LAW OF LIMITATION – Part 1

Outline

1. General period of limitation of 6 years

2. Exceptions – where the law allows postponement/extension of the limitation
period
3. Exception 1 – disability under s24
4. Issue on whether s24 LA 1953 applies if there is limitation period prescribed by
other statute
4.1 – PAPA
4.2 – Civil Law Act 1956
Cases : Phua Chin Chew, Ban Guan Hin, Kuan Hip Peng
5. Exception 2 – section 25 skip bcs takde dlm silibus sir\
6. Exception 3 – revival of cause of action bila ada acknowledgement of debt
7. Exception 3 jugak – revival of coa bila ada part payment
8. Exception 4 - Fraud, concealment, mistake – Section 29
8.1 – Fraud –S 29(a) - case Beaman
8.2 – Concealment S 29(b)
The meaning of concealed by fraud
Concealment by agent – Lim Yoke Kong
8.3 – Mistake – S 29(c)
9. Special periods of limitation

KHAIRUNNISAAZWANI
General Period of limitation – 6 years :

According to section 6 (1) of LA, action can be brought 6 years from the date of
cause of action accrued in contract and tort cases. The general rule is that the court has no
power whatsoever to extend a limitation period unless such power can be found in a statute
or any other written law. This can be referred to the case of Loh Wau Lian v SEA Housing
Corp Sdn Bhd. In this case, the vp for a house was delivered late, on 7 Nov 1977 instead
of 18 September 1975 as promised. Only on 9 September 1982 the plaintiff claimed the
agreed liquidated damages of 8% per annum for the late delivery and filed an action. The
court held that the action was considered time barred.

Section 6A – Sept 2019 amendment

Limitation of action to claim damages for negligence not involving personal injuries – 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 by S6(1) LA 1953.

ILLUSTRATION :
Ali beli rumah from Siti in 2000
In 2010, Ali discovered a crack which damaged the wall badly
A building report made by a consultant revealed that the cracks had appeared in 2002, which was 2 years after Ali
moved into the house.
Ali has 3 years, from 2010, to file an action in court against D for the damages.

*starting date here refers to earliest date where a plaintiff had (1) the knowledge accrued to bring action such as the
material facts about the damage, and (2) had identified who caused the damage

*period under section 6A not applicable in action relating to right of action that has been concealed by fraud

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Period of limitation – postponement/extension :

The general rule is that the court have no power whatsoever to extend a
limitation period in a statute, unless the power to do so can be found in a statute or
any other written law. This principle has been emphasized in the case of Lee Lee Cheng v
Seoew Peng Kwang [1960].

This case was concerned with Section 8(3) of the Civil Law Ordinance 1956 which
were very clear. The provision stated that no proceedings in tort against estate of a
deceased person shall be maintained unless they are taken not later than 6 months after the
personal representative takes out representation. Thompson CJ in this case also highlighted
that the Ordinance contained no provision of any sort giving the court power to extend the
limitation period.

Meanwhile, our Limitation Act 1953 does provide expressly and with great
clearness and particularity for the extension and postponement of limitation period
under several circumstances. These situations included :

a) Disability – S24
b) Debtor administers estate of his creditor - Section 25
c) Acknowledgement – S26
d) part-payment - S 26
e) fraud, concealment, mistake - S 29

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 Exception 1 : Disability

According to Section 24 (1) of LA 1953, in the event of a person is under disability, he may
file an action once his disability ceases. Right of action accrued to a person under
disability may be brought (subject to sections 6(4), 8 and 29) at any time before the
expiration of 6 years when such person ceased to be under a disability or died, whichever
come first, notwithstanding that the period of limitation has expired. In short, the time for
limitation period starts running from the date the plaintiff ceases to be in a state of disability
provided that he’s still alive. Upon death of the plaintiff, the limitation period no longer
suspended and the personal representative of the plaintiff’s estate should take all necessary
steps to commence an action.

