Limitation Act 1969 (NSW)

Limitation Act 1969 No 31 An Act to amend and consolidate the law relating to the limitation of actions; to repeal section 5 of the Imperial Act known as the Common Informers Act 1588 and certain other Imperial enactments; to repeal the unrepealed portion of the Act passed in the fourth year of the reign of William the Fourth number seventeen and certain other enactments; to amend the Compensation to Relatives Act of 1897, as amended by subsequent Acts, and certain other enactments; to make further provision concerning estates tail; and for purposes connected therewith. Part 1 Preliminary 1 Name of Act and commencement (1) This Act may be cited as the Limitation Act 1969. (2) This Act shall commence upon a day to be appointed by the Governor and notified by proclamation published in the Gazette. 2 Construction This Act is to be read and construed subject to the Commonwealth of Australia Constitution Act and so as not to exceed the legislative power of the State, to the intent that where any provision of this Act or the application thereof to any person or circumstance is held invalid, the remainder of this Act and the application of the provision to other persons or circumstances is not to be affected. 3, 4 (Repealed) 5 Saving (1) Section 8 of the Interpretation Act of 1897 applies to the repeal by this Act in whole or in part of an Imperial Act in the manner in which that section applies to the repeal in whole or in part of an Act. (2) The repeal or amendment of an enactment or Imperial enactment by this Act does not revive anything not in force or existing at the commencement of this Act. 6 Transitional provisions (1) Subject to sections 6A and 26, to Division 3 of Part 3 and to Schedule 5, nothing in this Act— (a) affects an action brought or arbitration commenced before the commencement of this Act, (b) enables an action or arbitration to be commenced or maintained which is barred at the commencement of this Act by an enactment or an Imperial enactment repealed or amended by this Act, (c) affects the extinction of the title of a person to land under section 34 of the Imperial Act shortly entitled the Real Property Limitation Act 1833, as adopted and applied by the Act passed in the eighth year of the reign of King William the Fourth, number three, where the period limited by that Imperial Act, as so adopted and applied, to that person for making an entry or distress or bringing any action or suit to recover the land has commenced to run before the commencement of this Act, or (d) prevents the commencement and maintenance of an action or arbitration within the time allowed by an enactment or an Imperial enactment repealed or amended by this Act on a cause of action which accrued before the commencement of this Act, but this paragraph has effect subject to paragraphs (b) and (c). (2) Schedule 5 has effect. 6A No limitation period for child abuse actions (1) An action for damages that relates to the death of or personal injury to a person resulting from an act or omission that constitutes child abuse of the person may be brought at any time and is not subject to any limitation period under this Act despite any other provision of this Act. (2) In this section, child abuse means any of the following perpetrated against a person when the person is under 18 years of age— (a) sexual abuse, (b) serious physical abuse, (c) any other abuse (connected abuse) perpetrated in connection with sexual abuse or serious physical abuse of the person (whether or not the connected abuse was perpetrated by the person who perpetrated the sexual abuse or serious physical abuse). (3) To remove doubt, connected abuse is child abuse only if both the connected abuse and the sexual abuse or serious physical abuse in connection with which it is perpetrated are perpetrated when the person is under 18 years of age. (4) This section applies regardless of whether the claim for damages is brought in tort, in contract, under statute or otherwise. (5) This section extends to the following causes of action— (a) a cause of action that arises under the Compensation to Relatives Act 1897, (b) a cause of action that survives on the death of a person for the benefit of the person's estate under section 2 of the Law Reform (Miscellaneous Provisions) Act 1944. (6) This section does not limit— (a) any inherent jurisdiction, implied jurisdiction or statutory jurisdiction of a court, or (b) any other powers of a court arising or derived from the common law or under any other Act (including any Commonwealth Act), rule of court, practice note or practice direction. Note— For example, this section does not limit a court's power to summarily dismiss or permanently stay proceedings where the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible. 7 Other limitations Nothing in this Act— (a) applies to an action or arbitration for which a limitation period is fixed by or under an enactment other than this Act or by or under an Imperial enactment (not being an enactment or an Imperial enactment repealed or omitted by this Act), or (b) applies to an action or arbitration to which the Crown is a party and for which, if it were between subjects, a period of limitation would be fixed by or under an enactment other than this Act or by or under an Imperial enactment (not being an enactment or an Imperial enactment repealed or omitted by this Act). 8 Saving of specified enactments (1) Nothing in this Act affects the operation of— (a) section 45C of the Real Property Act 1900, (b) section 13.1 of the Crown Land Management Act 2016, or (c) subsection (2) of section 50 of the Conveyancing Act 1919. (2) This Act has effect subject to section 12A of the Dust Diseases Tribunal Act 1989 and clause 7 of Schedule 3 to that Act. 9 Acquiescence etc Nothing in this Act affects the rules of equity concerning the refusal of relief on the ground of laches acquiescence or otherwise. 