Limitation Act 1974 (Tas)

Limitation Act 1974 An Act to consolidate with amendments certain enactments relating to the limitation of actions and arbitrations [Royal Assent 24 January 1975] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART I - Preliminary 1. Short title and commencement (1) This Act may be cited as the Limitation Act 1974 . (2) This Act shall commence on 1st January 1975. 2. Interpretation (1) In this Act, unless the contrary intention appears – action includes any proceeding in a court of law; date of discoverability, in the case of an action for damages for personal injuries, means the date when the plaintiff knew or ought to have known that personal injury or death – (a) had occurred; and (b) was attributable to the conduct of the defendant; and (c) in the case of personal injury, was sufficiently significant to warrant bringing proceedings; land includes corporeal hereditaments and rentcharges, and any legal or equitable estate or interest therein, including an interest in the proceeds of the sale of land held upon trust for sale, but, save as aforesaid, does not include an incorporeal hereditament; legal owner, in relation to settled land, means the tenant for life within the meaning of the Settled Land Act 1884 having a legal estate therein; parent, in relation to an infant, includes a person appointed, according to law, to be his guardian by deed or will, or by order of a court of competent jurisdiction; personal injury includes any disease and any impairment of a person's physical or mental condition; personal property does not include chattels real; rent includes a rentcharge and rentservice; rentcharge means any annuity or periodical sum of money charged upon or payable out of land, except a rentservice or interest on a mortgage of land; settled land has the same meaning as it has for the purposes of the Settled Land Act 1884 ; tenant for life, in relation to settled land, has the same meaning as it has for the purposes of the Settled Land Act 1884 and includes any person having the powers of a tenant for life under that Act; trust and trustee have the same meanings as they have for the purposes of the Trustee Act 1898 . (2) For the purposes of this Act a person is deemed to be under disability while – (a) he is an infant; (b) he is incapable, by reason of mental disorder, of managing his property or affairs; or (c) . . . . . . . . (3) For the purposes of subsection (2) (b) but without prejudice to the generality thereof a person shall be conclusively presumed to be incapable, by reason of mental disorder, of managing his property or affairs – (a) while he or she is subject to an assessment order or treatment order under the Mental Health Act 2013 ; or (b) while a guardianship order or an administration order in respect of his estate is in force under the Guardianship and Administration Act 1995 . (c) . . . . . . . . (4) Subject to subsection (5) , a person shall be deemed to claim through another person if he became entitled by, through, or under the act of that other person to the right claimed, and any person whose estate or interest might have been barred by a person entitled to an entailed interest in possession shall be deemed to claim through the person so entitled. (5) A person becoming entitled to an estate or interest by virtue of a special power of appointment shall not be deemed to claim through the appointor. (6) References in this Act to a right of action to recover land shall include references to a right to enter into possession of the land or, in the case of rentcharges, to distrain for arrears of rent; and references to the bringing of such an action shall include references to the making of such an entry or distress. (7) References in this Act to the possession of land shall, in the case of rentcharges, be construed as references to the receipt of the rent; and references to the date of dispossession or discontinuance of possession of land shall, in the case of rentcharges, be construed as references to the date of the last receipt of rent. (8) In Part II references to a right of action shall include references to a cause of action and to a right to receive money secured by a mortgage or charge on any property or to recover proceeds of the sale of land, and to a right to receive a share or interest in the personal estate of a deceased person; and references to the date of the accrual of a right of action shall – (a) in the case of an action for an account be construed as references to the date on which an account is claimed; (b) in the case of an action upon a judgment be construed as references to the date on which the judgment became enforceable; and (c) in the case of an action to recover arrears of rent or interest or damages in respect thereof be construed as references to the date on which the rent or interest became due. PART II - Periods of Limitation Division 1 - Preliminary 3. General provisions subject to special provisions relating to disability, acknowledgement, fraud, &c. The provisions of this Part have effect subject to the provisions of Part III . Division 2 - Actions in contract, tort, &c. 4. General period in actions of contract, tort, &c. (1) Except as otherwise provided in this Division, the following actions shall not be brought after the expiration of 6 years from the date on which the cause of action accrued, that is to say: (a) actions founded on simple contract (including contract implied by law) or founded on tort, including actions for damages for a breach of statutory duty; (b) actions to enforce a recognizance; (c) actions to enforce an award, where the submission is not by an instrument under seal; (d) actions to recover any sum recoverable by virtue of an enactment, other than a penalty or forfeiture or a sum by way of penalty or forfeiture. (2) An action for an account shall not be brought in respect of any