Limitation Act of 1960 (9 Eliz Ii No. 7) (Qld)

664 O^umtslanh ANNO NONO ELIZABETHAE SECUNDAE REG1NAE. No. 7. An Act to Consolidate with Amendments Certain Enactments Relating to the Limitation of Actions and Arbitrations and for other purposes. [A ssented to 24 th M arch , I960.] E it enacted by the Queen’s Most Excellent Majesty, B by and with the advice and consent of the Legis­ lative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows:— Short title. I. P art —P reliminary . 1. This Act may be cited as “ The Limitation Act of I960.” Parts of this Act. 2. This Act is divided into parts as follows :— P art I. —P reliminary ( ss . 1-7); II. P art —P eriods of L imitation for D ifferent C lasses of A ction ( ss . 8-261;

9 E liz . II. No. 7, I960. Limitation Act. €65 III.— P art E xtension op L imitation P eriods in the C ase of D isability , A cknowledgment , P art P ayment , F raud and M istake ( ss . 27-31); P art IV.— G eneral ( ss . 32-35). 3. This Act shall come into force on the first Commence­ day of May, One thousand nine hundred and sixty- Cmfe. nUt. Kof., Act. one. 1939, a. 34. Cf. N.Z., 1950,s 1. Cf. Vic., 19581 s. 1. 4. (1.) In this Act unless the context otherwise Interpreta­ requires, the following expressions have the meanings Ctiof. nU. .K., hereby respectively assigned to them :— 1939, s. 31. Cf. N.Z., 1950, s. 2. Cf. Vic., 1958, s. 3. “ Action ” includes any proceeding in a court Action. of law; “ Encumbrancee ” includes every person within Encum­ the meaning of that term as defined in “ The brance© . Real Property Acts, 1861 to 1956,” and also every person entitled to the benefit of an encumbrance or to require payment or discharge thereof; “ Land ” includes corporeal hereditaments, Land, rentcharges and any legal or equitable estate or interest therein, including an interest in the proceeds of the sale of land held upon trust for sale, but save as aforesaid, it does not include any incorporeal hereditament; “ Pernsootnainl celustdaetec”haattnedls “ repaerls; onal property ” do epPseetrrasstooennaaalnl d property. 4‘ Rent ” includes a rentcharge and a Rent. rentservice; “ Rentcharge ” means any annuity or periodical Rentcharge. sum of money charged upon or payable out of land or a rentservice or interest on a mortgage on land; “ Settled land ” shall have the same meaning Settled land, as in “ The Settled Land Act of 1886 ” “ Ship ” includes every description of vessel used ship, in navigation not propelled by oars ;

666 Limitation Act . 9 E liz . II. No. 7, Tenant for life. Trust and trustee. Trust for sale. “ Tenant for life ” shall have the same meaning as in, “ The Settled Land Act of 1886 ” ; “Trust” and “trustee” shall have the same meanings respectively as in “ The Trustees and Executors Acts, 1897 to 1924 ” ; “ Trust for sale,” in relation to land, means 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 deemed to be under a disability while he is an infant, or of unsound mind, or a convict who after conviction is undergoing a sentence of imprisonment, and whose estate is not vested in the Public Curator pursuant to the provisions of Part IV. of “ The Public Curator Acts, 1915 to 1957.” (3.) For the purposes of the last foregoing subsection, but without prejudice to the generality thereof, a person shall be conclusively presumed to be of unsound mind— (a) While he is a patient within the meaning of “ The Mental Hygiene Act of 1938 ” ; (b) In respect of whom the Governor in the name of Her Majesty, may give such order for safe custody during his pleasure in such place of confinement and in such manner as the Governor in Council may think fit, while he is in such custody; or (c) Whom the Minister has in pursuance of Part VII. of “ The Mental Hygiene Act of 1938,” ordered to be detained in a mental hospital, prison or place of confinement, while he is so detained. ' ' (4.) A person shall be deemed to claim through another person, if he became entitled by, through, under, or by the act of that other person to the right claimed :

