Koch v J-Corp Pty Ltd - [2009] WADC 31

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: KOCH & ANOR -v- J-CORP PTY LTD [2009] WADC 31

CORAM: SWEENEY DCJ

HEARD: 16 JUNE 2008

DELIVERED : 6 MARCH 2009

FILE NO/S: CIV 2686 of 2007

BETWEEN: JURGEN RENE KOCH
MONIKA RENATE KOCH
Plaintiffs
AND
J-CORP PTY LTD
Defendant

Catchwords:

Summary judgment application - Limitation defence - Loss of bargain damages - Estoppel

Legislation:

Builders Registration Act 1939
Home Building Contracts Act 1991 s 22, s 23, s 29
Limitation Act 1935 s 38
Rules of the Supreme Court O 16 r 1

Result:

Appeal allowed

Representation:

Counsel:

Plaintiffs: Mr M F Rynne
Defendant: Mr B D Luscombe

Solicitors:

Plaintiffs: Lewis Blyth & Hooper
Defendant: Mallesons Stephen Jaques

Case(s) referred to in judgment(s):

Battley v Faulkner (1820) 3 B & Ald 288; (1820) 106 ER 668
Byrnes v Groote Eylandt Mining Co Pty Ltd (1990) 93 ALR 131
Cigna Insurance Asia Pacific Ltd v Packer (2000) 23 WAR 159
Commonwealth of Australia v Verwayen (1990) 170 CLR 394
Dominion Coal Company Ltd v Dominion Iron & Steel Company Ltd & National Trust Company Ltd [1909] AC 293
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
In De Braekt v Powell (2007) 33 WAR 389
Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd (1938) 61 CLR 286
Luxer Holdings Pty Ltd v Glentham Pty Ltd [2007] WASCA 209
McHenry, In re; McDermott v Boyd (Barker's claim) [1894] 3 Ch 290
Millstream Pty Ltd v Schultz [1980] 1 NSWLR 547
Morgan v Banning (1999) 20 WAR 474
Nangus Pty Ltd v Charles Donovan Pty Ltd (in liq) [1989] VR 184
Ogle v Comboyuro Investments Pty Ltd (1976) 136 CLR 444
Photo Production Ltd v Securicor Transport Ltd [1980] AC 827
Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166
Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17
Rigg v Lee Loy Seng [1987] WAR 333
Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245
Wardley Australia Limited v State of Western Australia (1992) 175 CLR 514

SWEENEY DCJ: This is an appeal from a decision of a Registrar dismissing the defendant's application for summary judgment. It is therefore an appeal in the nature of a new hearing. The defendant seeks summary judgment on the basis that the plaintiffs' action against it is statute-barred.

General principles in relation to summary judgment

The Court may grant summary judgment to a defendant "if satisfied that the action is frivolous or vexatious, that the defendant has a good defence on the merits, or that the action should be disposed of summarily or without pleadings": O 16 r 1 Rules of the Supreme Court.
A clear case must be made out before the Court will make an order for summary judgment because, unless there is no real question to be tried, then the plaintiffs should be allowed to present their case at trial. The power to order summary judgment must be exercised with great care: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99. The onus is on the defendant to prove that there is no serious question to be tried.
In General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, at 129, Barwick CJ stated:
"… the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action – if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal – is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense.
At times the test has been put as high as saying that the case must be so plain and obvious that the Court can say at once that the statement of claim, even if proved, cannot succeed; or 'so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument'; 'so to speak apparent at a glance'."
Specifically in relation to applications for summary judgment based upon a limitation point, in In De Braekt v Powell (2007) 33 WAR 389 Buss JA, having cited Wardley Australia Limited v State of Western Australia (1992) 175 CLR 514 and other authorities, concluded at [30] that:
"An application for summary judgment will rarely be a satisfactory process for determining whether equity should apply a statutory limitation period by analogy."
The limitation point being raised in that case was, with respect, a complex one.
In Morgan v Banning (1999) 20 WAR 474, a case concerning an application to amend an indorsement in a writ (issued within time) to plead causes of action which were arguably statute-barred, Wheeler J commented at 480:
"It is generally undesirable to attempt to determine questions of limitation other than in the context of a substantive trial."
At p 486, her Honour continued:
"At least in a clear case, the court should refuse to allow the addition of a new cause of action in that sense. There may of course be circumstances where it is not clear how the amendments relate to the original cause of action and in such a case, it may be preferable that the issue be left for trial, just as the issue may be left for trial where it is not clear from the pleadings whether an action is time barred."
Clearly in many cases it will not be until the evidence is put before the Court in a comprehensive manner and tested through cross‑examination that the Court will be in a position to determine when a cause of action has accrued.
Nevertheless, if it is apparent on the pleadings and materials before the Court that the action is untenable and discloses a case which the Court is satisfied cannot succeed, then the Court should exercise its powers of summary dismissal to prevent both parties being put to the expense, time, inconvenience and stress of a trial.
For the reasons which I have set out below I have come to the conclusion that it is apparent from the pleadings, even if the plaintiffs make good their allegations, that the action is statute-barred and cannot succeed.

