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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Limitation Bill 2005
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Interpretation 2
4. Application of limitation periods under this Act 6
5. Actions other than personal injury actions do not
revive 6
6. Personal injury actions -- accrual, limitation periods 7
7. Special provisions for certain personal injury actions
relating to childbirth 7
8. Special provisions for certain defamation actions 8
9. Limitation periods under other written laws 8
10. Application to Crown 9
Part 2 -- Limitation periods
Division 1 -- Preliminary
11. Limitation periods under this Part are extendable etc.
under Part 3 10
12. When actions commence 10
Division 2 -- General limitation period
13. General limitation period -- 6 years 10
Division 3 -- Limitation periods for particular
causes of action
14. Personal injury, Fatal Accidents Act 1959 actions --
3 years 10
15. Defamation -- one year from publication 11
16. Trespass to the person etc. -- 3 years 11
17. Contribution between tortfeasors -- 2 years 11
18. Deeds -- 12 years 11
006--3 page i
Limitation Bill 2005
Contents
19. Recovery of land -- 12 years 11
20. Money secured on real property or on real and
personal property -- 12 years 12
21. Interest secured on real property or on real and
personal property 12
22. Interest secured on personal property 13
23. Possession -- 12 years 14
24. Foreclosure -- 12 years 14
25. Redemption -- 12 years 15
26. Accounts -- limitation period for the basis of the duty
to account applies 15
27. Equitable actions (not analogous to other actions) 15
28. Tax mistakenly paid -- 12 months or as provided
under other Act 16
29. Arbitration -- limitation period for corresponding
civil proceeding applies 16
Part 3 -- Extension or shortening of
limitation periods
Division 1 -- Extension for persons under 18 years
when cause of action accrues
30. Limitation periods applicable to persons under 15
when cause of action accrues 17
31. Limitation periods applicable to persons between 15
and 18 when cause of action accrues 17
32. Suspension of time while person under 18 is without
guardian 17
33. Defendant in close relationship with person under 18
when cause of action accrues 18
34. Defamation 19
Division 2 -- Extension for persons with mental
disability
35. Suspension of time while person with mental
disability is without guardian 19
36. Defendant in close relationship with person with
mental disability 20
37. Defamation 21
page ii
Limitation Bill 2005
Contents
Division 3 -- Extension by courts
38. Court may extend time to commence actions in cases
of fraud or improper conduct 21
39. Court may extend time to commence actions for
personal injury or under Fatal Accidents Act 1959 21
40. Court may extend time to commence defamation
actions 23
41. Court may extend time to commence action by person
under 18 when cause of action accrues, with guardian 23
42. Court may extend time to commence action by person
with a mental disability, with guardian 24
43. Jurisdiction and procedure 24
44. Further matters for court's consideration on extension
applications 25
Division 4 -- Extension or shortening by
agreement
45. Agreement to extend or shorten limitation period 25
Division 5 -- Extension by confirmation
46. Meaning of confirmation 26
47. Limitation period extended by confirmation 26
48. Formal requirements for acknowledgments 27
49. Who has benefit of confirmation 27
50. Who is bound by confirmation 27
51. Effects of certain kinds of confirmation 28
Division 6 -- Extension of limitation periods --
other matters
52. Persons with mental disability under 18 when cause of
action accrues -- most beneficial limitation period
applies 28
53. Limitation period in case of death of certain persons if
cause of action accrues to certain other persons 28
54. Arbitration -- extension of limitation period 29
Part 4 -- Accrual of particular causes
of action
Division 1 -- Accrual of certain causes of action
other than to recover land
55. Personal injury -- general 30
56. Personal injury -- asbestos related diseases 30
page iii
Limitation Bill 2005
Contents
57. Survival of certain actions 32
58. Contributions between tortfeasors 32
59. Debts repayable on demand 33
60. Successive wrongs to goods 33
61. Equitable interests 33
62. Future interests of beneficiaries under trusts 34
63. Matters referable to arbitration 34
64. Arbitral awards 34
Division 2 -- Accrual of certain causes of action to
recover land
65. Adverse possession 34
66. Dispossession or discontinuance 35
67. Deceased in possession 35
68. Grantor in possession 36
69. Future interests in land 36
70. Forfeiture 36
71. Rent wrongly paid 37
72. Tenancies 37
73. Beneficial co-owners of land 38
Part 5 -- Effect of expiration of
limitation period
74. Time to commence actions may be extended despite
extinguishment of rights 39
75. Extinguishment of right and title to land 39
76. No title by adverse possession against Crown 39
77. Future interests in land 40
78. Provisions in case of land held on trust 40
Part 6 -- Miscellaneous
79. Burden of proof 42
80. Grounds in equity upon which to refuse relief
preserved 42
81. Counterclaims -- commencement 42
82. Joint causes of action 42
83. Joint liability 43
84. Formal entry and claim 43
85. Other beneficiaries 43
86. Limited right to recover tax 43
page iv
Limitation Bill 2005
Contents
87. Limited operation of certain court orders as to refund
of tax 44
88. Arbitrations -- commencement 45
Defined Terms
page v
Western Australia
LEGISLATIVE ASSEMBLY
(As amended in Committee)
Limitation Bill 2005
A Bill for
An Act to provide for time limits for commencing civil legal
proceedings and arbitrations, and for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Limitation Bill 2005
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This is the Limitation Act 2005.
2. Commencement
5 This Act comes into operation on the day on which it receives the
Royal Assent.
3. Interpretation
(1) In this Act --
"action" means --
10 (a) any civil proceeding in a court, whether the claim that
is the subject of the proceeding or relief sought is
under a written law, at common law, in equity or
otherwise; or
(b) an arbitration under an arbitration provision,
15 but does not include proceedings for certiorari, mandamus,
prohibition, habeas corpus or quo warranto except in
sections 28, 86 and 87, in which it includes proceedings for
certiorari, mandamus, prohibition or quo warranto;
"arbitral award" means the resolution or determination by an
20 arbitrator of a difference or matter referred to arbitration
under an arbitration provision;
"arbitration provision" means --
(a) a provision of an agreement to refer present or future
differences to arbitration, whether an arbitrator is
25 named in the agreement or not; and
(b) a provision of any written law requiring or permitting
the determination of any matter by arbitration or
relating to such an arbitration;
"commencement day" means the day on which this Act comes
30 into operation;
page 2
Limitation Bill 2005
Preliminary Part 1
s. 3
"defendant" means a person against whom an action is brought
or proposed to be brought;
"extension application" means an application under
section 38, 39, 40, 41 or 42;
5 "future interest" means an estate in reversion or remainder or
other vested or contingent interest in property which is yet
to entitle immediate possession of the property;
"guardian", in relation to a person who is under 18 years of age
when a cause of action accrues to the person ("person A"),
10 means a person --
(a) who at law has responsibility for the long-term care,
welfare and development of person A before
person A reaches 18 years of age; and
(b) for whom it is practicable, having regard to the
15 person's relationship with person A, to commence an
action on behalf of person A;
"guardian", in relation to a person with a mental disability
("person A"), means a person who --
(a) is either a guardian of person A or the administrator
20 of person A's estate, or both; and
(b) has, under the guardianship order, the administration
order, or the provisions of the Guardianship and
Administration Act 1990, as is relevant to the case,
the function of considering the appropriateness of
25 commencing an action on behalf of person A,
and in this definition the terms "administrator",
"administration order", "guardian" and "guardianship
order" have the respective meanings that they have in the
Guardianship and Administration Act 1990 section 3(1);
30 "income" includes interest on a judgment and other interest,
and includes rent, annuities and dividends, but does not
include arrears of interest secured by a mortgage and
lawfully treated as principal;
page 3
Limitation Bill 2005
Part 1 Preliminary
s. 3
"land" includes --
(a) corporeal hereditaments and rentcharges and any
estate or interest in those things whether freehold or
leasehold and whether at law or in equity; and
5 (b) the interest, pending sale of land (including
incorporeal hereditaments) held on trust for sale, of a
person having an interest in the proceeds of sale,
but otherwise does not include incorporeal hereditaments;
"mental disability", in relation to a person, means a disability
10 suffered by the person (including an intellectual disability,
a psychiatric condition, an acquired brain injury or
dementia) an effect of which is that the person is unable to
make reasonable judgments in respect of matters relating to
the person or the person's property;
15 "mortgage" includes a charge or lien on real or personal
property for securing money or money's worth but does not
include a possessory lien on goods nor a binding effect on
the property arising under court order to seize and sell or
seize and deliver the property;
20 "mortgagee" includes a person claiming a mortgage through an
original mortgagee;
"mortgagor" includes a person claiming property subject to a
mortgage through an original mortgagor;
"personal injury" includes a disease, impairment of a person's
25 physical condition, and mental disability;
"personal representative" means a person who, for the time
being, is an executor or an administrator of a deceased
person's estate;
"plaintiff" means --
30 (a) a person bringing, or proposing to bring, an action; or
(b) a person acting on behalf of a person mentioned in
paragraph (a);
page 4
Limitation Bill 2005
Preliminary Part 1
s. 3
"principal money", in relation to a mortgage, means all money
secured by the mortgage, including arrears of interest
lawfully treated as principal, but does not include other
interest;
5 "rent" includes a rent service and a rentcharge;
"rentcharge" means an annuity or other periodical sum of
money charged on or payable out of land, but does not
include a rent service or interest on a mortgage of land;
"tax" includes a fee, charge or other impost;
10 "trust" has the meaning given to that term in the Trustees
Act 1962 section 6(1);
"trustee" has the meaning given to that term in the Trustees
Act 1962 section 6(1) and includes a personal
representative.
