Limitation Period

LECTURE 2(2)
} To understand and apply the knowledge on limitation
period in civil proceedings.
 Calculation of the
Is the action within limitation period
the statutory Is it Statutory
e.g. in contract-6
limitation period? barred?
years, but from
when.
} A valid cause of action will be meaningless if it is
filed/commenced after limitation period has expired
} Limitation period is the time limit prescribed by law
within which a person must enforce his/her claim in
court.
} It is a limitation imposed by statute(s) upon any party
who wish to bring a claim in court.
} If the plaintiff ’s action is filed outside the limitation
period, the defendant may raise a defence that the
plaintiff ’s action is time barred, unless the time limit is
subject to an extension or exclusion.
The General Statute
} Law of limitation deals with the law restricting the time in which
an action can be brought.
} Malaysia’s general statute of limitations is the Limitation Act
1953 which is the main law governing limitation period in
Malaysia.
} Sec 2: “Action” includes a suit or any other proceeding in a court
of law.
} Sec 3: This Act shall not apply to any action or arbitration for
which a period of limitation is prescribed by any other written
law.
} Sec 4: Nothing in this Act shall operate as a bar to an action
unless this Act has been expressly pleaded as a defence thereto in
any case where under any written law relating to civil procedure
for the time being in force such a defence is required to be so
pleaded.

5
} House Buyer Tribunal v Unique Creations Sdn Bhd [2014] 3 MLJ 850,
CA,
} Facts: the appellant bought an apartment unit from the respondent, a
housing developer. The appellant filed a claim for liquidated ascertained
damages (‘LAD’) due to late delivery, before the tribunal pursuant to the
Housing Development (Control and Licensing) Act 1966 ss 16L, 16M(1) and
16N(2).
} the respondent contended that the appellant's claim was founded on
contract and thus was time barred by virtue of s 6(1)(a) LA.
} Held (COA) that under the Housing Development (Control and Licensing)
Act 1966, as long as the claim of the aggrieved homebuyer is made within
12 months of the delivery of vacant possession, the tribunal has the
jurisdiction to hear the claim and make an award. The court held that LA
does not apply to a homebuyer who makes his claim pursuant to s 16N(2). A
person making a claim under s 16N(2) is subject to a different limitation
period. Section 16N(2) is a special or specific provision of law on limitation
applicable to homebuyers making a claim before the tribunal pursuant to
the Act;
} In Kerajaan Malaysia v Pangkal Permata (M) Sdn
Bhd [2013] 4 MLJ 937
} Facts: the plaintiff had applied to enter summary
judgment against the defendant for unpaid tax
amounting to RM1.9m pursuant to the Income Tax Act
1967. The defendant contended that the plaintiff's claim
was time-barred under the Limitation Act 1953.
} Held: proviso to s 33(1) of the Income Tax Act 1967
expressly excluded the application of the Limitation Act
1953 to any proceedings by the Government to recover
any tax.
} Gopal Sri Ram, JCA in Kong Cheng Wah v Sg Way
Leasing
} “It is a cardinal principle of law that when a litigant
seeks the intervention of the court in a matter that
affects his rights, he must do so timeously.

} The maxim, vigilantibus, non dormentibus, jura

subveniunt though having its origin in the court of
chancery, is of universal application”
* ** The law assists those that are vigilant with their
rights, and not those that sleep thereupon.
} In his judgment, Hashim Yeop A. Sani in Fong Tak
Seng v Credit Corporation (M) Bhd [1991] 1 MLJ
409, the doctrine of limitation is based on 2
considerations;
◦ there is presumption that a right not exercised for a long
time is non-existent.

◦ The other consideration is that it is necessary that matters

of right in general should not be left too long in a state of
uncertainty or suspense.
} Common law – doctrine of laches/ acquisence
} Statute
◦ Limitation Act 1953*
◦ Public Authorities Protection Act 1948*
◦ Civil Law Act 1956*
◦ (Sabah) Limitation Ordinance (Cap 72)
◦ Railway Act 1991
◦ Income Tax 1967
Acquiescence (tending to accept or allow)
} Refers to a situation where a person claiming equitable relief has lain for a
long time and so conducted himself that it would be inequitable to permit
him to complain of the defendant’s action, the court will refuse to grant
such relief.
} The plaintiff stopped from enforcing his rights because he had been
‘sleeping’ on his rights to bring the action.

Laches (out of time)

} Unreasonable delay pursuing a right or claim ... in a way that prejudices the
[opposing] party. The plaintiff had not been reasonable diligent in seeking
his relief.
} However, if there is an expressed statutory provision providing for period of
limitation for the plaintiff ’s claim, there is no room for equitable doctrine of
laches.
} Sec 6(1) LA: Save as hereinafter provided the following actions shall not be brought
after the expiration of six years from the date on which the cause of action accrued,
that is to say—(a) actions founded on a contract or on tort.
◦ A lease may be a contract and governed by s 6(1) (HL Bannerji v Chin Cheng Realty (Pte) Ltd
[1983] 1 MLJ 18
◦ An action based on a dishonoured bill of exchange is an action founded on contract (Leong Yew
Chin v Hock Hua Bank Bhd [2008] 3 MLJ 340

} Action based on contract or tort : 6 years from the date on which the COA accrued.

Loh Wau Lian v SEA Housing Corp Sdn Bhd [1984] 2 MLJ 280.
} A house was delivered late, namely, delivered on 7 November 1977 instead of 18
September 1975 as promised.
} The plaintiff claimed the agreed liquidated damages of 8% per annum for late
delivery and filed his or her action on 9 September 1982.
} Held: The action was considered time barred.

} Exception: Limitation to actions to recover land and rent under a contract is 12

years - Sec 9(1)

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} Sec 9(1) No action shall be brought by any person to recover any land after the expiration
of twelve years from the date on which the right of action accrued to him, or if it first
accrued to some person through whom he claims, to that person. (recovery of land and
not damages)

} ISSUE: ACTION TO RECOVER LAND RELATING TO A CONTRACT

} In the event of a breach of sale and purchase agreement in respect of a purchase of a
land.
} Which provision should be applicable? Section 6(1) or section 9(1)?

} CASE 1:
} Ponnusamy & Anor v Nanthu Ram [1959] MLJ 86
} The respondent sold his land to Naina (whose will appellants are the executors) and
executed a transfer in statutory form.
} Naina entered into possession but did not register the transfer.
} He died on February 11, 1949 and thereupon the transfer became unregistrable.
} The appellants brought an action on December 1, 1956 claiming declaration of title to the
land and an order on the registering authority to register appellants as proprietors.
} Held: the action was one to recover land within the meaning of section 9 of the Limitation
Ordinance the period of limitation for such an action is 12 years and the present action
was not barred.

13
 Cont..

CASE 2:
Nasri v Mesah [1971] 1 MLJ 32
} Facts: The plaintiff bought a land from the defendant and later issued document of title in
respect of the said land.
} No document of transfer was executed as it would not have been possible to have it
registered because of the moratorium then in force, but the defendant undertook to execute
a valid and registrable transfer of the land in favour of the plaintiff when the moratorium
was lifted.
} The plaintiff occupied the land and paid the quit rent.
} Upon lifting of the moratorium, the plaintiff requested the defendant to execute the
registration in favour of the plaintiff but to no avail.
} The plaintiff sued for specific performance. However the defendant claimed the limitation
has set in.
} Held: whether the action is for specific performance of an agreement for the sale of land or
for a declaration of title to land, it is essentially an action to recover land, so that the period
of limitation would be 12 years in either case.

