Case Study – From The Tempered Date Vs The Date Of Discovery

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Case Study – From The Tempered Date Vs The Date Of Discovery

October 31, 2021 General Knowledge Litigation Advisory & Strategy Public Interest Disputes 0

When does the limitation period start to run for a meter tampering case? Is it when TNB discovers that a company/ individual has tampered with their electrical meter or when, for example, the company/ individual denies liability? This matter was discussed in multiple cases. We will briefly look at this issue, based on the recent Federal Court case of Tenaga Nasional Berhad v Evergrowth Aquaculture Sdn Bhd & Ors.

Brief facts of the case

TNB, an electricity provider and supplier of electricity to Evergrowth, entered Evergrowth premises one fine day at 5 in the morning to conduct an inspection on Evergrowth premises. In the course of the inspection, TNB claimed to have discovered tampering of the electricity meter, and the actual usage of electricity at the premises cannot be recorded. They duly lodged a report and demanded the shortfall (‘back billing’) as well as the expenses incurred in conducting the pre-dawn operation.

TNB also initiated a suit in the High Court against Evergrowth for the shortfall that is due to them (after Evergrowth refused to pay them the shortfall). Evergrowth filed a counterclaim, claiming that TNB’s servants had trespassed onto the defendant’s premises and had assaulted the Evergrowth’s workers causing injuries to them such that one of them had damaged his hearing.

This case was heard all the way to the Federal Court.

Parties’ contention

One of the contentions between the parties (amongst many others) is whether limitation under section 6 of the Limitation Act starts to run from the date the meter was alleged to have been first tampered with or from the date where meter tampering was alleged to have been discovered.

What is the general law on limitation?

Section 6 (1)(a) of the Act states:

“i. 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–

  1. actions founded on a contract or on tort;
  2. actions to enforce a recognizance;
  3. actions to enforce an award; and
  4. actions to recover any sum recoverable by virtue of any written law other than a penalty for forfeiture or of a sum by way of penalty or forfeiture.
  5. An action for an account shall not be brought in respect of any matter which arose more than six years before the commencement of the action.”

So when does the cause of action start to run?

The court noted that the cause of action (in the case of meter tampering) started to run when TNB found the tampered meter. In coming to its decision, the court relied upon the judge’s statement that was made in Pahlawan Sdn Bhd v Tenaga Nasional Berhad where the court said:

“On 14.10.2003, the plaintiff conducted an inspection on the electricity meter at the defendant’s premise. The inspection revealed that the meter was tampered with, thus causing it to fail to record the correct usage of electricity…We held that the cause of action accrued on 14.10.2003 i.e. when the plaintiff found the meter was tampered with, and not on 20.1.2010 when the defendant denied liability…”

In conclusion, limitation starts from when meter tampering was found.

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