Limitation Act 1935 (WA)

Western Australia Limitation Act 1935 Western Australia Limitation Act 1935 Contents 1. Short title 1 3. Interpretation 1 4. No land or rent to be recovered but within 12 years after the right of action accrued 2 5. When the right shall be deemed to have accrued 2 6. Where advantage of forfeiture is not taken by remainderman, he shall have a new right when his estate comes into possession 4 7. Provision for case of future estates 4 8. An administrator to claim as if he obtained the estate without interval after the death of deceased 5 9. In the case of a tenant at will, the right shall be deemed to have accrued at the end of one year 5 10. No person after a tenancy from year to year, to have any right but from the end of the first year or last payment of rent 6 11. Where rent amounting to $2 reserved by a lease has been wrongfully received, no right to accrue on determination of lease 6 12. A mere entry not to be deemed possession 7 13. No right to be preserved by continual claim 7 14. Possession of one coparcener etc., not to be the possession of the others 7 15. Acknowledgment in writing given to the person entitled or his agent, to be equivalent to possession or receipt of rent 7 16. In cases of infancy, etc., 6 years to be allowed from the termination of the disability or previous death 8 17. No time to be allowed for absence beyond seas 8 18. 30 years utmost allowance for disabilities 9 19. No further time to be allowed for a succession of disabilities 9 20. When the right to an estate in possession is barred the right of the same person to future estates also barred 9 21. Where tenant in tail is barred, remaindermen whom he might have barred shall not recover 10 22. Possession adverse to a tenant in tail, shall run on against the remaindermen whom he might have barred 10 23. Possession under an assurance by a tenant in tail 10 24. No suit in equity to be brought after the time when the plaintiff might have brought an action at law 11 25. In cases of express trust, the right shall not be deemed to have accrued until a conveyance to a purchaser 11 26. Time for recovering charge and arrears of interest not to be enlarged by express trust for raising same 12 27. In cases of fraud no time shall run whilst the fraud remains concealed 12 28. Saving the jurisdiction of equity on the ground of acquiescence or otherwise 12 29. Mortgagor to be barred at end of 12 years from the time when the mortgagee took possession or from the last written acknowledgment 13 30. At the end of the period of limitation the right of the party out of possession to be extinguished 14 31. Receipt of rent to be deemed receipt of profits 14 32. Money charged upon land and legacies to be deemed satisfied at the end of 12 years if no interest paid nor acknowledgment given 14 33. Claims to estate of intestates 15 34. No arrears of rent or interest to be recovered for more than 6 years 16 35. Mortgagees may bring actions to recover land within 12 years after last payment of principal or interest 16 36. No title by adverse possession against Crown 17 37. Actions on penal Statutes 17 37A. Limitation on proceeding for recovery of tax 17 37B. Limited right to recover tax 19 37C. Limited operation of certain court orders 19 38. Limitation of time for commencing other actions and suits 20 38A. Extended limitation period in certain cases 22 38B. Revival 26 39. Except absence beyond seas 26 40. Persons under disability allowed time from removal of disability 26 41. Extension of time where person liable is beyond the seas 27 42. Meaning of expression "beyond the seas" 27 43. No extension of time against a joint debtor not beyond the seas 27 44. Effect of acknowledgment, etc., preserved except in certain cases 28 45. Judgment may be recovered against some co‑defendants 29 46. Limitation to apply to counter‑claim and set‑off 29 47. Trustees may plead Statute of Limitations in certain cases 29 47A. Protection of persons acting in execution of statutory or other public duty 31 48. Crown not affected, except as expressly provided 34 48A. Various provisions repealed 34 49. Exception of cases provided for by other Acts 34 Notes Compilation table 36 Defined terms Western Australia Limitation Act 1935 An Act to consolidate and amend the law relating to the limitation of time for commencing actions and suits. 1. Short title This Act may be cited as the Limitation Act 1935 and shall come into force on a day to be fixed by proclamation 1. [2. Omitted under the Reprints Act 1984 s. 7(4)(e).] 3. Interpretation In this Act unless inconsistent with the context or subject matter — Action means a civil proceeding commenced, in the Supreme Court by writ or in such other manner as may be prescribed by Rules of Court, or in any inferior court in the manner prescribed by or under the Act conferring jurisdiction on such court. Land includes messuages and all corporeal hereditaments whatsoever, and any share, estate, or interest in them or any of them, whether the same is a freehold or chattel interest, and whether freehold or held according to any other tenure. Person includes a body corporate, and a class of persons as well as an individual. The person through whom another person is said to claim, means any person by, through, or under, or by the act of whom, the person so claiming became entitled in any capacity to the estate or interest claimed. Rent includes all annuities and periodical sums of money charged upon or payable out of any land. [Section 3 amended: No. 59 of 2004 s. 141.] 