Preliminary Matter

Definition
To sue, or not to sue. That is a question that ponders the mind of the practising lawyer day
by day. But, the truth really is, that few things delight lawyers more than having the
opportunity to sue. Litigating, besides being part of the lawyer’s source of bread and butter,
also gives the opportunity for the lawyer to hone his literary and oratory skills, and nothing
gives a better high then a successful day in court. But before one can even sue, one needs to
bear in mind the procedures involved. And none is a procedure more important then having
a valid cause of action.
Cause of Action
 A cause of action arises when there exists a set of fact which allows a person to
commence an action in court and claim remedy for the wrong suffered.
Cooke v Gill
“Every fact which is material to be proved to entitle the plaintiff to succeed”
Read v Brown
“Every fact which it would be necessary to support his right to the judgment of the court” 
Lim Kean v Choon Khoon
A cause of action accrues when there is a person who can sue and another who can be sued
and when all the facts have happened which are material to be proved to entitle the plaintiff
to succeed to obtain judgment
Government of Malaysia v Lim Kit Siang
A cause of action is a statement of facts alleging that a plaintiff’s right, either at law or by
statue, has in some way or another, been adversely affected or prejudiced by the act of a
defendant in an action
When does the cause of action accrues?
The cause of action can be filed to court if :
1. There is a person who can sue : Plaintiff
2. There is a person who can be sued : Defendant
3. There are facts, which if can be proved would enable the plaintiff to succeed
What happen when an action that is filed in court does not have a cause of action?
O18 r 19(1) : The defendant can apply to strike out the action for lack of cause of action.
Important to establish cause of action (pg 22 BAC)
Taib bin Awang b Mohamad bin Abdullah
The plaintiff was convicted in the Kadi’s court and he appealed. But before his appeal could
be heard he commenced an action for malicious prosecution and it was so held that since
the appeal has yet to be heard, and the issue had yet to be disposed of, how could malicious
prosecution be established? Thus, the court held that plaintiff’s action failed because the
cause of action was incomplete since the conviction was still pending appeal. It would be
complete if the appeal had ended in his favur and he then sued.
Sio Koon Lin v SB Mehra 
The plaintiff commenced an action for recovery of arrears that where in fact not yet due at
the time of the claim. The federal court held that the plaintiff did not have any cause of
action on the 7th October.
Simetech (M) Sdn Bhd v Yeoh Cheng Liam Construction Sdn Bhd
It was held that the cause of action must arise before a writ Is issued and it will not allow an
amendment to be made to include a new cause of action which has arisen only after the
issue of writ.
Limitation of Period
A valid cause of action also depends on other factors, such as whether the claim would be
made within the proscribed time. Malaysia’s general statute of limitations is the Limitation
Act 1953.
 Section 6(1) of the Act says that action for breach of contract or a tort are six years
from the date on which they accrue.
 It is to ensure the defendant is not prejudiced by the delay of the plaintiff in bringing
an action in court
 If a party intending to file an action, fails to do so within the prescribe time, the party
would be barred from filing the action. (The action is time-barred / The action is
statue-barred / limitation period has set in)
Credit Co (M) Bhd v Fong Tak Sin
“The limitation period is promulgated for the primary object of discouraging plaintiff from
sleeping on their action and more importantly, to have a definite end to litigation. The
rational of the limitation law should be appreciated and enforced by the courts”
*The law of limitation of action as it stands is very strict and rigid
*The limitation period commences when there is a complete cause of action

Importance of Limitation Period

 Section 4 : nothing therein shall operate as a bar to any action or proceeding unless
expressly pleaded.
“Nothing in this Act shall operate as a bar to an action unless this Act has been expressly
pleaded as a defence thereto in any case where under any written law relating to civil
procedure for the time being in force such a defence is required to be so pleaded”
 The effects of the limitation periods are procedural rather than substantive in that
they bar a remedy and do not extinguish the claim itself. 

Ronex Properties v John Laing Construction

‘It is trite law that the English Limitation Acts bar the remedy and not the right, and
furthermore, that they do not even have this effect unless and until pleaded’.

Lee Lee Cheng v Seow Peng Kwang

The plaintiff in this case is the widow and administrator of the estate of Gooi Kim Kwan@
Gooi Kim Kwai, deceased. Defendant is the administrator of Loke Ta Poh, deceased. Plaintifff
suing Defendant for damages of negligent driving. Defendant claims that the plaintiff action
was not commenced before the expiration of six months from the date on which defendant
took out representation to the estate of Loke Ta Poh. Plaintiff alleged cause of action is
barred by the provision of s 8(3)(b) of CLO 1956.