15 (2) In this Act a reference to the accrual of a cause of action is a
reference --
(a) to the accrual of the cause of action to a person
("person A") to whom the cause of action accrues; and
(b) where relevant, to the accrual of the cause of action to a
20 person through whom person A claims.
(3) For the purposes of this Act, a person ("person A") claims
through another person ("person B") in respect of property or a
right if person A is entitled to the property or right by, through
or under person B or by the act of person B, but a person
25 entitled to property or a right under a special power of
appointment is not to be taken to claim through the appointor.
(4) In this Act a reference to a cause of action to recover land
includes a reference to a right to enter into possession of the
land.
30 (5) In this Act, in respect of land which is a rentcharge --
(a) a reference to the possession of land is a reference to the
receipt of the rent; and
page 5
Limitation Bill 2005
Part 1 Preliminary
s. 4
(b) a reference to the time of dispossession or
discontinuance of possession of land is a reference to
when rent first becomes overdue.
(6) For the purposes of this Act --
5 (a) adverse possession of land occurs when possession of
the land is taken by a person in whose favour the
limitation period can run;
(b) possession of a rentcharge occurs when possession of
the land the subject of the rentcharge is taken by a
10 person, other than the person entitled to the rentcharge,
who does not pay the rent;
(c) adverse possession of land as against a landlord occurs,
in the case to which section 71 applies, when a person
wrongfully claiming to be entitled to the land subject to
15 the lease receives the rent;
(d) adverse possession of land held by joint tenants or
tenants in common, as against a tenant ("tenant A"),
occurs when another tenant ("tenant B") takes
possession of more than tenant B's share, not for the
20 benefit of tenant A.
(7) If an arbitration provision is, or includes, a provision of any
written law, this Act has effect subject to the provision of the
written law.
4. Application of limitation periods under this Act
25 (1) The limitation periods provided for under this Act apply only to
causes of action that accrue on or after commencement day.
(2) This section is subject to sections 7 and 8.
5. Actions other than personal injury actions do not revive
(1) An action cannot be commenced on or after commencement day
30 if the action could not have been commenced immediately
before commencement day because of an enactment that is
page 6
Limitation Bill 2005
Preliminary Part 1
s. 6
repealed or amended by the Limitation Legislation Amendment
and Repeal Act 2005.
(2) This section is subject to section 6.
6. Personal injury actions -- accrual, limitation periods
5 (1) Section 55 or 56, as is relevant to the case, applies to ascertain
when a cause of action relating to a personal injury to a person
accrues.
(2) If, under the relevant section, the cause of action accrues before
commencement day, the applicable limitation period in that case
10 is that which would have applied before commencement day,
whether or not that period has expired.
7. Special provisions for certain personal injury actions
relating to childbirth
(1) In this section --
15 "cause of action (childbirth)" means a cause of action for
damages relating to a personal injury to a person that was
incurred --
(a) in the course of the person's mother giving birth to
the person; or
20 (b) immediately after, and arising from, the person's
mother giving birth to the person,
whether the birth was by way of natural childbirth or a
medical procedure.
(2) An action on a cause of action (childbirth) cannot be
25 commenced if the cause of action accrued before
commencement day and --
(a) 6 years have elapsed since commencement day; or
(b) the limitation period that would have applied but for this
section has expired.
page 7
Limitation Bill 2005
Part 1 Preliminary
s. 8
(3) This section has effect subject to Part 3 but --
(a) sections 30 and 31 do not apply; and
(b) sections 32 and 41 do not apply if the person has
reached 15 years of age at commencement day.
5 (4) For the purposes of the provisions of Part 3 that apply under
subsection (3), a cause of action (childbirth) is to be taken as
having accrued on commencement day.
8. Special provisions for certain defamation actions
(1) Section 15 applies to the publication of defamatory matter on or
10 after commencement day unless subsection (2) provides
otherwise.
(2) Section 15 does not apply to a cause of action relating to the
publication of defamatory matter that accrues on or after
commencement day (the "post-commencement action") if --
15 (a) the post-commencement action is one of 2 or more
causes of action in proceedings commenced by the
plaintiff;
(b) each cause of action in the proceedings accrues because
of the publication of the same, or substantially the same,
20 matter on separate occasions (whether by the same
defendant or another defendant);
(c) one or more of the other causes of action in the
proceedings accrued before commencement day (a
"pre-commencement action"); and
25 (d) the post-commencement action accrued no later than
12 months after the day on which the earliest
pre-commencement action in the proceedings accrued.
9. Limitation periods under other written laws
(1) This Act (except section 28(3) and(5)) does not affect the
30 operation of a limitation provision in another written law, or
anything done under such a provision.
page 8
Limitation Bill 2005
Preliminary Part 1
s. 10
(2) In subsection (1) --
"limitation provision" includes --
(a) a provision that establishes, modifies, or extinguishes
a cause of action or a defence to a cause of action;
5 (b) a provision prescribing the time within which an
action can be commenced (including a law providing
for the extension or shortening of that time);
(c) a provision in respect of the limitation or exclusion of
liability or the barring of a right of action if an action
10 is not commenced within a particular time limit.
10. Application to Crown
(1) Subject to subsection (2) and to sections 19(2) and 76, this Act
binds the Crown.
(2) This Act does not apply to an action by the Crown --
15 (a) for the recovery of a tax or interest on a tax; or
(b) in respect of the forfeiture of a ship.
page 9
Limitation Bill 2005
Part 2 Limitation periods
Division 1 Preliminary
s. 11
Part 2 -- Limitation periods
Division 1 -- Preliminary
11. Limitation periods under this Part are extendable etc. under
Part 3
5 (1) Divisions 2 and 3 have effect subject to Part 3.
