CHAPTER 1 – PRELIMINARY MATTERS

1. Introduction to Civil Procedure

- Purpose of Civil Procedure
 Boustead Trading Sdn Bhd v Arab Malaysian Merchant Bank Bhd: FC held that courts
exist to do justice according to the law as applied to the substantial merits of a
particular case. And the rules of court and practice are created to facilitate the
attainment of justice, not its obstruction.
 O.1A of ROC 2012: Court or Judge in administering these Rules, shall have regard to
the overriding interest of justice and not only to the technical non-compliance with
these Rules.
- Sources of Civil Procedure
 CJA 1964; ROC 2012; cases; practice direction
- In a Civil Proceedings, it commences with
 Cause of Action  Pf commences (writ of summon/originating summons)  Df rebut
(no cause of action/out of limitation period)  judgment (obtain remedy)

2. Cause of Action
a. Definition of cause of action
- “Cause of action” means the set of circumstances which leads up to an action in court.
The term refers to a bundle of essential facts, which is necessary for the plaintiff to prove
in order to entitle him to an order or judgment.
- Cause of action is a condition precedent to the commencement of an action and every
claim must disclose a cause of action before the court will be able to proceed to
adjudicate the dispute. Without cause of action, the court cannot provide any remedy.
- Letang v Copper: Lord Diplock defined “cause of action” as a factual situation the
existence of which entitles one person to obtain from the court a remedy against another
person.
- Government of Malaysia v Lim Kit Siang: SC held that “cause of action” is a statement of
facts alleging that a plaintiff’s right, either at law or by statute, has been adversely
affected by act of a defendant in an action.

b. Cause of action must be complete / When does cause of action arises?

- It is pertinent to ask whether plaintiff has a cause of action which is complete. Generally,
a cause of action is not complete when all the facts have not happened which are
material to be proved to entitle the plaintiff to succeed.
- Lim Kean v Choo Koon: Plaintiff claimed for recovery of excess rent paid to his landlord.
OCJ held that a cause of action normally accrues when there is in existence 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. Here, the plaintiff’s
cause of action was not complete until an order was obtained from the Rent Assessment
Board fixing the amount of the rent legally recoverable under Ordinance.
- Taib bin Awang v Mohamad bin Abdullah & Ors: Plaintiff sued against the defendants
for wrongful prosecution in Kadi’s Court whereby he was found guilty and sentenced to 2
weeks. Plaintiff appealed against the decision of Kadi and before the appeal was disposed
of, he brought this action in civil court. OCJ held that for plaintiff to succeed for
 malicious prosecution, he must prove that the proceeding complained of, terminated in his
favour. Since the appeal had not been disposed of, his action was held to be premature.
- Sio Koon Lin v SB Mehra: Respondent contributed RM100k towards a partnership. It
was agreed between parties that the sum of RM100k would be returned to the appellant
by immediate payment of RM15k; 35k on or before October 12 and balance of 50k by
monthly instalments. No provision stated that in case of default of any one instalment, the
remaining instalments should become immediately due and payable. Respondent on
October 7 took out writ, claiming for the payment of sum of 85k with interest. FC held
that respondent did not on October 7 have cause of action in respect of the RM85k as
no instalments were then due.
- Letang v Copper: Lord Diplock stated that the factual situation on which the plaintiff’s
action was founded is set out in the statement of claim. It was the defendant who failed to
exercise reasonable care when he drove his motor car over the plaintiff’s legs and thus
cause her injuries which plaintiff in turn claimed for damages. That factual situation
was the plaintiff’s cause of action. It was the cause of action “for” which the plaintiff
claimed damages in respect of the personal injuries which she sustained.
- Credit Corporation (M) Sdn Bhd v Fong Tak Sin: Respondent was injured in an accident
between his taxi and motor vehicle. On 16/6/1984, respondent claim for special and
general damages. On 15/8/1984, respondent’s solicitor were informed that appellant
claimed to be owner of vehicle. 4 years later, respondent’s solicitor applied to add
appellant as third defendant. SC held that S.29(c) of Limitation Act 1953 is applicable
only where mistake is an essential ingredient of the cause of action. Knowledge on the
part of respondent as to the identity of the appellant is irrelevant, thus application to add
new party to an action after expiry of the limitation period should not be allowed.