Sept 2019 amendment - Section 24A : extension of period of limitation period under Section 6A
in case of disability

In case of disability of a person who has 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 state of disability,
provided no action after the 15 years period

A person who wishes to rely on Section 24 must prove to the court that he/she is a
person under a disability. The term disability here refers to legal disability as defined in LA
1953 – Section 2(3) : a person shall be deemed to be under a disability while he is infant or
of unsound mind.
Infant – refers to minor as defined under
section 4 Age of Majority Act 1971 :
person under 18 years old

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 APPLICABILITY OF LIMITATION PERIOD UNDER OTHER ACTS

1. Where limit period prescribed by PAPA

2. Where limit period prescribed by Civil Law Act 1956

Saving clause under LA 1953 :

i. Saving for other limitation enactments

a. Section 3 LA 1953 : 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.
ii. Application to the Government
a. Section 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.

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 1. Does section 24 LA 1953 apply if the period of limitation is prescribed in the
PAPA 1948?

Where period of limitation is prescribed by other statutes, the period of limitation shall be
computed according to that particular statute. For example, the Public Authorities Protection
Act 1949 (PAPA 1948) provides that the limitation period against the Government is within 3
years from the date of the act complained of.

Phua Chin Chew v & Ors v K.M Ors [1987] 2 MLJ 604

In this case the Supreme court held that section 24(1) LA 1953 may be applicable even
though the case was one where the period of limitation was prescribed by the PAPA.

The respondent, a teacher, had a history of mental illness. In 1977 while labouring under an
attack of schizophrenia, the respondent wrote a letter to the appellants purporting to resign
from his service as a teacher by giving one month's notice. The said letter of resignation was
accepted by the appellants who terminated his service accordingly.

On 2 June 1983, the respondent's two brothers as the Committee members acting for and
managing the affairs and well-being of the respondent filed a suit alleging that the appellants
knew the respondent was suffering from mental illness and should not have accepted the
letter of resignation.

The appellants unsuccessfully applied to the High Court and the Supreme Court to strike out
the action on the ground that the suit was time-barred under section 2(a) of the Public
Authorities Protection Act 1948. The appellants argued that the respondents failed to file
their action within three years of the date of termination of the first plaintiff's services as
required by section 2(a).

On behalf of the appellants, the Senior Federal Counsel submitted that section 2(a) of the
Public Authorities Protection Act 1948 applied in the circumstances of that case to the
exclusion of the Limitation Act 1953. The Senior Federal Counsel relied on section 3 of the
Limitation Act 1953 which provides inter alia that the Limitation Act 1953 shall not apply to

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any action for which a period of limitation is prescribed by any other written law or to any
action to which the government is a party.

However the Supreme Court held that section 3 of the Limitation Act 1953 does not
oust the application of the Limitation Act 1953 where the Government is a party by
virtue of section 33(1) which says that the Act shall apply to proceedings by and
against the Government in like manner as it applies to ordinary proceedings.

Therefore Section 24 of the Limitation Act 1953 was applicable, hence, the Supreme
Court said that time began to run from the date of the appointment of the Committee and not
from the date of the resignation or the acceptance by the Government of the offer to resign.
Since the Committee was appointed on 13 June 1982 and the suit was filed by the
Committee on 2 June 1983. It was instituted well within time and was not statute-
barred.

Ban Guan Hin Realty

The issue of whether the provisions of the Limitation Act which extend a period of limitation
may be imported into the Public Authorities Protection Act 1948 arose again in Ban Guan
Hin Realty Sdn Bhd v Sunny Yap Chiok Sai &Ors.

George J (as he then was) held that in respect of the matters covered by the Public
Authorities Protection Act 1948, the provisions of the Limitation Act 1953 have no
application.

His Lordship said that there was nothing express or implied in the 1948 Act that would make
for the application of any of the provisions of the 1953 Act. Further, section 3 of the 1953 Act
expressly excludes the application of the Act in respect of actions for which a period of
limitation has been prescribed by any other written law. What about section 33(1) of the
Limitation Act 1953?