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CASE 3:
Lai Chooi v Ho Seng Kung & Anor [2013] 6 MLJ 591
} Facts: Appellant/ Plaintiff filed an action against Respondent/
Defendant seeking specific performance of a sale and purchase
agreement dated 30 January 1997, damages in lieu of specific
performance, consequential damages for destruction of structure of the
property in question and costs.
} The cause of action accrued on 27 June 1998 being the last date for
completion of the sale agreement. The action was filed on 15 October
2009. Respondent/ Defendant applied to strike out the action on
grounds of time barred (High Court allowed Respondent/Defendant
application).
} COA: allowed the appeal and held that the cause of
action in the present action was essentially an action to
recover land and for specific performance of an
agreement for a sale of land. Under sub-s 9(1) of the
Limitation Act 1953, the limitation period to bring an
action for recovery of land is 12 years from the date of
accrual of the cause of action. In the present case, the
cause of action accrued on 27 June 1998. Thus, the 12
year limitation only set in on 26 June 2010. The present
action was filed on 15 October 2009, well within the 12
year limitation period.
Cont..

} EXCEPTION
} Sec 9(1) is not applicable to action to recover State land or land reserve for a
public purpose and to the recovery of land by a registered proprietor under
National Land Code.
} Sec 9(2) Nothing in this section or in subsection 11(2) of this Act shall be
deemed to affect the Government Proceedings Act 1956 [Act 359], or the
National Land Code (Penang and Malacca Titles) Act 1963 [Act 518], or to
apply—
(a) to the Ruler of any State, in respect of State land or land reserved for a
public purpose situate in such State; or
(b) to any person registered under or by virtue of the National Land Code
1965 [Act 56 of 1965], or the National Land Code (Penang and Malacca
Titles) Act 1963, as the proprietor of the land sought to be recovered,
or to any person claiming through a person so registered, except to the
extent that such Code or Act so provides or permits.

17
Cont…

} The limitation under sec 9(1) also does not apply in delays for an action
where the plaintiff would already have equitable title in the land or when
the property was wrongly acquired.

} Chee Hock Lai v Tan Swee Thai & Ors [1990] 2 MLJ 477
} The plaintiff purchased land from an administrator of an estate and
entered into possession more than 40 years before the filing of the action by
the plaintiff.
} The plaintiff was never given title to the land despite several requests.
} Held: The delay was justified and ordered specific performance.

} Ungku Sulaiman Bin Abd Majid & Anor v Director of Lands and
Mines, State of Johor & Anor
} Where property was wrongly acquired, time remained at large and the law
of limitation would be inapplicable.

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} Limitation period provided under section 9 of
Limitation Act 1953 does not apply to cases of
‘adverse possession’. Section 341 NLC
} Ng Yee Fong v EW Talalla [1986] 1 MLJ 25 (SC)
◦ It was held that even upon expiry of the limitation period,
the registered proprietor may still maintain an action to
recover the land as there can be no adverse possession
against the registered proprietor of the land for any period
whatsoever.
} See also: Jamir Hassan v Kang Min [1992] 2 MLJ
46
} In this case, the Federal Court held that the cause of action was actually
premised on a breach of undertaking by the defendant under section 2.05 of
the Share Sale Agreement (SSA)(in effect a claim for breach of contract)
and not for recovery of land. Thus, the limitation period is 6 years. Her
claim is therefore barred by the Limitation Act 1952.
} The Plaintiff ’s claim is not based on any contract for the sale and purchase
of land. Her claim was based on an undertaking under SSA whereby the
Defendants to “cause the company to transfer” the land to the Plaintiff,
which the Plaintiff claimed was to be done when the title to the land was
obtained.
} At the time when the SSA was entered into, the Land Office had yet to issue
the title to the land. The Plaintiff made a private land search on 8.12.2005.
The land had been registered in the company’s name and that it was then
transferred to the First Defendant. The Plaintiff then caused a letter dated
12.1.2006 to be issued by her solicitors (with a cheque of RM1.00 enclosed
as consideration) for the transfer of the land to her pursuant to the special
covenant under the SSA.
COMPUTATION OF LIMITATION PERIOD

} When did the cause of action accrued?

Lim Kean v Choo Koon [1970] 1 MLJ 158
◦ The period of limitation does not begin to run until there is a
complete cause of action and a cause of action is not complete when
all the facts have not happened which are material to be proved to
entitle the plaintiff to succeed.

} If the last day of expiry of the limitation period falls on a

day when the court office is closed all day, the time is
extended to the first day on which the office reopens

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} General rule: a cause of action on a contract accrues on
the date of the breach.
} A claim for liquidated damages for late delivery of
premises under a sale and purchase agreement, the
limitation period of six years under the day after which
vacant possession should have been delivered pursuant to
the sale and purchase agreement (Abdul Aziz Abdul
Hamid v Perak Roadways Bhd [2007] 7 CLJ 161). In
Chong By Sam v Soon Tiek Development Sdn Bhd
[2009] 2 MLJ 906 (The High Court held that the delivery
of vacant possession only took place after the plaintiffs
had been issued with a certificate of fitness)
} An action founded on a contract of guarantee, the cause of action does not
run against the surety until a demand of payment has been made by the
creditor (United Malayan Banking Corporation Bhd v Datin Theresah
bt Abdullah [1995] 1 AMR 304.
} Tenaga Nasional Bhd v Teck See Plastic Sdn Bhd [2007] 5 MLJ 430.
On 15 August 1990, the plaintiff installed a meter at the defendant’s
factory to record the electricity consumed by the factory. On 11 July 1996,
the plaintiff discovered that the meter was faulty which caused it to record
lesser units of electricity consumed. The plaintiff made an estimate loss
calculation of RM2,270,209.70 for the period from September 1990 to
August 1996 and demanded the same from the defendant. The defendant
contended, inter alia, that the plaintiff was time barred under s 6
Limitation Act 1953.
◦ The High Court held that the date which the plaintiff ’s cause of action accrued was on
the date when the defendant denied liability. The court opined that the breach
occurred on 12 June 1998 when the defendant denied liability to pay the undercharged
sum. Since the action was filed by the plaintiff on 5 September1998, the action was not
time barred.
} Cases of anticipatory breach
◦ the limitation period runs from the earliest time at which an
action could be brought:
– Nadefinco Ltd v Kevin Corp Sdn Bhd [1978] 2 MLJ 59 (FC).
Cause of action accrues when the first instalment was not paid
and not upon winding-up.

– Nik Che Kok @ Nik Soo Kok v Public Bank Bhd [2001] 2
MLJ 328 (CA). The earliest time when the respondent could
have commenced a suit was after issuing the notice of demand
on 2 April 1986.
} A cause of action in tort accrues when the appellant suffers
damage or from its commission (date of accident), even though
the plaintiff may not be aware of the identity of the person who
committed it.
} Where the tort is a continuing one or is repeated, it gives rise to
fresh causes of action so long as it continues or on each repetition
} Where the tort is actionable only on proof of special damage,
time runs from the date of the damage and not from the act
which causes the damage.

