LOH WAI LIAN V.

SEA HOUSING CORPORATION SDN BHD

 Parties had entered into a sale and purchase agreement in respect of a piece of land and subject to certain terms and conditions. Among others are, respondent agreed to build for the appellant a shophouse on the said land and if the said building is not completed and ready for delivery within 18 months of the date of the agreement, the vendor has to pay the purchaser agreed liquidated damages calculated from day to day at the rate of 8% per annum on the purchase price from the date of the agreement to the date of actual completion and delivery of the building. The agreement was breached by the respondant and the appellant filed a civil suit on 9/9/1982. Issue : Whether the appellants claim was statutebarred by virtue of Section 6(1) of Limitation Ordinance 1953. Law : Section 6(1) of Limitation Ordinance 1953. : Turner v Midland Railway Company : Barton v North Stafford shire Railway Company

FACTS & ISSUE

CHRONOLOGY
18/9/1975 (Agreed date of obtaining possession and date of breach) 7/11/1977 (Date of delivery) 26 April 1980 (Defendant refusd to pay liquidated damages to appellant) 9/9/1982 (Writ filed)

JUDGMENT
The appellant should have filed the action within six years from the date on which the cause of action accrued that is on 18/9/1975 and the learned judge was right in allowing the appeal and dismissing the claim. The claim was statute-barred.

BBMB V. TETUAN WAN MARICAN HAMZAH & SHAIK & LAIN-LAIN

FACTS & ISSUE

Pada 7 Ogos 1984, plaintif telah mengarahkan defenden pertama utk menyediakan dan mendaftarkan dokumen2 gadaian berkenaan overdraf berjumlah RM120.000. Walaubaimanapun, defenden telah cuai di dalam melaksanakan arahan tersebut dan menyebabkan plaintif mengalami kerugian berjumlah RM 325.916.62 termasuk faedah. Plaintif berhujah, defendan gagal menyempurnakan dokumen dan memfailkan permohonan di bawah A 18 KaedahKaedah Mahkamah Tinggi 1980. Defenden pula memfailakan permohonan untuk membatalkan writ dan tuntutan plaintif. Law : Seksyen 6 Akta Had Masa 1953 Pirelli General Cable Works Ltd v Oscar Faber & Partners (A cause of action in tort accrued at the date when physical damage occurred to the building. Isu : Samada kausa tindakan yang di mulakan pada

CHRONOLOGY
30/8/1984 (kecuaian defenden berlaku)

18/4/1986 (kecuaian diketahui plaintif)

4/8/1992 (Notis memulakan tindakan)

JUDGMENT
Membenarkan permohanan defendan dan membatalkan tuntutan plaintiff. Di dalam kes kecuaian, kausa tindakan bermula apabila seseorg itu mengalami kerugian di atas kecuaian tersebut. Pengiraan had masa dikira dari tarikh kerugian tersebut. Di dalam kes ini, kausa tindakan plaintif ialah kecuaian defenden yang berlaku pada 30/8/1982 dan kecuaian itu dieketahui plainitif selewat2nya pada 18/4/1986. Oleh itu, kausa tindakan bermula selewat2nya pada 18/4/1986 dan notis untuk memulakan tindakan yang bertarikh 4 /8/1992 telah melebihi 6 tahun sebagaimana yang ditetapkan

FORSTER V. OUTRED & CO.[1982]

FACTS
Mrs. Forster charged her home to secure her son's borrowings as a result of her solicitor's negligence she argued that the proceedings were issued within the 6 year time limit because she suffered her loss in 1975 when she repaid the loan.

PRINCIPLE
Accrual of a cause of action: actual damage in tort and contract Meaning of actual damages The existence of the contingent liability (the mortgage) depressed the value of an existing asset (the mortgaged property) causing instant loss

LEGAL REASONING
As soon as she executed the mortgage in 1973 as security for the loan, the value of her property was reduced because it was no longer a property free from encumbrances. Accordingly, her loss was suffered in 1973, and so by the time she issued proceedings in 1980, the 6 year limitation period had expired.

LIM KEAN V. CHOO KOON

Limitation Period - Cause of Action Claim for Recovery of Excess Rent

FACTS & ISSUE

Increased Rental Paid 15 NOV 1957 Monthly rental increased $130 -> $143 31 JAN 1966 Increased rental paid until this period 15 FEB 1966 Rent Assessment Board fix max recoverable rent at $50 18 MAY 1966 PF filed his claim for recovery of excess rent

PF claimed Sec 3(4) of Control of Rent Ordinance 1956 stated a tenant who had paid his landlord a sum of excess rent may recover such sum from the landlord DF admitted that PF has overpaid HOWEVER claim was barred by the Sec 6(1)(d) of Limitation Ordinance 1953 where action shall not be brought after the expiration of 6 years from the date Cause of Action (CoA)accrued

ISSUE : WHEN DID THE COA START? DF claimed it started when the excess payment

was made ie: 15 Nov 1957 15 Nov 1963 PF claimed it started on the date order made by the Board ie: 15 Feb 1966 15 Feb 1972 Court look at the meaning of CoA from other authorities : Halsburys Law of England : CoA accrues when there is in existence a person who can sue & another who can be sued, & when all facts have happened which are material to be proved to entitled the PF to succeed Cooke v. Gill (1873) : Every fact which is material to be proved to entitle the PF to succeed

