CAUSE OF ACTION

• Meaning of Cause of action• General Principles:

• Accrual of the cause of action• The cause of action must be a complete one • Consequence of an incomplete cause of action

Cause of Action

• Joinder of causes of action O.15 R (1)RHC• Counter Claim – O.15 rule 2, 3(1) (2)• Survival of cause of action after death – Sec 8 (1) of the Civil Law Act • Two actions in respect of the same cause of action

What is a cause of action ?

• There is no statutory definition• Case law definition

•Cooke v Gill (1873) LR 8 CP 107, 116•Read v Brown (1888) 22 Q.B.D 128• Letang v Cooper (1965) 1 QB 232•Govt of Malaysia v Lim Kit Siang, United

Engineers (M) Berhad v Lim Kit Siang [1988] 2 MLJ 12

Cooke v Gill (1873) LR 8 CP 107, 116

• Bret J . defined a cause of action as:

“ every fact which is material to be proved to entitle the plaintiff to succeed”

Read v Brown (1888) 22 Q.B.D. 128

• Esher M.R.“A cause of action includes every fact necessary for the plaintiff to

prove to support his right to the judgement of the court.”• the entire set of facts that gives rise to an enforceable claim.

Letang v Cooper (1965) 1 QB 232

• Lord Diplock at page 242G:

“A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person”

Govt of Malaysia v Lim Kit Siang, United Engineers (M) Berhad v Lim Kit Siang

[1988] 2 MLJ 12(Supreme Court)

• Salleh Abbas LP“ A cause of action is a statement of fact alleging that a plaintiff’s right,

either at law or by statute, has, in some way or another, been adversely affected or prejudiced by the act of a defendant in an action”

Salleh Abbas LP

• “ In my view that factual situation spoken by Lord Diplock (Letang v Cooper) must consist of a statement alleging that, first, the respondent/Plaintiff has a right either at law or by statute and that, secondly, such right has been affected or prejudiced by the appellant /defendant’s act.”

Facts

• The respondent, an opposition leader applied for declaration to declare a contract for construction of the North and south Highway signed between the Government of Malaysia and the UEM invalid.• He also sought an injunction to restrain UEM from signing the

contract with the Govt.

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•The applications were made at the Penang High court.•Both the Govt and UEM applied to set aside the

injunction and the suit on the ground that they disclosed no reasonable cause of action, for lack of Locus standi and in addition for being frivolous, vexatious and an abuse of the court process ( O.18 r.19)•The application was however dismissed, the Govt

and UEM appealed to the Supreme Court

Decision

• “ Going through the respondent’s statement of claim, I found nothing in it which shows the existence of such factual situation. The respondent had no legal relationship with the UEM, which would indicate the existence of any legal right or duty in the relation between them. He is a complete stranger to the company.

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It is not shown that the respondent is a share holder or has any interest directly or indirectly, in running of the affairs of UEM nor has UEM done any wrong to the respondent or deprived or threatened to deprive him of his right and privilege. The entitling factual situation simply does not exist. Therefore the respondent’s suit against UEM is unmaintainable.”

Summary on the definition of cause of action

• Factual situation that give rise to an action in court.• The factual situation must have strong basis or based on a

reasonable ground• If not, the cause of action could be struck out on the ground of

unreasonable cause of action

When does a cause of action accrue?

• Lim Kean v Choo Koon [1970] 1 MLJ 158• Yong J observed as follows:“ A cause of action normally accrues when there is in existence a

person who can sue and another who can be sued and when all the facts have happened which are material to be proved to entitled the plaintiff to succeed”

When the cause of action commences?

• GR: Before commencing a case in court the plaintiff must ensure that he has a complete cause of action• Sio Koon Lin & anor v S.B. Mehra [1981] 1 MLJ 230

Sio Koon Lin & anor v S.B. Mehra [1981] 1 MLJ 230

•R contributed RM100,000 to a partnership business. It was agreed by the partners that the respondent should be paid in the following manner:•RM 15,000 upon execution of the p/ship agreement•RM 35,000 on or before Oct 12, 1972•RM 50,000by monthly installment of RM10,000 on

the 12 day of each succeeding month.•No provision on default payment included in the

agreement.

Sio Koon Lin continues

•On Oct 7, 1972 R took out the writ claiming payment of RM85,000 with interest.•On Oct 14, there was an amendment made to the

writ.•The defendant argued that at the issue of the writ

there was no cause of action in respect of the RM85,000•The court gave judgement to the Respondent,

Defendant appealed.

Decision

No cause of action exist at the date when the writ was filed. The payment only due and accumulated after the 12th of every month and not before that date.

Implication

• This case illustrates the point that if the plaintiff wants to claim for payment of any sum due he must make sure that at the time of filing the writ, the sum is already due and accumulated.

Consequence of incomplete Cause of Action

• Taib bin Awang v Mohammed bin Abdullah [1983] 2 MLJ 413• The action or suit could be dismissed on the ground of premature.

Joinder of causes of action O.15 R (1)RHC

• Q: when can two causes of action be joined?

• Q: What are the condition(s) to be fulfilled before joinder?

• Q: What is the procedure for application?

Counter Claim – O.15 rule 2, 3(1) (2)

• Q: what is a counter claim?• Q: Who may apply for a counter claim?• Q: How to apply for a counter claim?