TOPICS

INTRODUCTION TO CIVIL PROCEDURE

Sources of Civil Procedure: Primary and Secondary Sources
Inherent Powers
Effects of Non-Compliance: Strict and Flexible Approaches
CAUSE OF ACTION
LIMITATION PERIOD
CIVIL COURTS (JURISDICTION)
MODE OF ORIGINATING PROCESS
PARTIES
WRIT
APPEARANCE AND JUDGMENT IN DEFAULT
SUMMARY JUDGMENT
PLEADING
STRIKING OUT PLEADINGS
AMENDMENT TO PLEADINGS
THIRD PARTY PROCEEDING
OFFER TO SETTLE

TEST (20%): 29 November 2024

- Inherent Power (paling penting) read along with Limitation Period

- Will include other topic like cause of action
- Section 9 Limitation Period (rent on land)
- Rent on contract limitation period
- Tengok Tuto (most probably masuk test)

PRESENTATION (10%): 25 November 2024 – 5 January 2025

 TOPIC 1 : INTRO TO CIVIL PROCEDURE & PRACTICE I

1.0. Introduction to Civil Procedure

- A mechanism/formal steps requires to be taken to enforce a substantive right in a
civil court.
- A procedural law that puts the law into motion and puts life into the substantive law,
gives it remedy and effectiveness.
- Enable the potential parties/parties in dispute to fully prepare for the court proceeding,
while leaving open the option for settlement
a. Civil law > Procedural law: To give effect to the substantive law, through Rules
of Court 2012
b. How to sue?
c. More importantly, to reach an amicable settlement
- In S.A Andavan v Registrar of Titles, Negeri Sembilan & Ors (1977) 2 MLJ 220: It
was held that litigation is governed by the rules of procedure. No one side may take due
advantage over another, by circumventing any rule and it is the duty of the court to
ensure that the parties engage themselves in a fair contest.
- With the focus of procedural justice > fairness/equity/courtesy

1.1. Civil Litigation Process

a. Preliminary Determination:
➔ Cause of Action > Limitation Period > Jurisdiction > Parties & Proceedings
b. Commencement of a case in court > Service of the originating process by the Plaintiff
> Entering of appearance by the Defendant
c. Pleadings > Service of Pleadings > Default of Pleading
d. Interlocutory Application/Application in Chambers:
➔ Striking out pleadings
➔ Summary Judgement
e. Pre-Trial Stage:
➔ Gathering of evidence
➔ Pre-trial case management
f. Trials:
➔ Judgment
➔ Enforcement of Judgment
g. Appeal

1.2. Sources of Civil Procedure

1.2.1. Statutes
➔ Courts of Judicature Act 1964
➔ The Subordinate Courts Act 1948
➔ Limitation Act 1953
➔ Civil Law Act 1956
➔ Public Authority Protection Act 1948

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 ➔ Specific Relief Act 1950
1.2.2. Rules
- Rules of Court 2012 (repealed the Rules of High Court 1980) - Primary Sources
- Rules of Court 2012 (previously known as Rules of High Court 1980)
- It repealed the RHC 1980 and Subordinates Court Rule 1980. It came into force on 1
August 2012. It combines the RHC 1980 and SCR 1980 into one standard civil
procedure laws for the High Court and Subordinate Courts.
- Many of the new changes made following the Singapore Civil Procedure Rules.
- ROC2012 has maintained substantial part of the old rules, apart from making court
procedures uniformed, simplified and standardised.
- We must bear in mind that ROC2012 is not a statute but just a combined code for
procedural matters in court. Therefore, non-compliance of these rules is treated as
an irregularity and not a nullity.
- This ROC 2012 was made by the Rules Committee in exercise of the powers
conferred by Section 16 of the Courts of Judicature Act 1964.
- For the Court of Appeal and the Federal Court, the relevant sources of procedural rules
are the Rules of the Court of Appeal 1994 and the Rules of the Federal Court 1995
respectively.
- Rules of the Court of Appeal 1994
- Rules of the Federal Court 1995

1.2.3. Primary Sources

- Federal Constitution – jurisdiction of the court
- Statutes:
a. Courts of Judicature Act 1964
b. Subordinates Courts Act 1948
c. Limitation Act 1953
d. Civil Law Act 1956
- Rules of Court 2012

1.2.4. Secondary Sources

- Civil procedure laws are not exhaustive. Apart from the above mentioned Rules,
there are also other sources of law which complement the Rules.
a. Case Laws or Precedents – stare decisis
b. Forms
c. Practise Directions/Notes (issued by the Court) and;
d. Inherent Jurisdiction of the Court
- BNP Paribas (fka Banque Nationale De Paris) v Polynesia Timber
Services Pte Ltd [2002] 4 SLR 933: Singapore High Court held that the
Malaysian Practice Direction was not law but merely a direction for
administrative purposes and thus, incomplete compliance would
only amount to an irregularity not the setting aside of service of the
writ.

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 - Section 16 of the Courts of Judicature Act 1946 provides that rules of
courts may be made generally for regulating and prescribing the
procedure and the practice to be followed, inter alia, in the High Court, for
any purpose for which rules of court may be made under any ‘written law’.
- The Subordinate Courts Rules Committee may make rules for
regulating and prescribing the procedure and practice to be followed.

1.2.5. Compliance with the Rules

- It is important to comply and adhere to forms and rules in the courts as it embodies the
experience of courts over the years in the cause of speedy and efficient administration of
justice.
- This gives rise to another source of courts’ power to administer justice known as
INHERENT POWERS.

1.3. Inherent Powers

1.3.1. Definition
- Inherent means intrinsic, constituent or characteristic.
- Power means the ability or capacity to perform or act effectively: Need not be in the form
of express power.
- In matters/cases where the rules do not lay down a particular form of procedure to meet
the exigencies of a case, the court may exercise its inherent powers preserved in
order to prevent injustice or to prevent an abuse of the process of the court.
- Lord Morris, in Connely v DPP: “The power (which is inherent in a court’s jurisdiction) to
prevent abuses of its process and to control its own procedure must in a criminal court
include a power to safeguard an accused person from oppression or prejudice”.
- Loan Agreement and related documents in respect of the loan/facility taken by the
purchaser from the bank/financier to enable the purchaser to complete the purchase of
the real property.

1.3.2. Source of Power

- The powers are embedded in Order 92 rule 4 RC.
- See also, Order 1A & Order 2 rule 3.
- The provisions above allow the court to exercise its inherent power to avoid
miscarriage of justice on the ground of technicalities.
- Prior to these rules (in the old RHC 1980 and before 2002 amendment), the court
emphasised full compliance with the rules.

1.3.3. Order 92 Rule 4

- “For the removal of doubt it is hereby declared that nothing in these Rules shall be
deemed to limit or affect the inherent powers of the Court to make any orders as may be
necessary to prevent injustice or to prevent an abuse of the process of the Court.”

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 - It is clear that the court has a vested inherent power to do justice between parties to
enable it to act effectively to enforce its rules of practice and to suppress any abuses of
its process.
- Examples where inherent powers have been invoked:
a. Chip Chong Sawmill Co v Chai Khiun Fui [1978] 2 MLJ 24
b. Che Wan Development Sdn bhd v Co-operative Central Bank Bhd [1989] 3
MLJ 40
c. Suppuletchumi v Palmco Bina Sdn Bhd [1994] 2 MLJ 368

1.3.4. A Residual Power

- R Rama Chandran v The Industrial Court of Malaysia [1997] 1MLJ 145 at 238-239:
Federal Court was of the view that Order 92 r 4 “is a unique rule of court for while it
neither defines nor gives jurisdiction, yet it serves as a reminder and confirmation-lest
we forget-of the common law powers of the court, which are residuary or reserve powers
and a separate and distinct source of jurisdiction from the statutory powers of the court”.

1.3.5. When Arises & Purpose

- Coomaraswamy J in Heng Joo See v Ho Pol Ling: This case states that inherent
powers is: “the reserve or fund of powers, a residual source of powers, which the court
may draw upon as necessary whenever it is just or equitable to do so, and in
particular to ensure the observance of the due process of law, to prevent improper
vexation or oppression, to do justice between the parties and to secure fair trial between
them”.

1.3.6. Purpose
- The Motor Emporium v V Arumugam [1933] MLJ 276 at 278: ‘Every court must have
inherent jurisdiction to do justice between the parties and apply such principles as are
necessary or desirable for attaining such object and for giving decisions which are in
conformity with the requirements of the social conditions community where the
law is administered’.
- Cocker v Tempess (1841)151 ER 864:
a. The power is certainly a matter of most careful discretion.
b. To avoid the process from being abused and cause injustice.
- Essentially, inherent powers are necessary for the administration of justice.
- It is essential to the existence and proper functioning of the courts.

1.3.7. Nature
- Tan Guek Tian v Tan Kim Kiat @ Chua Kim Kiat (Part 2) [2007] 6 MLJ 260 at 274:
a. Inherent power of the court is exercisable as part and parcel of the process of the
administration of justice.
b. It is procedural in nature and it is applicable to both civil and criminal.
c. The key feature of this power is that it can be exercised in a summary process,
which basically means ANYTIME.

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 d. The inherent jurisdiction of the court has been invoked in a wide variety of
circumstances and in apparently inexhaustible ways and manners.

1.3.8. Limitation
- The Motor Emporium v V Arumugam [1933] MLJ 276 at 278: The court may exercise
its inherent jurisdiction as long as it does not contravene any statutory provisions.

1.3.9. Scope of Power

- Inherent power of the court is exercisable in the following:-
1. To prevent abuse of the court’s process or to prevent an injustice.
➔ Au Yong Dai Kuen @ Au Yong Wai Kuen v Majlis Bandaraya
Shah Alam [2004] MLJU 147: Court grant extension of time in the
interest of justice, even though the applicants had used the wrong
mode in commencing the application for extension of time, by way
of notice of originating motion instead of by way of summons in
chambers.
➔ Ang Siok Hong v Tan Geok Kui [1988] 7 MLJ 251: The court
exercised its inherent jurisdiction to reinstate an appeal which had
been struck out due to non-appearance of counsel.
➔ Toh Hong Cheng v Bumiputra-Commerce Bank Bhd [2008] 7
MLJ 417: The trial judge after hearing the submissions (without
the benefit of a trial), made a finding, holding the defendant liable
and ordering damages to be assessed by the SAR. The High
Court exercising its power under RHC O 92 R4 to prevent
injustice, set aside the order of the trial judge as well as the SAR.
2. To strike out applications, indorsement or pleading where it is plain and
obvious that it is frivolous, vexatious and an abuse of the process of the
court.
➔ EON Bank Bhd v Gandarama Sdn Bhd [2007] 4 MLJ 247:
Defendant applied for striking out under the inherent jurisdiction of
the court. However, on the facts of the case, the court held that
O92 r4 should be invoked instead to prevent injustice to the
plaintiff, as granting the defendant’s application would obviously
cause injustice to the plaintiff who will be prevented from enforcing
the registered charge to recover loans granted to the defendant.
➔ Sivakumar a/l Varatharaju Naidu v Ganesan a/l Retanam
[2011] 6 MLJ 70: The High Court Judge struck out the plaintiff’s
writ of summons and the statement of claim as the SOC contained
particulars that were intended to embarrass the defendant and it
was certainly an abuse of the court’s process.
➔ Chip Chong Sawmill Co Sdn Bhd [1978] 2 MLJ 24 FC: The
court has the power to stay or dismiss or otherwise nullify
proceedings before it which are obviously frivolous, vexatious and
an abuse of its process.

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 3. Where there is lacuna in the law or procedural rules which causes
procedural injustice.
➔ Kumagai Gumi Co. Ltd v Zenecon-Kumagai Sdn Bhd [1994] 2
MLJ 789: The absence of a specific provision enabling the
presentation of a cross-petition does not prohibit the court from
entertaining such an application. A code of civil procedure cannot
foresee and provide for every eventuality. Where it does not O92
r4 may be invoked to prevent injustice.
➔ Hatara (M) Sdn Bhd v Petroliam Nasional Bhd (Petronas)
[2010] 2 MLJ 17: The court may exercise its power under RHC
092 R4 where the rules do not lay down a particular form of
procedure to meet the exigencies of a case.
4. To punish for contempt.
➔ Lee Heng Moy v Christopher Wong Wai Yee [2011] 5 MLJ 333:
The inherent contempt jurisdiction of the court can never be
doubted. The power vested in the court to punish contempt is not
derived from statute or common law. The power is ingrained in the
court by virtue of it being a court of law.

- Inherent power of the court is exercisable in the following:-

1. Where sufficient provisions exist/specific rule of court effectively governs
the situation.
➔ Mikien Sdn Bhd v Woolley Development Sdn Bhd [2008] 1
MLJ 823: It was held that there is no jurisdiction for the High Court
to grant a stay under O92 because sec 243 of the Companies Act
1963 prevents the court from granting a stay before the winding up
order.
➔ The Royal Selangor Golf Club v Pentadbir Tanah Wilayah
Persekutuan Kuala Lumpur [2012] 5 MLJ 364: The COA held
that since the Land Acquisition Act 1960 provides a specific
provision in respect of appeals from the Land Reference Court,
there is no question of resorting to the inherent powers of the
court.
2. In cases where an action is filed indiscriminately.
➔ Dato Ting Check Sii v Datuk Haji Mohamad Tufail bin Mahmud
[2007] 5 MLJ 339 at 341: “Though the discretion of the court is
very wide as a matter of policy, the court has to exercise its
discretion with utmost care and wisdom, failing which it will stand
as a precedent for any person unhappy with the management of
the company to file frivolous petition to frustrate the business of
the company and thereby cause loss and damage to the
company”. The inherent jurisdiction of the court should not be
exercised in this case as it is sacrosanct in nature and it must not
be seen as a cure for all maladies which the law does not address,

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 or able to provide the relief, Charles Forte Investment Ltd v
Amanda [1963] 1 ChD 240 referred. When a person comes
before the court seeking remedies in the nature of equitable relief,
he must also be expected not to file applications which may be
seen to be frivolous, vexatious and an abuse of process of court.
The petitioner in filing the application has shown conduct reflecting
an unreasonable disposition.
3. In cases where it is intended to alter substantive rights.
➔ Tan Beng Sooi v Penolong Kanan Pendaftar [1995] 2 MLJ
421: The Plaintiff, who was an auctioneer applied for a declaratory
order that a circular dated 6 August 1992 issued by the SAR was
ultra vires rule 7(b) of the Auction Enactment whereby the SAR
said he had the discretion to determine the commission payable to
the auctioneer where:
(a) the reserve price is kept secret;
(b) bidding has started but the reserve price has not yet been
reached; and
(c) there is no sale as the reserve price has not been reached.
The defendant argued that where the auction was cancelled or
adjourned by the court, the registrar had a discretion to prescribe
the fees pursuant to r 7(a) of the Rules or alternatively under the
inherent jurisdiction of the court. Held: the act by the SAR of
keeping the secrecy of the reserve price of property for public
auction as a prerequisite or precondition for the application of r
7(b) is not supportable in law nor is it in consonance with the
established rules of construction applicable in relation to a
subordinate or delegated legislation. Although r 5 of the Rules
gives the registrar a discretion to approve any special rate of
remuneration other than that provided in the scale, it does not in
effect give legislative powers to the registrar. In issuing the said
circular, the registrar had exceeded her powers under the
Enactment or the Rules. The circular was thus ultra vires the
Enactment and the Rules, null and void and of no effect
whatsoever. The inherent jurisdiction of the court under O 92 r 4
was a procedural rule and was not intended to alter substantive
rights. It must be applied to do justice to the parties and to secure
fairness in a trial between them but not for any other purpose such
as taking away the substantive rights of the plaintiff in this case.
➔ Yong Siew Choon v Kerajaan Malaysia [2003] 2 MLJ 150: The
Government (‘the plaintiff’) commenced an action against the
estate of one Abdul Hamid bin Tun Azmi (‘the deceased’) for the
recovery of outstanding income tax. In its writ, the plaintiff cited
one “Yong Siew Choon the Representative of the Estate of Abdul
Hamid bin Tun Azmi” as the defendant. Yong Siew Choon is the

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 widow of the deceased but has never been the executrix or
administratrix of the deceased’s estate as no letters of
representation were ever extracted in respect thereof. The issue
before the justices of appeal herein was whether the plaintiff’s
action against the deceased’s estate could be maintained,
considering the requirements of O. 15 r. 6A Rules of the High
Court 1980 (‘RHC’) and the fact that no letters of representation
were extracted. Held: Per Gopal Sri Ram JCA [1] Although the
plaintiff’s action was commenced in accordance with the
permissive provisions of O. 15 r. 6A(1) RHC, it was thereafter
prosecuted in defiance of the mandatory provisions of O. 15 r.
6A(4) RHC. The noncompliance of O. 15 r. 6A(4) RHC was not a
mere irregularity; it ran counter to a point of substantive law,
namely, that an action cannot be maintained against the estate of
a deceased person in the absence of the extraction of letters of
representation. Consequently, the plaintiff’s action was an illegality
and thus a nullity.

1.4. Effects of Non-Compliance

- Sometimes, the litigants failed to comply with the rules.
- Some of this non-compliance was done unintentionally and for genuine reasons like
filing out of time or failure to notify the other party of service of documents etc.
- The prevailing issues:
a. How will the court treat such non-compliance?;
b. Would it strike off the case and order for retrial?; or
c. Would it ignore and allow the case to proceed as if nothing has happened?

1.5. Effects of Non-Compliance: Strict Approach

- Observance of the rules of procedure is fundamental to the course of litigation to achieve
justice to the parties.
- Litigants may find themselves in trouble if they did not comply with the rules strictly.
- Cases were struck off because of non-compliance to the rules which are usually minor in
nature. i.e. failure to file certain documents with the court within a stipulated period.
- However, strict adherence may deprive a party his rights.
- Not only did it cause inconvenience, it also deterred the parties from accessing the legal
system in a fair manner.

1.6. Effects of Non-Compliance: Flexible Approach

- As time passes by, the public/practitioners detest the court’s strict approach in treating
non-compliance.
- Cropper v. Smith [1884] 26 ChD 700 (Robert Sheldon SC): “I know of no kind of error
or mistake which, if not fraudulent or intended to overreach, the court ought not to
correct, if it can be done without injustice to the other party”.

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 - It means that the court ought to consider the overriding interest of justice and not only on
the technical non-compliance of the rules.
- As such, new provisions were inserted in the old RHC 1980 i.e. Order 1A and Order 2
Rule 1 vide amendment [PU(A)197/2002].
- The rules have given much flexibility for the court to exercise its inherent jurisdiction to
‘ignore’ technicalities as a ground to strike off a case.
- Similarly, the ROC 2012 emphasis on the flexibility of the court to exercise the inherent
power to avoid miscarriage of justice due to technicalities or to prevent abuse of power
by certain parties.

1.7. Effects of Non-Compliance: Statutory

- Order 1A RC: Court or Judge Shall Have Regard to Justice: In administering any of the
Rules therein, the court or judge shall have regard to the justice of the particular case or
based on merits rather than on the technical non-compliance of the rules herein or mere
irregularities.
- This Order was inserted by the RHC amendment in 2002 and later incorporated as part
of the RC.
- The purpose of this Order, among others:
a. to provide a certainty over procedural issues;
b. to minimise procedural quarrels, to reduce delays; and
c. to expedite the process of appeal for the benefit of the parties thereto.

1.8. Effects of Non-Compliance: O1A RC

- Scope of application of Order 1A RC
a. This Order must not supersede a mandatory requirement of ROC and cannot be
invoked when a party intentionally disregards compliance with ROC e.g.
intentionally disregarded rules which deals with the mandatory service of a writ or
notice of appeal etc.
b. When there is an issue of whether to override a procedural non-compliance, the
court has to also balance justice as between the parties with particular regard
being given to the questions of whether any miscarriage of justice would be
occasioned.

1.9. Effects of Non-Compliance: O2 R1

- Order 2 Rule 1 RC: Non-Compliance with Rules
➔ Where, in beginning or purporting to begin any proceedings or at any
stage in the course of or in connection with any proceedings, there has,
by reason of any thing done or left undone, been non-compliance with the
requirement of these Rules, the non-compliance shall be treated as an
irregularity and shall not nullify the proceedings, any step taken in the
proceedings, or any document, judgment or order therein.
➔ The effect of this Order is that all non-compliance to the rules will be
treated as an irregularity and thus will not nullify the proceedings, any

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 step taken in the proceedings or any document, judgement or order
therein.

- Non-Compliance: (1) With the requirement of Rules; (2) Shall be treated as irregularity
and shall not nullify the proceedings, any step taken in the proceedings; (3) Or any
documents, judgement or order therein.
- O2 R1 is derived from the decision in Re Pritchard, Pritchard v Deacon [1963] Ch 502:
The court is entitled to consider each case according to the circumstances and make
decisions that seem just.
- Metroinvest Anstalt v Commercial Union [1985] 1 WLR 153: Ord 2, r 1(2) is likely to
depend on whether it appears that the opposite party has suffered prejudice as a direct
consequence of the particular irregularity, that is to say the particular failure to comply
with the rules.

- Factors to be taken into consideration

a. Although irregularity can be cured under O2 R1, the court still retains a
discretion when rectifying irregularities.
b. The court has a wide discretion to determine whether non-compliance to the
Rules can be rectified without the need to strike out or set aside.
c. These irregularities may be cured and may not be cured depending on whether
the omission or non-compliance is a fundamental defect.
d. The court is given a discretion to cure the irregularity by way of amendment or by
way of any other order the court thinks fit.

- Irregularities which may be cured:

1. Failure to comply with stipulated time under the ROC
● Tye Chwee Hoon v Cayman Commodities (M) Sdn Bhd [1989]
2 MLJ 317: Court held that failure to file conditional appearance
and defence within the stipulated time was a ‘mere technicality’
which was curable under O2 r1 RHC and O2 r5RHC (now ROC).
2. Omission to give notice of intention to proceed
● Bank Bumiputera Malaysia v Syarikat Gunong Tujuh Sdn Bhd
[1990] 1 MLJ 298: High Court held that the failure of the plaintiff to
give one month’s notice of his attention to proceed with the action
(pursuant to O3 r6 RHC) was an irregularity which could be cured
because the defendant had ample notice of the application (which
was served 44 days before the hearing).
3. Failure to comply with ROC forms
● Uni Wall Architectural Products & Services Sdn Bhd v Global
Upline (M) Sdn Bhd [2011] 3 MLJ 481: The error in stating in the
writ the time for entering appearance is curable under O2 ROC.