Factual background

The defendant has filed two affidavits in support of its application and the plaintiffs have filed an affidavit in response. A number of facts of the case are not in dispute between the parties.
The plaintiffs own land at Labyrinth Close, Kelmscott and the defendant company carries on the business of building residential homes.
On 8 June 2000, the parties entered into a written contract whereby the defendant agreed to perform site works and build a house for the plaintiffs on their land. The contract was a standard Housing Industry Association Limited lump sum building contract ("the contract"). By the express terms of the contract, the defendant was to obtain a building licence, carry out the works in compliance with the terms of the licence, complete various tasks allocated to it by way of site works and build and complete a residential home. Pursuant to cl 9, in combination with the Schedule to the contract, the defendant was to commence the works within 45 days and complete the works 230 working days from that commencement date.
The defendant obtained a building licence for the site works in July 2000 and commenced those works at about that time. It ceased working on site sometime in December 2000. The dispute between the parties arose at an early stage in the building project: the site works were never completed and practical completion was not achieved. It is common ground that, while the contract (cl 9(c)) enabled the defendant, on various grounds, to seek an extension of time within which to complete the works, including delay caused by a dispute before the Building Disputes Tribunal ("the Tribunal"), no such extension was ever sought.
In the material before me is a letter dated 1 February 2001, from the plaintiffs' lawyers to the defendant, complaining that "nothing has been done on the site since mid‑December" and requesting that the earthworks be completed in order for the plaintiffs to undertake certain works in early March 2001.
It is also common ground between the parties that the plaintiffs referred the matter to the Tribunal by lodging a complaint form on 17 April 2001. The monetary value of the contract placed it within that body's jurisdiction.
According to correspondence annexed to the plaintiff, Mr Koch's affidavit, there was a hearing on 20 February 2002 at which the Tribunal made certain directions, including: "(a) If not already done, the respondent should negotiate with the Local Authority and ensure that its plans for the earthwork accord with the licence. Because the evidence indicates that the plans have been changed at least once this step is necessary" and "(b) The respondent should then execute the earthworks". It is accepted by the defendant (the respondent) that no such completion of the earthworks took place.
A further hearing took place on 4 July 2003 and the Tribunal ordered the defendant to complete certain works within 28 days. The orders made are annexed to Mr Koch's affidavit. Again, it is accepted by the defendant that these orders were not complied with and that no works have taken place on site since December 2000.
According to the reasons for decision of the Tribunal published 22 December 2005, annexed to the affidavit of Mr Edwards, the Tribunal made an order on 4 February 2004 "inviting the respondent to show cause by 28 February 2004 why an order assessing damages against the respondent pursuant to s 17(7) of the Home Building Contracts Act 1991 should not be made". Section 17(7) enables an order to be made against a person who has failed to comply with an order to instead make payment of compensation.
The reasons for decision indicate that the defendant's solicitors did not produce any information or evidence to the Tribunal showing cause why compensation should not be ordered and, accordingly, following a hearing on 29 June 2005, the Tribunal assessed the cost for the work the subject of the order of 15 July 2003 to be $11,907.50 and, on 7 November 2005, ordered the defendant to pay that sum to the plaintiffs.
It is common ground that the defendant did so, by cheque dated 23 November 2005.
The plaintiffs had claimed additional loss and damage before the Tribunal, including a claim for loss of rental income on the basis that they expected their home to have been finished by mid‑2001 and intended from that time to lease another premises owned by them and hence earn rental income. The Tribunal disallowed the claim on the basis of a lack of evidence justifying the claim to rental income but, "more critically", on the basis that "there is no evidence of any attempt by the complainants to mitigate their loss and damage".
On 17 December 2007, the plaintiffs' issued the writ in these proceedings.

The plaintiffs' claim

In their statement of claim, after pleading various terms of the contract, the plaintiffs allege (par 9) that the defendant breached the contract by failing to carry out the earthworks in compliance with an approved plan issued by the City of Armadale and by failing to comply with the building licence issued by the City of Armadale.
The plaintiffs also allege (par 10) that the defendant failed to comply with various of their requests and the Tribunal's orders to complete the earthworks within a reasonable time, having not sought any extension of time for completion of those works.
That is not pleaded as a breach of contract, nor could it be. The defendant was to complete the works within the times specified in the contract, subject to any extension of time sought pursuant to cl 9, which extension was never sought.
The plaintiffs plead (par 17) that practical completion did not occur within the time prescribed by the contract and, accordingly, a substantial breach of the contract occurred, entitling the plaintiffs to terminate the contract.
Alternatively (par 18), the plaintiffs plead that the defendant wholly suspended the works before practical completion by failing to complete the earthworks, entitling the plaintiffs to terminate the contract.
Finally, the plaintiffs plead that, on 17 September 2007, they issued a notice of default to the defendant demanding that, unless the defaults were remedied within 10 days, the contract would be terminated and that, the faults not having been remedied within 10 days, the plaintiffs were entitled to terminate the contract and did so, on 5 December 2007. Following the termination of the contract the plaintiffs claim damages "for, inter alia, loss of bargain, and interest, full particulars of which will be provided prior to trial".
The defendant denies the breaches and disputes that it was responsible for completing certain of the earthworks, including certain works the subject of the Tribunal's orders. The defendant pleads the claim is statute‑barred by the Limitation Act 1935. It pleads that the plaintiffs are estopped from bringing the action in this Court because a court of competent jurisdiction, namely the Tribunal, has already determined the matter. The defendant also claims to set‑off costs incurred and works performed.
The defendant did not rely upon its estoppel argument in this application for summary judgment.
For the purposes of this application, I have assumed for the sake of argument that the plaintiffs will be able to establish that the defendant breached its contract in failing to comply with the building licence and in wholly suspending the works and hence failing to achieve practical completion.

When did the cause of action accrue?