4. No land or rent to be recovered but within 12 years after the right of action accrued No person shall make an entry or distress, or bring an action to recover any land or rent, but within 12 years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to some person through whom he claims; or if such right shall not have accrued to any person through whom he claims, then within 12 years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to the person making or bringing the same. 5. When the right shall be deemed to have accrued In the construction of this Act, the right to make an entry or distress, or bring an action to recover land or rent, shall be deemed to have first accrued at such time as hereinafter is mentioned, that is to say: — (a) When the person claiming such land or rent, or some person through whom he claims, has, in respect of the estate or interest claimed, been in possession or in receipt of the profits of such land, or in receipt of such rent, and while entitled thereto has been dispossessed, or has discontinued such possession or receipt, then such right shall be deemed to have first accrued at the time of such dispossession or discontinuance of possession, or at the last time at which any such profits or rent were or was so received. (b) When the person claiming such land or on rent claims the estate or interest of some deceased person who has continued in such possession or receipt in respect of the same estate or interest until the time of his death, and has been the last person entitled to such estate or interest who has been in such possession or receipt, then such right shall be deemed to have first accrued at the time of such death. (c) When the person claiming such land or rent on claims in respect of an estate or interest in possession granted, appointed, or otherwise assured by any instrument (other than a will) to him or some person through whom he claims, by a person being in respect of the same estate or interest in the possession or receipt of the profits of the land, or in the receipt of the rent, and no person entitled under such instrument has been in such possession or receipt, then such right shall be deemed to have first accrued at the time at which the person claiming as aforesaid, or the person through whom he claims, became entitled to such possession or receipt by virtue of such instrument. (d) When the estate or interest claimed has been an estate or interest in reversion or remainder, or other future estate or interest, and no person has obtained the possession or receipt of the profits of such land, or the receipt of such rent in respect of such estate or interest, then such right shall be deemed to have first accrued at the time at which such estate or interest became an estate or interest in possession. (e) When the person claiming such land or rent, or the person through whom he claims, has become entitled by reason of any forfeiture or breach of condition, then such right shall be deemed to have first accrued when such forfeiture was incurred or such condition was broken. For the purposes of this section, the right to make an entry, or bring an action to recover any land, has not and shall not be deemed to have first accrued to any person in any case, whether or not such person has been in possession or receipt of the rents and profits of such land, until such land is in the actual possession of some person not entitled to such possession, and any land not in the actual possession of any person shall be deemed to be in the possession of the person entitled to such possession. 6. Where advantage of forfeiture is not taken by remainderman, he shall have a new right when his estate comes into possession Provided always that when any right to make an entry or distress or to bring an action to recover any land or rent by reason of any forfeiture or breach of condition has first accrued in respect of any estate or interest in reversion or remainder, and the land or rent has not been recovered by virtue of such right, the right to make an entry or distress or bring an action to recover such land or rent shall be deemed to have first accrued in respect of such estate or interest at the time when the same shall have become an estate or interest in possession, as if no such forfeiture or breach of condition had happened. 7. Provision for case of future estates A right to make an entry or distress, or to bring an action to recover any land or rent, shall be deemed to have first accrued in respect of an estate or interest in reversion or remainder, or other future estate or interest, at the time at which the same shall have become an estate or interest in possession, by the determination of any estate or estates in respect of which such land shall have been held, or the profits thereof or such rent shall have been received, notwithstanding the person claiming such land or rent, or some person through whom he claims, shall at any time previously to the creation of the estate or estates which shall have determined, have been in the possession or receipt of the profits of such land, or in receipt of such rent: Provided that if the person last entitled to any particular estate on which any future estate or interest was expectant shall not have been in the possession or receipt of the