10 The Crown (1) Subject to subsections (3) and (4), this Act binds the Crown and the Crown has the benefit of this Act. (2) For the purposes of this Act an action by an officer of the Crown as such or a person acting on behalf of the Crown is an action by the Crown. (3) This Act does not apply to an action by the Crown— (a) for the recovery of a tax or duty or of interest on a tax or duty, or (b) in respect of the forfeiture of a ship. (4) This Act does not affect the prerogative right of the Crown to gold and silver. 11 Definitions (1) In this Act, unless the context or subject matter otherwise indicates or requires— Action includes any proceeding in a court. Beneficiary, when used in relation to an order under section 60D or 60H or an application for such an order, means a person for whose benefit an action might be, or might have been, brought under the Compensation to Relatives Act 1897. Breach of duty, when used in relation to a cause of action for damages for personal injury, extends to the breach of any duty (whether arising by statute, contract or otherwise) and includes trespass to the person. Crown includes not only the Crown in right of New South Wales but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities. Deed includes an instrument having the effect of a deed under the law of New South Wales or, in the case of an instrument executed pursuant to the law of— (a) the United Kingdom of Great Britain and Northern Ireland, (b) another State of the Commonwealth, (c) the Commonwealth, (d) a Territory of the Commonwealth, or (e) New Zealand, having the effect of a deed under the law pursuant to which it is executed. 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. Judgment includes not only a judgment of a court of New South Wales but also a judgment of a court of the United Kingdom of Great Britain and Northern Ireland, a court of another State of the Commonwealth, a court of the Commonwealth, a court of a Territory of the Commonwealth, or a court of any other place. Land includes— (a) corporeal hereditaments and rentcharges and any estate or interest therein whether freehold or leasehold and whether at law or in equity, and (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 does not include easements or profits à prendre nor, subject to paragraphs (a) and (b) of this definition, other incorporeal hereditaments. Landlord means a person entitled to land subject to a lease. Mortgage does not include a possessory lien on goods nor any binding effect on property arising under a writ of execution against the property but otherwise includes a charge or lien on any property for securing money or money's worth and also includes, in relation to land under the provisions of the Real Property Act 1900, a charge within the meaning of that Act. 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 any disease and any impairment of the physical or mental condition of a person. Personal representative means an executor to whom probate has been granted, including an executor by right of representation, or an administrator within the meaning of the Probate and Administration Act 1898, and includes the NSW Trustee and Guardian acting under section 25 of the NSW Trustee and Guardian Act 2009. Plaintiff means a person bringing an action. 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. Rent includes a rent payable under a lease and any other rent service and a rentcharge. Rentcharge means an annuity or other periodical sum of money, being an annuity or sum charged on or payable out of land, but does not include a rent payable under a lease nor any other rent service nor interest under a mortgage. Successor, in relation to a person liable on a cause of action, means a person on whom the liability of the firstmentioned person devolves, whether as personal representative or otherwise on death, or on bankruptcy, disposition of property, or determination of a limited estate or interest, or otherwise. Trust includes express implied and constructive trusts, whether or not the trustee has a beneficial interest in the trust property, and whether or not the trust arises only by reason of a transaction impeached, and includes the duties incident to the office of personal representative but does not include the duties incident to the estate or interests of a mortgagee in mortgaged property. Trustee has a meaning corresponding to the meaning of "trust". (2) For the purposes of this Act— (a) a person claims through another person in respect of any property or right if the person is entitled to the property or right by through under or by the act of that other person, but a person entitled to property or a right by virtue of an appointment under a special power of appointment does not, by reason of the appointment, claim the property or right through the appointor, (b) a reference to a cause of action to recover land includes a reference to a right to enter into possession of the land, (c) a thing done to or by or suffered by an agent is done to or by or suffered by his or her principal, and (d) a cause of action to which any of the provisions of Division 4 of Part 2 applies is not a cause of action to recover land or a cause of action to enforce an equitable estate or interest in land. (3) For the purposes of this Act a person is under a disability— (a) while the person is under the age of eighteen years, or (b) while the person is, for a continuous period of twenty-eight days or upwards, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of— (i) any disease or any impairment of his or her physical or mental condition, (ii) restraint of his or