Pursuant to s 38(1)(c)(v) of the Limitation Act1935 "actions, suits, or other proceedings" in respect of actions "founded on any simple contract" "shall and may be commenced" within six years "after the cause of such actions, suits, or other proceedings".
"Action" in the Limitation Act 1935 is defined to mean "a civil proceeding commenced, in the Supreme Court by writ or in such other manner as may be prescribed by Rules of Court, or in a Local Court or any inferior court in the manner prescribed by or under the Act conferring jurisdiction on such court".
The effect of the expiry of the period set out in the statute of limitations is that the remedy is barred. The statute is procedural, not substantive: Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166; Byrnes v Groote Eylandt Mining Co Pty Ltd (1990) 93 ALR 131. The plaintiffs' rights are not extinguished (unless the particular legislation in question provides otherwise).
There is ample authority for the proposition that, in contract, the cause of action accrues upon the breach of the contract. Proof of damage is not a necessary element of a cause of action in contract and so the breach entitles the wronged party immediately to sue for damages, even if those damages are nominal. The suffering of damage at some later date does not have the effect of extending the period of time: Battley v Faulkner (1820) 3 B & Ald 288; (1820) 106 ER 668.
The breaches of contract alleged by the plaintiffs in this case are failure to comply with the building licence and plans issued by the City of Armadale, failure to achieve practical completion within time and total suspension of the earthworks such that practical completion was not achieved.
In the case of failure to comply with the building licence and plans issued by the City of Armadale, that breach, if it occurred, must have occurred simultaneously with the carrying out of whatever earthworks were performed. Those earthworks were performed, at the latest, by December 2000 when the works were suspended.
In relation to the breach of suspending the earthworks, that too occurred in December 2000.
Finally, in relation to the failure to achieve practical completion within time, that breach must have occurred, at the latest, when the time for practical completion expired, no extension having been sought. Practical completion was to be achieved 230 days after commencement of the works. Making allowance, as the defendant has done, for closure periods over Christmas and the like, that period calculates to somewhere around 11 July 2001 or, in any event, mid‑2001. If the cause of action accrued at that time, then the latest time at which the plaintiffs' could commence proceedings was mid‑2007. The writ was issued on 17 December 2007.
The plaintiffs argue however that, because their claim is for "damages for, inter alia, loss of bargain," their cause of action did not accrue until they had formally terminated the contract, which did not take place until first serving the notice of default on 17 September 2007 and then formally terminating the contract on 5 December 2007. They argue that, because of the operation of cls 15(b) and 17 of the contract, the service of the notice of default was a condition precedent to their instituting any legal proceedings and, accordingly, their cause of action did not accrue until that step had been taken.
Relevant to this matter, cl 15 of the contract provides:
"15EARLY TERMINATION OF CONTRACT
(a)In addition to their respective rights and remedies contained herein or in equity the Builder may terminate this Contract in any of the events mentioned in Clause 16 hereof and the Owner may terminate this Contract in any of the events mentioned in Clause 17 hereof.
(b)Except as provided herein neither party shall be at liberty to terminate this Contract or exercise or enforce any other right or remedy in relation hereto whether pursuant to this Contract or at law or in equity without first giving to the other party a notice in writing specifying the matter complained of and requesting that other party to remedy it within TEN (10) working days of the service of such notice. If such notice is given and the other party fails within such period to remedy the matter complained of then the party giving such notice may terminate this Contract immediately."
The remainder of cl 15 sets out the implications of early termination. Clause 17 relevantly provides:
"17.EVENTS ALLOWING OWNER TO TERMINATE
The Owner may, in addition to any other rights under this Contract, terminate this Contract in any of the following events:
(a)Any substantial breach of this Contract by the Builder.
…
(c)If the Builder shall without reasonable cause wholly suspend the Works before Practical Completion."
The meaning of the expression "cause of action" in the context of a limitation point was discussed in detail by Wheeler J in Morgan v Banning (supra) in which, having considered various authorities, her Honour concluded at 484:
"In order to avoid confusion so far as possible, I propose in what follows to use the expression 'cause of action' in order to describe merely a factual situation which will entitle a person to approach the court for relief, and 'form of action' to refer to the old categories of action, several of which might be capable of arising out of one factual situation."
Similarly, Malcolm CJ stated in Cigna Insurance Asia Pacific Ltd v Packer (2000) 23 WAR 159 at 169 at [31]:
"It is convenient first to consider when the cause of action accrued. This requires a determination at what point the appellant's liability as insurer accrued. A cause of action accrues when all the facts have occurred which the plaintiff must prove in order to succeed."
In contract, the cause of action accrues on breach of the contract and, in this case, the breach consisted of failure to perform as promised. The last of the breaches took place at the time the performance was due to be performed, that is to say 230 days after the date of commencement of the works. Upon the breach of the contract, the plaintiffs had a right to sue for damages.