Anns v London Borough of Merton [1978] AC 728

} When damage is an essential part of the cause of action, time
begins to run from the date when the damage is suffered, not
from the date of the act or omission causing the damage.
} In Tan Sri Dato’ Eric Chia Eng Hock v NKK
Corporation [2004] 7 CLJ 137, the court held that
in a defamation action, time began to run from the
date of the publication of the defamatory statement
to a third party and not from the date when the
plaintiff first had knowledge of the alleged
defamatory words.
COMPUTATION OF LIMITATION PERIOD:
TORT (Cont..)
} Whether Knowledge Is Important?
Ambank (M) Berhad v Abdul Aziz Bin Hassan & 2 Otrs
[2010] 3 MLJ 784
} The appellant contended that limitation period runs from
the date on which the appellant discovered the alleged
causes of action in contract and in tort in April 2004.
} Held: Dismissing the Appeal. The date of discovery of
the alleged cause of action is only relevant under section
29 of the Limitation Act 1953 if the cause of action was
based on fraud or mistake or is concealed by fraud.

} See also,
◦ Beaman v A.R.T.S [1949]
◦ Shephard v Cartwright [1953]
◦ Credit Corporation (M) Bhd v Fong Tak Sin[1991] 1 MLJ 409
◦ Yong & Co v Wee Hood Teck Development Corporation [1984] 2 MLJ 39 27
COMPUTATION OF LIMITATION PERIOD: TORT
(LATENT DEFECTS)
} UK EARLIER POSITION
Cartledge & Ors v E. Jopling & Sons Ltd [1963] A.C. 758 (H.L.)
} Facts: Plaintiff employee worked in a steel factory for 11 years. There was no
ventilation in the factory causing the Plaintiff to suffer pneumoconiosis. However, he
only realised after 11 years and brought action 6 years later.
} Held: The plaintiff ’s action was statute-barred. Time did not run from the date of
knowledge but from the date when physical damage occurred or injury suffered by the
plaintiff.
} In tort cases, knowledge is not an essential element.

Pirelli General Cable Works Ltd v Oscar Faber & Partners [1983] 1 All ER 65
} Facts: Case involving negligent acts resulting in damage to property. A consulting
engineer firm designed for the plaintiff ’s factory, a chimney.
} The crack on a chimney occurred in 1971 but only discovered in 1977. An action was
brought in 1978 i.e. 7 years after the crack occurred and 1 year after the crack was
discovered
} Held (HOL): statute barred. The date of accrual of a cause of action in tort for
damage caused by negligent design or construction of a building was the date when the
damage came into existence and not the date when the damage was discovered or could
with reasonable dilligence have been discovered.
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COMPUTATION OF LIMITATION PERIOD: TORT
(LATENT DEFECTS)…Cont
UK LATEST POSITION
Amendment to Sec 11(4)(a)&(b) UK Limitation Act
} The decision in Cartledge & Pirelli were harsh.
} Section 11(4)(a) & (b) of the Amended Limitation Act 1980
(England) came into force on 1 May 1981 provided that the
limitation period in respect of personal injury action is three years
from:
(a) the date on which the cause of action accrued; or
(b) the date of knowledge of the person injured.
} The UK Latent Damage Act 1986 was later enacted to remedy the
harshness arising from Pirelli’s case.
} A new section i.e. Sec 14A was added 14A to the UK Limitation
Act 1980 which applies to any action for damages for negligence.
} Under Sec 14A(5) the starting date for reckoning the period of
limitation is the earliest date on which the plaintiff or any person
in whom the cause of action was vested before him first had both
the knowledge required for bringing an action for damages in
respect of the relevant damage and a right to bring such an action. 29
} MALAYSIAN POSITION (before amendment/
insertion section 6A-2018)

Credit Corp (M) Bhd v Fong Tak Sin [1991] 1 MLJ 406
} The limitation law is promulgated for the primary object
of discouraging plaintiffs from sleeping on their actions
and more importantly, to have a definite end to litigation.
} This is in accord with the maxim interest.
} Knowledge of any tortuous act/breach of contract is not
a requirement.
} The parties must be vigilant on their rights.

30
} April 2018, the Parliament of Malaysia passed a Bill.
The Limitation Act 1953 was amended by inserting
after section 6, section 6A.

} The new section 6A comes into force on 1 September

2019. New section 6A applies to any action for
negligence not involving personal injuries. It is
mainly to cater for latent defects in construction
matters.
} An action under Section 6A shall not be brought after 3
years from the starting date if the period of 3 years
expires later than the period of limitation prescribed
under Section 6(1).
} Illustration:
◦ C bought a house from D in 2000. In 2010, C discovered a crack
which damaged the wall badly. A building report made by a
consultant revealed that the cracks had appeared in 2002, two
years after C moved into the house. C has 3 years from 2010 to file
an action in court against D for damages.
} Starting date here refers to the earliest date where a
Plaintiff had both the knowledge accrued to bring an
action such as the material facts about the damage and
had identified who caused the damage.
} Total limitation after 15 years
◦ Pursuant to Section 6A(3), no action can be brought after
the expiration of 15 years from the date on which the cause
of action accrued.
◦ For example: In 2004, P entered into a building contract
with D, the contractors. P had knowledge of the defect in
structure of the swimming pool only in 2010. P has three
years from 2010 to bring an action under negligence for such
defect. Without the insertion of section 6A, P would have
been out of time to bring a civil suit and claim damages.
} New section 24A on extension of limitation period
under Section 6A in case of disability
◦ In case of disability of a person who has the right of action
under Section 6A, the 3 years limitation period under
Section 6A will only run from the date he is no longer under
disability, provided no action after the 15 years period.
} Postponement of limitation period in case of fraud
◦ The limitation period under Section 6A is not applicable in
action relating to the right of action that has been concealed
by fraud.
} Knowledge is aptly and appropriately defined in the Act.
The plaintiff here may have knowledge of the material
facts about the damages sued for or knowledge of other
facts relevant to the action. The latter has three
components:
◦ The damage was attributable in whole or in part to that
act/omission which is alleged to constitute negligence.
◦ The plaintiff discovered the identity of the defendant and, thirdly,
where the act or omission was that of a person other than the
defendant, the identity of that person and the additional facts
supporting the bringing of an action against the defendant.
◦ It also includes the knowledge which the plaintiff might
reasonably have been expected to acquire from the facts
ascertainable by him or facts ascertainable with the help of expert
advice which is reasonable for him to seek.
COMPUTATION OF LIMITATION PERIOD:
PROFESSIONAL NEGLIGENCE
DW Moore & Co v Ferrier & Ors [1988] 1 All ER 400
} A firm of insurance brokers took on a new shareholder and
director, who entered into a written agreement containing a
restrictive covenant.
} Some years later, this individual left the firm and it
transpired that the covenant was valueless.
} When the firm sued their insurers, the Court of Appeal held
that the cause of action against the solicitors had accrued at
the time when a valueless restrictive covenant was entered
into on negligent advice rather than when the plaintiff
sought to rely on the covenant.

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COMPUTATION OF LIMITATION PERIOD:
PROFESSIONAL NEGLIGENCE (Cont..)
Forster v Outread & Co [1982] 2 All ER
} There the plaintiff entered into a mortgage to secure
borrowings of her son and subsequently brought
professional negligence proceedings against her
solicitor for failing to explain the transaction.
} The proceedings were held to be statute barred on the
basis that damage had been suffered at the time that
the plaintiff entered into the mortgage, and not at a
later time when she was called upon to pay.