Issue: Whether the limitation period may be enlarged

Held : The court held that the time prescribed by s. 8(3)(b) CLO 1956 commenced o run
against the Plaintifff on 8 AUGUST 1957 as the day the grant was extracted. As the action
was filed on 17 FEBRUARY 1958 the plaintiff action was barred by limitation. The court held
that in construing the provisions regarding limitation in the CLO equitable considerations are
entirely out of place and the strict grammatical meaning of the words is the only safe guide.
And it is not competent for the court to travel outside the limits of the Ordinance since the
Ordinance itself does not invest the court with any statutory or inherent discretionary
power to dispense with its provisions. If an action fails in limine upon a plea of limitation,
there is no power in the Court to resuscitate it
Limitation Act 1953

 Section 6(1) : Where the cause of action is founded on contract or tort,this section
specifically provides that these actions must not be brought after the expiration of 6
years from the date on which the cause of action accrued.

 Contract : 6 years from the date of breach of contract

 Tort : 6 years from the damage has occurred

Pirelli General Cable Works v Oscar

The court held that the cause of action accrued at the date when the first crack on the
chimney occurred and not when the plaintiff could diligently have discovered it. However,
since the date when the plaintiff discovered it was beyond the limitation period, the plaintiff
action was time-barred
Cartledge v Jopling
The plaintiff worked in a steel factory and contracted disease which slowly cause damage to
his health. When the plaintiff knew of the damage, it was over 6 years and thus the action
was time-barred.
Credit Corp (M) Bhd v Fong Tak Sin
The court held that time begins to run from the date of damage although the plaintiff is
ignorant of the defendant’s identity.
Sivapira v Lim Yoke Kong
This case illustrates the principle that a limitation period may not be used to aid fraud, or
the enforcement of the equitable maxim that equity will not allow a statute to be used as an
instrument of fraud. In this case the plaintiff was knocked down by the defendant on a
motorcycle on the 1st day of April 1977, and then the plaintiff’s solicitors sought to identify
the defendant’s insurers but to no avail until the 28th day of March 1984, that is, when the
six year limitation period had passed. The defendant predictably alleged that the claim was
time barred. The High Court held that the defendants had wilfully concealed themselves
from the knowledge of the plaintiff and thus the case came under fraud as defined in
section 29 of the Act. The plaintiff’s claim therefore, was not time barred after all.
Position Prior to the Amendment Act
This has generally been interpreted to mean that the six years limitation period under
Section 6(1) of the Act begins to run from the date when a breach had occurred (for a cause
of action for breach of contract) or when the damage had occurred (for a cause of action in
tort), and this is irrespective of whether or not the damage was discovered or could
reasonably have been discovered at the time.
AmBank (M) Bhd v Abdul Aziz Hassan & Ors
It was argued that the statutory limitation period for a tort based claim should only start to
run when the damage was discovered. The Court of Appeal disagreed. It held that section
6(1)(a) if the Limitation Act is an absolute bar and the courts do not have the power to
extend the limitation period; that prerogative is reserved for Parliament.
* It follows that if the damage is not apparent at the time the cause of action accrues, this
would lead to harsh results against the party seeking to claim for latent damage especially if
the damage was only discovered and could only reasonably have been discovered after the
six years limitation period under Section 6(1) of the Act.
Position After the Coming into Force of the Amendment Act
 The Amendment Act seeks to resolve the above inconsistency by introducing a new
Section 6A to the Act to deal with damage not involving personal injuries that was only
discovered and could only reasonably have been discovered after a cause of action in
contract or tort had accrued under Section 6(1) of the Act.
 Essentially under Section 6A of the Act, where the damage was only discovered and
could only reasonably have been discovered either:-
(i) less than three years before the expiry of the normal six years limitation period
under Section 6(1) of the Act; or
(ii) after the expiry of the aforesaid six years limitation period,
the plaintiff would then have three years from the date of such discovery to
commence an action for damages, provided that such commencement shall not
exceed 15 years from the date when the cause of action accrued, i.e. when a breach
had occurred (for a cause of action for breach of contract) or when the damage had
occurred (for a cause of action in tort).
 It must however be noted that the plaintiff must still exercise reasonable diligence in
discovering the existence of any damage as Section 6A(4)(b)(iii) of the Act imputes on
the plaintiff knowledge which he might reasonably have been expected to acquire from
facts observable or ascertainable by him, or from facts ascertainable by him with the
help of appropriate expert advice which is reasonable for him to seek.
 Based on the discussion on the amendment bill in Parliament and the illustrations given
in the section, Section 6A of the Act appears to be catered specifically to deal with latent
defects in the construction of a building.
 However, Section 6A of the Act is worded sufficiently wide to cater for all “actions to
claim damages for negligence not involving personal injuries” (which is the heading for
the section). Hence, the said section should be available to claims for latent damage
outside the context of building construction as well, including the type of claims arising
under the cases mentioned above prior to the Amendment Act.
* Section 6A of the Act applies to all action or proceedings for latent damage commenced
after 1st September 2019.
* Section 6A(4)(a) defines "starting date" as “the earliest date on which the plaintiff or any
person in whom the cause of action was vested before him first had both the knowledge
required … and a right to bring such action.” 
*Therefore, the commencement of the limitation period depends on when a person first
had knowledge.
* Section 6A(4)(b) : a party is deemed to have knowledge when he might be reasonably
expected to have acquired from facts observable or ascertainable by him, or with the help
of appropriate expert advice which is reasonable for him to seek.
* After the amendment of 6A, Abdul Aziz (limitation starts from the date of damage),
Kamariyah (limitation starts from the date of discovery or when discovery ought to have
happen), and section 6A (limitation starts from the date of discovery for the period of 3
years, after the expiry of 6 years and is subject to a longstop of 15 years).
 Sec 6 (2)