1960. Limitation Act. Provided that a person becoming entitled to any estate or interest by virtue of a special power of appointment shall not be deemed to claim through the appointor. (5.) References in this Act to a right of action to recover land shall include references to a right to enter into possession of the land, or, in the case of rentcharges, to distrain for arrears of rent, and references to the bringing of such an action shall include references to the making of such an entry or distress. (6.) References in this Act to the possession of land shall, in the case of rentcharges, be construed as references to the receipt of the rent, and references to the date of dispossession or discontinuance of possession of land shall, in the case of rentcharges, be construed as references to the date of the last receipt of rent. (7.) In Part III. of this Act, references to a right of action shall include references to a cause of action and to a right to receive money secured by a mortgage or charge on any property or to recover proceeds of the sale of land, and to a right to receive a share or interest in the personal estate of a deceased person, and references to the date of the accrual of a right of action shall— (a) In the case of an action for an account, be construed as references to the date on which the matter arose in respect of which an account is claimed; (b) In the case of an action upon a judgment, be construed as references to the date on which the judgment became enforceable ; (c) In the case of an action to recover arrears of rent, or interest or damages in respect thereof, be construed as references to the date on which the rent or interest became due. 667 5. This Act shall not apply to any action or for arbitration for which a period of limitation is prescribed limitation by any other enactment. c ^ u ' k "*8’ 1939,8.32. Cf. N.Z., 1950, s. 33, Cf. Vic., 1958, s. 33.

668 Provisions as to actions already barred and pending actions. U.K., 1939, s. 33. Cf. N.Z., 1950, s. 34. Cf. Vic., 1958, s. 35. Limitation Act. 9 E lks . II. No. 7, . 6 Nothing in this Act shall— (a) Enable any action to be brought which was barred before the commencement of this Act by an enactment repealed by this Act, except in so far as the cause of action or right of action may be revived by an acknowledgment or part payment made in accordance with the provisions of this Act; or (b) Affect any action or arbitration commenced before the commencement of this Act or the title to any property which is the subject of any such action or arbitration. Repeals. 7. The enactments mentioned in the Schedule to C19f. 3U9, .Ks. . 3, 4. this Act are hereby repealed to the extent specified in the second column to that Schedule. Periods of Limitation for Different Classes of Action. Cf. U.K., 1939, s. 1. Cf. N.Z., 1950, s. 3. Cf. Vic., 1958, s. 4. II.— P art P eriods of L imitation for D ifferent C lasses of A ction . 8. The provisions of this Part of this Act shall have effect subject to the provisions of Part III. of this Act which provide for the extension of the periods of limitation in the case of disability, acknowledgment, part payment, fraud and mistake. Limitation of actions of contract and tort, and certain other actions. Actions of contract and 9. (1.) The following actions shall not be brought tort and . after the expiration of six years from the date on which acecrtitoanins. other the cause of action accrued, that is to say :— Cf. U.K., 1939, s. 2. Cf. N.Z., (а) Actions founded on simple contract or on tort; 1950, s. 4. Cf. Vic., (б) Actions to enforce a recognizance ; 1958, s. 5. Cf. 37 Vic., (c) Actions to enforce an award, where the No. 22, ss. 16, 22. submission is not by an instrument under seal; (d) Actions to recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture.