her person, lawful or unlawful, including detention or custody under the Mental Health Act 1958, (iii) war or warlike operations, or (iv) circumstances arising out of war or warlike operations. (4) 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 (b) a reference to the date of dispossession or discontinuance of possession of land is a reference to the date when rent first becomes overdue. (5) The provisions of this Act as to the date of accrual of a cause of action have effect for the purposes of this Act but not for any other purpose. (6) In this Act, a reference to an Act includes amendments of that Act by subsequent Acts. 11A Notes Notes included in this Act do not form part of this Act. Part 2 Periods of limitation and related matters Division 1 Preliminary 12 Relationship to Part 3 The provisions of this Part have effect subject to the provisions of Part 3. 13 More than one bar Where, under each of two or more provisions of this Part, an action is not maintainable if brought after a specified time, the action is not maintainable if brought after the earlier or earliest of those times. Division 2 General 14 General (1) An action on any of the following causes of action is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims— (a) a cause of action founded on contract (including quasi contract) not being a cause of action founded on a deed, (b) a cause of action founded on tort, including a cause of action for damages for breach of statutory duty, (c) a cause of action to enforce a recognizance, (d) a cause of action to recover money recoverable by virtue of an enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture. (2) This section does not apply to— (a) a cause of action to which section 19 applies, or (b) a cause of action for contribution to which section 26 applies. (3) For the purposes of paragraph (d) of subsection (1), enactment includes not only an enactment of New South Wales but also an enactment of the Imperial Parliament, an enactment of another State of the Commonwealth, an enactment of the Commonwealth, an enactment of a Territory of the Commonwealth and an enactment of any other country. 14A Frustrated contract An action on a cause of action arising under Part 3 of the Frustrated Contracts Act 1978, by virtue of the frustration of a contract or avoidance of an agreement under section 12 of the Sale of Goods Act 1923, is not maintainable if brought after the expiration of a limitation period of 6 years running from the date of the frustration or avoidance. 14B Defamation (1) An action on a cause of action for defamation is not maintainable if brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained of. (2) The 1-year limitation period referred to in subsection (1) is taken to have been extended as provided by subsection (3) if a concerns notice is given to the proposed defendant on a day (the notice day) within the period of 56 days before the limitation period expires. (3) The limitation period is extended for an additional period of 56 days minus any days remaining after the notice day until the 1-year limitation period expires. Example— Assume a concerns notice is given 7 days before the limitation period expires. This means that there are 6 days left after the notice day before the period expires. Consequently, this subsection would operate to extend the limitation period by 56 minus 6 days, that is, 50 days. (4) In this section— concerns notice has the same meaning as in the Defamation Act 2005. date of publication, in relation to the publication of matter in electronic form, means the day on which the matter was first uploaded for access or sent electronically to a recipient. 14C Defamation—single publication rule (1) This section applies if— (a) a person (the first publisher) publishes matter to the public that is alleged to be defamatory (the first publication), and (b) the first publisher or an associate of the first publisher subsequently publishes (whether or not to the public) matter that is substantially the same. (2) Any cause of action for defamation against the first publisher or an associate of the first publisher in respect of the subsequent publication is to be treated as having accrued on the date of the first publication for the purposes of determining when— (a) the limitation period applicable under section 14B begins, or (b) the 3-year period referred to in section 56A(2) begins. (3) Subsection (2) does not apply in relation to the subsequent publication if the manner of that publication is materially different from the manner of the first publication. (4) In determining whether the manner of a subsequent publication is materially different from the manner of the first publication, the considerations to which the court may have regard include (but are not limited to)— (a) the level of prominence that a matter is given, and (b) the extent of the subsequent publication. (5) This section does not limit the power of a court under section 56A to extend the limitation period applicable under section 14B. (6) In this section— associate of a first publisher means— (a) an employee of the publisher, or (b) a person publishing matter as a contractor of the publisher, or (c) an associated entity (within the meaning of section 50AAA of the Corporations Act 2001 of the Commonwealth) of the publisher (or an employee or contractor of the associated entity). date of first publication, in relation to the publication of matter in electronic form, means the day on which the matter was first uploaded for access or sent electronically to a recipient. public includes a section of the public. 15 Accounts An action on a cause of action for an account founded on a liability at law to account is not maintainable in respect of any matter if brought after the expiration of a limitation period of six years running from the date on which the matter arises. 