LIA4006 – Civil Procedure I

Tutorial 1 Questions

1. Explain what you understand by the term “cause of action”. Explain the
importance of a cause of action in the civil litigation process. Illustrate your
answer by making reference to the decided cases in your course outline.

Referring to the case of Cooke v Gill, Brett J defined a cause of action is “every fact
which is material to be proved to entitle the plaintiff to succeed.

While in the case of Lim Kean v Choo Koon, the court illustrated how to determine
if a the cause of action is completed. In the case, the court stated that: “A cause of
action normally accrues when there is in existence a person who can sue and
another who can be sued, and when all the facts have happened which are material
to be proved to entitled the plaintiff to succeed…”
- Thus, the case shows us that there are 3 requirements needed to be fulfilled
in order for the cause of action to be completed:
1. There is a Plaintiff who can sue
2. There is a Defendant who can be sued
3. The cause of action i.e., every fact which is material to be proved to
entitle the Plaintiff to succeed has happened – this also means that
when every ingredient which constitutes that cause of action has taken
place.

Why it is important to establish a cause of action?

- Cause of action determines the form of proceedings to be taken in court
- Determines the remedy to be granted by the court
- Determine the limitation period
- Determine which court to go to

Besides, there is some cases which show that there is incomplete cause of action,
and the case can be strike out by the court under Order 18, r19(1)(a) [no reasonable
cause of action]
Generally is under r18, r19(1)(a), BUT
We can also draw the court to O18, r19(1)(b)or (d).

- Taib bin Awang v Mohamd bin Abdullah

- Case fact:

The plaintiff claimed damages against the defendants on the ground that he had
been wrongfully and maliciously prosecuted in the Kadi’s Court for an offence under
the Administration of Islamic Law Enactment, Terengganu. The plaintiff was found

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guilty and sentenced to 2 weeks imprisonment He appealed and thus the case was
still ongoing. In Halsbury’s Laws of England 5 edition, the tort of malicious
prosecution is defined as an abuse of the process of the court by wrongfully setting
the motion on a criminal charge, to be actionable as a tort, the process must have
been without reasonable and probable cause, must have been instituted and carried
on maliciously, must have ended in the Plaintiff’s favour and P must prove damages.

Held: P’s action failed because his cause of action was incomplete, not every fact
material to be proved to entitle P to succeed has happened. In this case, it is
essential for the P to aver and prove that the proceeding complained of was
terminated in his favour. Since the criminal proceeding against the P in the Kadi’s
Court had not been finally determined by the Syariah Appeal Court in the P favour, it
was premature for the P to bring this action. Hence, the plaintiff had no reasonable
cause of action against the defendants and the plaintiff’s action was struck out with
costs.

Sio Koon Lin v SB Mehra [1981] 1 MLJ 225 -

Facts: The respondent contributed $100,000 to a partnership and it was agreed that
the appellant would repay this amount to the respondent by instalment via certain
amount upon execution of the agreement, and the remaining sum by installments on
the 12th day of each succeeding month. The agreement did not provide that in the
case of default of any one installment, the remaining instalments would become
immediately payable. However, before one of the instalments was due, which was
on 12 Oct 1972, the respondent took out a writ and filed the action on 7 Oct 1972 to
claim for full payment of the debt.

Held: The respondent did not have any cause of action as the action was premature.
This is because the debt was not even due yet, thus the respondent couldn’t claim
for the repayment of the debts. Not every fact which is material to be proved to
entitle the P to succeed has happened.

Simetech (M) Sdn Bhd v Yeoh Cheng Lian Construction Sdn Bhd [1992] 1 MLJ
11 – (don’t used this case first)
Facts: The Defendant was the main contractor for a construction project with a third
party. The plaintiff was a sub-contractor which agreed to execute some sub-contract
works for the defendant. In this case, the plaintiff alleged that the defendant failed to
pay him the full amount for the works he did. Initially, the plaintiff sued for a sum of
$1,288,000 and a writ & statement of claim had been issued to the defendant.
However, after a few months, with the consent of the defendant, the plaintiff
amended the statement of claim and claimed for $222, 277.65. This additional claim
of $1,173,459.25 was made based on additional sum accrued to the plaintiff after the
issue of the initial writ and statement of claim. The question was whether the plaintiff
could sue for the additional sum, as per the amended statement of claim, even if the
defendant has consented to it.

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Held: No. You can’t sue for something that hasn’t happened yet. In this case, when
the writ and statement of claim were issued, the additional sum was not accrued to
the plaintiff yet. This means that, on the date of issuance of the writ & statement of
claim, the additional sum was not claimable yet. Thus, the plaintiff can’t amend the
statement of claim to include a new cause of action for something that happens after
the issuance of the writ & statement of claim.