After all that was the basis of the decision of the Supreme Court in Phua Chin Chew. To that
VC George J said:

Section 33 of the 1953 Act does state that the Act shall apply to proceedings by or against
the government in like manner as it applies to proceedings between subjects. But those
words in the section are prefaced by 'save as in this Act otherwise provided and without
prejudice to the provisions of section of this Act'. Section 3 does indeed provide otherwise. It

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takes cases for which period of limitation is provided by any written law out of the Limitation
Act
of
1953 Since the Supreme Court decision in Phua Chin Chew was reported in 1987, and the High Court case of
Ban Guan Hin Realty in 1989, one may wonder as to why the Supreme Court decision was not referred
.
to by the High Court in the latter case and as to the application of the doctrine of stare decisis?

Ban Guan Hin Realty was in fact heard in January 1987 and at that time, the Supreme Court had not
ruled on the above issue. Therefore the High Court in Ban Guan Hin Realty did not have the benefit of
the judgment of the Supreme Court and was free to interpret sections 3 and 33 of the Limitation Act
1953. Be that as it may, the decision in Phua Chin Chew remains binding until the Federal Court decides
otherwise.

2. Does section 24 LA 1953 apply if the period of limitation is prescribed in the

Civil Law Act 1956?

If a person is killed in an accident as a result of the negligence of a defendant, the

deceased's personal representative may commence an action against the defendant on
behalf of the deceased's estate. This is known as an estate claim and the limitation period in
such a case would be six years as the provision applicable would be section 6(1)(a) of the
Limitation Act 1953.

Besides an estate claim, the dependents of the deceased person may also bring a
dependency claim against the defendant under section 7 of the Civil Law Act 1956. The
Limitation Act 1953 will not be applicable as section 7(5) of the Civil Law Act 1956 clearly
provides for a limitation period of three years.

What if P brings a dependency claim more than three years after the accrual of the cause of
action against a defendant? Prima facie, the action appears to be time-barred. Would the
answer be different if P were a minor? Would be able to rely on section 24 of the Limitation
Act 1953?

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These questions were answered in Kuan Hip Peng v Yap Yin & Anor

In this case, the plaintiff/appellant suing by his next friend claimed compensation under the
Civil Law Ordinance for loss arising from the death of his father as a result of the alleged
negligent driving of a motor vehicle owned by the first respondent and driven by the second
respondent. The problem was that the writ was issued four days after the expiry of the period
of three years prescribed in section 7(5) of the Ordinance. On the question of whether any of
the saving provisions of the Limitation Ordinance could be imported so as to assist the
plaintiff/appellant, Thompson LP said:

The terms of section 7(5) of the Civil Law Ordinance are absolute and contain no
exceptions... there can be no question of importing into the matter any of the saving
provisions of the Limitation Ordinance by any process of construction for by section 3 of the
Ordinance it's shall not apply to any action. for which a period of limitation is prescribed by
any other written law.

If the facts in Kuan Hip Peng were to arise today, the Supreme Court decision in Phua Chin
Chew will not be binding as the Supreme Court relied on section 33 which only applies if one
of the parties is the Government.

Exception 2 : Debtor administers estate of his creditor

Not important, sir tak ajar

Exception 3 : Revival of cause of action in case of

Acknowledgement and Part payment

Revival of cause of action on acknowledgement and part payment applies under 2 general
circumstances :

 In relation to recover land or to enforce a mortgage or charge in respect of land or

personal property (Sec 26(a) & (b))
 In relation to action to recover any debt or pecuniary claim, or any claim to the
personal estate of a deceased person, or to any share or interest of any such estate
(Section 26(2)).

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The cause of action accrues on the date of acknowledgement and it must be done in writing
and signed by the person making the such acknowledgement. (Section 27). Effectively, the
acknowledgment shall bind other persons (who is in possession of the title to the land etc.