 Sec 6 (3) : Judgement shall become unenforceable after the expiration of 12 years
from the date discovered. Lifespan of a judgment is 12 years.
United Malayan Banking Corporation Bhd v Ernest Cheong Yong Yin

Perwira Affin Bank Bhd v Lim Ah Hee

Action to recover land

 S9(1) : 12 years from the date on which the right of action accrued
 The subject matter is “recovery of land” any matter involves recovery of land, the
party intending to recover the said land has 12 years from the time the other party
refuses to return the land, to file a claim in court
Munah v Fatimah
The plaintiff took action for possession of land under a contract of sale 19 years old. She had
paid for the land but the title was not transferred to her. The court held that since she was
in occupation
Nasri Mesah
The period of limitation would begin to run from the time the plaintiff right was infringed or
there was a threat of infringement of the plaintiff right . As such, applying the principle of
Nasri Mesah case, it can be said that in so far as the law of contract and tort are concerned,
the cause of action would accrued when the breach takes place but when it comes to
recovery of land, the cause of action would accrue when the rights are infringed.
Action to recover land includes : (pg25)
1. Action for possession (purchaser paid the price and seller refuse to give possession)
2. Ownership (purchaser paid the price but the seller did not transfer the land)
3. Specific Performance (vendor sold the land but subsequently refused to proceed)
Peng Bee Sdn Bhd v Teoh Liang Teh
The respondent fail to deliver vacant possession of the land on June 7 1982. The appellant
then commenced action on 12 january 1995 against the respondent for specific
performance. The court held that time began to run from 7 June and consequently pursuant
to s 9, the appellant claim was therefore statue barred, unmaintable and had been rightly
struck out by the Senior Assistant registrar
Action to recover rent
 S20 LA : 6 years from the date on which the arrears became due
Action to recover money secured on charge
 When the charger defaults in payment, the bank would commence foreclosure
action-to sell your house
 Section 21(1) : 12 years from the date when the right to receive the money accrued
*Your loan sum from bank is 500,000 and bank auction ur property for 400,000 when u
default your payment. There is still 100,000 owing the bank.
Issue : Whether the limitation of period is 6 years following a breach of contract pursuant to
s691) or is it 12 years following s21(1)
Malaysia National Insurance Sdn Bhd v Tan Kong Min
The court held that since it is the principal sum that is sought to be recovered, s 2191) will
apply as long as the action is commenced within 12 years from the breach, the action is not
time barred. The limitation period is 12 years from the date when the right to receive the
money accrued or 12 years from the date on which the right to foreclose accured
respectively. S6 has no application for recovery of money secured by a charge on land.
 Section 21(2) : 12 years from the date on which the right to foreclose accrued. This
provision focus mainly on foreclosure action in respect of a charged personal
property which is an action in rem. The right to foreclose will commence when there
is default in repayment of the sum owing. The bank has 12 years from the date of
default to commence foreclosure proceedings
Fraudulent breach of trust
 Section 22(1) : There shall be no limitation period prescribe to a beneficiary who
brings an action under fraudulent breach of trust. This must be read together with
s29 (also 22(2))
Palaniappa Chettiar v Lakshamanan Chettiar
The court held that the issue of limitation wil not arise if it is in an action by a beneficiary to
recover trust property in section 22(1)(b)
Breach of trust other than fraudulent breach of trust / recovery of trust property
 Section 22(2) : ac action by benefiary to recover trust property or in respect of any
breach of trust shall not be bought after the expiration of 6 years from the date on
which the right of action accrued.
 Diff with (1) and (2) deals with fraudulent breach of trust whereas 92) deals with the
right of the beneficiary to recover trust property in respect of any breach of trust
  Dato wira a nordin mohd amin v rajoo selvappan : no conflict between this two. (1)
must be an elemet of fraudulent breach of trust or fraud while (2) the property must
be in possession of the trustee and confined only to a beneficiary action “to recover
trust property or any breach of trust not being an action which a period of limitation
is prescribed”.
Action in respect of any claim to the personal estate of deceased person or to any share or
interest
 Section 23 : 12 years from the date when the right to receive the share or interest
accrued
Set off and counterclaim
 Section 31 : This is a separate action and is deemed to have commenced on the same
date as the action in which the set off or counterclaim is pleaded
Special limitation period
 S6(4) : To recover penalty or forfeiture (1year)
 S8 : To set aside sale to recover money due to the government (1 year after sale)
Limitation period for claiming damages for negligence not involving personal injuries
(pg15)
 Section 6A : allow a party to file a claim for dqamages due to negligence caused by
other party which does not involve personal injuries
 The party filing the claim must do within 3 years of having knowledge of the said
negligence cause by other party
 Whether the plaintiff may apply for extension of time?
 Hiew Kon Far v Kwan Ngen wah : An extension of limitation period would only be
allowed if the law allows for such extension ( mostly cannot extend)
Extension of limitation period in case of disability (pg 19 yellow)
 Section 24 : 6 years from the date when such person ceases to be under disability
even though the limitation period has expired
 O76 r 1 : defines person under disabilities (minor and patient)
 Minor : When the action is time barred, however under s24 provides that the
limitation period is extended to 6 years after the minor become 18 years. So the
 minor should commenced his action after he reach the age of 18 years old within 6
years.
 Patient : Disability ceased when he gets certificate of sane, dies or a committee has
been appointed to look after his affairs. Will extend another 6 years after his
recovery.

Fresh accrual action (pg 26 Bac pg 20 yellow)

