Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 at p 347 where, it was held that to invoke the doctrine of estoppel, all a person has to prove is there is inducement by other party to act in a certain manner. As stated at page 347 it was observed that: “The traditional view adopted by jurists of great learning is that a litigant who invokes the doctrine must prove that he was induced by the conduct of his opponent to act in a particular way. All that a representee… need do is to place sufficient material before a court from which an inference may fairly be drawn that he was influenced by his opponent’s actings. Further, it is not necessary that the conduct relied upon was the sole factor which influenced the representee. It is sufficient that ‘his conduct was so influenced by the encouragement or representation …that it would be unconscionable for the representor thereafter to enforce his strict legal rights (per Robert Goff J in Amalgamated Investment [1982] 1 QB 84 at p 105).” (emphasis added) [27] In Alfred Templeton & Ors v Low Yat Holdings Sdn Bhd & Anor [1989] 2 MLJ 202, the plaintiff was led to believe that they have a right of way and their right was acknowledged by the defendant in a meeting. His 14 Lordship Justice Edgar Joseph Jr J (as he then was) in adjudicating upon this issue of estoppel and its effect on limitation, held that one can estop oneself out of the Limitation Act by conduct at page 244. [28] His Lordship's careful exposition and analysis of the law is reproduced in extenso below for a fuller appreciation of the development of the doctrine of estoppel: “I must lastly consider whether one can estop oneself out of the Limitation Act. I confess this is a fine point of law which is not free from difficulty. In Combe v. Combe [1951] 2 KB 215, Denning LJ (as he then was) enunciated the doctrine of promissory estoppel in these terms: ... where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance had been made by him... 15 The language of the learned judge would seem apt to deal with a defendant who, it is alleged, has caused a plaintiff to delay proceedings. Moreover, the so-called equitable proprietary estoppel has been expanded to create a cause of action. In other words, it can be used not just as a shield but also as a sword. I have, when considering the plaintiffs' claim to a declaration as to entitlement to an equitable easement, referred to an array of cases to illustrate the propositions that rights arising from proprietary estoppel can be given effect to in various ways. I have in mind especially the cases where the court has made orders analogous to specific performance by directing the transfer to the promisee of the property or some other interest in the property in question. In particular, I have in mind cases such as Crabb v. Arun District Council [1975] 3 All ER 865, Duke of Beaufort v. Patrick (1853) 17 Beav 60, Dillwyn v. Llewelyn [1862] 4 De GF & J 517 and Thomas v. Thomas [1956] NZLR 785 which I have already discussed. Only six years ago, in Amalgamated Investment and Property Co. Ltd. v. Texas Commerce International Bank Ltd. [1982] QB 84 Lord Denning emphasized the return to estoppel as a sword when he 16 synthesized the cases and announced that the doctrine of estoppel had become "overloaded" with cases and that "the separate developments" of estoppel by representation, promissory and proprietary estoppel could now be seen "to merge into one general principle shorn of limitations." That general principle was that where a man by his words or conduct, has led another to believe in a particular state of affairs, he will not be allowed to go back on it when it would be "unjust or inequitable" for him to do so. Lord Denning's actual words will repay reading and they are as follows: The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with cases. That is why I have not gone through them all in this judgment. It has evolved during the last 150 years in a sequence of separate developments: proprietary estoppel, estoppel by representation of fact, estoppel by acquiescence, and promissory estoppel. At the same time it has been sought to be limited by a series of maxims: estoppel is only a rule of evidence, estoppel cannot give rise to a cause of action, estoppel cannot do away with the need for consideration, and so forth. All these can now be seen to merge into one general 17 principle shorn of limitations. When the parties to a transaction proceed on the basis of an underlying assumption - either of fact or of law whether due to misrepresentation or mistake makes no difference - on which they have conducted the dealings between them - neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case demands. In Kok Hoong v. Leong Cheong Kweng Mines Ltd. [1964] AC 