Other than incomplete cause of action, we shall also noted on the effect of death on
certain causes of action as provided under s.8(1) of Civil Law Act 1956. Under
the provision, it stated that all causes of action will still subsist on the death of a
person unless it fall under the cause of action for defamation pr sedution, for
inducing one spouse to leave or remain apart form the other, or claim for damages
on the ground of adultery.

Side notes: by ascertain relevant cause of action, you can determine either
writ or original summons to be used to initiate your case.

No Reasonable cause of action vs incomplete cause of action

- A no reasonable cause of action case can have a complete cause of
action, but just that it is unreasonable, so strike out.
- Exp: breach of contract, maybe you had a Pf to sue, Df to be sued and
all elements of breach of contract, but just that the Defendant can say
that you don’t have a reasonable grounds to sue at all.

2. What is the limitation period for suits based on breach of trust?

- S22(2) of the Limitation Act 1953 read that 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.

- So, the limitation period for suits based on breach of trust is 6 years from the
date on which the right of action accrued. For the case of a trust in future
property, the 6 years starting to count once that future interest fell into
possession i.e., such interest had been in existed and not considered as a
future property anymore.

S 22(1) (a)LA: If P can show that D committed fraudulent breach of trust,

there is no limitation period.

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 S22(1) (b)LA: If P is trying to recover a trust property that D have disposed
of because of D’s breach of trust, there is no limitation period.

S22(1)(b) LA: If P is trying to recover the proceeds of trust property in the

possession of trustees, there is no limitation period.

+ Palaniappa Chetiar
S22(2) LA: an action on breach of trust is not being a case under s.22(1), the
limitation period of 6 years would apply (e.g. negligent breach of trust).
+ Datuk Wira v Raju

3. Answer the following separate and independent questions.

(i) P entered into a contract with D in 2012 to purchase a piece of land

owned by D. D breached the contract in 2013. P intends to
commerce an action for breach of contract against D today. Will P’s
action be barred by limitation?

Answer skeleton
1. There are different types of damages can be claim here
 You can claim for breach of contract with damages
 You can claim for breach of contract and seek for specific
performance
2. Start with breach of contract + damages
 S.6(1)(a) of LA
 Time-barred
3. Breach of contract + SP
 S.9(1) of LA
 Nasri v Mesah
 Punnasamy
Within the time, no time barred. He can claim for
breach of contract and seek specific performance.

Breach of contract started in 2013.

Today: 2023 (10 years after 2013)

Limitation period on the case of a breach of contract

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S.6(1)(a) of Limitation Act 1953 reads that an action founded on a
contract shall not be brought after the expiration of 6 years from the date
on which the cause of action accrued.

Here, since the contract had been breached in 2013 and the cause of
action which was founded upon breach of contract accrued in 2013. The
limitation period would begin to run from 2010 and would lapse after 6
years, i.e., 2019. Today is 2023, which had exceeded the limitation period,
hence, P’s action would be time barred as it has exceeded the 6 years
limitation period.

However, P may consider bringing an action against D to recover the

piece of land in dispute.

Law
S9(1) Limitation Act: The limitation period to recover land is 12 years
from the date on which the right of action accrued.
Nasri v Mesah
FC: the limitation period of 12 years begins to run from the date of any
infringement or threat of infringement of the appellant’s right under the
sales and purchase agreement.
Ponnusamy v Nathu Ram
Fact: In August 1944, the respondent sold his land to one Naina (of
whose will the appellants are the executors) and executed a transfer.
Naina entered into possession but did not register the transfer. He died
on 11 February 1949 and so the transfer became unregistrable. The
appellants brought an action on 1 December 1956 claiming declaration
of title to the land and an order for the registering authority to register
the appellants as proprietors. The respondent pleaded limitation as one
of his grounds of defence as the action was taken after 6 years (in this
case, the right to sue accrued when Niana is dead, on 11 Fe 1949 but
due to a moratorium, the limitation period run from 1 Oct 1949, which is
when the moratorium is lifted.).

Held: The cause of action is to recover the land. Thus, the limitation
period is 12 years under S9 of LA. So, the action is not time barred.

Application
P may consider seeking for specific performance for the land to be
transferred to him. The limitation period would run from 2012, i.e., the
date D breaches the contract to sell the land to P and will end 12 years
from 2012, which is in 2024. As it is currently 2022, P could still bring
an action to recover land as it is not barred by limitation.

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(ii) P is the beneficiary of a trust. D is the trustee. P has just discovered
that D had committed a breach of trust about 10 years ago. P intends
to commence an action for breach of trust against D today. Will P’s
action be barred by limitation?

Answer Skeleton
 Stated there is two types of breach of trust
 S22(1) – no limitation period
 S22(2) – limitation period – 6 years- 2013-2019

Assuming it is a negligence breach of trust, is s6A of LA applied?