- Irregularities which may not be cured:

1. Irregularity of a fundamental nature

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 ● Defective affidavit
● Dynacast (S) Pte Ltd v Lim Meng Siang [1989] 3 MLJ 456: An
affidavit that does not comply with the requirements of Rules of
Supreme Court 1970 (Sing) O41 (now RC (Sing) O41) is a defect
of fundamental nature which cannot be cured.

2. Failure to comply with a mandatory rule for leave of court

● SDB Damansara Sdn Bhd v Datuk Bandar Kuala Lumpur (No.
1) [2011] 9 MLJ 666: In a case where leave was a mandatory
requirement, neither O1A nor O2 r1 could cure the defect arising
from non-compliance with O53 r3(1) RHC. Failure to comply with
such a rule could not be regarded as a mere technical
non-compliance as it went to the root of the issue, the jurisdiction
of the court.

3. Action against wrong party

● Dollar Valley (M) Sdn Bhd v Rimba Raya Sdn Bhd [2004] 4
MLJ 6: Held: The defect in the notice of appeal in the instant case
by bringing the wrong party to the court was not something which
could be cured under both the provisions of O1A & O2 r1 RHC.

4. Defective service of proceedings

● The Golden Ocean Assurance Ltd v Martin (Golden Mariner)
[1990] 2 Lloyd’s Rep 215: One of the defendants, have not been
served with the actual writ, only the acknowledgement of services.
Held: The defective service of writ cannot be cured under Order 2
rule 1 because such omission of service was a serious one.
● Bun Fui Min v Seliang ak Tuah [2010] 9 MLJ 707: Although the
notice of appeal was filed within the prescribed 14 day time limit,
the notice of appeal was only served on the plaintiff ten days later.
The appellants urged the court to invoke O1A and O2 RHC (now
RC) to overlook the delay on the grounds that it did not cause any
substantial miscarriage of justice. The High Court held that the
requirement to serve the notice of appeal on the respondent within
the prescribed time is mandatory. As such the non-compliance
could not be regularised.

5. Non-compliance goes to the root of the legal process

● Bernstein v Jackson [1982] 1 WLR 1082: Held: failure to renew
a writ within the time stipulated in the rules was a ‘such a
fundamental defect in the proceedings’ that it was not proper case
to exercise discretion under Order 2 r1.
● Bank of Commerce v Tg Petri Enterprise [1992] 2 MLJ 322:
Facts: The applicant bank applied to the court by originating

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 summon to appoint a receiver/manager of the respondent’s
company because the defendant failed to repay the RM2m loan.
The respondent objected to the application on the ground that the
application to appoint a receiver/manager did not follow Order 30
of RHC 1980 – which is a prerequisite cause of action. Held: the
court rejected the applicant’s application as non-compliance to
Order 30 went to the ‘heart and core of the matter’…. Right to
apply for the appointment of a receiver to preserve such property
is not a cause of action and cannot stand on its own.
● Abd Hamid bin Jaafar (trading as Sole Proprietor as Bintang
Enterprise) v Shamsiah dan Keluarga Sdn Bhd [2004] 5 MLJ 349
● Duli Yang Amat Mulia Tunku Ibrahim Ismail Ibni Sultan Iskandar Al
Haj Tunku Mahkota Johor v Datuk Captain Hamzah b Mohd Noor
[2009] 4 MLJ 149
● Kertih Port Sdn Bhd v Owner of the Vessel ‘Sheema’ [2009] 1 MLJ
589
● Amirthanayaki Kumara Amy v Lembaga Profesion
Undang-undang [2010] 1 MLJ 656

1.10. Effects of Non-Compliance: O2 R3

- Order 2 rule 3 RC: Preliminary objection for non-compliance: “A court or a judge shall not
allow any preliminary objection by any party to any cause or matter or proceedings only
on the ground of non-compliance of any of the rules unless the court or judge is of the
opinion that such non-compliance has occasioned a substantial miscarriage of justice or
occasioned prejudice that cannot be cured either by amendment or an appropriate order
for costs or both.”
- Who will oppose it? The opponent.
- Technical wrong = the court will not cast away the case as of ROC2012.
- Type of technical objections:
➔ unendorsed notice of appeal;
➔ admissibility of affidavit;
➔ wrong name in writ.
- Under this order, the courts possess some discretion to ensure that a civil litigation is not
prevented or hindered by mere non-compliance with procedural rules.
- Norwest Holdings Sdn Bhd v Muhibbah Engineering [2004] 4 MLJ 481: Suriyadi J:
RHC O1A and O2 r3 ‘have merely placed all technical objections at its rightful place, i.e.
irrelevant if it defeats the purpose of justice…. The administration of justice of the
particular case now takes top spot, and slavish non-compliance of procedures and rules,
takes a back seat’.
- Majlis Perbandaran Melaka Bandaraya Bersejarah v Yau Jiok Hua [2006] 5 MLJ
389: Held: Under O2 r3, a court or judge will not allow any preliminary objection by any
party to any cause matter or proceedings only on the ground of non-compliance with any
of these Rules unless the court or judge is of the opinion that such non-compliance has
occasioned a substantial miscarriage of justice.

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 TOPIC 2 : CAUSE OF ACTION

➔ (2) Cause of Action

● Overview
○ Cause of Action
➔ Meaning
➔ Cooke v Gill
○ Locus Standi
➔ Meaning
- Parties
➔ Atip bin Ali v Josephin
○ Limitation Period
➔ Sources
➔ Computation
➔ Postponement
➔ Special Period
- Jurisdiction

● Issues relation to Cause of Action

○ Existence of the COA
○ Whether the COA is complete or premature
○ When does COA accrues
○ Whether the COA survives after death

● Introduction for COA

○ Definition: Cause of Action is a set of circumstances which leads up to an action in
court. It is a basis for which the lawsuit is initiated.
○ Cooke v Gill (1878) LR 8 CP 107: Cause of action is defined as “every fact which is
material to be proved to entitle the plaintiff to succeed”.
○ Read v Brown (1888) 22 QBD 128: Cause of action includes ‘every fact’ which it would
be necessary to support his right to the judgment of the court.
○ Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12 (Salleh Abas LP): Cause
of action is a statement of facts alleging that a plaintiffs’ 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.
○ Lim Kean v Choo Koon [1970] 1 MLJ 158: Cause of action is a factual situation, the
existence of which entitles one person to obtain from the court a remedy against
another person.
○ Nasri v Mesah [1971] 1 MLJ 32 (Gill J): A cause of action is the entire set of facts that
gives rise to an enforceable claim.
○ Letang v Cooper [1964] EWCA Civ 5: A factual situation, the existence of which
entitles one person to obtain from the court a remedy against another person.

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 ○ Hock Hua Bank Bhd v Leong Yew Chin [1987] 1 MLJ 230: A cause of action is
simply a factual situation the existence of which entitles the plaintiff to obtain from the
court a remedy against the defendant.
○ The cause of action is a condition precedent to the commencement of an action and
every claim must disclose a cause of action before the court will be able to proceed to
adjudicate the dispute.
○ When a client comes to see you, the first thing to be determined is whether the client
has a cause of action.
○ It is necessary to determine whether the facts of the case give rise to a cause of action
by establishing the elements of legal liability.
○ If there is no cause of action, the court could not provide any remedy.
○ In other words, your client must have sufficient facts to be proved to succeed.
● COA: When accrues
○ Lim Kean v Choo Koon [1970] 1 MLJ 158: Cause of action occurs when there is a
person who can sue and another who can be sued and all facts have happened which
are material to be proved to entitle the plaintiff to succeed.
○ Taib bin Awang v Mohamad bin Abdullah [1983] 2 MLJ 413: The plaintiff brought an
action in the civil court against the defendant for maliciously prosecuting him in the Kadi
Court. When the plaintiff was prosecuted in the Kadi Court, he was found guilty and
sentenced to two weeks. The plaintiff appealed on the decision of the Kadi, but before
the appeal was disposed of, he brought the action in a civil court. Held: For the plaintiff
to succeed for malicious prosecutions, he must over and above prove the proceedings
complained of termination in his favour. Since the appeal had not been disposed of, his
action was held to be premature. The above cases illustrate the requirement to satisfy
all necessary elements in order to be deemed as having a valid cause of action to
commence the proceeding.
● COA: Contract
○ Gibbs v Guild (1881) 8 QBD 296: A cause of action founded on a contract accrues as
soon as the contractual duty is breached.
○ Lim Kim Swee v Tan Meng San (1960) 26 MLJ 262: The plaintiff issued a writ claiming
specific performance against the defendant in respect of land which the defendant had
agreed to sell to the plaintiff. Held: The plaintiff had no cause of action until his part of
the contract was performed.
○ Board of Trade v Cayzer, Irvine & Co. (1927) 28 Ll.L. Rep. 57: What makes possible
an action founded on a contract is its breach. In other words, a cause of action founded
on a contract accrues on its breach.
○ Ooi Han Sun & Anor v Bee Hua May [1991] 3 MLJ 219: The maxim ex turpi causa
non oritur actio(no cause of action arises out of a base cause) will apply in law of
contract to prevent a plaintiff founding a claim on an illegal act or agreement. The
maxim has a limited application in tort and the fact that the plaintiff is involved in some
wrongdoing does not itself provide the defendant with a good defence in tort. ex turpi
causa non oritur action: a legal doctrine which states that a plaintiff will be unable to
pursue legal remedy if it arises in connection with his own illegal act.

14
 ○ Issue: What if the defendant promised to repay a debt in 10 instalments but then he
defaulted after 2 instalments. Can the Plaintiff bring the action claiming the remaining 8
instalments?
➔ Sio Koon Lin v S.B Mehra [1981] 1 MLJ 225:
● Facts: The plaintiff commenced an action for recovery of arrears that were
in fact not yet due at the time of the claim. There was no provision that in
case of default of any one instalment, the remaining instalment became
immediately due and payable.
● Held: The plaintiff’s case was struck out because the debt has not fallen
due when he initiated the claim. Therefore, there was no cause of action
accrued.
➔ Simetech (M) Sdn Bhd v Yeoh Cheng Liam Construction [1992] 1 MLJ 11
➔ Mayland Lending Sdn Bhd v Rossmaizati bt Mohamed & Anor [2015]7MLJ 216

● COA: Tort
○ In an action for negligence, the COA accrues when some damage occurs because
negligence is only actionable on proof of damages.
○ In action for personal injury, COA accrues from the date of injury (accident).
○ In order to establish negligence as a cause of action, the plaintiff must show that the
defendant owed a duty of care to the plaintiff, the defendant breached that duty causing
harm to the plaintiff. Hence, the plaintiff suffers damages.
○ Pirelli General Cable Works Ltd v Oscar Faber and Partners: Where the defect is
latent, the date of accrual of COA caused by negligent design or construction of a
building was the date when the damage came into existence and not the date when the
damage was discovered or could with reasonable diligence have been discovered.
○ Mak Khuin Weng v Melawangi Sdn Bhd [2016] 5 MLJ 314: The company may have
legal capacity to sue, it has no cause of action in libel or slander since only living
persons can be injured by defamatory statements. A trading company has no
feelings which are capable of being injured.

● Locus Standi
○ Locus standi is the right or capacity of a party to bring an action, to appear and be
heard by a tribunal.
○ It is a condition precedent before a party can initiate an action.
○ A party may have a cause of action but if he has no locus standi to initiate the action,
the court will not entertain his claim and can dismiss his action.
○ Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12: A litigant is said to have
locus standi, i.e. a standing to sue in a court of law, if that court recognises his or her
ability to institute and maintain proceedings before it.

● Locus Standi: Special Interest Test

○ Atip Bin Ali v Josephine Doris Nunis [1987] 1 MLJ 82: An action to sue the Chief
Minister of Malacca was withdrawn by a Josephine Doris Nunis. Atip bin Ali then
proceeded to commence action in the High Court alleging that Josephine had defamed

15
 UMNO. Held: Atip does not have the locus standi since neither his right or interest was
affected by the alleged defamation. Only the Chief Minister has the locus standi to
sue for defamation. A person who has no locus standi cannot commence action in
court.
○ Government of Malaysia v Lim Kit Siang [1988] 1 CLJ 219:
➔ Facts: The respondent filed a declaration in pursuant to the letter of intent issued
by the Government to UEM in respect of a construction of NSE highway.
➔ Issue: Whether the respondent had a cause of action?
➔ Held:
● The respondent lacks the locus standi to pursue the action.
● He was not prejudiced with the letter of intent and therefore had no cause
of action.
● There was no infringement of private rights.
➔ Salleh Abas LP: Every legal system has a built-in mechanism to protect its
judicial process from abuse by busy-bodies, cranks and other mischief-makers by
insisting that a plaintiff should have a special interest in the proceedings which he
institutes. This special interest is a nexus between him and the party against
whom he brings his complaint to court and is known as locus standi.
➔ Registered under Companies Act
○ Contrasting Case : Lim Cho Hock v Government of the State of Perak & 2 ors
[1982] 2 MLJ 148: The Plaintiff who was a Member of Parliament, a member of the
Perak State Legislative Assembly and a ratepayer within the area of the Ipoh
municipality, challenged the legality of the appointment of the Menteri Besar Perak as
President of the Ipoh Municipal Council and was held to have locus standi to do so.

● Locus Standi: Real and Genuine Interest

○ Recent development in locus standi
○ Malaysian Trade Union Congress (MTUC) & Ors v Menteri Tenaga, Air dan
Komunikasi & Anor [2014] 3 MLJ 145, overruled Lim Kit Siang’s case.
➔ Facts: MTUC (Appellant) wanted to apply to inspect the water Concession
Agreement and Audit Report from the Government of Malaysia (Respondent) in
view of the increased water tariff. However it was refused by the Respondent on
the ground that they were classified documents.
➔ Issue: “Whether the test of locus standi propounded by the Supreme Court
in Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12 i.e. that an
applicant must establish infringement of a private right or the suffering of special
damage still applies to application for judicial review, and to what extent, in light
of the present Order 53 Rule 2(4) of the Rules of High Court 1980”.
➔ Held: Looking at the whole legal and factual context of the application, especially
the fact that this is a public interest litigation, we are of the view that MTUC had
shown that it had a real and genuine interest in the two documents. Hence,
MTUC was adversely affected by the Minister’s decision. Although MTUC has
the locus standi to bring this action as it was adversely affected by the Minister’s
decision not to disclose the two documents, it was not entitled to obtain the reliefs

16
 it sought (to inspect water concession agreement and audit report). MTUC had
failed to show that the Minister’s decision (to classify the document) was illegal,
irrational and flawed on the ground of procedural impropriety.

● Conclusion
○ The decision to commence legal proceedings should only be made after all the
necessary facts that need to be proven to establish legal liability are satisfied e.g.
breach of a valid contract, breach of duty of care, infringement of copyright, trespass to
land etc.
○ A valid cause of action also depends on other factors such as locus standi and whether
the claim is made within the prescribed time.
○ However, the existence of cause of action is meaningless if the limitation period has
expired.

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 TOPIC 3 : LIMITATION PERIOD

3.0. Introduction
3.0.1. Definition
- A valid cause of action will be meaningless if it is filed/commenced after limitation period
has expired
- Limitation period is the time limit prescribed by law within which a person must enforce
his/her claim in court.
- It is a limitation imposed by statute(s) upon any party who wishes to bring a claim in
court.
- If the plaintiff’s action is filed outside the limitation period, the defendant may raise a
defence that the plaintiff’s action is time barred, unless the time limit is subject to an
extension or exclusion

3.1. General Statute

- Law of limitation deals with the law restricting the time in which an action can be brought.
- Malaysia’s general statute of limitations is the Limitation Act 1953 which is the main law
governing limitation period in Malaysia.
- Sec 2: “Action” includes a suit or any other proceeding in a court of law.
- Sec 3: This Act shall not apply to any action or arbitration for which a period of limitation
is prescribed by any other written law.
- Sec 4: Nothing in this Act shall operate as a bar to an action unless this Act has been
expressly pleaded as a defence thereto in any case where under any written law
relating to civil procedure for the time being in force such a defence is required to be
so pleaded.

3.2. General Principles

- Kong Cheng Wah v Sg Way Leasing [1996] 1 MLJ 223 (Gopal Sri Ram) Gopal Sri
Ram:
i. “It is a cardinal principle of law that when a litigant seeks the intervention of the
court in a matter that affects his rights, he must do so timeously”. The maxim,
vigilantibus, non dormentibus, jura subveniunt though having its origin in the
court of chancery, is of universal application”
ii. The law assists those that are vigilant with their rights, and not those that sleep
thereupon.
3.3. Rationale
- Fong Tak Seng v Credit Corporation (M) Bhd [1991] 1 MLJ 409 (Hashim Yeop A.
Sani):
● The doctrine of limitation is based on two (2) considerations:-
i. There is a presumption that a right not exercised for a long time is
non-existent.

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 ii. The other consideration is that it is necessary that matters of right in
general should not be left too long in a state of uncertainty or doubt or
suspense.

3.4. Purpose
- The purpose of limitation period are:
a. To discourage the plaintiff from sleeping on his rights; and
b. To have a definite end to litigation.
- Parties should not be restless because the matter has not been settled within stipulated
time.
- There are 2 sources of limitation law:
a. Common Law doctrines; and
b. Statutory provisions.

3.5. Sources of Law

3.5.1. Statutes
a. Limitation Act 1953
b. Public Authorities Protection Act 1948
c. Civil Law Act 1956
d. (Sabah) Limitation Ordinance (Cap 72)
e. Railway Act 1991
f. Income Tax 1967

3.5.2. Common Law Doctrines

- Acquiescence (Tending to accept or allow)
● Refers to a situation where a person claiming equitable relief has waited for a
long time and so conducted himself that it would be inequitable to permit him to
complain of the defendant’s action, the court will refuse to grant such relief.
● The plaintiff estopped from enforcing his rights because he had been ‘sleeping’
on his rights to bring the action.
- Laches (Out of time)
● Unreasonable delay pursuing a right or claim ... in a way that prejudices the
[opposing] party.
● The plaintiff had not been reasonably diligent in seeking his relief.
● However, if there is an expressed statutory provision providing for a period of
limitation for the plaintiff’s claim, there is no room for equitable doctrine of laches.

3.6. Actions for Contract and Tort

- Sec 6(1): Save as hereinafter provided the following actions shall not be brought after
the expiration of six years from the date on which the cause of action accrued, that is
to say—(a) actions founded on a contract or on tort.
- Action based on contract or tort: 6 years from the date on which the COA accrued.
- Loh Wau Lian v SEA Housing Corp Sdn Bhd [1984] 2 MLJ 280: A house was
delivered late, namely, delivered on 7 November 1977 instead of 18 September 1975 as

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 promised. The plaintiff claimed the agreed liquidated damages of 8% per annum for late
delivery and filed his or her action on 9 September 1982. Held: The action was
considered time barred.
- Exception: Limitation to actions to recover land and rent under a contract is 12 years -
Sec 9(1)

3.7. Actions to Recover Land and Rent

- Sec 9(1) No action shall be brought by any person to recover any land after the
expiration of twelve years from the date on which the right of action accrued to him, or if
it first accrued to some person through whom he claims, to that person.
- ISSUE: ACTION TO RECOVER LAND RELATING TO A CONTRACT In the event of a
breach of sale and purchase agreement in respect of a purchase of a land. Which
provision should be applicable? Section 6(1) or section 9(1)?
- Ponnusamy & Anor v Nanthu Ram [1959] 1 MLJ 86
i. In August 1944, the respondent sold his land to Naina (whose will appellants are
the executors) and executed a transfer in statutory form. Naina entered into
possession but did not register the transfer. He died on February 11, 1949 and
thereupon the transfer became unregistrable. The appellants brought an action
on December 1, 1956 claiming declaration of title to the land and an order on the
registering authority to register appellants as proprietors.
ii. Held: the action was one to recover land within the meaning of section 9 of the
Limitation Ordinance the period of limitation for such an action is 12 years and
the present action was not barred.

- Nasri v Mesah [1971] 1 MLJ 32

i. Facts: The plaintiff bought land from the defendant on June 5, 1947 and later
issued a document of title in respect of the said land. No document of transfer
was executed as it would not have been possible to have it registered because of
the moratorium then in force, but the defendant undertook to execute a valid and
registrable transfer of the land in favour of the plaintiff when the moratorium was
lifted. The plaintiff occupied the land and paid the quit rent. Upon lifting of the
moratorium on September 30, 1949, the plaintiff requested the defendant to
execute the registration in favour of the plaintiff but to no avail. The plaintiff sued
for specific performance on March 3, 1967. However the defendant claimed the
limitation has set in.
ii. Held: whether the action is for specific performance of an agreement for the sale
of land or for a declaration of title to land, it is essentially an action to recover
land, so that the period of limitation would be 12 years in either case.
- EXCEPTION : Sec 9(1) is not applicable to action to recover State land or land reserve
for a public purpose and to the recovery of land by a registered proprietor under National
Land Code.
- Sec 9(2) : Nothing in this section or in subsection 11(2) of this Act shall be deemed to
affect the Government Proceedings Act 1956 [Act 359], or the National Land Code
(Penang and Malacca Titles) Act 1963 [Act 518], or to apply—

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 a. to the Ruler of any State, in respect of State land or land reserved for a public
purpose situate in such State; or
b. to any person registered under or by virtue of the National Land Code 1965 [Act
56 of 1965], or the National Land Code (Penang and Malacca Titles) Act 1963,
as the proprietor of the land sought to be recovered, or to any person claiming
through a person so registered, except to the extent that such Code or Act so
provides or permits.
- The limitation under sec 9(1) also does not apply in delays for an action where
the plaintiff would already have equitable title in the land or when the property
was wrongly acquired.
- Chee Hock Lai v Tan Swee Thai & Ors[1990] 2 MLJ 477
i. The plaintiff purchased land from an administrator of an estate and
entered into possession more than 40 years before the filing of the action
by the plaintiff. The plaintiff was never given title to the land despite
several requests.
ii. Held: The delay was justified and ordered specific performance.
- Ungku Sulaiman Bin Abd Majid & Anor v Director of Lands and Mines, State
of Johor & Anor
i. Where property was wrongly acquired, time remained at large and the law
of limitation would be inapplicable.