993, a decision of the Privy Council from the then Federal Court of Malaysia, in a case of moneylenders, their Lordships said: …there are statutes which, though declaring transactions to be unenforceable or void, are nevertheless not absolutely prohibitory and so do not preclude estoppels. One example of this is the Statute of Frauds (see Humphries v. Humphries (1910) 2 KB 531 CA in which it was no doubt considered that... the statute ought to be treated as regulating procedure, not as 18 striking at essential validity)… a more direct test to apply... is to ask whether the law that confronts the estoppel can be seen to represent a social policy to which the court must give effect in the interest of the public generally or some section of the public, despite any rules of evidence as between themselves that the parties may have created by their conduct or otherwise. These words are widely drawn and suggest that the Limitation Act can give way to estoppel. Indeed, there are dicta in Turberville v. West Ham Corporation [1950] 2 KB 208 which suggest that a defendant will not be heard to rely on a statute of limitation if his acts on statements during the currency of the period have induced the plaintiff to delay proceedings. And, in Othman & Anor. v. Mek [1972] 2 MLJ 158, Ong CJ said: ... Statutes of limitation which bar the enforcement of a right by action are rules of procedure only: see 24 Halsbury 15 Law of England (3rd Edn.) p. 181. A right which becomes unenforceable merely by reason of limitation does not ipso facto perish or vanish into thin air: see Holmes v. Cowcher 19 [1970] 1 WLR 835 where it was held that although under s. 18(5) of the Limitation Act 1939, arrears of mortgage interest outstanding for more than six years are irrecoverable by action, the mortgagors were only entitled to the equitable remedy of redemption provided that they paid all arrears of mortgage interest, whether statute-barred or not. If, as in that case, equitable rights did not perish by reason of limitation, can this same defence be set up here to deny the rights of a beneficial owner to be granted his claim to be a legal title? So far as may be necessary, I would hold that based on these dicta the Limitation Act is purely procedural: see Othman & Anor. v Mek [1972] 2 MLJ 158 and cf. Michell v. Harris Engineering Co. Ltd.) [1967] 2 QB 703 (CA). And, therefore, in certain circumstances, one can estop oneself out of the Limitation Act by conduct. … I would conclude this part of the case by applying the approach adopted by Lord Denning in the Amalgamated Investment and Property case [1982] QB 84 that when, as here, the defendant company has by its words and conduct led the plaintiffs to believe 20 that they would be provided a right of way from their lots, which otherwise would be landlocked, it should not be allowed to go back on them when it would be unjust or inequitable for it to do so. If, contrary to my primary view, the defendant could not or did not estop itself out of the Limitation Act, then I would hold that by reason of the promises made by its managing director to the first plaintiff at the meetings held in early 1980 at the Federal Hotel and at its registered office in Ipoh Road to provide for a right of way, it had acknowledged the plaintiffs' right or title to a right of way as claimed. (See, by analogy the case of Eddington v Clark [1964] 1 QB 367). The writ herein having been issued on 26 September 1981, the action is not barred by limitation." (emphasis added) [29] This Court would certainly agree that at the very least the issue of whether or not estoppel would apply would be fact-sensitive and it is a matter that can only be established at trial where the Defendant's representatives who are alleged to have given the representations that the defects would be attended to, may be cross-examined by the Plaintiff. [30] The Plaintiff submitted that the Defendant had clearly intended to cause or bait the Plaintiff from commencing any action until after the 6 21 years limitation period or the defect liability period has expired in view of the repeated reassurances given as referred to and recorded in the JMC's minutes. Whether and to what extent the minutes is true is a matter for trial and not for decision at this striking out stage. [31] It would be unconscionable and inequitable to allow the Defendant to rely on Limitation Act to defeat the Plaintiff’s claim. See Loh Hoot Yeang v Derrick Edwin David [2006] 2 CLJ 66 where the doctrine of estoppel can be used to defeat a defence of limitation. [32] The Federal Court in Asia General Equipment And Supplies Sdn Bhd & Ors v Mohd Sari Datuk Hj Nuar & Ors [2011] 8 CLJ 749 at 762 reaffirmed the principle set out on Alfred Templeton's case (supra) in that under