3. Limitation period
- The period of limitation under the Limitation Act 1953 does not begin to run until there is
a complete cause of action.
- Nasri v Mesah: FC held that time begins to run for the purposes of limitation from the
date of any infringement or threat of infringement of the appellant’s right under the
agreement. A cause of action founded on contract accrues on its breach, thus, time runs
from the breach.

a. Purpose of limitation period

- If there are time limits imposed by statutes, which prescribe periods beyond which the
commencement of proceedings to enforce a claim will be barred, unless the time limit is
subject to extension or exclusion, the prescribed time limit operates as an absolute
defence to a claim brought outside the prescribed time limit.
- Credit Corporation (M) Sdn Bhd v Fong Tak Sin: SC stated that main object of limitation
law is to discourage plaintiffs from sleeping on their rights and to provide a definite end
to litigation.

b. Period of limitation are prescribed in many statutes

i. Limitation Act 1953
1) S.6(1) of LA 1953 (Action founded upon contract or tort)
  S.6(1): Actions founded on contract or tort; to enforce a recognisance; to enforce an
award; to recover any sum recoverable by virtue of any written law other than a
penalty or forfeiture or of a sum by way of penalty of forfeiture, shall not be brought
after the expiration of 6 years from the date on which the cause of action accrued.
 Pirelli General Cable Works v Oscar: HOL held that the cause of action in tort for
negligence in design of a building accrued at the date when physical damage
occurred to the building, such as the formation of cracks and not when plaintiff could
with reasonable diligence had discovered it. Hence, plaintiffs’ claim was time-barred
as cause of action accrued in 1970 when damage came into existence at top of the
chimney, and not when plaintiff had discovered the damage in 1977.
 Ambank (M) Bhd v Abdul Aziz bin Hassan: COA held that the only test to ascertain
limitation is housed in S.6 of LA 1953 which provides that limitation runs from the
date on which the cause of action accrues regardless of whether the plaintiff
discovers the damage. A cause of action in tort accrued when the appellant suffered
damage.
 Nonetheless, it is important to note that, there is an insertion of new Section 6A of
Limitation Act 1953 which provides that even after the aforesaid 6 years’ limitation
period has lapsed, plaintiff may nevertheless commence action for damages for
negligence within 3 years from date of discovery of the latent defect. However, the
new limitation period is also subjected to S.6A(3) whereby action is time barred
after expiration of 15 years from date the defect had occurred.
 Credit Corporation (M) Sdn Bhd v Fong Tak Sin: Knowledge on the part of
respondent as to the identity of the appellant is irrelevant, thus application to add new
party to an action after expiry of the limitation period should not be allowed.
 Lim Yoke Kong v Sivapiran s/o Sabapathy: Plaintiff was knocked down by defendant
and suffered injuries. Only after the six-limitation period expired, plaintiff was
informed of the identity of the insurance company that the motorcycle was insured.
HC held that although cause of action accrued on the date of accident, the right of
action of plaintiff had been concealed by fraud of the defendant and the insurance
company as the insurance company conceal itself from the knowledge of plaintiff in
order to take advantage of limitation period and to prevent plaintiff from proceeding
against the defendant. Thus, it amounts to fraud under S.29 of LA 1953 and time only
began to run when the plaintiff was informed of the name of the insurers.
Accordingly, the claim was not time-barred.
 Pang Yeow Chow v Advance Specialist Treatment Engineering Sdn Bhd: Plaintiff
sued defendant for professional negligence in not attending court on the day of
hearing, which resulted the suit being struck out. COA held that cause of action for
professional negligence arose when the suit was struck out on 29 May 2006. Plaintiff
only commenced the instant suit on 4 October 2012 after 6 years. Plaintiff’s argument
that the cause of action in the suit expired on 12 November 2006, which is when the
opportunity to file afresh was lost, had no merit. This is because once cause of action
arose, the limitation period commences and cannot be extended by speculation that
there was opportunity to refile or reinstate on or before 12 November 2006.
2) Section 6(3) of LA 1953 (Action upon any judgment)
 S.6(3): Judgment shall not be brought after expiration of 12 years from the date of
judgment become enforceable and no arrears of interest in respect of judgment debt
 shall be recovered from the expiration of 6 years from the date on which interest
became due.
 Exp: Claimant sued defendant, judge in favour of claimant. C has 12 years to enforce
judgment against Df, cannot enforce judgment after 12 years.
 United Malayan Banking Corp Bhd v Ernest Cheong Yong Yin: FC held that in view
of the wording of the second limb of S.6(3) of the Act, the act of recovery of the
arrears of interest in respect of the judgment debt must be made within 6 years of
judgment date and only up to the date of the act of recovery.
 Perwira Affin Bank Bhd v Lim Ah Hee: FC held that bankruptcy proceeding was a
proceeding in a court of law which was based upon a judgment whereby there had to
be a judgment before a bankruptcy proceeding can be commenced, thus, caught by
provisions of S.6(3) of LA. Accordingly, while bankruptcy proceeding may be
brought within 12 years of the date of judgment, arrears of interest may only be
claimed for a period of 6 years from the date of judgment. In this case, bankruptcy
notice was filed 8 years and 5 months from date of judgment, thus, was not out of
time. However, since the arrears of interest claimed was outside the 6 years period, the
bankruptcy notice was invalid.
3) Section 9(1) of LA 1953 (Action to recover land)
 S.9(1): No action shall be brought by any person to recover any land after the
expiration of 12 years from the date on which the right of action accrued to him or
some person through whom he claims, to that person.
 Nasri v Mesah: FC held that whether action was for specific performance of an
agreement for the sale of land or for a declaration of title to land, it was essentially an
action to recover land and the period of limitation therefore would be 12 years. In
this case, appellant paid but respondent did not transfer (1947) even after a temporary
prohibition had expired (1949). Appellant requested for transfer but respondent failed
to do so thus, appellant commenced specific performance (1967). It was decided that
time begins to run from the date of any infringement or threat of infringement of
appellant’s right under the agreement. The fact that the plaintiff chose not to lodge a
caveat against the land until 1966 would seem to indicate that until then there was no
threat to his right under the agreement.
4) Section 21 of LA 1953 (Action to recover principal sum from charged land or
foreclosure)
 S.21(1): No action shall be brought to recover any principal sum of money secured by
a mortgage or other charge on land or personal property or to enforce such mortgage
or charge, or to recover proceeds of the sale of land or personal property after the
expiration of twelve years from the date when the right to receive the money
accrued.
 S.21(2): No foreclosure action in respect of mortgaged personal property shall be
brought after the expiration of twelve years from the date on which the right to
foreclose accrued.
 Terrance Simon Marbeck v Kerajaan Malaysia: HC held that it was premature of the
plaintiff to raise S.21(1), (2) and (5) of LA at the stage of originating summons as
defendant, the chargee had neither brought a foreclosure action under S.256 of NLC
and O.83 of Rules of the High Court 1980 in respect of the charge nor any action to
recover the arrears of interest payable in respect of the charge in question. The period
 of limitation would not have begun to run until a demand had been made by the
