Preliminary Matters

Prior Notice for Technical Objections

-Preliminary objection can be raised when one party does not comply with the rules of
procedure. However, prior notice must be given to the fault party. [Bukit Melita v Lam Geok
Hee]

-With regards to when the notice should be given, the court in the case of Ooi Chew Seng v
Ultratech held that so long as it is given before a preliminary objection is raised.

 Thus, the notice can be served one day before the proceeding.

-Rationale of giving prior notice

 To avoid 'trial by ambush' and to be fair.

 To promote good etiquette amongst members of the Bar.

-Failure to give prior notice is deemed to be waiver of their rights to raise preliminary
objections.

Cause of Action

-Importance of cause of action

 To determine the form of proceedings to be taken in court.

 To determine the remedy, limitation period and which court to go.

-Definition of cause of action

 Government of Malaysia v Lim Kit Siang

o A statement of facts alleging that a plaintiff's right has been adversely affected
or prejudiced by the act of a defendant in an action.
 Letang v Cooper
o A cause of action simply a factual situation, the existence of which entitles
one person to obtain from the court a remedy against another person.

-Qualifications of a cause of action (When does a cause of action accrues?)

 Lim Kean v Choo Koon

i. There is a person who can sue (claimant) and a person who can be sued
(defendant); and
ii. When all the facts have happened which are material to be proved to entitle
the plaintiff to succeed.
 Read v Brown: every fact which is necessary for plaintiff to prove that
would enable him to succeed.

-Examples

 Breach of contract
 Tortious liability such as negligence, defamation and nuisance.

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-Other cases:

 Taib bin Awang v Mohamad bin Abdullah

o There is no cause of action if it has not completed yet.
o Here, the case was still pending appeal and the claimant commenced an
action for malicious prosecution, thus the claimant's action failed. The case
would be different if the appeal had ended.
 Sio Koon Lin v S.B. Mehra
o A claimant could only have a cause of action against the defendant for
payments which are due.
o For example in cases where the defendant has defaulted payments on
installments. The claimant can only sue for the payments due but not the
subsequent future repayments.
 Simetech (M) Sdn Bhd v Yeoh ect Sdn Bhd
o Cause of action must arise before a writ is issued.
o After a writ is issued, amendment can't be made to the statement of claim to
include any cause of action.

-When there is no cause of action, the defendant may apply to strike out the claim under
Order 18 Rule 19(1)(a) RC 2012 lack of cause of action.

Limitation Issue
-Is the plaintiff in time to sue?

-Other than establishing a cause of action, the claimant must bring the action within a
limitation period. If the action is after the limitation period, then the claimant will be barred.

-This situation can be regarded as 'the action is time-barred', 'the action is statute barred',
or 'limitation period has set in'.

-The rationale of the limitation principle is laid down in the case of Credit Co (M) Bhd v Fong
Tak Sin.

 This case explained that the doctrine of limitation is based on two broad
considerations.
1) There is a presumption that a right not exercised for a long time is non-
existent.
2) It is necessary that matters of right in general should not be left too long in a
state of uncertainty or doubt or suspense.
 It also has the objective to discourage plaintiffs from sleeping from their actions and
to have a definite end to litigation.

-Statutes that govern the limitation periods:

 Limitation Act 1953; Public Authorities Protection Act 1948; Railway Act 1991; Civil
Law 1956
 Limitation Ordinance (Cap.72) (Sabah); Limitation Ordinance (Cap.49) (Sarawak)

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-Ascertainment of the Limitation Period

 Under s.54(1) Interpretation Acts 1948 & 1967, the day in which the event occurs is
to be excluded.
 Thus, the time begins to run on the following day of the event/incident, and the time
ends on the same day as the event after the prescribed limitation period.

-Actions founded on a contract or tort

 s.6(1) Limitation Act 1953

o The plaintiff must bring a claim within 6 years from the date on which the
cause of action accrued.
 Breach of Contract Situation
o E.g. monthly installments contract
o The cause of action will accrue at the time when the claimant demanded for
payment, unless there is a clause in the contract which stated that the act of
default arises when the monthly payment is not paid within the stipulated
time then the cause of action accrues on the date of the act of default.
 Tort Situation
o E.g. Civil actions
o If the accident happens on 5th March 2019, the cause of action will accrue on
6th March 2019 and the action will be time-barred on 5th March 2025. The
claimant who wishes to bring a claim must do it within this prescribed period.

