Cause of Action

Dr Juriah Abd Jalil

Feb 2019
 Preliminary Matters

Cause of
parties Jurisdiction Limitation
action Proceedings
of the court Period
 Litigation Process and drafting work

Preliminary Interlocutory
Commencement Pleadings
stage application

Type of
Cause of action Mode of What is pleadings application
commencement
Procedure for
Rules of Pleadings application
Jurisdiction
Service of the Document to be
mode filed
Parties and Service of
Proceedings pleadings Document to
support
Appearance Preparing the Document to
Limitation Period
pleadings oppose
 Litigation Process and drafting work
Gathering of Trial Judgment and
enforcement of
evidence PTCM judgment
O.35 O.42, 45 - 50
O.34
Pronouncement of
Discovery of adjournment judgment in open
Documents O.24 Preparing of Bundles court
of pleading,
documents & Absence of parties at
authority Draft and final
trial judgment
Interrogatories
O.26 Preparing of witness
Statement Order of speeches Enforcement of
and opening speech judgment
Admission File issue to be tried
O.27 Examination of
Statement of agreed Writ of execution
witness
facts

Anton Piller Order Chronology of JDS, Garnishee,

case/summary of Closing submission
charging order
case
 Appeal against a decision made
after (full ) trial (O.55 r3)
Appeal from Subordinate Court
to High Court – O.55 ROC

TYPES OF APPPEAL Appeal against any decision

Appeal to High Court under other than a decision made after
Written Law – O.55 A trial (O.55 r 5)

Appeal from Registrar of the

High Court to a Judge in
Chambers – O.56 ROC

Appeal from Judge in Chamber

to the Court of Appeal – O. 56 r
2 ROC + Sec 68 of the CJA 1964

Appeal from the decision of High

Court after a full trial to the Rules of the Court of Appeal 1994
COA.

Appeal from the decision of the

Court of Appeal to the Federal Rules of the Federal Court
Court
 • Writ, Affidavit of service &
memorandum of appearance
Main action • Statement of claim & statement of
defence

• Notice of application
Interlocutory • Affidavit in support
Application • Affidavit in reply

• Bundle of pleadings
• Bundle of documents
• Bundle of authorities

Trial •
•
Witness statement
Issue to be tried
• Statement of agreed facts
• Chronology or summary of the case
 Main action & Interlocutory
Application
Plaintiff Defendant
Filing the writ in court and serve
Enter appearance
the writ on the defendant

File and serve statement of claim on File and serve defence on the
the defendant plaintiff

Apply for summary

Apply for striking out of the
judgment/striking out of
plaintiff’s action
defendant’s defence
 Relevant Documents
Plaintiff Defendant
WS or OS Memorandum of
(affidavit of service) appearance

Statement of Claim Defence

Notice of Application and

AIR
AIS

Notice of Application and

AIR
AIS
PRELIMINARY MATTERS

CAUSE OF ACTION
Meaning of the cause of action

Issues relating to cause of action

Joinder of the cause of action

Counter claim

Survival of the cause of action

 Introduction
Cause of action is a foundation for
a legal claim which justify the
entitlement of a remedy or relief
sought by the claimant.
 Meaning of the cause of action

• There is no statutory definition of a cause of

action.
• The Malaysian court has referred to English
cases to determine what cause of action is
 Jackson v Spittall • “the act on the part of the defendant which gives the
(1870) LR 5 CP 542 plaintiff his cause of complaint”

Cooke v Gill (1873) • “Every fact which is material to be proved to entitle the
LR 8 CP 107 plaintiff to succeed”.

Read v Brown • "A 'cause of action' is the entire set of facts that gives rise
(1888) 22 Q.B.D. to an enforceable claim; the phrase comprises every fact
which, if traversed, the plaintiff must prove.”
128

Letang v Cooper
• “A cause of action is simply a factual situation the
(1965) 1 QB 232 existence of which entitles one person to obtain from the
court a remedy against another person”
 Government of Malaysia v Lim Kit Siang
[1988] 2 MLJ 12 (SC)
• Salleh Abbas LP states:

“A cause of action is a statement of fact alleging

that a plaintiff’s right, either at law or by
statute, has, in some way or another, been
adversely affected or prejudiced by the act of a
defendant in an action”
 Summary on the meaning of cause of
action and consequence of failure

