Revival of a Cause of Action - Section 26 (2) of the Limitation Act 1953

Can an acknowledgment of debt under s. 26(2) of the Limitation Act 1953 be made after the limitation period has already expired, thereby reviving a statute-barred cause of action?

The Shah Alam High Court in the case of Makeway Construction Sdn Bhd v Country Heights Smart Living Sdn Bhd [Suit No.: BA-22C-21-07/2025] answers this exact question.

Disclosure: Our Mr. Polwin Sua Shiang-Nian successfully acted for the Plaintiff in this matter.

Background Facts

The Plaintiff had carried out construction works for the Defendant, with Final Certificates issued in 2012 for the total outstanding sum of RM1,012,071.53.

The Defendant issued Confirmations of Balance in 2020, 2023 and 2024 acknowledging the said outstanding sums. Notwithstanding the same, no payment was made.

The Plaintiff commenced action on 17 July 2025 and obtained a Judgment in Default on 20 August 2025. The Defendant subsequently applied to set aside the said default judgment, contending, among other things, that the claim was time-barred.

The Defendant's Contentions Rejected by the High Court

The Defendant contended that the cause of action accrued in 2012 upon issuance of the Final Certificates, such that the limitation period expired in 2018. Relying on the cases of Lakshmi I/K Malayandy v EK Housing Developer Sdn Bhd & Ors [2014] MLJU 1895, Tan Hin Choon & Ors v Ban Hin Lee Bank Ltd [1972] 2 MLJ 211, and Wright v Pepin [1954] 2 All ER 52, the Defendant argued that the Confirmations of Balance, having been issued after 2018, cannot revive the time-barred claim.

This contention was rejected by the High Court.

Relying on Fatric Sdn Bhd v Hassan bin Abd Hamid & Ors [2018] 10 MLJ 289, the Court noted that a cause of action can be revived under s. 26(2) of the Limitation Act 1953 even where the acknowledgment is made after the original limitation period has expired.

It was further noted that in Fatric, the distinction was drawn between the Sarawak/Sabah Limitation Ordinances, the English Limitation Act 1980, and the Limitation Act 1953 applicable in Peninsular Malaysia. Unlike the Sarawak/Sabah Limitation Ordinances and the English Limitation Act 1980, the Limitation Act 1953 does not contain express wording requiring an acknowledgment to be made before the expiration of the limitation period.

The Court held that the Defendant's argument would effectively require it to read s. 26(2) as though it contained words: "provided that the acknowledgment is made before the expiration of the limitation period."

Those words are clearly absent, and the Court found this absence significant, noting that other limitation regimes contain express provisions either requiring acknowledgment before expiry or prohibiting revival after expiry.

On this premise, among others, the High Court dismissed the Defendant's setting aside application.

Conclusion

The High Court's decision confirms that under the Limitation Act 1953, an acknowledgment of debt made after the original limitation period has expired can still revive a statute-barred claim. This position differs from the English Limitation Act 1980 and the Sarawak/Sabah Limitation Ordinances, both of which expressly bar such revival.

Seemingly routine documents such as confirmations of balance are not mere formalities. Where they clearly acknowledge and admit a specific debt without qualification, they may restart the limitation period — a risk for debtors, and a useful tool for creditors seeking to preserve their claims.