certain circumstances it may be unconscionable for the Defendant and indeed the Defendant may be estopped from raising limitation as a defence to the Plaintiff's claim. His Lordship James Foong FCJ explained as follows: [28] Regrettably, the Court of Appeal has failed to consider the case of Boustead Trading (1985) Sdn Bhd v. Arab Malaysian Merchant Bank Bhd (supra) in their judgment. In this case, the Federal Court has declared that: 22 The time has come for this Court to recognize that the doctrine of estoppel is a flexible principle by which justice is done according to the circumstance of the case. It is a doctrine of wide utility and has been resorted to in varying fact patterns to achieve justice. Indeed, the circumstances in which the doctrine may operate are endless. Edgar Joseph Jr (as he then was) in an illuminating judgment in Alfred Templeton & Ors v. Low Yat Holdings Sdn Bhd & Anor [1989] 2 MLJ 202 at p. 244 applied the doctrine in a broad and liberal fashion to prevent a defendant from relying upon the provisions of the Limitation Act 1953. [29] In fact, the factual matrix in Alfred Templeton & Ors v. Low Yat Holdings Sdn Bhd & Anor [1989] 1 CLJ 693; [1989] 1 CLJ (Rep) 219 is very similar to that of our present case. There, the sale of the land to the defendant was conditional upon a right of way preserved in favour of the plaintiff. The defendant disregarded this condition in the agreement and set up limitation as a defence when they were sued by the plaintiff for breach of this condition. Justice Edgar Joseph Jr J decided that: 23 So far as may be necessary, I would hold that based on these dicta the Limitation Act is purely procedural: see Othman and Anor v. Mek and Michell v. Harris Engineering Co Ltd. And, therefore, in certain circumstances, one can estop oneself out of the Limitation Act by conduct. ... [31] However, we must stress that though the equitable doctrine of estoppel is available in law, to be successfully invoked requires meticulous examination of the facts in each case to ascertain whether there was any inequitable conduct - see Sakapp Commodities (M) Sdn Bhd v. Cecil Abraham [1998] 4 CLJ 812; [1998] 4 MLJ 651 @ 664. [32] In this instance, when the trial judge having undertaken this onerous task and came to a conclusion that the plaintiffs have successfully established estoppel, the Court of Appeal should not have disturbed this finding of fact. [33] Further, the trial judge also found that due to the 1st defendant's improper conduct the plaintiffs were prevented from filing this action earlier. Again, this is a finding of fact supported by cogent evidence. The Court of Appeal should not have replaced it with one of its own to 24 prevent the plaintiffs from pursuing their claim by a defence of limitation." (emphasis added) [33] In spite of high authorities on the proposition that estoppel may apply to defeat the defence of limitation, the Defendant stuck to its position that it is trite law that there can be no estoppel against statute. I think one must draw a distinction between an express prohibition by statute and one where it is merely procedural where parties may by conduct waive the requirement or agree that the defence would not be invoked. As the Limitation Act 1953 is purely procedural, one can estop oneself out of the Limitation Act by conduct. It is even provided for under section 4 Limitation Act 1953 that to rely on the defence of limitation, one must specifically plead and invoke it, further fortifying the proposition that the Limitation Act is purely procedural. It does not prohibit an action from being brought outside the limitation period if parties by consent agree. A fortiori a Defendant may be estopped from raising the defence of limitation because of its conduct and representation made, that had induced the Plaintiff to believe that the Defendant would not raise this defence based on its very own actions. 25 [34] In Machinchang Skyways Sdn Bhd & Anor v Lembaga Pembangunan Langkawi & Anor and another appeal [2015] 2 MLJ 373 at page 383 and 384, the Court of Appeal held that: “[28] The plaintiffs had relied on the ‘without prejudice’ letter dated 3 January 2003… to contend that the defendants had represented that the plaintiffs are at liberty to refile an action and is therefore estopped from pleading the issue of limitation. ... [30] ...There is nothing in the said letter to suggest that the defendants had agreed to the refiling of a fresh suit outside the limitation period. It is reasonable to expect the plaintiffs to comply with the requirement of the law on limitation in the event they decided to file a fresh suit.” (emphasis added) [35] As the facts supporting estoppel would vary from one case to another, one must look at the particular circumstances of each case. In the above case the Court held that there was nothing in the said letter to suggest that the defendants had agreed to the refiling of a fresh suit outside the limitation period. 