MALAYSIA Law and Practice Contributed by: Dhinesh Bhaskaran, Rabindra Nathan, Shanti Mogan and Lai Wai Fong, Shearn Delamore & Co
• 12 years to recover land from the date the right of action accrued (Section 9(1)); • no limitation period for actions to recover trust property in respect of a fraudulent breach of trust (Section 22(1)); • six years for actions to recover trust property in respect of a breach of trust from the date the right of action accrued (Section 22(2)); • for actions in negligence (excluding personal injury), where the damage was not discover- able before the expiry of six years, the limita- tion period will be extended by three years from the date of knowledge (Section 6(A)); and • six years to enforce an arbitration award from the date on which it became enforceable (Section 6(1)(c)). Where a civil suit is filed against the government, the limitation period is 36 months from the date of the act, neglect or default, or the cessation of a continuing injury or damage. See Section 2 of the Public Authorities Protection Act 1984. 3.3 Jurisdictional Requirements for a Defendant The jurisdictional requirements for a defendant to be subject to a suit in Malaysia are contained in Section 23 of the Courts of Judicature Act 1964, namely that Malaysia should be the place where: • the cause of action arose; • the defendant or one of several defendants resides or has their place of business; • the facts on which the proceedings are based exist or are alleged to have occurred; and • any land the ownership of which is disputed is situated. In the case of a foreign defendant, the plaintiff would have to establish that the court has juris-
diction over the claim and that the plaintiff has a good cause of action. See Joseph Paulus Lantip & Ors v Unilever PLC [2012] 7 CLJ 693. 3.4 Initial Complaint A complaint is usually initiated by filing (depend- ing on the nature of the proceedings) a writ of summons with a statement of claim, or an origi- nating summons with an affidavit. These docu- ments (save for the affidavit) can be amended after they have been filed, either by right or with leave. 3.5 Rules of Service Service is the responsibility of the plaintiff. The originating process is served personally on the defendant or sent to them at their last known address by prepaid AR (advice of receipt) regis- tered post. Substituted service may be effected with leave of court. A defendant outside the jurisdiction can be sued in Malaysia with leave of court. The plaintiff must show, among other things, that they have a good arguable case falling within the circumstances set out in Order 11 Rules 1 and 2 of the Rules of Court 2012, and that the defendant is in the par- ticular jurisdiction outside Malaysia. See Joseph Paulus Lantip & Ors v Unilever PLC [2012] 7 CLJ 693. 3.6 Failure to Respond If the defendant does not respond to a suit, the procedure which ensues depends on the type of claim made. Where the claim is for damages, the plaintiff may apply for final judgment in default of appearance for quantified damages, or for interlocutory judg- ment on liability with damages to be assessed for unquantified damages.
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