Courts, Limitation Period, Joinder, Intervener

What is the main purpose of civil procedure?

Civil procedure is designed to facilitate the attainment of justice, not to obstruct it.

What are the preliminary matters to consider when a client comes to see you?

Determining whether there is a cause of action and that the plaintiff has locus standi.

What is an important thing that you should inform your client?

Informing the client of an estimated cost and that the loser has to pay the costs of the winner.

cause of action

[Lim Kean v Choo Khoon]

• a party to be sued

• a party who can sue

• all material facts to be proved to entitle the P to succeed

[Simetech v Yeoh] - must arise before writ issued

What is locus standi?

[Gov of Msia v Lim Kit Siang] -The plaintiff must have the right to commence an action and be the correct party.

When does coa accrues for claim of outstanding sum?

[Sio Koon Lin v SB Mehra] - on the date the borrower defaults payment

Limitation period of contract and tort

• s6(1) LA 1963 - 6 years - cause of action accrues when the damage first occurred.

• s6A - time starts to run when the damage is discovered - must sue within 3 years discovery - except personal injury cases

• [Credit Corp v Fong Tak Sin] - time start to run from the date of damage even though identity of D unknown

• s29- s6A x apply to fraudulent concealment

fraud/fraudulent concealment/mistake

Initially - time starts to run from the date of damage occurred

s29 - LP postpone until fraud discovered or when it is discoverable with reasonable diligence

[Sivaperan v Lim] - unconscionable conduct of Insurance company by not informing P that it insured D’s car until LP expired

[Cave v Robinson] - P must establish

• D intends to commit an act or omission which is a breach of duty

• unlikely to discover for some time with due diligence

Can a cause of action be revived post expiration of limitation period?

s26 - when there is acknowledgement of debt or the debtor makes part payment

• s27 - acknowledgement must be in writing and signed

• [Yee Weng Kai v Yam Kong Seng] - acknowledgement can be done via SMS - fulfills the criteria of ‘in writing’ - so long as accessible - intelligible - extractable for future reference - phone number amounts to valid electronic signature

• note that D must be the one acknowledging the debt

What happens if the defendant successfully raises limitation?

• [Perwira Affin Bank v Ahmad] - D can apply to strike out P’s action on the ground that his action is time-barred by notice of application in Form 57 supported by affidavit as per o32r1

• The defendant can also serve a statement of defence stating that P has no cause of action and specifically plead s6(1) LA 53’- then apply for preliminary hearing by NOA in Form 57 + affidavit

special provisions governing limitation period

• Public Authorities Protection Act 1948 - negligent act done in pursuant of or execution of written law or public duty or authority - action must be brought within 3 years from the date of the occurrence of damage

• Tasja v Golden Approach - need not specifically plead limitation period if it is governed under specific provisions - should apply absolutely

action brought against gov under GPA 1956

• s6(4) - no proceedings shall be brought against the Gov by virtue of s5 in respect of public officer’s wrongful act unless at the material time - he was employed by the Gov and paid as an officer of Gov out of Gov’s revenues

LP for breach of trust

s22 - LA53’

• depends on whether the nature of breach is one that is fraudulent or negligent

• Fraudulent - if the trustee is privy to the breach - no limitation if not - general breach governed under s6 - 6 years

• Negligent - no limitation if the action is one to recover the trust property - 6 years if it is to claim for damages or apply for declaratory order - governed under s6

writ served within LP but not SOC

• time-barred - SOC crucial for D to understand the allegations against him to prepare defense

• in practice - usually serve together

• can apply to strike out - NOA Form 57 - affidavit

choice of law

[Elf v Winelf Petroleum] -

• a choice of law clause in the contract does not automatically oust the jurisdiction of the Malaysian Courts

• Contractual choice of law does not dictate where the case can be adjudicated

• Malaysian courts can still exercise its jurisdiction as long as the case has sufficient connection to Malaysia referring the trial, sentencing and territorial jurisdiction of each court set down in respective statutes

• the latin maxim of ‘qui elegit iudicem elegit ius’ applies here - a choice of law can be reasonably inferred from the choice of judge - the clause is not decisive

• court will respect that choice and apply the foreign law

referring to arbitration after filing defense

• s10 Arbitration Act 2005

• if contract contains an arbitration clause - the other party may, taking any steps in proceedings, apply for the action to be stayed after the dispute is settled by arbitration - [Press Metal v Etiqa]

• arbitration clause does not oust court’s juris

• lack of jurisdiction must be raised early in the proceedings

• [Sanwell v Trans Resources] - entering appearance does not constitute as taking a step within the meaning of s10 - it is an ‘exempted step’ - will not waive D’s right to refer to arbitration - stay will be granted for the dispute to be referred to arbitration