16 Deed An action on a cause of action founded on a deed is not maintainable if brought after the expiration of a limitation period of twelve years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims. 17 Judgment (1) An action on a cause of action on a judgment is not maintainable if brought after the expiration of a limitation period of twelve years running from the date on which the judgment first becomes enforceable by the plaintiff or by a person through whom the plaintiff claims. (2) A judgment of a court of a place outside New South Wales becomes enforceable for the purposes of this section on the date on which the judgment becomes enforceable in the place where the judgment is given. (3) Subsection (2) does not apply to a judgment of a court of the Commonwealth, not being a court of a Territory of the Commonwealth. 18 Penalty and forfeiture (1) An action on a cause of action to recover a penalty or forfeiture, or sum by way of penalty or forfeiture, recoverable by virtue of an enactment, is not maintainable if brought after the expiration of a limitation period of two years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims. (2) In this section penalty does not include a fine to which a person is liable on conviction for a criminal offence. 18A Personal injury (1) This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to— (a) a cause of action arising under the Compensation to Relatives Act 1897, or (b) a cause of action that accrued before 1 September 1990, or (c) a cause of action to which Division 6 applies. Note— Division 6 provides for the limitation period for non-motor accident actions for death or personal injury resulting from an incident that occurs on or after the commencement of that Division. (2) An action on a cause of action to which this section applies is not maintainable if brought after the expiration of a limitation period of 3 years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims. 19 Compensation to relatives (1) An action on a cause of action arising under the Compensation to Relatives Act 1897, by virtue of a death, is not maintainable if brought after the expiration of a limitation period of— (a) 6 years running from the date of the death, where the cause of action accrued before 1 September 1990, or (b) 3 years running from the date of the death, where the cause of action accrues on or after 1 September 1990. (2) This section does not apply in respect of a cause of action to which Division 6 applies. Note— Division 6 provides for the limitation period for causes of action for non-motor accident actions for death or personal injury resulting from an incident that occurs on or after the commencement of that Division. 20 Arbitral award (1) An action on a cause of action to enforce an award of an arbitrator is not maintainable if brought after the expiration of the limitation period fixed by subsection (2) running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims. (2) The limitation period for the purposes of subsection (1) is— (a) where the award is made under an arbitration agreement and the arbitration agreement is made by deed—twelve years, and (b) in any other case—six years. (3) For the purposes of this section a cause of action to enforce an award of an arbitrator accrues on the date on which default first happens in observance of the award, being the default in respect of which the action is brought. (4) In this section, arbitration agreement means an agreement to refer present or future differences to arbitration, whether an arbitrator is named in the agreement or not. (5) This section applies to an award of an arbitrator under any Act regulations rules by-laws order or scheme, but applies to such an award subject to the provisions of the Act regulations rules by-laws order or scheme. 21 Successive wrongs to goods Where— (a) a cause of action for the conversion or detention of goods accrues to a person, and (b) afterwards, possession of the goods not having been recovered by the person or by a person claiming through the person, 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, an action on the further cause of action for conversion or detention or on the cause of action to recover the proceeds of sale is not maintainable if brought after the expiration of a limitation period of six years running from the date when the first cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims. 22 Shipping (1) Paragraph (a) of subsection (1) of section 14 applies to a cause of action to recover a seaman's wages, but otherwise sections 14 to 21 inclusive do not apply to a cause of action in rem in Admiralty. (2) An action on a cause of action to enforce a claim or lien against a vessel or her owners in respect of any damage or loss to another vessel, her cargo or freight, or any property on board her, or damage for loss of life or personal injuries suffered by any person on board her, caused by the fault of the former vessel, whether such vessel be wholly or partly in fault, is not maintainable if brought after the expiration of a limitation period of two years running from the date when the damage loss or injury is caused. (3) An action on a cause of action to enforce a claim or lien in respect of any salvage services is not maintainable if brought after the expiration of a limitation period of two years running from the date when the salvage services are rendered. (4) For the purposes of an action in a court, the court— (a) may extend the limitation period mentioned in subsection (2) or subsection (3) to such an extent and on such terms as it thinks fit, and (b) shall, if satisfied that there has not during the limitation period been a reasonable opportunity of arresting the defendant vessel within the jurisdiction of the court, or within the territorial waters of the country to which the plaintiff's vessel belongs or in which the plaintiff resides or has his or her principal place of business, extend the limitation period to an extent sufficient to give a reasonable opportunity of so arresting the defendant vessel. (5) For the purposes of this section— (a) freight includes passage money and hire, (b) vessel means a vessel used in navigation, other than air navigation, and includes a barge lighter or like vessel, and (c) reference to damage or loss caused by the fault of a vessel extends to any salvage or other expenses, consequent upon that fault, recoverable at law by way of damages. (6) Part 3 does not apply to a cause of action to which subsection (2) or subsection (3) applies. 