37
 Bank Bumiputra Malaysia Bhd v Tetuan Wan Marican Hamzah Shaikh & Ors
[1994] 1 MLJ 123
} Facts: The plaintiff argued that the defendants had failed to execute certain
documents, causing the plaintiff to suffer losses.
} The defendant filed an application to strike out the plaintiff's writ and statement of
claim since the action was brought more than six years after the defendant's alleged
breach of duty of care.
} Held: In a case involving negligence, the cause of action arises when a person suffers
loss as a result of the negligence. Time starts to run from the date when the loss is
suffered.
} In this case, the plaintiff's cause of action was the defendant's negligence on 30
August 1984 and the plaintiff knew of the negligence on 18 April 1986, at the very
latest.
} Therefore, the cause of action arose on 18 April 1986 at the very latest and the notice
to begin the action dated 4 August 1992 had exceeded the six-year limitation period
as prescribed by the Limitation Act 1953.
◦ (allowing the defendant's application and striking out the plaintiff's claim)

*cause of action arose on failure of solicitors to register charge over the land or very
latest when the plaintiff discovered that charge was not registered.
38
 Ong Ah Bee v Hii Chung Siong [1993] 1 CLJ 504
} The plaintiff sued the defendant, his solicitor, claiming damages for negligence in the
preparation of a sale and purchase agreement prepared by the defendant for the
purchase of a piece of property. It subsequently transpired that the property was
not transferable as it was at all material times subject to a charge.
} The defendant pleaded limitation in his defence in that the cause of action arose
more than six years before the writ was filed and applied to strike out the plaintiff's
claim. The Senior Assistant Registrar dismissed the defendant's application and the
defendant appealed.
} The questions before the Court were, when the right to sue accrued for the alleged
negligence, namely when the plaintiff was said to suffer damage and whether the
plaintiff had discharged the burden of proving that the claim was brought within
the limitation period.
} Held: The plaintiff suffered damage on the date of the execution of the Sale &
Purchase Agreement, namely on 24 June 1985 and his right to sue accrued on that
date. The writ was taken out on 18 September 1991 and the plaintiff had therefore
exceeded the six years limit.
} The burden of proving the action was brought within the limitation period was on
the plaintiff. The plaintiff's affidavit-in-opposition merely denied the defence of
limitation which could not be considered as proving the issue.
39
} Employees Provident Fund Board v the Hong Kong &
Shanghai Banking Corp Ltd [2000] 4 CLJ 359
◦ Cause of action arose when the savings account was allegedly opened
by an authorized person and completed when the last withdrawal
was made.

40
} Section 6(3): An action upon any judgment shall not be
brought after the expiration of twelve years from the
date on which the judgment became enforceable and no
arrears of interest in respect of any judgment debt shall
be recovered after the expiration of six years from the
date on which the interest became due.
◦ 12 years from the date on which the judgment become enforceable.
(the word ‘enforceable’ means ‘enforceable by action on the
judgment’ and not ‘enforceable by execution on the judgment’
◦ Recovery of arrears of interest in respect of any judgment debt: 6
years from the date interest became due (O46 r2(1) ROC)

41
} In Captain Ho Fooi v Standard Chartered Bank
Malaysia Bhd [2009] 4 MLJ 511, the Court of
Appeal found that the debtor’s argument that the
interest claimed in the bankruptcy notice had
exceeded the six-year Limitation period under s 6(3)
of LA was without merit. The court held that the
interest complained about was prejudgment interest
that had merged into the judgment debt and entitled
the creditor to claim for it. The court also held that
the limitation under s 6(3) only applies to post
judgment interest and not to prejudgment interest
} The Act comes into operation on 18 March
2020 and continue to remain in operation
until 31 December 2020
} Section 12: ‘Any limitation period
specified in section 6 of the Limitation
Act 1953 which expires during the period
from 18 March 2020 to 31 August 2020
shall be extended to 31 December 2020.’
Limitation Period: Actions to Recover Money
Secured by Mortgage or Charge or to Recover
Proceeds of the Sale of Land
} Section 21(1) No action shall be brought to recover any
principal sum of money secured by a mortgage or other
charge on land or personal property or to enforce such
mortgage or charge, or to recover proceeds of the sale of
land or personal property after the expiration of twelve
years from the date when the right to receive the money
accrued.
◦ 12 years from the date when the right to receive the money
accrued (Time starts to run on from the date the demand for
repayment is made)
◦ Malayan Banking Bhd v Zainon Ismail [2001] 3 CLJ
564. Time was held to run from the defendant defaulted in
her obligation to make payment after being served with a
Form 16E notice.

44
} Federal Court held: A breach by the chargor of the agreement in the
charge, even one which had continued for a period of one month or
more, did not make ‘the right to receive the money accrued’. The
cause of action had not arisen yet to entitle the chargee to apply for
an order for sale.
} It was only when the chargor defaulted in complying with the
Form 16D notice that ‘the whole sum secured by the charge shall
become due and payable to the chargee’ (section 254(3)(a) of the
NLC).
} It was on that date that ‘the right to receive the money accrued’ and
the date when the cause of action arose to entitle the chargee to
apply for a judicial order for sale (section 254(3)(b) of the NLC). In
this case, since the order for sale was applied for about 2 1/2 years
after the chargor’s default in complying with the Form 16D notice,
the application was not barred by limitation under section 21(1) of
the LA
} (Rohana Yusuf FCJ, concurring): Section 21(1) of the LA had
no application to proceedings commenced by a chargee for sale
of land pursuant to sections 256 or 260 of the NLC. Section
21(1) only applied to ‘an action’ ie, an action to recover money
secured by a mortgage or charge, and had no application to
the exercise of a chargee’s statutory right under the NLC to
obtain an order for sale.
} As held by high authority, a chargee applying for an order for
sale under section 256 of the NLC did not commence an action
or sue for a debt. A sale under sections 256 or 260 of the NLC
was a judicial sale ordered by the court on the application of
the chargee. While section 21(1) of the LA could bar an action
to recover monies secured by a charge or mortgage, it could
not bar a charge action for the sale of the security.
} Sec 22(1) No period of limitation prescribed by this Act shall apply to an action by a
beneficiary under a trust, being an action—
(a) in respect of any fraud or fraudulent breach of trust to which the trustee was a party
or privy; or
(b) to recover from the trustee trust property or the proceeds thereof in the possession of
the trustee, or previously received by the trustee and converted to his use.
} (2) Subject as aforesaid, an action by a beneficiary to recover trust property or in respect
of any breach of trust, not being an action for which a period of limitation is prescribed
by any other provision of this Act, shall not be brought after the expiration of six years
from the date on which the right of action accrued:
} Provided that the right of action shall not be deemed to have accrued to any beneficiary
entitled to a future interest in the trust property, until the interest fell into possession.
◦ Action in personam by beneficiary for fraud or fraudulent breach of trust by trustee
and action in rem to recover the trust property converted to the trustee use – No period
of limitation [Sec 22(1)]
◦ Action in personam and in rem by a beneficiary against trustee which does not involve
fraud or fraudulent breach of trust i.e. negligence, mistake, duress the limitation period
is 6 years [Sec 22(2)].