3.8. Action to Enforce Any Judgement

- Section 6(3): An action upon any judgement shall not be brought after the expiration of
twelve years from the date on which the judgement became enforceable and no arrears
of interest in respect of any judgement debt shall be recovered after the expiration of six
- years from the date on which the interest became
- due.
a. 12 years from the date on which the judgement becomes enforceable.
b. Recovery of arrears of interest in respect of any judgement debt: 6 years from the
date interest became due (O46 r2(1)ROC)

3.9. Action to Recover Money Secured by Mortgage or Charge or to Recover Proceeds of

the Sale of Land
- Section 21(1) No action shall be brought to recover any principal sum of money secured
by a mortgage or other charge on land or personal property or to enforce such mortgage
or charge, or to recover proceeds of the sale of land or personal property after the
expiration of twelve years from the date when the right to receive the money accrued.
a. 12 years from the date when the right to receive the money accrued.

3.10. Action in Respect of Trust Property

- Sec 22 (1) No period of limitation prescribed by this Act shall apply to an action by a
beneficiary under a trust, being an action—
a. in respect of any fraud or fraudulent breach of trust to which the trustee was a
party or privy; or

21
 b. to recover from the trustee trust property or the proceeds thereof in the
possession of the trustee, or previously received by the trustee and converted to
his use.
- (2) Subject as aforesaid, an action by a beneficiary to recover trust property or in respect
of any breach of trust, not being an action for which a period of limitation is prescribed by
any other provision of this Act, shall not be brought after the expiration of six years from
the date on which the right of action accrued:
- Provided that the right of action shall not be deemed to have accrued to any beneficiary
entitled to a future interest in the trust property, until the interest fell into possession.
a. Action in personam by beneficiary for fraud or fraudulent breach of trust by
trustee and action in rem to recover the trust property converted to the trustee
use – No period of limitation [Sec 22(1)]
b. Action in personam and in rem by a beneficiary against trustee which does not
involve fraud or fraudulent breach of trust i.e. negligence, mistake, duress the
limitation period is 6 years [Sec 22(2)].

3.11. Action for Claim to Personal Estate of Deceased Person Testate/Intestate

- Section 23 Subject to subsection 22(1) of this Act, no action in respect of any claim to
the personal estate of a deceased person or to any share or interest in such estate,
whether under a will or on intestacy, shall be brought after the expiration of twelve years
from the date when the right to receive the share or interest accrued, and no action to
recover arrears of interest in respect of any legacy, or damages in respect of such
arrears, shall be brought after the expiration of six years from the date on which the
interest became due.
a. 12 years from the date when the right to receive the share or interest accrued
b. Recovery of arrears or interest in respect of any legacy or damages in respect of
such arrears-6 years from the date interest became due.
- See also :
Order 15(1) r 6A ROC 2012: Proceedings Against Estates -Where any person against
whom an action would have lain has died but the cause of action survives, the action
may, if no grant of probate or administration has been made, brought against the estate
of the deceased.

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23
3.12. Computation of Limitation Period
- When did the cause of action accrue?
- General rule is that the limitation will begin to run from the date of cause of action
accrues.
● Lim Kean v Choo Koon [1970] 1 MLJ 158
- The period of limitation does not begin to run until there is a complete cause of action
and 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.
- Issue(s):
i. When is the cause of action to have occurred?
ii. Is it at the occurrence of the event or knowledge of it?

3.12.1. Tort
- Accrual of action in tort actions under Section 6(1) of the LA 1953
- For action under tort of negligence, three elements must be shown:
a. duty of care
b. breached that duty of care
c. plaintiff had suffered injury or damage as a result of the breach
- When the cause of action accrues in tort?
● Anns v London Borough of Merton [1978] AC 728
- When damage is an essential part of the cause of action, time begins to run from the
date when the damage is suffered, not from the date of the act or omission causing the
damage.
- Whether the knowledge is important?
UK EARLIER POSITION
● Cartledge & Ors v E. Jopling & Sons Ltd [1963] A.C. 758 (H.L.)
i. Facts: Plaintiff employee worked in a steel factory for 11 years. There
was no ventilation in the factory causing the Plaintiff to suffer
pneumoconiosis. However, he only realised after 11 years and brought
action 6 years later.
ii. Held: The plaintiff ’s action was statute-barred. Time did not run from the
date of knowledge but from the date when physical damage occurred
or injury suffered by the plaintiff.
- In tort cases, knowledge is not an essential element.
● Pirelli General Cable Works Ltd v Oscar Faber & Partners [1983] 1 All ER 65
i. Facts: Case involving negligent acts resulting in damage to property. A
consulting engineer firm designed for the plaintiff ’s factory, a chimney.
The crack on a chimney occurred in 1971 but only discovered in
1977. An action was brought in 1978 i.e. 7 years after the crack occurred
and 1 year after the crack was discovered
ii. Held (HOL): Statute barred. The date of accrual of a cause of action in
tort for damage caused by negligent design or construction of a building
was the date when the damage came into existence and not the date

24
 when the damage was discovered or could with reasonable diligence
have been discovered.

UK LATEST POSITION
- Amendment to Sec 11(4)(a)&(b) UK Limitation Act
- The decisions in Cartledge & Pirelli were harsh.
- Section 11(4)(a) & (b) of the Amended Limitation Act 1980 (England) came into force on
1 May 1981 provided that the limitation period in respect of personal injury action is
three years from:
a. the date on which the cause of action accrued; or
b. the date of knowledge of the person injured.
- The UK Latent Damage Act 1986 was later enacted to remedy the harshness arising
from Pirelli’s case.
- Under Sec 14A(5) of the Act, the starting date for reckoning the period of limitation is
the earliest date on which the plaintiff or any person in whom the cause of action was
vested before him first had both the knowledge required for bringing an action for
damages in respect of the relevant damage and a right to bring such an action.

MALAYSIAN POSITION
- Whether knowledge is important?
- The UK latest position i.e. the amendment to the UK Limitation
- The Act is not being adopted in our Limitation Act 1953.
● Credit Corp (M) Bhd v Fong Tak Sin [1991] 1 MLJ 406
- The limitation law is promulgated for the primary object of discouraging plaintiffs from
sleeping on their actions and more importantly, to have a definite end to litigation.
- This is in accord with the maxim interest.
- Knowledge of any tortious act/breach of contract = Not a requirement.
- The parties must be vigilant on their rights.
- Whether Knowledge Is Important?
● Ambank (M) Berhad v Abdul Aziz Bin Hassan & 2 Otrs [2010] 3 MLJ 784
i. Facts: The appellant contended that limitation period runs from the date
on which the appellant discovered the alleged causes of action in contract
and in tort in April 2004.
ii. Held: Dismissing the Appeal. The date of discovery of the alleged cause
of action is only relevant under Section 29 of the Limitation Act 1953 if the
cause of action was based on fraud or mistake or is concealed by fraud.

3.12.2. Professional Negligence

- Scenario: A lawyer had negligently failed to register a charge document with the SSM.
The client only realised this some time later. When did the cause of action accrue?
i. From the point of execution of documents?
ii. When the plaintiff was aware he had acted on negligent advice?
iii. From the time the damage occurs?

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- DW Moore & Co v Ferrier & Ors [1988] 1 All ER 400
i. Facts: A firm of insurance brokers took on a new shareholder and director, who
entered into a written agreement containing a restrictive covenant. Some years
later, this individual left the firm and it transpired that the covenant was
[Link] the firm sued their insurers, the Court of Appeal;-
ii. Held: that the cause of action against the solicitors had accrued at the time
when a valueless restrictive covenant was entered into on negligent advice
rather than when the plaintiff sought to rely on the covenant.

- Forster v Outread & Co [1982] 2 All ER

i. Facts: There the plaintiff entered into a mortgage to secure borrowings of her
son and subsequently brought professional negligence proceedings against her
solicitor for failing to explain the transaction.
ii. Held: The proceedings were held to be statute barred on the basis that damage
had been suffered at the time that the plaintiff entered into the mortgage, and not
at a later time when she was called upon to pay.
- Bank Bumiputra Malaysia Bhd v Tetuan Wan Marican Hamzah Shaikh & Ors
[1994] 1 MLJ 123
i. Facts: The plaintiff argued that the defendants had failed to execute certain
documents, causing the plaintiff to suffer losses. The defendant filed an
application to strike out the plaintiff's writ and statement of claim since the action
was brought more than six years after the defendant's alleged breach of
duty of care.
ii. Held: In a case involving negligence, the cause of action arises when a person
suffers loss as a result of the negligence. Time starts to run from the date
when the loss is suffered. In this case, the plaintiff's cause of action was the
defendant's negligence on 30 August 1984 and the plaintiff knew of the
negligence on 18 April 1986, at the very latest. Therefore, the cause of action
arose on 18 April 1986 at the very latest and the notice to begin the action dated
4 August 1992 had exceeded the six-year limitation period as prescribed by
the Limitation Act 1953 (allowing the defendant's application and striking out the
plaintiff's claim).
- Ong Ah Bee v Hii Chung Siong [1993] 1 CLJ 504
i. Facts: The plaintiff sued the defendant, his solicitor, claiming damages for
negligence in the preparation of a sale and purchase agreement prepared by the
defendant for the purchase of a piece of property. It subsequently transpired that
the property was not transferable as it was at all material times subject to a
charge. The defendant pleaded limitation in his defence in that the cause of
action arose more than six years before the writ was filed and applied to
strike out the plaintiff's claim. The Senior Assistant Registrar dismissed the
defendant's application and the defendant appealed.

The questions before the Court were, when the right to sue accrued for the
alleged negligence, namely when the plaintiff was said to suffer damage and

26
 whether the plaintiff had discharged the burden of proving that the claim was
brought within the limitation period.
ii. Held: The plaintiff suffered damage on the date of the execution of the Sale &
Purchase Agreement, namely on 24 June 1985 and his right to sue accrued on
that date. The writ was taken out on 18 September 1991 and the plaintiff had
therefore exceeded the six years limit. The burden of proving the action was
brought within the limitation period was on the plaintiff. The plaintiff's
affidavit-in-opposition merely denied the defence of limitation which could not be
considered as proving the issue.

3.13. Limitations Under Other Acts

3.13.1. Saving Clause Under LA

Saving for Other Limitation Enactments

- Sec 3. 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.

Application to the Government = Negligence Act

- Sec 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.
- Sec 33(2) For the purposes of this section proceedings by or against any Government
Department or any officer of any Government as such or any person acting on behalf of
the Government shall be deemed to be proceedings by or against the Government.

3.13.2. PAPA 1948

Public Authorities Protection Act
- Sec 2(a) the suit, action, prosecution or proceeding shall not lie or be instituted unless it
is commenced within thirty-six months next after the act, neglect or default complained of
or, in the case of a continuance of injury or damage, within thirty-six months next after
the ceasing thereof.
- The Act is applicable to any civil action instituted against the government.
- Limited to civil action where the wrongs were committed in the execution or intended
execution of any written law or any public duty or authority.
● Phua Chin Chew v KM & Ors [1987] 2 MLJ 604
a. Facts: In this case, Sections 3, 24, 33(i) of the LA and Sec 2(a) of
PAPA 1948 were considered by the Supreme Court. Plaintiff resigned as
teacher in 1977 under mental disability but his disability ceased in 1982.
His brother sued the Government in 1983 alleging that plaintiff's

27
 resignation was null and void. But one of the Defendants claimed
protection under Sec 2 PAPA.
b. Held: As PAPA does not provide for cases of disability, Sec 24 LA should
read together with the PAPA act. Thus, 36 months run after disability
ceases

Act of Public Authority

- The act complained of must be limited to any person who is the public authority.
- The Government or its agent must have committed something that was done in the
execution of public duty.
- For example, a police van driver knocked down a man while on his way to send
prisoners to court.
- However, if he drives the van for his casual use (to send his kid to school) using the
police van, he cannot be protected under this PAPA 1948.

Would Any Act of ‘Public Authority’ Invite the Application of PAPA 1948?
- Unfortunately, no.
● Bradford v Myers Corporation [1916] 1 AC 242, (Lord Buckmaster):
i. “the act is one which is either an act in the direct execution of a statute or
in discharge of a public duty or the exercise of a public duty. I regard
these later words as meaning a duty owed to all public alike or an
authority exercised impartially with regards to all the public.
ii. It assumes that there are duties and authorities which are not public
and that in the exercise or discharge of such duties or authorities
this protection does not apply”

Non-payment under a contract = Not within the scope of public duty and therefore a
government department could not claim statute-barred. = 6 years for breach of contract
- Lee Hock Ning v Govt of Malaysia [1972] 1 MLJ 12 at 14
i. A claim against the Government for the non-payment of monies due and owing
under a series of building contracts. The Govt contended that the contract was
entered into in performance of a public duty, so the action should have been
brought within 36 months after the default complained.
ii. If the act complained of or the subject matter of the action is the non-payment of
the contract price after completion of the contract satisfactory performed, the
protection afforded by PAPA does not come into being as the refusal to pay a
debt cannot be said to be an act in pursuance of or execution of a public duty.

3.13.3. Civil Law Act 1956

Dependency Claim
- Section 7(5) CLA – a claim for loss of support (financial loss) by the dependent
relatives shall be brought 3 years from the death of the deceased.
● Kuap Hip Peng v Yap Pin & Anor [1965] 1 MLJ 252

28
 a. Failure to commence the action within 3 years from the date of the death
was fatal to the proceedings. The writ of summon was filed 4 days after
the expiration period.
b. Thus, the court allowed the application to strike out the writ.

- Sec 8(1) - On death, all COA shall survive unless on matter of defamation, seduction, for
inducing one spouse to leave or remain apart from the other or to any claim for damages
on the ground of adultery.
- Section 8(3) – action in tort against the estate of the deceased person
No action against the estate of deceased person shall be instituted unless proceedings:
a. Were pending at the date of his death; or
b. Are taken not later than 6 months after his personal representative took out
representation.
● Airey v Airey [1958] 2 QB 300
i. An action can be brought for the tort against his personal representative,
since the only limitation period for such an action is six months after the
appointment of his personal representative.
ii. A cause of action does not cease to exist because a limitation period
has expired, and the original cause of action would, therefore, be one
subsisting against the tortfeasor at the time of his death and would
survive against his estate by virtue of S1(1) of the Act of 1934.

● Lee Sen Lan & Anor v Mah Kwee Hock [1990] 2 MLJ 157
i. It is clear that S8(3)(b) of the Civil Law Act places a statutory injunction
against the institution of an action in tort against the personal
representative of the deceased person after the stipulated period i.e.
not later than 6 months after the personal representative took out
representation.
● Lee Lee Cheng v Seow Peng Kwang [1960] MLJ 1
i. Facts: Defendant is the administrator of Loke Ta Poh, deceased. Plaintiff
sued Defendant for damages of negligent driving. Defendant claimed that
the Plaintiff action commenced after the expiration of 6 months from the
date on which Defendant took out representation to the estate of Loke Ta
Poh.
ii. Held: Plaintiff action is barred under Sec 8(3)(b) of CLA 1956.

Issue: Whether an administrator can be sued until the grant of administration is

extracted?

EARLIER POSITION
- Ruhaini bt Mohiat v Abdul Karim [1993] 3 CLJ 524
i. Where a deceased died intestate, an administrator can be sued before a letter of
administration is extracted provided it has been granted.

29
LATEST POSITION
- Yong Siew Choon v Kerajaan Malaysia [2003] 2 MLJ 150
i. Facts: The Government (‘the plaintiff ’) commenced an action against the estate
of one Abdul Hamid bin Tun Azmi (‘the deceased’) for the recovery of
outstanding income tax. The defendant, Yong Siew Choon is the widow of the
deceased but has never been the executrix or administratrix of the deceased’s
estate as no letters of representation were ever extracted in respect thereof.
ii. Held: Per Gopal Sri Ram JCA [1] Although the plaintiff ’s action was commenced
in accordance with the permissive provisions of O. 15 r. 6A(1) RHC, it was
thereafter prosecuted in defiance of the mandatory provisions of O. 15 r. 6A(4)
RHC…an action cannot be maintained against the estate of a deceased
person in the absence of the extraction of letters of representation.
Consequently, the plaintiff ’s action was an illegality and thus a nullity

Issue: Whether an executor can sue or be sued before a letter of probate is extracted?

COMMON LAW POSITION

- Meyappa Chetty v Subramaniam Chetty (1916) AC 603 (Lord Parker) = Sued
i. Held: The executor of a will capable of probate in the Straits Settlements is a
legal representative capable of instituting a suit from the date of the testator's
death and not only from the date when he obtains probate:
ii. “It is quite clear that an executor derives his title and authority from the will of his
testator and not from any grant of probate. The personal property of the testator,
including all rights of action, vests in him upon the testator’s death, and in
consequence is that he can institute an action in the character of the executor
before he proves the will. He cannot, it is true, obtain a decree before probate,
but because the production of probate is the only way in which, by the rules of
the court, he is allowed to prove his title”.

- In contrast, Mohamidu Mohideen Hadjiar v Pitchey (1894) AC 437 = Suing = Actual

grant of the probate
i. A creditor of a deceased debtor cannot sue a person named as executor in the
will of the deceased unless he has either administered or obtained a grant of
probate, and a sale in execution of a judgement against such person does not
bind the deceased’s estate.
ii. An order for probate without an actual grant thereof did not prove the will, and an
application for probate did not show an executor’s acceptance of the trusts.

MALAYSIAN POSITION
- Wakil-wakil Diri Kepada Mahadevi A/P Nadchatiram (Deceased) v Hong Leong
Bank Berhad [2014] MLJU 1387
i. It must be emphasised that the position of the executor or executrix to sue or to
be sued is different from the position of the administrator or administratrix.

30
 ii. An executor is a person appointed by a testator to carry out the directions and
requests in his will, and to dispose of the property according to his testamentary
provisions after the testator’s death.
iii. However, an administrator need not be a person appointed by will but is
appointed by the court to administer the assets and liabilities of the deceased
and thereafter to distribute the same to the next of kin of the deceased. It is trite
that unlike an administrator, the executor can sue before probate is extracted.
iv. It must not be forgotten that when the deceased dies the estate appointing
Executor and/or Executrix of the will, the locus start from the minute of the
deceased death.
v. However, in intestate matters a letter of administration must be obtained and the
sealed order must be extracted to be cloaked with locus standi.

3.14. Postponement of Limitation Period

- Generally courts do not have power to enlarge the limitation period when asked (see
Lee Lee Cheng v Seow Peng Kwang [1960] 26 MLJ 1).
- However, the limitation period can be postponed or extended on various grounds
provided under the statute or any other written law.
- Therefore, the parties may plead extension of limitation period even though prima
facie, the matter has exceeded its limitation.
- In other words, if the party concerned falls under this exception, he/she can file a civil
action outside the limitation period. This is called “extension of the limitation period”.
- Disability, acknowledgement, part payment, fraud, and mistakes are among the
grounds to postpone the limitation period.

3.14.1. In Case of Disability

Plaintiff Under A Disability
- Sec 24(1) If on the date when any right of action accrued for which a period of limitation
is prescribed by this Act, the person to whom it accrued was under a disability, the action
may be brought at any time before the expiration of six years, or in the case of actions to
which subsection 6(4) or section 8 of this Act applies, one year from the date when
such person ceased to be under a disability or died, whichever event first occurred,
notwithstanding that the period of limitation had expired.
- Sec 2(2) –A person shall be deemed to be under a disability while he is an infant or of
unsound mind.
● Phua Chin Chew & Ors v K.M. & Ors [1987] 2 MLJ 604
i. Facts: The first plaintiff was suffering from a mental disability when his
right of action accrued, and that for him, the period of limitation did not
begin to run until June 13, 1982, when a committee was appointed under
section 10(1) of the Mental Disorders Ordinance, 1952, by the High Court
vide Originating Summons No. 69 of 1982 to manage the affairs of the
first plaintiff.
ii. The present civil suit was filed on June 2, 1983, well within the period of
three years limited by section 2(a) of the Public Authorities Protection Act.

31
 iii. Held: The application to strike out the plaintiffs' suit had been prematurely
and improperly brought by the defendants.

3.14.2. Fresh Accrual of Action on Acknowledgement or Part Payment

- The fresh accrual of action accrued on the date of acknowledgement or last payment
apply to:
● Sec 26(1): Action to recover land/enforce a mortgage/charge; and
● Sec 26(2): Action to recover any debt or other liquidated pecuniary claim, or any
claim to the personal estate of a deceased person or to any share or interest
therein.
● Sec 27(1): Every such acknowledgment as is referred to in section 26 or in the
proviso to section 16 of this Act shall be in writing and signed by the person
making the acknowledgment.
● Sec 28(1): An acknowledgment of the title to any land, or mortgaged or charged
property by any person in possession thereof shall bind all other persons in
possession during the ensuing period of limitation.
- Mat bin Lim & Anor v Ho Yat Kam & Anor [1967] 1 MLJ 13
i. The claimant is required to specifically plead the acknowledgment or else it
would be struck out.
- Oversea-Chinese Banking Corp Ltd v Philip Wee [1981] 2 MLJ 83
i. All that is necessary for an acknowledgment is that the debtor should recognise
the existence of the debt.
ii. The acknowledgement need not even contain a promise to pay and it is
immaterial that the amount of the debt is not expressed in the acknowledgement
or that the correctness of the amount claimed is disputed in the acknowledgment.
- Wee Tiang Teng v Ong Chong Hooi & Anor [1978] 2 MLJ 54
i. The defendants claimed that the action is time-barred. Though prima facie
correct, the plaintiff had received a letter that constituted an acknowledgment
within s. 26(2) of the Ordinance.
ii. Therefore time began to run from the date of the letter which was 24 June 1974,
and the action was not therefore time-barred.
- Mirra Sdn Bhd v The Ayer Molek Rubber Company Berhad [2007] 1 LNS 524
i. Facts: The respondent claimed that the appellant's claim is statute barred since
the appellant's claim is for breach of contract for failing to pay the appellant's
professional fees which was due on 24.3.1999.
ii. However, the appellant only filed this action on 10.10. 2005. This has passed the
period of 6 years (the last day being 24.3.2005) for such action to be brought - s.
6(1)(a) of the Limitation Act 1953.
iii. The appellant argued that the respondent wrote to the appellant to confirm and
acknowledge that the overdue amount claimed is correct. The letter also seek for
consideration to withhold the legal action until the appellant resolves their
restructuring exercise.
iv. Despite this letter, the respondent made 5 payments of RM10,000.00 each
towards the account of the admitted debt, the last payment being on 9.11.1999.

32
 v. Held: Respondent's claim of limitation cannot succeed as such situation falls
under s.26(2) of the Limitation Act 1953.