What constitutes acknowledgement?

Good v Parry

Acknowledgement was equated with ‘admission’ by all three members of coa in this case.

In the judgement, Lord Denning explains, acknowledgement is where the party admits to the
debt. What constitutes acknowledgement? Acknowledgement is where there is an
admission that there is a debt or other liquidated amount outstanding and unpaid.
Even if in the same writing, the debtor says he will never pay it, it is still a good
acknowldgement nevertheless (asalkan dia mengaku ada hutang in the first place)

For there to be a valid acknowledgement :

1. there must be an unequivocal admission that there is a debt or other liquidated

amount outstanding and unpaid, and
2. must be quantified in figures, or be liquidated in the sense that it is capable of
ascertainment by calculation, or by extrinsic evidence.

Wee Tiang Teng v Ong Chong Hooi & Anor

According to Tun Suffian, LP in the case of Wee Tiang Teng v Ong Chong Hooi & Anor
[1978] 2 MLJ 54, there are 3 types of acknowledgement:

a) An acknowledgement by the debtor that a debt subsisted in the past but not
at the time of the acknowledgement;
b) An acknowledgement that the debt subsists at the time of the
acknowledgement; and
c) An acknowledgement that the debt may subsist in the future but not at the
time of the acknowledgement.

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Another possible issue : What if acknowledgement made after expiry of limitation
period?
Answer : Proviso to S 28(4) seems to imply that an acknowledgement made after
expiry of limitation period would nevertheless be still effective and binding on the
debtor. It merely provides that it wouldn’t bind any successor.

Case : KEP Mohamed Ali v KEP Mohamed Ismail

1967 1974 1976

Pf sued the
defendant (his Only in April
brother) to After this expiry of
1974 the action limitation period, the
recover the to recover the
RM100k parties then entered
said sum was
pursuant to a into another new
instituted.
Deed of agreement on 23
Compromise March 1976 where it
dated 24 April The matter was was agreed that the
1967 made time-barred. defendant will pay
between them. RM90,000 to the
plaintiff and in return,
the plaintiff will drop
the civil action against
him.

Plaintiff contended that this new agreement = acknowledgement within the ambit of s 26(2)
of the Limitation Ordinance 1953, in other word, to suggest that the debt rm100k was still
due and owing by the defendant to the plaintiff.

Fed Court finally held that : yes it is. The new agreement, eventhough made after the
expiry of limitation period, still amounted to a sufficient knowledge to take it outside
of the Limitation Ordinance. Hence, the acknowledgement by the defendant (implied by
the new agreement) eventhough made after expiry, still effective and binding on him.

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Another requirements for acknowledgement :

1. Acknowledgement must be made to the creditor or to his agent.

Maugham J in Re Colliseum (Barrow) Ltd highlighted that it is well settled and
beyond doubt that an acknowledgement must be made to the creditor or to his agent.

Illustration for this principle : Trustee in Bankruptcy of Bowring-Hanbury v Bowring

Hanbury

2. Acknowledgement shall be in writing and signed

This requirements were mandated by Section 27 LA.

Other than these two requirements, the acknowledgement need not be in any particular
form. In addition, an acknowledgement which has been obtained by undue influence is of no
effect and cannot be relied on by the creditors.

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REVIVAL OF COA IN CASE OF PART PAYMENT

Section 26 will also equally apply if there has been a part payment made in respect of
any debt secured by a mortgage or charge or any debt or other liquidated pecuniary
claim. Section 26 is not limited to a situation where there has been an acknowledgement to
any claim as mentioned in section 26(1) and (2).

‘Part payment’ - This term is not defined but it would appear that there may be part
payment even though the payment was not in cash. It is sufficient if the payment is made
in kind, in fulfilment of an agreement to that effect. The authority to support this is the case
of :

Re Wilson [1937]

Between 1923 and 1924 1926

1925

the appellant lent In October 1924, In 1926 the appellant

sums amounting £10 was paid in asked the debtors to pay
to £4,200 to the cash by way of interest on the loan, but
debtors who interest, this he was told by them that
were in being the only they were unable at that
partnership as cash payment time to do so, but that
farmers. made by the they hoped to pay it
debtors to the before long.
appellant.