47
} In order to apply this section, it is necessary to prove that a trust exists viz the
property is subject to a trust and a person has entered into possession or received the
rent of that property with full notice of the trust thus showing a fiduciary capacity.
} Koh Siew Keng (P) v Koh Heng Jin [2008] 3 MLJ 822, CA.
} Though the respondent was neither a constructive trustee, nor a trustee under a
resulting trust, the Court of Appeal held that, the respondent as an executor and
personal representative of the testator’s estate fell within the broader definition of
‘trustee’ given by the Trustee Act 1949. There was no doubt that he converted to his
own use monies not belonging to him. Therefore, s 22(1)(b) of LA applied and the
plea of limitation failed. Further, s 22(1)(a) of the Act also applied equally to the
facts of the case. The appropriation by the respondent of monies he knew belonged
to the testator amounted at the very least to equitable fraud or unconscionable
conduct. The respondent having committed a fraudulent breach of trust (having
regard to the wider definition of trust), no period of limitation applied.
} An insurer has been held to be a trustee of the insurance monies for the purposes of
limitation. (Anthony Kulanthai Marie Joseph (suing as the representative of
the estate of Martin Raj a/l Anthony Selvaraj, deceased) v Malaysian
Assurance Alliance Bhd [2008] 4 MLJ 903, CA,)
48
◦ Sanmaru Overseas Marketing Sdn Bhd v PT Indofood Interna Corp [2009] 2
MLJ 765, CA. The plaintiffs were claiming to recover trust property from the
defendants. Zaleha Zahari JCA held that by virtue of s 22(1) of LA, an action by a
beneficiary comes within the circumstances as stated in para (a) or (b) of s 22 ie there is
no period of limitation.

◦ Ong Tok How v Madam Ong Lay Eng @ Ong Lay Ien (Proposed administrator
/Administrator for Ooi Koe Ley, wife of the deceased) [2001] 3 MLJ 799. the
Court held that since the plaintiffs' claim of breach of fiduciary duty lay in the realm
of the law of trusts, it came under s 22 for which there is no period of limitation.

◦ Causes of action for specific performance of a contract which involve or encompass the
recovery of trust property by a beneficiary from a trustee is not caught by the
limitation period of six years prescribed under s 6(6) but is subject to s 22 which
requires that either subsection (a) or (b) be proved whereupon no limitation period
applies. see Abdul Razak Sheikh Mahmood v Bhupinder Singh s/o Avtar Singh
[2012] 3 MLJ 348.

49
} For recovery of trust property which is not in the possession of the
trustee or for that matter any breach of trust would fall within s
22(2) of the Act, provided that the action so mounted by the
beneficiary is not one of those causes of action or situation where a
time limit is already prescribed by the Act to bring the action.
} If a time is so prescribed, then the prescribed period of limitation
specified in the Act will apply. Otherwise, it will be six years from
the date on which the action accrued

} Dato Wira A Nordin bin Mohd Amin v Rajoo a/l Selvappan

[2007] 5 MLJ 297. The Court of Appeal held that when the claim is
one of conspiracy then it falls under the emerging tort of conspiracy
to do an act resulting in damage to the claimant. Since the proposed
action was brought after this period of six years, it failed in limine
upon a plea of limitation.
Limitation Period: Action for Claim to Personal
Estate of Deceased Person Testate/Intestate)

◦ Section 23 Subject to subsection 22(1) of this Act, no action in respect of any

claim to the personal estate of a deceased person or to any share or interest in such
estate, whether under a will or on intestacy, shall be brought after the expiration
of twelve years from the date when the right to receive the share or interest
accrued, and no action to recover arrears of interest in respect of any legacy, or
damages in respect of such arrears, shall be brought after the expiration of six
years from the date on which the interest became due.
◦ 12 years from the date when the right to receive the share or interest accrued
◦ Recovery of arrears or interest in respect of any legacy or damages in respect
of such arrears-6 years from the date interest became due.
◦ Includes an action for declaration as to the lawful widow and issue of the
deceased who are entitled to share in his estate (Lam Wai Hwa v Toh Yee Sum
[1983] 2 MLJ 302)
See also,
◦ Order 15 r 6A ROC 2012: Proceedings Against Estates -Where any person against
whom an action would have lain has died but the cause of action survives, the
action may, if no grant of probate or administration has been made, brought
against the estate of the deceased. 51
Saving for other limitation enactments
} Sec 3. This Act shall not apply to any action or arbitration for which a
period of limitation is prescribed by any other written law or to any
action or arbitration to which the Government or the Government of
any State is a party and for which if it were between subjects a period
of limitation would have been prescribed by any other written law.
Application to the Government
} Sec 33(1) Save as in this Act otherwise provided and without prejudice
to section 3 of this Act, this Act shall apply to proceedings by or against
the Government in like manner as it applies to proceedings between
subjects and for the purposes of this Act a proceeding by petition of
right shall be deemed to be commenced on the date on which the
petition is presented.
} Sec 33(2) For the purposes of this section proceedings by or against any
Government Department or any officer of any Government as such or
any person acting on behalf of the Government shall be deemed to be
proceedings by or against the Government.
52
} Public Authorities Protection Act 1948 (PAPA 1948)
◦ Any suit, action, prosecution against the Government or its
agents must be instituted within 36 months from the date of
the act, neglect or default complained of or in the case of a
continuance injury or damage, within 36 months next after
the ceasing thereof. (Section 2(a))
◦ Applicable to any civil action instituted against the
government.
◦ Limited to civil action where the wrongs were committed in
the execution or intended execution of any written law or
any public duty or authority.
Cont…

Phua Chin Chew v KM & Ors [1987] 2 MLJ 604

} In this case, sections 3, 24, 33(i) of the LA and Sec 2(a) of
PAPA 1948 was considered by the Supreme Court.
} Plaintiff resigned as teacher in 1977 under mental
disability but his disability ceased in 1982.
} His brother sued the Government in 1983 alleging that
plaintiff resignation was null and void.
} But one of the Defendants claimed protection under Sec
2 PAPA.
} Held: As PAPA does not provide for cases of disability,
Sec 24 LA should read together with PAPA act.
} Thus, 36 months run after disability ceases/ appointment
of the Committee to manage his affairs.