(2) Subsection (1) is subject to section 28(5).
12. When actions commence
(1) In this Part a reference to the commencement of an action is a
reference to the issue in the appropriate court of a writ or other
10 originating application in relation to the action.
(2) Nothing in subsection (1) affects the operation of section 88.
Division 2 -- General limitation period
13. General limitation period -- 6 years
(1) An action on any cause of action cannot be commenced if
15 6 years have elapsed since the cause of action accrued.
(2) Subsection (1) does not apply to an action if Division 3 provides
for a different limitation period for that action.
Division 3 -- Limitation periods for particular causes of action
14. Personal injury, Fatal Accidents Act 1959 actions -- 3 years
20 (1) An action for damages relating to a personal injury to a person
cannot be commenced if 3 years have elapsed since the cause of
action accrued.
(2) An action under the Fatal Accidents Act 1959 for damages
relating to the death of a person cannot be commenced if 3 years
25 have elapsed since the death.
page 10
Limitation Bill 2005
Limitation periods Part 2
Limitation periods for particular causes of action Division 3
s. 15
15. Defamation -- one year from publication
An action relating to the publication of defamatory matter
cannot be commenced if one year has elapsed since the
publication.
5 16. Trespass to the person etc. -- 3 years
An action for --
(a) trespass to the person;
(b) assault;
(c) battery; or
10 (d) imprisonment,
cannot be commenced if 3 years have elapsed since the cause of
action accrued.
17. Contribution between tortfeasors -- 2 years
An action for contribution under the Law Reform (Contributory
15 Negligence and Tortfeasors' Contribution) Act 1947 section 7
cannot be commenced if 2 years have elapsed since the cause of
action accrued.
18. Deeds -- 12 years
An action on a cause of action founded on a deed cannot be
20 commenced if 12 years have elapsed since the cause of action
accrued.
19. Recovery of land -- 12 years
(1) An action to recover land cannot be commenced if 12 years
have elapsed since the cause of action accrued.
25 (2) Despite subsection (1), an action to recover land may be
commenced at any time if it is brought --
(a) by the Crown or a person claiming through the Crown;
and
page 11
Limitation Bill 2005
Part 2 Limitation periods
Division 3 Limitation periods for particular causes of action
s. 20
(b) on a cause of action which accrues to the Crown.
20. Money secured on real property or on real and personal
property -- 12 years
An action to recover principal money secured by a mortgage of
5 real property or real and personal property whether --
(a) from any person, whether as principal, surety or
otherwise;
(b) by way of the appointment of a receiver of the
mortgaged property or of the income or profits of the
10 mortgaged property;
(c) by way of the sale, lease or other disposition or
realisation of the mortgaged property; or
(d) by way of any other remedy affecting the mortgaged
property,
15 cannot be commenced if 12 years have elapsed since the cause
of action accrued.
21. Interest secured on real property or on real and personal
property
(1) In this section --
20 "action" means an action to recover interest secured by a
mortgage of real property or real and personal property
whether --
(a) from any person, whether as principal, surety or
otherwise;
25 (b) by way of the appointment of a receiver of the
mortgaged property or of income or profits of the
mortgaged property;
(c) by way of the sale, lease or other disposition or
realisation of the mortgaged property; or
30 (d) by way of any other remedy affecting the mortgaged
property.
page 12
Limitation Bill 2005
Limitation periods Part 2
Limitation periods for particular causes of action Division 3
s. 22
(2) An action cannot be commenced --
(a) after the occurrence of the only or later of such of the
following events as are applicable --
(i) the elapse of 6 years since the cause of action
5 accrued;
(ii) in the case where a mortgagee under a prior
mortgage is in possession of all or any of the
property comprised in the mortgage securing the
interest when the cause of action accrued, and
10 after that time discontinues possession, the
elapse of one year since the discontinuance;
or
(b) if the limitation period provided for under section 20 for
an action between the same parties on a cause of action
15 to recover the principal money bearing the interest has
expired.
22. Interest secured on personal property
(1) In this section --
"action" means an action to recover interest secured by a
20 mortgage of personal property whether --
(a) from any person, whether as principal, surety or
otherwise;
(b) by way of the appointment of a receiver of the
mortgaged property or of income or profits of the
25 mortgaged property;
(c) by way of the sale, lease or other disposition or
realisation of the mortgaged property; or
(d) by way of any other remedy affecting the mortgaged
property.
page 13
Limitation Bill 2005
Part 2 Limitation periods
Division 3 Limitation periods for particular causes of action
s. 23
(2) An action cannot be commenced --
(a) after the occurrence of the only or later of such of the
following events as are applicable --
(i) the elapse of 6 years since the cause of action
5 accrued;
(ii) in the case where a mortgagee under a prior
mortgage is in possession of all or any of the
property comprised in the mortgage securing the
interest when the cause of action accrued, and
10 after that time discontinues possession, the
elapse of one year since the discontinuance;
or
(b) if the limitation period for an action between the same
parties on a cause of action to recover the principal
15 money bearing the interest has expired.
23. Possession -- 12 years
An action to recover from a mortgagor possession of real
property or real and personal property secured by a mortgage
cannot be commenced if 12 years have elapsed since the cause
20 of action accrued.
24. Foreclosure -- 12 years
An action to foreclose the equity of redemption of real property
or real and personal property secured by a mortgage cannot be
commenced if 12 years have elapsed since the cause of action
25 accrued.
page 14
Limitation Bill 2005
Limitation periods Part 2
Limitation periods for particular causes of action Division 3
s. 25
25. Redemption -- 12 years
An action to redeem mortgaged property (whether real or
personal) in the possession of a mortgagee cannot be
commenced if 12 years have elapsed since the occurrence of the
5 only or later of such of the following events as are applicable --
(a) the most recent possession by the mortgagee of the
property in respect of which the action is brought;
(b) the receipt by the mortgagee of the most recent payment
of principal money or interest secured by the mortgage
10 from the person wishing to redeem the property.
26. Accounts -- limitation period for the basis of the duty to
account applies
An action for an account cannot be commenced if the limitation
period for the cause of action that is the basis of the duty to
15 account has expired.
27. Equitable actions (not analogous to other actions)
(1) An equitable action cannot be commenced after the only or later
of such of the following events as are applicable --
(a) the elapse of 6 years since the cause of action accrued;
20 or
(b) the elapse of 3 years since time started running, on
equitable principles, for the commencement of the
action.
(2) In this section --
25 "equitable action" means an action --
(a) in which the relief sought is in equity; and
(b) for which (had a limitation period not been provided
for under subsection (1) or section 13) the limitation
period would not be determined in equity by analogy
30 to the limitation period for any other kind of action.
page 15
Limitation Bill 2005
Part 2 Limitation periods
Division 3 Limitation periods for particular causes of action
s. 28
28. Tax mistakenly paid -- 12 months or as provided under
other Act
(1) An action to recover, or in relation to the recovery of, money
paid by way of tax or purported tax under a mistake (either of
5 law or fact) cannot be commenced if 12 months have elapsed
since the payment.
(2) Subsection (1) does not apply if another Act provides for a
longer limitation period for commencing the action.
(3) Despite subsections (1) and (2) and anything to the contrary in
10 another Act, if money paid by way of tax or purported tax is
recoverable because of the invalidity of an Act or provision of
an Act, an action to recover, or in relation to the recovery of,
that money cannot be commenced if 12 months have elapsed
since the payment.
15 (4) Subsection (3) does not apply to an action for the recovery of
money that, assuming that the Act or provision of an Act
imposing or purporting to impose the tax had been valid, would
nevertheless have represented an overpayment of tax, if the Act
provides for the refund or recovery of the money within a period
20 longer than 12 months from the payment.