 Noted: the purpose that s6A is enacted is for latent damage.
And stated that here, it doesn’t involve personal injuries, so
we shall look into s.6A of LA.
- It is arguable that negligence breach of trust can be latent or
patent.
- Exp: strategy to invest by trustee can be latent
If it Is something done behind the scene – it actually and generally
can had fraud element – no limitation period
 Assuming there is a latent damage, s6A applies. It depends
on when P discovered the damage + 3 years
If it is patent damage, s6A will not applied.
If it involve element of fraud- s.22(1) will apply – no
limitation period. Besides, s29 of LA can be looked into as
well
Since P is suing D for breach of trust, there are 2 types of limitation:
unlimited or 6 years. But the facts are silent on whether it is a fraudulent
breach of trust or not.

The limitation period for P’s action depends on what kind of breach of trust
is it.

S 22(1) LA: If P can show that D committed fraudulent breach of trust,

there is no limitation period.

S22(1) LA: If P is trying to recover a trust property that D have disposed of

because of D’s breach of trust, there is no limitation period.

S22(1) LA: If P is trying to recover the proceeds of trust property in the

possession of trustees, there is no limitation period.

S22(2) LA: an action on breach of trust is not being a case under s.22(1),
the limitation period of 6 years would apply (e.g. negligent breach of trust).

Palaniappa Chettiar v Lakshamanan Chettiar

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 the issue of limitation will not arise if it is an action by a beneficiary to
recover trust property by virtue of S.22(1)(b) Limitation Ordinance.

Dato Wira A Nordin v Rajoo a/l Selvappan

Under s22(1)(a), there must be the element of fraud or fraudulent breach
of trust. As for s.22(1)(b), the trust property must be in the possession of
the trustee, or he has in possession of the proceeds thereof. Since the
element of fraud is absent and R was seeking damages and not the
recovery of trust property or proceeds, s.22(1) has no application, the case
falls under s22(2) and the limitation period was 6 years from the date the
cause of action accrued. Thus, time had lapsed for the R to seek redress
by this action against the appellants.

When? When the right of action accrued (cause of action accrued). If

question unclear whether fraudulent, then discuss both.

Section 6A: to protect the plaintiff from laten damages. The time will only
start running upon discovery. Will be applicable in this case, 6A applicable.

4. In 2015 A borrowed RM50,000 from B. A promised to repay the loan on

1.1.2016. On 10.10.2020 B demanded the sum lent from A but A ignored B’s
demand. In May, 2021 A met B and verbally promised B that he would repay
the loan. To date A has failed to fulfill his promise. B wants to sue A next
week.

Discuss whether B’s claim is barred by limitation.

Date of the cause of action of breach of contract accrued: 1.1.2016

Issue: Whether B’s claim the recovery of loan payment of RM50,000 is barred by
limitation?

Law: According to Section 6(1)(a) of the LA 1953, for actions founded on

contract or tort, the limitation period would be 6 years from the date on which the
cause of action accrued. The limitation period of 6 years starts to run the moment
the breach of contract takes place.

Law: It is also pertinent to note that under Section 26(2) of LA1953, the right of
action shall be deemed to have accrued on the date of acknowledgment of a claim
to recover any debt. Nevertheless, Section 26 has to be read together with
Section 27(1) where it provides that every acknowledgement referred to under
Section 26 must be in writing and signed by the person making the
acknowledgement.

In the case of Tenaga Nasional Bhd v Kamarstone Sdn Bhd, the court held that
the signed letter constituted a clear and unequivocal acknowledgement by the

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 respondent that there was a subsisting debt. Therefore, there was a fresh accrual
on action on acknowledgement.

Yam kong seng v Yee Weng Kai

Fact & principles: voice message being accepted as acknowledgement

Application: In the present situation, A was supposed to repay the loan on

1.1.2016 but had defaulted in his repayment of loan until today (2023). There is a
lapse of more than 6 years of limitation period i.e., it has been 7 years from
1.1.2016 until now [23.10.2023]. Sometime in May 2021 (which is within the 6th
year), A had acknowledged the claim. Supposedly, there would be a fresh accrual
of action on the acknowledgement. However, according to s26(2) read together
with Section 27(1) of LA, the acknowledgement must be in writing and signed by
the person making the acknowledgement. A merely verbally promised B that he
would repay the loan. There wasn’t any acknowledgement in the form writing nor
existence of signature. Hence, Section 26(1) is inapplicable to extend the
limitation period.

Conclusion:
In conclusion, there is no fresh accrual of action from May 2021 even if A verbally
acknowledged B’s claim, as it was not in writing and not signed. B’s claim is
therefore time-barred.

Answer skeleton
- When breach of contract started accrued? 1.1.2016
- Breach of contract’s limitation period – 6 years
- Time-barred /
- Whether there is any way to extend? Here, acknowledgement.
- However, such acknowledgement was made orally. Whether this
constitutes as acknowledgement? Tenaga Nasional Bhd, Yam Kong
Seng
 No
- Here, no extension because there is no valid fresh acknowledgement.

All the acknowledgement must be within the 6 years, if you acknowledge it

after the 6 years’ time limits, then your case can be strike out