Limitation of Actions Act 1974

An Act to consolidate and amend the law relating to the limitation of actions

1Short title

This Act may be cited as the Limitation of Actions Act 1974.

2Commencement

This Act shall commence on 1 July 1975.

5Interpretation

(1)In this Act—

action includes any proceeding in a court of law.

Crown includes not only the Crown in the right of the State but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.

damage includes loss of life and personal injury.

encumbrance means a charge on land created for the purpose of securing the payment of an annuity or sum of money other than a loan.

encumbrancee includes a person not being a mortgagee for whose benefit an estate or interest in land is charged with an annuity or sum of money other than a loan and also a person entitled to the benefit of an encumbrance or to require payment or discharge thereof.

land includes corporeal hereditaments, 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 is provided in this definition, does not include an incorporeal hereditament.

mortgage includes a charge or lien on property for securing money or money’s worth but does not include a possessory lien on goods nor a binding effect on the property arising under a writ of execution against the property.

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 estate does not include chattels real.

s 5 def personal estate sub 1996 No. 5 s 8 sch

personal injury includes a disease and an impairment of a person’s physical or mental condition.

personal property does not include chattels real.

s 5 def personal property sub 1996 No. 5 s 8 sch

rent includes a rentcharge and a rentservice.

rentcharge means any annuity or periodical sum of money charged upon or payable out of land save a rentservice or interest on a mortgage on land.

ship includes every description of vessel used in navigation not propelled by oars.

trust has the meaning given by the Trusts Act 1973.

s 5 def trust sub 1996 No. 5 s 8 sch

trustee has the meaning given by the Trusts Act 1973.

s 5 def trustee sub 1996 No. 5 s 8 sch

trust for sale means in relation to land an immediate binding trust for sale, whether or not exercisable at the request or with the consent of any person, and with or without a power at discretion to postpone the sale.

(2)For the purposes of this Act, a person shall be taken to be under a disability while the person is an infant or of unsound mind.

(3)For the purposes of subsection (2), but without prejudice to the generality thereof, a person shall be presumed conclusively to be of unsound mind—

(a)while the person is an involuntary patient under the Mental Health Act 2016; or

(b)while the person is a forensic disability client under the Forensic Disability Act 2011; or

(c)while the person is detained in an authorised mental health service under an order of the court or in safe custody under an order given by the Governor in the name of Her Majesty, under section 647 of the Criminal Code.

(4)A person shall be taken to claim through another person if the person became entitled by, through, under or by the act of that other person to the right claimed, but a person becoming entitled to an estate or interest by virtue of a special power of appointment shall not be taken to claim through the appointor.

(5)A reference in this Act to a right of action to recover land includes a reference to a right to enter into possession of the land or, in the case of a rentcharge, to distrain for arrears of rent and a reference to the bringing of such an action includes a reference to the making of such an entry or distress.

(6)A reference in this Act, in the case of a rentcharge—

(a)to the possession of land—shall be read and construed as a reference to receipt of the rent; or

(b)to the date of dispossession or discontinuance of possession of land—shall be read and construed as a reference to the date the rent was last received.

(7)In part 3, a reference to a right of action includes a reference to—

(a)a cause of action; and

(b)a right to receive money secured by a mortgage or charge on property or to recover proceeds of the sale of land; and

(c)a right to receive a share or interest in the personal estate of a deceased person;

and a reference to the date of accrual of a right of action—

(d)shall, in the case of an action for an account, be read and construed as a reference to the date on which the matter arose in respect of which the account is claimed; and

(e)shall, in the case of an action upon a judgment, be read and construed as a reference to the date on which the judgment became enforceable; and

(f)shall, in the case of an action to recover arrears of rent or interest or damages in respect thereof, be read and construed as a reference to the date on which the rent or interest became due.

s 5 amd 1978 No. 73 s 5(5)(a) sch 1 pt E; 2000 No. 16 s 590 sch 1 pt 2; 2008 No. 53 s 18; 2010 No. 42 s 214 sch; 2011 No. 13 s 210; 2016 No. 5 s 923 sch 4

6Application to 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 or against the Crown includes an action by or against an officer of the Crown as such or a person acting on behalf of the Crown.

(3)This Act does not apply to—

(a)a prosecution by the Crown for an offence against any Act; or

(b)an action by the Crown—

(i)for the recovery of a fee, tax, duty or other sum of money or interest on a fee, tax, duty or other sum of money; or

(ii)in respect of the forfeiture of a ship.

(4)Notwithstanding any law or enactment now or heretofore in force in the State, the right, title or interest of the Crown to or in any land shall not be and shall be deemed not to have been in any way affected by reason of any possession of such land adverse to the Crown for any period whatever.

s 6 amd 2010 No. 42 s 214 sch

7Saving of other limitations

Subject to sections 11(2) and 43A, this Act does not apply to an action or arbitration for which a limitation period is fixed by or under an enactment other than this Act.

s 7 amd 1996 No. 5 s 8 sch; 2010 No. 9 s 24

8Provisions as to actions already barred and pending actions

(1)Save as is provided in sections 31 and 32, nothing in this Act—

(a)enables an action to be brought that was barred before the commencement of this Act by an enactment repealed by this Act, save so far as the cause of action or right of action may be revived by an acknowledgment or part payment made in accordance with this Act; or

(b)affects an action or arbitration commenced before the commencement of this Act or the title to property that is the subject of such an action or arbitration.

