Tetuan Kamarudin & Partners v Chew Swee Yoke (an advocate

& solicitor practicing under the name of SY Chew & Co) and
[2021] 1 MLJ other appeals (Nordin Hassan JCA) 515

A Tetuan Kamarudin & Partners v Chew Swee Yoke (an advocate

and solicitor practicing under the name of SY Chew & Co) and
other appeals

B
COURT OF APPEAL (PUTRAJAYA) — CIVIL APPEAL
NOS W-02(A)-1500–08 OF 2019, W-02(A)-1501–08 OF 2019 AND
W-02(A)-1502–08 OF 2019
KAMARDIN HASHIM, CHE MOHD RUZIMA AND NORDIN
C HASSAN JJCA
8 DECEMBER 2020

Limitation — Accrual of cause of action — When cause of action accrued

D — Lawyer obtained High Court order allowing her to tax her bill of costs for work
done for client — Lawyer filed bill of costs for taxation six years and four months
after date of the High Court order — Whether application to tax the bill of costs
was time-barred under s 6(1)(a) of the Limitation Act 1953 (‘the LA’) — Whether
application to tax the bill was an action based on a contractual relationship between
E solicitor and client and therefore six-year limitation period specified in s 6(1)(a) of
the LA prevailed — Whether applicable limitation period was not 12 years under
s 6(3) of the LA which provided for action on a judgment — Whether limitation
period to tax the bills commenced from date cause of action accrued to solicitor,
namely, on date High Court granted her order to tax her costs
F
The appellant legal firm engaged the respondent as senior counsel to act for the
appellant’s client in a matrimonial proceeding. The appellant were the
instructing solicitors to the respondent. Following the conclusion of her
appointment, the respondent sent the appellant her bill of costs for work done
G at the High Court (‘HC’), Court of Appeal (‘COA’) and Federal Court (‘FC’)
levels. Not receiving any response from the appellant, the respondent applied
to the High Court under s 126(1) of the Legal Profession Act 1976 for an order
allowing her to tax her bill of costs for work done at the aforesaid three levels of
court. On 22 March 2010, the High Court granted the respondent the order
H for taxation on a solicitor-and-client basis. The appellant appealed against the
order but later withdrew the appeal. On 21 March 2013, the respondent filed
her bill of costs at the COA for taxation but the appellant contended that the
procedure was wrong and filed notices of motion to challenge the same. The
COA dismissed the notices of motion and ordered that the bill of costs for the
I proceedings undertaken at the HC, COA and FC levels should be taxed in the
High Court and that the High Court’s order for taxation must be adhered to.
On 25 July 2016, the respondent filed her three bills of costs for taxation in the
High Court. At the hearing before the deputy registrar, the appellant objected
that the application to tax the bills of costs was time-barred under s 6(1)(a) of
516 Malayan Law Journal [2021] 1 MLJ

the Limitation Act 1953 (‘the LA’) as more than six years had elapsed since the A
date of the High Court’s order for taxation. As the deputy registrar failed to
address the limitation issue and proceeded with the taxation, the appellant
raised the issue again on appeal before the judge-in-chambers. The judge,
however, dismissed the objection holding that the respondent’s act of filing her
bill of costs at the COA on 21 March 2013 was a ‘step taken in the B
commencement of the taxation proceedings’ within the six-year limitation
period. The instant appeals against the High Court’s decision turned solely on
the question of limitation. The respondent contended that her application to
tax the bills was within time as s 6(3) of the LA provided that an action on a
C
judgment had a limitation period of 12 years from the date on which the
judgment became enforceable.

