CJ POLYMERS SDN BHD v 1. ) LOK PEY LING 2. ) KERK JIUN HONG 3. ) WAKIL DIRI KEPADA TEE YOK LAN @ TAY ENG LUN, SI MATI

Case Significance

Illustrates the interaction between a restitutionary claim for monies had and received and the limitation regime, including the limited circumstances in which section 29 of the Limitation Act 1953 will postpone the running of time for fraud.

This High Court decision at Shah Alam concerns a company's claim to recover payments made to members of a former director's family. The company sued three defendants — the wife, the son and the mother-in-law of a person who had been one of its directors — for restitution of monies said to have been paid to them without any legal basis, the payments having been authorised by that director. A notable feature was that the company's records disclosed a similar pattern of payments to another director's relatives, against whom no claim had been brought. The defendants maintained that the sums had been lawfully paid and received and, in any event, that the claims were time-barred. Although begun as a writ action, the matter was determined by agreement under Order 14A of the Rules of Court 2012 on agreed questions of law, chiefly the effect of the limitation period and whether section 29 of the Limitation Act 1953, which can postpone the running of time in cases of fraud, applied to extend it. The court held that section 29 did not apply on the pleaded case, so that claims for monies had and received before December 2017 were statute-barred. The court rejected the argument that the familial character of the payments, or the company's forbearance towards another director's relatives, altered the ordinary operation of the limitation period. Within the surviving period, however, the court found the payments recoverable and entered judgment against each defendant for the sums each had received: RM3,323,200 against the first defendant, RM131,418.35 against the second, and RM132,850 against the third. The defendants' counterclaim was dismissed as without merit, and they were ordered to pay costs fixed at RM20,000. The judgment is a useful illustration of the interaction between a restitutionary claim for monies had and received and the limitation regime, including the limited circumstances in which the fraud provision will postpone the running of time.