26 [36] The Defendant alluded to the case of Toh Huat Khay v Lim A Chang [2010] 4 MLJ 312 at page 326 where the Federal Court held: “[25] I do think that it can be assumed or implied that the state authority had complied with s 124 of the Code in the instant appeal. It was held in United Malayan Banking Corporation Bhd v Syarikat Perumahan Luas Sdn Bhd (No 2) [1988] 3 MLJ 352 that if the terms of a statute are absolute and do not admit of any relaxation or exemption, anything done in contravention thereof will be ultra vires and no person can be estopped from putting forward the contention that what was done was illegal or void. ... [27] I am of the view that s 124 of the Code is a mandatory statutory provision and any requirement contained therein has to be complied with before the state authority can exercise its power to consent for the transfer any land which is subject to a restriction in interest such as the one found in the instant appeal. Section 214(2)(b) of the Code provides that the power to transfer shall be so exercisable subject to any restriction in interest to which the land in question is for the time being subject to. Unless the said restriction in interest has been struck off the document of title or a note of its rescission has been 27 indorsed on the document of title, I cannot see how there can be any dealing over the said land. It is only when the document of title to the said land has been cleansed of the said restriction in interest would the state authority be able to give its consent for the transfer of the said land to the defendant.” (emphasis added) [37] As can be clearly seen, the above case has nothing to do with estoppel in the context of extending the time period within which to bring an action under the Limitation Act 1953. On the contrary it has to do with the National Land Code prohibiting a transfer subject to a restriction in interest in the transfer until the express consent of the State Authority has been obtained. It is only too obvious in such a context that parties cannot consent to waive the requirement of the National Land Code for to allow that would be to allow parties to circumvent the intention of Parliament. Hence the principle of law that there is no estoppel against a statute. [38] The same too with the Supreme Court's decision in Hotel Ambassador (M) Sdn Bhd v Seapower (M) Sdn Bhd [1991] 1 MLJ 404, where at page 407 it was observed as follows: “On the question of issue estoppel we agree with the learned judge that on the facts of this case the appellants cannot invoke the 28 doctrine of issue estoppel. There can be no estoppel as against statutory provisions..." [39] That case has nothing to do with the Limitation Act 1953 and the application of estoppel. It has to do with a provision of the National Land Code ("NLC") where a tenancy was entered into by the chargor after the creation of a charge in favour of the chargee bank. The chargee bank auctioned the property by way of a public auction under the NLC. The question was whether the successful bidder who is now the registered owner is bound to recognise the interest of a tenant under a tenancy registration. The Supreme Court held as follows at p 408: "It must be understood that by then the ownership of the said property had already passed to the respondents. It is not correct to say that the abandoning by the previous owners of the claim for possession should be construed so as to create a further tenancy for they were then no longer the registered owners of or have any interest in the said property. Section 267 of the National Land Code 1965 provides for the effect of sale pursuant to an order of sale made by the court under s 256 of the Code. Section 267 states that any certificate of sale given to a 29 purchaser under s 259(3) of the Code should be treated for all purposes under the Code to be an instrument of dealing and shall be registrable and upon registration thereof the title or interest of the chargor shall pass to and vest in the purchaser, freed and discharged from all liability under the charge. Section 267(2) further provides that notwithstanding that it was granted with the consent in writing of the chargee, no tenancy exempt from registration granted by the chargor after the date of registration of the charge shall be binding on the purchaser unless prior to the date of registration of the certificate of sale, the tenancy had become protected by an endorsement on the register document of title. This statutory provision is crucial in this case because it is not disputed here that there