(2)The time for bringing proceedings in respect of a cause of action that arose before the commencement of this Act shall, if it has not then expired, expire at the time when it would have expired—

(a)apart from this Act; or

(b)if this Act had at all material times been in force;

whichever is the later.

(3)Save as is provided in this section, nothing in this Act affects an action if the cause of action upon which that action is founded arose before the commencement of this Act.

s 8 amd 2010 No. 42 s 214 sch

9Application

This part applies subject to part 3.

10Actions of contract and tort and certain other actions

(1)The following actions shall not be brought after the expiration of 6 years from the date on which the cause of action arose—

(a)subject to section 10AA, an action founded on simple contract or quasi-contract or on tort where the damages claimed by the plaintiff do not consist of or include damages in respect of personal injury to any person;

(b)an action to enforce a recognisance;

(c)an action to enforce an award, where the agreement to arbitrate is not by an instrument under seal;

(d)an action to recover a sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of a penalty or forfeiture.

(2)An action for an account shall not be brought in respect of a 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.

(3A)Subsection (3) does not affect an action in respect of 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 becomes enforceable.

(4A)For the purposes of subsection (4), a judgment of a court of a place outside the State becomes enforceable on the date on which the judgment becomes enforceable in the place where the judgment is given.

(5)An action to recover a penalty or forfeiture or sum by way of a penalty or forfeiture shall not be brought after the expiration of 2 years from the date on which the cause of action accrued.

(5A)In subsection (5)—

penalty does not include a fine to which a person is liable on conviction of a criminal offence.

(6)This section—

(a)does not apply to a cause of action within the Admiralty jurisdiction of the court that is enforceable in rem; and

(b)does not apply to a claim for specific performance of a contract or for an injunction or other equitable relief, save so far as any provision thereof may be applied by the court by analogy in the same manner as the corresponding enactment repealed by this Act has heretofore applied.

s 10 amd 2005 No. 55 s 48 sch 4; 2010 No. 42 s 214 sch

10AADefamation actions

(1)An action on a cause of action for defamation must not be 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 see the Defamation Act 2005, section 12A(1).

date of the 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.

s 10AA ins 2005 No. 55 s 48 sch 4

amd 2021 No. 13 s 29

10ABDefamation actions—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 taken to have accrued on the date of the first publication for the purposes of determining when—

(a)the limitation period applicable under section 10AA begins; or

(b)the 3-year period referred to in section 32A(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 32A to extend the limitation period applicable under section 10AA.

(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 the Corporations Act, section 50AAA, of the publisher (or an employee or contractor of the associated entity).

date of the 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.

s 10AB ins 2021 No. 13 s 30

10AActions to recover tax

(1)Despite section 10(1)(d) or (5), an action to recover an amount paid as tax that is recoverable because of the invalidity of an Act or a provision of an Act must be started within 1 year after the day of payment.

(2)Subsection (1) does not apply to the recovery of an amount that would, assuming the Act or provision had been valid, have nevertheless represented an overpayment of tax.

(3)The period of limitation prescribed by subsection (1) can not be extended and, if an action for the recovery of an amount is not brought within the period, the right to recover the amount ends.

(4)Despite section 7, if this section and another Act are inconsistent, this section prevails over the other Act to the extent of the inconsistency.

(5)In this section—

invalid Act or provision of an Act includes an Act or provision of an Act that would be invalid apart from section 9 (Act to be interpreted not to exceed Parliament’s legislative power) of the Acts Interpretation Act 1954.

pay a tax means pay the tax voluntarily or under compulsion (whether or not the tax is paid under a mistake of law or fact), and includes recover the tax by legal proceeding.

tax means—

(a)a tax, fee, duty, levy, charge or other impost under, or purportedly under, an Act; or

(b)a penalty in relation to a tax, fee, duty, levy, charge or other impost under, or purportedly under, an Act.

s 10A ins 1993 No. 64 s 3

amd 1996 No. 5 s 8 sch

11Actions in respect of personal injury

(1)Notwithstanding any other Act or law or rule of law, an action for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) in which damages claimed by the plaintiff consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person shall not be brought after the expiration of 3 years from the date on which the cause of action arose.

(2)However, a right of action relating to personal injury resulting from a dust-related condition is not subject to a limitation period under an Act or law or rule of law.

(3)To remove any doubt, it is declared that personal injury resulting from a dust-related condition does not include personal injury resulting from smoking or other use of tobacco products or exposure to tobacco smoke.

(4)In this section—

dust-related condition see the Civil Liability Act 2003, schedule 2.

s 11 amd 1981 No. 87 s 9; 2010 No. 9 s 25

11ANo limitation period for actions for child abuse

(1)An action for damages relating to the personal injury of a person resulting from the abuse of the person when the person was a child—

(a)may be brought at any time; and

(b)is not subject to a limitation period under an Act or law or rule of law.

(3)This section applies whether the claim for damages is brought in tort, in contract, under statute, or otherwise.

(4)This section applies to an action for damages—

(a)arising under the Civil Proceedings Act 2011, section 64; or

(b)that has survived on the death of a person for the benefit of the person’s estate under the Succession Act 1981, section 66.

(5)This section does not limit—

(a)any inherent, implied or statutory jurisdiction of a court; or

(b)any other powers of a court under the common law or any other Act (including a Commonwealth Act), rule of court or practice direction.