matter that arose more than 6 years before the commencement of the action. (3) An action upon a specialty shall not be brought after the expiration of 12 years from the date on which the cause of action accrued; but this subsection does not affect any action for which a shorter period of limitation is prescribed by any other provision of this Act. (4) An action shall not be brought upon a judgment after the expiration of 12 years from the date on which the judgment became enforceable. (5) Except as otherwise provided in this Act, an action shall not be brought to recover any arrears of interest in respect of any sum of money, whether payable in respect of a specialty, judgment, legacy, or otherwise, or any damages in respect of any such arrears, after the expiration of 6 years after they became due. (6) An action to recover any penalty or forfeiture, or any sum by way of penalty or forfeiture, recoverable by virtue of an enactment (not being a fine imposed on a conviction for an offence) shall not be brought after the expiration of 2 years from the date on which the cause of action accrued. 5. . . . . . . . . 5A. Actions in respect of personal injuries (1) . . . . . . . . (2) . . . . . . . . (3) An action for damages for negligence, nuisance or breach of duty (whether that duty exists by virtue of a contract or a provision made by or under an enactment or independently of any contract or any such provision), where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of, or include, damages in respect of personal injuries to any person, must not be brought after the expiration of 3 years commencing on the date of discoverability. (4) An action for damages under the Fatal Accidents Act 1934 in respect of the death of a person is taken to be an action referred to in subsection (3) . (5) A judge may extend the period of limitation referred to in subsection (3) to the expiration of 6 years commencing on the date of discoverability if he or she considers that, in the circumstances of the case, it is just and reasonable to do so. (6) For the purposes of this section, the date of discoverability is taken to be, in relation to a plaintiff who is the personal representative of a deceased person, the earliest of the following times: (a) the date when the deceased person knew that personal injury – (i) had occurred; and (ii) was attributable to the conduct of the defendant; and (iii) was sufficiently significant to warrant bringing proceedings; (b) the date when the personal representative was appointed, if he or she knew or ought to have known the date of discoverability at that time; (c) the date when the personal representative first knew or ought to have known the date of discoverability, if he or she acquired that knowledge or ought to have acquired that knowledge after being appointed to that position. 5B. No limitation period where sexual or physical abuse of minor (1) Despite section 5A and section 26A – (a) an action for damages for personal injury to a person arising from or related to the sexual abuse, or serious physical abuse, of the person when the person was a minor; or (b) an action for damages under the Fatal Accidents Act 1934 in respect of the death of a person arising from or related to the sexual abuse, or serious physical abuse, of the person when the person was a minor – may be brought at any time. (2) A reference in this section to the sexual abuse, or serious physical abuse, of a person when the person was a minor includes any psychological abuse that arises from the sexual abuse or the serious physical abuse. (3) Nothing in this section limits – (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 an Act of the Commonwealth, rule of court, practice note or practice direction. 5C. Previously settled causes of action relating to child abuse (1) In this section – child abuse means – (a) sexual abuse, or serious physical abuse, of a child; and (b) any psychological abuse of the child that arises from the sexual abuse or serious physical abuse of the child – but does not include an act that is lawful at the time at which it occurs; previously settled relevant right of action means a relevant right of action that was settled before the day on which section 5B commenced but after a limitation period applying before that day to the right of action had expired; relevant court, in relation to a relevant right of action, means a court which, but for an agreement settling the relevant right of action, would have jurisdiction to deal with the action; relevant right of action means a right of action in respect of child abuse. (2) An action may be brought on a previously settled relevant right of action if a relevant court, by order on application, sets aside the agreement effecting the settlement, on the grounds that it is in the interest of justice to do so. (3) Without limiting the matters to which a court may have regard in determining whether it is in the interests of justice to set aside an agreement effecting a settlement in respect of a relevant right of action, the Court is to have regard to the following: (a) the amount of the agreement; (b) the relative strengths of the bargaining positions of the parties; (c) any conduct, by or on behalf of the organisation to which the agreement relates, that – (i) relates to the cause of action; and (ii) occurred before the settlement was made; and (iii) the court considers to have been oppressive. (4) If a court orders under subsection (2) that an agreement effecting a settlement be set aside, so much of the agreement, and any other agreement (apart from a contract of insurance) relating to the settlement, is, despite any Act, law or rule of law, void to the extent to which it relates to the child abuse to which the cause of action relates. (5) A party to an agreement that is wholly or partly void under subsection (4) cannot seek to recover an