(5) An order cannot be made under this or any other Act enabling
or permitting an action to which subsection (3) applies to be
commenced after the expiry of the period mentioned in that
subsection.
25 29. Arbitration -- limitation period for corresponding civil
proceeding applies
An arbitration for a difference or matter under an arbitration
provision cannot be commenced if the limitation period that
would apply under this Act to the bringing of a civil proceeding
30 in a court for the resolution or determination of the difference or
matter has expired.
page 16
Limitation Bill 2005
Extension or shortening of limitation periods Part 3
Extension for persons under 18 years when cause of action Division 1
accrues
s. 30
Part 3 -- Extension or shortening of limitation periods
Division 1 -- Extension for persons under 18 years when cause
of action accrues
30. Limitation periods applicable to persons under 15 when
5 cause of action accrues
(1) If a person is under 15 years of age when a cause of action
accrues to the person, an action on that cause of action cannot
be commenced if 6 years have elapsed since the cause of action
accrued.
10 (2) Subsection (1) does not apply if Part 2 Division 3 provides for a
longer limitation period for commencing the action.
31. Limitation periods applicable to persons between 15 and 18
when cause of action accrues
(1) If a person is 15, 16 or 17 years of age when a cause of action
15 accrues to the person, an action on that cause of action cannot
be commenced if the person has reached 21 years of age.
(2) Subsection (1) does not apply if Part 2 Division 2 or 3 provides
for a longer limitation period for commencing the action.
32. Suspension of time while person under 18 is without
20 guardian
(1) If --
(a) a person is under 18 years of age when a cause of action
accrues to the person; and
(b) during any time after the accrual but before the person
25 reaches 18 years of age the person is without a guardian,
the time during which the person is without a guardian does not
count in the reckoning of the limitation period for commencing
an action on the cause of action.
page 17
Limitation Bill 2005
Part 3 Extension or shortening of limitation periods
Division 1 Extension for persons under 18 years when cause of action
accrues
s. 33
(2) Despite subsection (1), an action on the cause of action cannot
be commenced --
(a) if the person has reached 21 years of age; or
(b) in the case where Part 2 Division 2 or 3 provides for a
5 longer limitation period for commencing the action, if
that limitation period has expired.
(3) This section is subject to section 33.
33. Defendant in close relationship with person under 18 when
cause of action accrues
10 (1) If --
(a) a person is under 18 years of age when a cause of action
accrues to the person ("person A"); and
(b) during any time after the accrual but before person A
reaches 18 years of age a defendant is a person in a close
15 relationship with person A,
an action on that cause of action cannot be commenced if
person A has reached 25 years of age.
(2) Subsection (1) does not apply if Part 2 Division 3 provides for a
longer limitation period for commencing the action.
20 (3) In subsection (1) --
"defendant" includes a person for whom a defendant is
vicariously liable;
"person in a close relationship", in relation to person A,
means --
25 (a) a person ("person B") who at law has responsibility
for --
(i) the long-term care, welfare and development
of person A before person A reaches 18 years
of age; or
page 18
Limitation Bill 2005
Extension or shortening of limitation periods Part 3
Extension for persons with mental disability Division 2
s. 34
(ii) the day to day care, welfare and development
of person A before person A reaches 18 years
of age;
or
5 (b) a person ("person C") whose relationship with
person A or person B is such that it is in the
circumstances reasonable --
(i) for person A or person B not to commence an
action against person C; or
10 (ii) for person A not to wish to divulge the
conduct or events in respect of which an
action against person C would be founded.
34. Defamation
Sections 30, 31, 32 and 33 do not apply to an action relating to
15 the publication of defamatory matter.
Division 2 -- Extension for persons with mental disability
35. Suspension of time while person with mental disability is
without guardian
(1) If --
20 (a) a person is suffering a mental disability at any time after
a cause of action accrues to the person; and
(b) during the time in which the person is suffering the
mental disability the person is without a guardian,
the time during which the person is without a guardian does not
25 count in the reckoning of a limitation period for commencing an
action on the cause of action.
(2) Despite subsection (1), an action on the cause of action cannot
be commenced if 12 years have elapsed since the cause of
action accrued.
30 (3) This section is subject to section 36.
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Limitation Bill 2005
Part 3 Extension or shortening of limitation periods
Division 2 Extension for persons with mental disability
s. 36
36. Defendant in close relationship with person with mental
disability
(1) If --
(a) a person ("person A") is suffering a mental disability at
5 any time after a cause of action accrues to person A; and
(b) during the time in which person A is suffering the
mental disability a defendant is a person in a close
relationship with person A,
an action on that cause of action cannot be commenced if
10 3 years have elapsed since the relationship ceased.
(2) Subsection (1) does not apply if Part 2 Division 2 or 3 provides
for a longer limitation period for commencing the action.
(3) Despite subsection (1), an action on the cause of action cannot
be commenced if 30 years have elapsed since the cause of
15 action accrued.
(4) In subsection (1) --
"defendant" includes a person for whom a defendant is
vicariously liable;
"person in a close relationship", in relation to person A,
20 means --
(a) a guardian of person A; or
(b) a person ("person B") whose relationship with
person A or a guardian of person A is such that it is
in the circumstances reasonable --
25 (i) for person A or the guardian not to commence
an action against person B; or
(ii) for person A not to wish to divulge the
conduct or events in respect of which an
action against person B would be founded.
page 20
Limitation Bill 2005
Extension or shortening of limitation periods Part 3
Extension by courts Division 3
s. 37
37. Defamation
Sections 35 and 36 do not apply to an action relating to the
publication of defamatory matter.
Division 3 -- Extension by courts
5 38. Court may extend time to commence actions in cases of
fraud or improper conduct
(1) A plaintiff may apply to a court for leave to commence an
action on a cause of action even though the limitation period
provided for under this Act has expired.
10 (2) On an application a court may extend the time in which the
action can be commenced up to 3 years from when the action
ought reasonably to have been commenced if the court is
satisfied that the failure to commence the action was attributable
to fraudulent or other improper conduct of the defendant or a
15 person for whom the defendant is vicariously liable.
(3) Nothing in section 39, 41 or 42 prevents a court from extending,
under this section, the time in which a plaintiff can commence
an action.
(4) This section does not apply to an action relating to the
20 publication of defamatory matter.
39. Court may extend time to commence actions for personal
injury or under Fatal Accidents Act 1959
(1) A plaintiff may apply to a court for leave to commence an
action for damages relating to a personal injury to a person even
25 though the limitation period provided for under this Act has
expired.
(2) A plaintiff may apply to a court for leave to commence an
action under the Fatal Accidents Act 1959 for damages relating
to the death of a person even though the limitation period
30 provided for under this Act has expired.
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Limitation Bill 2005
Part 3 Extension or shortening of limitation periods
Division 3 Extension by courts
s. 39
(3) On an application a court may extend the time in which the
action can be commenced if the court is satisfied that, when the
limitation period expired, a person to whom the cause of action
accrues --
5 (a) was not aware of the physical cause of the death or
injury;
(b) was aware of the physical cause of the death or injury
but was not aware that the death or injury was
attributable to the conduct of a person; or
10 (c) was aware of the physical cause of the death or injury
and that the death or injury was attributable to the
conduct of a person but after reasonable enquiry, had
been unable to establish that person's identity.
(4) On an application a court may extend the time in which the
15 action can be commenced up to 3 years from when a person to
whom the cause of action accrues became aware, or ought
reasonably to have become aware --
(a) of the physical cause of the death or injury;
(b) that the death or injury was attributable to the conduct of
20 a person (whether a defendant or not); and
(c) of the identity of the person mentioned in paragraph (b).
