Chapter 2 - Pre-Litigation Issues - Limitation Period for Specific Action Flashcards by Amir Zahin Azham

OVERVIEW

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

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ACTIONS IN TORT

Overview

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

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ACTIONS IN TORT

The law

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

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ACTIONS IN TORT

When does time start to run

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

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ACTIONS IN TORT

Examples & Application

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.

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ACTIONS IN TORT

Recent Application

CA, 2020

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

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ACTIONS IN TORT OF NEGLIGENCE NOT INVOLVING PERSONAL INJURIES

Overview

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

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ACTIONS IN TORT OF NEGLIGENCE NOT INVOLVING PERSONAL INJURIES

The law & applicability

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.

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ACTIONS IN TORT OF NEGLIGENCE NOT INVOLVING PERSONAL INJURIES

When does time start running

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

WHEN:

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

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ACTIONS IN TORT OF NEGLIGENCE NOT INVOLVING PERSONAL INJURIES

Meaning of knowledge

MFI

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

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

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ACTIONS IN TORT OF NEGLIGENCE NOT INVOLVING PERSONAL INJURIES

Extent of knowledge

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.

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ACTIONS IN CONTRACT

Overview

1) The law

2) Application

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ACTIONS IN CONTRACT

The law

S.6 LA

6 years from the date of cause of action accrues.

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ACTIONS IN CONTRACT

Application

On void contract - Khatijah Abdullah v Mohd Isa bin Biran

S.6 does not apply to void contract

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ACTIONS TO RECOVER LAND

Overview

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

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ACTIONS TO RECOVER LAND

The law

S.9 LA

12 years from the date of cause of action accrues.

ACTIONS TO RECOVER LAND

When does time start to run

Saw Gaik Beow v Cheong Yew Weng & Ors

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

ACTIONS TO RECOVER LAND

Scope of applicability of the law

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

ACTIONS TO RECOVER LAND

Recent application

CA, 2020

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.

ACTIONS TO RECOVER MONEY SECURED BY MORTGAGE

Overview

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

ACTIONS TO RECOVER MONEY SECURED BY MORTGAGE

The law

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.

ACTIONS TO RECOVER MONEY SECURED BY MORTGAGE

When does time start to run

FC, 2020

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.

ACTIONS TO RECOVER MONEY SECURED BY MORTGAGE

Applicability of the law

FC, 2020

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.

ACTIONS IN RESPECT OF TRUST PROPERTY

Overview

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

ACTIONS IN RESPECT OF TRUST PROPERTY The laws

- 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

ACTIONS IN RESPECT OF TRUST PROPERTY Scope of the law

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.

ACTIONS IN RESPECT OF TRUST PROPERTY Applicability of the law

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

ACTIONS AGAINST GOVERNMENT Overview

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

ACTIONS AGAINST GOVERNMENT The law

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

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

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.

ACTIONS AGAINST GOVERNMENT Applicability of the law

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.

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

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.

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

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.

ACTIONS AGAINST GOVERNMENT Application & example - Application to Lembaga

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.

ACTIONS AGAINST GOVERNMENT Postponement of limitation

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.

ACTIONS FOR FATAL ACCIDENT CLAIMS Overview

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

ACTIONS FOR FATAL ACCIDENT CLAIMS The law

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.

ACTIONS FOR FATAL ACCIDENT CLAIMS When does time start to run

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.

ACTIONS FOR FATAL ACCIDENT CLAIMS Whether it can be extended

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.