Limitation Periods Flashcards
(34 cards)
What is the general limitation period for tort and contract in Victoria?
6 years: s 5(1)(a) Limitation of Actions Act 1958 (Vic).
What is the limitation period for enforcing judgements in Victoria?
15 years: s 5(4) Limitation of Actions Act 1958 (Vic).
Under Victorian law, an extension of time may be granted, in the case of fraud or mistake.
(May extend the 6 year general limitation for contracts and tort).
s 27 Limitation of Actions Act 1958 (Vic).
Under Victorian law, an extension of time may be granted, in the case of disability.
(May extend the 6 year general limitation for contracts and tort).
s 23 Limitation of Actions Act 1958 (Vic).
An action upon a bond or any other specialty (such as a deed) shall not be brought after the expiration of 15 years from the date on which the cause of action accrued.
s 5(3) Limitation of Actions Act 1958 (Vic)
What is the limitation period for adverse possession / action to recover land?
15 years: s 8 Limitation of Actions Act 1958 (Vic).
From 1 October 2003, what is the general limitation period for personal injury in Victoria?
Does not apply to ACA and TAA claims.
It is:
- 3 years from discoverability;
- , or 12 year ‘long stop’;
subject to an extension being granted under s 27K.
The limitation period in building actions is 10 years from the occupancy permit.
s 134 Building Act 1993 (Vic).
“despite anything to the contrary in the Limitation of Actions Act 1958 or in any other Act or law, a building action cannot be brought more than 10 years after the date of issue of the occupancy permit…”
s 134 Building Act 1993 (Vic) extends the limitation period for contract, but caps the limitation period for tort.
Brirek Industries P/L v McKenzie Group Consulting P/L [2014] VSCA
Building permits issued - breach of contract - contract limit extended.
A dust disease accrues when the fibre settles in the lung, regardless of whether it is discoverable or not.
Cartledge v E Jopling & Sons Ltd (1963)
Steel dressers - asbestos aprons - pneumoconiosis.
In the UK, latent defects accrue as soon as damage appears.
Pirelli General Paper Works v Oscar Faber & Partners. [1983] UKHL
Chimeny - defective design - small cracks not discovered for 7 years.
Does a limitation period automatically extinguish a cause of action?
No. It must be specially pleaded.
Which section of the Limitation of Actions Act abolishes the tule in Weldon v Neal (1887)?
s 34 Limitation of Actions Act 1958 (Vic).
Abrogation of rule in Weldon v. Neal (1887) 19 Q.B.D. 394…court must allow the amendment to be made if it is satisfied that no …prejudiced…
Which state introduced a general ‘catch all’ limitation period of 6 years from date of accrual in 2005?
Western Australia.
Section 13 applies to actions for breach of contract, most claims in tort, breach of trust and many other cases, and makes it unnecessary to have specific limitation periods…
In contrast to the 6 years nationwide, what is the Northern Territory’s limitation period for contract and tort?
3 years.
Which jurisdictions do not have a 10 year limitation period for building actions?
Queensland and Western Australia.
To ascertain when the limitation period begins to run, it is necessary to consider whether the contract gives rise to a continuing obligation.
Larking v Great Western (Nepean) Gravel Ltd (1940) HCA per Dixon J
Gravel - fence not built - perform ‘act’ or ‘create state of affairs’.
Breach of warranty period is normally a single breach for failure to supply adequate goods, which creates the ‘strange situation’ of being statue barred towards end of warranty period.
Tranquility Pools & Spas Pty Limited v Huntsman Chemical Company Australia Pty Limited [2011] NSWSC 75
Pool - defects free for 10 years - ordinarily a single breach.
What is a defects liability period (DLP)?
The period of time which the contractor is contractually obliged to repair defects.
See Clause 37 AS4300-1995.
“…within the bounds of sense and reasonableness the policy of the law should be to advance, rather than to retard, the accrual of a cause of action.”
Nykredit Mortgage Bank Ltd v Edward Erdman Group Ltd (No 2) [1997] per Lord Nicholls.
Surveyor’s negligent valuation - bank inadequate security.
In support of defering accrual, it is said ‘To compel a plaintiff to institute proceedings before the existence of his or her loss is ascertained or ascertainable would be unjust.’
Majority in Wardley Australia Ltd v State of Western Australia [1992] HCA
A person wrongfully induced to enter into a contract to indemnify another had no cause of action until called on to pay — however probable it might seem, at the contract date, that the indemnity would be resorted to.
What is the doctrine of analogy?
Equitable cause of action limitation period is the same as the equivilant common law limitation - “equity follows the law”.
See s 5(8) Limitation of Actions Act 1958 (Vic).
“…any loss or injury (merely economic in its nature) …is sustained only at the time when that inadequacy is first known or manifest…”
Deane J in Sutherland Shire Council v Heyman [1985] HCA
Faulty foundations - negligent approval of plans - negligent inspection.
“…economic loss which would be [suffered] if and when the defect was actually discovered or became manifest, in the sense of being discoverable by reasonable diligence”
Deane J in Hawkins v Clayton (1988) HCA
Failure to notify of death - dishevelled house - death duties.