amount paid by or in respect of the party under the agreement on the basis that the agreement is void to that extent. (6) A court hearing an action on a previously settled relevant right of action may, if it is satisfied that it is just and reasonable to do so when awarding damages in relation to the action, take into account any amount, paid under an agreement that is wholly or partly void under subsection (4) , to the extent to which the amount relates to the child abuse to which the cause of action relates. (7) For the purposes of subsection (6) , half of the total of all amounts paid under an agreement is taken to be the amount relating to the child abuse to which the cause of action relates, if the agreement – (a) does not relate solely to the child abuse; and (b) does not expressly indicate the extent to which the agreement and amounts paid under it relate to the child abuse. (8) This section does not apply in relation to an agreement effecting a settlement that is an offer of redress accepted under section 42 of the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 of the Commonwealth. 6. Conversion, &c., of goods (1) Where – (a) any cause of action in respect of the conversion or wrongful detention of a chattel has accrued to any person; and (b) a further conversion or wrongful detention of that chattel takes place before he recovers possession of the chattel – no action shall be brought in respect of that further conversion or detention after the expiration of 6 years from the accrual of the cause of action in respect of the original conversion or detention. (2) Where – (a) a cause of action has accrued to any person in respect of the conversion or wrongful detention of a chattel; (b) the period limited for the bringing of that action and any action in respect of any further conversion or wrongful detention of that chattel has expired; and (c) he has not during that period recovered possession of the chattel – his title to the chattel is extinguished. 7. Contribution between tortfeasors (1) Where an action is brought against a person in respect of any damage nothing in this Act shall be taken to prejudice or affect the operation of the Wrongs Act 1954 in relation to an action for contribution in respect of that damage. (2) In this section damage has the same meaning as it has for the purposes of the Wrongs Act 1954 . 8. Shipping (1) Section 4(1) applies to an action to recover seamen's wages, but otherwise the foregoing provisions of this Division do not apply to a cause of action within the Admiralty jurisdiction of the Courts of this State that is enforceable in rem. (2) An action to enforce a claim or lien against a vessel or her owners in respect of 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 that vessel be wholly or partly in fault, shall not be brought after the expiration of 2 years from the date on which the damage, loss, or injury was caused. (3) An action to enforce a claim or lien in respect of any salvage services shall not be brought after the expiration of 2 years from the date on which the services were rendered. (4) For the purposes of an action in a court, the court may extend the period mentioned in subsection (2) or subsection (3) to such extent and on such terms as it thinks fit, and shall, if it is satisfied that there has not, within that 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 principal place of business, extend that period to an extent sufficient to give a reasonable opportunity of so arresting the defendant vessel. (5) A period may be extended under this section notwithstanding that it has expired. (6) In this section – freight includes passage money and hire; vessel means a vessel used in navigation, other than air navigation, and includes a barge, lighter, or like vessel, and a reference in this section 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. (7) Part III does not apply to a cause of action to which subsection (2) or subsection (3) applies. 9. Claims in equity This Division does not apply to any claim for specific performance of a contract or for an injunction or for other equitable relief, except in so far as any provision thereof may be applied by analogy in like manner as the corresponding enactment repealed by, or ceasing to have effect in this State by virtue of, this Act has heretofore been applied. Division 3 - Actions in respect of land, rent, money secured by charges, trust property, &c. 10. Adverse possession of land (1) No action shall be brought by the Crown to recover any land after the expiration of 30 years from the date on which the right of action accrued to the Crown or, if it accrued to some person through whom the Crown claims, to that person. (2) No action, not being an action to which subsection (1) applies, shall be brought by any person to recover any land after the expiration of 12 years from the date on which that right of action accrued to him or, if it accrued to some person through whom he claims, to that person. (3) If the right of action referred to in subsection (2) first accrued to the Crown, the action may be brought at any time before the expiration of the period during which the action could have been brought by the Crown, or of 12 years from the date on which the right of action accrued to some person other than the Crown, whichever period first expires. (4) Subsections (1) and (2) do not apply to any action brought by the Crown to recover any land, or brought by any other person to recover any land held by him for a public purpose, if the land sought to be recovered – (a) has at any time been – (i) reserved or set out as a road under any Act or in connection with the alienation of Crown land; (ii) reserved from sale under any Act relating to Crown lands or dedicated under any Act for any public purpose; or (iii) reserved in any Crown grant; or (b) forms any part of the foreshore