The cause of action arising from breach of contract does not depend upon the contract being terminated, as the right to damages arises immediately upon any breach of the contract. Every failure to perform a primary obligation is a breach of contract. The contract may continue to be performed and govern the rights and obligations of parties following a breach: see the discussion by Lord Diplock in Photo Production Ltd v Securicor Transport Ltd [1980] AC 827 at 848‑850. The fact of the breach does not of itself alter the requirement on both parties to fulfil their primary obligations subject to two exceptions, the first being where the failure by one party to perform a primary obligation has the effect of depriving the other party of substantially the whole benefit of the contract and the second being where the parties have agreed that any failure to perform a primary obligation, irrespective of the seriousness of the breach, entitles the other party to elect to put an end to all primary obligations of both parties remaining unperformed: again per Lord Diplock.
Hence in Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd (1938) 61 CLR 286, in which an advertiser had failed to comply with a condition that certain billboards be displayed a minimum of eight hours per day, the plaintiff was entitled to recover damages for the two seasons which had passed, irrespective of whether or not it had a right to terminate the contract and put an end to future performance of a third season. Latham CJ stated at 300:
"It is admitted by the plaintiff that if the defendant's construction of the clause is adopted the contract has been broken by the plaintiff. Therefore, as a matter of course, the defendant is entitled to nominal damages. This right does not in any way depend upon whether the defendant was entitled for any reason to determine the contract."
And again at 301:
"In the Supreme Court a great deal of attention was devoted to the consideration of the question whether the particular clause in question was a condition or a warranty. As I have already stated, this question is unimportant in relation to the right of the defendant to claim damages for past admitted breaches. The defendant cannot, however, claim damages in respect of the third season unless he was entitled to determine the contract."
In that case the court found that the defendant was entitled to determine the contract for two reasons, firstly by reason of the actual past breaches of the contract and secondly, by reason of the plaintiff's evident intention (notwithstanding the challenge by the defendant) to continue to perform the contract in the future in the same manner as in the past. The court found that the breach of contract was of such substance that it went to its very nature and entitled the defendant to refuse to perform any of the obligations resting upon him. Having been entitled to determine the contract, the defendant was entitled to claim damages for the future non‑performance by the plaintiff for the third season.
In this case, the alleged breach of contract was a failure to comply with the terms of the building licence and a failure to achieve practical completion. In fact the works did not progress beyond incomplete site works. Assuming, for the sake of argument, that the defendant has no good defence to the breach itself, the plaintiffs had an immediate right to sue for damages upon the breaches of contract alleged. If those breaches amounted to a breach the substance of which went to depriving the plaintiffs of substantially the whole benefit of the contract, then the plaintiffs had a right not only to sue for damages but also to terminate the contract. Without reaching any determination as to any defence the defendant may have, it is difficult to envisage how failure to complete the site works and commence construction on the house could be anything other than a breach depriving the plaintiffs of substantially the whole benefit of the contract.
However, the plaintiffs point to cl 15 in the contract as being a condition precedent to them having a right to commence an action against the defendant, hence arguing that the cause of action did not accrue unless and until they complied with that clause.
A substantially similar clause was considered in Rigg v Lee Loy Seng [1987] WAR 333. At 354, Brindsen J stated:
"It is well settled that where a contract includes a clause such as cl 16(1) but is repudiated by the promisor, the promisee need not give a 14 day notice."
In this case, the plaintiffs were arguably entitled to treat the defendant's failure to perform its obligations as going to the very substance of the contract and amounting to a repudiation which they were entitled to accept by terminating the contract without giving the requisite notice of demand contemplated by cl 15. The Notice of Demand itself alleged that the defendant had repudiated the contract. If that is correct, then no notice was necessary and the cause of action arose at the breach. I do not need to decide that point in this application, however, although its resolution in favour of the defendant would further its position.
Clauses 15 and 17 of the contract in combination, however, combine to give the plaintiffs the further contractual ability to terminate the contract in the case of a "substantial breach", whether or not that amounts to a repudiation of the contract itself. The plaintiffs purported to exercise that contractual right by terminating of the contract on 5 December 2007 and claiming loss of bargain damages. Assuming, for the sake of argument, that it was necessary for the plaintiffs to give formal notice prior to terminating the contract, the plaintiffs argue that their cause of action can only arise once they have done so.
As was stated by Mason CJ in Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245 at 260:
"Loss of bargain damages are recoverable only if the contract is at an end. Once termination due to the defendant's wrongful conduct is established the plaintiff is entitled to damages for loss of bargain: Dominion Coal Company Ltd v Dominion Iron & Steel Company Ltd [1909] AC 293 at p 311. Barwick CJ suggested in Ogle (1976) 136 CLR at p 450 that termination is not an essential element in an action for loss of bargain damages, except in the case of anticipatory breach, but the preponderant opinion in Australia and England is against his view: see Ogle (1976) 136 CLR at p 458 per Gibbs, Mason and Jacobs JJ; Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 at p31 per Mason J (with whom Wilson and Deane JJ agreed generally, and Dawson J agreed); Photo Production Ltd v Securicor Ltd [1980] AC 827 at p 844‑845, 849."
I accept then that the plaintiffs can only claim loss of bargain damages once the contract has been terminated.
The plaintiffs further argue that they could not in conscience have terminated the contract while the dispute was before the Tribunal. A plaintiff who has obtained an order for specific performance of a contract cannot be allowed to terminate the contract without first vacating the order for specific performance: see Sunbird Plaza Pty Ltd v Maloney (supra). As the Court stated in Dominion Coal Company Ltd v Dominion Iron & Steel Company Ltd & National Trust Company Ltd[1909] AC 293 at p 311:
"The steel company are not entitled, at one and the same time, to specific performance of the contract and to damages for the loss of it."
In Ogle v Comboyuro Investments Pty Ltd (1976) 136 CLR 444 at 459, Gibbs, Mason and Jacobs JJ stated:
"By commencing an action for specific performance the vendor elected not to rescind for failure to complete on the agreed day, completion on that day being an essential term of the contract. In Mayson v Clouet [1924] AC 980 at p985, Lord Dunedin stated the law as follows:
'The law is quite plain. If one party to a contract commits a breach then if that breach is something that goes to the root of the contract, the other party has his option. He may still treat the contract as existing and sue for specific performance; or he may elect to hold the contract as at an end – i.e. no longer binding on him – while retaining the right to sue for damages in respect of the breach committed'."
By analogy, that proposition has relevance to this case and to the plaintiffs' argument. The alleged breaches of failure to comply with the building licence and suspending the works occurred by December 2000. Assuming that the plaintiffs could have elected to terminate the contract at that point, they did not do so, but rather complained to the Building Disputes Committee, resulting in proceedings before the Tribunal. The last date for practical completion came and went in mid‑2001 and, assuming that the plaintiffs could have terminated for that breach (or accepted the defendant's repudiation of the contract) they did not do so, but maintained their proceedings before the Tribunal. They eventually succeeded in obtaining an order that the defendant perform certain works on site. The order is akin, then, to an order for specific performance and, while ever the plaintiffs maintained proceedings before the Tribunal seeking such an order, it is very arguable that they could not then have elected to terminate the contract.
While I do not have a copy of the orders of the Tribunal made 7 November 2005, the Tribunal must have expressly or impliedly revoked its order of 15 July 2003 whereby the defendant was ordered to perform certain works, because the defendant was ordered instead, following its non‑compliance with that order, to pay compensation representing the cost of executing those works.
Assuming then that there was a period of time during which the plaintiffs may not have been entitled to both seek performance of the contract and treat the contract as being at an end and given also that loss of bargain damages are recoverable only if the contract is at an end, did their cause of action only accrue upon serving their notice of demand upon the defendant on 5 December 2007, some seven years after the breach? This is what the plaintiffs contend.
