Doctrine of Limitation

A defendant may assert simply that the plaintiff's claim has been filed "out of
time." This is the technical defence of the doctrine of Limitation.
Rational

 In Credit Co v Fong Tak Sin, it was held that the doctrine of limitation is
said to be based on two broad considerations.
 Firstly, there is a presumption that a right that is not exercised for a long
time is non-existent.
 The other consideration is that it is necessary that matters of right in
general should not be left too long in a state of uncertainty or doubt or
suspense.
 The primary object of discouraging plaintiffs from sleeping on their
actions, and more importantly, to have a definite end to litigation
 This was reiterated recently in Tengku Ismail bin Tengku Sulaiman v. Sia
Cheng Soon
Defence of Limitation must be pleaded (s.4 Limitation Act 1953 and O.18 r.8
RC 2012).

 A defendant who fails to plead a limitation defence, and allows a case to

be fought on its merits, is not to be permitted to fall back upon a plea of
limitation as a second line of defence at the conclusion of the trial
(TENGKU ISMAIL BIN TENGKU SULAIMAN v SIA CHENG SOON).

 In TASJA SDN BHD v GOLDEN APPROACH , the court held that “In an
application for striking out under O. 18 r. 19(1) RHC on the ground of
limitation to bring an action, If the case is based on s. 2(a) of Public
Authority Protection Act (PAPA) 1948 or s. 7(5) of the Civil Law Act
(CLA) 1956, where the period of limitation is absolute then in a clear and
obivious case such application should be granted without having to
plead such a defence.

 However, in a situation where limitation is not absolute, like in a case

under the Limitation Act, such application for striking out should not be
 allowed until and unless limitation is pleaded as required under s. 4
Limitation Act (LA) 1953.

A defendant who is faced with a matter which has been filed in Court after the
expiration of the prescribed period fixed have the following options:

 After entry of appearance, file the defence, pleading limitation

expressly: 0.18 r.8(1) RC 2012; Limitation Act 1953, s.4.
 In Perwira Affin Bank Bhd v Ahmad Bin Abdul Rahman, Abdul Aziz B.
Mohamad J followed Ronnex Properties Ltd and held that where
limitation has expired, D can either:
 plead the defence of limitation and apply for a trial of a preliminary
issue; or
 apply to strike out P’s claim on the ground that it is frivolous,vexatious,
and an abuse of the process of the court under O18 rule 19(1)(b) and (d)
RHC 1980.

 However, D cannot apply to strike out P’s action on the ground that
there is no cause of action. O18 rule 19(1)(a) RHC 1980

The general period of limitation.

Contract

 The general limitation period for a cause of action concerning a contract

case is 6 years following Limitation Act, s. 6(1)(a). The date the cause of
action accrued is the date of the breach of contract.
Tort

 The general limitation period for a cause of action concerning a tort case
is 6 years following Limitation Act 1953, s. 6(1)(a) . The date the cause of
action accrued is the date of the commission of the tort.
 In latent defects in construction cases, Ara Bangsar Development, the
judge held that "discoverability rule" should be adopted.
  Latent defects are defects that are not immediately detectable upon
inspection and such defects are sometimes only discovered after the six-
year limitation period has passed.
 s.6A of Limitation Act Amendment Act 2018 extend the basic 6 years of
the tortious claim for negligence not involving person injury. The
extension time frame is three years and have a long-stop of 15 years.
The Act potentially redresses the perceived unfairness of AmBank v
Abdul Aziz
 The starting date is the earliest date on which the plaintiff had both the
knowledge of the relevant damage and have a right to bring such action
s. 6A(4)(a).
 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 s.6A(4)(b).
 Example, A move in in 2000, actual damage occur in 2002, discover
damage in 2004. Following the 2018 Act 2007 should be the expiration
of the three years provided, however, the act does not allow to truncate
the 6 years basic period (that is 2008). If the period of three years
expires later (2009, 2010,…) than the period prescribed in s.6(1), no
action shall be brought.
 No action shall be brough after the expiration of 15 years (2015) from
the date on which the cause of action accrued.

 Since the case concern personal injury, the 2018 act will not be
applicable. Hence, following In Credit Corp v Fong Tak Sin The court
held that time begins to run from the date of the damage although the
plaintiff is ignorant of the defendant’s identity.

 S.29 of the 2018 Act also provides that s.6A will not apply where the
cause of action is concealed by fraud.
Trust

 Generally, a 6 year period applies (Limitation Act, s22(2)).

  However, there is no limitation at all in trust cases which come within
the scope of Limitation Act, s.22(1)
 if fraud, breach of trust, and the trustee is the party to the fraud (privy
to the fraud), then no limitation period under s.22 (1)(a) of Limitation
Act 1953, or
 seeking to recover trust property and proceeds from trustee (s.22)(1)(b)
(Palaniappa v Lakshamanan).

Land

 Generally , a 12 years period applies (s9.(1) Limitation Act (LA) 1953)

 Nasri v Mesah- the right of Action accrues from the earliest time at
which an action could be brought, for example first refusal to transfer
but not the unequivocal threat of P’s right.

Arrears of rental:

 Limitation Act, s.20 provides that there is different period of time limit
for each monthly rent that fell due.
Whether is it a contract (S.6(1) LA 1953) or land case (s.9 LA 1953) depends
on what the plaintiff is claiming.