Example—

This section does not limit a court’s power to summarily dismiss or permanently stay proceedings if the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible.

(6)In this section—

abuse, of a child, means—

(a)sexual abuse or serious physical abuse of the child; or

(b)psychological abuse of the child perpetrated in connection with sexual abuse or serious physical abuse of the child.

s 11A ins 2016 No. 59 s 4

amd 2019 No. 34 s 11

12Actions in cases of successive conversions and extinction of title of owners of converted goods

(1)Where a cause of action in respect of the conversion or wrongful detention of a chattel has accrued to any person and before the person recovers possession of the chattel a further conversion or wrongful detention takes place, an action shall not be brought in respect of the 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 cause of action to which subsection (1) applies has accrued to any person and the period prescribed for bringing that action or any action in respect of which a further conversion or wrongful detention referred to in subsection (1) has expired and the person has not during that period recovered possession of the chattel, the title of that person to the chattel shall be extinguished as against a purchaser, mortgagee or other person having a title to or an interest in the chattel bona fide for value.

(3)Where, before the expiration of the period of limitation prescribed by this Act for an action in respect of the further conversion or wrongful detention of a chattel, such an action is brought, the expiration of the period of limitation does not affect the right or title of the plaintiff to the chattel—

(a)for the purposes of the action; or

(b)so far as the right or title is established in the action.

13Actions to recover land

An action shall not be brought by a person to recover land after the expiration of 12 years from the date on which the right of action accrued to the person or, if it first accrued to some person through whom the person claims, to that person.

14Accrual of right of action in cases of present interests in land

(1)Where the person bringing an action to recover land or some person through whom the person claims has been in possession thereof and has, while entitled thereto, been dispossessed or discontinued possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.

(2)Where a person brings an action to recover land of a deceased person, whether under a will or on intestacy and the deceased person was on the date of death in possession of the land or, in the case of a rentcharge created by will or taking effect upon the person’s death, in possession of the land charged and 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 death.

(3)Where a person brings an action to recover land, being an estate or interest in possession assured otherwise than by will to the person or some person through whom the person claims by a person who on the date when 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 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.

15Accrual of right of action in cases of future interests in land

(1)Subject to this section, the right of action to recover land in a case where the estate or interest claimed was an estate or interest in reversion or remainder or any other future estate or interest and no person has taken possession of the land by virtue of the estate or interest claimed shall be deemed to have accrued on the date on which the estate or interest fell into possession by the determination of the preceding estate or interest.

(2)If the person entitled to the preceding estate or interest was not in possession of the land on the date of the determination thereof, action shall not 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)A person shall not 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 the person claimed or some person entitled to a 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 an action.

(4)Where a person is entitled to an estate or interest in land in possession and, while so entitled, is also entitled to a future estate or interest in that land and the person’s right to recover the estate or interest in possession is barred under this Act, action shall not be brought by that person or by a person claiming through the person 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.

16Provisions in cases of land held in trust

(1)Subject to the provisions of section 27(1), this Act shall apply to equitable interests in land including interests in the proceeds of the sale of land held upon 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 an equitable interest in the like manner and circumstances and on the same date as it would accrue if the person’s interest were a legal estate in the land.

(2)Where land is held by a trustee 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 trustee has expired, the estate of the trustee shall not be extinguished if and so long as the right of action to recover the land of any person entitled to a beneficial interest in the land or in the proceeds of sale has not accrued or has not been barred by this Act, but if and when every such right has been so barred the estate of the trustee shall be extinguished.

(3)Where land is held upon trust including a trust for sale, an action to recover the land may be brought by the trustee on behalf of any person entitled to a beneficial interest in possession in the land or in the proceeds of sale whose right of action has not been barred by this Act, notwithstanding that the right of action of the trustee would, apart from this provision, have been barred by this Act.

(4)Where land held upon trust for sale is in the possession of a person entitled to a beneficial interest in the land or in the proceeds of sale, not being a person solely and absolutely entitled thereto, a right of action to recover the land shall be deemed for the purposes of this Act not to accrue during such possession to any person in whom the land is vested as trustee or to any person entitled to a beneficial interest in the land or in the proceeds of sale.

17Accrual of right of action in cases of forfeiture or breach of condition

A right of action to recover land by virtue of a forfeiture or breach of condition shall be deemed to have accrued on the date on which the forfeiture was incurred or the condition broken, but where such right has accrued to a person entitled to an estate or interest in reversion or remainder and the land was not recovered by virtue thereof, the right of action to recover the land shall be deemed not to have accrued to that person until the person’s estate or interest fell into possession as if no forfeiture or breach of condition had occurred.

18Accrual of right of action in cases of 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 1 year from the commencement thereof unless it has previously been determined and accordingly the right of action of the person entitled to land subject to the tenancy shall be deemed to have accrued on the date of its determination.

(2)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 on the date of its determination.

(2A)Where rent has subsequently been received in respect of the tenancy, the right of action shall be deemed to have accrued on the date the rent was last received.

(3)Where a person is in possession of land by virtue of a lease in writing by which a rent of not less than $2 per annum is reserved and the rent is received by some person wrongfully claiming to be entitled to the land in reversion immediately expectant on the determination of the lease and no rent is subsequently received by the person rightfully so entitled, the right of action of the last named person to recover the land shall be deemed to have accrued on the date when the rent was first received by the person wrongfully claiming and not on the date of the determination of the lease.