defendant, which in this case, notice of demand for payment was issued to plaintiff
within the limitation periods. Thus, plaintiff’s originating summons was dismissed.
 Tan Kong Ming v Malaysian National Insurance Sdn Bhd: Respondent granted the
appellant a housing loan in 1984 and the latter charged a piece of land in favour of the
former. Later, appellant defaulted and the charged land was foreclosed on March 1992.
Respondent demanded the shortfall of sum together with interest from the appellant on
August and November 1994. Appellant failed to pay and thus respondent filed suit on
January 1995. FC held that S.21(1) refers to an action to recover moneys secured by a
charge which is an action in personam, whereas S.21(2) specifically refers to a
foreclosure in respect of mortgaged personal property which is an action in rem. The
limitation period was therefore 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 accrued,
respectively. The earliest possible date the respondent could bring an action against
appellant is on the date of property was sold by auction, i.e., March 1992. And since
cause of action arose on March 1992, respondent’s action against appellant on
January 1995 was filed within the time prescribed in S.21(1).
5) Section 22(1) of LA (Action in respect of trust property)
 S.22(1): LA does not apply to an action by a beneficiary under a trust being an action,
(a) in respect of any fraud or fraudulent breach of trust to which the trustee was a
party or privy; or (b) to recover from the trustee trust property or the proceeds thereof
in the possession of the trustee, or previously received by the trustee and converted to
his use.
 Palaniappa Chettiar v Lakshamanan Chettiar: PC stated that the issue of limitation will
not arise if it is an action by a beneficiary to recover a trust property by virtue of
S.22(i)(b) of Limitation Ordinance 1953.
6) Section 22(2) of LA (Action based on breaches of trust other than (5) above)
 S.22(2): Subject as aforesaid, an action by a beneficiary to recover trust property or in
respect of any breach of trust, not being an action for which a period of limitation is
prescribed by any other provision of this Act, shall not be brought after the
expiration of six years from the date on which the right of action accrued, provided
that the right of action shall not be deemed to have accrued to any beneficiary
entitled to a future interest in the trust property, until the interest fell into possession.
 Sok-Chun Tang v Vincent Tang Fook Lam: Under S.22(2) of LA, the period of
limitation began from the date on which the right of action accrued. This could be
upon the death of the deceased or when the promissory note became payable on
demand. On both instances, the plaintiff was well within the period stipulated under
that particular section.
7) S.23 of LA (Action in respect of any claim to personal estate of a deceased person
or to any share or interest therein)
 S.23: Subject to the provisions of S.22 (1), no action in respect of any claim to the
personal estate of a deceased person or to any share or interest in such estate,
whether under a will or on intestacy, shall be brought after the expiration of twelve
years from the date when the right to receive the share or interest accrued, and no
action to recover arrears of interest in respect of any legacy, or damages in respect
 of such arrears, shall be brought after the expiration of six years from the date on
which the interest became due.
8) S.31 of LA (Set off counterclaim)
 S.31: For the purposes of this Act, any claim by way of set-off or counterclaim shall be
deemed to be a separate action and to have been commenced on the same date as the
action in which the set-off or counterclaim is pleaded.
ii. Public Authorities Protection Act 1948 / Government Proceedings Act 1956
- S.2(a) PAPA: any suit, action, prosecution commenced in the Federation against any
person for any act done in pursuance or execution or intended execution of any written
law or of any public duty or authority or in respect of any alleged neglect or default in the
execution of any such written law, duty or authority, the action shall not lie or be
instituted unless it is commenced within 36 months next after the act, neglect or default
complained of or, in the case of a continuance of injury or damage, within thirty-six
months next after the ceasing thereof.
- Wee Choo Keong v Ketua Pengarah Perkhidmatan Awam Malaysia: COA held that the
facts showed a situation of a continuing injury, i.e., a continuing denial of the appellant’s
pension entitlement since 20 June 2003. The 36 months bar had to be calculated not only
‘next after the act, neglect or default complained of’, but ‘in the case of continuance of
injury or damage, within 36 months next after the ceasing thereof’.
- Phua Chin Chew & Ors v KM & Ors: Respondent, a teacher joined the government
teaching service but later was ill and admitted to ward for treatment of his illness. During
that period (in 1977), respondent wrote a letter to the appellants purporting to resign from
his service as a teacher by giving one month's notice. The said letter of resignation was
accepted by the appellants who terminated his services accordingly. Subsequently, the
respondent's two brothers applied to the court and were appointed Committee of the
respondent in 1982. The Committee filed the present suit in 1983 which appellants
applied to strike out on ground of limitation. Court in dismissing the appeal held that time
begins to run from the date of the appointment of the Committee, and not from the date of
the letter of resignation or the acceptance by the Government of the offer to resign. The
action was well within the 3-year period of limitation under S.2(a) of the Public
Authorities Protection Act, 1948.
- S.38 of Government Proceedings Act 1956: Any written law relating to limitation of
time for bringing proceedings against public authorities may be relied upon by the
government as a defence in any civil proceedings against the government. Thus,
government may rely upon S.2(a) of PAPA as a defence, in any civil proceedings against
the government.
iii. Civil Law Act 1956
- S.7(5) Dependency claim (within 3 years after death of person deceased)
 S.7(5): A claim for loss of support by dependent relatives shall be brought within 3
years after the death of the person deceased.
 S.7(1): whenever the death of a person is caused by wrongful act, neglect or default,
party injured can maintain an action and recover damages notwithstanding the death of
the person and although the death is caused by an offence under PC.
 S.7(2): wife, husband, parent, child and any person with disabilities under the care of
the deceased are entitled to bring a claim
  Kuan Hip Peng v Yap Yin: FC held that S.7(5) of the Civil Law Ordinance are
absolute and contain no exception or saving provisions as in the Limitation Ordinance.
In this case, the writ was issued 4 days after the 3-year period prescribed in S.7(5).
The court allowed the application to strike out the writ.
- S.8(3)(b) Action against estate of deceased tortfeasor
 It refers to a claim brought by a representation of deceased’s estate for a personal
injury claim that they would have been entitled to, if they are still alive.
 S.8(3)(b): Proceedings could be made against the estate of deceased but it must be
taken not later than six months after his personal representative took out
representation.
 Loo Khoo Chin v Tan Cheng Hang: The claim against the deceased motorcyclist is
barred by S.8(3)(b) of CLA which provides that proceedings against the estate of a
deceased person must be instituted not later than six months after his personal
representative took out representation. In this case there was a time lapse of more than
six months and thus, despite the finding of guilt against the deceased motorcyclist, the
plaintiffs' claims against his estate is dismissed.
 Representation = letter of grant of probate or letter of administration
 For instance, B had caused damage to A’s property. A wanted to claim from B but he
passed away. A can still however claim from the personal representative of B’s estate
but within 6 months after representation is extracted.