23 Equitable relief Sections 14, 16, 17, 18, 20 and 21 do not apply, except so far as they may be applied by analogy, to a cause of action for specific performance of a contract or for an injunction or for other equitable relief. 24 Arrears of income (1) Subject to subsection (2) an action on a cause of action to recover arrears of income is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims. (2) An action on a cause of action to recover arrears of interest on principal money is not maintainable if brought after the expiration of the limitation period fixed by or under this Act for an action between the same parties to recover the principal money. (3) Subsections (1) and (2) do not apply to a cause of action to which section 43 applies. (4) For the purposes of this section a cause of action to recover arrears of income includes a cause of action to recover the arrears from any person, whether as principal surety or otherwise. 25 Relief against forfeiture of lease In an action in which any party to the action seeks relief against forfeiture of a lease, the party seeking the relief is not to be required, as a term of relief against forfeiture, to pay rent for the recovery of which, by reason of the expiration of a limitation period fixed by or under this Act, an action would not be maintainable if brought on the date on which the firstmentioned action is brought. 26 Contribution between tort-feasors (1) An action on a cause of action for contribution under subsection (1) of section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 is not maintainable if brought after the first to expire of— (a) a limitation period of two years running from the date on which the cause of action for contribution first accrues to the plaintiff or to a person through whom the plaintiff claims, and (b) a limitation period of four years running from the date of the expiration of the limitation period for the principal cause of action. (2) For the purposes of paragraph (a) of subsection (1), the date on which a cause of action for contribution first accrues is— (a) if the plaintiff in the action for contribution or a person through whom the plaintiff claims is liable in respect of the damage for which contribution is claimed by judgment in a civil action or by arbitral award—the date on which 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 quantum of damages, or (b) if, in a case to which paragraph (a) does not apply, the plaintiff in the action for contribution or a person through whom the plaintiff claims makes an agreement with a person having a cause of action for the damage for which the cause of action for contribution arises, which agreement fixes, as between the parties to the agreement, the amount of the liability in respect of that damage of the plaintiff in the action for contribution or a person through whom the plaintiff claims—the date on which the agreement is made. (3) In paragraph (b) of subsection (1), the expression the limitation period for the principal cause of action means the limitation period fixed by or under this Act or by or under any other enactment (including an enactment repealed or omitted by this Act) for the cause of action for the liability in respect of which contribution is sought. (4) Nothing in this section affects the construction of section 5 of the Law Reform (Miscellaneous Provisions) Act 1946. Division 3 Land 27 General (1) An action on a cause of action to recover land is not maintainable by the Crown if brought after the expiration of a limitation period of thirty years running from the date on which the cause of action first accrues to the Crown or to a person through whom the Crown claims. (2) Subject to subsection (3) an action on a cause of action to recover land is not maintainable by a person other than the Crown if brought after the expiration of a limitation period of twelve years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims. (3) Subsection (2) does not apply to an action brought by a person claiming through the Crown and brought on a cause of action which accrues to the Crown. (4) Where a cause of action to recover land accrues to the Crown, an action on that cause of action is not maintainable by a person claiming through the Crown if brought after the expiration of the first to expire of— (a) the limitation period fixed by or under this Act for an action on that cause of action by the Crown, and (b) a limitation period of twelve years running from the date on which the cause of action first accrues (on or after the date of accrual to the Crown) to a person claiming through the Crown. 28 Accrual—dispossession or discontinuance Where the plaintiff in an action on a cause of action to recover land or a person through whom the plaintiff claims— (a) has been in possession of the land, and (b) while entitled to the land, is dispossessed or discontinues his or her possession, the cause of action accrue