19Right of action not to accrue or continue unless there is adverse possession

(1)A right of action to recover land shall be deemed not to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (adverse possession) and where under the provisions of this Act 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 be deemed not 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 accrue unless and until the land is again taken into adverse possession.

(3)For the purpose of this section—

(a)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 to be adverse possession of the rentcharge; and

(b)receipt of rent, under a lease by a person wrongfully claiming in accordance with section 18(3) the land in reversion, shall be deemed to be adverse possession of the land.

20Redemption actions

Where a mortgagee of land has been in possession of any of the mortgaged land for a period of 12 years, an action to redeem the land of which the mortgagee has been in possession shall not thereafter be brought by the mortgagor or a person claiming through the mortgagor.

21Right of action not preserved by formal entry or continual claim

For the purposes of this Act, a person shall be deemed not to have been in possession of land by reason only of having made a formal entry thereon, and a continual or other claim upon or near land shall not preserve a right of action to recover the land.

22Application of limitation as between joint owners

When 1 or more of several persons entitled to land or rent as coparceners, joint tenants or tenants in common has or have been in possession or receipt of the entirety or more than his, her or their undivided share or shares of such land or of the profits thereof or of such rent for his, her 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 be deemed not to have been the possession or receipt of or by such last mentioned person or persons or any of them.

23Administration to date back to death

For the purposes of the provisions of this Act with respect to actions for the recovery of land, an administrator of the estate of a deceased person shall be deemed to claim as if there had been no interval of time between the death of the deceased person and the grant of the letters of administration.

24Extinction of title after expiration of period of limitation

(1)Subject to section 17, subsection (2) of this section and the Real Property Act 1861, where the period of limitation prescribed by this Act within which a person may bring an action to recover land (including a redemption action) has expired, the title of that person to the land shall be extinguished.

(2)Where an action to recover land is brought before the expiration of the period of limitation prescribed by this Act, the expiration of that period does not affect the right or title of the plaintiff to the land—

(a)for the purposes of the action; and

(b)so far as the right or title is established in the action.

s 24 amd 2010 No. 42 s 214 sch

25Actions to recover rent

An action shall not be brought nor a distress made to recover arrears of rent or damages in respect thereof after the expiration of 6 years from the date on which the arrears became due.

26Actions to recover money secured by mortgage or charge or to recover proceeds of the sale of land

(1)An action shall not be brought to recover a principal sum of money secured by a mortgage or other charge on property whether real or personal nor to recover proceeds of the sale of land after the expiration of 12 years from the date on which the right to receive the money accrued.

(2)A foreclosure action in respect of mortgaged personal property shall not be brought after the expiration of 12 years from the date on which the right to foreclose accrued, but if after that date the mortgagee was in possession of the mortgaged property, the right to foreclose on the property that was in the mortgagee’s possession shall, for the purposes of this subsection, be deemed not to have accrued until the date on which the mortgagee’s possession discontinued.

(3)The right to receive a principal sum of money secured by the mortgage or other charge and the right to foreclose on the property subject to the mortgage or charge shall be deemed not to accrue so long as that property comprises a future interest or a life assurance policy that has not matured or been determined.

(4)The provisions of this section do not apply to a foreclosure action in respect of mortgaged land, but the provisions of this Act with respect to an action to recover land apply to such an action.

(5)An action to recover arrears of interest payable in respect of a sum of money secured by a mortgage or other charge or payable in respect of proceeds of the sale of land or to recover damages in respect of such arrears shall not be brought after the expiration of 6 years from the date on which the interest became due.

(5A)Notwithstanding subsection (5)—

(a)where a prior mortgagee or encumbrancee has been in possession of the property charged and an action is brought within 1 year of the discontinuance of such possession by the subsequent encumbrancee—the subsequent encumbrancee may recover by that action all the arrears of interest that fell due during the period of possession by the prior encumbrancee or damages in respect thereof, although the period exceeded 6 years; or

(b)where the property subject to the mortgage or charge comprises a future interest or life assurance policy and it is a term of the mortgage or charge that arrears of interest be treated as part of the principal sum of money secured by the mortgage or charge—interest shall be deemed not to become due before the right to receive the principal sum of money has accrued or is deemed to have accrued.

(6)This section does not apply to a mortgage or charge on a ship.

s 26 amd 2010 No. 42 s 214 sch

27Actions in respect of trust property

(1)A period of limitation prescribed by this Act shall not apply to an action by a beneficiary under a trust, being an action—

(a)in respect of a fraud or fraudulent breach of trust to which the trustee was a party or privy; or

(b)to recover from the trustee trust property or the proceeds thereof in the possession of the trustee, or previously received by the trustee and converted to the trustee’s use.

(2)Subject to subsection (1), an action by a beneficiary to recover trust property or in respect of a breach of trust, not being an action for which a period of limitation is prescribed by any other provision of this Act, shall not be brought after the expiration of 6 years from the date on which the right of action accrued.

(2A)Notwithstanding subsection (2), the right of action shall be deemed not to have accrued to a beneficiary entitled to a future interest in the trust property until the interest fell into possession.

(3)A beneficiary as against whom there would be a good defence under this Act shall not derive any greater or other benefit from a judgment or order obtained by any other beneficiary than the beneficiary could have obtained if the beneficiary had brought the action and this Act had been pleaded in defence.