or the bed of the sea or of any water referred to in subsection (5) . (5) For the purposes of subsection (4) foreshore means – (a) the shore and bed of the sea or of any tidal water below the line of medium high tide between the spring tides and the neap tides; and (b) where any Crown land has been reserved or excepted from sale as a reserve of any kind beside any lake, river, stream, or other water, any land lying between the reserve and that lake, river, stream, or other water. (6) This section does not apply to an action for the recovery of part of a block the division of which into that part and the remainder thereof cannot lawfully be made by a conveyance because either the part or the remainder, or both, have not the qualities of a minimum lot, unless either – (a) the block itself has not the qualities of a minimum lot; or (b) of that part and the remainder each is either – (i) an area of land that has the qualities of a minimum lot; or (ii) occupied as part of land adjoining the block. (7) In subsection (6) block has the same meaning as it has for the purposes of the Local Government (Building and Miscellaneous Provisions) Act 1993 , and for the purposes of that subsection an area of land shall be deemed to have the qualities of a minimum lot if it has the qualities of a minimum lot within the meaning of Division 1 of Part 3 of that Act . 11. Accrual of right of action in case of present interests in land (1) Where the person bringing an action to recover land, or some person through whom he claims – (a) has been in possession thereof; and (b) has, while entitled thereto, been dispossessed or discontinued his possession – the right of action shall be deemed to have accrued on the date of discontinuance or dispossession. (2) Where a person brings an action to recover any land of a deceased person, whether under a will or intestacy, and – (a) the deceased person was on the date of his death in possession of the land or, in the case of a rentcharge created by will or taking effect upon his death, in possession of the land charged; and (b) the deceased person was the last person entitled to the land to be in possession thereof – the right of action shall be deemed to have accrued on the date of the death of that deceased person. (3) Where a person brings an action to recover land, and – (a) the land so sought to be recovered is an estate or interest in possession assured, otherwise than by will, to him, or to some person through whom he claims, by a person who, at the date the assurance took effect, was in possession of the land or, in the case of a rentcharge created by the assurance, in possession of the land charged; and (b) no person has been in possession of the land by virtue of the assurance – the right of action shall be deemed to have accrued on the date when the assurance took effect. 12. Accrual of right of action in case of future interests (1) Subject to this section, the right of action to recover land shall, in a case where – (a) the estate or interest claimed is an estate or interest in reversion or remainder or any other future estate or interest; and (b) no person has taken possession of the land by virtue of the estate or interest claimed – be deemed to have accrued on the date on which the estate or interest became an estate or interest in possession. (2) If the person entitled to the preceding estate or interest, not being a term of years absolute, was not in possession of the land on the date of the determination thereof, no action shall be brought by the person entitled to the succeeding estate or interest after the expiration of 12 years from the date on which the right of action accrued to the person entitled to the preceding estate or interest, or 6 years from the date on which the right of action accrued to the person entitled to the succeeding estate or interest, whichever period last expires. (3) Where the Crown is entitled to the succeeding estate or interest referred to in subsection (2) that subsection has effect with the substitution – (a) for the reference therein to 12 years of a reference to 30 years; and (b) for the reference therein to 6 years of a reference to 12 years. (4) The foregoing provisions of this section do not apply to an estate or interest that falls into possession on the determination of an entailed interest that might have been barred by the person entitled to the entailed interest. (5) No person shall bring an action to recover an estate or interest in land under an assurance taking effect after the right of action to recover the land had accrued to the person by whom the assurance was made or some person through whom he claimed or some person entitled to the preceding estate or interest, unless the action is brought within the period during which the person by whom the assurance was made could have brought such an action. (6) Where a person is entitled to an estate or interest in land in possession, and – (a) while so entitled, is entitled to a future estate or interest in that land; and (b) his right to recover the estate or interest in possession is barred under this Act – no action shall be brought by that person, or by any person claiming through him, in respect of the future estate or interest, unless, in the meantime, possession of the land has been recovered by a person entitled to an intermediate estate or interest. 