1960. Limitation Act, (2.) An action for an account shall not be brought in respect of any matter which arose more than six years before the commencement of the action. (3.) An action upon a specialty shall not be brought after the expiration of twelve years from the date on which the cause of action accrued: Provided that this subsection shall not affect any action for which a shorter period of limitation is prescribed by any other provision of this Act. (4.) An action shall not be brought upon any judgment after the expiration of twelve years from the date on which the judgment became enforceable. (5.) An action to recover any penalty or forfeiture, or sum by way of penalty or forfeiture, recoverable by virtue of any enactment shall not be brought after the expiration of two years from the date on which the cause of action accrued : Provided that for the purposes of this subsection the expression “ penalty ” shall not include a fine to which any person is liable on conviction of a criminal offence. (6.) This section shall not apply to any cause of action within the Admiralty jurisdiction of the Court which is enforceable in rem. (7.) This section shall not apply to any claim for specific performance of a contract or for an injunction or for other equitable relief, except in so far as any provision thereof may be applied by the Court by analogy in like manner as the corresponding enactment repealed by this Act has heretofore been applied. Limitation in case of successive conversions and extinction of title of owner of converted goods. 10. (1.) Where any cause of action in respect of the conversion or wrongful detention of a chattel has successive accrued to any person, and, before he recovers co^versions possession of the chattel, a further eonversio Of e " x " tinction bwrrooungghfut lindreetsepnetciot nof tthakeefsurpthlaecrec, onnvoersaicotnioonr dsehtea tt,t.io| ) n0 cooowfntnivetelreroteofdf after the expiration of six years from the accrual c f the goods. cause of action in respect of the original conversion „„ s U . .K., 1939, detention. c'f. n . z ., 1950, s. 5. Cf. Vic., 1958, s. 6.

, 670 Limitation Act. 9 B liz . II. No. 7 (2.) Where any such cause of action has accrued to any person and the period prescribed for bringing that action and for bringing any action in respect of such a further conversion or wrongful detention as aforesaid has expired and he has not during that period recovered possession of the chattel, the title of that person to the chattel shall be extinguished as against any purchaser, mortgagee or any other person having a title to or interest in the chattel bona fide for value. Actions to recover land and rent. Limitation 11. No action shall be brought by any person to roefcaocvteirons to recover any land after the expiration of twelve years land. from the date on which the right of action accrued C19f. 39U, .Ks. . 4, . to him, or, if it first accrued to some person through Cf. N.Z., whom he claims, to that person. 1950, s. 7. Cf. Vic., 1958, s. 8. Cf. 31 Vic., No. 16, s. 6. arAicgctchiortunoaiflnof to rec1o2v.er( 1l. a)ndW, hoerresomtheeperpseornsothnroburginhgwinhgomahne calcatiimosn, ipcnartseeesreeonsftts hthaesrebteoenbeienn dpoisspsoesssseiosnsedthoerredoifs,coanntdinuheads hwishipleosesnestsitiloend, iC1n9f. 3laU9n, . dKs.. . 5, . tthhee driagthetooffthaectidoinsposhssaellssbioendoeremdiesdcotnotinhuaavnecea. ccrued on Cf. N.Z., 1950, s. 8. (2.) Where any person brings an action to recover C19f. 58V, ics.., 9. any land of a deceased person, whether under a will or on Cf. 31 Vic., intestacy, and the deceased person was on the date of No. 16, s. 11. his death in possession of the land, or, in the case of a rentcharge created by will or taking effect upon his death, in possession of the land charged, and 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 his death. (3.) Where any person brings an action to recover land, being an estate or interest in possession assured otherwise than by will to him, or to some person through whom he claims, by a person who, at the date 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.

1960. Limitation Act. 671 13. (1.) Subject as hereafter in this section rAigcchrtuoafl of provided, the right of action to recover any land shall, action in in a case where the estate or interest claimed was an cfuatsueroef estate or interest in reversion or remainder or any Cinft. eUre.sKts.. , other future estate or interest and no person has taken 1939, s. 6. possession of the land by virtue of the estate or interest C19f. 5N0, .Zs.., 9. claimed, be deemed to have accrued on the date on C19f. 5V8, ics.., 10. which the estate or interest fell into possession by the Cf. 31 Vic., determination of the preceding estate or interest. No. 16, ss. 11,12,13. (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, no action shall be brought by the person entitled to the succeeding estate or interest after the expiration of twelve years from the date on which the right of action accrued to the person entitled to the preceding estate or interest, or six 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.) No person shall bring an action to recover any estate or interest in land under an assurance taking effect after the right of action to recover the land had accrued to the person by whom the assurance was made or some person through whom he claimed or some person entitled to 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 such an action. (4.) Where any person is entitled to any estate or interest in land in possession and, while so Entitled is also entitled to any future estate or interest in that land, and his right to recover the estate or interest in possession is barred under this Act, no action shall be brought by that person or by any person claiming through him, in respect of the future estate or interest, unless in the meantime possession of the land has been recovered by a person entitled to an intermediate estate or interest.