Held, unanimously allowing the appeal and setting aside the High Court’s
decision:
D
(1) The respondent had a contractual solicitor-client relationship with the
appellant under which the respondent agreed to provide legal services in
consideration of the fees to be paid to her by the appellant (see
paras 13–14).
E
(2) Section 2 of the LA defined ‘action’ as including a suit or any other
proceeding in a court of law. The respondent’s application to tax her bill
of costs was a proceeding in a court of law. As such, it was an action
founded on a contract envisaged under s 6(1)(a) of the LA. Therefore, the
respondent’s application for taxation should have been made within six
F
years from the date the cause of action accrued. The cause of action
accrued on the date the High Court granted the order for taxation which
was on 22 March 2010 and the time period expired on 21 March 2016.
The respondent’s application to tax the three bills of costs was filed only
on 25 July 2016, four months after the period expired. The respondent’s
G
contention that the applicable limitation period was 12 years under s 6(3)
of the LA had no merit (see paras 15 & 17).
(3) The High Court erred in holding that the respondent’s act of filing her
bill of costs at the Court of Appeal on 21 March 2013 brought the matter
within the limitation period as it was a ‘first step taken to commence the H
taxation proceeding’. The law provided that the limitation period for
filing an application for bill of costs to be taxed was six years and it ran
from the date the cause of action accrued. The date when the respondent
filed her bill of costs at the Court of Appeal for taxation was not the date
when the cause of action accrued (see paras 18 & 21). I

[Bahasa Malaysia summary

Firma guaman perayu telah mengambil responden sebagai peguamcara kanan
untuk bertindak bagi pihak anak guam perayu dalam satu prosiding hal-ehwal
 Tetuan Kamarudin & Partners v Chew Swee Yoke (an advocate
& solicitor practicing under the name of SY Chew & Co) and
[2021] 1 MLJ other appeals (Nordin Hassan JCA) 517

A suami isteri. Perayu merupakan peguamcara yang memberikan arahan kepada

responden. Selepas tamatnya pelantikannya, responden telah menghantar
kepada perayu bil kos untuk kerja yang dilakukan di Mahkamah Tinggi (MT),
Mahkamah Rayuan (MR) dan Mahkamah Persekutuan (MP). Selepas tidak
menerima apa-apa maklumbalas daripada perayu, responden telah memohon
B kepada MT dibawah s 126(1) Akta Profesion Undang-Undang untuk satu
perintah untuk membenarkannya untuk menaksir bil kosnya untuk kerja yang
dilakukan di tiga peringkat mahkamah yang dinyatakan. Pada 22 Mac 2010,
MT membenarkan permohonan perintah untuk taksiran atas dasar peguam
dan anak guam. Perayu telah merayu terhadap perintah tersebut tetapi menarik
C balik rayuan tersebut. Pada 21 Mac 2013, responden telah memfailkan bil
kosnya ke Mahkamah Rayuan untuk ditaksirkan akan tetapi perayu
mengatakan prosedur tersebut adalah salah dan memfailkan notis usul untuk
mencabar perkara yang sama. MR telah membatalkan notis usul tersebut dan
memerintahkan agar bil kos untuk prosiding yang dijalankan di MT, MR dan
D MP perlu ditaksirkan di MT dan perintah penaksiran MT harus dipatuhi.
Pada 25 Julai 2016, responden telah memfailkan tiga bil kosnya untuk
penaksiran di MT. Di pendengaran dihadapan timbalan pendaftar, perayu
membantah kepada permohonan untuk menaksir bil kos kerana ianya
dihalang oleh had masa dibawah s 6(1)(a) Akta Had Masa 1953 (‘Akta
E tersebut’) kerana lebih daripada enam tahun telah luput selepas tarikh perintah
MT untuk penaksiran. Oleh kerana timbalan pendaftar gagal untuk menjawab
isu berkenaan dengan had masa dan meneruskan dengan penaksiran, perayu
telah menimbulkan isu tersebut sekali lagi dihadapan hakim dalam kamar.
Namun, hakim tersebut menolak bantahan tersebut dan memutuskan bahawa
F tindakan responden untuk memfailkan bil kosnya di MR pada 21 Mac 2013
merupakan satu langkah yang diambl untuk memulakan prosiding penaksiran
didalam tempoh had masa enam tahun. Rayuan ini adalah terhadap keputusan
MT berkenaan dengan persoalan had masa. Responden menegaskan bahwa
permohonannya untuk menaksir bil adalah dalam tempoh had masa
G memandangkan s 6(3) Akta tersebut memperuntukkan bahawa tindakan
berkaitan dengan penghakiman mempunyai tempoh had masa 12 tahun
daripada tarikh penghakiman tersebut boleh dikuatkuasakan.