profits of such land, or in receipt of such rent, at the time when his interest determined, no such entry or distress shall be made, and no such action shall be brought, by any person becoming entitled in possession to a future estate or interest, but within 12 years next after the time when the right to make an entry or distress, or to bring an action for the recovery of such land or rent, shall have first accrued to the person whose interest shall have so determined, or within 6 years next after the time when the estate of the person becoming entitled in possession shall have become vested in possession, whichever of those 2 periods shall be the longer. Provided also that if the right of any such person to make such entry or distress, or to bring any such action, shall have been barred under this Act, no person afterwards claiming to be entitled to the same land or rent in respect of any subsequent estate or interest under any deed, will, or settlement, executed or taking effect after the time when a right to make an entry or distress, or to bring an action for the recovery of such land or rent, shall have first accrued to the owner of the particular estate whose interest shall have so determined as aforesaid, shall make any such entry or distress, or bring any such action to recover such land or rent. 8. An administrator to claim as if he obtained the estate without interval after the death of deceased For the purposes of this Act an administrator claiming the estate or interest of the deceased person of whose property he is appointed administrator shall be deemed to claim as if there had been no interval of time between the death of such deceased person and the grant of the letters of administration. 9. In the case of a tenant at will, the right shall be deemed to have accrued at the end of one year When any person is in possession or in receipt of the profits of any land, or in receipt of any rent, as tenant at will, the right of the person entitled subject thereto, or of the person through whom he claims, to make an entry or distress or bring an action to recover such land or rent, shall be deemed to have first accrued, either at the determination of such tenancy or at the expiration of one year next after the commencement of such tenancy, at which time such tenancy shall be deemed to have determined. Provided always that no mortgagor or cestui que trust shall be deemed to be a tenant at will, within the meaning of this section, to his mortgagee or trustee. 10. No person after a tenancy from year to year, to have any right but from the end of the first year or last payment of rent When any person is in possession or in receipt of the profits of any land, or in receipt of any rent, as tenant from year to year or other period, without any lease in writing, the right of the person entitled subject thereto, or of the person through whom he claims, to make an entry or distress or to bring an action to recover such land or rent, shall be deemed to have first accrued at the determination of the first of such years or other periods, or at the last time when any rent payable in respect of such tenancy has been received (whichever last happens). 11. Where rent amounting to $2 reserved by a lease has been wrongfully received, no right to accrue on determination of lease When any person is in possession or in receipt of the profits of any land, or in receipt of any rent, by virtue of a lease in writing, by which a rent amounting to the yearly sum of $2 or upwards is reserved, and the rent reserved by such lease has been received by some person wrongfully claiming to be entitled to such land or rent in reversion immediately expectant on the determination of such lease, and no payment in respect of the rent reserved by such lease has afterwards been made to the person rightfully entitled thereto, the right of the person entitled to such land or rent subject to such lease, or of the person through whom he claims, to make an entry or distress or to bring an action after the determination of such lease, shall be deemed to have first accrued at the time at which the rent reserved by such lease was first so received by the person wrongfully claiming as aforesaid; and no such right shall be deemed to have first accrued upon the determination of such lease to the person rightfully entitled. [Section 11 amended: No. 113 of 1965 s. 8.] 12. A mere entry not to be deemed possession No person shall be deemed to have been in possession of any land within the meaning of this Act merely by reason of having made an entry thereon. 13. No right to be preserved by continual claim No continual or other claim upon or near any land shall preserve any right of making an entry or distress or of bringing an action. 