Microfoft Word - DOCTRINE OF LACHES Conference-Hilal.doc Lof 13 DOCTRINE OF LACHES AND I'S APPLICATION IN MALAYSIA By Nuarrual Hilal bin Md. Dahlan Universiti Utara Malaysia Abstract In action founded on contract, limitation period plays an important part before one cotmences an action against the defaulting parties. The Jinitation period is calculated from the date of the occurrence of the cause of action viz the date when the plaintiff caused the threat against the defendant to comply with the terms and conditions stiputated in the contract entered into by them upon the failure ou the part of the defendant 10 comply with the terms and conditions as agreed. In Malaysia the Jimitation period permitted for an action founded on a contract, pursuant 10 section 6 of the Limitation Act 1953 (‘the Act’), is 6 vears. However, by virtue of section 32 of the Act, even though the limitation period still snbsisis, when there is laches on part of the plaintiff to comnence his action, Is action will be defeated. Laches means, wureasonable delay which is detrimental to the rights of the defendants or the third parties Based on this doctrine, should the remedy as prayed by the plaintiff is allowed in spite of ocenrrence of laches on his part, it would otherwise, with due respect and pity to the grievance and losses suffered by the plaintiff on the defanlt of the defendant to honour his promise as agreed thereof, be unjust to the defendats or the third parties. The positions of the defendants or the third parties must have been altered, though av the outset, the defendam was the one to be blemed for the breaches of contract he committed against the plaintiff and on occurrence of this altered positions and circumstances, the remedy sought by the plaintiff is no more appropriate and just, according to the court. However, courts in Malaysia seems to have adopted different approaches in dealing with this doctrine, albeit this is statutory rights as bestowed pursuant 10 section 32 of the Act. Based on the author’s scrutiny there is precarious an inconsistency ou the application of this doctrine in the Malaysian courts This article will examine cases which dealt with the application the doctrine of laches in coutract. It is hoped through this Mumination, this, paper will be beneficial and will behove 1s to act with circumspection. 1. Introduction In any remedial action of a contract, limitation period plays an important criteria before ‘one commences an action against the defaulting party of the contract.' The provision of limitation period to enforce a contract, is found in section 6° of the Limitation Act 1953 * Section 6(1)() ofthe Limitation Act 1953, * However, for specific performance of contract of sae of land conta n section 9 ofthe said Act. file:/E:!PDEMR pall 9/29/2013 1:29 AMMicrofoft Word - DOCTRINE OF LACHES Conference-Hilal.doe 20f 13 (hereinafter referred to as ‘the said Act), By virtue of this provision, one has to commence his semedial action either in form of specific perfomance or elai damages or other relief. within 6 years from the date of the accrual of cause of action. failing which his action is deemed to fail and strike out by the court Apart from this, at common law and as well as in the statutory provisions in the ysian Limitation Act 1953 (Act 254)', there is another equitable doctrine that could affect the plaintift’s action. This doctrine is called doctrine of taches. In short, this doctrine states that if the plaintiff commences an action with unreasonable delay (laches) after the accrual of the cause of action, his action will fail 2. Objective The purpose of this paper is to study and observe the importance of this doctrine in 4 entered into and to what extent does this doctrine actions to enforce rights of any contr: a entrenched in the said act, being applied by courts in Malaysia, 3. The Meaning of Laches According to Spry. what is understood with ‘laches’ is that, laches occurs where there is unreasonable delay on the part of the plainti(f to institute proceeding against the defendaut. and on such a delay ot during the couse of the delay, the position of the defendant has been altered or a third party has taken any tight through the defendant, a right which at the outset belonged to plaintiff. which resulted that the action taken by the plaintiff is no more appropriate and just and it would otherwise if granted by the court be unjust and would prejudice the defendant or the third party." However, according to Spry. the doctrine of laches though in the preliminary would be a good defence to the defendant, yet it also would not carry any weight for him if the defendant had affirmed the material contract after the prejudice. it would not be wnjust to grant specific performance’ on ground of laches, unless there is mistepresentation o1 other inequitable factors on part of the plaintif® which would be otherwise unjust for the court to grant the plaintiff the relief he sought for Based on these definitions and statements, what is clear to us is that. the that the * in particular section 32 of the said Act 4+ Spry ICF. The Principles of Equitable Remedies, Specific Performanee, Inymettons, Rectification and Equntable Danages, Four Edition. Avstalia: The Law Book Company Limited, 1990. p.232, ° Here Spry gave an example of setion of specific performance. Itis submitted it could also include , (GRTERESTSTTSRESTS il aaDISN RN NMGARPIEAMETENER, even thous the for the defendant (or the plainti ‘This mean that, It is hoped that the illumination of the doctrine of laches and its defect in application in Malaysia, as shown in this siting could be beneficial to us and this will behiove us to act with circumspection ast LR &PC > 99) 3 MLI2S2, * However in Bank Bunputra Malaysia Berhad v Fu Lee Developmen Sh. Bhd. (Rukawal bt Jule @ fokevas as Inervener) (1992) 1 AME 43, which involved aston for recovery of money secured by a hore on land sist be made within twelflh (12) years frous the date hen the nt fo secenve the money acerved, pursuant 10 section 21(1) of the Limilation Act 1983 (Act 254) whete in it was held that the xin of laces has uo application to eases to which Oe sates of lnitation apply either expressly or by amalogy. However this is easy fo reconcile because nevhing in the Linstaion Act which qustifiod the ‘pplication of section 21. This is dffereut with section 6 where it is alified by section 32 laches) and ction 22 (test property) In Cheat Kim Tong & nor ¥ Taro Kiar (1989) 3 M1252. which involved ‘tion of texans TH Was eld in that ease hat He defence of laches would ot have applied in ay event for the plaintiffs should be entitled to the full statutory perio before their claim became wnenforceable. The jin teferod to Re Pauley’ Settlement Tinst, Younghisbond v Cowes & Co. (1962) 1 WLR 86 and Tar Tain Kit & Anos ¥ Pritam Singh Bron (1987) 1 MILI 276.1 is sbmitted that, this decision is wone because by virte of section 6(6) ofthe Limitation Act. the application of limitation period 36 subject to section 82 laches), This means that, even thouah the linitaion period is stil absisting. if thee i aces the plains action would fil. See ls the auors opinion ad submission shat this in contary to section 3 (a) ofthe Civil Law Act 1986 and itis meonsttutional as at footnote xo. 36. 12 file:/IE:PDFAR pat 9/29/2013 1:29 AM