If the plaintiffs' argument is correct, then the accrual of the cause of action and the date on which time pursuant to s 38 of the Limitation Act 1935 began to run stayed entirely upon their leisure. They might have waited a further 20 years before electing to terminate the contract for non‑performance. This would also have the effect that, while their right to sue for damages for breach of contract arose upon the defendant's failure to perform in 2001, their right to sue for loss of bargain damages arose only in 2007. Depending upon what election the plaintiffs sought to make, the defendant in this case would never have the finality of knowing that the dispute had come to an end. Those implications strike me as very unfortunate if that be the position.
In my view it is not the position and the wronged party cannot indefinitely delay the commencement of a limitation period by indefinitely delaying which form of damages he will chose to seek to recover. As McLelland J stated in Millstream Pty Ltd v Schultz [1980] 1 NSWLR 547 at 553:
"In my opinion, there is a fallacy in this argument, and it lies in confusing the accrual of a cause of action for breach of contract with the measure of damages recoverable for such a breach. One frequently finds used in this context the expression 'damages for loss of bargain' as if 'loss of bargain' were a cause of action. In truth the relevant cause of action is the breach of the contract, and that cause of action accrues upon the occurrence of the breach: East India Co v Oditchurn Paul (1850) 7 Moo PCC 85; 13 ER 811. The subsequent accrual of special damage, in consequence of a breach of contract, does not postpone the accrual of the cause of action upon which that special damage may be recovered to the time when the special damage accrues: Battley v Faulkner (1820) 3 B & Ald 288; 106 ER 668; Howell v Young (1826) 5 B & C 259; 108 ER 97. Where an actual (as distinct from an 'anticipatory') breach of contract is of such a nature as to entitle the innocent party to terminate the contract, his election instead to affirm it does not destroy the cause of action constituted by that breach, although it may influence the quantum of damages recoverable in respect thereof, because, until the contract is terminated, it cannot always be predicated that the party in breach will not remedy the breach by a delayed performance of the relevant obligation; … But if, ultimately, the contract is terminated, so that thereafter the breach is incapable of being remedied by performance of the relevant obligation, then damages may be assessed on that basis; but the cause of action still remains the same breach."
His Honour then discussed (at 554) the decision in Ogle v Comboyuro Investments Pty Ltd (1976) 136 CLR 444, adopting the judgment of Barwick CJ but subject to a single qualification as to whether "damages measured by the loss of the bargain can be recovered under an assessment which takes place while the contract remains unterminated", that being the same qualification expressed by Mason CJ in Photo Production Ltd v Securicor Transport Ltd (supra).
His Honour went on to state at 555:
"But it appears to me that the entitlement of the innocent party to recover damages for a breach of contract, and his entitlement to terminate the contract for such breach, or for repudiation of the contract evidenced by such breach, are founded upon conceptually distinct events. It is established that such a breach as is constituted by a failure to deliver goods under a contract of sale (or by a failure to complete a contract for the sale and purchase of land) is a discrete and not a continuing or recurrent breach. In the words of Dixon J in Larkin v Great Western (Nepean) Gravel Ltd(in Liq) (1940) 64 CLR 221, at 236 (approved by all members of the court in Carr v JA Berriman Pty Ltd (1953) 89 CLR 327 at 349):
'If a covenanter undertakes that he will do a definite act and omits to do it within the time allowed for the purpose, he has broken his covenant finally and his continued failure to do that act is nothing but a failure to remedy his past breach and not the commission of any further breach of his covenant'.
But, as the decision in Carr v JA Berriman Pty Ltd demonstrates, the 'once and for all' quality of a breach of this kind is not inconsistent with the existence of a continuing or recurrent repudiation of the contract following upon that breach, evidenced by a long continued failure to remedy the breach, or by an express or implied disclaimer of intention to do so.
In the particular case of a repudiation which occurs before any actual breach, the innocent party may elect to treat the repudiation as an 'anticipatory breach' of all remaining obligations, and to terminate the contract accordingly, and thereupon sue for damages in respect thereof. But, where there has been an actual breach of the remaining obligation or obligations, which remains unremedied prior to subsequent termination of the contract for subsequent repudiation, the only relevant cause of action is the breach, and the only relevant effects of the subsequent termination are: (i) to discharge both parties from further performance of the contract; (ii) to prevent the party in breach from thereafter remedying the breach by delayed performance; and (iii) to crystallize the proper basis for assessment of damages for the breach."
The authority is that of a single Judge, however I have been unable to find any other authority dealing so squarely with this issue and I am persuaded by his Honour's reasoning and gratefully adopt it.
In this case, the breaches alleged by the plaintiffs' arose either immediately upon commencement of the works by failing to comply with the building licence or, at the latest, by the last day for achieving practical completion, 230 days after the commencement date, or in other words mid‑2001. It is common ground that the defendant has not performed any further works on site since December 2000. The cause of action is breach of contract and it accrued at that time. The defendant's failure to comply with the orders of the Tribunal in 2003 did not amount to any further breach of the contract, but simply the same breach of contract or a failure to remedy the same breach of contract.
It is very arguable that, during the period of time when the matter was before the Tribunal and culminating in the making of the orders to perform certain works, the defendant at that time could have performed its obligations under the contract and hence limited the plaintiffs' right to damages for breach of its obligations up until the time that it performed them. That did not occur however and the original breach has never been remedied.
That the plaintiffs chose, in September 2007, to terminate the contract does not have the effect of creating a new cause of action of loss of bargain damages. The relevance of the date of termination goes rather to the date of assessment of damages. From the point of termination of the contract, the plaintiffs become entitled to recover damages for loss of bargain.
The plaintiff relies upon the proposition that loss of bargain damages vest as at the date of termination of the contract, citing Nangus Pty Ltd v Charles Donovan Pty Ltd (in liq) [1989] VR 184 at 189 and Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 at 31. In Nangus (supra) a lessee wrongfully repudiated the lease during its term, which repudiation was accepted and the lessor sued for damages representing the rent that would have been obtained during the term of the lease, had it not been repudiated. The defendant argued that, as the lessor had subsequently sold the property to another, the lost rent was limited to that period during which the lessor owned the property. The lessor submitted that while the court should not ignore subsequent events, such as for example if the lessor had been able to relet the premises again, evidence of those facts was admissible going only to the value of the lost bargain.
Kaye and Southwell JJ at 189 stated:
"Accordingly, there exists what appears to us to be powerful authority for the proposition that at the time of the acceptance by the lessors of the lessee's repudiation of the lease, the lessors were vested with a right to damages for loss of their bargain. Subsequent events may touch upon the extent of that loss, but the damages fall to be assessed as at the date of the acceptance of the repudiation. The same principle applies in actions of an entirely different nature, for example, an action for damages for personal injuries, or under the Wrongs Act 1958, in respect of the death of a person upon whom the plaintiff is dependant. In Wright v West Australian Trustee & Agency Co Ltd [1987] VR 771, Murphy J (with whom Gray and King JJ agreed), at p 783, referred to Ruby v Marsh (1975) 132 CLR 642 where it was held that the right to damages for personal injuries accrues when the act is done or the event occurs which leads to liability, and, at p 784, his Honour went on to say: '… at law the loss is suffered at the date of receipt of the injuries, and that is the loss that should be assessed' (emphasis added).
In Nickolau v Papasavas Phillips & Co [1988] VR 682 Young CJ referred, at p 689, to 'the general principle of English law that damages must be assessed as at the date when the damage occurs'."
That statement does not make it entirely clear to me, where there is a difference in time between the breach and the acceptance of the repudiation, the point in time at which damages are to be assessed. EM Heenan AJA discussed this issue in Luxer Holdings Pty Ltd v Glentham Pty Ltd [2007] WASCA 209 at 134‑142 and suggested that there is no absolute rule as to the date of the assessment of damages but that, in accordance with the method of assessing damages generally, damages are to be calculated at the time when the breach giving rise to the entitlement to damages occurred. Again, there is in that discussion a general equating of the breach with the date of termination and I have not found a case which deals with the assessment of damages where the date of termination is some eight years after the breach.

