Chapter 2 - Pre-Litigation Issues - Limitation Period for Specific Action Flashcards
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
ACTIONS IN TORT
Overview
1) The law
2) When does time start to run
3) Examples & Application
4) Recent application
ACTIONS IN TORT
The law
- S.6 LA: 6 years from the date of cause of action accrues
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
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.
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
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
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.
ACTIONS IN TORT OF NEGLIGENCE NOT INVOLVING PERSONAL INJURIES
When does time start running
KI
S.6A(4)(a) - KI
WHEN:
- P or any person has KNOWLEDGE of the damage; and
- Has knowledge on the IDENTITY of the D.
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
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.
ACTIONS IN CONTRACT
Overview
1) The law
2) Application
ACTIONS IN CONTRACT
The law
S.6 LA
- 6 years from the date of cause of action accrues.
ACTIONS IN CONTRACT
Application
On void contract - Khatijah Abdullah v Mohd Isa bin Biran
- S.6 does not apply to void contract
ACTIONS TO RECOVER LAND
Overview
1) The law
2) When does time start to run
3) Scope & applicability of the law
4) Recent application
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.