Diputuskan, sebulat suara membenarkan rayuan dan mengetepikan

H keputusan Mahkamah Tinggi:
(1) Responden mempunyai hubungan kontraktual peguam-anak guam
dengan perayu di mana responden bersetuju untuk memberikan
khidmat guaman dengan pampasan yuran guaman yang harus dibayar
I kepadanya oleh perayu (lihat perenggan 13–14).
(2) Seksyen 2 Akta tersebut menafsirkan tindakan sebagai satu guaman atau
apa-apa prosiding lain dalam satu mahkamah undang-undang.
Permohonan responden untuk menaksir bilnya adalah satu prosiding
dihadapan mahkamah undang-undang. Oleh itu, ianya adalah satu
518 Malayan Law Journal [2021] 1 MLJ

tindakan berasaskan satu kontrak sepertimana yang dimaksudkan dalam A

s 6(1)(a) Akta tersebut. Oleh itu, tindakan responden untuk penaksiran
perlu dibuat dalam tempoh enam tahun daripada tarikh kausa tindakan
bermula. Kausa tindakan bermula dari tarikh MT membenarkan
perintah penaksiran yang mana adalah pada 22 Mac 2010 dan tempoh
masa tersebut tamat pada 21 Mac 2016, permohonan responden untuk B
menaksir tiga bil tersebut hanya difailkan pada 25 Julai 2016, empat
bulan selepas tempoh luput. Hujahan responden bahawa tempoh had
masa yang terpakai adalah 12 tahun dibawah s 6(3) Akta tersebut tiada
merit (lihat perenggan 15 & 17).
C
(3) Mahkamah Tinggi terkhilaf dalam memutuskan bahawa tindakan
responden untuk memfailkan bilnya di MR pada 21 Mac 2013 telah
membawa perkara tersebut didalam tempoh had masa kerana ianya
merupakan satu langkah pertama untuk memulakan prosiding
penaksiran. Undang-undang memperuntukkan bahawa tempoh had D
masa untuk memfailkan permohonan untuk penaksiran bil adalah enam
tahun dan ianya bermula daripada tarikh kausa tindakan bermula. Tarikh
yang mana responden memfailkan bilnya di Mahkamah Rayuan untuk
penaksiran bukanlah tarikh apabila kausa tindakan bermula (lihat
perenggan 18 & 21).] E

Cases referred to
Credit Corporation (M) Bhd v Fong Tak Sin [1991] 1 MLJ 409; [1991] 1 CLJ
69, SC (refd)
Dr Koay Cheng Boon v Majlis Perubatan Malaysia [2012] 3 MLJ 173; [2012] F
4 CLJ 445, FC (refd)
Guannex Leasing Sdn Bhd v Sin Fatt Brothers Construction & Ors [2002] 6 CLJ
433, HC (refd)
Gurbachan Singh s/o Bagawan Singh & Ors v Vellasamy s/o Pennusamy & Ors (on
their behalf and for the 213 sub-purchasers of plots of land known as PN35553, G
Lot 9108, Mukim Hutan Melintang, Hilir Perak) and other appeals [2015] 1
MLJ 773; [2015] 1 CLJ 719, FC (refd)
Machinchang Skyways Sdn Bhd & Anor v Lembaga Pembangunan Langkawi &
Anor and another appeal [2015] 2 MLJ 373; [2015] 3 CLJ 775, CA (folld)
Punithavathi Ponniah v Ganendra Torquil Ponnusamy Ganendra & Anor H
[2014] 8 CLJ 735, CA (refd)
Syarikat Hing Lee Fishing (Sabah) Sdn Bhd v Lin Yun Thai & Ors [2019] 4 MLJ
511; [2019] 1 LNS 289, CA (refd)
United Malayan Banking Corp Bhd v PTL Marketing Services Sdn Bhd &
Ors [2004] 5 MLJ 337; [2004] 1 MLRH 10, HC (refd) I

