23rd August 2019
Parliament passed the Limitation (Amendment) Act 2018 [Act A1566] (“LAA 2018”) on 4th April 2018 to amend the Limitation Act 1953 (“LA 1953”) by, amongst others, insert the new Section 6A which will be in force on 1st September 2019.
Prior to the insertion of section 6A, section 6 of LA 1953 provides amongst others, that actions founded on contract or tort, shall not be brought after the expiration of six years form the date on which the cause of action accrued.
The insertion of section 6A through the amendment sought to extend the period of limitation under section 6 LA 1953 up to 15 years in certain circumstances.
The debates in Parliament for this particular amendment disclosed that one of the principle aims of this amendment is the extension of limitation period for latent defects in construction matters. According to the Deputy Minister presenting the 2nd and 3rd Reading of the amending act, the amendments were proposed based on the following main principles (in its original language as per the Parliament Hansard):-
“(a) Peruntukan yang membolehkan had masa dilanjutkan sehingga tiga tahun selepas plaintif mengetahui berlakunya kerosakan pendam bagi kes kecuaian sekiranya kerosakan tersebut tidak diketahui semasa date of accrual;
(b) peruntukan yang menghalang mana-mana pihak dalam memulakan tindakan mahkamah melebihi tempoh 15 tahun daripada tarikh klausa tindakan terakru;
(c) peruntukan berkenaan dengan pelanjutan had masa bagi seseorang yang tidak berkeupayaan untuk membawa apa-apa tindakan sebelum tamat tempoh tiga tahun daripada tarikh dia terhenti menjadi hilang upaya atau meninggal dunia mengikut mana-mana yang berlaku dahulu; dan
(d) peruntukan yang mengecualikan kes yang melibatkan maklumat yang disembunyikan secara fraud daripada kerosakan pendam yang melibatkan fraud.”
In summary, section 6A of LA 1953 will have the following effect:-
(a) extension of limitation period in cases of negligence, not involving personal injury;
(b) the “starting date” to compute limitation is the earliest date on which the plaintiff had both the knowledge required to bring an action for damages and knowledge of the right to bring such action;
(c) action shall be taken within three (3) years from such starting date; and
(d) action must be brought before the expiration of fifteen years from the date on which the cause of action accrued;
For clarity, section 6A (2) and (3) provided the following illustrations:-
a) C bought a house from D on 2000. In 2010, C discovered a crack which damaged the walls badly. A building report made by a consultant revealed that the cracks had occurred in 2002, two years after C moved into the house. C has three years from 2010 to file an action in court against D for damages.
b) C bought a house from D on 2000. In 2006, C discovered a crack which damaged the walls badly. A building report made by a consultant revealed that the cracks had occurred in 2002, two years after C moved into the house. C has three years from 2006 to file an action in court against D for damages
c) B bought a house from the Developer on 2000. In 2016, B discovered a crack which damaged the walls badly. A building report made by a consultant revealed that the cracks had occurred in 2003, two years after B moved into the house. B has less than three (3) years from 2016 (cause of action accrued) to file an action in court against the Developer for damages since the accrual of the cause of action was in 2003 hence the limitation of fifteen (15) years will end in 2018.
d) C bought a house from D on 2000. In 2017, C discovered a crack which damaged the walls badly. A building report made by a consultant revealed that the cracks had occurred in 2001, one year after C moved into the house. C cannot commence an action because he has already exceeded the fifteen-year limitation period.
APPLICATION OF SECTION 6A
In order to enjoy the extension proferred by Section 6A, the Plaintiff will need to proof, in all likelihood with assistance of experts, that the claim is premised on negligence and was discovered within the 15 year period from the accrual of cause of action. The prospective Plaintiff will also need to commence its action within 3 years from discovery that the damages suffered is premised on negligence.
Although the illustration provided under the Act appears to be centered on damages suffered by a purchase viz the developer, the Act itself does not confine the extension to such cases. In other words, it may be applied to other cause of action for negligence..
PROSPECTIVE OR RETROSPECTIVE?
From the saving and transitional section of the amending act, it appears that this section applies retrospectively. In other words, once this section takes effect, it will apply even to existing cause of action for negligence not amounting to personal injury, as long as the action or proceedings has not commenced or are pending immediately before the section comes into force:-
“5. (1) Where on the date of coming into operation of this Act any cause of action for an action under section 6a has accrued, the provision of the principal Act as amended by this Act shall apply.
(2) Any action or proceedings commenced or pending immediately before the date of coming into operation of this Act shall, after the date of coming into operation of this Act, be continued as if the principal Act had not been amended by this Act.”
The new amendment was gazetted on 4th May 2018 and will take effect on 1st September 2019.
If you have any questions or comments on this article, please contact:-
Yasmin Natasha binti Yusri Kamaruzaman
[T] +603 6207 9331
Muhammad Asyraf Abd Aziz
[T] +603 6207 9331
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