1927 : an arrangement was made whereby the debtors' obligation to pay interest was to be
discharged or partly discharged by the appellant living on one of the partnership farms rent
and rates free. The appellant was also being provided with farm produce without charge.
This continued until 1935.

December 1935 : the debtors entered into a deed of arrangement for the benefit of their
creditors. The appellant sought to have his claim for £4,200 admitted to proof. The trustee of
the deed of arrangement contended that the debt was statute-barred.

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Luxmoore J rejected the contention that the debt was statute-barred. COA has been
successfully revived because ada part payment where the appellant had under the
arrangement stated been allowed to live rent free at the house until September 1935 with the
rates and taxes in respect of the same being paid by the debtors. (Here : the law anggap this
constituted as part payment, tak semestinya debtor bayar balik hutang, but in this case
debtor kasi appellant duduk free). In addition the debtors supplied the appellant with such
farm produce as he required and this constituted payment so as to take the case out of the
Limitation Act 1623.

Exception 4 : Fraud, concealment, mistake – Section 29

Fraud, concealment and mistake are the other three exceptions that would postpone a
limitation period.

Section 29 reads :

Where in the case of any action for which a period of limitation is prescribed by
the 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 or 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 or could with reasonable diligence have discovered it.

NON APPLICABILITY OF THIS PROVISION

Proviso to Section 29 : where this action shall not be applicable on transaction where
property purchased for valuable consideration by person who is not a party to fraud
nor having knowledge or belief of it or not knowing or having reason to believe that
mistake had been made.

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FRAUD - Section 29(a)

Ingredients of s29(a)

1. Fraud is essential element of the plaintiff’s claim

2. The fraud may be committed by the defendant or his agent or any person
through whom he claims

Beaman v ARTS [1949] 1 K.B 550

 The plaintiff had entrusted a package with the defendant. However, due to the
outbreak of World war, the defendant lost contact with the plaintiff and presumed the
plaintiff cannot be located. He opened the package and when he found that it was
little value, he handed over to the Salvation Army. The plaintiff returned to England
after 6 years and demanded the package from the defendant. The defendant failed to
produce the package and the plaintiff sued the defendant. The defendant put up a
defence of time limitation but the plaintiff argued the limitation has been extended on
the ground of fraud.
 Held: it was not a fraud, but a fraudulent concealment of cause of action and
therefore fresh accrual of cause of action when the plaintiff discovers it.

In order to establish fraud, it may not be limited to common law fraud or deceit.

Lord Greene : “I am of opinion that the conduct of defendants, by the very manner in
which they converted the plaintiff’s chattels, was in breach of the confidence reposed in them
and in circumstances calculated to keep her in ignorance of the wrong they had committed,
amounted to a fraudulent concealment of the cause of action.”

Pursuant to Beaman v A.R.T.S above, no degree of moral turpitude is necessary to

establish fraud within the section (section 29). It applies to even equitable fraud. What
is covered by equitable fraud is conduct which having regard to some special
relationship between the 2 parties concerned, is unconscionable thing for the one to
do towards the other.
Court acknowledge the fiduciary relationship (rship based on trust)
See oso : between bailor and bailee.

Lim Yoke Kong v Sivapiran [1992] 4 CLJ
2219
Shephard v. Cartwright [1953] Ch.728
Follow
In this Beaman case, the defendants tak conduct a proper valuation
pun on the goods belong to Plaintiff, main assume je the value, tak
cuba langsung to communicate with plaintiff, pastu main bagi je dekat
salvation army. Pastu tak bagitau pun plaintiff.

Yong & Co v. Wee Hood Teck Court cakap this amounts to an equitable fraud
Corporation (1984) MLJ 39

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