The Meaning of Laches

According to Spry, laches happen when the plaintiff takes unreasonable delay to file
a lawsuit against the defendant. During this time, the defendant's position has changed, or a
third party has taken any right through the defendant, which the plaintiff had at the start. This
means that the action taken by the plaintiff is no longer appropriate and just, and it would be
if the court had agreed to it.1

However, the defence of laches would be a good one for the defendant in the
preliminary stages, but it would not be a good defence if the defendant had agreed to the
material contract after the prejudice. Unless the plaintiff makes a false statement or
inequitable factors that would make it unjust for the court to give the plaintiff the relief he
wants, specific performances on the grounds of laches would not be unjust to grant.

Based on these definitions and statements, what is clear to us is that the plaintiff
must initiate his case against the defendant as quickly as possible, or at least with a
reasonable amount of time. He should not delay his action unreasonably, which could cause
the defendant or a third party to change their position, which would make it unfair for the
plaintiff to get the relief he wants. On the other hand, on behalf of the defendant, in order for
the defence of the doctrine of laches to be in preliminary successful, the court would
eventually, without hesitant allow the relief sought by the plaintiff provided that justice, based
on circumstances warrant them to do so.

The Meaning of Limitation Period

Limitation period is a time frame that is allowed by the law for any party, especially
the party who is the victim of a civil obligation, to start a lawsuit against the party who have
defaulted the terms agreed or caused them harm or loss. Hence, it is obligatory for the
grievous party to initiate legal action against the defaulting party who had caused the injury,
losses or breaches on him, within the limitation period. According to section 6(1)(a) of the
Limitation Act 1953, stated that a claim based on a contract must be brought within six
years of the date the cause of action arose, with the limitation period beginning on the date
of the claim's accrual. It will not be enforceable by the court if legal action is taken more than
six years after the accrual of the cause of action.

1
Spry ICF, The Principles of Equitable Remedies, Specific Performance, Injunctions, Rectification and Equitable
Damages, Fourth Edition, Australia : The Law Book Company Limited 1990. pg.232
Statutory Provision

According to section 32 of Limitation Act 1953: “Nothing in this Act shall affect any
equitable jurisdiction to refuse relief on the grounds of acquiescence, laches or otherwise.”
It is to be noted that even section 6(6) of the Act also mentions on the importance of
section 32, where it says that: “Subject to the provisions of section 22 and 32 of this Act the
provisions of this section shall apply (if necessary by analogy) to all claims for specific
performance of a contract or for an injunction or for other equitable relief whether the same
be founded upon any contract or tort or upon any trust or other ground in equity”
By this provision, it is clear that even though the time to start a lawsuit in a contract is
still six (6) years after the start of the cause of action, if the plaintiff doesn't start the lawsuit
on time, it will be in ruins.

How far is the implementation of This Doctrine in Malaysian Law?

Even though this doctrine has been implemented in the Limitation Act 1953, it has
been repudiated and hasn't been used well in Malaysia. This is supported up by a lot of
cases that have been settled. As a first step, some courts in Malaysia seem to use only one
test, which is whether or not the parties took action within the limitation period. It doesn't
matter when an action is started, as long as it's done within the time limit set by the law. The
action is still valid and enforceable, no matter when it was started. This application, it is said,
clearly doesn't follow ss 6(6) and 32 of the Act.
It has also been said that in some cases, the procedural rule, like the one in s 4 of
the Act, has not been stressed or upheld in most of the cases. The way the doctrine of
laches is used in Malaysia is not really to be consistent.
To elaborate more on what have been stated so far, we are going to describe the
application of this doctrine into two categories:
a) Cases where the court does not take into account the doctrine of laches.
b) Cases where the court takes into account the doctrine of laches.

Cases where the court does not take into account the doctrine of laches.