14. Possession of one coparcener etc., not to be the possession of the others When any one or more of several persons entitled to any land or rent as coparceners, joint tenants, or tenants in common, have been in possession or receipt of the entirety, or more than his or their undivided share or shares of such land or of the profits thereof, or of such rent, for his or their own benefit, or for the benefit of any person or persons other than the person or persons entitled to the other share or shares of the same land or rent, such possession or receipt shall not be deemed to have been the possession or receipt of or by such last‑mentioned person or persons or any of them. 15. Acknowledgment in writing given to the person entitled or his agent, to be equivalent to possession or receipt of rent When any acknowledgment of the title of the person entitled to any land or rent has been given to him or his agent in writing signed by the person in possession or in receipt of the profits of such land, or in receipt of such rent, then such possession or receipt of or by the person by whom such acknowledgment has been given shall be deemed, according to the meaning of this Act, to have been the possession or receipt of or by the person to whom or to whose agent such acknowledgment has been given at the time of giving the same, and the right of such last‑mentioned person, or any person claiming through him, to make an entry or distress or bring an action to recover such land or rent shall be deemed to have first accrued at and not before the time at which such acknowledgment, or the last of such acknowledgments if more than one, was given. 16. In cases of infancy, etc., 6 years to be allowed from the termination of the disability or previous death If at the time at which the right of any person to make an entry or distress, or to bring an action to recover any land or rent, shall have first accrued as aforesaid, such person shall have been under any of the disabilities hereinafter mentioned (that is to say) infancy, idiocy, lunacy, or unsoundness of mind, then such person, or the person claiming through him, may, notwithstanding the period of 12 years, or 6 years (as the case may be) hereinbefore limited shall have expired, make an entry or distress, or bring an action to recover such land or rent, at any time within 6 years next after the time at which the person to whom such right shall first have accrued shall have ceased to be under such disability, or shall have died (whichever of those 2 events shall have first happened). [Section 16 amended: No. 28 of 2003 s. 120(2).] 17. No time to be allowed for absence beyond seas The time within which any such entry may be made, or any such action may be brought as aforesaid, shall not in any case be extended or enlarged by reason of the absence beyond the seas during all or any part of that time of the person having the right to make such entry, or to bring such action, or of any person through whom he claims. 18. 30 years utmost allowance for disabilities No entry, distress, or action shall be made or brought by any person who at the time at which his right to make any entry or distress, or to bring an action to recover any land or rent shall have first accrued, shall be under any of the disabilities hereinbefore mentioned, or by any person claiming through him, but within 30 years next after the time at which such right shall have first accrued, although the person under disability at such time may have remained under one or more of such disabilities during the whole of such 30 years, or although the term of 6 years from the time at which he shall have ceased to be under any such disability, or have died, shall not have expired. 19. No further time to be allowed for a succession of disabilities When any person is under any of the disabilities hereinbefore mentioned at the time at which his right to make an entry or distress or to bring an action to recover any land or rent has first accrued, and he dies without having ceased to be under such disability, no time to make an entry or distress or to bring an action to recover such land or rent beyond the period of 12 years next after the right of such person to make an entry or distress or to bring an action to recover such land or rent has first accrued, or the said period of 6 years next after the time at which such person has died, shall be allowed by reason of any disability of any other person. 20. When the right to an estate in possession is barred the right of the same person to future estates also barred When the right of any person to make an entry or distress or bring an action to recover any land or rent to which he may have been entitled for an estate or interest in possession has been barred by the determination of the period hereinbefore limited which is applicable in such case, and such person has at any time during the said period been entitled to any other estate, interest, right, or possibility, in reversion, remainder, or otherwise, in or to the same land or rent, no entry, distress, or action shall be made or brought by such person, or any person claiming through him, to recover such land or rent, in respect of such other estate, interest, right, or possibility, unless in the meantime such land or rent has been recovered by some person entitled to an estate, interest, or right which has been limited or taken effect after or in defeasance or such estate or interest in possession. 21. Where tenant in tail is barred, remaindermen whom he might have barred shall not recover When the right of a tenant in tail of any land or rent to make an entry or distress or to bring an action to recover the same has been barred by reason of the same not having been made or brought within the period hereinbefore limited, which is applicable in such case, no such entry, distress, or action shall be made or brought by any person claiming any estate, interest, or right which such tenant in tail might lawfully have barred. 