 If Plaintiff is claiming for the recovery of land, then it is a land case

 If Plaintiff is claiming for the return of damages, then it is a contract case
and limitation period apples accordingly.

An extension of time is automatically available for persons under disability

by virtue of s.24 of the LA 1953.

 The are two recognised categories of such persons: (i) Infants (ii) Persons
of unsound mind: LA 1953, s.2(2). In this case, A is a …
 Time does not begin to run until the disability" disappears" or they die;
computation of the relevant time-frame starts on the first of these two
possible events taking place.
 For a minor, when one reaches the age of majority (18years old) or dies
  For a person of unsound mind, when he gets a certificate of sanity; he
dies ; or a committee had been appointed to look after his affairs
 For land claims, there is some overriding protection to a potential
defendant against perpetual risk of liability by the inclusion of what may
be described as a "long-stop" limitation period of 30 years: s. 24(4)(c)LA
1953.
 In other words, the long-stop can bar a claim even before the disability
has ceased.
Fresh accrual of action on acknowledgment (s.26 LA 1953)

 (The Form of Acknowledgment: LA 1953, s. 27(1): (i) writing (ii) signed.

 Verbal acknowledgment will not be effective.
 In Yam Kong Seng v Yee Weng Kai the federal court held that
acknowledgment by SMS held valid and enforceable under Electronic
Commerce Act 2006.
 For case of land, there is fresh accrual of right to action where the
Person in Possession acknowledges the Plaintiff's title.
 For cases of enforcement of charge, there is fresh accrual of right of
action when there is payment toward the debt made by charge. The
date of last payment is relevant.
 For right of action to recover any debt other liquidated pecuniary claim,
TENAGA NASIONAL BHD v PEARL ISLAND RESORT, Federal Court held
that the phrase ‘person liable or accountable therefor’ in section 26(2)of
the Act covers both the principal debtor and the guarantor in respect of
thedebt due and owing by the principal debtor.
 The payment made by the bank to the appellant pursuant to the call on
the bank guarantee amounted to part payment under section 26(2) of
the Act, with the result that the right of action to recover the debt shall
deemed to have accrued on and not before the date of the last
payment.” per Abu Samah Nordin FCJ

S.29 ROC 2012 prescribes three situations in which the time limits could be
postponed.
  Fraud: " ... the action is based upon the fraud of the defendant or his
agent ... "
 Fraudulent Concealment: " ... the right of action is concealed by the
fraud ... " of the defendant or his agent
 Mistake: ". . the action is for relief from the consequences of a
mistake ... "
 Fraud has been flexibly and generously construed
 Lim Yoke Kong v. Sivapiran Sabapathy If the right of action is concealed
by fraud, the standard of proof required is lower and only an
unconscionable conduct suffices.
 it was sufficient to establish that the defendant had intentionally
committed an act or omission which involved a breach of duty in
circumstances in which it was unlikely to be discovered for some time,
even though the defendant had no knowledge or intention of
concealment (Cave v Robinson Jarvis).
 For s.29(c) to be triggered, mistake must be an essential ingredient of
the cause of action, see Credit Corporation (M} Bhd v Fon. Tak Sin.
A is one of the public Authorities

 Agents of the Government may avail themselves of the statutory regime

under s.2 Public Authorities Protection Act (PAPA) 1948
 A truncated period of 36 months is given for claims against such persons
or bodies.
 This protection is only available for "acts done in pursuance or execution
of" any written law/ public duty/ authority.
 In Lee Hock Ning v Government of Malaysia, The Federal Court held
that non-payment of monies was not a public duty under s.2 PAPA 1948
as there was a breach of contract. Under s.6(1) LA 1953, the action was
not time barred until after 6 years. The appeal of the plaintiff was
allowed.
 In Phua Chin Chew & Ors, The court held that since PAPA 1948 does not
provide for cases of disability, s.24 LA 1953 should be read into PAPA
1948. Thus, the limitation of 36 months only begins after the disability
ceases. Hence, in this case, the plaintiff’s action was not time-barred.
s.8(3) of Civil Law Act (CLA) 1956 provides special provision on the survival of
actions on death and limitation periods for suing personal representative of
deceased person.

 s.8(3) CLA 1956 provides that an action in tort against the estate of the
deceased defendant can only be maintained if proceedings against the
deceased defendant: (a) were pending at the date of his death; or (b) are
taken not later than 6 months after his personal representative took out
letters of representation.
 In Lee Lee Cheng v Seow Peng Kwang, The court held that s.8(3) CLA
1956 gives no power to courts to extend the limitation of 6 months. Only
legislature can do that
 The normal limitation of 6 years for tort action under s.6(1) LA 1953 is
not applicable, s.8(3) CLA 1956 overrides s.6(1)LA 1953.
Dependency claim is a claim for damages for loss of support, funeral
expenses and bereavement

 s.7(5) Civil Law Act (CLA) 1956 provides that any action for dependency
claim must be brought within 3 years after the death of the person.
 Parent include grandparent, child also include grandchild, category of
the person who can claim damage for loss of dependency also includes
person with disability under the care of deceased following The Civil law
(Amendment) Act 2019.
 The terms of s. 7(5) are absolute and contain no exceptions. There is no
question of infancy or disability or anything of the sort or of
acknowledgement (Kuan Hip Peng v Yap Yin).