1. ) Mohamad Amin Bin MD Hashim v 1. ) Tan Bing Hua (WA-11BNCvC-65-11/2022)

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1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF KUALA LUMPUR CIVIL APPEAL NO.: WA-11BNCvC-65-11/2022

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Jadual A, B, C and D. [9] During the trial, four (4) witnesses were called by the Plaintiffs and five (5) witnesses by the Defendants. Plaintiffs’ Contentions [10] It was the Plaintiff’s contention that the fraud and conspiracy to defraud were only discovered in 2017, after a hostile take-over by the 2 former partners. Hence the Plaintiffs employed section 29 of the Limitation Act 1953 (Act 254) that time does not run until they discovered the conspiracy to defraud. Defendants’ Contentions [11] The Defendants contended that the occasioned claimed by the Plaintiffs happened 20 years ago. As the Writ was filed on 31/12/2020, this action which was founded on tort was clearly time-barred by the S/N urqSRbsdVEWEjvkETIsf/w statutory 6 years limitation period under section 6(1)(a) of Act 254 which prescribed such limitation. Issues [12] There were various issues raised by both parties apart from limitation including whether P2 has locus standi, conspiracy to defraud by the Defendants and that D1 has breached his fiduciary duties. [13] Having read the cause papers and parties' written submissions and having heard and considered the oral submissions by both the learned Counsels on all the issues raised, this Court is of the view that the one issue that will determine and dispose off the appeal is whether the Plaintiffs' case was caught by the statute of limitation. [14] As such, this Court will only deliberate on the issue of limitation as this was the sole ground that this appeal was dismissed. Analysis and Findings Whether the claim was time barred? [15] Section 29 of Act 254 provides that the limitation period might be postponed if the cause of action is-S/N urqSRbsdVEWEjvkETIsf/w i) based on fraud of the defendant; ii) concealed by the defendant; or iii) an action for relief from the consequences of a mistake. [16] Section 29 of the Limitation Act provides- “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.”. [17] In Thameez Nisha Hasseem v. Maybank Allied Bank Berhad [2023] 4 MLRA 492; [2023] 4 MLJ 145 (FC), it was held-S/N urqSRbsdVEWEjvkETIsf/w “[32] The LA 1953 is therefore a law of general application, regulating the limitation period for commencing a cause of action - generally at either six or twelve years. It actually was actuated by the desire of the government at that time, "to sweep aside this vast compilation of various types of action leading to interminable argument and in many cases gross injustice by substituting it with a simple and uniform system which can be understood" by all and sundry.”. [18] In the case of Credit Corp (M) Bhd v. Fong Tak Sin [1991] 1 MLRA 293; [1991] 1 MLJ 409, the Supreme Court elaborated on section 29 of the Limitation Act and held- “[18] This provision was inserted to protect a plaintiff who was ignorant of his right of action in the special case of fraudulent concealment, and to overcome the difficulty that time would otherwise be running against him, unknown to him. As a general rule as stated in the notes in Halsbury's Statutes of England and Wales (4th Edn) Vol 24 to s 32 of the English Limitation Act 1980 (which is in pari materia with s 26 of the English Limitation Act 1939 which is in turn in pari materia with S/N urqSRbsdVEWEjvkETIsf/w s 29 of our Limitation Act 1953) it is stated that s 29(1)(c) applied "to an action at common law to recover money paid under a mistake of fact or to an analogous claim in equity for money paid under a mistake of fact or law". [20] In RB Policies at Lloyd's v. Butler [1950] 1 KBD 76 Streatfield J explained the rationale of s 26 of the English Act as follows: This section was inserted to protect a plaintiff who was ignorant of his right of action in the special case of fraudulent concealment, and to overcome the difficulty that time would otherwise have been running against him, unknown to himself. But for the section, time would have run against him from the accrual of his right of action, for it is to be noted that the section, even in the case of fraudulent concealment, does not say that the cause of action shall not accrue until the fraud is discovered, but