The Salvation Army (South Australia Property Trust) v Rundle

The Salvation Army (South Australia Property Trust) (the appellant) appealed to the Court of Appeal of New South Wales against a decision of the primary judge to grant the respondent an extension of time to commence proceedings for breach of fiduciary duty. The respondent, who had been placed in a boys' home run by the appellant, alleged that the appellant had breached its duty of care by failing to implement adequate protective measures against sexual assaults by other residents and a supervisor. The primary judge had granted an extension of time under section 48 of the *Limitation of Actions Act 1936* (SA), despite the significant delay of 38 years.

The Court of Appeal was required to determine whether the primary judge erred in granting the extension of time, specifically considering the prejudice caused to the appellant by the delay, including the absence of evidence due to the passage of time. A further issue concerned the interpretation of section 36 of the *Limitation of Actions Act 1969* (SA) and whether it imposed a limitation period on actions for breach of fiduciary duty. The court also considered whether the application for an extension of time constituted "the event" for the purposes of awarding costs under rule 42.1 of the *Uniform Civil Procedure Rules 2005* (NSW).

The Court of Appeal dismissed the appeal, upholding the primary judge's decision to grant the extension of time. The judges applied a purposive construction to the relevant legislation, finding that the statutory intention was to allow for extensions in cases of significant delay where justice required it, even in the absence of direct evidence of the breach itself. The court found that the primary judge had adequately considered the prejudice to the appellant and that the interests of justice favoured granting the extension. The appeal against the costs order was also dismissed, with the court holding that the application for an extension of time was an "event" for the purposes of costs.

The appeal was dismissed with costs.