Malaysia's approach of emphasizing the permissible limitation period while ignoring

the significance of section 32 of the Act was amply demonstrated in various cases. For
example, the limitation period under section 9 of the Limitation Act 1953 is twelve (12) years
from the date of accrual of a cause of action in an action for specific performance of a
contract of sale of land. If the plaintiff initiates the case on the exact final day of the 12 th year,
his action is still recognised and enforceable by the court, regardless of whether the plaintiff
acted lazily in initiating such procedures.
 In Munah v Fatimah,2 the defendant's contention that laches applies was dismissed
on the ground that the plaintiff had taken possession of the land, and the transfer of the land
was pending, even though the plaintiff’s action was made after 19 years after the agreement
to purchase the land was entered. Similarly, in Kersah La'usin v Sikin Menan,3 where the
action was taken after 24 years from the date of the agreement.
However, in Tan Swee Lan v Engku Nik Binti Engku Muda & Ors,4 the court had
allowed the purchaser's action even though he had not taken possession of the land, as the
action was commenced well within the limitation period. However, in this case, no issue of
laches was raised by the vendor or had been dealt with by the court, between the date of the
agreement (12 April 1958) and the date of the cause of action (2 March 1970) nor between
the date after the date of the cause of action (3 March 1970) and the date of the
commencement of the action by the purchaser (16 April 1970). In this case, what was
important and regardless of whether the purchaser had taken possession of the land, is that
should the purchaser commence the action well within the limitation period, calculated from
the date of the cause of action, his action is valid and enforceable by the courts.
In Nasri v Mesah,5 On 5 June 1947, the purchaser and the vendor agreed to a sale
and purchase agreement. Although the plaintiff had paid the purchase price in full, the
defendant never completed a document of the transfer due to the moratorium imposed.
However, at the moratorium's expiration on 30 September 1949, the purchaser approached
the vendor and demanded the execution of the transfer. The seller denied the request. As a
result, on 3 March 1967, the purchaser instituted a specific performance suit to compel the
vendor to complete the transfer. The purchaser's application was denied by the High Court
on the basis of limitation. The Court of Appeal, however, overturned it. The court reached
this conclusion because the action for a particular execution of a contract of sale of land was
brought well within the 12-year period prescribed by Article 9(1) of the Limitation Act. Again,
the notion of laches was not addressed in this instance. It is contended that the defendant
failed to argue this defence in the manner required by law.
Again, in Peng Bee Sdn Bhd v Teoh Liang Teh & Ors, 6 although the court
concluded that the buyers' claim was brought after 12 years from the date the cause of
action accrued, the court did not use the doctrine of laches. The doctrine of laches, it is
argued, might be employed in this case between the date of the agreement (11 August
1980) and the date of the cause of action (7 June 1982), as well as between the date of the
cause of action (7 June 1982) and the date on which the action was filed in court (13

2
[1968] 1 MLJ 54.
3
[1966] 2 MLJ 20.
4
[1973] 2 MLJ 187
5
[1971] 1 MLJ 32
6
[2001] 1 MLJ 1
January 1995). However, this might be because this defence was not raised. As a result, it's
unsurprising that this doctrine was never been discussed.
All in all, section 4 of the Limitation Act 1953 says that if a party wants to use the
doctrine of laches, they must say so in their pleadings. That wasn't done. There was no
reason for the issue of laches to be decided on. In each of the above cases, none of the
parties pled laches either in their defence or in their application to strike the plaintiff's
pleading. Given that such a defence must be procedurally sound and presented in
conformity with section 4 of the Act, it is unsurprising that the judges in these cases
remained mute on the subject. Even though none of the parties cited the defence in their
pleadings, it is nevertheless contended that the defence is impractical. Similarly, if the judges
in these cases had questioned this point, which was not raised by the parties, it is argued
that the laches defence remained unworkable.