22. Possession adverse to a tenant in tail, shall run on against the remaindermen whom he might have barred When a tenant in tail of any land or rent, entitled to recover the same, has died before the expiration of the period hereinbefore limited, which is applicable in such case, for making an entry or distress or bringing an action to recover such land or rent, no person claiming any estate, interest, or right which such tenant in tail might lawfully have barred, shall make an entry or distress or bring an action to recover such land or rent but within the period during which, if such tenant in tail had so long continued to live, he might have made such entry or distress or brought such action. 23. Possession under an assurance by a tenant in tail When a tenant in tail of any land or rent shall have made an assurance thereof which shall not operate to bar the estate or estates to take effect after or in defeasance of his estate tail, and any person shall by virtue of such assurance at the time of the execution thereof, or at any time afterwards, be in possession or receipt of the profits of such land, or in receipt of such rent, and the same person, or any other person whatsoever (other than some person entitled to such possession or receipt in respect of an estate which shall have taken effect after or in defeasance of the estate tail) shall continue to be in such possession or receipt for the period of 12 years next after the commencement of the time at which such assurance, if it had then been executed by such tenant in tail, or the person who would have been entitled to his estate tail if such assurance had not been executed, would, without the consent of any other person, have operated to bar such estate or estates as aforesaid, then, at the expiration of such period of 12 years, such assurance shall be and be deemed to have been effectual as against any person claiming any estate, interest, or right, to take effect after or in defeasance of such estate tail. 24. No suit in equity to be brought after the time when the plaintiff might have brought an action at law No person claiming any land or rent in equity shall bring any suit to recover the same but within the period during which, by virtue of the provisions hereinbefore contained, he might have made an entry or distress or brought an action to recover the same respectively if he had been entitled at law to such estate, interest, or right in or to the same as he claims therein in equity. 25. In cases of express trust, the right shall not be deemed to have accrued until a conveyance to a purchaser When any land or rent is vested in a trustee upon any express trust, the right of the cestui que trust, or any person claiming through him, to bring a suit against the trustee, or any person claiming through him, to recover such land or rent, shall be deemed to have first accrued, according to the meaning of this Act, at and not before the time at which such land or rent has been conveyed to a purchaser for a valuable consideration, and shall then be deemed to have accrued only as against such purchaser and any person claiming through him. 26. Time for recovering charge and arrears of interest not to be enlarged by express trust for raising same No action, suit, or other proceeding shall be brought to recover any sum of money or legacy charged upon or payable out of any land or rent, at law or in equity, and secured by an express trust, or to recover any arrears of rent or of interest in respect of any sum of money or legacy so charged or payable, and so secured, or any damages in respect of such arrears, except within the time within which the same would be recoverable if there were not any such trust. 27. In cases of fraud no time shall run whilst the fraud remains concealed In every case of a concealed fraud, the right of any person to bring a suit in equity to recover any land or rent of which he, or any person through whom he claims, may have been deprived by such fraud, shall be deemed to have first accrued at and not before the time at which such fraud is, or with reasonable diligence might have been, first known or discovered: Provided that nothing in this section contained shall enable any owner of lands or rents to have a suit in equity for the recovery of such lands or rents, or for setting aside any conveyance of such lands or rents, on account of fraud, against any bona fide purchaser for valuable consideration who has not assisted in the commission of such fraud, and who at the time when he made the purchase did not know and had no reason to believe that any such fraud had been committed. 28. Saving the jurisdiction of equity on the ground of acquiescence or otherwise Nothing in this Act contained shall be deemed to interfere with any rule or jurisdiction of a court of equity in refusing relief on the ground of acquiescence or otherwise to any person whose right to bring a suit may not be barred by virtue of this Act. 29. Mortgagor to be barred at end of 12 years from the time when the mortgagee took possession or from the last written acknowledgment When a mortgagee shall have obtained the possession or receipt of the profits of any land, or the receipt of any rent comprised in his mortgage, the mortgagor or any person claiming through him, shall not bring any action or suit to redeem the mortgage, but within 12 years next after the time at which the mortgagee obtained such possession or receipt, unless in the meantime an acknowledgment in writing of the