28Actions claiming personal estate of a deceased person

Subject to section 27(1), an action in respect of a claim to the personal estate of a deceased person or to a share or interest in that estate, whether under a will or on intestacy, shall not be brought after the expiration of 12 years from the date on which the right to receive the share or interest accrued and an action to recover arrears of interest in respect of a legacy or damages in respect of such arrears shall not be brought after the expiration of 6 years from the date on which the interest became due.

29Extension in cases of disability

(1)If on the date on which a right of action accrued whether before or after the commencement of this Act for which a period of limitation is prescribed by this Act the person to whom or for whose benefit it accrued was under a disability, the action may be brought at any time before the expiration of 6 years from the date on which the person ceased to be under a disability or died, whichever event first occurred, notwithstanding that the period of limitation has expired.

(2)Notwithstanding subsection (1)—

(a)where a right of action that has accrued to a person under a disability accrues on the death of that person while still under a disability to another person under a disability—a further extension of time shall not be allowed by reason of the disability of the second person; and

(b)an action to recover land or money charged on land shall not be brought by virtue of this section by a person after the expiration of 30 years from the date on which the right of action accrued to that person or a person through whom the person claims; and

(c)an action to recover damages in respect of personal injury or damages in respect of injury resulting from the death of any person shall not be brought by a person after the expiration of 3 years from the date on which that person ceased to be under a disability or died, whichever event first occurred.

(3)This section does not apply—

(a)in a case where the right of action first accrued to a person (not under a disability) through whom the person under a disability claims; or

(b)to an action to recover a penalty or forfeiture or sum by way of a penalty or forfeiture by virtue of an enactment save where the action is brought by an aggrieved party.

s 29 amd 1981 No. 87 s 10; 2010 No. 42 s 214 sch

30Interpretation

(1)For the purposes of this section and sections 31, 32, 33 and 34—

(a)the material facts relating to a right of action include the following—

(i)the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;

(ii)the identity of the person against whom the right of action lies;

(iii)the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;

(iv)the nature and extent of the personal injury so caused;

(v)the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;

(b)material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing—

(i)that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and

(ii)that the person whose means of knowledge is in question ought in the person’s own interests and taking the person’s circumstances into account to bring an action on the right of action;

(c)a fact is not within the means of knowledge of a person at a particular time if, but only if—

(i)the person does not know the fact at that time; and

(ii)as far as the fact is able to be found out by the person—the person has taken all reasonable steps to find out the fact before that time.

(2)In this section—

appropriate advice, in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts.

s 30 amd 1996 No. 5 s 8 sch

31Ordinary actions

(1)This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person.

(2)Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court—

(a)that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and

(b)that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;

the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.

(3)This section applies to an action whether or not the period of limitation for the action has expired—

(a)before the commencement of this Act; or

(b)before an application is made under this section in respect of the right of action.

s 31 amd 1981 No. 87 s 11

32Surviving actions

(1)This section applies to actions founded on negligence, trespass, nuisance or breach of duty, for damages for personal injury that have survived on the death of a person for the benefit of the person’s estate under section 66 of the Succession Act 1981.

(2)Where on application to a court by a person claiming to have a right of action to an action to which this section applies, it appears to the court—

(a)that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the deceased person or the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and

(b)that there is evidence to establish the right of action, apart from a defence founded on the expiration of a period of limitation;

the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the deceased or the applicant in that court, the period of limitation is extended accordingly.

(3)For the purposes of this section, the material facts of a decisive character do not include facts relating only to—

(a)damages not recoverable by the applicant; or

(b)funeral expenses of the deceased.

(4)This section applies to an action whether or not a period of limitation for the action has expired—

(a)before the commencement of this Act; or

(b)before an application is made under this section in respect of the right of action.

s 32 amd 1981 No. 87 s 12; 2010 No. 42 s 214 sch

32ADefamation actions

(1)A person claiming to have a cause of action for defamation may apply to the court for an order extending the limitation period for the cause of action.

(2)The court may extend the limitation period to a period of up to 3 years running from the date of the alleged publication of the matter if the plaintiff satisfies the court that it is just and reasonable to allow an action to proceed.

(3)In determining whether to extend the limitation period, the court is to have regard to all of the circumstances of the case and in particular to—

(a)the length of, and the reasons for, the plaintiff’s delay; and

(b)if a reason for the delay was that some or all of the facts relevant to the cause of action became known to the plaintiff after the limitation period expired—

(i)the day on which the facts became known to the plaintiff; and

(ii)the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew whether or not the facts might be capable of giving rise to an action; and

(c)the extent, having regard to the delay, to which relevant evidence is likely to be unavailable or less cogent than if the action had been brought within the limitation period.

(4)An order for the extension of a limitation period, and an application for an order for the extension of a limitation period, may be made under this section even though the limitation period has already ended.

s 32A ins 2005 No. 55 s 48 sch 4

amd 2021 No. 13 s 31

33Prior bar ineffective

Where after the expiration of a period of limitation to which this part applies, the period of limitation is extended by order under this part, the prior expiration of the period of limitation has no effect for the purposes of this Act.

34Practice

(1)An application under this part may be made ex parte but the court or a judge may require that notice of the application be given to any person to whom it or the judge thinks it proper that notice should be given.

(2)Where under this part a question arises as to the means of knowledge of a deceased person, the court may have regard to the conduct and statements oral or in writing of the deceased person.