-Action for claiming damages for negligence not involving personal injuries

 s.6A Limitation Act 1953 as amended by Limitation (Amendment) Act 2018

o The plaintiff must bring a claim of the said negligence within 3 years.
 The negligence must not involve personal injuries.
 It does not matter that the 3 years expires later than the 6 years limitation period
stated under s.6 LA 1953.
 s.6A(3): No action shall be brought after the expiration of 15 years from the date
which the cause of action accrued.
o E.g. P bought a house in 2000...discovered a crack in 2017...report shows that
the crack occurred in 2001...then P will be time-barred. This is because it is 16
years after the crack had appeared, and P only discovered in 2017. (15 years
has passed)
 s.6A(4)(a): The cause of action accrues when the plaintiff has both the knowledge of
the relevant damages and the right to commence an action.
 s.6A(4)(b)(i): It is the knowledge of the material facts about the damages.

-Action upon any judgment

 s.6(3) Limitation Act 1953

o A judgment shall become unenforceable after the expiration of 12 years from
the date on which it was delivered.
 E.g. A party may enforce the judgment within 12 years after the trial against another
party who disregarded the judgment.

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-Action to recover land

 s.9(1) Limitation Act 1953

o An action to recover the land should be made within 12 years from the date
the cause of action accrues.
 Nasri v Mesah
o Under the recovery of land, the time begins to run from the date of any
infringement or threat of infringement of the claimant's right under the sale
and purchase agreement.
 There will be situation where the claimant has paid the purchase price but the title is
not transferred at all.
o Munah v Fatimah: The time does not begin to run because the seller held it
on a bare trust for the purchaser.
o E.g. The cause of action accrues only when the seller demands vacant
possession.

-Action to recover debt

 Hemp v Garland
o The cause of action accrues at the time when the debt could first have been
recovered by action.

-Action to recover money secured on charge

 s.21(1) LA 1953
o Action to recover any principal sum of money secured by a mortgage or a
charge in land shall be brought within 12 years from the date when the right
to receive the money accrued.
 Sivadevi Sivalingam v CIMB Bank Berhad
o Right to receive the money accrues when the borrower failed to service the
repayments and not when the Bank/Chargee issues the notice of default
under Form 16D.
 Malaysia National Insurance v Tan Kong Min
o s.21(1) would apply whenever it is the principal sum that is sought to be
recovered.
o s.6(1)(a) has no application for recovery of money secured by a charge on
land.
 Foreclosure Action
o This is to be contrasted from s.21(1).
o s.21(2) LA 1953 specifically refers to a foreclosure action in respect of a
charged personal property which is an action in rem.
o 12 years limitation period.
 s.21(1) LA 1953 usually applies when the property has been foreclosed but the
remaining debt is still owing.

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-Fraudulent breach of trust

 s.22(1) LA 1953
o No period of limitation shall be imposed towards:
 (a) Fraudulent breach of trust, or
 (b) Recovery of trust property/proceeds that are in possession of the
trustees.
 This is because a fraud by the trustee is not known by the beneficiary until after a
long period of time.

-Action based on breach of trust/recovery of trust property other than s.22(1)

 s.22(2) LA 1953
o Beneficiary must bring an action to recover trust property in respect of breach
of trust within 6 years from the date of the cause of action accrued.
 Difference between the s.22(1) and s.22(2)
o James Foong JCA in Dato Wira A Nordin Mohd Amin & ors v Rajoo Selvappan
& ors held that:
 s.22(1)(a) & (b) deal with fraudulent breach of trust and recovery of
trust property that is in the possession of the trustees.
 On the other hand, s.22(2) is confined to any breach of trust. Meaning
that the recovery of trust property which is no longer in the possession
of the trustee.
 s.22(2) also stated that the action brought by the beneficiary must not
where a time limit is already prescribed by the Limitation Act. If the
time is so prescribed, then the prescribed limitation period will apply.
Otherwise, the 6 years limitation period would apply.

