Hewitt v Henderson & Anor

[2006] WASCA 233

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Limitation of Actions
2. › Equitable claims
3. › Application of statutory limitation period by analogy
4. › Whether equity retains discretion not to apply statute by analogy
5. › Whether unconscionability prevents application
6. › Limitation Act 1935 (WA), s 38(1)(c)(ii), s 38(1)(c)(iii)
1. Limitation of Actions
2. › Equitable claims
3. › Action for an account
4. › When cause of action accrues
5. › Partnership dissolved by notice
6. › Limitation Act 1935 (WA), s 38(1)(c)(ii), s 38(1)(c)(iii)
1. Practice and Procedure
2. › Pleading
3. › Amendment of writ and statement of claim
4. › Leave to amend to add new cause of action
5. › Whether limitation defence precludes amendment
6. › Whether limitation questions should be determined in interlocutory proceedings
1. Practice and Procedure
2. › Pleading
3. › Amendment of writ and statement of claim
4. › Relation back rule
5. › Whether amendment takes effect from date of writ or date of amendment
6. › Whether condition required on grant of leave
7. › Rules of the Supreme Court 1971 (WA), O 21 r 5(5)

Quick Take

Equity will not apply a statutory limitation period by analogy where there are circumstances making the application unconscionable. Interlocutory proceedings are rarely a satisfactory process for determining whether equity should apply a statutory limitation period by analogy; such questions should ordinarily be determined at trial after all material facts have been found. The grant of leave to amend pleadings does not preclude a defendant from pleading any limitation defence.