35Fresh accrual of action on acknowledgment or part payment

(1)Where there has accrued a right of action (including a foreclosure action) to recover land or a right of a mortgagee of personal property to bring a foreclosure action in respect of the property, and—

(a)the person in possession of the land or personal property acknowledges the title of the person to whom the right of action has accrued; or

(b)in the case of a foreclosure or other action by a mortgagee—the person in possession referred to in paragraph (a) or the person liable for the mortgage debt makes any payment in respect thereof, whether of principal or interest;

the right shall be deemed to have accrued on and not before the date of the acknowledgment or payment.

(2)Where a mortgagee is, by virtue of the mortgage, in possession of mortgaged land and receives a sum in respect of the principal or interest of the mortgage debt or acknowledges the title of the mortgagor or the mortgagor’s equity of redemption, an action to redeem the land in the mortgagee’s possession may be brought at any time before the expiration of 12 years from the date of the payment or acknowledgment.

(3)Where a right of action has accrued to recover a debt or other liquidated pecuniary claim, or a claim to the personal estate of a deceased person or to a share or interest therein and the person liable or accountable therefor acknowledges the claim or makes a payment in respect thereof, the right shall be deemed to have accrued on and not before the date of the acknowledgment or the last payment.

(4)Notwithstanding subsection (1), a payment of a part of the rent or interest due at any time shall not extend the period for claiming the remainder then due, but a payment of interest shall be treated as a payment in respect of the principal debt.

36Formal provisions as to acknowledgment and part payment

(1)Every acknowledgment referred to in section 35 shall be in writing and signed by the person making the acknowledgment.

(2)Any acknowledgment or payment may be made by the agent of the person by whom it is required to be made under section 35 and shall be made to the person or to an agent of the person whose title or claim is being acknowledged or, as the case may be, in respect of whose claim the payment is being made.

37Effect of acknowledgment or part payment on a person other than the maker or recipient

(1)An acknowledgment of the title to land or mortgaged personalty by a person in possession thereof shall bind all other persons in possession during the ensuing period of limitation.

(2)A payment in respect of a mortgage debt by the mortgagor or a person in possession of the mortgaged property shall, so far as any right of the mortgagee to foreclose or otherwise to recover the property is concerned, bind all other persons in possession of the mortgaged property during the ensuing period of limitation.

(3)Where 2 or more mortgagees are, by virtue of the mortgage, in possession of the mortgaged land, an acknowledgment of the mortgagor’s title or of the mortgagor’s equity of redemption by 1 of the mortgagees shall bind the mortgagee and the mortgagee’s successors only and shall not bind any other mortgagee or the mortgagee’s successors and where the mortgagee by whom the acknowledgment is given is entitled to a part of the mortgaged land and not to an ascertained part of the mortgage debt, the mortgagor shall be entitled to redeem that part of the land on payment with interest of the part of the mortgage debt that bears the same proportion to the whole of the debt as the value of the part of the land bears to the value of the whole of the mortgaged land.

(4)Where there are 2 or more mortgagors and the title or right to redemption of 1 of the mortgagors is acknowledged, the acknowledgment shall be deemed to have been made to all the mortgagors.

(5)An acknowledgment of a debt or other liquidated pecuniary claim shall bind the acknowledger and the acknowledger’s successors but not any other person.

(5A)Notwithstanding subsection (5), an acknowledgment made after the expiration of the period of limitation prescribed for the bringing of an action to recover the debt or other claim shall not bind a successor on whom the liability devolves on the determination of a preceding estate or interest in property under a settlement taking effect before the date of the acknowledgment.

(6)A payment made in respect of a debt or other liquidated pecuniary claim shall bind all persons liable in respect thereof.

(6A)Notwithstanding subsection (6), a payment made after the expiration of the period of limitation prescribed for the bringing of an action to recover the debt or other claim shall not bind a person other than the person making the payment and the person’s successors and shall not bind a successor on whom the liability devolves on the determination of the preceding estate or interest in property under a settlement taking effect before the date of payment.

(7)An acknowledgment by 1 of the several personal representatives of a claim to the personal estate of a deceased person or to a share or interest therein or a payment by 1 of the several personal representatives in respect of such claim shall bind the estate of the deceased person.

(8)In this section—

successor in relation to a mortgagee or person liable in respect of a debt or claim means the mortgagee’s or person’s personal representatives and any other person on whom the rights under the mortgage or, as the case may be, the liability in respect of the debt or claim devolve, whether on death or bankruptcy or the disposition of property or the determination of a limited estate or interest in settled property or otherwise.

38Postponement in cases of fraud or mistake

(1)Where in an action for which a period of limitation is prescribed by this Act—

(a)the action is based upon the fraud of the defendant or the defendant’s agent or of a person through whom he or she claims or his or her agent; or

(b)the right of action is concealed by the fraud of a person referred to in paragraph (a); or

(c)the action is for relief from the consequences of mistake;

the period of limitation shall not begin to run until the plaintiff has discovered the fraud or, as the case may be, mistake or could with reasonable diligence have discovered it.

(2)Nothing in this section enables an action to be brought to recover or enforce a charge against or set aside a transaction affecting property that—

(a)in the case of fraud—has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know or have reason to believe that a fraud had been committed; or

(b)in the case of mistake—has been purchased for valuable consideration subsequently to the transaction in which the mistake was made by a person who did not know or have reason to believe that the mistake had been made.