(5) In this section --
"person to whom the cause of action accrues" --
(a) in the case of a person who is under 18 years of age
25 when the cause of action accrues, means either that
person or a guardian of that person;
(b) in the case of a person with a mental disability,
means either that person or a guardian of that person;
(c) in the case of an action under the Fatal Accidents
30 Act 1959 to be brought by a personal representative
of a deceased person, means the personal
representative;
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Extension or shortening of limitation periods Part 3
Extension by courts Division 3
s. 40
(d) in the case of an action under the Fatal Accidents
Act 1959 to be brought by a person under section 9(1)
of that Act, means that person;
(e) in the case of an action of a kind to which the Law
5 Reform (Miscellaneous Provisions) Act 1941
section 4 applies, means either the deceased person or
a personal representative of that person.
40. Court may extend time to commence defamation actions
(1) A plaintiff may apply to a court for leave to commence an
10 action relating to the publication of defamatory matter even
though one year has elapsed since the publication.
(2) Subject to subsection (3), on an application a court, if satisfied
that it was not reasonable in the circumstances for the plaintiff
to have commenced an action in relation to the matter
15 complained of within one year from the publication, must
extend the time in which the action can be commenced.
(3) An action relating to the publication of defamatory matter
cannot be commenced if 3 years have elapsed since the
publication.
20 41. Court may extend time to commence action by person under
18 when cause of action accrues, with guardian
(1) A plaintiff who was under 18 years of age when a cause of
action accrued to that person may apply to a court for leave to
commence an action even though the limitation period provided
25 for under this Act has expired.
(2) Subject to subsection (3), on an application a court may extend
the time in which the action can be commenced up to when the
plaintiff reaches 21 years of age.
(3) A court is not to extend time on an application unless the court
30 is satisfied that in the circumstances it was unreasonable for a
guardian of the plaintiff not to commence the action within the
limitation period for the action.
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Limitation Bill 2005
Part 3 Extension or shortening of limitation periods
Division 3 Extension by courts
s. 42
(4) This section does not apply to an action relating to the
publication of defamatory matter.
42. Court may extend time to commence action by person with
a mental disability, with guardian
5 (1) A plaintiff who suffers a mental disability at any time after a
cause of action accrues to that person may apply to a court for
leave to commence an action even though the limitation period
provided for under this Act has expired.
(2) Subject to subsection (3), on an application a court may extend
10 the time in which the action can be commenced up to 12 years
from when the cause of action accrued.
(3) A court is not to extend time on an application unless the court
is satisfied that in the circumstances it was unreasonable for a
guardian of the plaintiff not to commence the action within the
15 limitation period for the action.
(4) This section does not apply to an action relating to the
publication of defamatory matter.
43. Jurisdiction and procedure
(1) Subject to subsection (2), an extension application is to be made
20 by summons in the jurisdiction in which --
(a) the existing action, if any, has been brought; or
(b) the proposed action would be brought if the application
were successful,
as is relevant to the case.
25 (2) An extension application in respect of an arbitration for a
difference or matter under an arbitration provision is to be made
by summons to the Supreme Court.
(3) The plaintiff is to serve a copy of the summons on each person
against whom the action that is the subject of the extension
30 application is brought or proposed to be brought.
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Extension or shortening of limitation periods Part 3
Extension or shortening by agreement Division 4
s. 44
(4) Despite subsection (1), the Supreme Court may give leave to
bring an action in any court which seems to it to be the
appropriate court.
(5) An extension application can be sought or determined at any
5 time before or after the issue, or close of, pleadings.
44. Further matters for court's consideration on extension
applications
When deciding, on an extension application, whether to extend
the time for the commencement of an action, a court is to have
10 regard to --
(a) whether the delay in commencing the proposed action,
whatever the merit of the reasons for that delay, would
unacceptably diminish the prospects of a fair trial of the
action; and
15 (b) whether extending the time would significantly
prejudice the defendant (other than by reason only of the
commencement of the proposed action).
Division 4 -- Extension or shortening by agreement
45. Agreement to extend or shorten limitation period
20 (1) Nothing in this Act prevents a person from agreeing to extend or
shorten a limitation period provided for under this Act.
(2) Despite subsection (1), a provision in, or condition of, an
agreement is of no effect if it purports to --
(a) exclude the operation of section 33, 36 or 38; or
25 (b) extinguish (rather than bar) a right or title in relation to
an action in a manner that would be inconsistent with a
provision of Part 5.
page 25
Limitation Bill 2005
Part 3 Extension or shortening of limitation periods
Division 5 Extension by confirmation
s. 46
Division 5 -- Extension by confirmation
46. Meaning of confirmation
(1) For the purposes of this Act, a person confirms a cause of action
if the person --
5 (a) acknowledges, to a person having the cause of action
("person A"), person A's right or title, even though the
acknowledgment does not disclose a promise to pay;
(b) makes, to a person having the cause of action
("person B"), a payment in relation to person B's right
10 or title and makes the payment in circumstances not
inconsistent with an acknowledgment of that right or
title; or
(c) makes, to a person having a cause of action to foreclose
the equity of redemption of mortgaged property or to
15 recover possession of mortgaged property
("person C"), a payment of principal or interest secured
by the mortgage or a payment to person C otherwise in
relation to person C's right or title to the mortgage.
(2) In subsection (1) a reference to a person having a cause of
20 action is a reference to the person having the cause of action
either solely or with other persons.
47. Limitation period extended by confirmation
If a cause of action lies against a person (either solely or with
other persons) and the person confirms the cause of action --
25 (a) after the limitation period provided for under this Act
for the cause of action begins to run; and
(b) before that limitation period expires,
the time during which the limitation period runs before the
confirmation is made does not count in the reckoning of the
30 limitation period for an action on the cause of action by a person
having the benefit of the confirmation against a person bound
by the confirmation.
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Extension or shortening of limitation periods Part 3
Extension by confirmation Division 5
s. 48
48. Formal requirements for acknowledgments
For the purposes of section 46(1)(a), an acknowledgment is of
no effect unless it is in writing and signed by the maker.
49. Who has benefit of confirmation
5 For the purposes of this Act, a person ("person A") has the
benefit of a confirmation if the confirmation is made to
person A or to a person through whom person A claims.
50. Who is bound by confirmation
(1) For the purposes of this Act, a person ("person A") is bound by
10 a confirmation if --
(a) person A is a maker of the confirmation;
(b) person A is, in relation to the cause of action, a
successor of a maker under a devolution from the maker
occurring after the making of the confirmation;
15 (c) in the case where the maker is, at the time when the
maker makes the confirmation, a personal representative
of a deceased person (either solely or with other
persons) -- person A is, at or after that time, a personal
representative of the deceased person;
20 (d) in the case where the maker is, at the time when the
maker makes the confirmation, a trustee other than a
personal representative of a deceased person (either
solely or with other persons) -- person A is, at or after
that time, a trustee of the trust of which the maker is a
25 trustee; or
(e) person A is bound under subsection (2).
(2) If a maker of a confirmation of a cause of action in relation to
property is in possession of the property when the confirmation
is made, the confirmation binds a person subsequently in
30 possession of the property who claims through the maker of the
confirmation.
page 27
Limitation Bill 2005
Part 3 Extension or shortening of limitation periods
Division 6 Extension of limitation periods -- other matters
s. 51
51. Effects of certain kinds of confirmation
(1) A confirmation of a cause of action to recover interest on
principal money operates also as a confirmation of a cause of
action to recover the principal money.
5 (2) A confirmation of a cause of action to recover income becoming
due at any time operates also as a confirmation of a cause of
action to recover income falling due at a later time on the same
account.