54
} Act of Public Authority
} The act complained of must be limited to any
persons who is the public authority.
} The Government or its agent must have committed
something that was done in the execution of public
duty.
} For example, a police van driver knocked down a
man while on his way to send prisoners to court.
} However, if he drive the van for his casual use (to
send his kid to school) using the police van, he cannot
be protected under this PAPA 1948.
} Would any act of ‘public authority’ invite the application
of PAPA 1948?
} Unfortunately, no.
} As per Lord Buckmaster in Bradford v Myers
Corporation [1916] 1 AC 242:
◦ “the act is one which is either an act in the direct execution of a statute
or in discharge of a public duty or the exercise of a public duty. I
regard these later word as meaning a duty owed to all public alike or
an authority exercised impartially with regards to all the public. It
assumes that there are duties and authorities which are not
public and that in the exercise or discharge of such duties or
authorities this protection does not apply”
} Non-payment under a contract was held to be not
within the scope of public duty and therefore a
government department could not claim statute-
barred
◦ Case: Lee Hock Ning v Govt of Malaysia [1972] 1 MLJ 12
at 14
– If the act complained of or the subject matter of the action is
the non-payment of the contract price after completion of the
contract satisfactory performed, the protection afforded by
PAPA does not come into being as the refusal to pay a debt
cannot be said to be an act in pursuance of or execution of a
public duty.
} Mak Koon Yong & Anor v Municipal Councillors,
Malacca [1967] 1 MLJ 256 (time begins to run from the time
when the act complained of was caused and where the case
involves continuing injury or damage, when the act causing
the injury or damage ceased)
} Baltim Timber Sdn Bhd v Director of Forest & Anor
[1996] 4 MLJ 103 (action instituted almost 72 months from
the date the claimant suffered injury was time barred)
} Tengku Ali ibni Almarhum Sultan Sulaiman v Kerajaan
Negeri Terengganu Darul Iman [1996] 4 MLJ 374 (delay of
47 years in proceedings against state government, action was
time barred)
} Alias bin Ismail v Hairuddin bin Mohamad [1997] 3 MLJ
724 (action was filed by the appellant nine years after the
incident, cause of action barred).
} In Kavitha a/p Krishnan & Anor v Kerajaan Malaysia [2013]
MLJU 13, the defendant which was the Government contended that
the plaintiffs should have commenced proceedings within 36 months
from the act complained of, as required by sec 2(a) of the Public
Authorities Protection Act 1948.
} The act in question was the giving of a blood transfusion by the
public officer. However, the court held that there was ‘a continuance
of injury of damage’ because the plaintiffs were still continuing to
suffer from the injury or damage caused by the blood transfusion ad-
ministered by the public officer of the defendant. Both plaintiffs
were now still HIV positive.
} Therefore, the injury suffered had not ceased, which meant
the limitation period of 36 months after the cessation of the
wrongful act, neglect or default had not even started to run yet.
} Kaliamah A/P Rajan & Ors V Superitendan Wooi
Kooi Cheang, Ketua Polis Daerah Tampin, Negeri
Sembilan & Ors [2020] 12 MLJ 334
◦ COA dismissed the appeal and held that there was an inordinate
delay of four years and seven months from the date of 1 June
2013, which was the date of the alleged assault on the deceased,
and the alleged negligence of the respondents to prevent the
assault from happening. The action was filed on 25 January 2018.
The appellant’s claim was barred under s 2(a) of the Public
Authorities Protection Act 1948 and an abuse of court process
that justified the striking out of the appellant’s claim under all
branches stipulated under O 18 r 19(1) of the Rules of Court 2012.
◦
Dependency Claim
} Section 7(5) – a claim for loss of support (financial loss) by
the dependent relatives shall be brought 3 years from the
death of the deceased person
}
◦ In Kuap Hip Peng v Yap Pin & Anor [1965] 1 MLJ 252, it was held that
failure to commence the action within 3 years from the date of the death
was fatal to the proceedings. The writ of summon was filed 4 days after the
expiration period. Thus, the court allowed the application to strike out the
writ.
◦ The provision is absolute and contain no exceptions or saving provisions as
in the Limitation Ordinance.

◦ See also Lee Cheng Yee v Tiu Soon Siang t/a Tiyor Soon [1998] 2 MLJ
253
} The Act (CLAA 2019) comes into force on 1 September
2019.
◦ the categories of persons who can claim damages for loss of
dependency are extended to include any person with disabilities
under the care of the deceased (prior to the amendment: only
entitled the wife, husband, parent and child of the deceased);

◦ the age limit for the purposes of assessing the loss of earnings in
claims for damages for loss of dependency and for personal injury
is extended from 55 years to 60 years (Pursuant to the extension
of the minimum retirement age to 60 years for both employees
and employers under the Pensions (Amendment) Act 2011 and
Minimum Retirement Age Act 2012);
◦ It is no longer the requirement to prove good health prior to
the deceased’s death to claim for loss of earnings in respect
of any period after the death of deceased;

◦ the amount of damages that can be awarded for

bereavement is increased from RM10,000 to RM30,000; and

◦ the categories of persons entitled to claim damages for

bereavement is extended to include any child of the
deceased (prior to the amendment: only the spouse of the
deceased and parents of the deceased who was a minor and
was never married may make a claim for bereavement).
Action in Tort
Ø Section 8(1)
Ø On death, all COA shall survived unless on matter of
defamation, seduction, for inducing one spouse to leave or
remain apart from the other or to any claim for damages on
the ground of adultery.
Ø Section 8(3) – action in tort against the estate of the
deceased person
◦ No action against the estate of deceased person shall be instituted
unless proceedings
– Were pending at the date of his death; or
– Are taken not later than 6 months after his personal representative took
out representation.
} Airey v Airey [1958] 2 QB 300
◦ It was held:
◦ that an action can be brought for the tort against his
personal representative, since the only limitation period for
such an action is six months after the appointment of his
personal representative.
◦ A cause of action does not cease to exist because a limitation
period has expired, and the original cause of action would,
therefore, be one subsisting against the tortfeasor at the
time of his death and would survive against his estate by
virtue of s 1(1) of the Act of 1934.
} Lee Sen Lan & Anor v Mah Kwee Hock [1990] 2 MLJ
157
◦ Held: It is clear that s 8(3)(b) of the Act places a statutory
injunction against the institution of an action in tort after the
stipulated period. The defendant's amendment is not grounded on
any tort but rather for contribution based on the failure on the
part of the first deceased victim, in his own interest, to take
reasonable care of himself and thereby contributed, by his want
of care, to his own injury.
} Lee Lee Cheng v Seow Peng Kwang [1958] 1 MLJ 271
◦ Defendant is the administrator of Loke Ta Poh, deceased.
◦ Plaintiff sued Defendant for damages of negligent driving.
◦ Defendant claimed that the Plaintiff action commenced after the
expiration of 6 months from the date on which Defendant took out
representation to the estate of Loke Ta Poh.
◦ Held: Plaintiff action is barred under Sec 8(3)(b) of CLA 1956.
} Order 15 r 6A ROC 2012: An executor cannot be sued
until the grant of probate is extracted or that an
administrator cannot be sued until the grant of
administration is extracted
Issue: whether an administrator can be sued until the grant of administration is extracted.

EARLIER POSITION
Ruhaini bt Mohiat v Abdul Karim [1993] 3 CLJ 524
} Where a deceased died interstate, an administrator can be sued before letter of administration is
extracted provided it has been granted.

LATEST POSITION
} Yong Siew Choon v Kerajaan Malaysia [2003] 2 MLJ 150
} The Government (‘the plaintiff ’) commenced an action against the estate of one Abdul Hamid bin Tun
Azmi (‘the deceased’) for the recovery of outstanding income tax.
} The defendant,Yong Siew Choon is the widow of the deceased but has never been the executrix or
administratrix of the deceased’s estate as no letters of representation were ever extracted in respect
thereof.
} Held: Per Gopal Sri Ram JCA [1] Although the plaintiff ’s action was commenced in accordance with
the permissive provisions of O. 15 r. 6A(1) RHC, it was thereafter prosecuted in defiance of the
mandatory provisions of O. 15 r. 6A(4) RHC…an action cannot be maintained against the estate of a
deceased person in the absence of the extraction of letters of representation. Consequently, the
plaintiff ’s action was an illegality and thus a nullity.

