In De Braekt v Powell

(2007) 33 WAR 389; [2007] WASCA 55

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Interlocutory appeals
3. › Extension of time to apply for leave to appeal
4. › Factors relevant to exercise of discretion
5. › Length of delay
6. › Reasons for delay
7. › Arguable case
8. › Prejudice to respondent
9. › Supreme Court Act 1935 (WA), s 60(1)(f), s 60(3)
1. Practice and Procedure
2. › Summary judgment
3. › Whether appropriate process for determining limitation period issues
4. › Limitation questions rarely suitable for summary determination
5. › Whether equity should apply statutory limitation period by analogy
1. Limitation of Actions
2. › Trusts
3. › Express trusts
4. › Whether statutory limitation period applies to claims by beneficiary against express trustee
5. › Interaction of Limitation Act 1935 (WA), s 47(1) and Supreme Court Act 1935 (WA), s 25(2)
1. Limitation of Actions
2. › Trusts
3. › Constructive trusts
4. › When limitation period begins to run against beneficiary with future interest
5. › Whether interest must be vested in possession before time begins to run
6. › Limitation Act 1935 (WA), s 47(1)(b)

Quick Take

Where a beneficiary claims a future interest under an express or constructive trust (such as an interest subject to the trustee's life interest), the limitation period under s 47(1)(b) of the Limitation Act 1935 (WA) does not begin to run until the interest becomes vested in possession. Summary judgment applications are rarely a satisfactory process for determining whether equity should apply a statutory limitation period by analogy. The interaction between s 47(1) of the Limitation Act 1935 and s 25(2) of the Supreme Court Act 1935 remains unresolved, but s 25(2) is at least reasonably arguable as a complete bar to limitation for express trust claims.