Chapter 2 - Pre-Litigation Issues - Pre-Requisites

Question 1

OVERVIEW

Answer 1

CAUSE OF ACTION

1) What is cause of action
2) When does cause action arise
3) Incomplete cause of action

LOCUS STANDI

1) What is a locus standi
2) Locus standi in enforcing public rights
3) Recent application on locus standi

LIMITATION

1) Policy reasons for limitation
2) Object of limitation
3) Effect of limitation
4) Whether must be specifically pleaded
5) Extension of limitation
6) Limitation period for specific cause of action
7) Equitable remedy
8) Res Judicata

Question 2

CAUSE OF ACTION

What is cause of action

Answer 2

1) Statement of facts - Lim Kit Siang v Government of Malaysia

• statement of facts alleging P’s rights either at law or statute;
• which has been adversely prejudiced by the act of D.

2) Enforceable claim - Nasri v Mesrah
- entire set of facts that give rise to enforceable claim.
3) Factual situation & remedy - Hock Hua Bank Berhad v Leong Yew Chin
- Factual situation that exists which entitle one person to obtain remedy against another person from the court.

Question 3

When does cause of action arise

Answer 3

Lim Kean v Choo Koon

• There is existence of a person who can sue & another who can be sued
• All the facts have happened which are material to be proved to entitle the P to succeed

Question 4

Incomplete cause of action - Effect

Answer 4

O.18, r.19(1)(a)

Question 5

Incomplete cause of action - Examples

Answer 5

1) Incomplete elements - Taib bin Awang v Mohamad bin Abdullah
- HC struck-out the action for malicious prosecution since the elements are not complete
2) Default in repayment of loan - Sio Koon Lin v SB Mehra

Question 6

LOCUS STANDI

What is locus standi

Answer 6

Government of Malaysia v Lim Kit Siang

• a person must satisfy the court that he possesses sufficient interest in the issue raised in the proceedings

Question 7

Locus standi in enforcing public rights

Answer 7

Tan Sri Haji Othman Saat v Mohamed bin Ismail

• It is sufficient to show that the breach of public duty affects the P’s interests substantially or that P has some genuine interest.

Question 8

Recent application

FC, 2018

Answer 8

Tra Mining (Malaysia) Sdn Bhd v Thien Hong Teck & Ors

1) Meaning of locus standi: legal capacity or right to appear before court.
2) Duty of court in determining locus: proceed on the basis that what is alleged in the SOC is true.
3) Jurisdiction to uphold plea of no locus: shall be exercised carefully & in the clearest case with no possibility of doubt.

Question 9

LIMITATION

Policy reasons for limitation

Answer 9

UNFAIR

• It is unfair that D should have claim hanging over him for indefinite time

PROOF BECOMES MORE DIFFICULT

• Time limit should be imposed as proof becomes more difficult over time.

Question 10

Object of limitation

Answer 10

Credit Corporation (M) Bhd v Fong Tak Sin

• DISCOURAGE: to discourage P from sleeping on his rights
• DEFINITE: to have definite end to litigation

Question 11

Effect of limitation

Answer 11

RFD

• REMEDY: it bars P’s remedy to the action;
• FAILURE: P’s action will fail in limine upon plea of limitation by D
• DEFENCE: Provides for absolute defence for D which must be specifically pleaded

Question 12

Whether must be specifically pleaded

STATUTORY DIRECTIONS

Answer 12

• S.4 LA: must be specifically pleaded to operate as a bar.

- O.18, r.8: relevant statutory limitation must be specifically pleaded.

Question 13

Whether must be specifically pleaded

CASE LAWS DIRECTIONS

General Rule

Answer 13

TASJA Sdn Bhd v Golden Approach Sdn Bhd

• PAPA or CLA: can be struck-out without specifically being pleaded
• LA: must be pleaded before it is struck out

Question 14

Whether must be specifically pleaded

CASE LAWS DIRECTIONS

Examples

Answer 14

1) CLA - Kuah Hip Peng
- Court held that if D relies on absolute limitation under CLA, it does not be specifically pleaded.
2) SUMMONS - Tham Kok Onn v Perwira Habib Bank
- S.4 & O.18, r.18 does not apply to summons.

Question 15

Extension of limitation

Answer 15

Lee Lee Cheng v Seow Peng Kwai

• Court does not have discretionary power to extend limitation period.