Monetary Jurisdiction of SC

- s65 SCA 1948 -s65(1)(b) - max 1 mil - exceptions under s65(1)(a) - unlimited juris -

• MVA

• landlord-tenant

• distress

• scholarship agreements - Contract Amendment Act 1976

-interest - [Foo Sey Koh v Chua] - only take into acc the principal sum - interest rate to be granted by court’s discretion - unless the rate has already been contractually agreed between parties

s70 SCA 1948 -

• can recover possession of land and

• claim for rent of the property to be recovered and

• claim damages for breach of contract in relation to the premise

s65(5) - grant injunction or make declaration

s65(1)(c) & s69 - grant rescission, specific performance, cancel or rectify instruments (will, trust, contract)

Can parties confer jurisdiction to SC if the claim exceeds 1mil?

Yes - logical inference deduced by statutory interpretation - compare wordings between

• s65(3) and s66 - if it is the intention of Parl to limit SC’s juris in the context of s65(3) - should expressly state like it did in s66 - “cannot award in excess” - when D make counterclaim that exceeds SC juris

• s65(3) and s67 - s67 would be rendered futile - as s67 ady confer the juris to try by allowing P to unilaterally decide to waive a portion of his claim which exceeds SC’s juris

• [Subramaniam v Malayan Banking] - explore all possible avenues under s65(3) before applying to transfer under s66 counterclaim - to avoid delay

s66 - counterclaim exceeding 1mil

• advise to apply for transfer to HC under o57 by OS + affidavit

• when an order of transfer is made by HC - SC must send the relevant documents to HC

• judge has discretion to award costs incurred for the transfer

Restrictions of SC

• s70 (4) SCA 1948 - cannot try case that involves bona fide question of the title unless both parties consent - [Hiew Kim Swee] - crt should be the one deciding whether there is a bona fide dispute of title

• s69 - trust, civil actions of accounts, declaratory decrees except s65(5)(b) & interpleader proceedings, matrimonial issues, guardianship, estate, legitimacy of person

Territorial Juris of MC and SC

s59 & 76 SCA 1948

• cause of action arose

• where D resides or has place of business

• where facts the case is based on exist or alleged to occur

• in the interest of justice

  s99A - apply mutatis mutandis to MC

Art 121 FC

There are 2 HC of coordinate juris - HC of Malaya and HC of SS

s3 CJA64

HC Malaya has local juris over cases in the territories of Peninsular

HCSS has local juris over cases in SS, Labuan

Territorial Juris of HC

s23 CJA 1964

• cause of action arose

• D resides/ has place of business

• facts which the case is based on exist or alleged to have occurred

• where the disputed land is situated

Does HC has juris when the D is a foreigner?

if one of the conditions under s23 is fulfilled - the case of [Malayan Banking v International Tin Council] - s23 confers extra-territorial juris to HC

Mee Ying v Che Jah

the 4 conditions under s23 should be read disjunctively

Sova v Kasih Sayang

each HC branch has concurrent juris - as long as s23 satisfied - HC of Malaya has juris

• D must not be put to inconvenience

Forum convenience

Which is the most appropriate forum to try the case?

• question of fact

• witness and evidence

• police investigation

• common sense

s99A SCA 1948 read tgt with Para 2 of Third Schedule

• SC has power to stay the proceedings unless the proceeding is instituted in the most convenient district

counterclaim

o15r2 - claim that D has against P on any matter - does not have to relate back to the main action of P v D

Court can order under o4r1 for actions to be consolidated and tried at the same time when :

• common QoL or QoF arise in both actions

• rights of relief arise out of the same transaction

• other reason desirable

[Bank of China v Dart Sum Timber] - can consolidate when there are 2 Ps and 1D with same cause of action

• cannot consolidate two actions of a single Plaintiff

HC’s power to transfer

Para 12 of Schedule to SCA 1948 - only HC has power to transfer proceedings from sub court to HC or HC to another HC

• o57r1 - if action not pending before HC - apply via OS + affidavit - if pending - NOA + affidavit stating ground of transfer

When can a stranger intervene in an action

o15r6(2)(b)(ii) - when the stranger has legal/beneficial or pecuniary interest in the action, apply before judgment

• must satisfy the court there is a question or issue arising out of the relief claimed in the matter, that should be determined between him and any existing party, and it will be just and convenient to determine that issue together with the claim brought by original P v D.

• NOA + affidavit showing his interest in the matter or the question to be determined between him and any party

• [Sri Permata v PPH Realty] - will his rights against or liabilities to any party to the action be directly affected by any order which may be made in the action?

