res Judicata Interpretation of Investment Agreement Viva Voce Evidence V Affidavits +1 more

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Parties

Seng San Bing

Plaintiff

Peter Charles Smerling

1st Defendant

Satin Straits Sdn. Bhd.

2nd Defendant

Procedural Posture

Originating Summons (investment Dispute) / Interlocutory — Decision on Conversion and Striking Out Applications

Legal Issues

  1. 1 Whether the Conversion Application should be struck out as filed contrary to case management directions and as frivolous/vexatious or an abuse of process
  2. 2 Whether the proceedings should be continued as if begun by writ under Order 28 r 8 ROC 2012 because there are substantial disputes of fact and credibility
  3. 3 Whether issues raised are res judicata by prior proceedings

Ratio Decidendi

The Striking Out Application was dismissed and the Conversion Application allowed because the court found there were substantial and disputed issues of fact and credibility (notably loss of major customers and the reasons Listing/Trade Sale failed) that could not be satisfactorily resolved on affidavit evidence and therefore the proceedings should continue as if begun by writ under Order 28 r 8 ROC 2012; the delay in filing was not shown to be prejudicial and the conversion was therefore appropriate.

Court Disposition

Striking Out Application dismissed; Conversion Application allowed; costs awarded against Plaintiff

Orders

  • Striking Out Application dismissed
  • Conversion Application allowed and proceedings to continue as if begun by writ