4. Parties Flashcards
Plaintiff cannot indulge in vagueness - Capacity to sue must be stated clearly
- Case?
- Curable?
[Arkitek Bersatu v Sempurna] Imperative for P to state at the outset his legal personality to sue. Otherwise, court is entitled to rule that he has no legal personality to sue, thus no reasonable cause of action = case can be struck out
This is a fundamental defect incurable by O1A - parties = fundamental ingredient of the cause of action [Defined in Lim Kean v Choo Koon & Govt of Msia v Lim Kit Siang]
Pre-requisite for P/D
P/D act in person or solicitor (O5)
- age of majority (sui juris)
- mentally sound
If not then = disabled person (O76)
- need litigation representative and can only act by a solicitor
- LR may be liable personally but is entitled to be indemnified
Legal Personality of:
- Company
- Societies
- Trade Unions
- Partnership
- LLP
- Government
- Sole Proprietor - Enterprise
- Foreign Bodies
Company: s16(5) Companies Act 1965
- can sue and be sued in its own name
- or the particular legislation e.g. Legal Profession Act
- [Salomon v Salomon] company is a separate legal entity
Trade Unions: s25 Trade Unions Act 1959
- can sue or be sued in its own name
Societies: s9 Societies Act 1966
- no separate legal personality
- can sue or be sued in the name of its public officer; can be sued in the name of its office bearer
Partnerships: O77
- can sue or be sued in the name of the partnership or in the name of individual partners
- advantage: easier for service & enforcement of judgment
- *Limited Liability Partnership (LLP Act 2012)
- separate legal personality
- sue or be sued in its own name
Individual Trading as a Firm = Enterprise (O77 r 9 under Partnership header)
- may be sued in his business name but can only sue in its own name
- [Arkitek Bersatu v Sempurna] cannot sue under the name of the business
Government
- Government Proceedings Act 1956
- Govt of M’sia / State Govt of X
- [Lay Kee Tee] Fed Court: for tortious claim, identity & liability of the particular officer must be ascertained before govt can be liable - govt can only be vicariously liable
Foreign Sovereign & Mission
- Immunity
- International Organisations (Privileges and Immunities) Act 1992
Estate w/ cause of actions
- s8(1) CLA 1956: causes of action shall survive against or for the benefit of the deceased’s estate - except: seduction/adultery/defamation/induce spouse to leave
Probate - executor
- executor may sue without waiting for grant to be extracted since his title to the estate is derived from the will not from probate [Chetty v Chetty]
- but cannot obtain decree - not because lack of title but because production of probate is the only way for him to prove his title to the court
- cannot be sued until grant has been extracted because although named in the will he may not want to act as executor [Pitchey]
Inestate - Administrator
- [Yan Tai Min]
- cannot sue or be sued until a grant has been extracted
- it is only until grant is extracted that the administrator can be said to be fully clothed with a representative character
- writ regarded as nullity from the beginning
Issuing writ in the name of the deceased
Issuing writ against a deceased defendant
D no representative?
- writ issued in the name of a deceased plaintiff is a nullity [Dawson v Dove]
- writ issued against a deceased defendant treated to be issued against his estate [O15 r6A(3)]
- cf D died halfway through the proceedings: court to substitute another person
- if estate has no executor/administrator:
(1) apply O15 r6A(2): “personal representatives”
(2) issue and serve the writ to the Official Administrator (s39 Probate and Administration Act 1959)
(3) P apply to for grant (s30 Probate and Administration Act 1959)
Representative Actions
[Palmco Holdings v Sakapp]
- common interest
- common grievance (same cause of action)
- remedies beneficial to all
Joinder of Parties
O15 (@ commencement of proceedings)
- common Q of law
- relief claimed based on same transactions
- Ps must be joined otherwise made D
- D must be joined if jointly and not severally liable
Misjoinder & Nonjoinder of parties
O15 (halfway through the proceedings)
- wrongly joined, or person not joined
- court may add, substitute or strike out parties (own motion or parties’ application under Form 57)
- addition of parties = ought to have been joined / presence necessary (may not be liable)
Adding P2 or D2
- if limitation period expired?
- consent?
- O15 r6(2)(b)
- have to amend cause of action (statement of claim) if add co-P
- can’t add if limitation period has expired [Govt v Mohamed Amin bin Hassan]
- P2 needs to consent
- D2 can be added dispute P’s objection [Hee Awa] - ultimately it’s up the court’s discretion [Tajjul Arrifin]
Intervener
- purpose
- consent?
- show what type of interest?
- exception?
- to prevent injustice being done to a third party
- party can be added against the wishes of the P - as long as can satisfy O15 r6(2)(b)(ii)
- must show interest affected:
(i) legal interest [Pegang Mining v Choong Sam]
(ii) pecuniary interest [Arab Malaysian v Jamaluddin]
(iii) equitable interest [Tohtonku v Superace]
Exception: tenancy intervener
- O15 r10