39Costs

In dealing with the costs of an action to which this part applies and that is commenced after the expiration of the period of limitation otherwise prescribed by this Act but before the expiration of the period of limitation prescribed by section 29 the court shall, in every case where costs may be awarded to the plaintiff, before awarding such costs, take into consideration—

(a)whether reasonable diligence has been shown in the circumstances in commencing the action; and

(b)whether delay in commencing the action has prejudiced or may prejudice the defendant.

40Contribution between tortfeasors

(1)An action for contribution under the Law Reform Act 1995, section 6(c) shall not be brought after the expiration of the first of the following periods to expire—

(a)a period of limitation of 2 years running from the date on which the right of action for contribution first accrues to the plaintiff or to a person through whom the plaintiff claims;

(b)a period of limitation of 4 years running from the date of the expiration of the period of limitation for the principal action.

(2)For the purposes of subsection (1)(a), the date on which a right 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 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 right of action for the damage for which the right 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 subsection (1)(b)—

the period of limitation for the principal action means the period of limitation prescribed by this Act or by any other enactment (including an enactment repealed by this Act) for the action for the liability in respect of which contribution is sought.

(4)Nothing in this section affects the construction of the Law Reform Act 1995, section 6.

s 40 amd 2002 No. 34 s 74 sch 6

41Application to arbitrations

(1)This Act shall apply to arbitrations in the same manner as it applies to actions.

(2)Notwithstanding any term in an agreement to arbitrate to the effect that a cause of action shall not accrue in respect of a matter required by the agreement to be referred until an award is made under the agreement, the cause of action shall, for the purposes of this Act (whether in its application to arbitrations or to other proceedings), be deemed to have accrued in respect of such matter at the time when it would have accrued but for that term in the agreement.

(3)For the purposes of this Act, an arbitration shall be deemed to commence when one party to the arbitration serves on the other party or parties a notice requiring the other party or parties to appoint an arbitrator or to agree to the appointment of an arbitrator or, where the agreement to arbitrate provides that the reference shall be to a person named or designated in the agreement, requiring the party or parties to submit the dispute to the person so named or designated.

(4)A notice pursuant to subsection (3) may be served in any of the following ways—

(a)by delivering it to the person to whom it is directed;

(b)by leaving it at the usual or last known place of abode or business in the State of the person to whom it is directed;

(c)by sending it by registered post to the person to whom it is directed at the person’s usual or last known place of abode or business in the State;

as well as in any other way specified in the agreement to arbitrate.

(5)Where the court orders that an award be set aside, it may further order that the period between the commencement of the arbitration and the date of the order be excluded in computing the time prescribed by this Act for the commencement of proceedings (including an arbitration) with respect to the dispute referred.

(6)This section applies to an arbitration under an Act or rules of court as well as to an arbitration pursuant to an agreement to arbitrate and subsections (3) and (4) have effect, in relation to an arbitration under an Act, as if for the references to the agreement to arbitrate there were substituted references to such of the provisions of the Act or of any order, scheme, rules, regulations or by-laws made thereunder as relate to the arbitration.

s 41 amd 2010 No. 42 s 214 sch

41ADefamation actions—effect of limitation law concerning electronic publications on other laws

(1)This section applies in respect of any requirement under section 10AA or 10AB for the date of publication of a matter in electronic form to be determined by reference to the day on which the matter was first uploaded for access or sent electronically to a recipient.

(2)A requirement to which this section applies is relevant only for the purpose of determining when a limitation period begins and for no other purpose.

(3)Without limiting subsection (2), a requirement to which this section applies is not relevant for—

(a)establishing whether there is a cause of action for defamation; or

(b)the choice of law to be applied for a cause of action for defamation.

s 41A ins 2021 No. 13 s 32

42Provisions as to set-off or counterclaim

For the purposes of this Act, a claim by way of set-off or counterclaim shall be deemed to be a separate action and to have been commenced on the same date as the action in which the set-off or counterclaim is pleaded.

43Acquiescence

Nothing in this Act affects the equitable jurisdiction of a court to refuse relief on the ground of acquiescence or otherwise.

43ACharacterisation of limitation laws

(1)In this section—

limitation law means a law (including, but not limited to, this Act) that provides for the limitation or exclusion of any liability or the barring of a right of action for a claim by reference to the time when a proceeding on, or the arbitration of, the claim is started.

(2)A limitation law of the State is to be regarded as part of the substantive law of the State.

(3)This section applies to a cause of action that arose before the commencement of this section but does not apply to a proceeding started before the commencement.

s 43A ins 1996 No. 5 s 8 sch

pt 5 hdg prev pt 5 hdg ins 1993 No. 64 s 4

exp 23 November 1994 (see s 45)

pres pt 5 hdg ins 2005 No. 43 s 7

amd 2010 No. 9 s 27

44Transitional provision for Civil Liability (Dust Diseases) and Other Legislation Amendment Act 2005

Section 30A, as inserted by the Civil Liability (Dust Diseases) and Other Legislation Amendment Act 2005, applies in relation to all actions whether the right of action accrued before or after the commencement of this section unless—

(a)judgment has been given in relation to the action; or

(b)the action has settled or been discontinued; or

(c)an application to extend the period of limitation for the action under this Act has been refused.

s 44 prev s 44 ins 1993 No. 64 s 4

exp 23 November 1994 (see s 45)

pres s 44 ins 2005 No. 43 s 7

45Transitional provision for Defamation Act 2005

(1)The new limitation law applies to the publication of any defamatory matter to which the Defamation Act 2005 applies.