-Action to recover personal estate or any share or interest of a deceased person (whether
under a will or intestacy)

 s.23 LA 1953
o Within 12 years from the date when the right to receive the share or interest
accrued.

Extension of the Limitation Period

-There can be no extension of the limitation period unless the statute/law allows for it.

-Hiew Kon Far & Anor v Kwan Ngen Wah & Ors

 Equity will never lift its finger to assist those who are indolent(lazy/inactivity), and
that too after the limitation period has set in.

-There are certain provisions under the statute which allow for extension or postponement
of the limitation period.

-Cases under disability

 s.24 LA 1953 governs the situations where the person is under disability.
 What mean by person under disability?

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 o According to Order 76 Rule 1 RC 2012, 'person under disability' means a
person who is a minor or a patient. A 'patient' is a 'mentally disturbed person'
within the Mental Health Act 2001.
 Minor
o Interpretation Act 1948 & 1967 defines a minor as any person who has not
attained the age of majority.
o The age of majority under Age of Majority Act 1971 is 18 years.
o Chin Yoke Teng & Anor v William Ui Yee Mein
 An unborn child cannot be regarded as a minor as the child does not
have a legal personality to sue.
 An infant must be a person who has been born.
 s.24 LA 1953 states that any person under disability must bring an action within 6
years after the disability ceases.
 Extension of limitation period under s.6A in case of disability
o s.24A LA 1953 as amended by Limitation (Amendment) Act 2018
 When the cause of action accrues but the person is under a disability,
an action shall be commenced within 3 years from the date when the
disability ceases.
 Under both s.24(2) & s.24A(3) LA 1953, when a person is suffered from two
disabilities, then the person is regarded to have ceased from disability only after the
second disability ceases.
 Therefore, to sum it up, disability ceases when:
i. A certificate of sanity is obtained (proven as sane);
 Once sane, the limitation period continues to run even though there
are intermittent lapses.
ii. Death
iii. A committee has been appointed to look after the person's affairs.

-Fresh accrual of action

 s.26 Limitation Act 1953

o Where the right of action to recover land or to enforce a mortgage/charge has
accrued, and the person in possession of the land/mortgagor/chargor/the
person liable for the debt acknowledges the title or makes any payment, then
the right of action shall be deemed to be accrued on and not before the date
of acknowledgment or last payment.
o Same goes to the recovery of any debt or other liquidated pecuniary claim, or
any claim to the personal estate of a deceased, or to any share or interest. If
the person liable or accountable acknowledges the claim or makes any
payment, the right shall be deemed to have accrued on and not before the
date of acknowledgment or last payment.
 Requirements for an effective acknowledgment
o s.27(1) LA 1953: the acknowledgment must be signed and in writing.
o Good v Parry: The debt must be quantifiable, ascertainable by
calculation/extrinsic evidence, without further agreement between the
parties.
o Yam Kong Seng & Anor v Yee Weng Kai

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  Acknowledgment by SMS held valid.

-Postponement of limitation period in case of fraud or mistake

 s.29 LA 1953
o When the action is either based upon the fraud of defendant, or the right of
action is concealed by the fraud, or the action is for relief from the
consequence of a mistake, then the limitation period begins only after the
plaintiff has discovered the fraud or the mistake, or could with reasonable
diligence have discovered it.
o It also provides that in case of either fraud or mistake, s.29 does not enable
any action to recover any property which has been purchased for valuable
consideration by an innocent party that has no knowledge or reason to
believe that any fraud had been committed.
 Sivaperan v Lim Yoke Kong
o Unconscionable conduct may be fraud.
o If the right of action is concealed by fraud, then the standard of proof
required is lower and only an unconscionable conduct will suffice.

Public Authorities

-The Public Authorities Protection Act 1948 (PAPA) governs the execution of statutory and
public duties.

-s.2(a) PAPA

 Any suit against a public authority must be commenced within 36 months from the
time of the act which is the subject matter of the suit.

-Lee Hock Ning v Govt of Malaysia

 The plaintiff did some building works for the government and claimed the balance
sum after 3 years. Is the plaintiff time-barred?
 FC held that non-payment of monies was not a public duty but was more like a
breach of contract, thus s.6(1) LA 1953 applies here and not s.2 PAPA.