68
Issue: Whether an executor can sue or be sued before letter of probate is extracted?

COMMON LAW POSITION

Meyappa Chetty v Subramaniam Chetty (1916) AC 603 (Lord Parker):
} Held: The executor of a will capable of probate in the Straits Settlements is a legal
representative capable of instituting a suit from the date of the testator's death and not only
from the date when he obtains probate:
} “It is quite clear that an executor derives his title and authority from the will of his testator and
not from any grant of probate. The personal property of the testator, including all rights of
action, vests in him upon the testator’s death, and in consequence is that he can institute an
action in the character of executor before he proves the will. He cannot, it is true, obtain a
decree before probate, but because the production of probate is the only way in which, by the
rules of the court, he is allowed to prove his title”.
In contrast,
Mohamidu Mohideen Hadjiar v Pitchey (1894) AC 437
} A creditor of a deceased debtor cannot sue a person named as executor in the will of the
deceased unless he has either administered or obtained a grant of probate, and a sale in
execution of a judgment against such person does not bind the deceased’s estate.
} An order for probate without an actual grant thereof did not prove the will, and an application
for probate did not show an executor’s acceptance of the trusts.

69
} Whether an executor can sue or be sued before letter of probate is extracted?
MALAYSIAN POSITION
Wakil-wakil Diri Kepada Mahadevi A/P Nadchatiram (Deceased) v Hong Leong Bank Berhad
[2014] MLJU 1387
} It must be emphasized that the position of the executor or executrix to sue or to be sued
is different from the position of the administrator or administratrix.
} An executor is a person appointed by a testator to carry out the directions and requests in
his will, and to dispose of the property according to his testamentary provisions after the
testator’s death.
} However, an administrator need not be a person appointed by will but is appointed by the
court to administer the assets and liabilities of the deceased and thereafter to distribute
the same to the next of kin of the deceased. It is trite that unlike an administrator, the
executor can sue before probate is extracted.
} It must not be forgotten that when the deceased dies the estate appointing Executor
and/or Executrix of the will, the locus start from the minute of the deceased death.
} However, in intestate matters a letter of administration must be obtained and the sealed
order must be extracted to be cloaked with locus standi.

70
} Generally courts do not have power to enlarge the
limitation period when asked (see Lee Lee Cheng v
Seow Peng Kwang [1960] 26 MLJ 1).
} However, the limitation period can be postponed or
extended on various grounds provided under the statute
or any other written law.
} Therefore, the parties may plead extension of limitation
period even though prima facie, the matter has exceeded
its limitation.
} The court have no power to extend a limitation period in
a statute unless it has been expressly provided under the
statute or any other written law.
} In other words, if the party concerned fall under this
exception, he/she can file a civil action outside the
limitation period. This is called “extension of
limitation period”.
} Disability, acknowledgement, part payment, fraud,
mistake are among of the grounds to postpone the
limitation period.
Limitation Act Extension of limitation on the ground of:
1953

S. 24 Disability
-The person whose rights under the limitation period is
described under the Act and accrued when he was under a
disability, he may take an action at any time before the
expiration of 6 years from the date he ceases to be under
disability.
-Phua Chin Chew & Ors v K.M. & Ors [1987] 2 MLJ 604
-Under sec 2(2) of LA- disability= an infant or of unsound
mind.
Plaintiff Under A Disability
} Sec 24(1) If on the date when any right of action
accrued for which a period of limitation is prescribed
by this Act, the person to whom it accrued was under a
disability, the action may be brought at any time before
the expiration of six years, or in the case of actions to
which subsection 6(4) or section 8 of this Act applies,
one year from the date when such person ceased to be
under a disability or died, whichever event first
occurred, notwithstanding that the period of limitation
had expired.
} Sec 2(2) –A person shall be deemed to be under a
disability while he is an infant or of unsound mind.
74
 Phua Chin Chew & Ors v K.M. & Ors [1987] 2 MLJ 604
} The first plaintiff was suffering from a mental disability
when his right of action accrued, and that for him, the
period of limitation did not begin to run until June 13,
1982, when a committee was appointed under section 10(1)
of the Mental Disorders Ordinance, 1952, by the High
Court to manage the affairs of the first plaintiff.
} The present civil suit was filed on June 2, 1983, well within
the period of three years limited by section 2(a) of the
Public Authorities Protection Act.
} Held: The application to strike out the plaintiffs' suit had
been prematurely and improperly brought by the
defendants.
75
} In Zainon bte Suppian Suppiah v Universiti
Malaya [2008] 7 MLJ 90, the court considered it a very
serious mistake that the disciplinary committee had
omitted to consider that at the time of the disciplinary
proceedings the plaintiff was suffering from a serious
mental illness of paranoid schizophrenia and he had not
fully recovered from it at the time of the alleged absence
from work and also at the time of the disciplinary
hearing.
} Since the plaintiff was diagnosed with mental illness at
the time when he was dismissed, section 24 was applicable
and the period of limitation did not continue to run
against him.
} Ling Towi Sing @ Ling Chooi Sieng (acting in the
capacity of the Committee for the estate of Ng
Kong Yeam) v Sino America Tours Corp Pte
Ltd [2022] 3 MLJ 821, CA, where it was held that the
court could not question the wisdom of the legislature in
not extending section 24 of the Limitation Act 1953 to a
person who suffered a disability subsequent to the date
the cause of action had arisen. In the absence of a clear
statutory provision to suspend limitation in some ways to
cases where the intervening disability was after the cause
of action had arisen, the court could not be asked to read
that suspension into section 24.
}
S. 26- 28 Revival of cause of action on acknowledgment and part payment
-Applies to action to recover land/enforce a mortgage/charge;
the fresh accrual of action accrued on the date of
acknowledgement or last payment.
-What amount to acknowledgement vary from case to case but
every such acknowledgement shall be:
- in writing;
-signed by the person making the acknowledgement; and
-admission of a debt or other liquidated / quantified amount
outstanding and unpaid.
-Cases:-
- Good v Parry [1963] 2 All ER 59
- Busch v Stevens [1962] 1 All ER 412
- Wee Tiang Teng v Ong Chong Hooi & Anor [1978] 2 MLJ
54
- Mirra Sdn Bhd v The Ayer Molek Rubber Company
Berhad [2007] 1 LNS 524
The fresh accrual of action accrued on the date of
acknowledgement or last payment apply to:
} Sec 26(1): Action to recover land/enforce a mortgage/charge; and

} Sec 26(2: Action to recover any debt or other liquidated

pecuniary claim, or any claim to the personal estate of a
deceased person or to any share or interest therein.

} Sec 27(1) Every such acknowledgment as is referred to in section

26 or in the proviso to section 16 of this Act shall be in writing
and signed by the person making the acknowledgment.

} Sec 28(1): An acknowledgment of the title to any land, or

mortgaged or charged property by any person in possession
thereof shall bind all other persons in possession during the
ensuing period of limitation.
79
- The acknowledgement shall bind other persons.
- It is a good acknowledgment if there is admission
/acknowledgement of debt or other liquidated
amount outstanding & unpaid, even though the
debtor says in the same writing that he will never pay
it
Cont…
Mat bin Lim & Anor v Ho Yat Kam & Anor [1967] 1 MLJ 13
} The claimant is required to specifically plead the acknowledgment or else it would be
struck out.

Oversea-Chinese Banking Corp Ltd v Philip Wee [1981] 2 MLJ 83

} All that is necessary for an acknowledgment is that the debtor should recognise the
existence of the debt.
} The acknowledgement need not even contain a promise to pay and it is immaterial
that the amount of the debt is not expressed in the acknowledgement or that the
correctness of the amount claimed is disputed in the acknowledgment.