3.14.3. In Case of Fraud or Mistake

- Sec 29: Where, in the case of any action for which a period of limitation is prescribed by
this 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 of 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, as the case may be, or could with reasonable diligence have
discovered it:
● Lim Yoke Kong V Sivapiran A/L Sabapathy [1992] 2 MLJ 571
i. The defendant’s insurers took great pains to conceal themselves from the
knowledge of the plaintiff and thus the latter’s claim was not held statute
barred as a result.
ii. Facts: The respondent was walking along the edge of a road when he
was negligently knocked down by the appellant who was riding a
motorcycle. The solicitors for the respondent attempted to trace the
insurer of the motor cycle but were unable to do so until after the expiry of
the limitation period.
iii. Held: The fraud of the insurance company could not have been
discovered with reasonable diligence before its discovery on 28 March
1984. The right of action by the plaintiff is not time barred if there is fraud
by an insurance company for not disclosing its identity to the insurer. The
right of action concealed by the fraud does not run until the fraud or
concealment is discovered by the plaintiff as in accordance with Section
80 of the Road Traffic Ordinance.

3.14.4. Section 29 Limitation Act = 6 Years

- Ambank (M) Berhad v Abdul Aziz Bin Hassan & 2 Otrs [2010] 3 MLJ 784
i. Facts: The appellant contended that limitation period runs from the date on which
the appellant discovered the alleged causes of action in contract and in tort in
April 2004.
ii. Held: Dismissing the Appeal. The date of discovery of the alleged cause of action
is only relevant under section 29 of the Limitation Act 1953 if the cause of
action was based on fraud or mistake or is concealed by fraud. A cause of
action on a contract accrued on the date of the breach. On the other hand, a
cause of action in tort accrued when the appellant suffered damage. The
appellant would have suffered damage when the assignment was executed.

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 TOPIC 4 : CIVIL COURTS JURISDICTION

4.0. Types Jurisdiction

- Jurisdiction: The power or extent of authority of a court has to administer justice i.e. the
limits within which the court has power to entertain the action presented before it.
- An action should be commenced in a court which has jurisdiction, otherwise it may
be a ground to strike out the action.
- Jurisdiction is classified into three categories:
a. Pecuniary/Monetary Jurisdiction;
b. Jurisdiction over Subject Matter; and
c. Territorial/Local Jurisdiction.

4.1. Subordinate Courts Jurisdiction

4.1.1. Pecuniary Jurisdiction
- Pecuniary Jurisdiction: The required amount in dispute or the monetary value involved
in the particular case to give the court the jurisdiction to hear the case.

Monetary Limit
- Sec 65(1)SCA A Sessions Court shall have —
a. unlimited jurisdiction to try all actions and suits of a civil nature in respect of
motor vehicle accidents, landlord and tenant and distress; and
b. jurisdiction to try all other actions and suits of a civil nature where the amount in
dispute or the value of the subject matter does not exceed one million ringgit;
and
- Sec 90 SCA- First Class Magistrate
A First Class Magistrate shall have jurisdiction to try all actions and suits of a civil
nature where the amount in dispute or value of the subject matter does not
exceed one hundred thousand ringgit.
- Sec 92 SCA- Second Class Magistrate
A Second Class Magistrate shall only have jurisdiction to try original actions or
suits of a civil nature where the plaintiff seeks to recover a debt or liquidated
demand in money payable by the defendant, with or without interest, not
exceeding ten thousand ringgit.
- Sandanam v Lim Cheng [1960] 1 MLJ 241
i. Facts: The plaintiff claimed vacant possession of the premises and also $980
arrears of rent plus $574.60 arrears of rates and mesne profits totalling $103.80
per month. The premises were held by the defendant under an agreement which
in addition to providing for the payment by him of a monthly rental of $70.00 also
provided for the payment by him of "any subsidiary charges by the Town Board in
regard to the said premises."
ii. The facts not being disputed, judgement was entered against the defendant in
the Sessions Court. The defendant appealed on the ground that since the money

34
 claim exceeded $1,200 and the rent exceeded $100, the Sessions Court had no
jurisdiction by virtue of section 70(3) Courts Ordinance, 1948.
iii. Held Allowing the Appeal: The money claim being for $1,554.60, the Sessions
Court had no jurisdiction. The word "rent" in section 70(3) of the Courts
Ordinance means rent from the common law point of view of something issuing
out of the land for which a distress could be issued.

Exception to Monetary Limit

- Although the claim exceeds the monetary limit, the plaintiff can still file it in that
court where there is:
a. Agreement
● Sec 65(3) SCA: When the parties to an action or suit which, if the
amount in dispute or value of the subject matter thereof did not
exceed the limit of the jurisdiction, would be cognizable by a
Sessions Court, have entered into an agreement in writing that
the Sessions Court shall have jurisdiction to try the action or
suit, the Sessions Court shall have jurisdiction to try the same,
although the amount of the subject matter thereof may
exceed the value limit of jurisdiction.
● Sec 65(4) SCA: Every such agreement shall be filed in the
Sessions Court and, when it is so filed, the parties to it shall be
subject to the jurisdiction of the Sessions Court.
● Sec 93(1) SCA: 93 Provisions of Act relating to Sessions Courts
applicable to Magistrates' Courts
(1) The provisions of S65(3) and (4) and of S66 to 70
and 72 to 74 shall apply mutatis mutandis to
Magistrates' Courts:
Provided that for the purpose of proceedings in
Magistrates' Courts, paragraph 73(b) shall be read as if
the words "one hundred thousand” were substituted
for the words "one million”.
b. Accumulated Interest
● If the principal sum is within the monetary limit of the Session
Courts, and the interest resulted in the total claim exceeding the
monetary limit, the action should commence in the Session
Court.
● Foo Sey Koh & Ors v Chua Seng Seng [1986] 1 MLJ 501
● Mohd Mustafa bin Shuib & Ors v Zakaria bin Subri & Anor
[1990] 1 CLJ 1170
i. Issue: whether this value limit of RM100,000 as stipulated
by s. 65(1) of the Subordinate Courts Act 1948 applies only
in respect of one plaintiff in an action or suit, or applies
irrespective of the number of plaintiffs in the action or
suit; and whether it applies to one cause of action in the

35
 action or suit or it applies irrespective of the number
of causes of action in the action or suit.
ii. The plaintiffs argued that each co-plaintiff has a separate
cause of action and that the value limit of the civil
jurisdiction of the Sessions Court is in respect of each
cause of action i.e., the Sessions Court had before it three
subject matters and the value limit of each subject matter
was RM100,000, while the defendant argued that the value
limit is tied to the action before the Court, no matter how
many causes of action there are.
iii. Held: There is nothing in ss. 66, 68 and 69 of the
Subordinate Courts Act 1948, which detracts from the
conclusion that the value limit that is spelt out in s. 65(1)
relates to one action or suit before the Sessions Court
no matter how many causes of action arise in the
action.
iv. Irrespective of whether there is one plaintiff or several
plaintiffs or one cause of action or several causes of action
in one action or suit before the Sessions Court, the total
amount that the Sessions Court may award in respect of all
the plaintiffs and causes of action joined in that one action
or suit cannot exceed the value limit of RM100,000.
v. Resort could be had to s. 65(3) of the Act to give the
Sessions Court jurisdiction where the value limit of its
jurisdiction is expected to be exceeded. Failing agreement,
the plaintiffs may apply for the transfer of the action from
the Sessions Court to the High Court or they may wish to
file the action in the High Court itself.
vi. On the other hand several actions may be filed in the
Sessions Court and the several actions consolidated for
trial under the provisions of O. 8 r. 18 of the Subordinate
Court Rules.
vii. Acting in revision the Court remitted the matter to the
Judge of the Sessions Court for her to reduce
proportionately her several awards to the three
plaintiffs so that the total amount does not exceed
RM100,000.
● Contrary to Mohd Mustafa case, Wong Kon Sang v Chang Litho
Press Ltd [1968] 2 MLJ 234:
i. Facts: An application by way of motion to have an action
before the sessions court transferred to the High Court.
ii. The respondent claimed the sum of $1,881.70 in the
sessions court being a sum due in respect of certain
printing services rendered by the respondent to the

36
 applicant. The applicant denied liability and alleged in his
defence bad workmanship on the part of the respondent in
performing those services as a result of which he suffered
loss. The applicant counterclaimed $4,227.50 by way of
special and general damages.
iii. Subsequently the applicant and the respondent entered
into an agreement under section 65(2) of the Courts
Ordinance whereby they agreed that in "consideration of
the action being disposed off by this court the parties
hereby agree that the sessions court shall have jurisdiction
to try this action although the amount of the subject matter
of the alleged counterclaim exceeds the value limit of
jurisdiction".
iv. The learned president of the sessions court held that he
had no jurisdiction to hear the counterclaim. He then made
an order staying the action pending an application for the
transfer thereof to the High Court.
v. In this application the applicant asked for an order under
section 66(1) of the said Ordinance that the above action
be transferred to the High Court and proceed as if such
action or suit had been originally instituted in the High
Court because it involves difficult questions of fact and law.
vi. Held, dismissing the application: section 65(2) of the
Courts Ordinance applies to the whole action and to all the
issues to be tried in the action and to everything in the
counterclaim. The president of the sessions court therefore
had jurisdiction to hear the case;
vii. As the learned president had held that he had no
jurisdiction to hear the case it will be necessary for the
respondent to apply to the court for an order of mandamus
for the case to go back to the sessions court to be heard.
● Foo Sey Koh & Ors v Chua Seng Seng [1986] 1 MLJ 501
i. Whether a Subordinate Court may entertain a claim where
the principal amount sued for is within the jurisdiction but
the interest claimed thereon would result in cumulative
figure which is in excess of its monetary jurisdiction.
ii. The total plaintiffs' claim of $22,000 plus total interest of
$1,266.66 at the time of filing amounted to $23,666.66.
iii. The real dispute between the parties was whether interest
should be awarded and if so at what rate, and whether the
plaintiffs should have their costs on the High Court scale or
on a lower court scale.
iv. Held: Section 11 of the Civil Law Act 1956 and Order 28
rule 18 of the Subordinate Courts Rules empowered the

37
 court to give interest over and above the sum for which
judgement is given.
v. The period from which the interest is to run, and the rate at
which the interest is to be given, in a case such as this, is
purely discretionary.

Relinquishment
- Sec 67 SCA: Relinquishing part of claim
● A plaintiff may relinquish any portion of his claim in order to bring the action or
suit within the jurisdiction of the Sessions Court, but he shall not afterwards sue
in respect of the portion so relinquished.
- Sec 69 SCA:
● A plaintiff may relinquish any portion of his claim in order to bring the action or
suit within the jurisdiction of the session court or the magistrates court.

Splitting Claims
- However, splitting claims is not allowed.
- Sec 68 SCA: Claims may not be split, nor more than one action or suit of a civil nature
brought in respect of the same cause of action against the same party.
● Sa’adi Ibrahim v Liew Han [2006] CLJ 111
i. Claim for general and special damages could not be split since there was
only 1 COA i.e. plaintiff claimed damages for the injuries sustained in a
road accident.

Application for Exemption

- The parties may apply to court to be exempt from being subjected to court jurisdiction.

Exceptions to Jurisdiction
- Sec 69 SCA: Exceptions to Jurisdiction
- Sessions Courts shall have no jurisdiction in actions, suits or proceedings of a civil
nature—
(a) relating to immovable property except as provided in sections 70 and 71;
● Dr Ng Teng Kok v Cheah See Kian [1987] 2 MLJ 245
i. Plaintiffs claimed vacant possession of certain premises and for mesne
profits against the first, second and third defendants. They also claimed
damages against the fourth defendant for trespass.
ii. The issue before the court was whether the Sessions Court had
jurisdiction to entertain the plaintiffs' claim under subsection (3) of section
70 of the Subordinate Courts Act, 1948.
iii. Held: the sum which the plaintiffs were claiming as mesne profits and
damages cannot be added or computed together under sec 70(3)
because this sub-section relates to the jurisdiction in terms of the amount
of rent payable in respect of the premises as determined under an
agreement oral or written;

38
 iv. In the present case, under sec 70(3) the Sessions Court does have
jurisdiction to try the case because the rent payable was $4,320.00 per
annum or $360.00 per month.

(e) to enforce trusts;

● Phuah Beng Chooi @ Koh Kim Kee v Koh Heng Jin [2012] MLJU 1019
i. The words 'enforce trust' in para (e) refers to an action filed by the
beneficiary or beneficiaries to compel the trustee of a trust to perform the
terms of the trust or settlement or to direct the trustee to refrain from
doing anything inconsistent with the trust.

● Koh Siew Keng v Koh Heng Jin [2008] 3 MLJ 822, [2008] 3 CLJ 450
i. Court of Appeal: The words 'enforce trusts' in para (e) refer to an action
by a beneficiary or beneficiaries, as the case may be, to compel trustees
to perform the terms of the particular trust or settlement or to direct them
to refrain from doing anything that is inconsistent with the terms of the
trust.
ii. The Malaysian High Courts, like the Chancery Division of the High Court
in England, exercise a supervisory power over trusts to ensure that they
are properly administered. It may have to do with the sale of trust property
or the payment out of income from a capital asset to beneficiaries.
iii. But what those words certainly do not refer to is an action by the true
owner to recover money wrongly appropriated by a person whom equity
holds accountable.

(f) for accounts;

(g) for declaratory decrees except in [making a declaration under paragraph
65(5)(b) and] interpleader proceedings under section 73;
● Gan Seng Biang v Priyamas Export Corporation Sdn Bhd [2011] 3 CLJ 567
i. Issue: whether the judgement of the Sessions Court was made outside
jurisdiction pursuant to para (g) when the Sessions Court judge construed
the MOU.
ii. Lee Swee Seng JC: Sessions judge did not act outside his jurisdiction
when he gave judgement.
iii. He did not make any order in the form of rescission of contract.
iv. Like all judges, he interpreted the documents that were adduced before
the court as exhibits.
v. The essence of his order and judgement was that the first defendant
returned the earnest deposit sum to the plaintiff.

(h) for the issue or revocation of grants of representation of the estates of

deceased persons or the administration or distribution thereof;

(i) wherein the legitimacy of any person is in question;

39
 (j) wherein the guardianship or custody of infants is in question; and

(k) except as specifically provided in any written law for the time being in
force, wherein the validity or dissolution of any marriage is in question.
● Choy Cheong v Kiew Kim [1985] 1 MLJ 259
i. The respondent alleged that the appellant (her husband) had neglected to
provide maintenance for her and her three children and asked that the
appellant be ordered to pay maintenance.
ii. The appellant argued that they had executed a deed to dissolution of
marriage and therefore she was no longer his wife.
iii. The Magistrate proceeded to hear on the issue of the validity of the deed
of dissolution of marriage and held that the respondent succeeded in her
contention of non est factum, and an order of maintenance of RM2,000
per month for the respondent and the three children was made.
iv. The appellant appealed arguing that the Magistrate had no jurisdiction to
hear and determine the question of validity of the dissolution of marriage
in view of para (k). By s 93 post, the provision of para (k) applies also to
Magistrates' Courts.
v. Held: The Magistrate had jurisdiction to consider and determine the issue
of the validity of the deed of dissolution.

Counterclaim by the Defendant

- Sec 66 SCA: Counterclaims in Sessions Courts and transfers therefrom
- Sec 66(1): Where in any action or suit before a Sessions Court any defence or
counterclaim of the defendant involves matters beyond the jurisdiction of the Court, the
defence or matter shall not affect the competence or the duty of the Sessions Court to
dispose of the whole matter but no relief exceeding that which the Court has jurisdiction
to award shall be given to the defendant upon the counterclaim.
- Sec 66(2): In any such case the High Court may, if it thinks fit, on the application of any
party, order that the action or suit be transferred to the High Court and proceed with as if
the action or suit had been originally instituted therein.
- Master Brisbane ak Itang (suing by Itang ak Lang, his father and next friend) v Mr
Robinson Lee [2010] 8 MLJ 743
i. The claim involved an amount excess of its jurisdiction (session court).
ii. The action thus was ordered to be registered in High Court and proceeded with
as if the action was instituted in the High Court pursuant to ss 2.

4.1.2. Jurisdiction Over Subject Matter

- The power or authority of a court to hear cases of a particular type of cases relating to a
specific subject matter.
- Normally it depends on the nature of the action and the type of remedy claimed by the
party.
- Jurisdiction over subject matter also depends on whether the court has the original
jurisdiction to hear the subject matter.

40
What is Original Jurisdiction?
- The power to hear the subject matter of the action, suit or proceeding in the first
instance.

High Court
- Has unlimited original jurisdiction to hear all matters.

Session Court
- In practice, only cases outside the jurisdiction of the Subordinate Courts
or other adjudicative bodies are brought before the High Court.
- Generally, the Subordinate Court cannot try matters involving immovable
property. However, Session Court has jurisdiction to try actions or suits
for the recovery of immovable property, claim for rent, mesne profits or
damage arising from the defendant holding over or resisting the plaintiff’s
right of possession.
● Section 70 and 71 SCA 1948: PROVIDED that there is no bona
fide question of title involved
● Hiew Kim Swee v G C Gomez [1955] MLJ 170
i. Facts: Respondent claimed possession of a portion of
premises which was in occupation of the Appellant.
Respondent claimed that he was a chief tenant and App
was his subtenant. App denied and stated that he obtained
tenancy of the premises thru the late CB Gomez, who was
the chief tenant.
ii. Held: the evidence in the case did not show that there was
in fact any disputes to title. Therefore, the Magistrate court
had jurisdiction to hear and determine the case.
● Ali Mat bin Khamis v Jamaliah binti Kassim [1974] 1 MLJ 18
i. Facts: The divorce wife (App) claimed possession of a
house which Res claimed was harta sepencarian.
ii. Held: Since it was an action for recovery of possession of
immovable property in which the question of ownership
was raised. Magistrate court had no jurisdiction to hear the
case.
- Session court can try all civil matters except those expressed in Sec 69
SCA, among others:
a. Cancellation and rectification of an instrument
b. Guardianship
c. Legitimacy
d. Where validity or dissolution of any marriage is in question
e. Relating to immovable property, except as provided by Sec 70 &
71 SCA.

41
 Magistrates Court
- Sections 65 – 70 and Sections 72 -74 also apply to magistrates court.
- However, Sec 71 SCA: jurisdiction to adjudicate on title to immovable
property with consent of parties, does not apply to magistrates court.

4.1.3. Territorial Jurisdiction

- Territorial Jurisdiction: The geographical area over which the power or authority if a court
extends.
- To determine which court shall have jurisdiction, matters to consider among others are
where cause of action arose, the defendant’s place of residence, where the facts are
based exist and any other reasons deemed fit by the court in the interest of justice.
- Every court has its own territorial limits fixed by statutes beyond which it cannot exercise
its power or authority.
- Session court and magistrates court have jurisdiction to try and determine any civil and
criminal proceedings within the local limits of jurisdiction as provided under Sec 59 & 76
SCA.
- Sec 59: territorial jurisdiction of Sessions Court
The Yang di-Pertuan Agong may, by order, constitute so many Sessions Courts as he
may think fit and shall have power, if he thinks fit, to assign local limits of jurisdiction
thereto.
...a Sessions Court shall have jurisdiction to hear and determine any civil or criminal
cause or matter arising within the local limits of jurisdiction assigned to it under this
section, or, if no such local limits have been assigned, arising in any part of Peninsular
Malaysia.

- Sec 76: territorial jurisdiction of Magistrates’ Courts

The Yang di-Pertuan Agong may, by order, constitute so many Magistrates' Courts as he
may think fit, and shall have power, if he thinks fit, to assign local limits of jurisdiction
thereto.
....a Magistrates' Court shall have jurisdiction to hear and determine any civil or criminal
cause or matter arising within the local limits of jurisdiction assigned to it under this
section, or, if no such local limits have been assigned, arising in any part of Peninsular
Malaysia:

- So far, no order assigning local limits has been made, therefore the subordinate courts in
Malaya will have local jurisdiction to hear cause or matter arising in Malaya
- The Subordinate Court in Sabah and Sarawak will have local jurisdiction to hear cause
or matter in Sabah and Sarawak respectively.

4.1.4. Further Powers and Jurisdiction

- Sec 99A & Third Schedule provides additional powers
- Sec 99A: Every Session Court and Magistrates’ Court shall have the further powers and
jurisdiction set out in the Third Schedule.

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 - Third Schedule: Additional power of Sessions Courts and Magistrates’ Court, among
others power to:
a. dismiss res judicata/multiplicity proceedings,
b. stay/transfer of proceedings,
c. order service out of jurisdiction,
d. allow defence of set-off,
e. order discovery and interrogatories,
f. compel attendance,
g. order committal,
h. order attachment before judgement,
i. order execution of judgement, etc.

● Yap Thiam Choy v Syarikat Pembenaan Fajar Baru (Rembau) Sdb Bhd
[2000] 4 CLJ 296
i. The conditions in section 2(1)(a) to (e) of the 3rd Schedule should be read
disjunctively.
ii. The word “or” was stated immediately after every condition stipulated
therein.
● Tung Lian Enterprise v Poly Trading Company [1993] 4 CLJ 189
i. Application to transfer proceedings to sub court in another jurisdiction.
ii. A liberal approach should be adopted in construing section 2 of the Third
Schedule.
iii. The court should lean in favour of the applicant and not resort to a strict,
rigid and dogmatic approach.
● Malacca Securities Sdn Bhd v Loke Yu [1998] 3 CLJ 22
i. The critical issue for determination for transfer of proceedings is which
court is the forum conveniens to hear the dispute notwithstanding the fact
that it has jurisdiction to do so.
● Taman Rimba (Mentakab) Sdn Bhd v Sin Yew Poh Tractor Works [2002] 2
CLJ 112
i. Transfer from High Court in Malaya or Sessions Court in West Malaya to
the High Court or Sessions Court in Sabah and Sarawak or vice versa
has to be approved by both the Chief Judges of Malaya and Sabah and
Sarawak.

4.2. Jurisdiction of High Court

- Article 121(1) FC: There are two High Courts of coordinate jurisdiction:
a. High Court in Malaya; and
b. the High Courts of Sabah & Sarawak
- Literally, coordinate means common, equal, of the same rank.
● Syarikat Nip Kui Cheong Timber Contractor v Safety Life and General
Insurance Co Sdn Bhd [1975] 2 MLJ 115
i. The High Court in Malaya and the High Court in Borneo have separate
and distinct territorial jurisdictions.