c. Defence of limitation of period must be pleaded (S.4 read together with O.18, r. 8(1)
- It is crucial to note that the defendant cannot have the benefit of the limitation period
as a defence, it he fails to expressly plead that he is relying on the Limitation Act in his
defence.
- S.4 of LA: 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.
- O.18, r 8(1) of ROC: A party shall in any pleading subsequently to a statement of claim
plead specifically any matter, for example, performance, release, any relevant statute of
limitation, fraud or any fact showing illegality (a) which he alleges makes any claim or
defence of the opposite party not maintainable; (b) which, if not specifically pleaded,
might take the opposite party by surprise; or (c) which raises issues of fact not arising out
of the preceding pleading.
- Sakapp Commodities (M) Sdn Bhd v Cecil Abraham: COA stated that limitation is
merely a defence to an action. It assumes the existence of a cause of action and does not
create one. The limitation of actions under statute is part of procedural law and not
substantive law.
- O.18, r. 19(1) of ROC: The Court may at any stage of the proceedings order to be struck
out or amended any pleading or the endorsement, of any writ in the action, or anything
in any pleading or in the endorsement, on the ground that, (a) it discloses no reasonable
cause of action or defence; (b) it is scandalous, frivolous or vexatious; (c) it may
prejudice, embarrass or delay the fair trial of the action; or (d) it is otherwise an abuse of
the process of the Court, and may order the action to be stayed or dismissed or judgment
to be entered accordingly, as the case may be.
- Ronex Properties Ltd v John Laing Construction Ltd: Donaldson LJ stated that where
there is a defence under the LA, the defendant can either plead that defence and seek the
trial of a preliminary issue or, he can seek to strike out the claim upon the ground that it
is frivolous, vexatious and an abuse of the process of the court. Decision was
subsequently followed by High Court in Perwira Affin Bank Berhad v Ahmad Bin Abdul
Rahman.
- [CONTRAST] TASJA Sdn Bhd v Golden Approach Sdn Bhd (2011): FC held that if it is
based on S.2(a) of PAPA or S.7(5) of CLA, where the period of limitation is absolute,
then in a clear and obvious case, such application should be granted without having to
plead such a defence. However, in a situation where limitation is not absolute, like in
case under the LA, such application for striking out should not allow until and unless
limitation is pleaded as required under S.4 of LA.
- Tengku Ismail bin Tengku Sulaiman v Sia Cheng Soon (2006): Parties involved in a
motor accident and plaintiffs filed the action only after 4 years after accident. Defendants
filed their defence but did not raise issue of limitation but only after in their written
submissions, which was after full trial, the defendants’ counsel raised the issue of
limitation for the first time that the plaintiffs’ claim was time barred as filed out of time
frame under S.7(5) of CLA. COA held that if it was still open for defendants to raise
limitation at submissions stage after the whole process of full trial, there would clearly
have been a wastage of judicial time. Further, it would effectively be giving the
defendants an opportunity to renew the fight on an entirely different defence. A defence
by 'ambush' clearly should not and cannot be permitted as it results in an injustice. A
defendant who fails to plead a limitation defence and allowed case to proceed to be
fought on the merits, is not allowed to fall back upon such plea as a second line of
defence at conclusion of trial.

