Chapter 4 - Parties

Question 1

PARTIES

Overview

Answer 1

1) General rule

2) Exceptions

Question 2

GENERAL RULE ON PARTIES

Overview

Answer 2

1) A person

2) A body corporate

Question 3

GENERAL RULE ON PARTIES

A person

Answer 3

A person: O.5, r.6(1)

• Any person may begin & carry on proceedings in court by a solicitor or in person.

Question 4

GENERAL RULE ON PARTIES

A body corporate

Answer 4

1) Who is a body corporate - S.3 CA 2016:

• Any corporate entity;
  Include foreign companies, limited liability partnership & foreign limited liability partnership.

2) The law - O.5, r.6(2)
- A body corporate may not begin or carry any such proceedings otherwise than by a solicitor;

Question 5

EXCEPTIONS ON PARTIES

Overview

Answer 5

1) Persons under disability
2) Partnership
3) Sole proprietor or individual carrying business on another name
4) Government
5) YDPA & the Royals
6) Foreign sovereign & states
7) Societies
8) Trade unions
9) Deceased persons
10) Representative actions

Question 6

EXCEPTIONS ON PARTIES

Persons under disability

Answer 6

O.76:

• r.2(1) & (2): litigation representative.
• r.2(3): act by a solicitor
• r.3(7): consent
• r.14(2): service on persons under disability

Question 7

EXCEPTIONS ON PARTIES

Partnership firms

Answer 7

1) What is partnership - S.3(1)
Partnership Act:

• A business carried out by two or more person;
• In view to make a profit out such business.

2) The law - O.77, r.1:
- sue or be sued in the name of the firm.

Question 8

EXCEPTIONS ON PARTIES

Sole proprietor or individual carrying business on another name

Answer 8

1) The law - O.77, r.9:

• Action against others must be brought in his own name;
• But he can be sued in his name or his business name.

2) Application - Arkitek Bersatu v Sempurna Cekap Sdn Bhd:

• As a matter of law the plaintiff can only be sued under the name of his business;
• But he cannot sue under the name of his business.

Question 9

EXCEPTIONS ON PARTIES

Government

Answer 9

1) The law:

• O.73:
• S.3 GPA:
• S.4 GPA:

2) Action for tort - Kerajaan Malaysia & Ors v Lay Kee Tee & Ors:

• any claim in tort against the Government, the officer of the Government who was responsible for the alleged tortious act must be made a party;
• his liability must be established before the Government can be made liable vicariously as principal.

3) Action for defamation - Chong Chieng Jen v Government of State of Sarawak:

• Under s. 3 of the GPA, if an individual makes an allegation critical of a Government, which allegation if made against another individual, would afford ground for that other individual to sue, the Government may then sue in defamation.
  There is nothing under s. 3 of the GPA that prohibits or restricts the Government from suing in defamation.

Question 10

EXCEPTIONS ON PARTIES

YDPA & the Royals

Answer 10

1) Consent of AG:
- Article 183
2) The rulers:
- Article 181(2)
3) YDPA:
- Article 32(1)

Question 11

EXCEPTIONS ON PARTIES

Foreign sovereign & states

Answer 11

1) Mighell v Sultan of Johore:
- Court of Appeal held that the Sultan of Johore was free from liability to be sued in the English courts.
2) Duff Development v Govt of Kelantan:
- House of Lords held that the Government of Kelantan could not be sued in the English Courts.
3) General rule - Village Holdings v Her Majesty the Queen in Right of Canada:
- Malaysia adheres to the “pure absolute doctrine of state immunity” which means that as a matter of international law, a sovereign state cannot be taken proceedings against in the courts of another sovereign state without its will.

Question 12

EXCEPTIONS ON PARTIES

Societies

Answer 12

1) The law - S.9 Societies Act:

• a society can only sue through its public officer.
• a society can be sued in the name of their public officers or, in the absence of a public officer, in the name of any office-bearer of that society.

2) Scope - Chin Mee Keong & Ors v Pesuruhjaya Sukan:

General rule:

• An association cannot sue in its own name;
• an action should be commenced by its registered public officer.

Exception:

• If none is registered as such, then it is permissible for any office bearer of the Association to mount a claim for and on behalf of its members.
• This would put him on the same footing as a representative for others having the same interest in the proceeding which is permitted under O.15, r.12.
  3) Scope - S Kulasingam & Anor v. Commisioner of Lands, Federal Territory & Ors:
• a society may sue in the name of its public officer;
• in the absence of a registered public officer, a representative claimed by one or more of its office bearers on behalf of the society would suffice.

3) Application - Malayan Banking Bhd v Chairman Sarawak Housing Developers’ Association (FC, 2014):

• The action was not commenced in the name of the Association & it did not breach the rule of the inability of an Association to sue in its name.
• As no public officer was declared and registered, the respondent had initiated a representative action, as permitted by O. 15 r. 12.
• A society may sue in the name of its public officer but in the absence of a registered public officer, a representative claim by one or more of its office bearers on behalf of the society would suffice.

Question 13

EXCEPTIONS ON PARTIES

Trade Unions

Answer 13

S.2 Trade Union Act

Question 14

EXCEPTIONS ON PARTIES

Deceased persons - overview

Answer 14

1) Cause of action & general rule
2) Intestate estate
3) Testate estate

Question 15

DECEASED PERSONS

Cause of action & general rule

Answer 15

1) The law - S.8 CLA:
- All cause of actions survive with the deceased except:

• Defamation;
• Seduction;
• Inducing one spouse to leave or remain; or
• Damages on the ground of adultery.