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4.2.1. Concurrent vs Local Jurisdiction
- Sova Sdn Bhd v Kasih Sayang Realty Sdn Bhd [1988] 2 MLJ 268
a. The court discussed the terminologies involving coordinate jurisdiction,
concurrent jurisdiction, territorial jurisdiction and local jurisdictions under Art
121(1) FC, Sec 3 CJA, Sec 23(1) CJA and O 12 R 4 RHC.
b. The term ‘concurrent jurisdiction’ means several court each authorised to deal
with the same subject matter at the choice or litigant, or jurisdiction exercised by
different courts at the same time over the same subject matter and within the
same territory and wherein litigants may in first instance, resort to either court
indifferently.
c. ‘Local jurisdiction’ must be construed in the case of the High Court in Malaya,
as the territory comprising the eleven states in Malaya and in the case of the
High Court in Borneo, the territory comprising Sabah and Sarawak.
d. A branch of the High Court located in any State has concurrent jurisdiction to
entertain any civil proceedings otherwise the mere consent of the parties under
Sec 23(1) of the 1964 Act that a civil suit be tried in a State other than the State
where the four criteria are applicable.

4.2.2. Pecuniary Jurisdiction

- The HC has no monetary limits.

4.2.3. Jurisdiction over Subject Matter

- The HC can try and determine all cases except expressly excluded under the Federal
Constitution:
a. Validity of written law made by parliament or state: Art 128
b. Dispute between federation and states and between one state and another: Art
128
c. Interpretation of the FC referred by the YDPA: Art 130

4.2.4. Territorial Jurisdiction

- Sec 23(1) CJA 1964: Subject to the limitations contained in Article 128 of the
Constitution the High Court shall have jurisdiction to try all civil proceedings where –
a. the cause of action arose;
b. the defendant or one of several defendants resides or has his place of business;
c. the facts on which the proceedings are based exist or are alleged to have
occurred; or
d. any land the ownership of which is disputed is situated, within the local
jurisdiction of the Court.
- Notwithstanding anything contained in this section in any case where all parties consent
in writing within the local jurisdiction of the other High Court.
- Ponniah v Chinniah [1961] MLJ 66
i. The word “all” means any civil proceeding irrespective of the amount of claim.
ii. The High Court has unlimited jurisdiction to try all civil claims, including claims
that may be made in the sessions court and the magistrates court.

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4.2.5. Local Jurisdiction
- Local jurisdiction means the territorial jurisdiction of the High Court. i.e. High Court in
Malaya cannot try cases derived from Sabah & Sarawak even though they have
concurrent jurisdiction.
- Sec 3 CJA : "local jurisdiction" means –
● in the case of the High Court in Malaya, the territory comprised in the States of
Malaya, namely, Johore, Kedah, Kelantan, Malacca, Negeri Sembilan, Pahang,
Penang, Perak, Perlis, Selangor, Terengganu and the Federal Territory of Kuala
Lumpur; and
● in the case of the High Court in Sabah and Sarawak, the territory comprised the
States of Sabah, Sarawak and the Federal Territory of Labuan, including, in
either case, the territorial waters and the air space above those States and the
territorial waters.
● Hap Seng Plantations (River Estates) Sdn Bhd v Excess Interpoint Sdn Bhd
& Anor [2016] 4 CLJ 641
i. Facts: The appellant had filed a civil suit in the High Court at Kuala
Lumpur against the respondents ('the KL suit'). The first respondent
thereafter applied for the suit to be transferred to the High Court at Kota
Kinabalu. An order was made by the judge transferring the KL suit to the
Kota Kinabalu High Court ('the KK suit').
ii. Held: The power to transfer any proceeding to any other court as stated
in para. 12 of the Schedule to the CJA must be read with s. 3 of the CJA
where 'local jurisdiction' is defined to mean in the case of the High Court
in Malaya, the territory comprising the states of Malaya and in the case of
Sabah and Sarawak, the territory comprising the states of Sabah and
Sarawak respectively. It follows therefore that the power to transfer any
proceeding must be confined to transfer within a particular local
jurisdiction and not between the two local jurisdictions.
- The courts in Malaysia will not have jurisdiction to try a matter if none of the conditions
set out in Sec 23(1) CJA is fulfilled.
● Lam Kok Trading Co (Pte) Ltd v Yorkshire Switchgear & Engineering Co Ltd
[1976] 1 MLJ 239
i. Facts: The contract was made outside jurisdiction i.e. in England. The
Defendant did not reside or have his place of business within the
jurisdiction of the court.
ii. Held: The Malaysian court had no jurisdiction to hear the case.
● Syarikat Nip v Safety and General Insurance Co Sdn Bhd [1975] 2 MLJ 115
i. Facts: Plaintiffs are from Sabah and the defendants are from Kuala
Lumpur.
ii. Issue: Whether the Plaintiff can sue in Peninsular Malaysia as a firm.
iii. Held: High Court in Malaya and High court in Sabah and Sarawak have
separate and distinct jurisdictions. Therefore, matters that arose within the
jurisdictions of the HC Sabah and Sarawak must be resolved in Sabah or
Sarawak. There cannot be a crossover between the two high courts.

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 ● Sova Sdn Bhd v Kasih Sayang Realty Sdn Bhd [1988] 2 MLJ 268
i. Facts: The cause of action arose in Penang and the place of business of
both parties are located in KL. The Plaintiff instituted the case in Alor
Setar. The defendant applied to strike out on the ground of lack of
jurisdiction.
ii. Issue: Whether the High Court in Alor Star has jurisdiction to try the
case?
iii. Held: All HCs in Peninsular Malaya are branches of the HC of Malaya.
Thus any HC in Malaya can try the suit.

4.2.6. Forum Conveniens

- The court emphasised the principle of forum of convenience, i.e. it must not put the
defendant in inconvenience when choosing the court.
- But, the forum conveniens must not be abused to the extent that it causes difficulty for
the defendant (by the Plaintiff’s act applying to transfer the case to other states).
- One of the conditions to determine forum conveniens is to consider where the cause of
action arose.
- For e.g. in a breach of contract to pay a sum promised. The breach will have to be at the
place where the payment is to be made and the cause of action accrued in that place.
- Bank Bumiputra Malaysia Bhd v Melewar Holdings Sdn Bhd [1990] 1 CLJ 1246
i. Facts: The 2nd to 5th defendants were guarantors for a loan given by the
Plaintiff to Melewar Holdings Sdn Bhd and signed a guarantee document in KL.
The loan was also secured by a charge in Kuala Pilah. The 2nd to 5th defendants
applied to transfer the case to High Court KL because of their residential
qualification.
ii. Issue: Can the parties apply to transfer the case to High Court KL even though
the cause of action arose in Kuala Pilah?
iii. Held: The cause of action arose in Kuala Pilah and therefore the application to
transfer to High Court was rejected.
- Enersafe Sdn Bhd (formerly known as General Tractors Services Sdn Bhd) v
Megarina Sdn Bhd [2006] 4 MLJ 271
i. D having business address in Paka, Terengganu. P filed its action at the High
Court of Kuala Terengganu. Cause of action and the fact which cause of action
was based occurred in Miri Sarawak. Both HC KT and HC of Miri had jurisdiction
to try P’s case. D’s application to summarily strike out the action was
rejected/dismissed.
- Hap Seng Plantations (River Estates) Sdn Bhd v Excess Interpoint Sdn Bhd &
Anor [2016] 4 CLJ 641
i. Facts: The plaintiff filed a Civil Suit in the High Court of Malaya at KL. The suit is
an action based on fraud and forgery and a power of attorney of a piece of land
in Sabah. The defendant is an individual whose last known address is in
Sandakan, Sabah. Both the High Court of Malaya and the High Court of Sabah
and Sarawak had the jurisdiction, but it was Sabah, and not Malaya, which
constituted the forum conveniens for the suit.

46
ii. Issue: Whether the High Court in Malaya had the power or jurisdiction to transfer
proceedings to the High Court in Sabah and Sarawak, or vice versa.
iii. Held: Although O. 57 r. 1(4)(a) speaks of a transfer of proceedings from the High
Court to another High Court of 'coordinate jurisdiction', the context must be
confined to the respective territorial jurisdiction of the two High Courts, namely
that of Malaya on the one hand and Sabah and Sarawak on the other.

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 TOPIC 5: MODE OF ORIGINATING PROCESS

5.0. Introduction (4 Modes of Commencement)

- Under the RHC 1980; there were 4 modes of commencement:
i. Writ
ii. Originating Summon
iii. Originating Motion
iv. Petition

- The 4 modes were reduced to 2 pursuant to the new Order 5 Rule 1 Rules of Court
2012, where the proceedings shall be commenced either by:
i. Writ
ii. Originating Summon

- Hierarchy of Courts
i. Courts:
a. High Court
b. Subordinate Court
ii. Writ of Summon:
a. O6 ROC, Form 2 or Form 2A
iii. Originating Summons:
a. O7 ROC, Form 5 or Form 6

5.1. Writ of Summons

- Process:
1. Pleadings > Close of Pleadings > Case Management > Trial > Judgment
- The writ is one of two modes of originating process available for commencing a civil
action in the High Court and Subordinate Courts. Every writ must be in Form 2 or Form
2A.
- Order 5 Rule 2
i. ​When proceeding must be begun by writ (O5 r2)- Proceedings in which a
substantial dispute of fact is likely to arise shall be begun by writ.
ii. However, O 5 R2 does not state that it is compulsory for some actions to be
commenced by writ as in the RHC.
iii. It is left to the Plaintiff to begin proceedings by writ if it is appropriate by reason of
there being a substantial dispute of fact.
- Substantial dispute of fact
➔ Under the old RHC, the followings are considered as ‘substantial dispute of fact’:
a. A claim for any relief or remedy for any tort, other than trespass to land;
b. A claim is based on an allegation of fraud;
c. A claim for damages for breach of duty, where the damages claimed
consist of or include damages in respect of death of any person or in
respect of personal injuries to any person or damages to any property;

48
 d. A claim for damages for breach of promise to marry;
e. Infringement of a patent.
➔ However, case laws indicated that the list under RHC above was not sacrosanct
or exhaustive. Therefore, the current Rules has steered away from stipulating the
circumstances in which proceedings should be begun by writ
➔ Seah Choon Chye v Saraswathy Devi [1971] 1 MLJ 12:
● Facts: This was an application by way of originating motion for an order
that a date be fixed by the court within which an undertaking given by the
respondent, a solicitor, to the applicant, can be completed. The main
issue in the case was whether the application by way of originating motion
is proper or whether it should be made by way of writ.
● Held: as in this case there were disputed questions of facts and
allegations of fraud and misconduct, the application should be
commenced by writ.
➔ Ting Ling Kiew v Tang Eng Iron Works Co Ltd [1992] 2 MLJ 217:
➔ Khoo Kheng Sim v Khoo Chooi Leong [2002] 5 MLJ 345:
➔ Re Deadman (decd) Smith v Garland [1971] 2 All ER 101; [1971] 1 WLR 426:
● Facts: Years after commencing the proceedings by way of Originating
Summons, it was realised that the matter involved substantial dispute of
fact and it ought to be commenced by writ. The court may order the
proceeding to continue as if it had begun by writ.
● Held: Therefore, it was not fatal.
- Effect of wrong mode of commencement
➔ Khoo Kheng Sim v Khoo Chooi Leong [2002] 5 MLJ 345:
● The plaintiff applied, by way of originating summons, for, inter alia, orders
that the plaintiff was a child entitled to a ⅓ share of the deceased's estate.
The plaintiff's affidavit dated 3 September 1999, in para 7 encl 7, raised
the issue of 'penipuan', (ie fraud or deceit) in the first defendant's
application under the Small Estates Distribution Ordinance 1955. Counsel
for the first defendant raised a preliminary objection that the mode of
commencing these proceedings by way of originating summons was
wrong as the plaintiff should have commenced a writ action. Held: It is
trite law that deceit is an example of a cause of action in tort, in which
case, O 5 r(2)(a) of the Rules of the High Court 1980 ('the RHC') would
apply. On the other hand, if 'penipuan' was used to mean 'fraud', then O 5
r 2(b) of the RHC would apply so that the mode of commencement would
still be by way of writ (see p 348H-I). The particulars of fraud should be
specifically pleaded and the matter herein should have been commenced
by way of a writ as opposed to an originating summons (see p 350A).
Besides the allegation of fraud, there were numerous disputes of facts
which would certainly call for the application of O 28 r 8(1) of the RHC for
the purpose of enabling the court to order the proceedings herein to
continue as if the cause or matter had been so begun by way of a writ.
The proceedings herein therefore shall continue as if this cause or matter

49
 had been begun by way of a writ and the parties were ordered to deliver
their pleadings in accordance with O 18 of the RHC
➔ Ting Ling Kiew v Tang Eng Iron Works Co Ltd [1992] 2 MLJ 217;
● The conflicts in the evidence can only be properly and satisfactorily
resolved if oral evidence is adduced and witnesses cross examined on
their evidence which, however, is not possible in proceedings begun by
originating summons. In the present case where fraud or intention to
default is the central issue, particulars of fraud must be specifically
pleaded and it is obvious that the particulars of the fraud are absent in the
affidavit of the manager of the respondent company. The Judge is not
precluded in the exercise of his discretion from making an order that the
proceedings should be continued as if begun by writ pursuant to O. 28 r.
8(1) RHC bearing in mind also O. 5 r. 2(b) RHC. Indeed, it is within his
absolute discretion and he is justified to do so in the circumstances of this
case in order to resolve the conflicts of affidavit evidence and reach a well
balanced decision.
➔ Contrast with: Neoh Ah Yan v Ong Leng Choo [2008] 7 MLJ 151)
● Facts: This originating summons is an application by the plaintiff to be
included as one of the administrators of the estate of one Neoh Eng Hong
('the deceased') and also as one of the beneficiaries of the said estate.
● Held: I have struck out the originating summons with costs but with liberty
given to the plaintiff to proceed afresh by way of a writ action. Since the
present case involves serious disputes as to the facts, I think that it is
inconvenient that this action should proceed by way of an originating
summons. I am not inclined to invoke my powers under Order 28 rule 8 of
the RHC, as suggested by the learned counsel. For it is clear, from the
very beginning the plaintiff ought to have known that there are likely to be
serious disputes as to the material facts. In other words, right from the
very beginning the plaintiff must have known that originating summons is
not the appropriate mode.

- When is it appropriate to commence action by writ?

1. When question of facts are crucial and there is going to be conflicting testimony
a. Ng Wan Siew v Teoh Sin [1963] 29 MLJ 103:
● Where the issue involves ascertaining whether the appellant is a
natural or an adopted son, the correct procedure is the writ of
summon. The appellant claimed certain documents and oral
evidence which the trial judge should not have been admitted. The
courts held that when it is known that there is going to be conflict
of testimony and a necessity for taking parole evidence, the
proceedings should be commenced by way of writ.
2. Where evidence need to be led
a. Abdulmajid v Haji Ab Razak [1971] 2 MLJ 228:

50
 ● Facts: The plaintiff applied for orders by way of originating
summons under R. S. C. O.55 r.4, to which application the grantor
applied to set aside the proceedings on an objection taken to the
use of an originating summons. In his affidavit in support, he
denied that there was a valid trust as he produced evidence
indicating a subsequent change of heart. He contended that in
view of the disputes arising as to the facts, the action should have
been commenced by writ.
● Held: Courts would refuse to decide questions of fact on an
originating summons as a matter of some inconvenience; In the
circumstances of this case, the grantor's subsequent change of
heart may have led to another consensual variation. If so, then it
remained for the court to find what was the actual agreement
reached. If it did not, then the question remained whether the
grantor had so bound himself contractually that he must be made
to perform specifically any contract entered into validly by him and
as varied consensually. This meant, at the least, that evidence
would have to be led, and therefore an originating summons
was not a suitable medium or process for the determination
of the issues raised.

5.2. Originating Summon (OS)

- Order 5 Rule 3
➔ Proceedings by which an application is to be made to the Court or a Judge
thereof under any written law shall be begun by originating summons.
- Order 5 Rule 4
➔ Where the sole principle question at issue is or is likely to be one of the
construction of any written law or of any instrument made under any written
law, or of any deed, will, contract, or other document, or any question of
law; or in which there is unlikely to be any substantial dispute of fact UNLESS
the plaintiff intends to apply summary judgment under Order 14 or Order 81.
- Where application to be made to the court under any written law which does not specify
the type or originating process and which is not part of exceptions under the Appendix C
of Order 92 Rules 2, the application must be by way of OS.
- OS is appropriate for matters involving questions of law, construction of any
instrument made under any written law, or of any deed, will, contract or other
document or in matters where there is no substantial dispute of facts.
- Application for certiorari/mandamus/injunction, Letter of Probate/Letters of
Administration or foreclosure order is to be made by OS.
- Application by way of OS requires Affidavit in Support to be filed and served on the
respondent.
- Cases:
i. Ahmad Jefri b. Mohd Jahri @ Md Johari v Pengarah Kebudayaan &
Kesenian Johor [2010] 3 MLJ 145:

51
 ● Facts: The appellant, a government officer, filed a writ of summons
against the respondent seeking a declaration that his dismissal was null
and void and damages for wrongful dismissal. The respondent
successfully struck out the appellant’s action in High Court. His appeal to
the Court of Appeal was also dismissed. The appellant obtained leave to
appeal to the Federal Court on the question whether challenging the
decision of a public authority by way of writ instead for judicial review
amounted to abuse of process of court.
● Held: The appellant’s claim was based solely on public law and the court
struck off the application on the ground of abuse of the court’s process.
ii. Pesuruhjaya Ibu Kota Kuala Lumpur v Public Trustee [1971] 1 MLJ 30:
● Facts: The applicant commenced the action by way of an OS. The
respondent contended that the procedure adopted by the applicant was
wrong in law because it involved dispute of fact and law. Issue: Whether
the action was properly commenced?
● Held: The procedure adopted by the Applicant (i.e. by way of originating
summons) was in order. There the objection by the Respondent was that
the procedure adopted by the applicant was wrong in law because
disputed questions of fact and law were involved. In the present case
there is no dispute as to facts since the Plaintiff had proved that he was
the owner of the said property. Where the question of fact is not crucial to
the determination of the case, the proper way to commence the
proceeding is by way of originating summon.
iii. National Land Finance Cooperative Society v Sharidal Sdn Bhd [1983] 2
MLJ 211:
● Facts: The proceeding was commenced by way of an originating
summon seeking a declaration that a sale and purchase agreement was
void. Counsel for the appellants objected to the respondents taking the
proceedings by an Originating Summons instead of by a writ. Issue:
Whether the commencement mode was correct?
● Held: since the sole issue involved the construction of the terms of the
agreement, and there was only one document (the S&P itself and no
other evidence) the action was properly commenced. The issue involved
in this case is purely a matter of construction of the sale and purchase
agreement between the parties. No other evidence is needed to
determine the issue than the massive correspondence that passed
between them and their solicitors. The issue can be decided on the basis
of the documents exhibited in court together with the undisputed facts
disclosed and that there are no issues relevant to the case which require
evidence to be called at a trial. Therefore of the view that the procedural
objection raised by the appellants had no substance.
iv. Yeow Ho Bun v Tee Beng Gak [2003] 6 MLJ 681 - Interpretation of trust
deed.

52
 v. Happy Shopping Plaza v Sun Properties [1987] 1 MLJ 319- construction of
S&P.
vi. Re Chin Sem Lim’s Settlement [1971] 2 MLJ 152- construction of deed of
settlement.
vii. Lim Sew Lan v Pembangunan Hysham Bhd [1999] 5 MLJ 670- the
interpretation to be put to clause in an agreement.

- Order 94 Rules 2(1)

➔ O5 R1 shall not apply to the proceedings under the written laws in Appendix C,
except as provided under these Rules. Order 94 Rules 2 provides an exception
and preserves the right to commence proceedings other than by writ or OS if
required by written law.
- Order 94 Rules 2(3)
➔ Any application under any written law, other than those listed in Appendix C,
which is by way of a mode other than OS or writ, shall be treated as having been
commenced by way of OS and shall be dealt with accordingly in accordance with
these Rules.
➔ Therefore, the court should merely treat the action not listed under Appendix C
as having been commenced by OD instead of striking it out.
- Exceptions: Mode of commencement prescribed by written laws
➔ Proceedings governed by written laws listed in Appendix C (by virtue of O92 r4):
a. Bankruptcy proceeding under Bankruptcy Act;
b. Winding up of companies and capital reduction under Companies Act;
c. Criminal proceedings under Penal Code and other criminal laws;
d. Proceedings under the Elections Offences Act 1954;
e. Matrimonial proceedings under LRA;
f. Land reference under Land Acquisition Act;
g. Admission to the Bar under LPA.
h. Proceedings under the Income Tax Act 1967.
➔ Most of the above written laws require proceedings commence by way of petition.

Writ Originating Summon

Plaintiff’s claim involve substantial dispute of ● Where provided by any written law
facts such as: that it is mandatory to commence by
a. Tort action except trespass to lan OS e.g. foreclosure proceedings
b. Allegation of fraud under NLC.
c. Damages for breach of duty ● Where required by statute e.g.
d. Damages for breach of promise to interpleader summon, registration of
marry foreign judgment.
e. Infringement of patent ● Save cost and court’s time as the
matter can be disposed of by looking
at the affidavit only.

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 ● No trial/proceeding.

54
 TOPIC 6: PARTIES

6.0. Parties to the Action

- Before an action can be commenced in court, the litigants who intend to initiate
proceedings must determine the following issues:
● Cause of action
● Subject matter of the action
● The remedy required
● Parties to the action

- The Cause of action

● There must be circumstances which lead up to the claim.
● Must consist of every fact, which is necessary to be proved by the litigant to
entitle the plaintiff to the judgement or order from the court.

- Subject matter
● Legal right or property in dispute the court has to adjudicate upon.

- Remedy
● The pleadings must state the remedies that the parties are seeking for.

- Parties to the action

● There must be at least one party to the action; one plaintiff and one defendant

6.1. Who Can be the Plaintiff or Defendant?

- Order 5 r 6(1) ROC: An individual whether or not he sues as trustee, personal
representative or in any other representative capacity has a right to sue by a solicitor or
in person.
- Sec 3 Interpretation Acts 1948 and 1967: Person includes a body of persons,
corporate or incorporated.
- The words ‘any person’ in O5 r6(1), must refer to a person who can be legally identified.
● Anne Theresa de Souza v Majlis Agama Islam, Jabatan Agama Islam
Selangor [2010] 3 MLJ 748
- A natural person must be sui juris (of the age of majority) & in compos mentis (in his right
mind)
● Anne Theresa de Souza v Majlis Agama Islam, Jabatan Agama Islam
Selangor [2010] 3 MLJ 748
○ Facts: In the present case, the person named as the appellant before us
and as the plaintiff in the court below had no legal identity. Put in another
way, there was no natural person or legal entity by the name of the
plaintiff or the appellant when the OS was instituted, or this appeal filed.
The appellant purported to depose the affidavit filed in support of the OS
but the IC number ascribed to her therein in fact belonged to Noorasyikin.