was no endorsement of any tenancy." [40] The Defendant also referred to the case of Muhamad Solleh bin Saarani & Anor v Norruhadi bin Omar & Ors [2010] 9 MLJ 603 at pages 609, 610 & 611, where the High Court held that: “[4] This court is of the considered view that the period of limitation statutorily prescribed has to be strictly adhered to and cannot be relaxed or departed on the ground of equitable consideration. The provision of s 6(1)(a) of the said Act are 30 mandatory in nature. This court has no discretion or inherent powers to condone the delay if the action is filed beyond the prescribed statutory period of limitation or if the cause of action is barred by limitation unless the matter is covered by any of the exceptions which is not the case in the present case. ... ... [7] In this jurisdiction, the period within which a cause of action under the law of tort ought to be filed in court or instituted is prescribed by the Limitation Act 1953. ... [8] ... The Limitation Act is special law and is a complete code by itself and excludes the operation of or the benefit of calling in the aid of the Interpretation Acts 1948 and 1967 to construe the period of limitation prescribed in s 6(1)(a) of the said Act. The language of s 6(1)(a) of the said Act is plain and clear, and that the period of limitation refers to the ‘cause of action’. In the present case, the cause of action arose on 21 May 1998 when the plaintiffs suffered injuries and damage. ... It is also not the function of this court to scan, engraft, add or imply anything which is not expressly stated in the said Act in order to assist the plaintiffs to circumvent the limitation period of six years.” (emphasis added) 31 [41] Again the above case was not one that considers the application or otherwise of estoppel to the cause of action. It was a running down case where the cause of action arose from the date the injuries were sustained and so it was a straight forward case of applying the Limitation Act 1953 as seen at paragraph 9 below: "[9] On the facts in the present case, the cause of action in tort for damages for the injuries and loss suffered by the plaintiffs allegedly caused by the first defendant's negligence arose on the date when the plaintiffs had suffered the injuries or the plaintiffs had suffered physical damage on 21 May 1998. The plaintiffs' cause of action therefore had accrued on 21 May 1998 when the plaintiffs suffered physical damage as a result of the alleged negligent act of the first defendant. The commencement of the limitation period in the present case against the defendants was on 21 May 1998 (Pirelli General Cable Works Ltd v Oscar Faber & Partners (A Firm) [1983] 2 AC 1; Sparham-Souter and another v Town and Country Developments (Essex) Ltd and another [1976] QB 858; Thomson v Lord Clanmorris [1900] 1 Ch 718 at pp 728–729). In the present case, the period of limitation, being the six years period commenced to run from the date the bodily injury was suffered by the 32 plaintiffs ie on 21 May 1998 which is the date when the cause of action accrued (Mt Bolo v Mt Koklan & Ors AIR 1930 PC 270)." (emphasis added) [42] Learned counsel for the Defendant further pointed out that the "Acknowledgment" doctrine applies only to an action in contract and not tort and so it cannot extend the limitation period. [43] Section 26(2) of Limitation Act 1953 states that: “Where any right of action has accrued 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, and the person liable or accountable therefor acknowledges the claim or makes any payment in respect thereof, the right shall be deemed to have accrued on and not before the date of the acknowledgment or the last payment…” (emphasis added) [44] I agree that the Plaintiff’s action herein is in the nature of tortious claim as abovementioned, but not “liquidated pecuniary claim” as envisaged under Section 26(2) of Limitation Act 1953. [45] Learned counsel for the Defendant further cited the case of Dwr Cymru v Carmarthenshire County Council [2004] EWHC 2991 (TCC) at 33 page 8 (which was subsequently adopted by Court of Appeal of United Kingdom in Philips & Co (a firm) v. Bath Housing Co-operative Ltd [2012] EWCA Civ 1591, where the High Court inter alia held that: “[49] …Any claim for damages in tort falls outside the scope of section 29(5)(a) of the Limitation Act 1980 [which is similar to our Section 26(2) of Limitation Act 1953]…In all legislation prior to 1939, the doctrine of acknowledgment applied only to claims in contract. If Parliament had intended to extend this doctrine to tortious claim it would have done so expressly. There is no express reference to tort in the subsection." (emphasis added) [46] I further agree that the requirement of an acknowledgment in writing