Assistance is also to be gained by the decision in McHenry, In re; McDermott v Boyd (Barker's claim) [1894] 3 Ch 290. In that case one Barker, a money broker, advanced a sum of money to McHenry, security for the loan being certain bonds to be held by Barker. The money was repayable with interest on 30 November 1882, but it was common ground that the term was extended by a further three months to February 1883. The loan was accompanied by a letter which stated:
"… I hand you herewith the undermentioned securities … to be held by you as collateral security for the due repayment of the said loan and the interest thereon. In the event of the loan remaining unpaid after it becomes due, I hereby authorise you to realise the securities as you may deem fit, for the purpose of repaying yourself the amount due to you, and I undertake to pay to you any difference …"
The loan was not repaid apart from a modest amount paid on account in February 1884. Barker did not sell the bonds until September 1889 when the proceeds were not sufficient to clear the whole of the loan. At first instance the court below had decided that the statute of limitations only began to run from the date when the securities were sold and the shortfall was identified.
On appeal, Lord Herschell LC, after discussing the fact that the borrower's letter to the effect that the lender could sell the securities and be paid any shortfall had added nothing to the fact that the bonds were securities in any event, concluded:
"I cannot say that that right of realisation gave a new, separate, and independent cause of action, so that the statute did not begin to run until from that date. The truth is that the debt is one debt only. The second clause of the document did not create a new debt, but only prescribed what should be done in the event of realisation, and what use should be made of the money realised. The words gave the creditor no right which would not equally have existed without them. The contention of the Respondent comes to this, that although the words of the document gave no new right, and only put into words what the creditor's legal rights would have been without any such words, yet because these words are used, they give an independent right, and the operation of the statute could be indefinitely postponed by a mere statement of the legal rights which the creditor would have had without any such statement, whereas, if they had not been used, the statute would have began to run from the earlier date. That, in my opinion, is an impossible contention, and therefore the judgment of the Court below must be reversed."
Lord Lindley LJ, who was of the same opinion, stated:
"It appears to me that that clause was not intended to alter the contract to pay, but to express the right of the creditor as to the mode of dealing with the securities. It gives him power to sell the securities, and directs him what to do with the proceeds, and says that the debtor will pay any deficiency. That does not affect the original promise or obligation to pay. The clause is this:- [His Lordship read it, and continued]:- It means that, if the amount is not paid when it becomes payable, Barker may realise the securities, giving McHenry credit for the amount of the proceeds. The promise to pay the deficiency does not create a new obligation to pay: it only applies the old obligation to a reduced sum. The realisation of the security does not add to the cause of action; the cause of action accrued long before."
Davey LJ agreed with his fellow members.
In this case, cl 15 does not set up a new cause of action. It restricts the ability of either party to terminate the contract, or exercise or enforce any other right or remedy, without giving prior notice. It may well be, as is contended by the plaintiffs, that compliance with cl 15 is a condition precedent to exercising any remedy, including the remedy of terminating the contract and suing for loss of bargain damages. It does not, however, create any new cause of action.
The position then is this: upon the breaches of contract which occurred in late 2000 and at the latest mid‑2001, the plaintiffs had an immediate right to sue for damages. The nature of the breach was such that, very arguably, there was no need for them to comply with cl 15, because the breach was so fundamental as to go to the whole substance of the contract. Notwithstanding that cl 15 purports to limit the ability of the plaintiff to exercise or enforce any right in relation to the contract without first serving a notice giving the defendant an opportunity to remedy the breach, that could not have affected the plaintiffs' right to immediate damages consequent upon actual breach, even if the measure of those damages was nominal. The plaintiffs also had a right, given that the breach of contract was a substantial one, to elect to terminate the contract, providing they first gave a notice to the defendant requiring it to remedy the breach. The cause of action for breach of contract arose late in 2000‑mid‑2001 and their right to elect to terminate was their remedy. The accrual of the cause of action was not postponed by their waiting eight years to elect to terminate.
Nor could the plaintiffs postpone the accrual of the cause of action by pursuing the matter before the Tribunal, seeking performance of the contract and hence leaving themselves open to an argument that, by so doing, they had acquiesced in the time limits within the contract being extended, if the defendant actually sought to remedy the breach by completing the works. The defendant did not seek to remedy any breach. The plaintiffs cannot rely upon their own potential waiver of a time limit within the contract, which potential waiver was never acted upon by the defendant, to seek the advantage of postponing the date of the breach and hence the time when the limitation period began to run. There was only one original breach or set of breaches and the defendant has not ever sought to remedy them.
The statute of limitations bars the remedy and not the right. The plaintiffs were at liberty to terminate the contract in 2007 or later, should they have so chosen. What has been lost, however, is the right to commence an action founded upon the breach of contract which occurred more than six years prior to the commencement of this action.