55
 The deed poll purportedly sworn by Noorasyikin at p 292 of the AR
appeared to be signed by the appellant (her name appears to be the
signatory) whereas the surat akuan purportedly sworn and signed by the
appellant at p 306 of the AR bear the IC number of Noorasyikin. Amidst
such confusion and misnomer one fact that stood out unchallenged was
that the natural person and the holder of the IC No 7302218Ð05Ð5122
was Noorasyikin and not the appellant or plaintiff. One may prefer to use
names other than one's registered name but that would not alter one's
legal identity as reflected in the IC unless and until such preference was
duly effected according to the NRA. For the moment the appellant
remained a non-entity, could not initiate the OS in the High Court, and had
no capacity to come to this court by way of appeal against the decision
made which was itself in the circumstances a nullity. The appeal was
clearly incompetent and not properly before us. Accordingly, the
application to amend the appellant's name, being interlocutory to an
incompetent appeal could not be entertained
○ Held: The appellant had converted to Islam and acquired a new identity
by the name of Noorasyikin and had also changed her IC to IC No
730218–05–6122. There was no natural person or legal entity by the
name of the appellant when the originating summons ('OS') was
instituted. The deed poll purportedly sworn by Noorasyikin appeared to be
signed by the appellant whereas the surat akuan purportedly sworn and
signed by the appellant bear the IC No of Noorasyikin. The natural person
and the holder of IC No 730218–05–5122 was Noorasyikin and not the
appellant. As such the appellant remained a non-entity, could not initiate
the OS in the High Court and had no capacity to come to the court by way
of appeal against the decision made which, in the circumstances, was
itself a nullity.

- Order 5 r6(2): A body corporate may not begin or carry on proceedings otherwise by a
solicitor.
- Sec 16(5) Companies Act 1965: once incorporated, a company has a capacity to sue
and being sued under its own name
- A company cannot be represented by its director or officer unless a specific law allows it.
- Title of the action where a company is suing:

ABC Sdn Bhd (W-1278)

….Plaintiff

6.2. Categories of a Litigants

- Besides natural person and corporation, other categories of litigant who may become
parties to the action are:
● Person under disability
● Partners

56
 ● Sole Proprietor
● Societies
● Trade Unions
● Government
● Yang di-Pertuan Agong
● States Ruler
● Estate of Deceased
● Administrator
● Executor
● Official Administrator

6.2.1. Person Under Disabilities

- Order 76 R1: Interpretation “Person Under Disability" means a person who is a minor
or a patient. “Patient” means a mentally disturbed person within the meaning of the
Mental Health Act 2001.
- The word “Minor” under Order 76 refers to a natural person below 18 years old.
- Order 76 r2(1): A person who is under disability can only commence civil proceedings
by a litigation representative.
- O76 R3: A litigation representative shall act by a solicitor.
- The words “Guardian ad litem” and “next friend” in Order 76 RHC 1980 have been
replaced with “litigation representative”.

Litigation Representative
- Litigation representative is any person who is not himself incapable of instituting
proceedings and is not connected with the defendant, or has any interest adverse to the
person under disability.
- Preference will be given to the parent or guardian, or to some other relatives or
connections of the person under disability or their nominee.
- Title of the action where a minor or a patient is suing:
- Hisham bin Hashim, an infant, by his litigation representative, Mohamed bin Abu
…..Plaintiff

- Hisham bin Hashim, seorang kanak-kanak mengambil tindakan melalui wakil litigasi,
Mohamed bin Abu …..Plaintiff

6.2.2. Partners
- Order 77 R1: Action by and against firms
- A partnership may sue or be sued in the name of the firm or trading name.
- A sole-proprietor: A person suing by himself as a firm, must sue in his own name,
though he may be sued in his trading name.
- Advantages to sue under the firm’s name: No need to identify each partner, make all the
partners jointly and severally liable.
- Title of the action where partners are suing:
1. Zulhilmi bin Zaki (770210-10-2365)

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 2. Zakiah binti Halim (800208-10-6544) … Defendants

(kedua-duanya berniaga diatas gaya dan nama Zulhilmi Enterprise)

….Defendan-defendan

6.2.3. Sole Proprietor

- Order 77 R9: An individual carrying on business within jurisdiction in a name or style
other than his own may be sued in that name or style as if it were the name of a firm or
the name which he carries on business but may only sue in his own name.
- This Order refers to sole proprietor/individual trading as a firm.
- Wee Tiang Kheng v Ngu Nii Soon & Ors [1989] 1 MLJ 252
● Facts: The plaintiff orally applied to amend the name of the plaintiff from
'Petroserv General Trading Establishment' to 'Sheikh Khaled Bin Jassem Bin
Mohammad E Jassem Al-Thani Berniaga Sebagai Petroserv General Trading
Establishment’. The amendment was necessary as a firm cannot sue in its own
name although it might be sued in such name.
● Held: Order 20 of the Rules of the High Court 1980 gives the court a
discretion to allow leave to amend pleadings which must of course be
exercised judicially. The power to grant the amendment after the expiry of the
limitation period in the circumstances of this case when the amendment would
not in effect turn the suit from one character into a suit of another. There was no
element of surprise. Such an amendment was bona fide. There was no change of
the cause of action as all the facts were the same.

6.2.4. Societies
- Sec 9(c) Societies Act 1966: A society may sue or be sued in the name of such one
of its members as shall be declared to the Registrar and registered by him as the public
officer of the society for that purpose, and, if no such person is registered, it shall be
competent for any person having a claim or demand against the society to sue the
society in the name of any office-bearer of the society.
- Sec 2 Interpretation:
● “Society” includes any club, company, partnership, or association of seven or
more persons whatever its nature or object, whether temporary or permanent.
● “Office Bearer” of a society means any person who is the president or
vice-president, or secretary or treasurer of such society or any branch of a
society, or who is a member of the committee or governing body thereof, or of
any branch thereof or who holds in such society or branch of a society any office
or position analogous to any of those mentioned above.

6.2.5. Trade Unions

- Sec 22 Trade Union Act 1959: Liability in tort.
● [2] Nothing in this section shall affect the liability of a trade union or any trustee or
officers thereof to be sued in any court touching or concerning the specific
property or rights of a trade union or in respect of any tortious act arising

58
 substantially out of the use of any specific property of a trade union except in
respect of an act committed by or on behalf of the trade union in contemplation or
furtherance of a trade dispute.

- Sec 23. Liability in contract.

● Every registered trade union shall be liable on any contract entered into by it or
by an agent acting on its behalf;
● Provided that a trade union shall not be so liable on any contract which is void or
unenforceable at law.

- Sec 25. Proceedings by and against trade unions.

● [1] A registered trade union may sue and be sued and be prosecuted under its
registered name.
● [2] An unregistered trade union may be sued and prosecuted under the name by
which it has been operating or is generally known.
● [3] A trade union whose registration has been cancelled or withdrawn may be
sued and prosecuted under the name by which it was registered.’
- Registered trade union may be sued under the name it is registered.
- Tort actions-action may be brought against the official in question.

6.2.6. Government
- Order 73 R1: Application & Interpretation
● “Civil proceedings by the Government”, “Civil proceedings against the
Government” and “Civil proceedings by or against the Government” have the
same respective meanings as in Part III of the Government Proceedings Act
1956
- Government Proceedings Act 1956
● Sec 3: ...where the Government has a claim against any person .. The claim may
be enforced by proceedings taken by or on behalf of the Government for that
purpose in accordance with this Act.
● Sec 21(1): Civil proceedings by or against the Federal Government shall be
instituted by or against, as the case may be, the Government
● Sec 21(2): Attorney General acts on behalf of the Federal Government of
Malaysia.
● Sec 22(1): Civil proceedings by or against the Government of a State shall be
instituted by or against the Government of such State.
● Sec 22(2): State Legal Adviser/State Attorney General of Sabah and Sarawak
will act on behalf of the State Government.

6.2.7. YDPA & State Ruler

- Article 183 of FC: No action to be instituted against the Yang di-Pertuan Agong or a
Ruler except with the consent of the Attorney General personally.

59
- No action, civil or criminal, shall be instituted against the Yang di-Pertuan Agong or the
Ruler of a State in respect of anything done or omitted to be done by him in his personal
capacity except with the consent of the Attorney General personally.
- Art 32(1): ..the Yang Di-pertuan Agong… shall not be liable to any proceedings
whatsoever in any court except in the Special Court established under part XV.
- Karpal Singh v Sultan of Selangor [1988] 1 MLJ 64
● Facts: The applicant applied for a declaration that the public statement made by
the Sultan that he would not pardon anyone who has been sentenced to the
mandatory death sentence for drug trafficking in Selangor is in violation of Article
42 of the Federal Constitution. The Sultan applied for an order to strike out the
action on the grounds inter alia, the action is barred by reason of the provisions
of Article 181(2) of the FC.
● Held: In the light of Article 181(2) of the Constitution, the plaintiff's claim herein is
plainly barred. The contention that the statement attributed to the Sultan was
made by him in his official capacity is completely unacceptable. It is obvious that
the statement was not made in the course or during the progress of a Pardons
Board Meeting. On the contrary, it was done in his personal capacity. Article
181(2) would still apply to bar the present proceedings as it is in fact a substance
brought against the Sultan in his personal capacity.
- Mighell v Sultan of Johore CA 1894
● Facts: In 1885 the Sultan of Johore came to England, and according to the
plaintiff, Miss Mighell, took the name Albert Baker and promised to marry her.
● Held: The Sultan was entitled to immunity even though up to the time of suit ‘he
has perfectly concealed the fact that he is a sovereign, and has acted as a
private individual.’ ‘When there is the authoritative certificate of the Queen
through her minister of state as to the status of another sovereign, that in the
courts of this country is decisive’.
- Duff Development Co v Govt of Kelantan HL 1924
● Facts: Legal suit involving granting mining rights.
● Held: Government of Kelantan had not submitted jurisdiction to the English court
for the purpose of the proceeding to enforce the award, either by assenting to the
arbitration clause. In the absence of a clear statement of the position from the
Government, the court might be entitled to decide whether a defendant had the
benefit of state immunity for itself on the basis of the evidence before it. A foreign
state cannot be implemented in the English courts without its consent.
- Faridah Begum Bte Abdullah v Sultan Haji Ahmad Shah Al Mustain Billah Ibni
Almarhum Sultan Abu Bakar Ri' Ayatuddin Al Mu' Adzam Shah [1996] 1 MLJ 617
● Facts: The plaintiff, who was a Singapore citizen, sued the Sultan of Pahang
('the Sultan') in his personal capacity for alleged libel and for damages in the
Special Court established under Art 182 of the Federal Constitution. The
Attorney General had given his consent to the plaintiff to sue the Sultan under art
183. Both parties agreed that the court should first determine a preliminary issue
raised by the defendant, that was whether the plaintiff, not being a Malaysian

60
 citizen, had the right to sue the Sultan in his personal capacity in the Special
Court.
● Held: The plaintiff, being a Singapore citizen, could not be conferred the right to
sue the Sultan in this case.

6.2.8 Estate of Deceased

- Sec 8(1) Civil Law Act 1956: ...on death of any person all causes of action subsisting
against or vested in him shall survive against, or, as the case may be, for the benefit of,
his estate.
- Provided that this subsection shall not apply to cause of action arising for defamation,
seduction, inducing one spouse to leave or remain apart from the other, any claim
for damages on the ground of adultery.
- Order 15 r7(2) ROC: Where at any stage of the proceedings in any cause or matter the
interest or liability of any party is assigned or transmitted to or devolves upon some other
person, the Court may, if it thinks it is necessary in order to ensure that all matters in
dispute in the cause or matter may be effectually and completely determined and
adjudicated upon, order that other person to be made a party to the cause or matter and
the proceedings to be carried on as if he had been substituted for the first-mentioned
party. An application for an order under this paragraph may be made ex parte.
- O15 R9(1) If after the death of a plaintiff or defendant in any action the cause of action
survives, but no order is made to substitute the deceased with any person, the other
party may apply to the Court for an order that the action shall be struck out.
- The Court shall not make an order against plaintiff unless the Court is satisfied that due
notice of the application has been given to the personal representatives and to any other
interested persons who, in the opinion of the Court, shall be notified.
- A writ issued in the name of the deceased plaintiff/defendant

COMMON LAW POSITION

● Dawson v Dove [1971] 1 Q.B 330
○ Facts: Writs were issued in the names of each of the plaintiffs claiming
damages against Defendant. Defendant had, unknown to the plaintiffs,
died on July 28, 1967, appointing the defendants as his executors. By the
time that the plaintiffs heard of Defendant's death, the limitation period for
suing executors in tort had expired. The plaintiff, upon realising this,
applied to amend the writ to substitute the deceased’s name with of the
defendants. However the defendant objected and appealed against the
decision of the registrar allowing the amendment.
○ Held: Writs in the three actions and all subsequent proceedings be set
aside on the ground that, at the dates when the writs were issued,
Frederick William Dawson was already dead. A writ issued in the name of
the deceased plaintiff is a nullity.

MALAYSIAN POSITION

61
 - Order 15 r6A(3): An action purporting to have been commenced against a person shall
be treated, if he was dead at its commencement, as having been commenced against
his estate in accordance with para (1), whether or not a grant of probate or
administration was made before its commencement.
- Order 15 r6A(4)(b): the Court may, at any stage of the proceedings either of its own
motion or on application, make an order in order to ensure that all matters in dispute in
the proceedings may be effectually and completely determined and adjudicated upon.
- The above Orders rectify the harshness in Dawson v Dove case as they enable the
plaintiff to sue the estate of the defendant after he dies, though it was only discovered
later.

Plaintiff dies in the course of proceedings

- If the plaintiff dies in the course of proceedings, another person may bring an action on
his behalf.
- The action does not abate by reason of death (O15 r7(1) ROC)
- Government of Malaysia v Taib bin Abdul Rahman [1991] 2 MLJ 175
● Facts: The plaintiff sued the defendant arising out of a road accident. During
proceedings, he died and his son was substituted as the plaintiff. The defendant
later, objected on the ground that the son had not obtained a letter of
administration and as such not a proper person to be made as a party to the
action.
● Held: When a person dies intestate, until administration or probate is granted,
the court has the discretion to order the son to be made a party to the
proceeding.

6.2.9. Administrator
- Sec 8(3): No action shall be maintainable in respect of cause of action in tort against the
estate of the deceased person, UNLESS proceedings against him:
● Were pending at the time of his death are taken later not later than 6 months
after his personal representative took out representation.
● An Administrator cannot sue or be sued before letters of administration are
extracted.
- See,
● Ingall V Moran [1944] 1 All Er
● Lee Lee Cheng v Seow Peng Kwang [1960] 26 MLJ 1
● Ang Hoi Yin V Sim Sie Hau [1969] 2 MLJ 3
● P Govindasamy Pillay V Lok Seng Chai [1961] MLJ 89
● Ruhani Binti Mohat & Anor v Abdul Karim Mat Ali & Anor [1993] 3 CLJ 524
● Yong Siew Choon V Kerajaan Malaysia [2003] 2 MLJ 150

- Ingall v Moran [1944] 1 All ER

● Facts: The plaintiff issued a writ in an action brought by him under the Law
Reform (Miscellaneous Provisions) Act, 1934, claiming to sue in a representative

62
 capacity as administrator of his son’s estate, but he did not take out Letters
of Administration (LA) until nearly two months after the date of the writ.
● Held: The action was incompetent as the plaintiff had no right to sue without the
LA. An executor derives his title from the will of the deceased, and he is allowed
to bring his action for the benefit of the estate of the deceased before the will is
proved, but he must be able to produce probate of the will before judgement
is given. An administrator derives his title from the grant of the letters of
administration, and cannot take proceedings in the administration until he
has obtained a grant.

- Ang Hoi Yin v Sim Sie Hau [1969] 2 MLJ 3

● Facts: Letters of administration had been granted to the plaintiff in the estates of
S.C.K. and S.K.M. but it had not been extracted. The plaintiff in her capacity as
administratrix brought an action against the defendant. The defendant entered
conditional appearance and applied to the court to set aside the writ for want of
qualifying status on the part of the plaintiff.
● Held: As the plaintiff had not extracted the grant of letters of administration, she
had no power to sue as administratrix and therefore the suit was a nullity and
must be set aside.

- P Govindasamy Pillay v Lok Seng Chai [1961] MLJ 89

● The court had granted the order for the grant of administration.
● Issue: Whether a person who has obtained an order from the Registrar for the
grant of letters of administration to issue can be sued in a representative capacity
before the grant is extracted?
● Held: A person who has obtained a grant of letters of administration but who
has not extracted such grant cannot be sued in a representative capacity. It
is the grant that is under seal and not the order of the Court that the grant should
be issued which confers the status.

- Lee Lee Cheng v Seow Peng Kwang [1960] 26 MLJ 1

● Facts: The Plaintiff is the widow and administrator of the estate of Gooi Kim
Kwan (GKK). She sued the defendant, who is the administrator of one Loke Ta
Poh (LTP) for damages for negligent driving. The defendant claimed that the
Plaintiff’s action was not commenced before the expiration of 6 months
from the date on which the defendant took out representation to the estate
of LTP and the Plaintiff’s action was statute-barred pursuant to Sec 8(3)(b).
Letter of administration (LA) to the estate of GKK was granted to the Plaintiff on
19/2/1957 and the LA grant was extracted on 11/11/1957. Letter of administration
(LA) to the estate of LTP was granted on 4/11/1956 and the LA grant was
extracted on 8/8/1957.
● Held: Pursuant to Sec 8(3)(b) of LA- plaintiff’s action was statute barred
because the action was instituted on 17/2/1958. The time ran against the Plaintiff
to bring an action from 8/8/1957, the day the LA grant was extracted.

63
 - Yong Siew Choon v Kerajaan Malaysia [2003] 2 MLJ 150
● Facts: The Government (‘the plaintiff’) commenced an action against the estate
of one Abdul Hamid bin Tun Azmi (‘the deceased’) for the recovery of
outstanding income tax. The defendant, Yong Siew Choon is the widow of the
deceased but has never been the executrix or administratrix of the deceased’s
estate as no letters of representation were ever extracted in respect thereof.
● Held: Per Gopal Sri Ram JCA [1] Although the plaintiff’s action was commenced
in accordance with the permissive provisions of O. 15 r. 6A(1) RHC, it was
thereafter prosecuted in defiance of the mandatory provisions of O. 15 r. 6A(4)
RHC…an action cannot be maintained against the estate of a deceased
person in the absence of the extraction of letters of representation.
Consequently, the plaintiff’s action was an illegality and thus a nullity.

6.2.10. Executor
- An executor can sue even if the grant of probate has not been extracted. But other
people may not sue until the grant of probate has been extracted.
● Meyappa Chetty v Subramaniam (1916) 1 AC 603
● Wakil-wakil Diri Kepada Mahadevi A/P Nadchatiram (Deceased) v Hong
Leong Bank Berhad [2014] MLJU 1387
- This is because an executor derives his title and authority from his will of testator and not
from any grant of probate.
- The executor's right to sue arises at the time of the testator’s death.
- However, an executor cannot be sued before grant of probate is extracted.
● Mohamidu Mohideen Hadjiar v Pithey [1894] A.C. 437
● Meyappa Chetty v Subramaniam (1916) 1 AC 603
○ The executor can commence a suit before the grant of probate is out
because the right to sue is vested upon him immediately after the testator
died.
● Wakil-wakil Diri Kepada Mahadevi A/P Nadchatiram (Deceased) v Hong
Leong Bank Berhad [2014] MLJU 1387
○ It is trite that unlike an administrator, the executor can sue before probate
is extracted.
- In contrast,
● Mohamidu Mohideen Hadjiar v Pitchey (1894) AC 437
○ A creditor of a deceased debtor cannot sue a person named as executor
in the will of the deceased unless he has either administered or obtained
a grant of probate, and a sale in execution of a judgement against such
person does not bind the deceased’s estate. An order for probate without
an actual grant thereof did not prove the will, and an application for
probate did not show an executor’s acceptance of the trusts.

64
6.2.11. Official Administrator
Deceased dies intestate and no personal representative has been appointed
- Sec 39(1) of the Probate and Administration Act 1959: “Where a person dies
intestate his movable property and immovable property until administration is granted in
respect thereof shall vest in the Corporation in the same manner and to the same extent
as it vests in the Probate Judge in England”.
- Corporation in Malaysia refers to the Official Administrator i.e. Amanah Raya Berhad.
- O15 R6A(5A): “Where an order is made appointing the Official Administrator to
represent the estate of the deceased, the appointment shall be limited to his accepting
service of the writ or originating summons by which the action was begun unless, either
on making such an order or on a subsequent application, the Court, with the consent of
the Official Administrator, directs that the appointment shall extend to taking further steps
in the proceedings”.
- The purpose of Order 15 rule 6A is to overcome the difficulties of suing the estate of a
person who died before commencement of action and in whose estate no grant of
probate/ letters of administration had been made (there is no person to sue)
- Once the Official Administrator (OA) has been appointed the Plaintiff may issue the writ
on the OA.
- However, the OA duty is only to accept service of the writ unless the order of
appointment of OA provides otherwise.
- Therefore, OA becomes functus officio upon accepting service of writ. See Re
Amirteymour [1978] 3 All ER 637
- No judgement in default could be taken against the OA. See Re Amirteymour [1978] 3
All ER 637
- The case will be held in abeyance until a personal representative is appointed.
- Selvarajah v Official Administrator [1978] 2 MLJ 108
● Facts: The Official Administrator was sued as representative of the Estate of one
M. (deceased), as the first defendant. The Official Administrator applied to set
aside the writ on the ground that he had no capacity to be sued.
● Held: the writ was set aside because mere vesting of the property in the Official
Administrator does not place him in such a capacity that he can be sued.
- Re Amirteymour [1978] 3 All ER 637
● Facts: Plaintiff obtained judgement in default of appearance after OA was served
and no appearance was entered by OA.
● Issue: whether the judgement regular or nullity
● Held: Judgement was a nullity because OA becomes functus officio once the writ
is served on him.

