Analysis Of Section 6A Of The Limitation Act

Published date30 May 2022
Subject MatterLitigation, Mediation & Arbitration, Real Estate and Construction, Personal Injury, Construction & Planning, Real Estate
Law FirmBodipalar Ponnudurai De Silva
AuthorMs Brenda Rangithan and Maryam Jamilah

The Limitation Act 1953 provides the limitation period of 6 years where a plaintiff is allowed to enforce its rights against any contractual or tortious claim. In another word, after the 6 year period, any persons will generally be barred from making any such claims.

Within the construction industry, it was a common argument that this law is restrictive and unjust in respect of latent defects. Latent defects are invisible or undetected defects which may be apparent only through inspection. There were instances where property owners only became aware of the defects of their newly purchased property after the expiration of the 6 year limitation period and therefore were barred from commencing any legal action to enforce their rights against the Developer and/or the contractor.

However, it was not until 2018 that the Malaysian Parliament redefined the law on latent defects by introducing Section 6A into the Limitation Act 1953. The amendment of the Limitation Act brings comfort to property owners in such a situation as it redresses the injustice which allows the property owner to initiate the action despite the rigidity of the law.

Pre- Amendment

Throughout the years before the Amendment of the Limitation Act, the limitation period for latent defects falls strictly under Section 6(1)(a) of the Limitation Act 1953, the provision states the following:

'Save as hereinafter provided the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say actions founded - on a contract or on tort;'

Due to the similarities in Section 6 of the Limitation Act 1953 and Section 2 of the UK Limitation Act 1980, the Malaysian Courts were very persuaded by the decision of the House of Lords in Pirelli General Cable Works Ltd v Oscar Faber & Partners (a firm) [1983] 1 All ER 65. In this case, due to negligent design and construction, the Plaintiffs initiated an action for damages arising from cracks of their chimney. However, expert evidence found that such cracks had surfaced in 1970 but the Plaintiffs had only discovered the cracks in 1977.

At that time, the House of Lords held that although the damage of the cracks could not have been discovered at the time it had surfaced, the Plaintiffs were still caught by the limitation period of 6 years, and therefore the action was time barred. Lord Fraser of Tullybelton was of the opinion that although he acknowledges the inadequacy and injustice of the...

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