4. Parties Flashcards

You may prefer our related Brainscape-certified flashcards:
1
Q

Plaintiff cannot indulge in vagueness - Capacity to sue must be stated clearly

  • Case?
  • Curable?
A

[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]

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Pre-requisite for P/D

A

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
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Legal Personality of:

  • Company
  • Societies
  • Trade Unions
  • Partnership
  • LLP
  • Government
  • Sole Proprietor - Enterprise
  • Foreign Bodies
A

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
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Estate w/ cause of actions

A
  • 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
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Issuing writ in the name of the deceased

Issuing writ against a deceased defendant

D no representative?

A
  • 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)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Representative Actions

A

[Palmco Holdings v Sakapp]

  • common interest
  • common grievance (same cause of action)
  • remedies beneficial to all
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Joinder of Parties

A

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
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Misjoinder & Nonjoinder of parties

A

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)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Adding P2 or D2

  • if limitation period expired?
  • consent?
A
  • 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]
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Intervener

  • purpose
  • consent?
  • show what type of interest?
  • exception?
A
  • 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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly