WONG JIN JING v PUAN SRI DATIN ONG KAI WOY (Pentadbir Harta Pesaka Tan Sri Dato' Lim Bah menurut Perintah Surat Kuasa Mentadbir bertarikh 11-02-2022) (JB-22NCC-4-06/2025)

This is an application by the Defendant to strike out the Plaintiff’s claim. The Defendant submits that the Plaintiff’s claim is barred by limitation.

2.

In the Statement of Claim, the Plaintiff pleaded that a total of 27 friendly loans were given to her husband at various times. The earliest loan provided was on 18.1.2015, whereas the last loan provided was on 24.5.2019.

The main issue before the court is whether the Plaintiff’s claim has been barred by section 6 of the Limitation Act 1953 since the cause of action is premised on contract. THE LAW ON STRIKING OUT UNDER ORDER 18 RULE 19 RULES

The principles of law on striking out pleadings are trite and well settled. It must be plain and obvious that the claim is not sustainable. (See: Bandar Builder Sdn Bhd v United Malayan Banking Corporation Bhd (1993) 4 CLJ 7 SC, Tan Wei Hong v Malaysia Airlines Bhd (2018) 9 CLJ 425, FC).

It is trite that for a friendly loan without any terms of repayment, the cause of action accrued immediately when the loan was given / disbursed. (See: Shorga Sdn Bhd v Amanah Raya Berhad (2010) CLJU 709). As such, 27 loans allegedly given on different dates would have set in on the respective 27 dates of limitation, calculated from the date the loan was given. The 6-year limitation would have set in earliest on 18.1.2021 for the earliest / 1st loan, whereas the limitation had set in on 24.5.2025 for the latest / 27th loan provided. The suit filed on 3.6.2025, therefore, would have been time-barred for all these 27 loans.

Limitation is a complete defence. The court will strike out a suit when the limitation has set in. (See: Tan Leng Keat v Kayangan Mutiara Sdn Bhd (2019) 1 LNS 1386; Lim Lek Yan v Yayasan Melaka (2013) 1 CLJ 10810).

Once the defence of limitation is raised, it is upon the Plaintiff to prove that the action is brought within the period of limitation. (See: WTK Holdings Bhd v Foo Sae Heng & Anor (2011) 5 CLJ 433).

The Plaintiff, in essence, relied on the following arguments / provisions of the Limitation Act 1953 in justifying that the limitation had not yet set in: - a) That the period between the death of the Defendant’s husband and the grant of the Letter of Administration has been suspended in view that the Plaintiff cannot commence any action until the Letter of Administration is issued. In support, the Plaintiff has referred to sections 23, 24, and 19 of the Limitation Act 1953. However, there is neither any legal authority nor statutory provisions to support the Plaintiffs’ above contention. In fact, Order 15 Rule 6A(1) Rules of Court 2012 has expressly stipulated that an action can be brought against the estate of the deceased even if no grant of probate or administration has been made. (See: Amir Hamzah v Normadiah Osman

CLJU 1948). b) The Plaintiff also invoked section 23 of the Limitation Act 1953, claiming that the Plaintiff is now entitled to a 12-year limitation period to pursue the claim against the personal estate of the deceased. The section governs claims “in respect of any claim to the personal estate of a deceased person or to any share or interest in such estate, whether under a will or on intestacy, shall be brought after the expiration of twelve years from the date when the right to receive the share or interest accrued, and …”. The phrase “right to receive the share or interest accrued” clearly refers to the entitlement of beneficiaries or persons claiming a distributive share of the estate and not to creditors seeking to recover a debt based on a common contractual cause of action. (See: Soon Choon Sim V soon Cheng Sai (2011) 8 CLJ 373). c) Section 24 of the Limitation Act 1953 raised by the Plaintiff deals strictly with situations where the person entitled to bring an action is under a disability at the time the cause of action accrues. The interpretation of the word “disability” can be found in Section 2 (2) of the Limitation Act 1953, which clearly provides that: - “(2) For the purposes of this Act, a person shall be deemed to be under a disability while he is an infant or of unsound mind.” Neither the Plaintiff nor the Defendant is covered under the definition of “disability” to trigger such provision. This section has no relevancy or applicability to the current factual matrix of this case. d) Section 19 of the Limitation Act 1953 only concerns the rights of an administrator claiming on behalf of the estate for recovery of Land, and it does not apply to a creditor bringing an action against the estate, as in the present case. e) The Plaintiff heavily relied on the case of United Malayan Banking Corporation Berhad v Dalin Theresah Abdullah (No 2) (2000) 8 CLJ 638. However, this is misplaced because the case is not to support the argument that the limitation had not set in or not applicable in the present case, as that case dealt with when was the cause of action accrued based on an on-demand guarantee. In this regard, time only starts to run when a demand is issued, which is not the case here.

Premised on the above consideration, the application is allowed with costs. After hearing arguments on costs, the court awarded RM 5,000 to the Defendant for this application and RM 3,000 for the main suit. Dated 18th November 2025 t.t. KALYANA KUMAR A/L SOCKALINGAM JUDICIAL COMMISSIONER HIGH COURT OF MALAYA MUAR JOHORE DARUL TA’ZIM For the Plaintiff : Mohd Radzi Bin Yatiman Messrs Rahim & Lawrnee For the Defendant :