Wee Tiang Teng v Ong Chong Hooi & Anor [1978] 2 MLJ 54
} The defendants claimed that the action is time-barred. Though prima facie correct,
the plaintiff had received a letter that constituted an acknowledgment within s.
26(2) of the Ordinance.
} Therefore time began to run from the date of the letter which was 24 June 1974, and
the action was not therefore time-barred.

81
 Mirra Sdn Bhd v The Ayer Molek Rubber Company Berhad [2007] 1 LNS 524
} The respondent claimed that the appellant's claim is statute barred since the
appellant's claim is for breach of contract for failing to pay the appellant's
professional fees which was due on 24.3.1999.
} However, the appellant only filed this action on 10.10. 2005. This has passed the
period of 6 years (the last day being 24.3.2005) for such action to be brought - s.
6(1)(a) of the Limitation Act 1953.
} The appellant argued that the respondent wrote to the appellant to confirm and
acknowledge that the overdue amount claimed is correct. The letter also seek for
consideration to withhold the legal action until the appellant resolves their
restructuring exercise.
} Despite this letter, the respondent made 5 payments of RM10,000.00 each towards
the account of the admitted debt, the last payment being on 9.11.1999.
} Held: Since the appellant’s action was brought well within 6 year period from the
date of the last payment, the respondent’s claim of limitation could not succeed.

See also,
} Good v Parry [1963] 2 All ER 59
} Busch v Stevens [1962] 1 All ER 412

82
◦ In Yee Weng Kai v Yam Kong Seng [2013] 2 MLJ 575, the Court of Appeal
held that the SMS in question was not an unequivocal admission of a
subsisting debt as it did not quantify the so-called debt in figures nor was it
capable of ascertainment by calculation or by extrinsic evidence without
further agreement between the parties.

◦ Further, the said SMS was ambiguous and unclear. It referred to a ‘loan
repayment’ which was not the pleaded case of the respondents. It might have
come from the appellant hand phone, but it did not necessarily mean that it
was the appellant who actually made or wrote the message.

◦ Therefore, the requirement under s 27 were not fulfilled and could not in law
amount to a valid acknowledgment of debt for purpose of s 26(2) of LA

83
◦ In contrast:

◦ The Federal Court in Yam Kong Seng v Yee Weng Kai [2014] 4 MLJ 478 held that the SMS
was a reply to the plaintiffs' demand of payment of the debt. The defendants’ SMS reflected
the intention of the parties clearly and unambiguously. There was no difficulty in putting into
effect what they had bargained for on reading the words of the SMS. The intention of the
second defendant in the defendants’ SMS was clear in that there was an acknowledgment of a
debt which fell within the meaning of s 27(1).
◦ Section 8 of the Electronic Commerce Act 2006 provides that where any law requires
information to be in writing, the requirement of the law is fulfilled if the information is
contained in an electronic message that is accessible and intelligible so as to be usable for
subsequent reference. A message from an SMS, with all the attributes of s 8 being present viz
accessibility, intelligible and extractable for subsequent reference, such an electronic message
is as good as in writing.
◦ Signatures need not be written. Suffice if there be any mark, written or not, which identifies
the act of the party, perhaps in the form of mark or by some distinguishing feature peculiar
only to that person, then the acknowledgment has been signed. Analogically, the conventional
paper is substituted by the mobile phone, which holds features that can preserve information
or transmissions in the like of the SMS, with the telephone number representing the caller or
the sender of some message. The legal requirement for a signature was fulfilled as the sender
was adequately identified let alone admitted by him.

84
 Fraud, concealment & mistake
S. 29 -The period of limitation does not begin to run until the plaintiff
has discovered the fraud, concealment or mistake or could with
reasonable diligence have discovered it.
-Beaman v A.R.T.S [1949]
-Shephard v Cartwright [1953]
-Credit Corporation (M) Bhd v Fong Tak Sin[1991] 1 MLJ 409
-Lim Yoke Kong v Sivapiran [1992] 2 MLJ 571
-Yong & Co v Wee Hood Teck Development Corporation
[1984] 2 MLJ 39
Sec 29: Where, in the case of any action for which a period
of limitation is prescribed by this Act, either —
} (a) the action is based upon the fraud of the defendant or
his agent or of any person through whom he claims or his
agent; or
} (b) the right of action is concealed by the fraud of any
such person as aforesaid; or
} (c) the action is for relief from the consequences of a
mistake,
} the period of limitation shall not begin to run until the
plaintiff has discovered the fraud or the mistake, as the
case may be, or could with reasonable diligence have
discovered it:

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} The distinction between paras (a) and (b) was explained
in Lim Yoke Kong v Sivapiran a/l Sabapathy [1992] 2
MLJ 571 at 581, where Mohamed Azmi SCJ held that
‘postponement of limitation period is allowed under (a)
where the action, ie “cause of action” is based on fraud,
and whereas under para (b) it is allowed in all cases where
the remedy or right of action is concealed by fraud.

} Lim Yoke Kong v Sivapiran a/l Sabapathy [1992] 2

MLJ 571. The insurers conduct in keeping their identity
unknown to the plaintiff until the plaintiff s action had
become statute barred amounted to a concealment of the
plaintiff s right of action.
Cont…
Lim Yoke Kong V Sivapiran A/L Sabapathy [1992] 2 MLJ 571

} The defendant’s insurers took great pains to conceal themselves from the
knowledge of the plaintiff and thus the latter’s claim was not held statute
barred as a result.
} FACTS: The respondent was walking along the edge of a road when he was
negligently knocked down by the appellant who was riding a motor cycle.
} The solicitors for the respondent attempted to trace the insurer of the motor
cycle but were unable to do so until after the expiry of the limitation period.
} JUDGMENT: The fraud of the insurance company could not have been
discovered with reasonable diligence before its discovery on 28 March 1984.
} The right of action by the plaintiff is not time barred if there is fraud by an
insurance company for not disclosing its identity of the insurer.
} The right of action which concealed by the fraud does not run until the fraud or
concealment is discovered by the plaintiff as in accordance with Section 80 of
the Road Traffic Ordinance.

88
Cont…
} Defence of limitation must be pleaded in pleadings.
} Phuah Beng Chooi @ Koh Kim Kee (executor of the estate of Koh
Hing @ Koh Heng Teik, deceased) v Koh Heng Jin [2013] 8 MLJ
401. The court held that since the plaintiffs had not pleaded that their
case was premised on fraud, a mistake or concealment of fraud they
could not rely on the provisions of s 29 to demonstrate to the court that
their right of action had been concealed by the fraud of the defendant.

} AmBank (M) Bhd v Abdul Aziz bin Hassan [2010] 3 MLJ 784. The
Court of Appeal held that s 29 was not applicable to the appellant
because this issue was never pleaded nor raised by it and the parties
must be bound by their pleadings.

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} Provided that nothing in this section (s29) shall enable any
action to be brought to recover, or enforce any charge against,
or set aside any transaction affecting, any property which

} (i) in the case of fraud, has been purchased for valuable

consideration by a person who was not a party to the fraud
and did not at the time of the purchase know or have reason to
believe that any fraud had been committed; or

} (ii) in the case of mistake, has been purchased for valuable

consideration, subsequently to the transaction in which the
mistake was made, by a person who did not know or have
reason to believe that the mistake had been made.
} Conclusion:
} Several periods of limitation are applicable for
different case and situation.
} Postponement or extension of limitation period can
only occur if it fall under the relevant provisions
under the Limitation Act 1953.