Chapter 2 - Pre-Litigation Issues - Limitation Period for Specific Action

Question 1

OVERVIEW

Answer 1

1) Actions in Tort
1. 1) Actions in Tort of Negligence not Involving Personal Injuries
2) Actions in Contract
3) Actions to Recover Land
4) Actions to Recover Money Secured by Mortgage or to Enforce Charge
5) Actions in Respect of Trust Property
6) Actions against Government
7) Actions for Fatal Accident Claims

Question 2

ACTIONS IN TORT

Overview

Answer 2

1) The law
2) When does time start to run
3) Examples & Application
4) Recent application

Question 3

ACTIONS IN TORT

The law

Answer 3

• S.6 LA: 6 years from the date of cause of action accrues

Question 4

ACTIONS IN TORT

When does time start to run

Answer 4

1) Date of cracks developed

• Pirelli Cable Works v Oscar Faber
• Ambank Bhd v Abdul Aziz Hassan

2) Date of cracks discovered
- Ambank (M) Bhd v Kamariyah bt Hamdan & Ors

Question 5

ACTIONS IN TORT

Examples & Application

Answer 5

1) Personal injury claims - Credit Corporation (M) Bhd v Fong Tak Sin:
- D’s identity is irrelevant in P.I claims for the purpose of limitation.
2) Professional negligence - suit struck out - Pang Yeow Chow v Advance Specialist Treatment Engineering Sdn Bhd:
- Cause of action arises on the day when the suit was struck out.

Question 6

ACTIONS IN TORT

Recent Application

CA, 2020

Answer 6

Nyo Nyo Aye v Kevin Sathiaseelan a/l Ramakrishnan

• period of limitation runs from the date of the damage, not on the date of the act which caused the damage.
• e.g. date the suit was struck off, not on the date of the act which caused the suit was struck off

Question 7

ACTIONS IN TORT OF NEGLIGENCE NOT INVOLVING PERSONAL INJURIES

Overview

Answer 7

1) The law & applicability
2) When does time start running
3) Meaning of knowledge
4) Extent of knowledge required

Question 8

ACTIONS IN TORT OF NEGLIGENCE NOT INVOLVING PERSONAL INJURIES

The law & applicability

Answer 8

1) The law - S.6A

• after initial limitation of 6 years, action must be brought within 3 years from the date of damages discovered;
• subject to longstop of 15 years

2) The applicability

• actions for damages for negligence;
• NOT involving personal injuries.

Question 9

ACTIONS IN TORT OF NEGLIGENCE NOT INVOLVING PERSONAL INJURIES

When does time start running

KI

Answer 9

S.6A(4)(a) - KI

WHEN:

• P or any person has KNOWLEDGE of the damage; and
• Has knowledge on the IDENTITY of the D.

Question 10

ACTIONS IN TORT OF NEGLIGENCE NOT INVOLVING PERSONAL INJURIES

Meaning of knowledge

MFI

Answer 10

S.6A(4)(b) - MFI

• Being aware of the MATERIAL FACTS; AND
• Being aware if the IDENTITY of the potential defendants

Question 11

ACTIONS IN TORT OF NEGLIGENCE NOT INVOLVING PERSONAL INJURIES

Extent of knowledge

Answer 11

1) Reasonable suspicion - Lian Kok Hong v Ow Wah Foong (SG):
- Only reasonable suspicion is required, not absolute uncertainty.
2) Aware & knowledge - Howard & Ors v Fawcett (HL):

• being aware of the basis of the complaint;
• has the knowledge that D’s acts or omissions were the cause of the damages.

Question 12

ACTIONS IN CONTRACT

Overview

Answer 12

1) The law

2) Application

Question 13

ACTIONS IN CONTRACT

The law

Answer 13

S.6 LA

• 6 years from the date of cause of action accrues.

Question 14

ACTIONS IN CONTRACT

Application

Answer 14

On void contract - Khatijah Abdullah v Mohd Isa bin Biran

• S.6 does not apply to void contract

Question 15

ACTIONS TO RECOVER LAND

Overview

Answer 15

1) The law
2) When does time start to run
3) Scope & applicability of the law
4) Recent application

Question 16

ACTIONS TO RECOVER LAND

The law

Answer 16

S.9 LA

• 12 years from the date of cause of action accrues.

Question 17

ACTIONS TO RECOVER LAND

When does time start to run

Answer 17

Saw Gaik Beow v Cheong Yew Weng & Ors

• from the date of infringement or clear threat of infringement of the right

Question 18

ACTIONS TO RECOVER LAND

Scope of applicability of the law

Answer 18

S.9 applies to both action for SP of an agreement & declaration of title to land.

1) Saw Gaik Beok v Cheong Yew Weng & Ors
2) Nasri v Mesah

Question 19

ACTIONS TO RECOVER LAND

Recent application

CA, 2020

Answer 19

Eagaivallinayagi Ammal v Chin Min Hua & Ors

• P’s claim for SP to recover can be defeated by the defence of limitation under S.9.
• CA refers to Nasri v Mesah and Ponnusamy v Nathu Ram.

Question 20

ACTIONS TO RECOVER MONEY SECURED BY MORTGAGE

Overview

Answer 20

1) The law
2) When does time start to run
3) Applicability of the law

Question 21

ACTIONS TO RECOVER MONEY SECURED BY MORTGAGE

The law

Answer 21

1) The law: S.21 LA
12 years from the date of cause of action accrues.

