Valid cause of action

• Meaning of cause of action: Distillers Biochemicals v Thompson – “cause of action” = act on the part
of the D which gave the P cause of complaint
• Lim Kean v Choo Koon – 3 elements:
a) Person who can sue
b) Person who can be sued
c) Material facts to entitle the plaintiff to succeed
• In tort action, cause of action accrues when the damage was suffered, which is from November
2016. Hence, it is within the 6 years limitation period as provided under s.6(1)(a) LA 1953
• As far as the 12-year-old minor is concerned, s.24 LA 1953 provides for extension for person under
disability.
• Hence, there is a valid cause of action.
• Tort of Negligence: duty of care, breach of duty of care, causation and damage
• Breach of statutory duty: putting equipment on the rooftop

Plaintiffs
• Ali and his wife, Siti as individual has right to sue in their own name, or may sue by appointing a
solicitor under O.5 r.6(1) Rules of Court 2012
• For Ali’s 12-year-old child, by virtue of O.76 r.2, he may sue by appointing a litigation representative
who shall act by a solicitor
• [EXTRA] O.76 r.3(7)(a) – Form 188 and O.76 r.3(7)(c) – Form 189
• Thus, Ali, his wife Siti and their 12-year-old child should be named as plaintiffs.

Defendants
• If the plaintiffs intend to sue, they shall make sure that the relevant defendant are named in the
action. The relevant defendant would be person who is directly involved in the cause of action.
• The 1st defendant would be Wong who is the sole proprietor of Zon Contractors, O.77 r.9 states that
Wong may be sued in his personal name or may be sued in business name, i.e. Zon Contractors
• Moreover, ABC Mobile Berhad is tenant which is a company incorporated under the Companies Act
2016, and a company can be sued in its registered name with representation by a solicitor under O.5
r.6(2), as it is a separate legal entity under s.21 Companies Act
• It is also reasonable for Persatuan XYZ to be sued who is the owner of the building. s.9(c) Societies
Act 1966 – society cannot be named as defendant, should name the registered public officer or
office bearer. In the event the action is not successful against Persatuan XYZ, chances are the
plaintiffs may have to pay the costs of the D3 with a possibility of recoverability from losing D1 and
D2 (Bullock Order).

[EXTRA] **SEE BULLOCK & SANDERSON ORDER !!!! If Plaintiffs successfully sue D1 and D2, but sue D3
failed. If P say don’t want to pay D3, or will pay D3 but want to recover from D1 D2, and whatever P
pay to D3 because lose against D3, he want to recover also from D1 D2. Ques: can the cost be
recovered by the P from the losing defendants (D1 D2)? What’s the criteria if P wants to recover the
cost paid by P to D3, from D1 and D2???? It must be reasonable in the circumstances to sue D3.
• Under s.65(1)(a) Subordinate Courts Act 1948 – Sessions Court has unlimited monetary jurisdiction
to try actions involving motor vehicle accidents, landlord-tenant or distress action. However, for
other civil actions as in the facts, court has jurisdiction for claim not exceeding RM1 million
(s.65(1)(b) SCA 1948)
• Since Ali and his family intend to claim in excess of RM1 million, the action should be file in the High
Court.
• However, Ali wants to keep his legal costs low and would prefer if the claim is filed in the Sessions
Court. The exception will be s.67, he can relinquish his claim but it’s not beneficial for Ali to do so.
• The better option would be to go under s.65(3), where claim exceeds the monetary limits, parties
may consent in writing, then the matter may be tried in the Sessions Court. However, there is a
need for consent from both parties, i.e. the plaintiff and defendant, in which case the defendant
may agree simply because it will keep his cost low looking at the liability.
• As s.65(3) only provides for the jurisdiction to try, question then is whether the Sessions Court can
award beyond its monetary jurisdiction. In Mustafa Shuib v Zakaria, when the court can try with the
consent of the parties, essentially the court should have the jurisdiction to award.