Legislation referred to
Legal Profession Act 1976 s 126(1)
Limitation Act 1953 ss 2, 6, 6(1), (1)(a), 6(3)
 Tetuan Kamarudin & Partners v Chew Swee Yoke (an advocate
& solicitor practicing under the name of SY Chew & Co) and
[2021] 1 MLJ other appeals (Nordin Hassan JCA) 519

A Appeal from: Civil Suit Nos S8–33–837 of 2000, S8–33–1588 of 2005 and
S8–33–954 of 2006 (High Court, Kuala Lumpur)
Walter Pereira (Izyan Darlina bt Balia Yusof and Rameswaran with him)
(Kamarudin & Partners) for the appellant.
B Chew Swee Yoke (PS Rajan & Co) for the respondent.

Nordin Hassan JCA:

INTRODUCTION
C
[1] There are three appeals filed by the appellant against the decisions of the
High Court in relation to three bills of costs which were taxed by the deputy
registrar. The appeals are Civil Appeals Nos WA-02(A)-1500–08 of 2019,
WA-02(A)-1501–08 of 2019 and WA-02(A)-1502–08 of 2019. The said bills
D of costs pertain to the following matters:
(a) Divorce Petition No S8–33–954 of 2006 (‘Petition 954’)
(b) Judicial Separation Petition No S8–33–837 of 2000 (‘Petition 837’);
and
E
(c) Divorce Petition No 33–1588 of 2005 (‘Petition 1588’)

THE SALIENT FACTS

F [2] The material facts in the present appeals are the following:
(a) on 3 October 2000, the respondent was engaged as senior counsel for
the appellant’s client in the above mentioned matrimonial proceedings
and the appellant were the instructing solicitors to the respondent. The
appellant’s client was an Australian woman named Chantella Honeybee
G Sargon and her husband is a Malaysian named Ananda Dharmalingam.
They have two children out of the marriage;
(b) the respondent’s appointment as senior counsel for the appellant’s client
ceased in September 2007 after the High Court had granted custody of
H the children to the appellant’s client;
(c) thereafter, the respondent sent her gross sum bill dated 8 October 2007
in the sum of RM550,165.36 to the appellant. As the respondent had
not received any respond or payment from the appellant, the respondent
then filed an application to tax the respondent’s bills of costs for work
I done in the High Court, the Court of Appeal and the Federal Court
under sub-s 126(1) of the Legal Profession Act 1976. The application
was granted by the High Court and an order for taxation was issued on
22 March 2010. The order by High Court Kuala Lumpur among others,
states:
520 Malayan Law Journal [2021] 1 MLJ

… ADALAH DIPERINTAHKAN Pempetisyen dibenarkan mencukaikan A

kosnya terhadap kesemua Responden-Responden tersebut di atas seperti di
antara peguamcara dan pelanggan di dalam pelbagai prosiding-prosiding di
dalam Mahkamah Tinggi, Mahkamah Rayuan dan Mahkamah Persekutuan
tersebut di atas dalam suatu jumlah yang melebihi, jika perlu, jumlah yang
dinyatakan di dalam Bil Kasar bertarikh 8 haribulan Oktober 2007 DAN B
AKHIRNYA ADALAH DIPERINTAHKAN kos permohonan ini dicukaikan
dan dibayar oleh responden-responden kepada Pempetisyen.