672 Limitation Act. 9 E liz . II. No. 7, Provisions 14. (I.) Subject to the provisions of subsection lisanentctdlaesadendof oonfethoisf sAeccttiosnhaltlweanptpyl- yfivtoe oeqf utihtaisbleAcitn,tetrheestsprionvislaionnds, ilCanfn.tdrUuh.sKetl. . d, uinpcolunditnrgusitntfeorresstsalien, tihne plirkoecemedasnonferthaessatlheeoyf laapnpdlyhetlod C1199f. 359N0, , .Zss. . ., 71. 0. ltehgeallaenstdatessh, aalln, dfoarcctohredinpgulrypoasreisghotfofthaicstioAncttobruetconvoert Cf. Vic., otherwise, be deemed to accrue to a person entitled in C19f. 583, 1sV. i1c1., . possession to such an equitable interest in the like No. 16, s. 26. manner and circumstances and on the same date as it would accrue if his interest were a legal estate in the land. (2.) Where any land is held by any trustee (including a trustee who is also tenant for life, or who, by virtue of “ The Settled Land Act of 1886 ” has also the powers of a tenant for life) 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 either has not accrued or has not been barred by this Act, but if and when every such right of action has been so barred, the estate of the trustee shall be extinguished. (3.) Where any settled land is vested in a tenant for life or a person having the powers of a tenant for life or any land is held upon trust, including a trust for sale, an action to recover the land may be brought by the tenant for life or person having the powers of a tenant for life or trustees 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 tenant for life or person having the powers of a tenant for life or trustees would, apart from this provision, have been barred by this Act. (4.) Where any settled land or any 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, no right of action to recover the land shall be deemed for the purposes of this Act to accrue during such possession to any person in whom the land is vested

1960. Limitation Act. as tenant for life, person having the powers of a tenant for life, or trustee, or to any person entitled to a beneficial interest in the land or in the proceeds of sale. 673 15.A right of action to recover land by virtue Accrual of of a forfeiture or breach of condition shall be deemed aricgthiotnofin to have accrued on the date on which the forfeiture case of was incurred or the condition broken : forfeiture or breach of condition. Provided that, if such a right has accrued to a person U.K., 1939, eanndtitltehde tolanadn ewsatastenootr irnecteorveesrteidn breyvevrisritouneotrhreermeoafi, ndtheer ssN. . .Z81. 1. , . 1950, right of action to recover the land shall not be deemed Vs.ic1. 2,. 1958, to have accrued to that person until his estate or interest Cf. 31 Vic., fell into possession, as if no such forfeiture or breach sNso. . 111, 6, 12. of condition had occurred. 16. (!•) A tenancy at will shall, for the purposes Accrual of of this Act, be deemed to be determined at the ^*u°[n expiration of a period of one year from the commencement case of thereof, unless it has previously been determined, and accordingly the right of action of the person entitled cf. u . k .,’ to the land subject to the tenancy shall be deemed to c ^ n . z .9' have accrued on the date of such determination. 1950 ,’s. 12 . Cf. Vic., (2.) A tenancy from year to year or other period, of. 31 vie.', without a lease in writing, shall, for the purposes 17 this Act, be deemed to be determined at the expiration ’ ’ of the first year or other period, and accordingly the right of action of the person entitled to the land subject to the tenancy shall be deemed to have accrued at the date of such determination : Provided that, where any rent has subsequently been received in respect of the tenancy, the right of action shall be deemed to have accrued on the date of the last receipt of rent. (3.) Where any person is in possession of land by virtue of a lease in writing by which a rent of not less than twenty shillings 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 lastnamed person