Section 22 Home Building Contracts Act 1991

The plaintiffs next argue that, while ever the matter was the subject of proceedings before the Tribunal, time did not run pursuant to the Limitation Act 1935. The Home Building Contracts Act 1991 regulates contracts between consumers and builders within a certain monetary limit. It governs certain conditions in home building work contracts and also provides remedies to a consumer in the case of disputes. The contract in this case fell within the monetary jurisdiction of that body. Where an owner or a builder claims that there has been a breach of contract he may apply to the Tribunal for relief: s 17 Home Building Contracts Act 1991.
Sections 22 and 23 of the Home Building Contracts Act 1991 provide as follows:
"22. Avoidance of concurrent proceedings
Subject to section 23, where an application is made to the Disputes Tribunal claiming, under section 17(1)(a)(i) that there has been a breach of a contract, the matter to which the application relates (whether as shown in the application or as emerging in the course of the determination of the application) is not justiciable by a court unless —
(a)that matter was before that court at the time when the application was made to the Disputes Tribunal; or
(b)the application to the Disputes Tribunal is withdrawn or not pursued.
23. Transfer of proceedings
(1)Where a matter that the Disputes Tribunal has jurisdiction to determine under this Act is before a court, the court may order that the matter be transferred to and determined by the Disputes Tribunal.
(2)Where a matter that a court has jurisdiction to determine is before the Disputes Tribunal that Tribunal may order that the matter be transferred to and determined by that court."
The plaintiffs argue that, while ever the matter was the subject of a complaint before the Tribunal, it was not justiciable in this Court and therefore that entire period is not to be taken into account in the computation of time under s 38 of the Limitation Act 1935. The defendant's answer to this is that there is no power in this Court to extend time under the Limitation Act 1935. That much is clear: Morgan v Banning (supra). It does not answer the plaintiffs' contention, however, in that the plaintiff does not seek the time limit to be extended but rather argues that time did not run during the period before the Disputes Committee. If the argument is correct then the writ was issue within time.
No authority has been put before me as to the meaning of the phrase "not justiciable". According to the Shorter Oxford English Dictionary (3^rd ed) "justiciable" means "amenable to a jurisdiction; liable to be tried in a court of justice; subject to jurisdiction".
Section 22(b) Home Building Contracts Act 1991 contemplates, however, the ability to file and serve a writ in this Court concurrently with proceedings before the Tribunal, providing those latter proceedings are "not pursued". I do not read s 22 as rendering any writ filed in this Court as a nullity, although it may be that an application could be made to stay the proceedings in this Court pending their determination before the Tribunal or, alternatively, application could be made to transfer proceedings before this Court to the Tribunal or vice versa.
The Limitation Act 1935 contains numerous provisions by which a limitation period is extended or postponed, such as where the plaintiff is under a disability (see for example s 16, s 40 and s 44(4)) or where there is acknowledgement or part payment of a debt (see s 44). Latent asbestos related diseases have been the subject of specific provisions in the Act extending the limitation period (see s 38A). In proceedings for the recovery of land or rent, concealed fraud may postpone the commencement of time beginning to run until its discovery (see s 27). Certain provisions extend time where the defendant is "beyond the seas" (see s 41) but not in all circumstances (see s 17). Limitation periods contained within other enactments are saved (see s 49).
No reference is made in these numerous provisions extending the commencement of, or postponing the running of, time to any provision in any other enactment rendering proceedings "non‑justiciable". Given the scope and purpose of the Limitation Act 1935, clear language would be needed if it were the case that a party could, by its own voluntary action of commencing proceedings before the Tribunal, suspend the limitation period for an action before this Court during the duration of those proceedings. The evident intent of s 22 and s 23 of the Home Building Contracts Act 1991 is that the party claiming should choose between making a complaint to the Tribunal and instituting proceedings before this or another court.
Further, s 29 of the Home Building Contracts Act 1991 provides:
"29. Saving
(1)The provisions of this Act are in addition to and do not derogate from the provisions of any other written law.
(2)This Act does not limit or derogate from any civil remedy at law or in equity."
In practical terms, it would be an unusual case where the commencement of proceedings before the Tribunal brought the parties to a position whereby the limitation period contained in the Limitation Act 1935 was due to expire. This case, however, demonstrates that those proceedings can on occasion be protracted, as they were not concluded in this case until 2005.
After the conclusion of the proceedings before the Tribunal the plaintiffs still had, assuming the six year limitation period commenced to run from mid‑2001, a further 18 months in which to commence proceedings in this Court. Had that not been the case, however, and had the expiration of the limitation period loomed prior to the resolution of proceedings before the Tribunal, on my reading of s 22 and s 23 of the Home Building Contracts Act 1991, the plaintiffs could still have issued a writ in this Court on the basis that they intended to "not pursue" the proceedings before the Tribunal. In the absence of any authority for the proposition advanced by the plaintiffs, I do not consider that the initiation of proceedings before the Tribunal had the effect of postponing time running pursuant to the Limitation Act 1935, nor did it prevent the plaintiffs from issuing a writ out of this Court. Its only effect was that they could not "pursue" both proceedings concurrently.
Nor do I accept the plaintiffs' argument that commencing proceedings before the Tribunal satisfied s 38(1)(c)(v) Limitation Act 1935 such that, from then on, the plaintiffs could issue any further proceedings without being subject to a limitation period. The limitation period clearly relates to the specific proceedings at hand and each and every contemplated proceeding is subject to the same time limit. Commencement of one action does not achieve limitless time in which to commence another.

Is the defendant estopped from relying upon the limitation period?

