JUDGMENT

Steve Shim Lip Kiong J:

On 27 March 1992, the defendant Robin Hii Chung Siong applied to the Senior Assistant Registrar to strike out the amended statement of claim under O. 18 r. 19. The application was dismissed with costs. The defendant has appealed against that decision under O. 56 r. 1.

It seems clear that the plaintiff's action is based essentially, if not solely, on a Sale and Purchase Agreement dated 24 June 1985 prepared by the defendant and entered into by the plaintiff with a developer called Sie Chung Tung Housing Development in respect of a piece of property described as sublot 38 comprised in Sibu Occupation Ticket nos. 35431 and 24012 together with 1 unit of reinforced concrete double-storey semi-detached dwelling house at the purchase price of RM140,000. On 18 September 1991, the plaintiff took out a writ of summons against the defendant for damages allegedly suffered by him as a result of the negligence of the defendant in preparing the aforesaid sale and purchase agreement. The defendant, in his amended statement of defence dated 19 February 1992, has pleaded specifically as follows:

The alleged cause of action arose more than six(6) years before the commencement of this action and is accordingly barred by virtue of s. 3 and paragraph 97 of Part IV of the Schedule of Limitation Ordinance (Cap. 49).

Section 3 of the Limitation Ordinance (Cap. 49) states that every suit instituted after the period of limitation prescribed therefore by the Schedule, if limitation has been set up as a defence, shall be dismissed. As the defendant has pleaded limitation as a defence, he is entitled to seek to strike out the plaintiff's claim upon the ground that it is frivolous, vexatious and an abuse of the process of the Court; see per Donaldson, LJ in Ronex Properties Ltd. v. John Laing Construction Ltd. [1983] QB 398; [1982] 3 All ER 961.

Now it has been held that when the defence of limitation is raised, the burden of pleading and proving that the action was brought within the limitation period shifts to the plaintiff. In Cartledge v. E. Jopling & Sons Ltd. [1963] 1 All ER 341, Lord Pearce said:

I agree that when a defendant raises the statute of limitation the initial onus is on the plaintiff to prove that his cause of action occurred within the statutory period. When, however, a plaintiff has proved an accrual of damage within the six years ... the burden passes to the defendants to show that the apparent accrual of a cause of action is misleading and that in reality the cause of action accrued at an earlier date.

It should be noted that in the affidavit in support of the application before the Senior Assistant Registrar, the defendant has also invoked the defence of limitation in terms similar to that averred in the amended statement of defence, in particular paragraph 15 therein. In resisting the application, the plaintiff filed an affidavit-inopposition through his solicitor Richard Wong Ho Leng stating that the action was instituted within the period of limitation. This had the affect of merely denying the defence of limitation. Such a bare denial could hardly be considered as proving the issue. It would have gone against the principle propagated by Lord Pearce in Cartledge that the onus was on the plaintiff to prove that his cause of action accrued within the statutory period once the defendant had raised the defence of limitation. Here, it would appear that the Senior Assistant Registrar had accepted the denial of the plaintiff as sufficient to rebut the defendant's allegation because, according to him, the issue relating to the commencement of the limitation period, was a question of fact which could only be determined at the trial by calling witnesses. But I think the matter could be appropriately resolved by a detailed examination of the writ, the statements of claim and defence as well as the affidavits relevant thereto.

Undoubtedly, this action involves a case of negligence and therefore falls und