65
 Executor Administrator Official
Administrator

Appointed By Named in the will Court, if no will or Government or public

executor is trustee
unavailable

Authority Source Will and probate Court (Letter of Legislation or Court

Administration) Order

Circumstances of Valid will exists Intestacy or no No family or eligible

Role executor available private administrator

Usual Candidate Trusted individual Close family member Government/Public

named by the or next of kin Trustee
deceased in his will

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 TOPIC 7 : PARTIES (II)

7.1. Representative Action: Order 15 Rule 12

- Order 15 Rule 12 Representative Proceedings
➔ “Where numerous persons have the same interest in any proceedings…
the proceedings may be begun, and, unless the court otherwise
orders, continued, by or against any one or more of them as
representing all or as representing all except one or more of them”.
The purpose of this rule is to avoid multiplication of actions, with the
attendant cost, in cases where one action would serve to determine the
rights of a number of persons in a question with another party called as
defendant. A series of different actions one after another by different
plaintiffs is no longer necessary in cases where numerous persons have
the same interest in one cause or matter. Under this rule, there must be
the existence of the same interest in a representative proceeding.
- Agi ak Bunglong v Ladang Sawit Bintulu [2010] 4 MLJ 204
➔ The plaintiffs brought a representative action claiming, inter alia, native
customary rights ('NCR') over their land within the defendants' parcel. At
the trial, the defendants submitted, inter alia, that the plaintiffs'
representative action was in fact a trespass action and could only be
brought after the plaintiffs had first established NCR.
➔ Held, allowing the plaintiffs' action with costs:
● All that O 15 r 12 of the Rules of the High Court 1980 ('RHC')
requires is that the existence of 'same interest' in a representative
proceeding.
● In the instant case, the plaintiffs and the persons they represented
all shared the same interest in claiming for NCR land in their
respective communities.
● There was no requirement for NCR to be first established as
contended by the defendants.
● The plaintiffs and the persons they represented shared the same
interest in claiming for a native customary rights in their respective
communities.
- Basic requirements:
a. There must be numerous persons;
b. The parties represented must constitute a defined class, though it is
immaterial that it is fluctuating, provided that it is possible to determine
whether a person is a member of the class;
c. They have common grievance and interest arising under the same contact
or same grant or claim in respect of the same subject matter; and

67
d. The relief sought must not be personal but beneficial to the class whom
the plaintiffs represented as a whole.
- Cases:
1. Duke of Bedford v Ellis [1900] AC 1:
● Lord MacNaughten: A representative action can only
be brought where there is a common interest, a
common grievance, and relief sought which is in its
nature beneficial to all those whom the plaintiff
proposes to represent.
● This principle was adopted in Malaysian cases:
○ Palmco Holding Bhd v Sakapp
Commodities [1988] 2 MLJ 624; and
○ Tang Kwor Ham & Ors v Pengurusan
Danaharta Nasional Bhd & Ors [2006] 5 MLJ
60
2. Palmco Holdings Bhd v Sakapp Commodities [1988] 2 MLJ
624:
● The defendants sought the order of the court to strike
out the plaintiff's writ of summons and that all further
proceedings against them be stayed on the ground
that the plaintiff's action is not properly constituted
under Order 15 rule 12 RHC 1980 in that the plaintiff
is not entitled to sue on behalf of or as representing
all purchasers of palm oil under future contracts.
● Held: In order to succeed in a representative action,
the plaintiff must satisfy three requirements. They are:
○ the plaintiff and those represented by it are
members of a class and that these members
have a common interest;
○ the plaintiff and those it represents have a
common grievance;
○ the relief sought is in its nature beneficial to
them all.
● In the present case, the plaintiff and those
represented by it have satisfied all three
requirements.
● The applications of the defendants are dismissed.
3. Tang Kwor Ham & Ors v Pengurusan Danaharta Nasional
Bhd & Ors [2006] 5 MLJ 60:

68
 ● A workout proposal for the appellant The appellants,
on behalf of themselves and also by way of
representative and derivative action on behalf of the
company, sought leave in the High Court to apply for
judicial review of a workout proposal to settle
non-performing loan (NPL). At the leave proceedings,
the AG and counsel for Danaharta appeared and
opposed the application. The appellants appealed to
the Court of Appeal which had to decide inter alia:
whether the appellants' motion by way of
representative and derivative action was wrongly or
improperly initiated.
● Per Gopal Sri Ram JCA: The derivative action is a
mere variation of the representation rule as applied in
the environment of company law. It is not to be
treated in absolute or rigid terms. The High Court's
decision to dismiss the leave application in limine
because the appellants had brought the application in
a derivative capacity overlooked O 15 r 6(1) of the
RHC. Even if there was a misjoinder in the instant
case, it could not defeat the application for leave in
the present case because there is nothing in O 15 r
12 of the RHC that excludes its application to judicial
review proceedings instituted under O53 of the RHC.
An application for judicial review may be made by an
applicant acting in a representative capacity. The High
Court was therefore wrong in thinking that the instant
application for leave could be dismissed out of hand
on the ground of misjoinder.
4. Vellasamy v Gurbachan Singh [2006] 2 MLJ 715:
● The plaintiffs were the sub-purchasers of some plots
of land ('the said land') from one Syarikat Pembinaan
Perusahaan Kemajuan Bhd ('SPPKB'). The plaintiffs
purported to represent some 213 other
sub-purchasers of plots of the said land. D1 in his
personal capacity bought the said land. One of the
issues that required consideration was whether or not
this suit was a properly constituted representative
action. The defence took the stand that the 213
sub-purchasers represented by the four named

69
 plaintiffs are never identified in the evidence either by
names or the plot numbers they held in the said land.
It was also submitted that some of the agreements
are for the sale of shares and some are for plots of
land; thus there was no common interest. Further it
was submitted that there are 565 sub-purchasers
while the representation in this suit is only for 213
sub-purchasers. In addition, 43 of those
sub-purchasers have entered agreements with
defendants. Thus these 43 cannot be said to have the
same common interest with the 213 plaintiffs. It was
also queried whether these 43 sub-purchasers came
within the 213 plaintiffs.
● Held: The exact identities of the persons whom the
named plaintiffs were representing were not an
impediment to commencing a representative action so
long as they were a class of persons with a common
interest and a common grievance. The representative
action was properly constituted although if the
plaintiffs succeed, they would be entitled to different
measures of relief. The representation action is
merely a device whereby all parties sharing a
common interest and grievance, without being named
as parties, are represented so that the dispute may be
finally determined through a simplified, inexpensive
and convenient vehicle.
5. Kamarudin Merican Noordin (suing for himself and on behalf
of all the members of the Association of West Malaysia Race
Horse Trainers) v Kaka Singh Dhaliwal (sued as the public
officer of the Malayan Racing Association [2011] 7 MLJ 281:
● The plaintiff was a licensed race horse trainer and the
President of the Association of West Malaysian Race
Horse Trainers ('AWMRT'). The defendant‘ is the
secretary and the registered public officer of the MRA
and sued pursuant to s 9(c) of the Societies Act 1966.
The defendant's counsel submitted that the three
requirements of O 15 r 12 of the RHC have not been
satisfied for this representative action to have been
properly brought.

70
 ● The defendant argued that as not all members of the
AWMRT have a common grievance as only about five
would be immediately affected by r 230. Moreover, the
nature of the relief sought by the plaintiff could not be
said to be beneficial to all members, merely because
potentially, and only potentially, some members may
be affected by r 230 at some future point in time.
● Held: Where it is the public officer of a society that
bring a representative action, one can assume that he
would have obtained the consent and mandate of its
members in bringing the action, be it only a single
member is affected. Some members of AWMRT were
presently affected and all might be to some extent
potentially and prospectively affected, which was
sufficient justification to activate the provisions of a
representative action. The court looked at this action
from the perspective of a president championing the
rights of its members in a common solidarity with its
members even though not all may be affected
immediately. Therefore this action has been properly
constituted as a representative action within the
meaning of O 15 r 12 of the RHC.
6. Tunku Dato Seri Shahabudin bin Tunku Besar Burhanuddin
v Lee Tak Suan [2008] 2 MLJ 700:
● The respondents/plaintiffs are ordinary members of
the club. They initiated a derivative action against the
defendants alleging ultra vires, breach of the club's
constitution, breach of trust, breach of fiduciary duty
and negligence. The appellants applied to strike out
the originating summons filed by the respondents.
The basis for the application was that the respondents
were said to have no locus standi and competency to
bring the derivative action on behalf of the club. The
issue which the Court has to decide is whether the
plaintiff's action should be commenced by derivative
action or representative action.
● Held by the COA: The order of the High Court
allowing the plaintiff's action by way of derivative
action is set aside and is substituted by a
representative action under O 15 r 12.

71
 ➢ A derivative action is an action brought by a
shareholder or director of a company in the
name of and on behalf of that company in
respect of a wrong done to the company, rather
than to its shareholders.
➢ It is ‘derivative’ as the party bringing the action
does not have the right to sue, but such a right
is ‘derived’ from that of the company.
7. Atip bin Ali v Josephine Doris Nunis [1987] 1 MLJ 82:
● The plaintiff claimed that the publication of the
contents of this writ had jointly and severally depicted
both UMNO members and the plaintiff as persons of
immoral and un-Islamic principles and accordingly
had brought them into hatred, ridicule, disrepute and
public odium and contempt and subjected the plaintiff
and UMNO members to low and lewd remarks from
the public.
● Wan Yahya J: Representative proceedings cannot be
taken in defamation proceedings. In a defamation suit
the ground of liability for damages must necessarily
differ from one person to another. The requirements
for a representative action was not fulfilled as
defamation is a personal action and a class cannot be
defamed. If every member of an association has the
capacity to take defamation proceedings against
those who defamed their leader, then there will be no
end to tortious litigation in our courts for persons with
the remotest interest might be encouraged to strive
for their chance at winning a share of other people's
damages.
8. Ong Boon Hua @ Chin Peng & Anor v Kerajaan Malaysia
[2010] 3 CLJ 125:
● The first and second plaintiffs were the same person.
The first plaintiff was bringing the suit in his own
capacity as well as a representative of all members of
the Parti Komunis Malaya and all other related
parties. As the second plaintiff, he was suing in his
capacity as the Secretary General of the Parti
Komunis Malaya. The plaintiff claimed that two
newspaper articles had published words that gravely

72
 injured the plaintiff’s character, credit and reputation
and had been brought into public scandal, odium and
contempt.
● Held: The plaintiffs' pleading indicated that the first
plaintiff was suing in his personal capacity as well as
a representative of all members of the Parti Komunis
Malaya and all the other relevant parties. It was
unclear who these 'other relevant parties' were. This
was an unknown party. Defamation involves a right in
personam and close relationship with the person
defamed alone will not give rise to the right on the
part of other persons to sue the defendant. The first
plaintiff's attempt of bringing this action as a
representative of all members of the Parti Komunis
Malaya and all other relevant parties is therefore
misconceived.
9. Ketua Pengarah Jabatan Alam Sekitar & Anor v Kajing
Tubek & Ors and Other Appeals:
● The respondents' complaint related to the Bakun
Hydroelectric Project which was in the process of
being constructed near Belaga in the Kapit Division of
the State of Sarawak. The whole of the affected area
belonged to the State of Sarawak, though about
10,000 natives were in occupation of it under
customary rights. The respondents were three such
natives and they and their ancestors had, from time
immemorial, lived upon and cultivated the land in
question. While the project would deprive them of
their livelihood and their way of life, all those affected
by the project would be resettled by the state
government and their customary rights would be
extinguished in accordance with the Land Code
(Sarawak Cap 81).
● Held: There were persons, apart from the
respondents, who were adversely affected by the
project. There was no special injury suffered by the
respondents over and above the injury common to
others. The action commenced by the respondents
was not representative in character and the other
affected persons were not before the court.

73
 10. Nor anak Nyawai & Ors v Borneo Pulp Plantation Sdn Bhd
[2001] 6 MLJ 241:
● A representative was action taken out by the plaintiffs
for themselves and on behalf of 'all other occupiers,
holders and claimant of native customary land at
Sungai Sekabai againstBorneo Pulp Plantation Sdn
Bhd who had been issued titles to two parcels of land,
the sublessee of the land and the authority that issued
the titles to the lands. The plaintiffs claimed that they
had acquired native customary rights over certain
parts of the lands and that the second defendant had
trespassed and damaged the disputed area. The
issue that the court had to decide inter alias is
whether a representative action was suitable in this
case. It was contended by the defendants that the
action cannot be a representative one as the plaintiffs
are claiming damages and an injunction regarding the
tort of trespass. Learned counsel referred to The
Supreme Court Practice 1997, Vol 1, para 15/12/4
which was of the view that the court has no power to
make an order for damages in a representative
action.
● Held: The plaintiffs' claim included declarations which
made the action a suitable representative action even
assuming that the court could not award damages
since the court could still grant the declaration if the
plaintiffs had established their case. If the plaintiffs
succeed on the merits of their action, then this is a
proper representative action.
○ Order 15 Rule 4(1) – Joinder of Parties
➔ Subject to rule 5(1), two or more persons may be joined together in one
actions as plaintiffs or as defendants with the leave of Court or where–
(a) if separate actions were brought by or against each of them, as the
case may be, some common question of law or fact would arise in
all the actions; and
(b) all rights to relief claimed in the action (whether they are joint,
several or alternative) are in respect of or arise out of the same
transaction or series of transactions.
➔ Joinder is not a matter of right but a matter of discretion.
➔ The court has a discretion to allow joinder of parties to a proceeding.

74
 ➔ The dissatisfied party can apply to object to the joinder.
○ Purpose of the rule on joinder
➔ Market & Co Ltd v Knight Steamship [1910] 2 KB 1021
❖ Under the old practice at common law plaintiffs suing for individual
relief had in general to bring individual actions. But it is evident that
in some cases such actions must to a great extent be mere
repetitions one of the other, and therefore, to avoid unnecessary
expense, various devices were resorted to, by which the result of
one action was made to govern the rights of many plaintiffs. The
rule was altered, and now it clearly gives distinct plaintiffs in certain
cases the right to unite as plaintiffs in one action to enforce
separate rights of action belonging to them individually and not
jointly. This makes it clear that (subject to the control of the court)
persons can unite as plaintiffs though seeking individual relief in
cases where the investigation would to a great extent be identical in
each individual case. The policy of the rule is to avoid needless
expense where it can be done without doing injustice to anyone
○ Common question of law and fact
➔ S Constantine v Social Security Organisation (SOCSO) [1998] 1 CLJ 433
❖ The appellant had joined the two respondents together in the same
action as defendants without obtaining the leave of the court. Under
O 15 r 4(1) of the Rules of the High Court 1980, leave of the High
Court is required if there is no common question of law or fact
involved in the two actions and the rights to the relief claimed in the
statement of claim against each of the respondents are not
concerned with the same transaction or series of transactions.
Here, the appellant's claim against SOCSO and against his
employer were quite unrelated to each other with no common
question of law or fact involved. It appears that his claim against
SOCSOo was for his invalidity pension and meanwhile his claim
against his employer (Lembaga Pelabuhan Klang) was for wrongful
dismissal. There was no common question of law and fact involved.
○ Arising out of the same transaction
➔ Stroud v Lawson [1898] 2 Q.B. 44
❖ The plaintiff claimed damages against directors of a company for
fraudulently inducing him to buy shares in the company. The
plaintiff also claimed on behalf of himself and all other shareholders
a declaration that the declaration of the interim dividend was ultra
vires and illegal.

75
 ❖ Held: The two causes of action did not arise "out of the same
transaction or series of transactions" within RSC, Ord 16, r 1 and,
accordingly, they could not be joined in one action. They are two
separate and distinct causes of action, and do not arise out of the
same transaction or series of transactions. There are different
plaintiffs and different defendants in the two cases. The first cause
of action is that by conspiracy and various fraudulent devices the
directors of the company induced the plaintiff to become a
shareholder. The other cause of action the plaintiff repeats the
allegations as to the payment of dividend out of capital, but without
alleging fraud on the part of the directors. They arise out of different
transactions though they have a feature in common. The separate
causes of action in the present case are not "in respect of or arising
out of the same transaction.
➔ Oxford and Cambridge v Gill [1899] 1 Ch 55
❖ Plaintiffs, the two Universities of Oxford and Cambridge, claimed an
injunction to restrain defendants, who were publishers of
educational and other works, from publishing and selling books or
publications bearing the titles ‘The Oxford and Cambridge
Publications’ or ‘The Oxford and Cambridge Edition,’ and from
using the words ‘Oxford and Cambridge,’ so as to lead to the belief
that the publications of defendants were publications of the
Universities or of either of them, or issued from the University
Presses. Defendants had published a series of books bearing the
titles complained of by plaintiffs:
● The Privy Council held that there was no joint cause of
action, no joint trading by the plaintiffs and therefore the
action cant be jointly instituted by the plaintiff.
● Upon appeal to the Chancery Division, it was HELD that the
action arose out of the same series of transactions; that
common questions of fact would arise, namely, the fact of
publication and the fact that a belief would be induced that
the publications of the defendants were those of the
plaintiffs.
● Consequently the plaintiffs were entitled to join in one action.
● Test to determine joinder of parties
○ Pegang Mining v Choong Sam & Ors:
❖ The Affected Test: Will his rights against or liabilities to any party to the
action in respect of the subject matter of the action be directly affected by
any order which may be made in the action?

76
 ❖ The above test also applies to misjoinder of parties.
This case involved an appeal against a court decision allowing a person
(the first respondent) to replace the original appellant in the case and to
add others (the second respondents) as additional appellants. The court
did not review the main appeal but focused on whether the applicant (the
first respondent) had a valid legal interest in the case. It concluded that the
applicant did have such an interest and should be allowed to participate.
➔ The court dismissed the appeal, emphasising that in a contract
involving three parties, no rights or obligations can be changed or
removed unless all three parties agree.
➔ A rule exists to prevent injustice by ensuring that anyone whose
rights might be affected by the court's decision gets a chance to be
heard.
➔ The court clarified that someone can be added to a case if their
legal rights or obligations related to the case might be directly
impacted—not just their financial or commercial interests.
➔ The test is whether the judgment will directly affect the person’s
rights or liabilities regarding the subject matter of the case.
○ Order 15 Rule 4(2) – Joinder of Plaintiffs
➔ Where the plaintiff in any action claims any relief to which any other
person is entitled jointly with him, all persons so entitled shall, subject to
the provisions of any written law and unless the Court gives leave to the
contrary, be parties to the action and any of them who does not consent to
being joined as a plaintiff shall, subject to any order made by the Court on
an application for leave under this paragraph, be made a defendant. This
paragraph does not apply to a probate action. Therefore, if a number of
persons are parties to a contract and therefore entitled to the same relief,
they must be joined unless the qualification applies. Otherwise, the
defendant may apply to compel the joinder of the persons concerned.
➔ Lewis v Daily Telegraph [1964] 2 Q.B. 601:
❖ Four actions for libel were begun in respect of similar publications
in Daily Telegraph and Daily Mail. In May 1959, the two actions in
which Daily Telegraph Ltd was defendant were consolidated, and
the two actions in which Associated Newspapers Ltd was
defendant were consolidated. The same solicitors acted for Lewis
and plaintiff company. Defendants applied for the two consolidated
actions to be consolidated into one. Differences had arisen
between Lewis and plaintiff company, mainly in regard to costs, and
new solicitors came on the record to act for Lewis and other new
solicitors for plaintiff company. Lewis gave notice of application for

77
 deconsolidation of the four actions. In September 1963, an order
was made for consolidation of the two consolidated actions into
one. On appeal by Lewis seeking deconsolidation so that he and
the plaintiff company should cease to be co-plaintiffs.
❖ Held: The consolidation order of September 1963 should continue,
for there was really but a single question (viz, what defamatory
meaning was conveyed by the words in question and, if justification
were pleaded by defendants, whether it extended far enough) and
accordingly there ought to be a single trial. Moreover on the
pleadings there was no divergence of interest between plaintiffs on
the issue of liability, there was not a conflict of interest between
them on damages, and, as regards costs, consolidation was
appropriate. Separate representation of plaintiffs or common
representation on liability and separate representation on damages,
was not practicable in a libel action and in the circumstances of this
case.
(a) Adding or substituting the Plaintiff
❖ Order 15 Rule 6(4): A person shall not be added as plaintiff without
his consent. Leave from the court is required before another party
can be added as the plaintiff to the proceeding. However, such
leave will not be granted where to do so would be to defeat the
defendant’s reliance on limitation.
❖ Mabro v Eagle Star & British Dominions [1932] 1 KB 485:
➔ The court would not, under RSC Order XVI r 2 allow a
person to be added as plaintiff to an action if thereby the
defence of Statute Limitations (repealed) would be defeated.
❖ Gov of Malaysia v Mohamed Amin bin Hassan [1986] 1 MLJ 224:
➔ In this case there was a collision between a motor car driven
by the respondent and a motor lorry driven by an employee
of the appellant. As a result of the accident the son of the
respondent who was a passenger in the motor car died and
the respondent and his wife, who was also a passenger in
the car were injured. The respondent brought an action in
the Magistrate's Court at Seremban for damages on the
ground of negligence. The action was brought on behalf of
the deceased's estate by virtue of section 8 of the Civil Law
Act, 1956. Subsequently and after the expiry of the limitation
period the respondent applied for an order to amend the
statement of claim by adding himself and his wife as plaintiffs
in their own personal capacity under Order 15, rule 1(4) of

78
 the Subordinate Courts Act, 1980. Leave was granted to
add the respondent himself as plaintiff but leave was refused
to add his wife. The appellant appealed to the High Court
which dismissed the appeal. The appellant further appealed
to the Federal Court.
➔ Held, allowing the appeal (Seah S.C.J. dissenting): what the
respondent did was not correcting the name of a party.
Neither was it a matter of mistake. It was merely the addition
of a new and different party. This is not permissible under
any provision of the Order 15 rule 1, particularly when the
period of limitation affecting the proposed plaintiff had
expired.
○ Order 15 Rule 4(3) – Joinder of Defendants
➔ Where relief is claimed in an action against a defendant who is jointly
liable with some other person and also severally liable, that other person
need not be made a defendant to the action; but where persons are jointly,
but not severally, liable under a contract and relief is claimed against some
but not all of those persons in an action in respect of that contract, the
Court may, on the application of any defendant to the action, by order stay
the proceedings in the action until the other persons so liable are added
as defendants.
➔ Cases:
(a) KL Finance Bhd v Azmi Co Sdn Bhd and Anor [1996] 4 MLJ 650:
❖ The plaintiff sued the first and second defendants for
providing the statement which was a misrepresentation of
fact, acting negligently and failing to exercise due care and
skill in protecting the plaintiff's interest. The defendants on
the other hand averred that the misrepresentation was
caused by one Tang, who gave false information to one M
Gopal, an employee of the first defendant, who in turn had
acted outside the scope of his duties. The first and second
defendants then applied to add Tang and M Gopal as the
third and fourth defendants pursuant to O 15 r 6(2) of the
RHC 1980. Their application was dismissed and the first and
second defendants appealed.
❖ Held: The main object of O 15 r 6(2) of the RHC is to
prevent a multiplicity of proceedings. The court has a wide
discretion to make an order so that all matters in dispute can
be effectively and completely determined and adjudicated
upon. A person who is not a party may be added as a

