law · student · Uncategorized · writing

Civil Procedure: Preliminary Matters

As the Certificate in Legal Practice (CLP) exams are nearing and i have some spare time. I would just like to share some of my notes that i used when i was going to sit for the CLP exams.

What is cause of action?

*Cooke v Gill – Bret J defined “cause of action” as every fact which is material to be proved to entitle the Plaintiff to succeed. This was approved in Read v Brown.

*Lim Kean v Choo Khoon – Yong J said that a cause of action normally accrues when there is a Plaintiff who can sue, a Defendant who can be sued, and there are material facts to entitle the P to succeed.

 

Limitation period?

If P has a complete cause of action, he must bring the action within the limitation period otherwise his remedies are time barred. Time begins to run from the earliest point of time when P could commence an action; when a cause of action arise.

*Credit Corp v Fong Tak Sin – Hashim Yeop Sani CJM – the limitation of law discourages P from sleeping on their actions and to have a definite end to litigation.

s.6(1) Limitation Act 1953 – limitation period for action founded on CONTRACT or TORT is 6 years from the date on which the cause of action accrued. For example, breach of contract/damage occurred).

Cartledge v Jopling – Limitation period runs from the date cause of action accrues regardless of whether P discovers the damage.

s.24(1) LA 1953 – provides extension of limitation period of 6 years from the date when such person ceases to be under disability although the limitation period has expired.

Disability in the s.24(1) LA 1953 context

  1. A minor ceases disability when he reaches 18 years old or dies, whichever comes first.

Eg:- X reaches 18 years on Jan 1994. Filed action on July 1999. X took action 5 years 6 months after he ceased disability.

2. Person of unsound mind

s.6(3) LA 1953 -action upon enforcement of civil judgment – 12 years from the date on which the judgment became enforceable; after 6 years no interest can be recovered.

 

s.2 Public Authorities Protection Act 1948 – any action against any public authority in discharging its public duty (gov./ employee of Gov.) must commence within 3 years after the act/neglect/default/damage complained of.

Lee Lee Cheng v Seow Peng Kwang – limitation period is strict. Limitation period provided in any Act of Parliament cannot be extended by the courts unless provided for in the statutes.

It is not for the courts to query legislation.

Ronnex Properties v John Liang – Stephenson LJ observed that where the limitation period has expired, the Gov. can apply to strike out the P’s action on the ground that P’s action is time-barred.

 

s.9(1) LA 1953 – Action to recover land – 12 years from the date on which the right of action accrued.

s.22(1) LA 1953 – No limitation for fraudulent breach of trust or recovery of trust property or proceeds thereof in the possession of trustees.

s.22(1) – Action based on ORDINARY breaches of trust (not fraudulent breach) – 6 years from the date on which right of action accrued.

s.7(5) Civil Law Act 1956 – Any action for dependency claim must be brought within 3 years after the death of the person.

s.8(3) CLA 1956 – n action in TORT against the estate of the deceased defendant can only be maintained if proceedings against the deceased defendant:-

a) were pending at the date of his death; or

b) are taken not later than 6 months after his personal representative took out letters of representation.

 

O.18 r.8 Rules of Court 2012 ; s.4 LA 1953 – where limitation is raised as a defence, it must be specifically pleaded.

Perwira Affin Bank v Ahmad Abdul Rahman – dismiss action with costs if P’ action is time-barred. Then D can apply for preliminary hearing by Notice of application supported by affidavit.

O.18 r.19 – D cannot apply to strike out P’s action on ground that there’s no cause of action.

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