[Majlis Islam Selangor v Bong]

• applicant wish to intervene the judicial review proceedings filed by the residential unit owners against the decision made by Majlis Bandaraya Shah Alamin allowing a vacant land to be used as a Muslim burial ground

• not allowed to intervene as there was no necessity for the appellant to be made as a party

Liability of D

o15r4(3) - when the liability of D is joint and several - P may choose one to sue - when liability is joint not several - P can pursue against all parties liable - but may face difficulty initiating action against one party as the liability is joint

two P jointly sue D but one P later issue SD that he does not want to be co-P anymore

• o15r4(2) - 2 or more Ps who are entitled to relief jointly must join or an application may be made to make him a D with the leave of court

• apply by NOA + affidavit

joinder of D in cases for possession of immovable property

o15r10 - any party can apply via ex parte NOA + affidavit showing he is in possession of the immovable property

• he shall serve a copy of the order adding him as D on the P and enter appearance within 7 days or any specified period

How to join P or D before action filed?

o15r4 - when there is common question of law or facts -all rights to relief arise from the same transaction or series of transaction

add D

• Does P has a cause of action against the D to be added?

• satisfy reqs under o15r6(2)(b) - ought to have been joined as a party- person whose presence before court is necessary to ensure all disputed matters may be effectually adjudicated upon -to be added as party

How can P or D to be joined/intervene after action filed/ close of pleadings?

• o15r6(3) - can apply via NOA + affidavit stating grounds for adding

• [Hong Leong Finance v Staghorn] - such applications can be made at any stage of proceedings before delivery of judgment

o15r6(2)(b)(i) - the court may order for any person ought to be joined or - person whose presence before court is necessary to ensure all disputed matters may be effectually adjudicated upon -to be added as party

eg: someone who is directly involved and has close nexus to the cause of action

Can a co-D be added without P’s consent?

[Hee Awa v Syed Muhammad] - can add co-D despite P’s objection

c/f

[Taijul Ariffin v Heng] - P cannot be forced to sue someone he did not intend to bring an action against and amend pleading

[Malite v Abdul Karim] - P cannot be compelled to join someone as D against P’s wishes

Would failure to join any party cause the writ to be invalid?

o15r6(1) - NO - cause of matter shall not be defeated by reason of non-joinder or misjoinder

• o15r6(2) - crt may order a party to be struck out if he is improperly joined or if he has ceased to be a proper or necessary party

CONSEQUENCE : P will not be able to claim against the D that is not joined, can only claim against those named D and might not be able to fully recover the extent of relief

After a D is added

o15r8 - the writ should be amended accordingly and endorsed with reference to o15r6(2)(b)(i) under which the amendment is made - must amend within 14 days and served to the newly added D

When can a third party proceedings be brought?

o16r1 - D’s claim may sue a TP to claim contribution/ indemnity, same relief or remedy claimed by P, any question or issue to be determined - to make TP share liability to pay -should a judgment be made against D

• D must have enter appearance

• TP proceeding must be brought in while the main action is still pending

• o16r1(2) - D issue a TP notice accompanied with writ and pleadings without leave before serving defense/to claim against existing party in the action (8)

• o16r2 - if defense served/ to add gov as TP (8) -need to apply for leave to issue notice in Form 20 + affidavit

• o16r3 - the crt may direct notice to be served within prescribed time - TP notice must be accompanied with a copy of writ filed by P and any pleadings

• o16r4 - if TP enters appearance within 14 days - D must apply for directions within 7 days of TP entering appearance or TP can apply to set aside

• o16r5 - if TP failed to enter appearance - deemed to have admitted claim stated in the TP notice - judgment may be entered against him

• o16r7 - judgment may be entered for D against TP or for TP against D

Better to add TP as co-D under o15r6 - as TP cannot be ordered to indemnify D by paying directly to P - [MBPJ v Digital Viva] - D must pay damages to P first and then later recover from TP - risk not being able to recover

If procedure not followed - can apply to dismiss by NoA+ affidavit

representative action

• o15r12 - numerous person - same interest - take action by any one or more of them representing all

• o6r2(1)(b) & © - statement of representative capacity of P & D must be endorsed on the writ

• judgment binding on all parties

• Duke of Bedford v Ellis - members of same class - common grievance - relief beneficial to all

• Vellasamy v Gurbachan - 4Ps took rep action against D to claim for late delivery of VP - only 1P gave testimony - CA held no need for all Ps to appear and give evidence as long as requirements satisfied

Can a HC of Malaya transfer case to HC of Sabah Sarawak?

No, Art 121 FC - HC of Malaya and HC of DD has co-ordinate juris and status

[Hap Seng Plantations v Excess Interpoint] - powers of transfer can only be conferred by federal law - o57 x confer juris to transfer from HC Malaya to HC SS - ROC not act of Parl

Inherent powers of court

o92r4

When does the LP for TP proceedings start to run?

[Mat Abu v Gov of Msia] - when the action between P and D had been heard and D is found liable to P

• D will then have the right against TP to establish his right to contribution or indemnity from him