1. Preliminary Matters Flashcards
Purpose of Civil Procedure
To facilitate the attainment of justice [Boustead]
Ensure speedy and efficient administration of justice - Thus FORMS and rules must be strictly followed to the letter [Dato Wong Gek Meng]
Practice Directions - compliance necessary?
No more than administrative in nature [Jayasankaran] but must be complied with [Megat].
Technical Objections
(Non compliance with rules)
- Non compliance with Forms? Rules? Both?
- Prerequisite step to raise the objection? Why? What if not done? Absolutely necessary?
- Inadvertent mistake?
- Intentional non-compliance?
Ensure speedy and efficient administration of justice - Thus FORMS and rules must be strictly followed to the letter [Dato Wong Gek Meng]
But inadvertent non-compliance treated as irregularity (technical objections) - proceedings not void [O1A / O2]
O1A cannot apply where there is intentional non-compliance [Datuk Captain Hamzah]
OP must be given notice (given purpose of civil procedure is to create level playing field) - avoid trial by ambush
No excuse for delay in providing notice, whether intentional or otherwise
Failure to give preliminary notice is deemed to be waiver of rights to raise the objection
Define Cause of Action
When does Cause of Action accrue?
Define = all facts which is material to be proved in order for the plaintiff to succeed
Accrues when [Lim Kean]:
- a party that can sue
- a party that can be sued
- all facts have happened which is material to be proved in order for the plaintiff to succeed (the material ingredients/elements of the claim)
Expounded [Lim Kit Siang]:
- the plaintiff must have a right at law or by statute
- the right has been affect by the D’s act
What happens if cause of action is incomplete?
Case will get struck out ie. action fails [Taib bin Awang]
Why is cause of action important
- Define mode of commencement (form of proceedings)
- Determine limitation period
- Determine which court to go
- Determine type of remedies available
Nature of limitation & how does it affect cause of action
Time allowed by the statute to bring an action
* Procedural bar
* Extinguishes P’s remedy
N/B: Won’t affect cause of action
Rationale of Limitation
[Credit Corporation v Fong Tak Sin]
- Discourage P from sleeping on his rights
- Protects D from stale claims
- Thus ensuring a definite end to litigation
Limitation period for contract/tort
- When does time begin to run?
- What if damage not discoverable?
- What if can’t find Defendant?
s6(1) Limitation Act
- 6 years from the date on which cause of action accrued ie. date of damage
Time begins to run despite damages is a latent damage and is not discoverable
- Tort [Pirelli Cable Works v Oscar]
- Personal Injury [Cartledge v Jopling]
Time begins to run despite inability to determine identity/whereabouts of the D (no fault on the P’s end)
- [Credit Corporation v Fong Tak Sin]
- Rationale: D exists, so there is a person to be sued, just P don’t know the identity/whereabouts
Limitation period for recovery of land
- What is right to recover land?
s9(1) Limitation Act
- 12 years from the date on which right of action accrued
ie. right to: [Nasri v Mesah]
- recover possession (no rent paid)
- recover ownership (vendor didn’t transfer)
- obtain specific performance (only to recover land e.g. V sold but refuse to proceed)
Limitation period for
- action upon any judgment
- action to enforce charge/recover principal secured
- action to recover rent
s6(3) Limitation Act
- 12 years from the date on which judgement became enforceable
s21(1) Limitation Act
- 12 years from the date on which right to receive money accrued
s20 Limitation Act
- 6 years from the date on which arrears become due
Limitation period for trust matters
s22(1) Limitation Act
- no limitation if:
(a) fraudulent breach of trust by trustee or to which trustee was privy
(b) action to recover trust property or the proceeds
s22(2) Limitation Act
- for any other type of breach: 6 years from the date on which right of action accrued
Limitation period for claim to personal estate
s23 Limitation Act
- 12 years from the date when right to receive share or interest therein accrued
Effect of limitation period if plaintiff is an infant or is mentally disabled
s24 Limitation Act: Extension of limitation period
- 6 years from the date on which person ceased to be under disability
- disability = minor/infant or mental disability
- mental disability as defined by the Mental Health Act
- disability cease upon:
(a) death
(b) attain age of majority: 18 years
(c) recovery from mental illness
(d) committee appointed to handle affairs of mentally disabled - intermittent lapses are irrelevant once there is a recovery from mental illness - time will continue to run
Effect on limitation period if claim acknowledged by defendant
- What is the effect?
- What kind of action is considered an acknowledgement?
- Affected by technology?
s26 Limitation Act: Fresh accrual of action
(1) right to recover land - title acknowledged - right deemed to be accrued from the date of acknowledgement
(2) right to enforce charge - any payment made - right deemed to be accrued from the date of last payment
(3) right to recover debt/other liquidated pecuniary claims, or any claim to the personal estate - claim acknowledged or payment made - right deemed to be accrued from the date of acknowledgement or date of last payment [See eg. TNB v Kamarstone]
** s27 Limitation Act
Acknowledgement must be in writing and signed by the defendant
- SMS or any other electronic messages valid under Electronic Commerce Act [Yam Kong Seng]