79
 defendant against the wishes of the plaintiff either on the
application of the defendant or on his own intervention, or in
rare cases by the court.
❖ The plaintiff has the option to join all persons jointly or
severally liable or not. If the plaintiff does not, the defendant
cannot compel him to do so but if he so desires, the
defendant may join in these other persons jointly and
severally liable with him as third parties under Order 16
(Third Party Proceedings).
❖ A person cannot be joined as a defendant if it is merely for
discovery and not primarily an action for discovery. See,
First Malaysia Finance Berhad v Dato’ Mohd Fathi bin
Haji Ahmad [1993] 2 MLJ 497.
(b) First Malaysia Finance Berhad v Dato’ Mohd Fathi bin Haji Ahmad:
❖ The plaintiff's claim against the first, second, third and fourth
defendants was for the purchase price of the shares. By their
defence the first, second, third and fourth defendants
claimed to have paid the purchase price towards the loans
for the benefit of the borrower companies. As against the
fifth defendant, the plaintiff claimed discovery of certain
information, ie the relevant accounts showing the alleged
payment, if any, of the purchase price by the first to the
fourth defendants. The fifth defendant applied to strike out
the plaintiff's claim for discovery against it, contending that
the statement of claim, insofar as it involved the fifth
defendant, did not disclose a reasonable cause of action and
that it was frivolous, vexatious or an abuse of the process of
the court. The learned trial judge refused to strike out the
plaintiff's claim against the fifth defendant and the fifth
defendant appealed.
❖ Held, allowing the appeal: The general rule as laid down in
Norwich Pharmacal Co v Customs and Excise
Commissioners 2 is that discovery to find the identity of the
wrongdoer is available against anyone against whom the
plaintiff has a cause of action in relation to the same
wrongdoer. In this case the learned trial judge was in error in
holding that primarily the plaintiff's claim against the fifth
defendant was an action for discovery ...however, did not by
themselves indicate what the cause of action was upon
which the plaintiff was relying against the fifth defendant. The

80
 judge ought to have held that the plaintiff's action against the
fifth defendant was for discovery alone. Further, the cause of
action pleaded against the first to the fourth defendants was
grounded in contract and not in tort, so that there was no
question of the plaintiff being able to invoke the exception
defined in the Norwich Pharmacal case,2 which related to
tortious acts. The appeal was allowed and the action, insofar
as the fifth defendant is concerned, was struck out.
➔ Joinder of principal and agent as defendants
❖ Wong Peng Yan Benjamin v Genting Bhd [1993] 3 MLJ 713
● After making the option to leave the first defendant out of the
1988 action, the plaintiff was estopped from dragging the first
defendant in for relief similar to that which he had obtained in
the 1988 action. As a result, having sued the agent, the
plaintiff was not in a position to sue the principal for the same
transaction.*
● Bowstead on Agency (15th Ed, 1985): where an agent
enters into a contract on such terms that he is personally
liable on it together with his principal, or enters into a
contract on behalf of an undisclosed principal, and the other
contracting party, knowing or discovering who is the real
principal, elects to pursue his rights against the agent, he is
irrevocably bound by his election and cannot afterwards sue
the principal on the contract.
➔ Joinder of joint tortfeasor
❖ Jayakumar s/o Kuppusamy v Chen Kit Hong [1984] 1 MLJ 376
● The plaintiffs sued the defendants for negligence arising out
of a collision between the car driven by the first plaintiff, in
which the second plaintiff was a passenger, and the lorry
driven by the first defendant. When the case came up for
hearing, the parties agreed that as between the first plaintiff
and the defendants the first plaintiff was 20% to blame for
the accident while as between the second plaintiff and the
defendants, the defendants were wholly liable. The
defendants were ordered to pay damages of $230,871.92 to
the second plaintiff. The defendants claimed that they were
only liable to pay the second plaintiff 80% of the damages
awarded and that the second plaintiff should look to the first
plaintiff to recover the 20% balance.

81
 ● Held, dismissing the defendants' claim: it is a rule of
common law that where injury has been done to the plaintiff
and the injury is indivisible, any tortfeasor whose act has
been a proximate cause of the injury must compensate for
the whole of it. The second plaintiff is therefore entitled to
seek full damages from the defendants alone without
recourse to the first plaintiff at all. Section 10(1)(c) of the Civil
Law Act however, confers a right on the defendants to
recover any contribution from a joint tortfeasor, in this case,
the first plaintiff.
➔ Adding or substituting the defendant
❖ Generally, a plaintiff may sue any person or persons he chooses.
He may choose to sue A, but leave out X from the action as he
wishes.
❖ If it was discovered that it is necessary to add another defendant,
that person may be added by this rule.
➢ Sanderson v Blyth Theatre Co [1903] 2 KB 533
● The action was brought originally against the Blyth
Theatre company alone, to recover a sum of money
for work done and materials supplied in connection
with the defendants’ theatre at Blyth. The statement of
claim alleged that the work was done and the
materials supplied at the request of the company by
their agent, H, the architect employed by defendants
in building the theatre. By their defence the company
denied (amongst other things) that they or their agent
requested plaintiff to supply materials or do work as
alleged in the statement of claim, and also set up
other defences immaterial to be stated in detail.
Thereupon plaintiff took out a summons for leave to
add H as a defendant to the action. Defendant H was
made a defendant under the powers conferred by
Order XVI rules 7 and 11 and an order was made
giving plaintiff liberty to amend the writ, adding the
name of H as a defendant. All persons materially
interested in the subject-matter of the suit ought in
general to be made parties as plaintiffs or defendants,
so that the court might be enabled to do complete
justice by deciding upon and settling the rights of all
persons interested.

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❖ A defendant may also apply to add another co-defendant pursuant
to Order 15 rule 6(2)(b).
➢ Hee Awa v Syed Muhammad & Anor [1988] 1 MLJ 300
● In this case, there was a road accident involving a
motorcycle and a government motor van in which the
pillion rider of the motorcycle was killed and a
passenger in the motor van was injured. The injured
passenger claimed damages for negligence against
the motorcyclist in the Sessions Court and the van
driver and the Government of Malaysia were made
third parties. The parents and administrator of the
estate of the pillion rider (appellants in the appeal)
claimed damages under sections 7 and 8 of the Civil
Law Act 1956 in the High Court against the van driver
and the Government of Malaysia (respondents). The
respondents applied under Order 15 rule 6(2)(b) of
the Rules of the High Court 1980 for an order that the
motorcyclist be joined as a party. The judge of the
High Court ordered the motorcyclist to be joined as a
co-defendant in the action, despite objections by the
appellants. The appellants appealed.
● Held, dismissing the appeal: The respondents'
application to add the motorcyclist as a co-defendant
falls squarely within the terms of Order 15 rule 6(2)(b)
of the Rules of the High Court 1980. The respondents
have a choice to proceed either under Order 15 rule
6(2)(b) or Order 16. There is absolutely nothing in the
Rules of the High Court 1980 to prevent the
respondents from making the choice. The order
allowing the motorcyclist to be joined as a
co-defendant is to ensure that all matters in dispute in
the cause be effectually and completely determined
and adjudicated upon as envisaged by Order 15 rule
6(2)(b) of the Rules of the High Court 1980.
❖ No requirement to obtain the consent of the party intended to be
added as defendant.
➢ Datuk Bandar Kuching Utara v Kuching Plaza Sdn Bhd &
4 Ors [2001] 1 LNS 7
● The Plaintiff then applied for the purchasers of
subdivided parcels of Kuching Plaza to be added as

83
 Defendants to this Suit and that four of them be
appointed to present all the named purchasers. It
was contended that the consent of the added
Defendants and of all the other purchasers were
required before the added Defendants can represent
them.
● Held: To uphold the defendants’ contention would
render the court's discretion conferred by Order 15, r.
12 completely incapable of exercise since it would be
dependent entirely on the whims of the parties
concerned. The rules also do not impose such a
requirement. There is therefore no merit in this
argument.
❖ However, a plaintiff cannot be forced by the application to add
another defendant whom he wishes not to proceed.
➢ Tajjul Ariffin v Heng Cheng Hong [1993] 2 MLJ 143
● A collision occurred involving two motorcycles. The
plaintiff who was a pillion passenger of the motorcycle
driven sued the defendant for damages for personal
injuries arising out of the collision. The defendant had
applied to have Lim Ah Chooi and Lim Yu Hua added
as second and third defendants and that the plaintiff
made the necessary amendments to the statement of
claim to plead negligence against them. The issue
which arose in the appeal was what the ambit of the
court's power upon the application of the defendant in
a running down case to compel the plaintiff to add a
second defendant, against whom the plaintiff does not
wish to proceed.
● Held, dismissing the appeal: The power of the court to
add a defendant on the application of the defendant,
against the wishes of the plaintiff is entirely
discretionary. A plaintiff cannot be forced upon the
application of the defendant, to have a second
defendant against whom he does not wish to proceed
added, for the reason that the negligence of the
intended second defendant is not an issue involved in
the claim he has made and so he should be allowed
to proceed against the defendant of his choice.
Nevertheless, a person who is not a party may be

84
 added as defendant over the objections of the plaintiff
on his own intervention or upon the application of the
defendant or in some cases by the court of its own
motion. But, a defendant against whom no relief is
sought by the plaintiff will generally not be added
against the wishes of the latter. A third party notice is
usually the proper procedure to adopt though such a
defendant can be added in a proper case.
○ Order 15 Rules 6 – Misjoinder and non-joinder of parties
➔ Order 15 Rule 6(1) A cause or matter shall not be defeated by reason of
the misjoinder or non-joinder of any party, and the Court may in any cause
or matter determine the issues or questions in dispute so far as they affect
the rights and interests of the persons who are parties to the cause or
matter.
➔ Misjoinder: When a person has been wrongly joined as a party.
➔ Non-joinder: When a person should have been joined as a party but not so
joined.
➔ This rule allows for the addition, substitution or striking out of persons as
plaintiffs or defendants, intervention or striking out of persons not parties
to the action and for misnomer.
➔ Cases:
1. Tajjul Ariffin bin Mustafa v Heng Cheng Hong [1993] 2 MLJ 143:
❖ The objects of O 15 r 6(2)(b) as to joinder of parties are,
generally speaking, the same as the object of the rules
governing third party proceedings that is to say: (a) to
prevent multiplicity of proceedings and to enable the court to
determine disputes between all parties to them in one action;
and (b) to prevent the same or substantially the same
questions or issues being tried all over again with possibly
different results. No action will be defeated by reason of
mere mis-joinder or non-joinder of any party which is
capable of being remedied and is no defence.
2. Rajamani Meyappa Chettiar v Eng Beng Development Sdn Bhd &
Ors [2016] 4 CLJ 510:
❖ The plaintiff's action could not be defeated due to the
non-joinder of the Director of Lands and Mines Selangor as
a party. Order 15 r. 6(1) of the Rules of Court 2012 should
have been invoked in favour of the plaintiff.
3. Contrast with, Zaidin Abd Ghani @ Zaidin Stothard v Raja Raman
Nair @ Mohd Yusof [2001] MLJU 227:

85
 ❖ Plaintiff sought for various interlocutory reliefs in the forms of
injunctions against the Defendants by way of Summons in
Chambers (Interpartes) dated 8.11.2000. The issue of
non-joinder of parties was raised by the Defendants. The
Defendants contended that interlocutory relief should not be
allowed on the ground of non-joinder of Rahim and Glory
Mantra as parties to the present proceedings. No attempt
was made by the Plaintiff to join Rahim and Glory Mantra as
parties to the present proceedings.
❖ Held: Rahim should be a party to the present proceedings
because the Plaintiff and Rahim entered into the S&P
Agreement as joint purchasers of the 100 shares in question.
As such, the Plaintiff, cannot by himself alone, seek a
declaration on the issue of beneficial interest on the said 100
shares as well as the issue of transfer of additional shares to
the 3rd Defendant in the present suit without joining Rahim.
Non-joinder of Rahim and Glory Mantra to the present
proceedings is fatal to the Plaintiff's application.
○ Order 15 Rule 6(2)
➔ The Court may, at any stage of the proceeding, either on its own motion
or by way of application:-
(a) Order any person who has been improperly or unnecessarily made
a party or who has for any reasons ceased to be a proper party, to
cease to be a party.
(b) Order the following party to be added as the party:
❖ Any person who is necessary to ensure the matters be
effectually and completely determined and adjudicated upon;
or;
❖ Any person whom the court is of the opinion would be
just and convenient to determine if that person could be
added to the cause of action.
➔ The meaning of “at any stage of the proceeding:
1. Before the final judgment i.e. pending proceedings
❖ Shell Malaysia Trading Sdn Bhd v Leong Yuet Yeng [1990] 3
MLJ 254):
● The plaintiff filed a suit against the defendants as
co-administrators of the estate of Lim Chooi Seng.
The defendants' solicitors informed the plaintiff's
solicitors that as a grant had not yet been extracted,
the action was premature. However, the plaintiff

86
 proceeded to enter judgment in default of defence
against the defendants in their personal capacity.
When the grant was finally extracted in 1983, the third
defendant was replaced as co-administrator by one
Lim Chin Joo. The plaintiff applied to amend the
judgment and all pleadings and documents filed by
changing the name of the third defendant to that of
Lim Chin Joo. The application was dismissed by the
registrar. The plaintiff appealed.
● Held, dismissing the plaintiff's appeal: The power of
the court to allow an amendment under O 15 r 6 of
the Rules of the High Court 1980('the Rules') is
discretionary. Order 15 rule 6 only applies to
proceedings where the substitution of any of the
parties to the cause or matter is made before final
judgment. Order 2 rule 1 of the Rules is also not
relevant as this case is not concerned with
non-compliance with the Rules but is a case which
concerned a judgment wrongfully entered into
according to the Rules. Neither does O 20 r 11 apply
as this is not a case in which there has been a clerical
mistake or error. When a plaintiff sues a defendant
and has entered up a default judgment against him
simpliciter the court cannot by the slip rule amend it to
a form of judgment de bonis testatoris.
❖ Contrast with, Frontier-Trading Sdn Bhd v Lebbey Sdn Bhd
(Chan Kwok Chin, Intervener) [2007] 7 MLJ 44:
● The plaintiff was granted specific performance of the
agreement and awarded damages for the late delivery
of vacant possession of the property. After the
conclusion of the trial and judgment had been
entered, the intended intervener filed a summons in
chambers on the ground that he had on 2 September
1999 bought the same factory building (i.e. the
subject matter of the suit) from the defendant. He
alleged that he had paid to the defendant the deposit
and that the balance of purchase price was paid
through a loan secured from Hong Leong Bank
Berhad. The intended intervener also claimed that
the defendant had delivered vacant possession to him

87
 and the intended intervener had rented the property to
a third party. The intended intervener alleged that he
only came to know about the court's judgment in
August 2006 when his tenant informed him that a
person came to the factory and claimed to be the
rightful owner of the property and directed the tenant
to pay the rent to him (the said person) instead of to
the intended intervener.
● Held, allowing the application with costs and granting
a stay of execution of the judgment: even though this
application to intervene was made after the
conclusion of full trial and after judgment being
entered, it is the court's opinion that the intended
intervener should be allowed to intervene. The phrase
of 'at any stage of proceedings' in O 15 r 6(2) of the
RHC carries the meaning that the application to
intervene could be made at any stage of the
proceedings even after the conclusion of full trial and
judgment had been entered provided the applicant
could show that he had direct legal interest with the
subject matter of the suit and that the execution of the
judgment had yet to be completed. The intended
intervener had shown that he had an interest directly
related to the subject matter of the action, a legal
interest. He had through the affidavits provided
evidence that he had paid the full purchase price
through his financier for the said property, and only
waiting for it to be transferred to his name. The court's
judgment clearly affected the intervener's interest. He
should be allowed to intervene. After all, the plaintiff
was at liberty to oppose any application made by the
intended intervener once he was allowed to intervene.
2. Before the final order had been drawn up and perfected
❖ Puncak Permata Sdn Bhd v Tham Weng Hong [2011] 5 MLJ
78:
● The appellant/plaintiff appealed against the decision
of the learned judicial commissioner who allowed the
second respondent/intervener's application to
intervene under O 15 r 6(2)(b)(ii) RHC 1980.

88
 ● The brought a suit against the first respondent
seeking a declaration that the appellant was the legal
and beneficial owner of the property and to set aside
the registration under the first respondent's name.
The first respondent did not file a defence to the
appellant's claim and the court allowed the appellant's
application for leave to enter judgment against the
first respondent. The second respondent later applied
to intervene and be joined as the second defendant in
the suit. The second respondent claimed that he had
entered into a sale and purchase agreement with the
first respondent for the purchase of the property. The
second respondent also claimed that he had paid full
purchase price and was given vacant possession of
the property by the first respondent.
● Held, allowing the appellant's appeal with costs: The
judgment given by the High Court against the first
respondent was based on merits as it was given after
the court heard submissions from the appellant's
counsel and read the cause papers filed. The final
order had been drawn up and perfected. As such the
proceeding had clearly concluded. It was therefore
too late for the second respondent to intervene under
O 15 r 6(2)(b)(ii) of the RHC. The learned judicial
commissioner erred in allowing the second
respondent's application.
❖ United Asian Bank Bhd v Personal of Roshammah [1994] 3
MLJ 327):
● The bank obtained judgment for RM50,324.31 against
the deceased's estate and applied under s 281(2) of
the National Land Code 1965 for an order of sale. The
borrower was named as defendant in his capacity as
the personal representative of the estate. Two days
before the auction, the deceased's children ('the
interveners') applied for a stay pending their
application to be substituted or added as defendants
on the grounds, inter alia, that: they were part owners
of the land.
● Held, dismissing the interveners' application: There
was no evidence to support the interveners' allegation

89
 that they were part owners of the land. The deceased
was registered as the owner of the land and the bank
were bona fide purchasers of their interest for value
and without notice. The order of sale is a final order
unless appealed against. Once it is made, drawn up
and perfected, the court is functus officio and has no
power to set it aside. Under O 15 r 6(2)(b) of the
Rules of the High Court 1980, intervention must be
applied for before the final order is made and a
person is a proper party only if his presence before
the court is imperative for the adjudication.
❖ Contrast with the above case, Tohtonku Sdn Bhd v Superace
(M) Sdn Bhd:
● The applicant raised a preliminary objection at the
hearing of the intervener's application that as the
order of court had been perfected the court could not
review it any longer and the intervener could only
proceed by way of a separate action.
● Held, granting the intervener's application: The order
of the court was given ex parte. An ex parte order is
always a provisional order which is always liable to be
set aside by the court on the application of any person
who is affected by the order.
❖ Liberty Insurance (M) Bhd v Puspen Nazen Arumugam &
Ors [2015] 1 LNS 1207
● The defendant appealed against the decision of the
learned Sessions Court Judge in dismissing his
application to set aside the judgment in default
entered against him. Approximately one month after
the decision of the learned Sessions Court Judge,
Liberty Insurance Bhd. ("the proposed intervener ")
filed an application under )15 R 6 (2)(b) to intervene in
this appeal. The respondents raised a preliminary
objection on the ground that the proposed intervener
was too late in filing an application to intervene at this
stage, ie, during appeal after the judgment had been
perfected by the Sessions Court. The most important
point to consider is whether the application made by
the proposed intervener was made "at any stage of
the proceedings". The counsel for the proposed

90
 intervener submitted that in the present case, there
was an appeal against the decision of the learned
Sessions Court Judge, therefore the decision by the
learned Sessions Court Judge was not final until there
is no appeal. In short, it was contended that an appeal
is still a proceeding within the definition of that
provision.
● Held: In the present case the default judgment has
been sealed and perfected by the Court. It is also trite
law that a default judgment obtained in a proceeding
once perfected is a final judgment. Since the
judgment has been perfected, it has become a final
judgment.
➔ The meaning of “court is of the opinion would be just and convenient:
❖ Kuala Lumpur Finance Bhd lwn Azmi & Co Sdn Bhd [1996] 4 MLJ
650:
● The plaintiff sued the first and second defendants for
providing the statement which was a misrepresentation of
fact, acting negligently and failing to exercise due care and
skill in protecting the plaintiff's interest. The defendants on
the other hand averred that the misrepresentation was
caused by one Tang, who gave false information to one M
Gopal, an employee of the first defendant, who in turn had
acted outside the scope of his duties. The first and second
defendants then applied to add Tang and M Gopal as the
third and fourth defendants pursuant to O 15 r 6(2) of the
Rules of the High Court 1980 ('RHC'). Their application was
dismissed and the first and second defendants appealed.
● Held, allowing the appeal with costs. The main object of O
15 r 6(2) of the RHC is to prevent a multiplicity of
proceedings. The court has wide discretion to make an order
so that all matters in dispute can be effectually and
completely determined and adjudicated upon. A person who
is not a party may be added as a defendant against the
wishes of the plaintiff either on the application of the
defendant or on his own intervention, or in rare cases by the
court of its own motion. The jurisdiction of the court under O
15 r 6(2) is entirely discretionary. Although the plaintiff's
counsel argued that Tang and M Gopal had no nexus with
the plaintiff, considering that there was a specific allegation

91
 against them, this was a situation which was just and
convenient to add them as joint defendants so that the
dispute between the plaintiff and the defendants could be
resolved effectually (see p 655F). Although the defendants
could take third party proceedings, it was a clear principle of
law that they had a choice. The defendants' application to
add the third and fourth defendants was allowed in view of
the fact that a further application by the defendants for a
third party notice would be unjust and inconvenient to the
court in terms of time and to the parties in terms of costs.
○ Order 15 Rule 6(2)(b)(ii) – Intervention
○ Hh
○ Hh
○
● Documents for Execution
○ Once the draft SPA is agreed upon, prepare:
➔ 4 copies of SPA

92