Cases where the court takes into account the doctrine of laches.
In M Ratnaval v S Lourdenadin and M Mahadevan v S Lourdenadin 7, The vendor
and the purchaser (the respondent) entered into an agreement for the sale and purchase of
the land at the price of RM93, OOO free from all encumbrances. The agreement said that
the sale of land would be contingent on the vendor getting a valid and enforceable discharge
of the charge on the land, which had been charged to one K Sinnathamby, who has since
died. Also, the Ruler-in-Council had to give the buyer more chance to construct a building on
the land. There was a delay in the sale, so the vendor ended the deal and agreed to sell and
buy the land again with the second purchaser, who had already agreed to buy the land (the
second appellant). Later, the second buyer was made the owner of the land. As a result of
this, the plaintiff (the buyer) filed a lawsuit against the vendor and the second purchaser,
alleging that the vendor had lied to the Registrar of the Titles and thereby induced the
Registrar to issue an additional title. As a result, the plaintiff filed a lawsuit seeking specific
performance under the agreement.
The defence of laches by the vendor and the second purchaser was one of the
issues addressed by the court. The plaintiff's claim for specific performance of the contract
was thwarted by this defence (the purchaser). When the purchaser's interest was
threatened, the court concluded that the plaintiff (the purchaser) took an excessive amount
of time (14 months) to file a lawsuit against the seller, and an unreasonable amount of time
(five years) to file a caveat on the property to safeguard her interest.
The court argued that laches was one of the reasons why specific performance could
not be provided fairly. Because the plaintiff waited 14 months to file a lawsuit against the
seller and the second buyer, the cause of action had expired. Regardless of how long the
7
(1988) 2 MLJ 371
delay lasted, the plaintiff's lawyer argued that the action had to be done inside the statute of
limitations. This argument was dismissed by the court on the basis of s. 32 of the Act and the
fact that the circumstances made the award of specific performance unfair.
In Faber Merlin (M) Sdn Bhd & Ors v Lye Thai Sang & Anor and Tan Kim Chua
Realty (M) Sdn Bhd v Lye Thai Sang & Anor, 8 the doctrine of laches was raised and
entertained by the court even though it had not been pleaded by the parties. In this case, the
court invoked the doctrine of laches and found that the plaintiffs were estopped because
they were guilty of laches in that since 1978, although the plaintiff knew that the acts of the
defendant were contrary to the agreement, even with such knowledge, no action had been
taken against the defendant. Only on 23 May 1983 did they file the originating summons
against the defendant praying for declaratory judgment, on which date the court found the
delay to be tantamount to laches.
In Goh Keng How v Raja Zainal Abidin bin Raja Hussin & Anor,9 there was a
delay for almost 30 years on part of the plaintiff to transfer the land held under a trust into
the name of the beneficiary, before he commences the action to recover the same from the
defendant who is bona fide purchase of the land in question.
Similarly, in Haji Osman bin Abu Bakar v Saiyed Noor bin Sazyed Mohamed 10 the
doctrine of laches and its procedural rule was applied successfully. In this case, the vendor
had entered into a sale and purchase agreement with a purchaser. The purchaser had paid
the full purchase price. The vendor died before the transfer was affected. Six months after
the vendor's death, the purchaser tried to get the transfer registered in pursuance of s 85(ii)
of the National Land Code and because no leave was given by the court to allow such
transfer by virtue of s 95 (iii) of the Probate Enactment. The purchaser applied for specific
performance but his application was rejected by the court. The purchaser appealed.
The Court of Appeal held that the purchaser was entitled to specific performance.
One of the defences of the defendant was that there was laches on the part of the purchaser
which caused hardship to the beneficiaries of the estate of the deceased as he failed to
present the transfer for registration within a reasonable time and instead took about six
months after the death of the vendor to do so. However, there was, unfortunately, no prayer,
pleading or any argument in court relating to the hardship caused due to this delay. Ironically
there was no proof that the delay had caused hardship and would thereby cause injustice to
the defendant. This ensures that the defence of laches failed.

8
[1985] 2 MLJ 380
9
(1995) 3 MLJ 6
10
[1952] MLJ 37