(d) the appellant then filed an appeal against the order of the High Court
but on 31 May 2012 the appeal was withdrawn. Next, on 21 March
C
2013 the respondent filed the bills of costs at the Court of Appeal but the
matter was brought before the deputy registrar where the appellant
raised several preliminary objections which were, whether the High
Court can direct the Court of Appeal to have the bills of costs taxed in
the Court of Appeal, whether the Court of Appeal is bound by the High
Court order, whether the High Court order is valid in law and whether D
the High Court has the jurisdiction to make the said order or leave of the
Court of Appeal should be obtained;
(e) in this regard, the deputy registrar ruled that the preliminary objections
should be decided by the Court of Appeal which resulted the appellant E
filing notices of motion on 13 November 2013 seeking the Court of
Appeal determination on the issue whether a High Court can order a
higher court to tax costs of an appeal proceeded at the Court of Appeal
or whether leave to tax costs ought to be applied for and granted by the
court at which the appeal was proceeded with ie the Court of Appeal; F
(f) further, on 10 December 2013, the notices of motion were dismissed by
the Court of Appeal and made an order that the High Court order dated
22 March 2010 must be adhered to and the respondent’s fees for the
proceedings in High Court, Court of Appeal and the Federal Court are
to be taxed in the High Court. The order of the Court of Appeal among G
others states:
(b) Perintah bertarikh 22 Mac 2010 dalam Mahkamah Tinggi Petisyen
No R4 (R2) - 17–9–2008 mestilah dipatuhi dan fi peguam yang perlu
dibayar oleh Taxing Party mengenai pelbagai prosiding-prosiding di dalam H
Mahkamah Tinggi, Mahkamah Rayuan dan Mahkamah Persekutuan perlu
dicukaikan di Mahkamah Tinggi.
(g) eventually, on 25 July 2016, the respondent filed the three bills of costs
for taxation in the High Court and the matter was heard before the
deputy registrar. At the outset of the hearing, the appellant raised a I
preliminary objection that the three bills of costs which were filed for
taxation on 25 July 2016 were time-barred under the Limitation Act
1953 but no full submissions were made before the deputy registrar. On
6 January 2017, the deputy registrar allowed the total costs of
 Tetuan Kamarudin & Partners v Chew Swee Yoke (an advocate
& solicitor practicing under the name of SY Chew & Co) and
[2021] 1 MLJ other appeals (Nordin Hassan JCA) 521

A RM150,000 for the respondent in handling all the three matrimonial

proceedings for the appellant’s client. However, the issue of limitation
time period was not canvassed in the deputy registrar grounds of
judgment. Dissatisfied with the decision of the deputy registrar, the
appellant filed an appeal to the High Court in Kuala Lumpur.
B
FINDING OF THE HIGH COURT

[3] At the High Court, the appellant raised the same preliminary objection
that the bills of costs filed for taxation by the respondent were time-barred as
C they were filed after six years period which is in contravention of s 6(1) of the
Limitation Act 1953.

[4] However, the appellant’s preliminary objection was dismissed by the

D judicial commissioner who was of the view that by filing the bills of costs at the
Court of Appeal on 21 March 2013, the respondent had taken the first step to
commence the taxation proceeding and it was done within the limitation
period. At para 41 of the judicial commissioner’s grounds of judgment, she said
this:
E In my view, by filing the Bills of Costs at the COA on 21.3.2013, Ms Chew had taken
the first step to commence the taxation proceeding and this was done within the
limitation period. The fact that Ms Chew did not filed the Bills of Costs at the HC
and the Federal Court at or around the same time is immaterial as she had until
21.3.2016 to do so, on the basis of her understanding of the said HC Order at that
F point of time. With the said COA Orders, the procedure as to the filing of the Bills
of Costs was made clear and Ms Chew subsequent filing of the Bills of Costs at the
HC on 25.7.2016 cannot be said to be time-barred. (Emphasis added.)

[5] Thereafter, the High Court allowed a total cost for the respondent with
G regard to the three matrimonial proceedings in the sum of RM254,000.