Finally, the plaintiffs argue that the defendant is estopped from relying upon the expiry of the limitation period. When the matter came before me I had access to the transcript of the arguments before the learned Registrar and the parties were content for me to have reference to those submissions in addition to their written and oral submissions before me. Counsel for the plaintiffs therefore did not develop this argument before me but, in argument before the learned Registrar, the plaintiffs relied upon the principles in the Commonwealth of Australia v Verwayen (1990) 170 CLR 394. Counsel argued that the defendant:
"… voluntarily consented to the jurisdiction of the Building Disputes Tribunal, and you went along there and you sat with us, and we went through hearing after hearing and eventually, only in 2005, did we get a decision. Then it would appear on the contract that at either time either party could have objected to the complaint before the Tribunal, because it seems that none of it complied with the time limits contained in the contract in order for the purposes of attaching civil remedies. So they had both gone along voluntarily consenting to the jurisdiction. Now, what the plaintiff will say is, by inference the parties would have agreed – and had to agree – that the time limits contained in the contract would therefore be extended by such time as it took to resolve their disputes in the Building Disputes Tribunal."
The defendant's answer to this is that there is no power in this Court to extend the period of time provided by the Limitation Act 1935 and that the decision of Commonwealth of Australia v Verwayen (supra) therefore has no application. I do not accept that submission, the whole purpose of the doctrine of estoppel in this area being to provide relief against the terms of the statute. Where it does so, the period of time is not extended. Rather, the party seeking to set up the limitation period as a defence is prevented from doing so.
The author of "Limitation of Actions" (P Hanford, Thomson Lawbook Company 2004) summarises the doctrine of estoppel (at [17]) thus:
"The defendant may be prevented from relying on the Limitation Act by the doctrine of estoppel. The plaintiff must establish that:
(1)the defendant by words or conduct has made a promise or reassurance not to rely on the statute;
(2)the plaintiff had relied on the promise and acted on it; and
(3)it would be unconscionable for the defendant to revert to her or his strict legal rights as if no promise had been made.
The plaintiff must also establish that the statement or conduct was unambiguous, and that he or she would suffer some material disadvantage if the defendant was able to resile from the representation that there would be no reliance on the statute."
In the Commonwealth of Australia v Verwayen (supra), a member of the Royal Australian Navy was injured when two warships collided while engaged in combat exercises in 1964. Twenty years later, he instituted proceedings against the Commonwealth for damages for negligence. Both before and after filing its defence, the Commonwealth stated that it had adopted a policy not to plead the statute of limitations in cases arising out of the collision. Other actions arising out of the same collision pressed by other injured naval officers had been dealt with on that basis. The defence originally filed did not plead a limitations defence. Subsequently, however, following a change in policy, the Commonwealth obtained leave to amend its defence to include a limitation defence.
A majority of the High Court found that, whether on the basis of estoppel or on the basis of waiver, the Commonwealth could not rely upon the limitations period. Mason CJ at 413 considered that:
"… it should be accepted that there is but one doctrine of estoppel, which provides that a court of common law or equity may do what is required, but not more, to prevent a person who has relied upon an assumption as to present, past or future state of affairs (including a legal state of affairs), which assumption the party estopped has induced him to hold, from suffering detriment in reliance upon the assumption as a result of the denial of its correctness. A central element of that doctrine is that there must be a proportionality between the remedy and the detriment which is its purpose to avoid. It would be wholly inequitable and unjust to insist upon a disproportionate making good of the relevant assumption."
While the Chief Justice dissented in the decision, because his Honour considered that to hold the Commonwealth to its representations would be a disproportionate response to the detriment suffered by the respondent, his Honour was satisfied that there had been more than a mere filing and serving of a defence by the Commonwealth in which the statute of limitations was not pleaded and that there had been clear indications that a deliberate and considered decision had been made whereby the statute would not be pleaded in any of the actions brought by survivors of the collision, including express representations to some of them and damages awarded on the footing that no defence was pleaded. His Honour found that the respondent had been induced by the Commonwealth's conduct to assume that it had made a decision not to plead the limitation defence, which was a reasonable assumption for a person in his position to make and that he had continued his action against the Commonwealth in reliance on that assumption.
I accept on the strength of that authority that the doctrine of estoppel or waiver could operate so as to give relief against the operation of a limitation period. The decision in that case and the principles enunciated therein can, however, be readily distinguished from the position here.
Both parties to the matter have filed affidavits and there is no material before me asserting that the defendant made any representation at any time that it would not rely upon a limitation period. It has from the outset pleaded the limitation period by way of defence.
All that is said by way of assertions from the bar table during the argument before the learned Registrar is that the defendant "voluntarily consented to the jurisdiction" before the Tribunal.
As I read the provisions of the Home Building Contracts Act 1991 and the Builders Registration Act 1939, the defendant had no choice but to submit to the jurisdiction. That Tribunal had jurisdiction due to the monetary value of the contract. The plaintiffs had a statutory right to make complaint to the Tribunal. Should a party not attend at the time and place fixed for the hearing, the Tribunal may conduct proceedings in that person's absence: Builders Registration Act 1939 s 37(2). Failure to comply with an order of the Tribunal ordering works be done, or compensation be paid, without reasonable excuse constitutes an offence, carrying a penalty of $10,000.00 (Home Building Contracts Act 1991 s 17(6)).

If, therefore, the defendant had declined to appear at the time and place appointed for hearing, the hearing could have proceeded in its absence.
The plaintiffs' counsel asserted before the learned Registrar that "either party could have objected to the complaint before the Tribunal, because it seems that none of it complied with the time limits contained in the contract". The contract contained certain time limits in relation to either party referring a dispute to a mediator or arbitrator (cl 18(a)). Those provisions were "subject to the rights of either party to apply to the Registrar or the Disputes Committee" (as the Tribunal was formerly known). The time limit contained within the Home Building Contracts Act 1991 s 17 is three years from when the cause of action arose. I can see no basis upon which the defendant could have objected to the matter proceeding before the Tribunal.
In any event, by its attendance before the Tribunal the defendant can hardly be said to have "played such a part in the adoption of, or persistence in, the assumption that he would now be guilty of unjust and oppressive conduct if he were now to depart from it" (per Deane J in Commonwealth of Australia v Verwayen (supra) at 444).
In the absence of any material put before this Court to suggest that a representation, whether express or by conduct, was made by the defendant or its representatives that no limitation defence would be pleaded in any eventual District Court action and that the plaintiff in turn relied upon that representation to its detriment and consequently failed to comply with the limitations period I can see no basis for finding that there is any substance in an estoppel argument which ought to proceed to trial. Though the evidence in this issue is not before me, I have been informed of its nature – that is that the defendant merely submitted to the Tribunal's jurisdiction – and I am satisfied that an estoppel argument based upon that contention cannot succeed.
Accordingly I find that, on the face of the pleadings, the plaintiffs' action is statute‑barred. Pleadings of course can be amended, but there is nothing to suggest the pleadings might or could be amended so as to present a different case which would not likewise be statute‑barred. There is no material before me suggesting that the defendant should be estopped from relying upon a limitation defence and I do not consider that the proceedings before the Tribunal prevented time running in respect of the limitation period. The plaintiffs' causes of action based on the breaches of contract pleaded arose at the latest in mid‑2001, so the time for commencing proceedings in this Court expired in mid‑2007, some six months before this action was commenced.
Accordingly I will allow the appeal and enter judgment for the defendant.