13. Provisions in case of settled land and land on trust (1) Subject to section 24(1) , the provisions of this Act apply to equitable interests in land, including interests in the proceeds of sale of land held on trust for sale, in like manner as they apply to legal estates; and accordingly a right of action to recover the land shall, for the purposes of this Act, but not otherwise, be deemed to accrue to a person entitled in possession to such an equitable interest in the like manner and circumstances and on the same date as it would accrue if his interest were a legal estate in the land. (2) Where the period prescribed by this Act has expired for the bringing of an action to recover land by the legal owner of settled land his legal estate therein is not extinguished so long as the right of action to recover the land of any person entitled to a beneficial interest therein either has not accrued or has not been barred by this Act; and the legal estate accordingly remains vested in the legal owner and devolves as if his right to bring the action to recover the land had not been barred by this Act; but, when every right of action to recover the land of any person entitled to a beneficial interest therein has been barred by this Act, that legal estate is extinguished. (3) Where any land is held upon trust (including a trust for sale) and the period prescribed by this Act for the bringing of an action to recover the land by the trustees has expired the estate of the trustees is not extinguished so long as the right of action to recover the land of any person entitled to a beneficial interest therein or in the proceeds of sale either has not accrued or has not been barred by this Act; but when every such right of action has been so barred the estate of the trustees is extinguished. (4) Where any land is held upon trust (including a trust for sale) an action to recover the land may be brought by the trustees on behalf of any person entitled to a beneficial interest in possession in the land or in the proceeds of sale thereof whose right of action has not been barred by this Act, notwithstanding that the right of action of the trustees would, apart from this subsection, have been barred by this Act. (5) Where any settled land or any land held on trust for sale is in possession of a person entitled to a beneficial interest therein or in the proceeds of the sale thereof, not being a person solely and absolutely entitled thereto, no right of action to recover the land shall be deemed for the purposes of this Act to accrue during that possession to the legal owner thereof or to any other person entitled to a beneficial interest in the land or in the proceeds of the sale thereof. 14. Forfeiture and breach of condition (1) Subject to subsection (2) , a right of action to recover land by virtue of a forfeiture or breach of condition accrues on the date on which the person in whom the right is vested, or any person through whom he claims, first discovers or may, with reasonable diligence, discover the facts giving the right of forfeiture or showing that the condition is broken. (2) If such a right of action as is referred to in subsection (1) has accrued to a person entitled to an estate or interest in reversion or remainder or any other future estate or interest and the land was not recovered by virtue thereof, the right of action to recover that land shall not be deemed to have accrued to that person until his estate or interest fell into possession, as if the forfeiture or breach of condition had not occurred. 15. Certain tenancies (1) A tenancy at will shall, for the purposes of this Act, be deemed to be determined at the expiration of a period of one year from the commencement thereof, unless it has previously been determined, and, accordingly, the right of action of the person entitled to the land subject to the tenancy shall be deemed to have accrued on its determination. (2) Subject to subsection (3) , a tenancy from year to year or other period, without a lease in writing, shall, for the purposes of this Act, be deemed to be determined at the expiration of the first year or other period; and, accordingly, the right of action of the person entitled to the land subject to the tenancy shall be deemed to have accrued at the date of its determination, except that where rent is subsequently received in respect of the tenancy the right of action shall be deemed to have accrued on the date of the last receipt of rent. (3) Where a person is in possession of land by virtue of a lease in writing by which a rent amounting to the yearly sum of not less than $100 is reserved, and – (a) the rent is received by some person wrongly claiming to be entitled to the land in reversion immediately expectant on the determination of the lease; and (b) no rent is subsequently received by the person rightfully so entitled – the right of action of the person last-mentioned to recover the land shall be deemed to have accrued at the date when the rent was first received by the person wrongfully claiming to be entitled thereto and not at the date of the determination of the lease. (4) Subsections (1) and (3) do not apply to a tenancy at will or lease granted by the Crown. 16. Right of action not to accrue or continue unless there is adverse possession (1) No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (in this section referred to as "adverse possession"); and where, under the foregoing provisions of this Act, any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land. (2) Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in adverse possession, the right of action shall no longer be deemed to have accrued and no fresh right of action shall be deemed to accrue until the land is again taken into adverse possession. (3) For the purposes of this section – (a) the possession of land subject to a rentcharge by a person (other than the person entitled to the rentcharge) who does not pay the rent shall be deemed adverse possession of the rentcharge; and (b) receipt of rent under a lease by a person wrongfully claiming, in accordance with section 15(3) , the land in reversion shall be deemed to be adverse possession of the land. (4) Where any one or more of several persons entitled to any land or rent as joint tenants or tenants in common have been in possession or receipt of – (a) the entirety of the land or profits thereof, or the rent