-Issue: Whether the extension period provided in Limitation Act 1953 can be imported into
the Public Authorities Protection Act 1948?

 s.24 LA 1953 provides that in the cases of disability, persons under disability can
bring an action within the limitation period after the disability ceases.
 Phua Chin Chew v KM
o In this case, the plaintiff, a government school teacher, gave a resignation
letter to the government on 29/6/1977 as he was mentally unsound. His
service was then terminated. On 13/6/1982 his disability ceases. His personal
representative filed a law suit against the government on 2/6/1983 alleging
that the resignation letter was null and void.
o Here the limitation issue arises as the plaintiff only have 3 years to file the
suit.

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 o SC applied s.24 LA and extended the limitation period to the time when the
disability ceases. Thus, the plaintiff had 3 years to sue the government after
his disability ceases.
 The decision in Phua Chin Chew is justified based on s.33 LA 1953 which states that
the Limitation Act shall apply to proceedings by or against the government.

-Conflict between s.3 and s.33 LA 1953?

 s.3 prohibits the application of LA in cases where the government is a party and a
period of limitation is prescribed in another Act.
 As s.2 PAPA has prescribed a limitation period, the issue is whether s.24 LA can be
read into the PAPA?
 Syed Agil Barakbah SCJ states that s.3 deals with the period of limitation presented
by any written law. It does not oust the application of s.33 LA which says the Act shall
apply to proceedings by and against the government in like manner as it applies to
ordinary proceedings.

-Railways Act 1991

 s.97 RA 1991 provides that PAPA 1948 shall apply to any action against the
corporation or any of its officers for any act, neglect or default.
 Veerasingam v KTMB affirmed this.
o Under s.97 RA 1991, any claim against KTMB must follow PAPA 1948.
 Thus, the limitation period would be 36 months.

Civil Law Act 1956

-Dependency Claim

 Action brought by the dependants of the deceased.

 s.7(5) Civil Law Act 1956
o Such action shall be brought within 3 years after the death of the deceased.
 Kuan Hip Peng v Yap Yin
o s.7(5) CLA 1956 is absolute and cannot be extended. It contains no exceptions
or saving provisions as in the LA.
 Lee Lee Cheng v Seow Peng Kwan
o The court cannot enlarge the limitation period because the LA does not invest
the court with any inherent or statutory discretionary power to dispense with
its provisions.

-Estate Claim

 s.8(3) CLA 1956

o Any proceeding against the estate of the deceased must be brought within 6
months after his personal representative 'took out representation'; <or>
o The proceeding against the estate of the deceased can only be maintained if it
was pending at the date of his death.
 'took out representation' means either took out a grant of probate or the letter of
administration has been extracted.

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Defence of limitation must be pleaded

-s.4 LA 1953

 Limitation not to operate as a bar unless it is specially/expressly pleaded.

 It requires the defendant who is relying on the defence of limitation to plead it in the
statement of defence.

-Tengku Ismail Tengku Sulaiman v Sia Cheng Soon

 Defendant who fails to plead the defence of limitation is not permitted to fall back on
a plea of limitation as a second line of defence at the conclusion of the trial.
 This is to prevent defence by 'ambush' which would cause injustice or unfairness to
the plaintiff.

Burden of Proof

-Ong Ah Bee v Hii Chung Siong, Robin

 When the defence of limitation is raised, the burden of proof is on the plaintiff to
prove that the claim is brought within the limitation period and is not time-barred.

Options that are open to the defendant when there is a defence of limitation

-Perwira Affin Bank v Ahmad Bin Abdul Rahman

 When limitation period has expired, the defendant can either:

o plead the defence of limitation and apply for a trial of a preliminary issue;
<or>
o apply to strike out plaintiff's claim on the ground that it is frivolous and
vexatious [O.18 r.19(1)(a) ROC 2012] or that it is an abuse of the process of
the court [O.18 r.19(1)(d) ROC 2012].

-Defendant cannot apply to strike out the case based on the ground that there is no
reasonable cause of action.

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