LEGAL REASONING
The court held that period of limitation does not begin to run until there is a complete CoA and a cause of action is not complete when all the facts have not happened which are material to be proved to entitle PF to succeed In this case, PFs CoA is not complete until an order is obtained from the Rent Assessment Board fixing the amount of the rent legally recoverable under the Control of Rent Ordinance Thus, period of limitation commenced to run only from 15 Feb 1966

JUMATSAH BIN DAUD & ANOR. v. VOON KIN KUET & ANOR. (1981)
Limitation Period Filing Of Writ Within Period

FACTS & ISSUE

6 NOV 1974 Road accident occured 2 NOV 1977 Writ of summons was filed & filing fee was paid 6 NOV 1977 3 years period of limitation expired 14 NOV 1977 Writ of summons bored this date to indicate writ was sealed by Court official

PF filed a writ & paid the fee within the period of limitation BUT the Court official had signed and sealed the writ after the date of expiry. Sec 3 of Limitation Ordinance provides that period of limitation is 3 years from the date of accident which is 6 Nov 1977.

ARGUMENTS
DF raised the defence that PFs action is barred by virtue of Limitation Ordinance. DF contended that the writ of summons was sealed by High Court and signed by Registrar on 14 Nov 1977. Thus it should be dismissed. PF, on the other hand, contended that they have done their part in filing the writ before the expiration date and what the Registry officials did with the writ after that is beyond their control. The suit must be taken to have been instituted within time,

LEGAL REASONING
The Court held that having regard to Order 2 Rule 8 of Rules of the Supreme Court 1957, the writ should be dated on the day the writ is filed and the filing fee is paid. The dispute arose because of the irregular practice of the court registry in Kuching. HOWEVER the practice has ceased and all the writs are filed and filing fees paid. Its unjust and prejudicial to PF who will suffer owing to no fault of their own or their advocates. Thus, the court direct the date 14 Nov 1977 to be amended to be read 2 Nov

CARTLEDE & OTHERS v E. JOPLING & SONS

FACTS & ISSUE

The plaintiff has been employed as steel dresser at defendants factory. Between 1939 and 1950, effective ventilation was not provided in the factory. Breach Sec 4 and 47 of Factories Act. The breach stopped by Oct 1950. By that time plaintiff had already contracted pneumoconiosis but did not knew of it. A few years later he discovered that he had pneumoconiosis and took action against defendants in 1950.

JUDGMENT
Plaintiffs action was statute barred. Cause of action for personal injury accrued as soon as serious harm had been suffered by the plaintiff although he was unaware of it. Time did not run from the date when plaintiff knew but from the date when the cause of action accrued.

PRINCIPLE
The cause of action accrues when the damage is done and not when the intending plaintiff first learns that it has been done LORD MORRIS OF BORTH-Y-GEST cause of action arises when that injury is done and that the cause of action is not postponed until such time as there is (ought to be) knowledge of the occurrence of the injury.

AMBANK (M) BHD V. ABDUL AZIZ BIN HASSAN & ORS.

The appellant (the bank) granted a loan to the borrower (MYT Builders) The loan is secured by third party assignment (Faiez Corporation Sdn Bhd) over a piece of land (Lot 465, Mukim Hulu Kinta, Perak) Lot 465 was one sub-divisional portions of another piece of land held under Lot No 57436, Mukim Hulu Kinta,Perak which was registered under the name of Majlis Bandaraya Ipoh (MBI). However MBI had joint venture agreement with the developer, (Kumpulan Promista Sdn Bhd) by giving the right to develop the land. By way of power of attorney, dated 20 July 1989, MBI authorized the developer to sell the land. The developer sell the land to the assignor(Faiez Corporation Sdn Bhd).

FACTS

 Respondents ( lawyers of Messrs Aziz Hassan & Co) on appellants instruction, executed the loan agreement by the borrower and also third party assignment dated 6 April 1999 However, in November 2000, the borrower default payment. In April 2004, appellant sought to enforce third party assignment over Lot 465 by way of private auction and for that purpose, the appellant sought the consent from MBI. MBI refused to agree.In April 2004, appellant take an action against MBI. Later, appellant withdraw the action against MBI because they believe MBI did not have a good title. The appellant later sued the respondent by way of instant suit on 17 March 2006 alleging that the respondent had breach the contract or were negligent by failing to advise the appellant that the assignor did not have a good title over Lot 465.

ISSUE
Whether the action take by the appellant against the respondent had time barred.

LAW
Section 6(1)(a) of the Limitation Act 1953. (1) save as hereinafter provided the following actions shall not be brought after expiration of six years from the date o n which the cause of action accrued, that is to say; (a) Actions founded on contract or tort.

 Section 29 of the Limitation Act 1953 where, in the case of any action for which a period of limitation is prescribed by this act, either(a)The person is based upon the fraud of the defendant or his agent or of any person though whom he claims or his agent; or (b) the right of action is concealed by the fraud of any such person as foresaid; (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 mistake, as the case may be, or could with reasonable diligence have discovered it.

HELD
Appeal dismissed.

LEGAL REASONING
Based on Section 6(1)(a) of the Limitation Act, 1)the alleged causes of action first accrued from the date of the first day of breach of the contract -which is on 6 April 1999 when the assignor executed the third party assignment over Lot 465 in favor of appellant. 2)action in tort first accrues when the appellant first suffered damage -which is also on 6 April 1999 when the respondent executed assignment which is

 Therefore, the action brought against the respondent had time barred. Since it exceed six year (1999-2006) The exception under Section 29 of Limitation Act is not applicable since this issue never pleaded nor raised. There is also no fraud or mistake involved. In conclusion, both of the action had time barred.