THE APPEAL

[6] The core issue in the present appeals is relatively straight forward that is
H whether the respondent’s application at the High Court, filed on 25 July 2016,
for the three bills of costs to be taxed were time-barred pursuant to s 6(1)(a) of
the Limitation Act 1953 (‘the Act’).

[7] As this main issue will determine the outcome of the appeals, both
I parties in the present case agreed to submit only on this issue of limitation
period for the determination of this court.

[8] In essence, the appellant contended that the respondent’s application

for the three bills of costs to be taxed were time-barred as they were filed six
522 Malayan Law Journal [2021] 1 MLJ

years and four months from the date the order for taxation was granted by the A
High Court which was on 22 March 2010. This, the appellant submitted, was
in contravention of s 6(1)(a) of the Act which provides for such application to
be filed within the period of six years. The appellant further submitted that the
filing of the bills of costs by the respondent at the Court of Appeal does not
stops the limitation period from running. B

[9] Conversely, the respondent submitted that her application for the bills
of costs to be taxed were filed within time pursuant to sub-s 6(3) of the Act
which allows an action for any judgment to be brought within the period of 12
C
years.

OUR DELIBERATION AND DECISION

[10] It is a trite principle of law that a defence of limitation is a complete

D
defence. This has been decided by plethora of authorities including the
decision of this court in Syarikat Hing Lee Fishing (Sabah) Sdn Bhd v Lin Yun
Thai & Ors [2019] 4 MLJ 511; [2019] 1 LNS 289 where it was held as follows:
… Limitation, if proved, is a complete defence to the counterclaim. And, as we shall
soon see, the appellant’s defence of limitation is of merit and ought to have been so E
considered by the learned judge. We are of the firm view that the counterclaim
ought to have been dismissed on the sole ground of limitation and the appellant’s
claim thereby, allowed. This is how the limitation argument ought to have been
addressed.
F
[11] This doctrine of limitation as a complete defence is also based on the
considerations that there is a presumption that a right not exercised for a long
time is non-existent and that it is necessary that matters of right in general
should not be too long in a state of uncertainty (see Credit Corporation (M) Bhd
v Fong Tak Sin [1991] 1 MLJ 409; [1991] 1 CLJ 69 (SC)). G

[12] Reverting to the present case, the first issue for consideration of this
court is whether the limitation period for the respondent to file the application
for the bills of costs to be taxed is within six years pursuant to sub-s 6(1)(a) or
12 years as provided under sub-s 6(3) of the Act. For ease of reference, the H
relevant provisions are as follows:
Section 6
(1) Save as hereinafter provided the following actions shall not be brought after the
expiration of six years from the date on which cause of action accrued, that is to say —
I
(a) actions founded on a contract or on tort; …
(2) …
(3) An action upon any judgment shall not be brought after the expiration of twelve
years from the date on which the judgment became enforceable and no arrears of interest
 Tetuan Kamarudin & Partners v Chew Swee Yoke (an advocate
& solicitor practicing under the name of SY Chew & Co) and
[2021] 1 MLJ other appeals (Nordin Hassan JCA) 523

A in respect of any judgment debt shall be recovered after the expiration of six years
from the date on which the interest became due. (Emphasis added.)

[13] Coming back to the instant case, the respondent had agreed to represent
the appellant’s client in the matrimonial proceedings as evident inter alia by the
B letter dated 3 October 2000. This created a contract between the appellant and
the respondent in which the respondent provides the legal service in
consideration of the fees to be paid by the appellant to the respondent. The
relationship between the applicant and the respondent is considered as a
solicitor and client’s relationship. This is also clearly stated in the order of High
C Court dated 22 March 2010 in the following words:
ADALAH DIPERINTAHKAN pempetisyen dibenarkan mencukaikan kosnya
terhadap kesemua Responden-Responden tersebut di atasseperti di antara
peguamcara dan pelanggan …

