Nunc Pro Tunc: The Malaysian Courts’ Approach to Retrospective Orders
Introduction
Court orders are generally regarded as the full and final decision of the Court, taking effect from the date on which the order is pronounced by the Judge. However, in certain circumstances, the law permits a Judge to issue an order that is treated as though it had taken effect earlier, even before the date it was actually pronounced. This legal mechanism is made possible through the doctrine of nunc pro tunc, a Latin phrase meaning “now for then”.
The doctrine is typically invoked to rectify procedural irregularities or administrative delays that would otherwise unfairly prejudice a party. For example, the Court may retrospectively validate a writ that should have been filed with prior leave, or treat a required sanction as having been granted earlier to preserve the validity of an appeal. In essence, a nunc pro tunc order allows the Court to treat an act as if it had been properly done at an earlier date, ensuring that technicalities do not override substantive justice.
Origins and Applications
Like many legal doctrines, the origin of nunc pro tunc may be traced back to English common law. In the case of Re Saunders (A Bankrupt); Re Bearman (A Bankrupt),1 the English Court allowed the plaintiffs to issue writs against several bankrupt defendants despite the plaintiffs not having initially obtained leave under Section 285(a) of the Insolvency Act 1986. As a result, the nunc pro tunc order had the effect of treating the writs as if they had been validly filed with leave of the Court.
The Court in Re Saunders observed that various common law jurisdictions recognise and apply the doctrine of nunc pro tunc. Australian courts, for instance, have granted nunc pro tunc leave to plaintiffs bringing actions against companies in compulsory liquidation, even where statutory leave had not first been obtained.2 The Court viewed nunc pro tunc as an equitable remedy aimed at perfecting the Court’s record and avoiding injustice caused by administrative delays.
These authorities were later adopted by the courts in Canada, where proceedings commenced against a wound-up company may be preserved and treated as if leave had been obtained through an application for a nunc pro tunc order.3 In the case of Canada (Wheat Board) v Krupski4 concerning a creditor who commenced an action against a bankrupt, the Court stated:
“If a creditor commences or continues proceedings without obtaining leave the proceedings are not a nullity but merely an irregularity. Since it is only an irregularity, in appropriate circumstances leave can be granted nunc pro tunc.”
Even so, it is apparent from the above cases that the doctrine has traditionally been applied in a niche manner, particularly in insolvency-related matters involving actions against bankrupt individuals or wound-up companies.
Malaysian Court’s Application
In line with other Commonwealth jurisdictions, Malaysian courts have similarly applied the doctrine of nunc pro tunc, primarily in matters relating to corporate insolvency and the powers of liquidators. The courts have treated it as an equitable mechanism designed to prevent injustice where delays occur through no fault of the litigants.
The case of Winstech Engineering Sdn. Bhd. v ESPL (M) Sdn. Bhd.5 is to be referred, where the Federal Court rejected the wound-up applicant’s application for nunc pro tunc leave after filing an appeal before obtaining the liquidator’s sanction under Section 226(3) of the Companies Act 1965. The Federal Court held that the applicant had failed to comply with a mandatory statutory requirement and could not rely on nunc pro tunc to cure that defect.
The Federal Court stated that:
“[21] The issue of prejudice or miscarriage of justice does not arise in the circumstances, as the applicant, on its own accord, had failed to utilise the enabling provisions of the law to commence the impugned legal proceedings. The court, in law, is not in a position to render assistance to such litigant.”
While recognising that nunc pro tunc leave may be granted in appropriate circumstances, the Federal Court in Winstech Engineering had laid down three key requirements to be considered in granting a nunc pro tunc order:
1. there must be an issue of prejudice or miscarriage of justice to justify intervention;
2. nunc pro tunc may only apply in appropriate circumstances which have to be proven, subject to the relevant statutory requirement; and
3. there must be an express and specific application for nunc pro tunc
Following Winstech Engineering, the doctrine has been further applied across various levels of the Malaysian courts:
1. Lai King Lung (practising as advocate and solicitor under the name and style of Messrs Chris Lai, Yap & Partners, advocates and solicitors) & Anor v Merais Sdn Bhd6 where the Federal Court reaffirmed the decision of Winstech Engineering and elaborated on the meaning of nunc pro tunc, stating that the doctrine is grounded in the maxim actus curiae neminem gravabit, meaning the act of the Court should prejudice no one. A nunc pro tunc order therefore operates to remedy hardship arising without any fault on the part of the litigant.
2. Megah Jubli Construction Sdn Bhd v E & E Development Sdn Bhd; Fujiman Development Sdn Bhd (Applicant)7, the Court dismissed the nunc pro tunc application, finding that the applicant had every opportunity to seek leave from the winding-up court but had disregarded a mandatory statutory requirement. As such, the element of prejudice or miscarriage of justice was not present.
Conclusion
Although its application in Malaysian courts currently remains relatively narrow, the principle behind nunc pro tunc, being to ensure fairness where procedural delays occur, has been applied across a much wider range of legal areas in other jurisdictions, including commercial, corporate, and probate matters. As the law continues to evolve, it remains to be seen how Malaysian courts may further develop this doctrine to ensure that technical or administrative hurdles do not impede the pursuit of justice.
1. [1997] Ch 60, [1997] 3 All ER 992.
2. Thomson v Mulgoa Irrigation Co Ltd (1894) 4 BC (NSW) 33; Re Sydney Fromworks Pty Ltd (1965),82 WN (Pt. 1) (NSW) 558; Battistion v Maiella Construction Pty Ltd [1967] VR 349.
3. Blais v Bankers’ Trust Corp Ltd (1913) 14 DLR 277.
4. [1994] 26 CBR (3d) 293.
5. [2014] 3 MLJ 1.
6. [2020] 5 MLJ 614.
7. [2019] 1 LNS 4.
Written by:
Abu Daud Abd Rahim (Co-Deputy Managing Partner) a.daud@azmilaw.com
Nasbal Harun (Senior Associate 1) nasbal.harun@azmilaw.com
Muhammad Raezal A.Rahim (Associate) raezal.rahim@azmilaw.com
Corporate Communications, Azmi & Associates – 19 January 2026
