Don’t Sit on Your Rights

An Article on the Limitation Act 1953

Is there any cause of action?

A “cause of action” is the entire set of facts that gives rise to an enforceable claim1. For example, breach of contract, tort of negligence, tort of deceit/ fraud, defamation and etc.

After determining the cause of action, the next question to consider is whether the claim is time-barred by statute.

Limitation Act 1953, Civil Law Act 1956 and Public Authorities Protection Act 1948 are statutes that impose time within which a civil action must be brought. Once limitation sets in, the Plaintiff’s claim is time-barred and the Plaintiff is left without remedy.

A remedy is what you want at the end of each lawsuit. Even if you have a strong and valid case/ cause of action, the whole point of legal redress may become redundant once limitation sets in.

Limitation acts as an absolute defence for the defendant. In that regard, limitation shall be specifically pleaded by the Defendant, or else it does not operate as a bar.2 It is also good to note that none of the statutes that prescribe limitation periods gives the Court power to extend such limitation period, except in very limited circumstances.

For the purpose of this Article, we will only deal with some common types of civil cases that were governed under Limitation Act 1953 and which are not related to public duty or authority.


Actions of Contract- 6 years3

An action of breach of contract must be brought within 6 years from when the cause of action accrued.

 Illustration:

On 01.01.2015, A and B entered into an agreement where B will supply stationeries to A on every 1st of the month. However, on 01.01.2016, B failed to supply stationeries to B.

 In any event A decides to initiate an action against B, A has 6 years from 02.01.2016 in doing so (i.e. 02.01.2016 to 01.01.2022).

 Actions to Recover Rent- 6 years4

 Illustration:

A is the landlord and B is tenant. The breach of tenancy agreement has occurred on 01.01.2015 when B has failed to pay A the rental.

 To recover the rental, A will have 6 years from 02.01.2015 (i.e. 02.01.2015 to 01.01.2021) to sue B.


Enforcement of Judgment- 12 years from the date on which the judgment became enforceable (final judgment); and for Arrears of Interest in respect of judgement debt- 6 years from the date on which the interest became due5

Illustration:

On 02.01.2015, A has successfully obtained a final judgment against B, together with an interest imposed on the judgment debt at the rate of 5% per annum.

In any event A wishes to enforce the said judgment, the time period for doing so would be from 03.01.2015 to 02.01.2027 and to claim the interest that was imposed on the judgment sum, the time period would be from 03.01.2015 to 02.01.2021.


Actions to recover land- 12 years from the date on which the right of action accrued6

The Federal Court in Nasri v Mesah7 held that whether the action was for specific performance of an agreement for the sale of land or for a declaration of title to land, it was essentially an action to recover land and thus the period of limitation would be 12 years.

However, in Toh Puan D Heryati Abdul Rahim v Lau Ban Tin & Anor8, the Plaintiff filed a suit against the Defendants for an order to register the land in the Plaintiff’s name and alternatively, an order for the Defendants to pay damages. The Federal Court held that the Plaintiff’s claim was for breach of contract (i.e. breach of share sale agreement) and was not a claim for recovery of land. Thus, the limitation period shall be 6 years instead of 12 years.


Extension or Postponement of Limitation Period

As mentioned earlier, Limitation Act 1953 only provides for very limited circumstances where the limitation period may be extended or postponed. For example, extension of limitation period in case of disability12 at the time the cause of action arose, fresh accrual of action on acknowledgment or part payment 13 and fraud or mistake14.


Recent Development

Actions of tort

Prior to the amendments to Limitation Act 1953, it is apparent that there are two conflicting cases decided by the Court of Appeal on issues pertaining to the limitation period in a tortious claim.

In Am Bank (M) Bhd v Abdul Aziz Hassan & Ors15 , the Court of Appeal held that limitation period in a tortious claim began to run from the date on which the Plaintiff suffers damage, and not from the date on which Plaintiff discovers such damage16 (“the Abdul Aziz case”).

On the other hand, the Court of Appeal in Am Bank (M) Bhd v Kamariyah Bt Hamdan & Anor17 held that the cause of action only accrued at the time when the damage was discovered or ought to have been discovered by the exercise of reasonable diligence.

Be that as it may, the 6-year limitation period is now extended by the newly incorporated Section 6A of the Limitation Act 1953 for an action for damages for negligence not involving personal injuries.

In an action for damages for negligence not involving personal injuries, a Plaintiff may initiate an action within 3 years from the starting date, even if the 6-year limitation period (as stated in Section 6(1) (a) of the Limitation Act 1953) has lapsed. 18

The starting date is defined as the earliest date on which the Plaintiff both had the requisite knowledge and a right to bring such an action. 19

Illustration (provided by the Act):

(a) C bought a house from D in 2000. In 2010, C discovered a crack which damaged the walls badly. A building report made by a consultant revealed that the cracks had occurred in 2002, two years after C moved into the house. C has three years from 2010 to file an action in court against D for damages.

(b) C bought a house from D in 2000. In 2006, C discovered a crack which damaged the walls badly. A building report made by a consultant revealed that the cracks had occurred in 2002, two years after C moved into the house. C has three years from 2006 to file an action in court against D for damages.

(c) C bought a house from D in 2000. In 2005, C discovered a crack which damaged the walls badly. A building report made by a consultant revealed that the cracks had occurred in 2002, two years after C moved into the house. C has three years from 2005 to file an action in court against D for damages.

 Note however, no action shall be brought after the expiration of 15 years from the date on which the cause of action accrued. 20 

Illustration (provided by the Act):

C bought a house from D in 2000. In 2017, C discovered a crack which damaged the walls badly. A building report made by a consultant revealed that the cracks had occurred in 2001, one year after C moved into the house. C cannot commence an action because he has already exceeded the fifteen-year limitation period.

NEVER SIT ON YOUR RIGHTS FOR TOO LONG!

In conclusion, suing someone within the prescribed time period is absolutely important. The cause of action and who you are suing will determine when is the last day you would be able to initiate an action or to sue.


References:

  1. Lord Esher M.R. in Read v. Brown [1888] 22 QBD 128 131
  2. Section 4 of the Limitation Act 1953 and Order 18 Rule 8 Rules of Court 2012
  3. Section 6 of the Limitation Act 1953
  4. Section 20 of the Limitation Act 1953
  5. Section 6(3) of the Limitation Act 1953
  6. Section 9(1) of the Limitation Act 1953
  7. [1971] 1 MLJ 32
  8. [2019] 10 CLJ 421
  9. Section 21(1) of the Limitation Act 1953
  10. Illustration adopted from the case of Tan Kong Min v Malaysian Nasional Insurance Sdn. Bhd. [2005] 3 CLJ 825, Federal Court
  11. [2020] 1CLJ 236
  12. Sections 24(1) and 24A of the Limitation Act 1953
  13. Sections 26 and 27 of the Limitation Act 1953
  14. Section 29 of the Limitation Act 1953
  15. Ambank (M) Bhd. v Abdul Aziz Hassan & Ors [2010] 7 CLJ 663
  16. Section 6(1)(a) of the Limitation Act 1953
  17. [2013] 5 MLJ 48
  18. Section 6A(2) of the Limitation Act 1953
  19. Section 6A(4)(a) of the Limitation Act 1953
  20. Section 6A(3) of the Limitation Act 1953

Leave a Comment

Your email address will not be published.