as required under section 27 Limitation Act 1953 has not been fulfilled as the relevant minutes were not signed by the Defendant. Section 27(1) provides that: “every such acknowledgment as is referred to in s 26 or in the proviso to s 16 of this Act shall be in writing and signed by the person making the acknowledgment;...” (emphasis added) 34 [47] The Defendant also relied on Wee Tiang Teng v Ong Chong Hooi and another [1978] 2 MLJ 54 and Tenaga Nasional Bhd v Kamarstone Sdn Bhd [2014] 2 MLJ 749. [48] I have no quarrel with the above proposition. However that is not how the Plaintiff has pitched and pleaded its claim. The Plaintiff's main plank is that the Defendant through its representatives had made numerous promises, representations and assurances that they would be attending to the rectification works for the Unresolved Water Leakage/Penetration and the Cracked Beams defects. As such the Defendant is now estopped from raising the defence of limitation to defeat the Plaintiff's claim. [49] Having established that the Federal Court in Asia General Equipment And Supplies Sdn Bhd & Ors v Mohd Sari Datuk Hj Nuar & Ors (supra) had approved the proposition of law laid down in Alfred Templeton's case, the question is whether or not the Defendant's conduct can in the present case amount to estoppel. That can only be established at trial where relevant witnesses are called, especially the Defendant's representatives named by the Plaintiff in its Statement of Claim. [50] Therefore whilst the minutes of the JMB or Joint Management Committee ("JMC") are not relevant for the purposes of an extension of 35 time under section 26 and 27 of the Limitation Act 1953, they are nevertheless relevant for the purposes of proving whether or not there were the representations, promises and assurances given that the Defects would be attended to. [51] The fact that the Defendant does not verify and/or approve all the minutes of the JMB meetings and/or the alleged representations made during the JMB meetings is a matter that goes to the weight to be attached to these documents. Under section 4(4) of the Building and Common Property (Maintenance and Management) Act 2007, the Developer is a necessary member of the Joint Management Body. [52] Learned counsel for the Defendant also referred the Court to the doctrine of stare decisis lest this Court may be minded not to follow the argument of the Defendant that estoppel has no application where statute provision is concerned. He cited the case of Dato’ Tan Heng Chew v Tan Kim Hor [2006] 2 MLJ 293 at page 297. He further argued against this Court following Alfred Templeton's case stating that it was confined to its own peculiar facts. That of course is a convenient device often used when one does not wish to follow a case which has been affirmed by the apex court. Learned counsel even went to the extent of stating that Alfred Templeton's case was wrongly decided. The strictures of the Federal 36 Court in Asia General Equipment And Supplies Sdn Bhd & Ors v Mohd Sari Datuk Hj Nuar & Ors (supra) against any attempt to avoid a binding precedent of the apex court are thus both prophetic and pertinent as follows: "[30] In the present case, the Court of Appeal attempted to distinguish Loh Hoot Yeang v. Derrick Edwin David [2006] 2 CLJ 66, a decision of the same court which has also accepted that estoppel can defeat a defence of limitation on facts. The Court of Appeal circumvented this by saying that the pronouncement in Loh Hoot Yeang v. Derrick Edwin David is restricted "to that part of the trial judge's finding only". We cannot appreciate this kind of reasoning when the general principle of law has been clearly set out not only by the Court of Appeal in an earlier case but also by the Federal Court. To disregard such an established principle under the guise of some flimsy and incomprehensible reason is highly unsatisfactory and must be discouraged. Here we like to reiterate that the doctrine of stare decisis must be adhered to by a court or courts below otherwise there will be uncertainty in the law and this would cause severe confusion. Judges in the court below should refrain from changing the law set by a superior 37 court under the guise of distinguishing the case on facts. Unless the factual matrix is fundamentally different, established principle laid down by a superior court must be followed. Failure to do so, as in this case, amounts to a wrong application of the law." (emphasis added) [53] There was also the side issue as to whether the Cracked Beams that needed rectification works were in relation to the units no. 23 to 28 of the Property. What the Plaintiff pleaded was that these Cracks were discovered along the secondary beams supporting the swimming pool from units 23 to