Division 6 -- Extension of limitation periods -- other matters
10 52. Persons with mental disability under 18 when cause of
action accrues -- most beneficial limitation period applies
If --
(a) a person is under 18 years of age when a cause of action
accrues to the person;
15 (b) during any time after that time the person is suffering a
mental disability; and
(c) different limitation periods for commencing an action on
the cause of action are provided for under section 7 or
Division 1 or 2,
20 the limitation period for commencing the action is the longer of
those limitation periods.
53. Limitation period in case of death of certain persons if cause
of action accrues to certain other persons
(1) In this section --
25 "person A" means --
(a) a person who is under 18 years of age when a cause
of action accrues to the person and who dies without
having reached 18 years of age; or
(b) a person who, at any time after a cause of action
30 accrues to the person, is suffering a mental disability
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Limitation Bill 2005
Extension or shortening of limitation periods Part 3
Extension of limitation periods -- other matters Division 6
s. 54
and who dies at a time when the person is suffering
the mental disability.
(2) If, on person A's death, person A's cause of action accrues to a
person ("person B") who is either under 18 years of age or
5 suffering a mental disability when person A dies, a further
extension of time is not allowed by reason of person B's being
under 18 years of age or suffering a mental disability.
54. Arbitration -- extension of limitation period
(1) If a court --
10 (a) removes an arbitrator or umpire;
(b) restrains a party or an arbitrator or umpire from
proceeding with an arbitration; or
(c) sets aside an arbitral award,
the court may at the same time or within 6 months afterwards,
15 whether or not the limitation period provided for under this Act
for commencing an action with respect to the difference or
matter under arbitration has expired, order that the whole or any
part of the time between the commencement of the arbitration
and the making of the order under this section does not count in
20 the reckoning of the limitation period.
(2) If, after the expiration of a limitation period provided for under
this Act, a court makes an order under this section, the
expiration of the first limitation period has no effect for the
purposes of this Act.
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Limitation Bill 2005
Part 4 Accrual of particular causes of action
Division 1 Accrual of certain causes of action other than to recover land
s. 55
Part 4 -- Accrual of particular causes of action
Division 1 -- Accrual of certain causes of action other than to
recover land
55. Personal injury -- general
5 (1) A cause of action for damages relating to a personal injury to a
person accrues when the only or earlier of such of the following
events as are applicable occurs --
(a) the person becomes aware that he or she has sustained a
not insignificant personal injury;
10 (b) the first symptom, clinical sign or other manifestation of
personal injury consistent with the person having
sustained a not insignificant personal injury.
(2) This section does not apply to a personal injury that is
attributable to the inhalation of asbestos.
15 56. Personal injury -- asbestos related diseases
(1) A cause of action for damages relating to a personal injury --
(a) that is attributable to the inhalation of asbestos; and
(b) to a person who did not have knowledge of the relevant
facts before 1 January 1984,
20 accrues when the person has knowledge of the relevant facts.
(2) For the purposes of this section a person has knowledge of the
relevant facts in relation to a cause of action when the person
has knowledge --
(a) that the injury in question was significant;
25 (b) that the injury was attributable in whole or in part to the
act or omission which is alleged to constitute the cause
of action;
(c) of the identity of the defendant; and
(d) if it is alleged that the act or omission was that of a
30 person other than the defendant, of the identity of that
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Limitation Bill 2005
Accrual of particular causes of action Part 4
Accrual of certain causes of action other than to recover land Division 1
s. 56
person and the additional facts supporting the bringing
of an action against the defendant,
and knowledge that any acts or omissions did or did not, as a
matter of law, give rise to a cause of action is irrelevant.
5 (3) For the purposes of this section an injury is significant if the
person whose knowledge is in question would reasonably have
considered it sufficiently serious to justify the person's
commencing an action for damages against a defendant who did
not dispute liability and was able to satisfy a judgment.
10 (4) For the purposes of this section, an injury that --
(a) before 14 November 2005, is a disability as defined in
the Workers' Compensation and Injury Management
Act 1981; or
(b) on or after 14 November 2005, is an injury as defined in
15 that Act,
is not to be treated as being significant unless either the parties
to the proposed action have agreed, or a medical panel
constituted as described in section 36(1) of that Act --
(c) has determined that the degree of the disability assessed
20 in accordance with section 93D(2) of that Act, is 30% or
more; or
(d) has assessed that the worker's degree of whole of person
impairment evaluated as described in sections 146A and
146C of that Act (on or after 14 November 2005), is
25 25% or more,
as is relevant in the worker's case.
(5) For the purposes of this section a person's knowledge includes
knowledge which the person might reasonably have been
expected to acquire --
30 (a) from facts observable or ascertainable by the person; or
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Limitation Bill 2005
Part 4 Accrual of particular causes of action
Division 1 Accrual of certain causes of action other than to recover land
s. 57
(b) from facts ascertainable by the person with the help of
medical or other appropriate expert advice which it is
reasonable for the person to seek,
but a person is not to be fixed under this subsection with
5 knowledge of a fact ascertainable only with the help of expert
advice so long as the person has taken all reasonable steps to
obtain (and, where appropriate, to act on) that advice.
57. Survival of certain actions
(1) If a person dies as a result of a personal injury other than an
10 injury that is attributable to the inhalation of asbestos but,
immediately before the death, a cause of action relating to the
personal injury had not accrued under section 55, the cause of
action relating to the personal injury is to be taken as having
accrued when the person died.
15 (2) If a person dies as a result of a personal injury that is
attributable to the inhalation of asbestos but, immediately before
the death, a cause of action relating to the personal injury had
not accrued under section 56, the cause of action relating to the
personal injury is to be taken as having accrued when the person
20 died.
58. Contributions between tortfeasors
A cause of action for contribution under the Law Reform
(Contributory Negligence and Tortfeasors' Contribution)
Act 1947 section 7 accrues to a person ("person A") --
25 (a) in the case where person A is liable in respect of the
damage for which contribution is claimed by judgment
of a court or by arbitral award -- when the judgment is
given or the award is made, whether or not, in the case
of a judgment, the judgment is afterwards varied as to
30 quantum of damages; or
(b) in any other case, if person A makes an agreement with
a person having a cause of action for the damage for
which the cause of action for contribution arises, which
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Limitation Bill 2005
Accrual of particular causes of action Part 4
Accrual of certain causes of action other than to recover land Division 1
s. 59
agreement fixes, as between the parties to the
agreement, the amount of the liability in respect of the
damage of person A or a person through whom person A
claims -- when the agreement is made.
5 59. Debts repayable on demand
A cause of action for the repayment of a debt repayable on
demand accrues when there is a failure to comply with a
demand for repayment.
60. Successive wrongs to goods
10 If --
(a) a cause of action for the conversion or detention of
goods accrues to a person;
(b) possession of the goods is not recovered by the person
or by a person claiming through the person; and
15 (c) a further cause of action for the conversion or detention
of the goods or a cause of action to recover the proceeds
of sale of the goods accrues to the person or to a person
claiming through the person,
the cause of action for the further conversion or detention or to
20 recover the proceeds of sale accrues when the cause of action
mentioned in paragraph (a) accrues.
61. Equitable interests
A cause of action to enforce an equitable estate or interest in
land accrues, for the purposes of this Act, in the same manner
25 and circumstances as, and when, a cause of action to recover the
land would accrue if the estate or interest were a legal estate or
interest.
page 33
Limitation Bill 2005
Part 4 Accrual of particular causes of action
Division 2 Accrual of certain causes of action to recover land
s. 62
62. Future interests of beneficiaries under trusts
A cause of action of a beneficiary relating to a future interest in
trust property accrues when the beneficiary becomes entitled to
immediate possession of the property.