674 Limitation Act . 9 E liz . II. No. 7, to recover the land shall be deemed to have accrued at the date when the rent was first received by the person wrongfully claiming as aforesaid and not at the date of the determination of the lease. Right of action not 17. (1*) No right of action to recover land shall to accrue or be deemed to accrue unless the land is in the possession uconnletsinsutheere of some person in whose favour the period of limitation is adverse can run (hereafter in this section referred to as “ adverse pUs.o.sK1s0e. . , ss1i9o3n9. , poofstsheisssiAonct” a) nayndsucwhherirgehut nodfearcttihoen fiosredgeoeminegdptroovaicsciorunes sN. .Z13., . 1950, on a certain date and no person is in adverse possession Cf. Vic., on that date, the right of action shall not be deemed to 1958, s. 14 accrue unless and until adverse possession is taken of the land. (2.) Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in adverse possession, the right of action shall no longer be deemed to have accrued and no fresh right of action shall be deemed to accrue unless and until the land is again taken into adverse possession. (3.) For the purposes of this section— (а) Possession of any 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 (б) Receipt of rent under a lease by a person wrongfully claiming, in accordance with subsection three of the last foregoing section, the land in reversion shall be deemed to be adverse possession of the land. Limitation 18. When a mortgagee of land has been in oRfedemption possession of any of the mortgaged land for a period actions. of twelve years, no action to redeem the land of which Us..K12. . , 1939, the mortgagee has been so in possession shall thereafter Cf. N.Z., be brought by the mortgagor or any person claiming V19ic5. 0,, 1s9.5186, . through him. s. 15. Cf. 31 Vic., No. 16, s. 30.

1960. Limitation Act. 675 19. For the purposes of this Act, no person shall No right of be deemed to have been in possession of any land by reason only of having made a formal entry thereon, by formal and no continual or other claim upon or near any land contLuai shall preserve any right of action to recover the land, claim. r J ° U.K., 1939, s. 13. N.Z., 1950, s. 17. Vic., 1958, s. 16. Cf. 31 Vic., No. 16, s. 18. 20. When any one or more of several persons Limitations entitled to any land or rent as coparceners, joint tenants “etweerf aS or tenants in common shall have been in possession or joint owners, receipt of the entirety or more than his or their undivided share or shares of such land or of the profits thereof or of such rent for his 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 not be deemed to have been the possession or receipt of or by such lastmentioned person or persons or any of them. 21. For the purposes of the provisions of this Adminis- Act relating to actions for the recovery of land, an administrator of the estate of a deceased person shall to death, be deemed to claim as if there had been no interval 1939, of time between the death of the deceased person and Vic., 1958, the grant of the letters of administration. Vic No. 16, s. 14. 22. Subject to the provisions of section fourteen Extinction of this Act and the provisions of “ The Real Property expiration6*" Acts, 1861 to 1956,” at the expiration of the period prescribed by this Act for any person to bring an action i»39, s. ie. to recover land (including a redemption action), the 1950, s.'is. title of that person to the land shall be extinguished, i ^^ b / is .

.676 Limitation Act. 9 E liz . II. No. 7, Limitation of actions to recover rent. Of. U.K., 1939, s. 17. N.Z., 1950, o in Vic., 1958, Of.* 31 Vic., 23. No action shall be brought, or distress made, to recover arrears of rent, or damages in respect thereof, after the expiration of six years from the date on which the arrears became due. CNfo. . 3116V, sic. . 6, . Actions to recover money secured by a mortgage or charge No. 22, a. 21. or to recover proceeds of the sale of land. Limitation 24. (1.) No action shall be brought to recover otof arecctioovnesr any principal sum of money secured by a mortgage or money other charge on property, whether real or personal, or mseocurtrgeadgebyora to recover proceeds of the sale of land, after the charge or to expiration of twelve years from the date when the rpercoocveeerds of right to receive the money accrued. the sale of land. (2.) No foreclosure action in respect of mortgaged Cf. U.K., personal property shall be brought after the expiration C19f. 39N, .Zs.., 18. of twelve years from the date on which the right to C19f. 50V, isc.., 20. foreclose accrued: 1958, s. 20. Provided that if, after that date the mortgagee NCfo.. 3116,Vsi.c. 3,0 was in possession of the mortgaged property, the right to foreclose on the property which was in his possession shall not for the purposes of this subsection, be deemed to have accrued until the date on which his possession discontinued. (3.) The right to receive any principal sum of money secured by a mortgage or other charge, and the right to foreclose on the property subject to the mortgage or charge, shall not be deemed to accrue so long as that property comprises any future interest or any life insurance policy which has not matured or been determined. (4.) Nothing in this section shall apply to a foreclosure action in respect of mortgaged land, but the provisions of this Act relating to actions to recover land shall apply to such an action. (5.) No action to recover arrears of interest payable in respect of any 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 be brought after the expiration of six years from the date on which the interest became due :