2) The general rule - Airey v Airey:
- S.8(3)(b): cause of action can be filed only after the deceased’s personal representatives have taken out representation.

Question 16

INTESTATE ESTATE

Overview

Answer 16

1) General rule
2) Meaning of extraction of grant
3) Effect of suing without LA
4) Whether subsequent grant of LA will validate the will
5) When no grant has been extracted

Question 17

INTESTATE ESTATE

General rule

Answer 17

Meyappa Chetty v Supramanian Chetty:

-Cannot sue & be sued until letter of administration are extracted.
The petitioner is duly clothed with representative character only after LA is taken out.

Question 18

INTESTATE ESTATE

Meaning of extraction of grant

Answer 18

Ruhani bt Mohlat v Abdul Karim:

• an action can be commenced after the grant has been approved, although it had not been extracted.

Question 19

INTESTATE ESTATE

Effect of suing without LA

Answer 19

1) Ang Hoi Yin v Sim Sie Hau:
- If he has not extracted LA at the commencement of action, the writ must be regarded as a nullity from the beginning and be set aside.
2) Controller of Income Tax v Yan Tai Min:
- the action commenced without taking out LA is incompetent & the writ was a nullity.

Question 20

INTESTATE ESTATE

Whether subsequent grant of LA will validate the will

Answer 20

1) Ingall v Moran:

• When writ is issued with no LA extracted at the date of the writ, it is a nullity from the beginning.
• Subsequent grant of LA DID NOT operate retrospectively to validate the action.

2) Jigarlal Kantilal Doshi v Amanah Raya Bhd:
- CA applied Ingall & held that the LA pendente lite did not have retrospective effect to clothe ARB with the authority to carry on with the suit.
3) Controller of Income Tax v Yan Tai Min:

• the action commenced without taking out LA is incompetent & the writ was a nullity from the beginning.
• Subsequent LA taken out will NOT validate the writ issued initially (per Ingall v Moran).

Question 21

INTESTATE ESTATE

When no grant has been extracted

Answer 21

1) The law - S.39(1) PAA:
- when a person dies intestate, his movable and immovable property would vest in the Official Administrator until administration is granted in respect of it.
2) OA cannot be sued - Selvarajah & Anor v Official Administrator & Anor:

• The Official Administrator is merely the receiver of the intestate’s estate pending the grant of the letters of administration;
• therefore he cannot be sued in that capacity.

Question 22

TESTATE ESTATE

Overview

Answer 22

1) General rule
2) Exception - procedural remedy
3) Exception - substitution

Question 23

TESTATE ESTATE

Exception - procedural remedy

Answer 23

1) The law - O.15, r.6A:
- permits the commencement of an action against the estate of a deceased even before the extraction of letters of representation.
2) Essential procedures:

• Service: r.6A(4)(a)
• Notice to anyone having interest: r.6A(5)
• Appointment of official administrator: r.6A(5A)
• JID cannot be entered: S.30 PAA 1959

3) Failure to comply with the terms - Yong Siew Choon v Kerajaan Malaysia:

• Non-compliance renders the action more than a mere irregularity;
• the entire action is badly constituted as a matter of substantive law.

4) Consent order as representative - Poraviappan Arunasalam Pillay v Periasamy Sithambaram Pillai (FC, 2015):

• Under O.15, r.6A(4)(a), there is no requirement that probate or LA have been granted for a person to be appointed as the representative of the estate.
• The consent order against the deceased’s estate which was properly represented by the first defendant as the duly appointed legal representative of the deceased’s estate was properly obtained & it was enforceable against the deceased’s estate.

Question 24

TESTATE ESTATE

Exception - substitution

Answer 24

1) The law - O.15, r7:
- Court may order that another person be made a party to the action and that the proceedings be carried on as if he had been substituted for the original party.
2) Whether consent of the new party is required - Ex P Guan Teik Sdn Bhd (Substituting Lim Oo Guan, deceased):
- application does not require the consent of the person who is to be made a party.
3) Exercise of discretion - Government of Malaysia v Taib Abdul Rahman:
- until administration or probate is granted, the court has the discretion to order that his son or any other person be made a party.

Question 25

REPRESENTATIVE ACTION Overview

Answer 25

1) The law & object 2) Pre-requisites 3) Other requirements

Question 26

REPRESENTATIVE ACTION The law & object

Answer 26

1) The law - O.15, r.12: - numerous persons have the same interest in the proceedings; - proceedings may be begun by or against any one or more of the as representing all. 2) Object - Duke of Bedford v Ellis: - Saving of the multiplication of actions with attendant costs when a suit involves a number of persons.

Question 27

REPRESENTATIVE ACTION Pre-requisites

Answer 27

Palmco Holdings v Sakapp Commodities: 1) NUMEROUS: there must be numerous persons involved; 2) INTEREST: there must be common interest or grievance in regard to the subject matter; 3) BENEFICIAL: the relief sought must be beneficial to the class as a whole & not only personal. 4) DEFINED CLASS: the parties represented must be of a definite class & it must not be difficult to determine whether a person is a member of that class.

Question 28

REPRESENTATIVE ACTION Other requirements

Answer 28

1) No cause of action in personam - Atip bin Ali v Josephine Doris Nunis: - Defamation involves a right in personam and close relationship with the person defamed alone will not give rise to the right on the part of other persons to sue the defendant; - representative proceedings cannot be taken in defamation proceedings. 2) Cannot be brought when relief sought is solely damages - Mark & Co Ltd v Knight Steamship Company Limited: - Damages are personal; no representative action can lie where the sole relief sought is damages; - Damages have to be proved separately in the case of each plaintiff, and therefore the possibility of representation ceases.