• If the matter is started in the Sessions Court, it must be brought in the local limits/jurisdiction of the
courts. Otherwise, the opposite party may apply for a stay (para 2(1) 3rd Schedule SCA 1948)
• The action must be instituted in the district where the cause of action arose, which on the facts, in
Kuala Lumpur
• Alternatively, action shall be instituted where the defendant resides or has place of business, but
the defendant’s place of business is scattered all over the states, which is Penang, Putrajaya and
Ipoh.
• Thus, it is most appropriate to file the action in Sessions Court of Kuala Lumpur.
• O.6 r.7(1) – the writ is valid for 6 months beginning from date of its issue, Roy filed the writ on 12th
June 2021, thus the writ expires on 11th December 2021.
• As the writ has been expired, Roy may seek to renew the writ, but O.6 r.7(2A) provides that writ
must be renewed before expiry of the writ, therefore the writ cannot be renewed. As seen in DYAM
Tunku Ibrahim Ismail v Datuk Captain Hamzah – the word “must” is used in O.6 r.7(2A), thus it is a
mandatory requirement, neither it can be cured by O.1A.
• However, renewal after limitation has expired would only be allowed in the most exceptional
circumstances. Kleinwort Benson Ltd – renewal after expiry allowed for good reason. OTF, Roy
attempted to serve the writ before expiry of the writ on 3rd December 2021 but 3rd partner evaded
the service. Hence, this is likely a good reason for the renewal.
• Even if the writ was not successfully renewed, Roy can actually file a fresh writ against the 3rd
partner who had evaded service, and go by way of substituted service
• Under O.62 r.5, substituted service can be effected if it is impracticable for any reason to serve the
writ personally on the defendant. Roy should apply by notice of application supported by affidavit
under Form 133.
• Practice Note 1/1968 should be followed which provides for steps to be taken before Roy can apply
substituted service. Roy should perform 2 attempts of serving the writ on the weekdays, at
reasonable hours at 3rd partner’s premises
• [EXTRA] Then, Roy will be able to consolidate the action under O.4

*Consolidation = 1 P, different D ; Joinder = 1 writ has 2 causes of action

• The action of breach of contract which occurred on 15th January 2015 has not exceed the 6 years
limitation period (s.6(1)(a) LA 1953), as suit has been filed on 6th April 2020
• The application by Plaintiff on 29th November 2021 to amend the writ and statement of claim is
made after the close of pleadings, and trial date has already fixed on 30th December 2021
• According to O.20 r.3, amendment after the close of pleading require leave of court. Question is
then whether the court will grant such leave under O.20 r.5.

(i) Sio Koon Lin – amendment would relate back to the date of the writ. OTF, when Plaintiff file the suit
on 6th April 2020, the action has not accrued yet, it only accrues in June 2020, thus this amendment
will not be allowed. It would against the doctrine of relation back if amendment is allowed.
Simetech (M) Sdn Bhd – The cause of action must arise before a writ is issued and no amendment is
allowed after the issue of the writ. By allowing amendment would defeat the limitation period set in
(ii) Hollis v Burton – amendment to withdraw an admission consciously made will not be allowed
(iii) O.15 r.6(2)(b)(i) – substitute defendant is allowed
➢ As limitation period has set in, Credit Corp (M) Sdn Bhd v Fong Tak Sin – application to add or
substitute a new party after expiry of limitation period should not be allowed
• Hong Leong Finance Bhd v Low Thiam Hoe – under the new case management regime, the court
intends to ensure just, expeditious and economical disposal of an action. Parties would have gone
through few rounds of pre-trial case management, plaintiff should have at least indicated the
amendment, but that has not been done.