• a cause of action refers to a factual situation that give rise to

an action in court.
• The factual situation must have strong legal basis or based on
a reasonable ground.
• This factual situation must be clearly established or laid out in
the statement of claim.
• Failure to establish a good and reasonable cause of action
may render the cause of action to be struck out on the ground
of unreasonable cause of action.
 checklist
• What is the cause of action in your case?
• What rights has been breached in your case?
• What is the appropriate remedy for the
plaintiff to seek from the court?
 Issues •When does
relating a cause of
action
to accrues
cause •Is the cause
of of action
complete?
action
 When the cause
of action accrues GR: The plaintiff
is crucial because must file the case
the limitation within a specific
Accrual of the
period starts to time limit as
Cause of Action
run from the date governed by the
of the accrual of Limitation Act
the cause of 1953.
action.
 For Example
• In cases of tort or contract the plaintiff is required to
commence the action within 6 years from the date
when the cause of action accrued.
• This is clearly stated in Section 6(1) of the Limitation
Act 1953.
• “Save as hereinafter provided the following actions
shall not be brought after the expiration of six years
from the date which the cause of action accrued,
that is to say – (a) actions founded on a contract or
on tort…”
 Lim Kean v Choo Koon [1970] 1 MLJ
158
• Yong J held
“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 entitle the plaintiff to succeed.”
Sio Koon Lin & Anor v SB Mehra [1981]
1 MLJ 225
• the respondent had contributed RM 100,000 to a
partnership and it had been agreed that this amount
to be repaid to him, RM 15,000 on the execution of
the agreement, RM 35,000 on or before 12 October
1972, and the balance of RM 50,000 by monthly
installments of RM 10,000 on the 12th day of each
succeeding month.
• There was no provision in the case of default of any
one installment, the remaining installments should
become immediately due and payable .
 continue

• There was a default in the payment.

• On 7 October 1972, the respondent took out a
writ claiming among others, payment of RM
85,000 with interest.
• The Federal Court in reversing the High Court
found that the respondent did not on 7
October 1972 have any cause of action in
respect of the RM 85,000 or any part thereof
as no installments were then due.
 Other cases
• Abdul Aziz Abdul Hamid v Perak Roadways Bhd
[2007] 7 CLJ 161
• Whether the cause of action accrues
on the next day after the expiry of 24
months after the agreement was
signed or
• When the actual delivery of the
vacant possession took place
 Other cases
• Bug Buster Specialists Sdn Bhd & Ors v Ridpest Sdn Bhd
[2016] 8 MLJ 85
• The court held that the cause of action
accrues on the date when the agreement
was terminated.
• The cause of action in this case was based
on implied breach of a franchise
agreement.
 checklist
• When does a cause of accrues in your
case?
• What is the governing rules and law
governing the issue on the accrual of the
cause of action?
 A complete or premature cause of action

• GR: To be successful in the action,

the plaintiff must ensure that he
has a complete cause of action
 When is a cause of action complete?

• Rosli bin Dahlan v Tan Sri Abdul Gani bin

Patail & Ors [2014] MLJU 559 the court
held 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.
 Boustead Naval Shipyard Sdn Bhd v Dynaforce
Corporation Sdn Bhd [2014] MLJU 514

The Court of Appeal states

“to formulate and advance a complete
cause of action, the material facts
must be pleaded (in the statement of
claim)”
What is the consequence of an incomplete
cause of action?
• Taib bin Awang v Mohammed bin
Abdullah [1983] 2 MLJ 413, the plaintiff
action was dismissed on the ground of
premature when he commenced an
action for malicious prosecution while
the case against him was still under
appeal.
 Syed Idrus bin Syed Ahmad v Afandi bin
Abdul Manap & Ors [2015] 10 MLJ 390

• where the court elaborated that in order to succeed in

proving malicious prosecution, it is incumbent on the plaintiff
to prove four essential ingredients:
(a) the defendants prosecuted him;
(b) the prosecution ended in the plaintiff's favour;
(c) that the prosecution lacked reasonable and probable
cause; &
(d) that the defendant acted maliciously.

Thus failure to prove the above elements will render the case to
be dismissed on the ground of premature.
 checklist
1 When is a cause of action complete?
2. Why is it so important to ensure that a cause of action is
complete before commencing a case in court?
3. How does the plaintiff ensure that the cause of action is
complete?
4. What is the document for the plaintiff to set out a
complete cause of action?
5. What must be pleaded to ensure there is a complete
cause of action?
6. What is the consequence of an incomplete cause of action?
Joinder of a cause of action

Q: Can a plaintiff sue a defendant

for more than one cause of
action? How?
 O.15 rule 1
• provides for joinder of causes of action.
• The provision allows the plaintiff in one action to claim
against the same defendant in respect of more than one
cause of action provided:
• the defendant is alleged to be liable in the same capacity
in respect of all causes of action;
• the defendant is alleged to be liable in the capacity of
executor or administrator of an estate in respect of one or
more of the causes of action and in his personal capacity
but with reference to the same estate in respect of all the
others; or
• with the leave of court.
 What if the defendant wants the cause of
action to be tried separately?