D
[14] In the circumstances, there was a contractual solicitor and client’s
relationship between the appellant and the respondent. On this issue, the
Federal Court in the case of Gurbachan Singh s/o Bagawan Singh & Ors v
Vellasamy s/o Pennusamy & Ors (on their behalf and for the 213 sub-purchasers of
E plots of land known as PN35553, Lot 9108, Mukim Hutan Melintang, Hilir
Perak) and other appeals [2015] 1 MLJ 773; [2015] 1 CLJ 719 held as follows:
[43] Once a solicitor-client relationship exists and thus a retainer, it ‘put into
operation the normal terms of the contractual relationship including in particular
the duty’ of the solicitor ‘to protect the interests’ of his client ‘in matters to which the
F retainer relates by all proper means’

[15] Next, the word ‘action’ has been defined under s 2 of the Act to include
a suit or any other proceedings in a court of law. Clearly, the respondent’s
application for her bills of costs to be taxed filed in court was a proceeding in a
G court of law. As such, it was an action founded on a contract envisaged under
s 6(1)(a) of the Act. Therefore, the respondent’s application must be made
within six years from the date the course of action accrued. In the present case,
the course of action accrued on the date the High Court granted the order for
taxation which was on 22 March 2010 and the time period expired on
H 21 March 2016. However, the respondent’s application for the three bills of
costs to be taxed were filed only on 25 July 2016 with the delay of four months.

[16] The same issue on limitation period under s 6 of the Act had also been
dealt with by this court in Punithavathi Ponniah v Ganendra Torquil Ponnusamy
I Ganendra & Anor [2014] 8 CLJ 735 where it was held as follows:
[22] Turning to the question of limitation, s 6(1)(a) and (b) of the Limitation Act
1953 speak of ‘actions founded on a contract’ and ‘actions to enforce an award’.
Section 2 of the same Act defines the word ‘action’ to include ‘a suit or any other
proceedings in a court of law’. While an application to tax a bill of costs is not a suit,
524 Malayan Law Journal [2021] 1 MLJ

it can certainly be described as a proceeding in a court. A

[23] But even if it can be argued that the application for taxation is a proceeding
founded on a contract or is a proceeding to enforce an award,the court still has to
consider whether the application was made ‘after the expiration of six years from the date
on which the cause of action accrued’.
B
[24] The respondent contended that the consent order became enforceable on the
date it was made ie, 25 August 2004 or the date that order was reinstated by the
Court of Appeal ie, on 22 September 2005 and therefore the six years began to run
from either of these dates.
[25] We do not agree. What we are concerned with here is not so much the question of C
enforceability of an order of court, but with the date on which a cause of action accrues.
In Credit Corp (M) Bhd v Fong Tak Sin[1991] 1 MLJ 409; [1991] 2 CLJ 871; [1991]
1 CLJ (Rep) 69, Hashim Yeop Sani CJ (Malaya) speaking for the then Supreme Court
held at p 76:
As stated earlier a cause of action is said to have accrued when there is in existence D
a person who can sue and another who can be sued, and when all facts have
happened which are material to be proved to entitle the plaintiff to succeed.
(Emphasis added.)
(see also Guannex Leasing Sdn Bhd v Sin Fatt Brothers Construction & Ors
E
[2002] 6 CLJ 433; United Malayan Banking Corp Bhd v PTL Marketing
Services Sdn Bhd & Ors [2004] 5 MLJ 337; [2004] 1 MLRH 10 )

[17] Having considered the facts and the relevant laws, we find the
respondent’s contention that the limitation period of 12 years under sub-s 6(3) F
of the Act was applicable in the present case is devoid of any merit.