1960. Limitation Act . Provided that— (a) Where a prior mortgagee or encumbrancee has been in possession of the property charged, and an action is brought within one year of the discontinuance of such possession by the subsequent encumbrancee, he may recover by that action all the arrears of interest which fell due during the period of possession by the prior encumbrancee or damages in respect thereof, notwithstanding that the period exceeded six years ; (b) Where the property subject to the mortgage or charge comprises any future interest or life insurance policy and it is a term of the mortgage or charge that arrears of interest shall be treated as part of the principal sum of money secured by the mortgage or charge, interest shall not be deemed to become due before the right to receive the principal sum of money has accrued or is deemed to have accrued. (6.) This section shall not apply to any mortgage or charge on a ship. 677 Actions in respect of trust property or the personal estate of deceased persons. 25. (1.) No period of limitation prescribed by this Act shall apply to an action by a beneficiary under °n a trust, being an action— trusfc property. (a) In respect of any fraud or fraudulent breach u . k ., 1939, of trust to which the trustee was a party or 1950, privy; or s. 21’. ’ Vic., 1958, (b) To recover from the trustee trust property 21 . or the proceeds thereof in the possession N<; 10 s ' 52 . of the trustee, or previously received by Cf. 31 Vic., the trustee and converted to his use. m ?' 27 ? 28 . (2.) Subject as aforesaid, an action by a beneficiary to recover trust property or in respect of any preach of trust, not being an action for which a period of limitation is prescribed by any other provision pf this Act, shall not be brought after the expiration of six years from the date on which the right of action accrued :

678 Limitation Act. 9 E liz . II. No. 7, Provided that the right of action shall not be deemed to have accrued to any beneficiary entitled to a future interest in the trust property, until the interest fell into possession. (3.) No beneficiary as against whom there would be a good defence under this Act shall derive any greater or other benefit from a judgment or order obtained by any other beneficiary than he could have obtained if he had brought the action and this Act had been pleaded in defence. Limitation 26. Subject to the provisions of subsection one ciafmSg8 °f the last foregoing section, no action in respect of any personal claim to the personal estate of a deceased person or to deceased * any share or interest in such estate, whether under a person. will or on intestacy, shall be brought after the expiration ^'20 ’ 1939, °f twelve years from the date when the right to receive n . z .I 1950, the share or interest accrued, and no action to recover cf2vic arrears of interest in respect of any legacy, or damages 1958, s’.’22. in respect of such arrears, shall be brought after the Nosy's*019 expiration of six years from the date on which the ’ interest became due. P ast III. —E xtension of L imitation P eriods in C ase of D isability , A cknowledgment / P art P ayment , F raud and M istake . EpLexirmtieointdastiioinonn of for w2h7ic. hIfaonpetrhieoddaotfe wlimheintaatinoyn riisghptroesfcarcibtieodn abcycrtuheids dcaissaeboilfity. Act, the person to whom it accrued was under a Cf. U.K., disability, the action may be brought at any time before C1199f. 3590N, , .Zss. . ., 2242.. tpheersoenxpcieraasteiodntoobfe suixndeyreaarsdisfraobmilitythoer ddiaetde, wwhhiecnhetvheer CC19ff.. 58V3, 1icsV. ., i2c3. . , elivmeinttatfioirnsthoacsceuxrpreidredno: twithstanding that the period of No. 22, s. 23. Provided that— (a) This section shall not affect any case where the right of action first accrued to some person (not under a disability) through whom the person under a disability claims ; (b) When a right of action which 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