(2)The existing limitation law continues to apply to any cause of action to which the existing law of defamation continues to apply under the Defamation Act 2005, section 49.

(3)In this section—

existing law of defamation has the same meaning as in the Defamation Act 2005, section 49.

existing limitation law means the provisions of this Act that applied in relation to the limitation period for defamation actions immediately before the commencement of this section.

new limitation law means sections 10AA and 32A as inserted by the Defamation Act 2005.

s 45 prev s 45 ins 1993 No. 64 s 4

exp 23 November 1994 (see s 45)

pres s 45 (prev s 44) ins 2005 No. 55 s 48 sch 4

renum 2007 No. 37 s 162 sch

46Transitional provision for Corrective Services and Other Legislation Amendment Act 2008

The Corrective Services and Other Legislation Amendment Act 2008, section 18 only applies in relation to a cause of action arising after the commencement of this section.

s 46 ins 2008 No. 53 s 19

47Transitional provision for Civil Liability and Other Legislation Amendment Act 2010

(1)Section 11(2) applies to a right of action relating to personal injury resulting from a dust-related condition whether the right of action accrued before or after the commencement of this section.

(2)However, subsection (1) does not apply if—

(a)judgment has been given in the action; or

(b)the action has been settled or discontinued; or

(c)an application before the commencement of this section to extend the period of limitation applying to the action before the commencement was refused by a court.

(3)In this section—

court includes—

(a)a court in a place outside Queensland, including outside Australia; and

(b)the Dust Diseases Tribunal of New South Wales established under the Dust Diseases Tribunal Act 1989 (NSW).

s 47 ins 2010 No. 9 s 30

48Transitional provision for Limitation of Actions (Child Sexual Abuse) and Other Legislation Amendment Act 2016

(1)Section 11A applies to an action for damages whether the right of action accrued before or after the commencement of that section (the commencement).

(2)An action on a previously barred right of action may be brought even if—

(a)a limitation period previously applying to the right of action has expired; or

(b)another action has been started in the right of action but not finalised before the commencement; or

(c)another action was started in the right of action and discontinued before the commencement; or

(d)a judgment was given in relation to the right of action on the ground that a limitation period applying to the right of action had expired; or

(e)an action in the right of action was dismissed on the ground that a limitation period applying to the right of action had expired.

(3)If an action on a previously barred right of action is brought after the commencement, the court hearing the action may, if the court decides it is just and reasonable to do so, do either or both of the following—

(a)set aside a judgment given in relation to the right of action on the ground that a limitation period applying to the right of action had expired;

(b)take into account any amounts paid or payable as damages or costs under the judgment.

(4)The Supreme Court may, on application, set aside a judgment under this section even though the Supreme Court is not hearing the action.

(5)However, a court, other than the Supreme Court, may not set aside another court’s judgment under this section.

(5A)An action may be brought on a previously settled right of action if a court, by order on application, sets aside the agreement effecting the settlement on the grounds it is just and reasonable to do so.

(5B)If a court makes an order under subsection (5A) for a previously settled right of action—

(a)each associated agreement is void despite any Act, law or rule of law; and

(b)a party to an associated agreement voided under paragraph (a) may not seek to recover money paid by, or for, the party under the agreement.

(5C)However, a court hearing an action on a previously settled right of action may—

(a)when awarding damages in relation to the action—take into account any amounts paid or payable as consideration under an associated agreement voided under subsection (5B)(a); and

(b)when awarding costs in relation to the action—take into account any amounts paid or payable as costs under an associated agreement voided under subsection (5B)(a).

(6)In this section—

associated agreement, for a previously settled right of action, means—

(a)the agreement effecting the settlement; or

(b)any other agreement, other than a contract of insurance, related to the settlement.

previously barred right of action means a right of action for an action to which section 11A applies that was not maintainable immediately before the commencement because a limitation period applying to the right of action had expired.

previously settled right of action means a right of action for an action to which section 11A applies that was settled before the commencement but after a limitation period applying to the right of action had expired.

s 48 ins 2016 No. 59 s 5

49Transitional provision for Civil Liability and Other Legislation Amendment Act 2019

(1)Section 48 applies as if—

(a)a reference in the section to section 11A were a reference to section 11A as amended by the 2019 amendment; and

(b)a reference in the section to the commencement of section 11A were a reference to the commencement of the 2019 amendment.

(2)Subsection (1) does not limit the operation of section 48 apart from this section.

(3)In this section—

2019 amendment means the Civil Liability and Other Legislation Amendment Act 2019, section 11.

s 49 ins 2019 No. 34 s 12

50Transitional provision for Defamation (Model Provisions) and Other Legislation Amendment Act 2021

(1)The amendment made to section 10AA by the Defamation (Model Provisions) and Other Legislation Amendment Act 2021 applies in relation to the publication of defamatory matter after the commencement of the amendment.

(2)Section 10AB, as inserted by the Defamation (Model Provisions) and Other Legislation Amendment Act 2021, applies in relation to the publication of defamatory matter after the commencement of the section, subject to subsection (3).

(3)Section 10AB extends to a first publication before the commencement of the section, but only in respect of subsequent publications after the commencement.

(4)Section 32A, as amended by the Defamation (Model Provisions) and Other Legislation Amendment Act 2021, applies in relation to the publication of defamatory matter after the commencement of the section.

s 50 ins 2021 No. 13 s 33