d. Extension of Limitation Period

- GR: no power to extend when limitation period expired
 Lee Lee Cheng v Seow Peng Kwang: Held that S.8(3)(b) of Civil Law Ordinance 1956
are clear and itself contains no provision of any sort giving the court power to extend
that period. The period prescribed by S.8(3)(b) of CLO is a period of limitation. If the
court has power to extend it then it has power to extend any other period of limitation
and it would thus be open to every litigant with a statute-barred grievance to come to
the court and attempt to have the statutory bar removed so that he could be heard.
- Nonetheless, there are a few exceptions to the general rule
i. Disability
 S.24(1) of Limitation Act: If a right of action accrued to a person under disability, the
action may be brought at any time before the expiration of 6 years when such
person ceased to be under a disability or died, whichever event first occurred,
notwithstanding that the period of limitation has expired.
 S.24(2) of LA: Disabled person having 2 disabilities or before the disability which he
was under on such date had ceased he was affected by another disability, he will be
deemed to still be under disability until both disabilities ceases.
 S.24(3) of LA: If one of the joint-creditors or claimants is under disability and when
discharge can be given without the concurrence of such person, time will run against
them all. But if no such discharge can be give, time will not run against any of them
 until all persons cease to be under a disability or until one of them becomes capable of
giving such discharge without the concurrence of the others, whichever first occur.
 The meaning of disability is defined in O.76, r.1 of ROC whereby, ‘person under
disability’ means a person who is a minor or a patient; while ‘patient’ means a
mentally disturbed person within the meaning of Mental Health Act 2001.
 Minor: Limitation period pauses until the minor reaches the age of majority. Meaning
to say when action is time barred, S.24 provides that limitation period is extended to
6 years after minor become 18 years. Hence, minor should commenced his action
after he reach the age of 18 years old within 6 years.
 Patient: Disability ceased when gets certificate of sane. Commenced within 6 years
from date of recovery.
ii. Fresh accrual of action on acknowledgement/payment
 S.26(1)(a) of LA: Where a right of action to recover land has accrued and the person
in possession acknowledges the title of the person to whom the right accrued, the
right shall be deemed to be accrued on and not before the acknowledgement.
 S.26(1)(b) of LA: Where a right of action to enforce a charge has accrued and the
chargee or the person liable for the debt makes any payment, the right shall be
deemed to have accrued on and not before the date of the last payment.
 S.26(2) of LA: Where any right of action has accrued to recover any debt or other
liquidated pecuniary claim, or any claim to the personal estate of a deceased person or
to any share or interest therein, and the person liable or accountable therefor
acknowledges the claim or makes any payment in respect thereof, the right shall be
deemed to have accrued on and not before the date of the acknowledgment or the
last payment.
 S.27(1) of LA: Every acknowledgment referred to in S.26 of LA must be in writing
and signed by the person making the acknowledgment.
 Tenaga Nasional Bhd v Kamarstone Sdn Bhd: 1996, respondent successfully applied
to the appellant for upgrading of the electricity supply. 2003, appellant discovered that
respondent had been undercharged from 1996 to 2002. Appellant issued 2 demands to
settle the shortfall but respondent sought the appellant’s indulgence to pay a reduced
sum which the latter rejected and file an action to recover the shortfall. Appellant
submitted that period of limitation only commenced upon discovery of the mistake and
the issuance of the demand. FC held that a cause of action founded on contract accrues
on the date of its breach and in case of debt, COA arises at time when debt could first
have been recovered by action. Between 1996 and 2002, appellant had a COA, albeit
undiscovered the shortfall. However, since there was a clear and unequivocal
acknowledgment by the respondent that there was subsisting debt in his own letter
dated in 2003. Thus, the right of action of appellant for the shortfall was deemed to
have accrued in 2003. Hence, when action was filed in 2005, limitation had not set in.
iii. Fraud or mistake
 S.29 of LA: Where, in the case of any action for which a period of limitation is
prescribed by this Act, either (a) the action is based upon the fraud of the defendant or
his agent or of any person through whom he claims or his agent; or (b) the right of
action is concealed by the fraud of any such person as aforesaid; or (c) the action is
for relief from the consequences of a mistake, the period of limitation shall not begin
 to run until the plaintiff has discovered the fraud or the mistake, as the case may
be, or could with reasonable diligence have discovered it.
 Proviso to S.29 of LA: No action can be brought to recover, or enforce any charge
against, or set aside any transaction affecting, any property which (i) in the case of
fraud, has been purchased for valuable consideration by a person who was not a party
to the fraud and did not at the time of the purchase know or have reason to believe that
any fraud had been committed; or (ii) in the case of mistake, has been purchased for
valuable consideration, subsequently to the transaction in which the mistake was made,
by a person who did not know or have reason to believe that the mistake had been
made.
 Beaman v ARTS Ltd (fraud): Held that the company's conduct, by the manner in
which it converted the owner's chattels in breach of the confidence reposed in it and in
circumstances calculated to keep her in ignorance of the wrong which it had
committed, amounted to a fraudulent concealment of the owner's right of action within