• in the case of Charles Koo Ho-Tung v Koo Lin Shen

[2015] MLJU 910 the court held,
• “If the Defendants are of the view that the joinder of
causes of action under ss 162 and 181 CA prejudices
them, the Defendants may apply for separate
hearing of the Plaintiffs’ claim under ss 162 and 181
CA pursuant to Order 15 rule 5(1) RC.”
• O.15 r 5(1) gave power to the court to order a
separate trials.
 Checklists

• 1. What is a joinder of a cause of action?

• 2. In what circumstances can two causes of action be
joined?
• 3. What are the governing rules?
• 4. What is the rational for joining two causes of action in
one action?
• 5. In what circumstances may the joined causes of action
be separated?
• 6. What will happen to the separated cause of action?
 Counterclaim
• A claim made by a defendant in a same action
brought by the plaintiff against the defendant.
• O.15 r2
 O.15 r 2 ROC 2012
• “Subject to rule 5(2), a defendant in any action
who alleges that he has any claim or is entitled
to any relief or remedy against a plaintiff in the
action in respect of any matter (whenever and
however arising) may, instead of bringing a
separate action, make a counter claim in
respect of that matter; and where he does so he
shall add the counterclaim to his defence.”
• The title of the defence will be “Defence and
Counterclaim”
 What is the status of the
counterclaim
• O.15 r 2(2) explains “Rule 1 shall apply in relation to a
counterclaim as if the counterclaim were a separate
action and as if the person making the counterclaim
were the plaintiff and the person against whom it is
made a defendant.”
• It is also important to take note of O.15 r 2(3) of the
ROC 2012 which states “A counterclaim may be
proceeded with notwithstanding that judgment is
given for the plaintiff in the action or that the action
stayed, discontinued or dismissed.”
• Whenever there is a counterclaim, the plaintiff must
then provide a defence to the counterclaim, failure of
which a judgement in default may be entered
 Checklist
1. What is a counterclaim?
2. Who may make a counterclaim?
3. Which rule governs the procedure on counterclaim?
4. What is the status of a counterclaim?
5. How to make a counterclaim?
6. How do you serve a counterclaim?
7. What is the time limit governing service of the counterclaim?
8. How should the plaintiff respond to the counterclaim?
9. What can the defendant do if the plaintiff fails to do so?
 Survival of a cause of Action
• This provision is governed by section 7 & 8 of the Civil Law
Act 1956.
• The provisions provide two cause of action namely as
explain by the COA in the case of Datuk Seri Khalid bin Abu
Bakar & Ors v N Indra a/p P Nallathamby (the
administrator of the estate and dependent of Kugan a/l
Ananthan, deceased) and another appeal [2015] 1 MLJ 353
• 1. dependency claim that allows the dependent of a
deceased whose rights has been breached resulted in his
death to commence a suit against the person who has
breached the deceased rights;
• 2. estate claim, where the claim shall be vested in the legal
representative of the deceased estate.
 Name of parties in a suit
• (Suing As Widow Of Basia Bin Bahari,
Deceased, On Behalf Of Herself And The
Dependants Of The Deceased) V Ahmad Bin
Ariffin [1997] 1 MLJ 677 (dependency claim)
• Phuah Beng Chooi @ Koh Kim Kee & Anor
(executor of the estate of Koh Hing @ Koh
Heng Teik, deceased) v Koh Heng Jin [2013] 8
MLJ 401 ( claim by legal representative)
 Limitation Period
• The dependency claim and the estate claim has
different limitation period governing it.
• Dependency claim is 3 years from the date of the
accrual of the cause of action. Exception is when it
involves children. See the case of Nurul Fatihah
Amimi bt. Mohd Nasri and Others v Tenaga
Nasional Bhd [2007] MLJU 394 (section 24 of the
Limitation Act)
• Estate claim will depend on the cause of action, if it
is on tort or contract, 6 years from the date of the
accrual of the cause of action.
 Checklist
1. What does ‘survival of the cause of action’ means?
2. What are the legal bases governing the term?
3. State the manner on how the survived cause of action can
be proceeded to court?
5. What is the procedure described under section 7 and 8 of
CLA?
6. Is there a time limit to be adhered to those sections? Are
the time limits the same?