1960. Limitation Act. 679 disability, no further extension of time shall be allowed by reason of the disability of the second person ; (c) No action to recover land or money charged on land shall be brought by virtue of this section by any person after the expiration of thirty years from the date on which the right of action accrued to that person or some person through whom he claims ; (d) This section shall not apply to any action to recover a penalty or forfeiture, or sum by way of penalty or forfeiture, by virtue of any enactment, except where the action is brought by an aggrieved party. Acknowledgment and part payment. 28. (1.) Where there has accrued any right of f action (including a foreclosure action) to recover land ^tion on or any right of a mortgagee of personal property to ?°know' bring a foreclosure action in respect of the property, ^men or and— payment. (a) The person in possession of the land or 1939 ,'8. 23 . personal property acknowledges the title cr n . z .•» of theperson to whom the right of action cevic.", ’ has accrued ; or 1958,8.24. ’ Cf. 31 Vie., (b) In the case of a foreclosure or other action No. 22 , s. 24. by a mortgagee, the person in possession as aforesaid 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 any mortgaged land and either receives any sum in respect of the principal or interest of the mortgage debt or acknowledges the title of the mortgagor, or his equity of redemption, an action to redeem the land in his possession may be brought at any time before the expiration of twelve years from the date of the payment or acknowledgment. (3.) Where any right of action has accrued to recover any debt or other liquidated pecuniary claim, or any claim to the personal estate of a deceased person or to any share or interest therein, and the person liable

680 Limitation Act. 9 E liz . II. No. 7, or accountable therefor acknowledges the claim or makes any 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: Provided that 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 any payment of interest shall be treated as a payment in respect •of the principal debt. Formal provuuons 29. (1.) Every such acknowledgment as aforesaid |>e jn writing and signed by the person making the acknow- acknowledgment. lodgment payment (2.) Any such acknowledgment or payment as u . k ., 1939, aforesaid may be made by the agent of the person by N.z..’ 1950 , vie6 1958 a. 25 . ° ’ whom it is required to be made under the last foregoing section 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. Effect of 30. (1.) An acknowledgment of the title to any alocdkgnmowen- t land or mortgaged personalty, by any person in or part possession thereof shall bind all other persons in ppearysmonesnt on possession during the ensuing period of limitation. other than Ctrhefce. iUpmieaKnk.te,. r or by th( 2e.) mAortpgaaygmorenotr iannyrepspeerscotn oifn apomsseosrstgioangeofdethbet O1199f. 3590N, , .Zss. . ., 2257.. mmoorrttggaaggeeed ptoropfeorrteyclossheallo, rsootfhaerrwaisseantoy rriegchotveorf tthhee O19f. 58V, ics. . , 26. pproosspeesrstiyon iosf thcoenmceorrntegda,gedbipnrdopearllty odtuhreinrg ptheerseonnssuining period of limitation. (3.) Where two or more mortgagees are by virtue of the mortgage in possession of the mortgaged land, an acknowledgment of the mortgagor’s title or of liis equity of redemption by one of the mortgagees shall only bind him and his successors and shall not bind any other mortgagee or his successors, and where the mortgagee by whom the acknowledgment is given is entitled to a part of the mortgaged land and not to

1960. Limitation Act. any 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 which 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 two or more mortgagors, and the title or right to redemption of one of the mortgagors is acknowledged as aforesaid, the acknowledgment shall be deemed to have been made to all the mortgagors. (5.) An acknowledgment of any debt or other liquidated pecuniary claim shall bind the acknowledgor and his successors but not any other person : Provided that 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 any 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 any debt or other liquidated pecuniary claim shall bind all. persons liable in respect thereof: Provided that 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 any person other than the person making the payment and his successors, and shall not bind any 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 payment. (7.) An acknowledgment by one of the several personal representatives of any claim to the personal estate of a deceased person, or to any share or interest therein, or a payment by one of the several personal representatives in respect of any such claim shall bind the estate of the deceased person. 681