the meaning of S.26(b) of LA, and, therefore, the period of limitation was postponed
under that paragraph of the section.
 Lim Yoke Kong v Sivapiran s/o Sabapathy (concealment): Defendant’s insurers took
great pains to conceal themselves from the knowledge of the plaintiff and thus the
latter’s claim was not held statute barred as a result.
 Yong & Co v Wee Hood Teck Corporation (concealment): Held that it is clear that
appellants not only neglected to notify the respondents of the charge to the land until
more than 5 years later but were also instrumental in placing the securities out of the
reach of the respondent. There was therefore fraudulent concealment on the part of the
appellants. The limitation period in this case is 3 years from the time when the fraud
became known to the party wronged. The respondents discovered the fraud in
November 30, 1974 and therefore in filing the writ on September 29, 1977 they were
within time and were not therefore barred by limitation.
 Philips-Higgins v Harper (mistake): Held that the right of action is for relief from the
consequences of a mistake under S.26 of LA (in pari material with S.29 of LA).The
word indicate a class of actions where a mistake has been made which has had certain
consequences and the plaintiff seeks to be relieved from the consequences. For
example, money paid in consequence of mistake and in consequences of the mistake
the money is paid, the action is to recover that money back. Or, there may be a
contract entered into in consequence of mistake and the action is to obtain the
rectification of such contract. In instant case, plaintiff, by reason of the mistake she
failed to realize that the balance was due to her and by that mistake the right of action
was concealed from her. But that is not sufficient. Probably the provision applies only
where the mistake is an essential ingredient of the cause of action, so that the
statement of claim sets out the mistake and its consequences and pray for relief from
those consequences.
 Tenaga Nasional Bhd v Kamarstone Sdn Bhd (mistake): FC held that S.29(c) of LA
applies only when action is for relief from the consequences of a mistake. It does
not apply where it is a causal mistake or even a material mistake that produced the
circumstances from which relief is sought. In the instant case, the essential ingredient
of the cause of action brought by the appellant was not mistake. As submitted by
learned counsel for the appellant, the cause of action was breach of contract.
 Consequently, the appellant could not take advantage of S.29 of LA to postpone the
starting point of the period of limitation to 2003.
 Credit Corporation (M) Sdn Bhd v Fong Tak Sin (mistake): Respondent was injured in
an accident between his taxi and motor vehicle. On 16/6/1984, respondent claim for
special and general damages. On 15/8/1984, respondent’s solicitor were informed that
appellant claimed to be owner of vehicle. 4 years later, respondent’s solicitor applied
to add appellant as third defendant. SC held that S.29(c) of Limitation Act 1953 is
applicable only where mistake is an essential ingredient of the cause of action.
Knowledge on the part of respondent as to the identity of the appellant is irrelevant,
thus application to add new party to an action after expiry of the limitation period
should not be allowed.
iv. Arbitration
 S.10 of Arbitration Act 2005: Provides stay of legal proceeding pending arbitration.
 Press Metal Sarawak Sdn Bhd v Etiqa Takaful Bhd: FC held that in order to grant a
stay order under S.10(1) of AA 2005, court has to consider whether there is a binding
arbitration agreement between the parties, which agreement is not null and void.
Whether there is a dispute or not is no longer a requirement to be considered in
granting a stay under S.10(1). The existence of a valid arbitration clause in agreement
does not automatically make it operative; the arbitration clause will only be operative
when the given dispute or difference falls within the ambit of the arbitration clause.
Here, the defendant was 'the party accused of fraud', while the plaintiff was 'the party
alleging fraud'. The defendant, by filing its application, wanted the matter to proceed
to arbitration; while the plaintiff opposed the application. However, under S.10 of AA
2005, it is mandatory for the court to make such a stay order once the requirements in
the section are fulfilled.
v. Interaction between statutes that prescribe for the limitation period
 Loo Khoo Chin v Tan Cheng Hang: The claim against the deceased motorcyclist is
barred by S.8(3)(b) of CLA which provides that proceedings against the estate of a
deceased person must be instituted not later than six months after his personal
representative took out representation. In this case there was a time lapse of more than
six months and thus, despite the finding of guilt against the deceased motorcyclist, the
plaintiffs' claims against his estate is dismissed.
 Phua Chin Chew & Ors v KM & Ors: Respondent, a teacher joined the government
teaching service but later was ill and admitted to ward for treatment of his illness.
During that period (in 1977), respondent wrote a letter to the appellants purporting to
resign from his service as a teacher by giving one month's notice. The said letter of
resignation was accepted by the appellants who terminated his services accordingly.
Subsequently, the respondent's two brothers applied to the court and were appointed
Committee of the respondent in 1982. The Committee filed the present suit in 1983
which appellants applied to strike out on ground of limitation. Court in dismissing the
appeal held that time begins to run from the date of the appointment of the Committee,
and not from the date of the letter of resignation or the acceptance by the Government
of the offer to resign. The action was well within the 3-year period of limitation under
S.2(a) of the Public Authorities Protection Act, 1948.