• Garnishee proceedings
• Plaintiff is judgment creditor who has judgment sum of RM140,000.00 against the Defendant who
will be the judgment debtor.
• O.49 r.1(1) – must show “any other person within the jurisdiction (garnishee) is indebted to the
judgment debtor”. OTF, the court is not indebted to the judgment debtor, the sum of RM150,000.00
is still in the credit of the Defendant.
• O.49 r.9(1) – where money is standing to the credit of the judgment debtor in court, the judgment
creditor shall not be entitled to take garnishee proceedings in respect of that money. However,
Plaintiff may apply to court by a notice of application for an order that the money is sufficient to
satisfy the judgment sought to be enforced and costs of the application be paid to the Plaintiff.
• O.90 r.9
• Cheong Heng Loong Goldsmiths (KL) Sdn Bhd – money of the judgment debtor(insured) in an
insurance policy cannot be attached
• O.22B Offer to Settle
• Offer to settle is not an admission to liability, it is an offer of compromise made without prejudice. It
is also an offer to reduce the cost of the litigation, especially so if the Plaintiff were to recover lesser
than the amount that has been offered
• O.22B r.10(a) – if in the case of an offer made by the Plaintiff, O.22B r.9 will apply
• O.22B r.11 – Dr. Wong may make to Dr. Raj an offer to contribute in Form 37
• By doing that, in the event they were to get less, O.22B r.9 will apply, since the plaintiff recover less,
bulk of the costs have to be borne by the plaintiff as far as possible Wong is concerned. However,
Dr. Raj have to pay the cost to the plaintiff. Whatever cost that Dr. Wong have to pay which is only a
small portion of it, that also Dr. Raj have to indemnify him.
• s.21 Limitation Act 1953 – charge action, 12 years from the date when the right to receive the
money accrued
• CIMB v Sivadevi Sivalingam HIGH CHANCE EXAM !!!!
• Sivakadatcham A/L P Sethuram Vandayar V Cimb Bank Bhd – VERY BIG CHANCE COMING OUT
IN EXAM !!!!! pg 134 revision material
• O.83 r.2(2) – 4 clear days before first hearing
• O.83 r.2(3) – endorsed on the outside fold of the copy of the affidavit served on the D a notice
information the D that the P intends at the hearing to apply for an order to the D to deliver up to the
P possession of the charged property.
• O.83 r.2(4) – serve to D not less than 2 clear days. Cannot telephone call and 1st Dec 2021 to 3rd Dec
2021 is not 2 clear days, only 1 clear days
• O.83 r.2(5) – affidavit to prove already served to D
• O.83 r.3(1) – for delivery of possession or payment of money.
• O.83 r.3(2) – Affidavit shall exhibit a copy of the charge (Form 16A). OTF, letter of demand exhibited,
copy of loan agreement is contract between creditor and borrower, NOT relevant, as charge not
exhibited
• O.83 r.3(3) – particulars of the amount remaining due must be stated in the affidavit. OTF, the
amount that was allegedly due from Wong was not particularized in the Affidavit.
• O.83 r.3(4), (5) not applicable
• O.83 r.3(6) – must prove that the money is due and payable and give particulars in (3)
• Thus, Wong can raise objections that Biz Credit didn’t follow procedural requirement
• O.15 r.6(1) – action shall not be abated, court to decide whether the parties that is named in the
action is liable or not. It is not for the court to interfere and decide who should or should not be
joined as a party. Hong Leong Finance Bhd v Staghorn
• Apportionment of liability, court to decide how much. Chong can be joined as a party
➢ O.15 r.6(2)(b)(i) – Chong is person who ought to have been joined as a co-defendant
➢ Maliak, Taijul Arrifin and Hee Awa
➢ O.15 r.8 – consequential provision to amend
➢ If P don’t want to amend the SOC, then P will lose out
• Third-party proceedings: O.16 r.1(1)(a) Contribution from Chong. Leave required to issue 3rd party
notice because defence served: O.16 r.1(2)
• O.12 r.4 – 14 days from service of writ and SOC
• P may enter Judgment in default of appearance under O.13
• O.13 r.7(1) – P shall produce a certificate of non-appearance in Form 12, …
• R.56 of Legal Profession (Practice and Etiquette) Rules 1978

(i) RM3mil, O.13 r.1, enter final judgment under O.13 r.8 (liquidated demand), final judgment means
liability and quantum has been established
(ii) (iii) : O.13 r.3 – interlocutory judgment, want delivery of the property
(iv) interlocutory judgment, unliquidated damages
➢ O.13 r.5 – mixed claim
• How to enforce delivery? Writ of delivery or writ of specific delivery if insist/purely want the
machines, O.45 r.4

• O.14A r.1 – to determine question of law or construction to be substantially disposed off