5 63. Matters referable to arbitration
If, under an arbitration provision, a cause of action with respect
to any difference or matter referable to arbitration under the
arbitration provision --
(a) does not accrue until the making of an arbitral award or
10 the happening of some other event in or relating to the
arbitration; or
(b) does not accrue at all,
the cause of action nevertheless accrues, for the purposes of the
application of this Act to an arbitration under the arbitration
15 provision, when it would have accrued but for that arbitration
provision.
64. Arbitral awards
A cause of action to enforce an arbitral award accrues when
default in observance of the award first occurs, being the default
20 in respect of which the action is brought.
Division 2 -- Accrual of certain causes of action to recover land
65. Adverse possession
(1) A cause of action to recover land does not accrue unless the
land is in adverse possession and if, under this Act, such a cause
25 of action would have accrued at a certain time but the land is not
in adverse possession at that time, the cause of action does not
accrue unless and until adverse possession of the land is taken.
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Limitation Bill 2005
Accrual of particular causes of action Part 4
Accrual of certain causes of action to recover land Division 2
s. 66
(2) Subject to subsection (3), if --
(a) a cause of action accrues to recover land from a person
in adverse possession of the land; and
(b) afterwards, the land is in the adverse possession of a
5 second person, whether the second person claims
through the first person or not,
the cause of action to recover the land from the second person
accrues when the cause of action mentioned in paragraph (a)
accrues.
10 (3) If a cause of action to recover land accrues and afterwards, but
before the limitation period for the action expires, the land
ceases to be in adverse possession, the cause of action does not
accrue unless and until adverse possession of the land is taken
again.
15 66. Dispossession or discontinuance
A cause of action to recover land by a person who has been in
possession of the land and, while entitled to the land, is
dispossessed or discontinues possession, accrues when the
person is dispossessed, or discontinues the possession.
20 67. Deceased in possession
A cause of action to recover the land of a deceased person
(whether under a will or on intestacy) accrues when the
deceased died if, at that time, the deceased was --
(a) in possession of the land, or in the case of a rentcharge
25 created by will or taking effect upon the deceased's
death, in possession of the land charged; and
(b) the last person entitled to the land to be in possession of
the land.
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Limitation Bill 2005
Part 4 Accrual of particular causes of action
Division 2 Accrual of certain causes of action to recover land
s. 68
68. Grantor in possession
A cause of action to recover a person's land being an estate or
interest assured as an estate or interest in possession (otherwise
than by will) to the person, accrues when the assurance takes
5 effect if --
(a) when the assurance takes effect, the person making the
assurance is in possession under the estate or interest
claimed or under an estate or interest out of which the
assurance is made; and
10 (b) after the time the assurance takes effect and before the
action is commenced, no person is in possession under
the estate or interest claimed and under the assurance.
69. Future interests in land
(1) A cause of action to recover land in which a person has a future
15 interest accrues when the person becomes entitled to immediate
possession of the land if, after the person becomes so entitled
and before the action is commenced, no person is in possession
under the interest claimed.
(2) Subsection (1) is subject to section 77.
20 70. Forfeiture
Subject to section 71, if --
(a) a cause of action, arising from a forfeiture, to recover
land accrues to a person who has a future interest in the
land; and
25 (b) neither the person nor a person claiming under the
person recovers the land,
a fresh cause of action to recover the land accrues to a person
who becomes entitled to immediate possession of the land when
that person becomes so entitled.
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Limitation Bill 2005
Accrual of particular causes of action Part 4
Accrual of certain causes of action to recover land Division 2
s. 71
71. Rent wrongly paid
If --
(a) a tenant is in possession of land under a lease for a term
reserving a rent amounting to a yearly sum of not less
5 than $2.00;
(b) the rent is received by a person wrongfully claiming to
be entitled to the land subject to the lease; and
(c) no rent is afterwards received by the landlord and in
consequence the lease can be determined,
10 the cause of action of the landlord to recover the land from a
person mentioned in paragraph (a) or (b) or from a person
claiming under such a person accrues at the earliest time when
the lease can be determined.
72. Tenancies
15 (1) A cause of action of a person entitled to land subject to a
periodic tenancy to recover the land from the tenant or from a
person claiming under the tenant accrues when the only or later
of such of the following events as are applicable occurs --
(a) the first year or other period of the tenancy expires;
20 (b) if the tenancy is at a rent -- the rent payable to the
person having the cause of action or a person through
whom the person claims first becomes overdue.
(2) A cause of action of a person entitled to land subject to a
tenancy at will to recover the land from the tenant or from a
25 person claiming under the tenant accrues when the only or later
of such of the following events as are applicable occurs --
(a) the first year of the tenancy expires;
(b) if the tenancy is at a rent--the rent payable to the person
having the cause of action or a person through whom the
30 person claims first becomes overdue.
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Limitation Bill 2005
Part 4 Accrual of particular causes of action
Division 2 Accrual of certain causes of action to recover land
s. 73
(3) Subsection (1) or (2), as is applicable in the case, does not apply
if the cause of action accrues earlier because the tenancy is
determined.
73. Beneficial co-owners of land
5 (1) In this section --
"land" means land held on trust under a settlement;
"settlement" means a disposition, inter vivos or by will, of
property upon trust, where no person is, immediately after
the disposition takes effect, beneficially entitled to the trust
10 property absolutely.
(2) A cause of action to recover land that is in the possession of a
person entitled under the settlement to immediate possession of
the land does not, for the purposes of this Act, accrue during
such possession to the trustee or any other person entitled to an
15 estate or interest in the land under the settlement.
(3) Subsection (2) does not apply to a cause of action against --
(a) a person in possession who is solely and absolutely
entitled under the settlement to the land; or
(b) 2 or more persons in possession who are absolutely
20 entitled under the settlement to the land as joint tenants
or as tenants in common.
page 38
Limitation Bill 2005
Effect of expiration of limitation period Part 5
s. 74
Part 5 -- Effect of expiration of limitation period
74. Time to commence actions may be extended despite
extinguishment of rights
Nothing in this Part prevents --
5 (a) a person from making an application under
section 38, 41 or 42 for leave to commence an action to
recover land; or
(b) a court, on such an application, from extending the time
in which an action to recover land can be commenced,
10 even though the limitation period provided for under this Act
has expired.
75. Extinguishment of right and title to land
A person's right and title to land is extinguished --
(a) if the person does not commence an action to recover
15 the land before the expiry of the limitation period
provided for under this Act; or
(b) if --
(i) a court extends the time in which the person can
commence an action to recover the land; and
20 (ii) the person does not commence an action to
recover the land before the expiry of the
extended period.
76. No title by adverse possession against Crown
Despite any law that is, or has been, in effect the right, title or
25 interest of the Crown to, or in, any land is not affected in any
way by any possession of such land adverse to the Crown, and
is to be taken as never having been so affected.
page 39
Limitation Bill 2005
Part 5 Effect of expiration of limitation period
s. 77
77. Future interests in land
(1) If --
(a) a person's right to the immediate possession of land is
extinguished by this Act;
5 (b) at any time while the person has that right the person
also has a future interest in the land; and
(c) the land is not, before the person becomes entitled to
immediate possession of the land, recovered under an
intervening interest,
10 the future interest is extinguished when the person becomes
entitled to immediate possession of the land.
(2) For the purposes of this section, a person has a future interest
if --
(a) the person is contingently entitled to a future interest; or
15 (b) a future interest is vested in the person subject to
divesting in any event.