4. Locus standi
- Locus standi means ‘standing in court’, the right of a party to appear and be heard by a
tribunal.
- Mohamed b Ismail v Tan Sri Osman: An applicant must has sufficient interest in the
matter before he can move the courts into declaring a wrongful act of a State Authority.
The words “person aggrieved” do not include a mere busybody who is interfering in
things which do not concern him, but include a person who has genuine grievance
because something has been done or omitted to be done contrary to what the law requires.
- Government of Malaysia v Lim Kit Siang: Held that every legal system has a built-in
mechanism to protect its judicial process from abuse by busy-bodies or mischief-makers
by insisting that a plaintiff should have a special interest in the proceedings which he
institutes. Such special interest is a nexus between him and the party against whom he
brings his complaints to court and is known as locus standi. AG is the guardian of public
interest, hence not required to show locus standi. But for other person, will not be able to
commence such litigation, unless he has locus standi or in the absence of it, he has
obtained the aid or consent of AG.
5. Declaratory judgment
- Remedy can be declaration. If plaintiff is seeking for declaratory order, then there is no
need to prove cause of action, but 6 factors must be satisfied.
- Caxton (Kelang) Sdn Bhd v Susan Joan Labrooy: defines declaratory judgment as one
that does not involve a cause of action in the usual sense and that 6 factors must be
present before there can be a declaratory order. These are,
 There must exist a controversy between the parties;
 The proceedings must involve a “right”;
 The proceedings must be brought by a person who has a proper or tangible interest in
obtaining the order, which is usually referred to as “standing” or “locus standi”;
 The controversy must be subject to the court’s jurisdiction;
 The defendant must be a person having a proper or tangible interest in opposing the
plaintiff’s claims;
 The issue must be ripe, i.e., it must not be of academic interest, hypothetical or one
whose resolution would be of no practical utility.