 Section 26 : resurrects the action after the limitation period has expired if there is an
acknowledgment or part payment of the debt.
 Section 27 : Lay doen the condition that every acknowledgment refer to s26 shall be
in writing and signed by the person making the acknowledgment
Postponement of limitation period
 Section 29 : allows for the postponement of limitation period if the action against
the defendant is based on fraud or mistake which was only discovered later.
- Where the action is based on fraud by the defendant or his agent
- Where the right of action is concealed by fraud
- Where the action is for relied from consequences of mistake
 S29 does not enable any action to be bought to recover or enforce any chage or set
aisde in the case of fraud has been purchase for valuable consideration and in the
case of mistake (pg 27 BAC)
 The limitation will begin to run upon the discovery of fraud or mistake
 Phillips Higgins v Harper : s29 does not apply if the purchaser is a bona fide
purchaser of the property has provided valuable consideration and is not a party or
does not know of the fraud or mistake
 Credit Corp (M) Bhd v Fong Tak Sin : Failure to add a party within the limitation
period is not within s29
 Sivaperan v Lim Yoke kong : The court held that there was fraud on the part of east
west insurance in concealing the fcats that it was the insurer of the motorcycle
ridden by the motorcyclist at the time of accident. The limitation period was
postponed. Hence, the plaintiff action is not time-barred
Public Authorities Protection Act 1948
 Section 2 of Public Authorities Protection Act 1948 : any action against any public
authority in discharging its public duty must commence within 36 months after the
act, neglect, default or damage complained of
 Sr Katherine lim KH v Ketua Pengarah Perkhidmatan Perubatan Malaysia : the
appellant an employee of the first respondent file an OS praying for a declaration
that the respondent decision purporting to dismiss her form her post as a nursing
sister was null and void. The court held that since the publication in the government
gazette was on 7 july 1988, Katherine should have brought her claim within 36
months of this date. The last date for the appellant to file her claim would be 7 july
1991. But she file on 7 Nov 1996 , thus she was time barred.
 Lee Hock Ning V Government of Malaysia : the plaintiff did some building works for
the gov and claim the balance sum after 3 years. In the ocurt, the limitation under s 2
was applied and the plaintiff claim was barred. The plaintiff appeal. The ocurt held
that non payment of monies was not a public duty under s2 as there was a breach of
contract. Under s6, the action was not time barred until after 6 years. The plaintiff
application was allowed.
 Phua Chin Chew v KM : the plaintiff wrote a resignation letter to gov on 29.6.77
under disability as he was mentally unsound. His service was terminated. His
disability ceased on 13.6.82 by appointment of committee. His brother sue the gov
on 2.6.83 alleging that the plaintiff purported resignation letter was null and void.
The defendant argue tha the action was time barred under s2. The court held that
since PAPA does not provide for cases of disability. S24 should be read into PAPA.
Thus the limitation of 36 months only begin after the disability cease. The plaintiff
action was not time-barred.
*pg 29 BAC pg 28 yellow
Dependency Claim
