Chapter 2 - Pre-Litigation Issues - Pre-Requisites Flashcards
OVERVIEW
CAUSE OF ACTION
1) What is cause of action
2) When does cause action arise
3) Incomplete cause of action
LOCUS STANDI
1) What is a locus standi
2) Locus standi in enforcing public rights
3) Recent application on locus standi
LIMITATION
1) Policy reasons for limitation
2) Object of limitation
3) Effect of limitation
4) Whether must be specifically pleaded
5) Extension of limitation
6) Limitation period for specific cause of action
7) Equitable remedy
8) Res Judicata
CAUSE OF ACTION
What is cause of action
1) Statement of facts - Lim Kit Siang v Government of Malaysia
- statement of facts alleging P’s rights either at law or statute;
- which has been adversely prejudiced by the act of D.
2) Enforceable claim - Nasri v Mesrah
- entire set of facts that give rise to enforceable claim.
3) Factual situation & remedy - Hock Hua Bank Berhad v Leong Yew Chin
- Factual situation that exists which entitle one person to obtain remedy against another person from the court.
When does cause of action arise
Lim Kean v Choo Koon
- There is existence of a person who can sue & another who can be sued
- All the facts have happened which are material to be proved to entitle the P to succeed
Incomplete cause of action - Effect
O.18, r.19(1)(a)
Incomplete cause of action - Examples
1) Incomplete elements - Taib bin Awang v Mohamad bin Abdullah
- HC struck-out the action for malicious prosecution since the elements are not complete
2) Default in repayment of loan - Sio Koon Lin v SB Mehra
LOCUS STANDI
What is locus standi
Government of Malaysia v Lim Kit Siang
- a person must satisfy the court that he possesses sufficient interest in the issue raised in the proceedings
Locus standi in enforcing public rights
Tan Sri Haji Othman Saat v Mohamed bin Ismail
- It is sufficient to show that the breach of public duty affects the P’s interests substantially or that P has some genuine interest.
Recent application
FC, 2018
Tra Mining (Malaysia) Sdn Bhd v Thien Hong Teck & Ors
1) Meaning of locus standi: legal capacity or right to appear before court.
2) Duty of court in determining locus: proceed on the basis that what is alleged in the SOC is true.
3) Jurisdiction to uphold plea of no locus: shall be exercised carefully & in the clearest case with no possibility of doubt.
LIMITATION
Policy reasons for limitation
UNFAIR
- It is unfair that D should have claim hanging over him for indefinite time
PROOF BECOMES MORE DIFFICULT
- Time limit should be imposed as proof becomes more difficult over time.
Object of limitation
Credit Corporation (M) Bhd v Fong Tak Sin
- DISCOURAGE: to discourage P from sleeping on his rights
- DEFINITE: to have definite end to litigation
Effect of limitation
RFD
- REMEDY: it bars P’s remedy to the action;
- FAILURE: P’s action will fail in limine upon plea of limitation by D
- DEFENCE: Provides for absolute defence for D which must be specifically pleaded
Whether must be specifically pleaded
STATUTORY DIRECTIONS
- S.4 LA: must be specifically pleaded to operate as a bar.
- O.18, r.8: relevant statutory limitation must be specifically pleaded.
Whether must be specifically pleaded
CASE LAWS DIRECTIONS
General Rule
TASJA Sdn Bhd v Golden Approach Sdn Bhd
- PAPA or CLA: can be struck-out without specifically being pleaded
- LA: must be pleaded before it is struck out
Whether must be specifically pleaded
CASE LAWS DIRECTIONS
Examples
1) CLA - Kuah Hip Peng
- Court held that if D relies on absolute limitation under CLA, it does not be specifically pleaded.
2) SUMMONS - Tham Kok Onn v Perwira Habib Bank
- S.4 & O.18, r.18 does not apply to summons.
Extension of limitation
Lee Lee Cheng v Seow Peng Kwai
- Court does not have discretionary power to extend limitation period.