6. Technical objections based on non-compliance with rules

- O.1A & O.2 of ROC
 O.1A of ROC 2012: Court or judge shall have regard to the overriding interest of
justice and not only to the technical non-compliance with these Rules.
 O.2, r.1(1) of ROC 2012: Non-compliance with rules shall be treated as an irregularity
and shall not nullify the proceedings.
 O.2, r.2(1) of ROC 2012: Application to set aside any proceedings for non-
compliance of rules shall not be allowed unless application is made within a
reasonable time and non-compliance has occasioned a substantial miscarriage of
justice prejudice that cannot be cured either by amendment or an appropriate order
for costs.
 O.2, r.3 of ROC 2012: Court shall not allow preliminary objection on the ground of
non-compliance of rules unless it occasioned a substantial miscarriage of justice or
prejudice that cannot be cured either by amendment or an appropriate order for
costs.
  Megat Najmuddin Dato’ Seri (Dr) Megat Khas v Bank Bumiputra Malaysia Bhd: FC
held that the non-compliance of rules in this case was curable under R.102 of Rules of
Court of Appeal (RCA). Failure of COA to consider R.102 RCA had adversely
affected its decision in upholding the preliminary objection of the respondent. On that
basis, its decision was therefore flawed resulting in injustice to the appellant.
 UMBC v Ernest Cheong Yong Yin: COA held that the respondent’s preliminary
objection that the appellant’s notice of appeal was filed out of time was a mere
technicality and should not be allowed. A procedural and technical objection such as
this should not be allowed to obstruct the process of giving justice to the deserving
party by going into the substantive issues before the court.
 DYMM Tunku Ibrahim Ismail Ibni Sultan Iskandar Al-Haj v Datuk Captain Hamzah
Mohd Noor: FC held that a general provision such as O.1A Rules of High Court 1980
(RHC) must not supersede a mandatory requirement of the Rules. O.1A RHC cannot
be invoked when a party intentionally disregards in complying with the Rules. Thus, in
this case, O.1A RHC did not apply as the respondents had intentionally disregarded
O.6 r.7(2A) RHC, which requires applicant to show that efforts had been made to
serve the defendant within one month of the date of the issue of writ, for their own
reasons.
- Res Judicata
 Joseph Paulus Lantip v Unilever Plc: FC held that for doctrine of res judicata to apply,
the same issue must have been raised and decided in an earlier proceeding or action in
which the parties are represented. And for that reason, it is not open for the same
issue to be litigated afresh between the same parties. This doctrine is based on the
public policy that there must be finality and conclusiveness in judicial decisions and
the right of the individual from being vexed by multiplicity of suits at the instance of
an opponent.
 Scott & English (M) Sdn Bhd v Yung Chen Wood Industries Sdn Bhd: FC provide the
definition of ‘res judicata’ which means ‘the fact has been decided’. It expresses a
general public interest policy that the same issue or cause of action should not be
litigated more than once even if the parties are different. It prevents vexatious
litigation and any abuse of the courts’ process on the premise that final judgments are
binding and conclusive.