682 Limitation Act. 9 E liz . II. No. 7. (8.) In this section the expression “ successor ” in relation to any mortgagee or person liable in respect of any debt or claim, means his 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. Fraud and Mistake. Postpone­ 31. Where in the case of any action for which a lmimenittatoifon peric)d of limitation is prescribed by this Act, either— period in case of fraud (а) The action is based upon the fraud of the or mistake. U.K., 1939, s. 26. defendant or his agent or of any person through whom he claims or his agent; or N.Z., 1960, s. 28. (б) The right of action is concealed by the fraud Vic., 1968, 8. 27. of any such person as aforesaid ; 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 the mistake, as the case may be, or could with reasonable diligence have discovered it: Provided that nothing in this section shall enable any action to be brought to recover, or enforce any charge against, or set aside any transaction affecting, any property which— (i.) 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 any fraud had been committed; or (ii.) 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.

1960. Limitation Act. 683 P art IV. —G eneral . 32. (1.) This Act and any other enactment Application relating to the limitation of actions shall apply to °thtrk and arbitrations as they apply to actions in the Supreme limitation Court. teonactmen * ts arbitrations. Cf. U.K., (2.) Notwithstanding any term in an arbitration; 27* agreement to the effect that no cause of action shall 1950, s.’29. accrue in respect of any matter required by the agreement to be referred until an award is made under the ’ ' agreement, the cause of action shall, for the purpose of this Act and of any other such enactment (whether in their application to arbitrations or to other proceedings), be deemed to have accrued in respect of any such matter at the time when it would have accrued but for that term in the agreement. (3.) For the purpose of this Act and of any such enactment as aforesaid, an arbitration shall be deemed to be commenced when one party to the arbitration serves on the other party or parties a notice requiring him or them to appoint an arbitrator or to agree to the appointment of an arbitrator, or, where the arbitration agreement provides that the reference shall be to a person named or designated in the agreement, requiring him or them to submit the dispute to the person so named or designated. ' (4.) Any such notice as aforesaid may be served either— (a) By delivering it to the person on whom it is to be served ; or i (b) By leaving it at the usual or last known place of abode in Queensland of that person ; or (c) By sending it by post in a registered letter addressed to that person at his usual or last known place of abode in Queensland, as well as in any other manner provided in the arbitration agreement; and where a notice is sent by post in manner prescribed by paragraph (c), service

684 Limitation Act. 9 Euz. II. No. 7, thereof shall, unless the contrary is proved, be deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of post. (5.) Where the Supreme 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 of the court shall be excluded in computing the time prescribed by this Act or any such enactment as aforesaid for the commencement of proceedings (including arbitration) with respect to the dispute referred. (6.) This section shall apply to an arbitration under an Act of Parliament or Rules of Court as well as to an arbitration pursuant to an arbitration agreement and subsections three and four hereof shall have effect, in relation to an arbitration under an Act, as if for the references to the arbitration agreement 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. Provisions 33. For the purposes of this Act, any claim by caolrsaictmoou. snott- eorf­ f sweapyaroafteseat-cotifof noracnodunttoer-hcalvaiembseheanll cboemdmeeenmceedd toonbethae U.K., 1939, same date as the action in which the set-off or sN. .Z28., . 1950, counter-claim is pleaded. s. 30. Vic., 1958, s. 30. Cf. 31 Vic., No. 22, s. 15, Acqui­ escence. U.K., 1939, s. 29. N.Z.,* 1950, s. 31. Vic., 1958, s. 31. 34. Nothing in this Act shall affect any equitable jurisdiction to refuse relief on the ground of acquiescence or otherwise. Amendment 35. The word “ forty ” is repealed where it occurs oPfroRpeearlty in the first proviso to section twenty of “ The Real Acts. Property Acts, 1861 to 1956,” and the word “ thirty ” is inserted in lieu of that repealed word.

1960. Limitation Act. S chedule . Enactments Repealed . Short Title. Extent of Repeal. “ Distress Replevin and Ejectment Act of 1867 ” Sections 1 to 31 “ Statute of Frauds and Limitations of 1867 ” Sections 16 to 28 The Trusteesand Executors Acts, 1897 to 1924” Section 52 685