78. Provisions in case of land held on trust
(1) If land is held upon trust including a trust for sale and --
(a) the limitation period for an action by the trustee to
20 recover the land has expired; or
(b) a court extends the time in which the trustee can
commence an action to recover the land and the trustee
does not commence an action to recover the land before
the expiry of the extended period,
25 the estate of the trustee is not extinguished so long as the right
of action to recover the land of any person entitled to a
beneficial interest in the land or in the proceeds of sale either
has not accrued or has not been barred by this Act; but if every
such right of action has been so barred the estate of the trustee is
30 extinguished.
page 40
Limitation Bill 2005
Effect of expiration of limitation period Part 5
s. 78
(2) If land is held upon trust including a trust for sale, an action to
recover the land may be brought by the trustee on behalf of any
person entitled to a beneficial interest in possession in the land
or in the proceeds of sale whose right of action has not been
5 barred by this Act even though the right of action of the trustee
would apart from this provision have been barred by this Act.
page 41
Limitation Bill 2005
Part 6 Miscellaneous
s. 79
Part 6 -- Miscellaneous
79. Burden of proof
(1) Subject to subsection (2), a defendant in an action has the
burden of proving that the action cannot be commenced because
5 the applicable limitation period has expired.
(2) The plaintiff has the burden of proving that the time mentioned
in section 32(1) or 35(1) does not count in the reckoning of the
limitation period.
(3) The plaintiff in an extension application has the burden of
10 proving that a court should extend the relevant limitation period.
80. Grounds in equity upon which to refuse relief preserved
Nothing in this Act affects any equitable jurisdiction to refuse
relief on the ground of laches, acquiescence or otherwise.
81. Counterclaims -- commencement
15 (1) A counterclaim in an action (except a counterclaim solely by
way of defence) is, for the purposes of this Act, a separate
action.
(2) If a defendant in an action makes a counterclaim against a
plaintiff in the action the counterclaim is to be taken to have
20 commenced as against the plaintiff when the defendant became
a party to the action.
(3) If a defendant in an action makes a counterclaim against a
plaintiff in the action and then joins another person as a party
against whom the counterclaim is made the counterclaim is to
25 be taken to have commenced as against the other person when
the other person is joined as a party to the counterclaim.
82. Joint causes of action
If, were it not for this Act, 2 or more persons would have a
cause of action jointly but, because of this Act, an action on the
page 42
Limitation Bill 2005
Miscellaneous Part 6
s. 83
cause of action cannot be commenced by one or more of them,
an action on the cause of action may nonetheless be commenced
by the other or others of them and judgment may be given
accordingly.
5 83. Joint liability
If, were it not for this Act, 2 or more persons would be liable on
a cause of action jointly but, because of this Act, an action on
the cause of action cannot be commenced against one or more
of them, an action on the cause of action may nonetheless be
10 commenced against the other or others of them and judgment
may be given accordingly.
84. Formal entry and claim
For the purposes of this Act --
(a) a formal entry on land is not of itself possession or
15 evidence of possession of the land; and
(b) a claim in respect of land does not preserve a cause of
action to recover the land.
85. Other beneficiaries
If a beneficiary under a trust brings an action in relation to the
20 trust ("beneficiary 1's action"), any other beneficiary under the
trust ("beneficiary 2") is not entitled to derive from
beneficiary 1's action any benefit for which, because of this
Act, beneficiary 2 could not have commenced an action when
beneficiary 1's action was commenced.
25 86. Limited right to recover tax
(1) This section applies in respect of an action by a person (a
"claimant") to recover, or in relation to the recovery of, any
money paid by way of tax or purported tax.
page 43
Limitation Bill 2005
Part 6 Miscellaneous
s. 87
(2) Any judgment by a court in favour of a claimant is to be for
only that part of the amount claimed which the court is
satisfied --
(a) has not been charged directly to or recovered directly
5 from another person or, if it has been so charged or
recovered, has been refunded to the other person;
(b) will not be charged directly to or recovered directly
from another person; and
(c) has not been incorporated into the price of or charge for
10 any property or services.
(3) The claimant has the burden of satisfying the court as to the
matters mentioned in subsection (2).
87. Limited operation of certain court orders as to refund of tax
(1) This section applies when the effect of an order of a court (other
15 than a judgment mentioned in section 86(2)) is to oblige a
taxing authority to refund any money paid by way of tax or
purported tax.
(2) A taxing authority is to refund only that part of a tax or
purported tax which the taxing authority is satisfied --
20 (a) has not been charged directly to or recovered directly
from another person or, if it has been so charged or
recovered, has been refunded to the other person;
(b) will not be charged directly to or recovered directly
from another person; and
25 (c) has not been incorporated into the price of or charge for
any property or services.
(3) The person to whom the refund is to be made has the burden of
satisfying a taxing authority as to the matters mentioned in
subsection (2).
30 (4) In this section --
"taxing authority" means a person who or which under an Act
is responsible for the assessment or collection of any tax.
page 44
Limitation Bill 2005
Miscellaneous Part 6
s. 88
88. Arbitrations -- commencement
(1) For the purposes of this Act --
(a) if an arbitration provision requires or permits a party to
the arbitration to give notice in writing to another
5 party --
(i) requiring the other party to appoint or concur in
appointing an arbitrator; or
(ii) requiring the other party to submit or concur in
submitting a difference or matter to a person
10 named or designated in the provisions for
arbitration as arbitrator;
or
(b) if, in a case to which paragraph (a) does not apply, a
party to the arbitration takes a step required or permitted
15 by an arbitration provision for the purpose of bringing a
difference or matter before an arbitrator and gives to
another party notice in writing of the taking of the step,
the arbitration is to be taken to have commenced, as between the
party giving the notice and the party to whom the notice is
20 given, when the notice is given.
(2) For the purpose of subsection (1), a notice is given when the
notice is given --
(a) in accordance with the Interpretation Act 1984
section 76; or
25 (b) in a manner required or permitted by the provisions for
arbitration,
whichever occurs first.
page 45
Limitation Bill 2005
Defined Terms
Defined Terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined Term Provision(s)
action.......................................................................................3(1), 21(1), 22(1)
arbitral award...............................................................................................3(1)
arbitration provision.....................................................................................3(1)
beneficiary 1's action..................................................................................... 85
beneficiary 2.................................................................................................. 85
cause of action (childbirth)...........................................................................7(1)
claimant.....................................................................................................86(1)
commencement day......................................................................................3(1)
defendant.................................................................................3(1), 33(3), 36(4)
equitable action..........................................................................................27(2)
extension application....................................................................................3(1)
future interest...............................................................................................3(1)
guardian...................................................................................................... 3(1)
income.........................................................................................................3(1)
land ...................................................................................................3(1), 73(1)
limitation provision......................................................................................9(2)
mental disability...........................................................................................3(1)
mortgage......................................................................................................3(1)
mortgagee....................................................................................................3(1)
mortgagor....................................................................................................3(1)
person A ............... 3(1), 3(2), 3(3), 33(1), 36(1)(a), 46(1)(a), 47, 50(1), 53(1), 58
person B ................................................ 3(3), 33(3)(a), 34(4)(b), 46(1)(b), 53(2)
person C ................................................................................. 33(3)(b), 45(1)(c)
person in a close relationship............................................................33(3), 36(4)
person to whom the cause of action accrues......................................39(5), 40(4)
personal injury .............................................................................................3(1)
personal representative.................................................................................3(1)
plaintiff........................................................................................................3(1)
principal money ...........................................................................................3(1)
rent..............................................................................................................3(1)
rentcharge....................................................................................................3(1)
settlement ..................................................................................................73(1)
tax ...............................................................................................................3(1)
taxing authority..........................................................................................87(4)
tenant A.................................................................................................. 3(6)(d)
tenant B .................................................................................................. 3(6)(d)
trust .............................................................................................................3(1)
trustee..........................................................................................................3(1)
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