2) When does time start to run: CIMB Bank Bhd v Sivadevi Sivalingam (FC, 2020):
The time of 12 years starts to run from the date of non-compliance with the notice; or upon the expiry of the notice.
Therefore, even if the Form 16D is issued after the period of 12 years, any Originating Summons filed by the chargee thereafter will not be barred by limitation under s. 21(1) of the Limitation Act.
However, if chargee took a long time to issue 16D notice, defence of laches may apply.

Question 22

ACTIONS TO RECOVER MONEY SECURED BY MORTGAGE

When does time start to run

FC, 2020

Answer 22

Sivadevi Sivalingam v CIMB Bank Bhd

• from the date the chargor fails to comply with Form 16D notice;
• or upon the expiry of the 16D notice.

Question 23

ACTIONS TO RECOVER MONEY SECURED BY MORTGAGE

Applicability of the law

FC, 2020

Answer 23

Sivadevi Sivalingam v CIMB Bank Bhd

• S.21 does not apply to Order for Sale.
• If the chargee has taken a long time to apply for OFS, other equitable defences may be relied by the chargor.

Question 24

ACTIONS IN RESPECT OF TRUST PROPERTY

Overview

Answer 24

1) The laws
2) Scope of the law
3) Applicability of the law

Question 25

ACTIONS IN RESPECT OF TRUST PROPERTY The laws

Answer 25

- S.22(1): No limitation for allegation of fraud or when P seeks return of trust property - S.22(2): 6 years limitation from the date of right of action accrues if P is seeking for damages for breach of trust

Question 26

ACTIONS IN RESPECT OF TRUST PROPERTY Scope of the law

Answer 26

Dato' Wira Nordin v Rajoo A/L Selvappan - S.22(1)(a): there is allegation of fraud or fraudulent breach of trust; - S.22(1)(b): trust property is in the possession of the trustee or he has in possession of the proceeds; - S.22(2): trust property is no longer in the possession of the trustee.

Question 27

ACTIONS IN RESPECT OF TRUST PROPERTY Applicability of the law

Answer 27

Koh Siew Keng v Koh Heng Jin - S.22 does not apply to constructive trust.

Question 28

ACTIONS AGAINST GOVERNMENT Overview

Answer 28

1) The law 2) When does time start to run 3) Applicability of the law 4) Application & example 5) Postponement of the limitation

Question 29

ACTIONS AGAINST GOVERNMENT The law

Answer 29

S.2 PAPA - 36 months from the date of cause of action accrues.

Question 30

ACTIONS AGAINST GOVERNMENT When does time start to run CA, 2007

Answer 30

Ronald Beadle v Hamzah HM Saman & Ors - single act, neglect or default, i.e. single act per se would constitute a complete cause of action: 36 months after the act, neglect or default. - continuance of injury or damages, i.e. an act depends on another act to form a complete cause of action: 36 months after the cessation of the injury or damage.

Question 31

ACTIONS AGAINST GOVERNMENT Applicability of the law

Answer 31

Ngo Ong Chung & Ors v Pengarah Tanah & Galian - to be entitled to the protection under S.2, an act must be intra vires or within the power of public authority.

Question 32

ACTIONS AGAINST GOVERNMENT Application & example - Non-payment of contract price

Answer 32

Lee Hock Ning v Government of Malaysia - S.2 is not applicable to an action for breach of contract; - i.e. non-payment of contract price or non-performance of contractual obligation.

Question 33

ACTIONS AGAINST GOVERNMENT Application & example - Reduction of land's tenure CA, 2015

Answer 33

Leo Leslie Armstrong v Jawatankuasa Kerja Tanah Wilayah Persekutuan KL - an act to reduce the tenure of land from perpetuity to leasehold is null & void as the authority has no power to act as such. - S.2 is not applicable to such a case.

Question 34

ACTIONS AGAINST GOVERNMENT Application & example - Application to Lembaga

Answer 34

Machincang Skyways Sdn Bhd & Anor v Lembaga Pembangunan Langkawi - By virtue of the Lembaga Pembangunan Langkawi Act, it is clear that S.2 PAPA applies to Lembaga.

Question 35

ACTIONS AGAINST GOVERNMENT Postponement of limitation

Answer 35

Ground of disability - Phua Chin Chew v KM & Ors - Both PAPA 1948 and Limitation Act must be read together in cases of unsoundness of mind in order to determine the limitation period of such cases if one of the parties is the Government. - Limitation period can be extended by reason of disability under S.24 LA; - In such a case, time will only start to run when the disability ceases.

Question 36

ACTIONS FOR FATAL ACCIDENT CLAIMS Overview

Answer 36

1) The law 2) When does time start to run 3) Whether it can be extended

Question 37

ACTIONS FOR FATAL ACCIDENT CLAIMS The law

Answer 37

1) Dependency claims for fatal accident - S.7 - 3 years after the death of the deceased 2) Estate claims for fatal accident - S.8 - 6 months after personal representative took out representation letter.

Question 38

ACTIONS FOR FATAL ACCIDENT CLAIMS When does time start to run

Answer 38

Kuah Hip Peng v Yap Yin - time runs from the death of the person whose support the P has been deprived of. - i.e. cause of action arises on death.

Question 39

ACTIONS FOR FATAL ACCIDENT CLAIMS Whether it can be extended

Answer 39

Kuan Hip Peng v Yap Yin - limitations under CLA are absolute & contain no exceptions; - it cannot be extended by any reasons. - exception: when there is an agreement to not plead the statute, but then this constitutes a new cause of action.