 A dependency claim is usually brought by the dependants of the deceased who had
died due to the negligence of the defendant
 Section 7(5) of Civil Law : any action for dependency claim must be brought within 3
years after the death of the person
  Kuan Hip Peng v Yap Yin : The court held that the action was time barred. The
limitation of 3 years under s7(5) is absolute and cannot be extended.
 Lee Lee Cheng v Seow Peng Kwang : the court held that it cannot enlarge the
limitation period. The court held that the limitation act does not invest the court
with any statutory or inherent discretionary power to dispense with its provision and
enlarge the limitation period.

Claim against estate of the deceased

 Section 8(3) Civil Law Act : any proceeding against the estate of deceased must be
brought not later than 6 months after his personal representative took out
representation.
 Must have grant of probate or letter of administration
 Lee lee Cheng v Seow Peng Kwang : The court held that s8(3) of CLA gives no power
to courts to extend the limitation of 6 months. Only legislature can do that
Defence of limitation period must be pleaded (pg 31 yellow pg 31 BAC)
 Section 4 LA : requires any person relying on the defence of limitation to plead it in
the statement of defence.
 It must be pleaded in the statement of defence, is that when a party files a
statement of defence, defending the claim against the plaintiff must expressly stated
in the statement that the defendant would be raising the issue that the plaintiff
action was time barred.
 Tengku Ismail tengku Sulaiman v Sia Cheng Soon : limitation period must be
pleaded.
 Ketteman v Hansel Properties : the court disallow the defendant to amend his
pleading to raise the defence of the limitation at that stage but raising at the close
of trial. Unfair to plaintiff
Burden of Proof
Ong Ah Bee v Hii Chung Siong Robin
The defence of limitation is raised the burden of proof is upon the party relying upon the
cause of action to prove it is brought within the period of limitation. That the action is not
time barred.
Locus Standi
 Any person commencing an action must have locus standi (an interest in the
matter)
 Atp bin Ali v Josephine Doris Nunis : Josephine first sued the chief minister of
malacca for breach of promise to marry her. Atip, the member of parliament took
action against Josephine claimi8ng that all members of UMNO in alai had been
defamed by Josephine action. The ocurt held that the action fail as he has no locus
standi. Only the person defamed has the locus standi
 Gov of Malaysia v Lim Kit Siang : The court held that the plaintiff statement of claim
did not disclose any cause of action against UEM because he has no relationship
with UEM as he was not a shareholder nor did not have any interest in the
management. The plaintiff also have no locus standi as whether as a polictician, a
highway user or taxpayer. The action was struck out

Technical Objections Based on Non Compliance with Rules

 O1 A

 O2

Duli Yang Amat Mulia Tunku Ibrahim Ismail Ibni Sultan Iskandar Al-Haj Tunku Mahkota
Johor v Datuk Captain Hamzah Mohd Noor & Anor Appeal (2009) 4 CLJ 329

The non compliance shall be treated as an irregularity and shall not nullify proceeding.
However under O2R3 the court shall not allow any preliminary objection under the ground
of non compliance unless court is under the opinion that such non compliance carries
miscarriage of justice that cannot be cured under amendment