[18] Further, we find that the judicial commissioner did acknowledged that
the final date for the respondent to file the bills of costs was on the 21 March
2016 but was of the view that by filing the bills of costs at the Court of Appeal G
on 21 March 2013, the respondent had taken the first step to commence the
taxation proceeding and was done within the limitation period. This was where
the judicial commissioner fell into error. The provision of sub-s 6(1) is plain
and unambiguous that the expiration of six years is from the date on which the
course of action accrued and as alluded to earlier the course of action in this H
case accrued on the 22 March 2010. As the wordings of sub-s 6(1) is
unambiguous and clear, it must be given their natural and ordinary meanings.
This is trite principle of law as explained by high authorities including the
Federal Court case of Dr Koay Cheng Boon v Majlis Perubatan Malaysia [2012]
3 MLJ 173; [2012] 4 CLJ 445 in the following words: I
[48] A statute is the written will of the Legislature. It is the fundamental rule of
interpretation of a statute that should be expounded according to the intent of
Parliament. Courts must use the literal rule where a clear meaning of a statute will
allow it, ie, interpret the statute literally, according to its ordinary plain meaning. In
 Tetuan Kamarudin & Partners v Chew Swee Yoke (an advocate
& solicitor practicing under the name of SY Chew & Co) and
[2021] 1 MLJ other appeals (Nordin Hassan JCA) 525

A the event of the words of the statute being precise and unambiguous in themselves,
it is only just necessary to expound those words in their natural and ordinary sense.

[19] In the circumstances, the period of limitation in this case begun on

22 March 2010 based on the order granted by the High Court, irrespective of
B the fact that the respondent had filed her bills of costs at the Court of Appeal on
21 March 2013. In fact, the Court of Appeal had also made an order for the
parties to adhere to the order of the High Court.

C [20] On the same issue, it is instructive to make reference to the decision of

this court in Machinchang Skyways Sdn Bhd & Anor v Lembaga Pembangunan
Langkawi & Anor and another appeal [2015] 2 MLJ 373; [2015] 3 CLJ 775
where the court stated this:
[25] In our view, the defendants were at liberty to file the said applications. In
D Kerajaan Malaysia & Ors v Lay Kee Tee & Ors [2009] 1 MLJ 1; [2009] 1 CLJ 663,
Nik Hashim FCJ said:
23. Regarding the issue of limitation of time, the Court of Appeal appears to
interpret it as barring a remedy but not the right to sue. That is not correct. In so
far as PAPA is concerned, the law is settled. The Privy Council in Yew Boon Tew
E & Anor v Kenderaan Bas Mara [1983] 1 MLJ 1; [1983] 1 CLJ 11; [1983] CLJ
Rep 56 held that limitation under PAPA is ‘just as much a ‘right’ as any other
statutory or contractual protection against a future suit’.
24. In this respect, both the Court of Appeal and the Federal Court have
consistently struck out claims when it was clear that the statute of limitations
F would be relied on or raised.
…
[30] in our view, the learned Judicial Commissioner had not erred in refusing to
admit the said letter. In any event, we found that there is nothing in the said letter
G to suggest that the defendants had agreed to the re-filing of a fresh suit outside the
limitation period. It is reasonable to expect the plaintiffs to comply with the requirement
of the law on limitation in the event they decided to file a fresh suit. (Emphasis added.)

[21] Likewise in the instant case, the law provides that the limitation period
H for filing an application for bill of costs to be taxed is six years and it runs from
the date the course of action accrued. Hence, the date of filing the application
for the respondent’s bills of costs to be taxed at the Court of Appeal clearly was
not the date the course of action accrued. The limitation period pursuant to
sub-s 6(1)(a) must be complied with although the respondent had filed for her
I bills of costs to be taxed at the Court of Appeal.

[22] Reverting to the present case, the application to tax the respondent’s
bills of costs were filed at the High Court after six years and four months from
the date the High Court granted the order for taxation. This is clearly beyond
526 Malayan Law Journal [2021] 1 MLJ

the six years limitation period under sub-s 6(1)(a) of the Act and as such is A
time-barred.

CONCLUSION

[23] Based on the aforesaid reasons, we find there is appealable error in the B
present case that warrant the intervention of this court. Hence, the appellant’s
appeal is allowed and the High Court decision is set aside. No order as to costs.

Appeal allowed and High Court’s decision set aside.

C
Reported by Izzat Fauzan