simply that "time shall not "begin to run" until that event. [31] The doctrine of limitation is said to be based on two broad considerations. Firstly there is a presumption that a right not exercised for a long time is non-existent. The other consideration is that it is necessary that matters of right in S/N urqSRbsdVEWEjvkETIsf/w general should not be left too long in a state of uncertainty or doubt or suspense. [32] 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 reipublicae ut sit finis litium that in the interest of the State there must be an end to litigation. The rationale of the limitation law should be appreciated and enforced by the Courts.” [19] In this context, the Plaintiffs must provide a sufficient explanation of the delay particularly as to why the audit was only conducted at a much later time (2017) when it could have been done earlier (2000-2002). Further, it is only logical that in order to operate, a legal firm needs to renew its licence which requires an annual audit exercise. [20] In this regard, the case of Tenaga Nasional Berhad v SM Pembinaan Sdn Bhd [2000] MLJU 600 which was cited by the Defendants counsels, held that the phrase “reasonable diligence” means “diligently do something as common people”. Reasonable diligence "bermakna membuat sesuatu dengan tekun atau rajin oleh orang biasa S/N urqSRbsdVEWEjvkETIsf/w (lihat Peco Arts Inc. v. Hazlitt Gallery Ltd [1983] 3 All ER 193).”. It is the level of care and effort that a person of ordinary prudence would take in a given situation. [21] In the case of Sa'adi Ibrahim & Anor v. Liew Han Sin & Anor [2006] 2 MLRH 310 (CA) it was held- “[10] Halsbury's Laws of England, 4th edn, vol. 28 at p. 314, para. 694 states as follows: 694. Court's power to override time-limits. If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which (1) the provisions in respect of the time-limit for personal injury actions or actions under the Fatal Accidents Act 1976 prejudice the plaintiff or any person whom he represents and (2) any decision of the court would prejudice the defendant or any person whom he represents, the court may direct that those provisions are not to apply to the action or are not to apply to any specified cause of action to which the actions relates. S/N urqSRbsdVEWEjvkETIsf/w In so acting, the court must have regard to all the circumstances of the case and in particular to (a) the length of and the reason for the delay on the plaintiff's part; (b) the extent to which having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed; (c) the defendant's conduct after the cause of action arose including the extent, if any, to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant; (d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action; (e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the defendant's act or omission to which the injury was attributable might be capable at that time of giving rise to an action for damages and (f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received. In S/N urqSRbsdVEWEjvkETIsf/w applying these principles the court's discretion is unfettered.”. [22] It was undisputed that the cause of action in relation to the billing or unbilled legal work occurred between the years 2000 to 2002. However, this Court finds that the Plaintiffs have failed to act with reasonable diligence to discover the fraud, if any. [23] Thus, this Court finds that the issue on limitation raised by the Plaintiffs does not come under section 29. The delay/latches of diligent actions by the Plaintiffs did not give rise to stop time from running as there was an inordinate delay which the Court could not find any evidence of fact for a reasonable explanation in regards to the delay. [24] In conclusion, after careful scrutiny and judicious consideration of all the evidence before this Court, including the written and oral submissions of both parties, the appeal is dismissed with costs. (SUZANA BINTI MUHAMAD SAID) Judicial Commissioner High Court of Malaya Kuala Lumpur S/N urqSRbsdVEWEjvkETIsf/w Date 26 October 2023 COUNSELS Solicitors For The Appellant Tetuan Amin-Tan & Co No. 11, 11-1 & 11-2, Jalan Pantai Murni 6 Pantai Dalam 59200 Kuala Lumpur Solicitors For The Respondent Tetuan Ting Asiah & Co. C-2-1 & C-2-2, Encorp Strand Garden Office, No 12, Jalan Pju 5/1, 47810 Kota Damansara, Petaling Jaya, Selangor S/N urqSRbsdVEWEjvkETIsf/w