• Kerajaan Negeri Terengganu v Petroliam Nasional Bhd – post question of law appeal till FC
• Dream Properties
• Objection by Inland Ltd is not valid and shall not be upheld, the 6 questions of law can be
determined under O.14A, number of questions that is to be referred does not really matter.
• Malayan Insurance – how difficult the question is, it doesn’t matter
• Advise PNB If the 6 questions have been disallowed, can the HC’s decision be appealable? It will be
interlocutory appeal, so long as it is not a ruling, if it is an order which is interlocutory in nature, OTF
no trial as yet, it’s during case management. Ruling is not appealable, so long as it’s an order it can
be appealed against. Apply Kerajaan Negeri Terengganu v Petroliam Nasional Bhd
• s.3 – “ruling” defined
• Security for costs O.23 – concern of the defendant? if he is successful, unable to recover the cost
because P is a foreigner
• Test: if having regard to all the circumstances of the case (entirely discretion of court)
• Adarsh Pandit v Viking Engineering – Aru pleaded that he has spent all his monies to buy the
materials to be supplied under the contract
• Faridah – just because they have reciprocal enforcement judgment, that does not mean that it is the
ground to refuse security for cost
• Sir Parkinson – reasonable prospect or success of the P’s claim (factor to look into)
• Repudiated the contract? Can this be done?
• O.23 is not exhaustive, there can be other laws providing for security for costs such as AA 2005, CA
2016
• No, oral testimony of the witness cannot be received by the Court of Appeal. Fresh evidence at the
appeal cannot be tendered
• S.69(1) CJA 1964 – Court of Appeal has power to receive further evidence
• S.69(2) – fresh evidence is admissible in cases of interlocutory appeal
• However, s.69(3) – where the appeal is after a trial, then fresh evidence can only be admissible with
the leave of Court of Appeal and on special grounds
• When can the leave be given? Special grounds can be seen in Ladd v Marshall applied in Lau Foo
Sun – evidence is not available at the trial, it would influence the decision, the evidence is credible.
Test: There must be due diligence O.55 r.7 – at the hearing of any appeal, fresh evidence shall not
be admissible. OTF, New evidence was available (the evidence was there, it’s just that D could not
located the whereabouts of the witness) and no reasonable diligence have been done (OTF, doesn’t
seems like D have done any reasonable diligence)
• All evidence must be given at the Court at the 1st instance, Court of Appeal is appellate court where
its function is re-hearing based on record of appeal, which is hardcopies of notes of proceedings
taken during the trial. COA basically will not really want to hear fresh evidence, because the decision
is made by the judge relying upon the evidence that was available at the court of 1st instance.
• Hence, no oral testimony of the witness can be received by the Court of Appeal.
• Can strike out part of the pleadings?
➢ O.18 r.19(1) – court may order to struck out “anything in any pleading”
• If take out unsubstantiated and irrelevant … part, in the Statement of Defence, left defence denied
negligent, hence cannot strike out the pleading as there’s still a reasonable defence.
• Pertamina v Kartika Ratna Tahir
• Remind P that no affidavits is available too
• Bandar Builder Sdn Bhd – court should not summarily dismiss this action, should give D an
opportunity to bring his case in court. Mere ground that case is weak is not a ground for striking out.
O.18 r.19 is draconian, only in plain and obvious cases, the court will strike out the pleading.
• D may make a submission of no case to answer i.e. D saying that P have not discharge his burden of
proof
• Submission of no case to answer simply means that P have not discharge his burden of proof
• When D make this submission of no case to answer, D’s counsel must be put on election that he will
stand by his election if the court were to find that the D is liable, otherwise the D is still within his
right to call for testimony (Yuill v Yuill)
• In such a case, the D is given a second bite on the cherry, which is actually unfair to the P, because
the standard of proof that is required in a civil case is Balance of probabilities, when the D knows
that the judge already make a ruling that the D is liable, he will just call in enough evidence in order
to tilt the scale in his favour.
• Any judgment which has been drawn up/perfected can only be reopened on appeal or where there
is an express provision made in the Rules: Hock Hua Bank Bhd
• However, Badiaddin bin Mohd Mahidin – the court has inherent jurisdiction to reopen a judgment
which has already been perfected where the judgment is made in breach of a substantive provision
of a written law or where there is a breach of the rules of natural rights.
• Where judgment has not been sealed/perfected, the judge still retains his jurisdiction to alter, vary
or modify the judgment because the court has not been functus officio, functus officio only comes in
upon the perfection / judgment has been sealed: Chua Weng Meng
• Therefore, since the judgment has not been sealed, the judge have inherent power to alter or vary
the judgment. P have to apply to court to seek an appointment with the judgement to rectify the
oversight where the judge can actually recall the judgment

• Cause of action meaning in Lim Kit Siang

• Lim Kean v Choo Koon – 3 elements
• Cause of action normally completes when all the facts have happened which are material to be
proved to entitle the P to succeed
• An example would be in case of negligence, there is duty of care, breach of duty, causation and P
has suffered damage, then cause of action is deemed complete
• In contract, cause of action completes when there is breach of contract