Limitation Periods

Question 1

What is the general limitation period for tort and contract in Victoria?

Answer 1

6 years: s 5(1)(a) Limitation of Actions Act 1958 (Vic).

Question 2

What is the limitation period for enforcing judgements in Victoria?

Answer 2

15 years: s 5(4) Limitation of Actions Act 1958 (Vic).​

Question 3

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).

Answer 3

s 27 Limitation of Actions Act 1958 (Vic).​

Question 4

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).

Answer 4

s 23 Limitation of Actions Act 1958 (Vic).

Question 5

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.

Answer 5

s 5(3) Limitation of Actions Act 1958 (Vic)

Question 6

What is the limitation period for adverse possession / action to recover land?

Answer 6

15 years: s 8 Limitation of Actions Act 1958 (Vic).

Question 7

From 1 October 2003, what is the general limitation period for personal injury in Victoria?

Does not apply to ACA and TAA claims.

Answer 7

It is:

• 3 years from discoverability;
• , or 12 year ‘long stop’;

subject to an extension being granted under s 27K.

Question 8

The limitation period in building actions is 10 years from the occupancy permit.

Answer 8

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…”

Question 9

s 134 Building Act 1993 (Vic) extends the limitation period for contract, but caps the limitation period for tort.

Answer 9

Brirek Industries P/L v McKenzie Group Consulting P/L [2014] VSCA

Building permits issued - breach of contract - contract limit extended.

Question 10

A dust disease accrues when the fibre settles in the lung, regardless of whether it is discoverable or not.

Answer 10

Cartledge v E Jopling & Sons Ltd (1963)

Steel dressers - asbestos aprons - pneumoconiosis.

Question 11

In the UK, latent defects accrue as soon as damage appears.

Answer 11

Pirelli General Paper Works v Oscar Faber & Partners. [1983] UKHL

Chimeny - defective design - small cracks not discovered for 7 years.

Question 12

Does a limitation period automatically extinguish a cause of action?

Answer 12

No. It must be specially pleaded.

Question 13

Which section of the Limitation of Actions Act abolishes the tule in Weldon v Neal (1887)?

Answer 13

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…

Question 14

Which state introduced a general ‘catch all’ limitation period of 6 years from date of accrual in 2005?

Answer 14

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…

Question 15

In contrast to the 6 years nationwide, what is the Northern Territory’s limitation period for contract and tort?

Answer 15

3 years.

Question 16

Which jurisdictions do not have a 10 year limitation period for building actions?

Answer 16

Queensland and Western Australia.

Question 17

To ascertain when the limitation period begins to run, it is necessary to consider whether the contract gives rise to a continuing obligation.

Answer 17

Larking v Great Western (Nepean) Gravel Ltd (1940) HCA per Dixon J

Gravel - fence not built - perform ‘act’ or ‘create state of affairs’.

Question 18

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.

Answer 18

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.

Question 19

What is a defects liability period (DLP)?

Answer 19

The period of time which the contractor is contractually obliged to repair defects.

See Clause 37 AS4300-1995.

Question 20

“…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.”

Answer 20

Nykredit Mortgage Bank Ltd v Edward Erdman Group Ltd (No 2) [1997] per Lord Nicholls.

Surveyor’s negligent valuation - bank inadequate security.

Question 21

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.’

Answer 21

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.

Question 22

What is the doctrine of analogy?

Answer 22

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).

Question 23

“…any loss or injury (merely economic in its nature) …is sustained only at the time when that inadequacy is first known or manifest…”

Answer 23

Deane J in Sutherland Shire Council v Heyman [1985] HCA

Faulty foundations - negligent approval of plans - negligent inspection.

Question 24

“…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”

Answer 24

Deane J in Hawkins v Clayton (1988) HCA

Failure to notify of death - dishevelled house - death duties.

Question 25

What must be known or made manifest is the inadequacy of the footings. Cracks and differential settlement may not necessarily bespeak to that inadequcy.

Answer 25

Pullen v Gutteridge Haskins & Deavey Pty Ltd [1993] VSCA

State swimming centre - Coode Island silt - cracks attributed to settling.

Question 26

Many lost opportunities, especially in a commercial context, are recoverable as losses, but a contingent loss or liability is not itself a category of loss.

Answer 26

Commonwealth of Australia v Cornwell [HCA] 2007

Negligent advice - missed 1967-1976 retirement scheme - precise consequences not known until retirement circumstances known.

Question 27

Even if there is no defect liability period, it may be reasonable mitigation to have the same builder rectify the works.

Answer 27

Woodlands Oak Limited v Conwell & Anor [2011] EWCA

No mechanism for DLP - defects discovered - other contractors engaged.

Question 28

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.

Answer 28

Wardley Australia Ltd v Western Australia [1992] HCA

Question 29

What is the limitation period to recover damages under s 236 for misleading or deceptive conduct?

Answer 29

6 years after accrual: s 236 ACL

Question 30

Hindsight may be used to determine when the loss actual arose, even if it was unprovable at the time.

Answer 30

Alcan Gove Pty Ltd v Zabic [2015] HCA

Nhulunbuy alumina refinery - exposure - disease ‘inevitable and inexorable’

Question 31

A plaintiff may be within the limitation period, but still have their claim struck out for undue delay.

Answer 31

Batistatos v Roads and Traffic Authority of NSW [2006] HCA

Motor accident - 29 year delay - mental retardation - fair trial impossible.

Question 32

Limitation periods are a question of substantive law, not procedural law.

Answer 32

John Pfeiffer Pty Limited v Rogerson [2000] HCA

Injured in NSW - sued in ACT - ‘substantive’ NSW tort law and limitation applied.

Question 34

Notwithstanding the statutory limitation periods, the parties to the contract may agree a shorter limitation period so long as it is not “absurd”.

Answer 34

Port Jackson Stevedoring v Salmond [1977] HCA per Barwick CJ

Shick razors - bailee negligently lost - action required within 12 months.