title of the mortgagor, or of his right to redemption shall have been given to the mortgagor or some person claiming his estate, or to the agent of such mortgagor or person, signed by the mortgagee or the person claiming through him. In such case no such action or suit shall be brought, but within 12 years next after the time at which such acknowledgment, or the last of such acknowledgments, if more than one was given; and when there shall be more than one mortgagor or more than one person claiming through the mortgagor or mortgagors, such acknowledgment, if given to any of such mortgagors or persons, or his or their agent, shall be as effectual as if the same had been given to all such mortgagors or persons: Provided that where there shall be more than one mortgagee, or more than one person claiming the estate or interest of the mortgagee or mortgagees, such acknowledgment, signed by one or more of such mortgagees or persons, shall be effectual only as against the party or parties signing as aforesaid, and the person or persons claiming any part of the mortgage money or land or rent, by, from, or under him or them, and any person or persons entitled to any estate or estates, interest or interests, to take effect after or in defeasance of his or their estate or estates, interest or interests, and shall not operate to give to the mortgagor or mortgagors a right to redeem the mortgage as against the person or persons entitled to any other undivided or divided part of the money or land or rent: Provided also that where such of the mortgagees or persons aforesaid as shall have given such acknowledgment shall be entitled to a divided part of the land or rent comprised in the mortgage, or some estate or interest therein, and not to any ascertained part of the mortgage money, the mortgagor or mortgagors shall be entitled to redeem the same divided part of the land or rent on payment, with interest, of the part of the mortgage money which shall bear the same proportion to the whole of the mortgage money as the value of such divided part of the land or rent shall bear to the value of the whole of the land or rent comprised in the mortgage. 30. At the end of the period of limitation the right of the party out of possession to be extinguished At the determination of the period limited by this Act to any person for making an entry or distress, or bringing any action or suit, the right and title of such person to the land or rent, for the recovery whereof such entry, distress, action, or suit respectively might have been made or brought within such period, shall be extinguished. 31. Receipt of rent to be deemed receipt of profits The receipt of the rent payable by any tenant from year to year, or other lessee, shall, as against such lessee or any person claiming under him (but subject to the lease), be deemed to be the receipt of the profits of the land for the purposes of this Act. 32. Money charged upon land and legacies to be deemed satisfied at the end of 12 years if no interest paid nor acknowledgment given (1) No action or suit or other proceeding shall be brought to recover any sum of money secured by any mortgage, judgment, or lien, or otherwise charged upon or payable out of any land or rent, at law or in equity, or any legacy, but within 12 years next after a present right to receive the same shall have accrued to some person capable of giving a discharge for or release of the same; unless in the meantime some part of the principal money, or some interest thereon, shall have been paid, or some acknowledgment of the right thereto shall have been given in writing signed by the person by whom the same shall be payable, or his agent, to the person entitled thereto, or his agent; and in such case no such action or suit or proceeding shall be brought but within 12 years after such payment or acknowledgment or the last of such payments or acknowledgments (if more than one) was made or given. (2) This section extends to an action or suit on a covenant by a mortgagor in a mortgage deed, or on a collateral bond by the mortgagor securing the mortgage debt; and to an action on a covenant in a deed to secure the payment of a rent charge. 33. Claims to estate of intestates Subject to, and except as enacted by section 47, no action or suit or other proceeding shall be brought to recover the estate, or any share of the estate of any person dying intestate from the legal representative of such intestate, but within 12 years next after the present right to receive the same has accrued to some person capable of giving a discharge for or release of the same; unless in the meantime some part of such estate or share, or some interest in respect thereof has been accounted for or paid, or some acknowledgment of the right thereto has been given in writing signed by the person accountable for the same or his agent to the person entitled thereto or his agent; and in such case no such action or suit shall be brought but within 12 years next after such accounting, payment, or acknowledgment, or the last of such accountings, payments, or acknowledgments (if more than one) was made or given. 34. No arrears of rent or interest to be recovered for more than 6 years No arrears of rent or of interest in respect of any sum of money charged upon or payable out of any land or rent, or in respect of any legacy, or any damages in respect of such arrears of rent or interest, shal