Ker Yik Yan v. Foong-Foong Emporium (Kl) Sdn Bhd [2006]3 CLJ 490, Court of Appeal
Matter involving:
Civil Proceedings – Abuse of court process – Time limit of action.
Issues:
Whether action the second is initiated outside the time limit after the first action is cancelled
Whether the plaintiff should have appealed against the annulment of the first action.
Whether the filing of a second action is an abuse of the court process.
Facts:
The appellant had brought two actions against the respondent for damages claims as a result of the respondent’s wrongful action in restraining the appellant from entering the premises in order to continue his business operations.
The first action was filed on 18 April 1995 and the second action was filed on 28 May 2001. The first action was struck out by the court due to the appellant’s failure in the first action to proceed with the prosecution’s case.
In the second action, the High Court held that:
(1) the appellant’s action was time barred under s 6(1)(a) of the Limitation Act 1953 (‘the Act’); and
(2) therefore, that action was an abuse of the court process under O 18 r 19(1)(d) of the Rules of the High Court 1980 (‘the RHC’). The appellant appealed.
The respondent submitted that the second action was an abuse of the court process
because the appellant should appeal against the decision to strike out the first action or made an application to revive the writ of summons and the statement of claim in the first action.
The appellant’s step in filing the writ of summons and the statement of claim in the second action and the failure of the appellant to apply one of the procedures specified was an abuse of the court process.
Held, dismissing the appeal:
(1) The second cause of action accrued on 30 March 1995, ie the date the appellant claimed that he was restrained by the respondent from opening the premises entrance. By virtue of s 6(1)(a) of the Act, the time limit of six years began from 30 Mac 1995 and ended on 31 March 2001. Therefore, the second action filed on 28 May 2001 was time barred under s 6(1)(a) of the Act, ie nearly two months after the time limit. The other paragraphs in the statement of claim did not suggest there was any effort by the appellant to enter the premises. Therefore, the appellant’s submission that the second course of action was not limited and continued to run was misconceived (see para 16).
(2) The appellant should not have filed the second action, moreover, time had lapsed. The appellant should have filed an application to revive the writ of summons or appealed against the striking out decision in the first action. The appellant’s action in filing the second action was an abuse of the court process which should not be allowed (see para 25).]
Civil Proceedings – Abuse of court process – Time limit of action.
Issues:
Whether action the second is initiated outside the time limit after the first action is cancelled
Whether the plaintiff should have appealed against the annulment of the first action.
Whether the filing of a second action is an abuse of the court process.
Facts:
The appellant had brought two actions against the respondent for damages claims as a result of the respondent’s wrongful action in restraining the appellant from entering the premises in order to continue his business operations.
The first action was filed on 18 April 1995 and the second action was filed on 28 May 2001. The first action was struck out by the court due to the appellant’s failure in the first action to proceed with the prosecution’s case.
In the second action, the High Court held that:
(1) the appellant’s action was time barred under s 6(1)(a) of the Limitation Act 1953 (‘the Act’); and
(2) therefore, that action was an abuse of the court process under O 18 r 19(1)(d) of the Rules of the High Court 1980 (‘the RHC’). The appellant appealed.
The respondent submitted that the second action was an abuse of the court process
because the appellant should appeal against the decision to strike out the first action or made an application to revive the writ of summons and the statement of claim in the first action.
The appellant’s step in filing the writ of summons and the statement of claim in the second action and the failure of the appellant to apply one of the procedures specified was an abuse of the court process.
Held, dismissing the appeal:
(1) The second cause of action accrued on 30 March 1995, ie the date the appellant claimed that he was restrained by the respondent from opening the premises entrance. By virtue of s 6(1)(a) of the Act, the time limit of six years began from 30 Mac 1995 and ended on 31 March 2001. Therefore, the second action filed on 28 May 2001 was time barred under s 6(1)(a) of the Act, ie nearly two months after the time limit. The other paragraphs in the statement of claim did not suggest there was any effort by the appellant to enter the premises. Therefore, the appellant’s submission that the second course of action was not limited and continued to run was misconceived (see para 16).
(2) The appellant should not have filed the second action, moreover, time had lapsed. The appellant should have filed an application to revive the writ of summons or appealed against the striking out decision in the first action. The appellant’s action in filing the second action was an abuse of the court process which should not be allowed (see para 25).]