Limitation Act 1969

This Act may be cited as the Limitation Act 1969.

This Act shall commence upon a day to be appointed by the Governor and notified by proclamation published in the Gazette.

This Act is to be read and construed subject to the Commonwealth of Australia Constitution Act and so as not to exceed the legislative power of the State, to the intent that where any provision of this Act or the application thereof to any person or circumstance is held invalid, the remainder of this Act and the application of the provision to other persons or circumstances is not to be affected.

Section 8 of the Interpretation Act of 1897 applies to the repeal by this Act in whole or in part of an Imperial Act in the manner in which that section applies to the repeal in whole or in part of an Act.

The repeal or amendment of an enactment or Imperial enactment by this Act does not revive anything not in force or existing at the commencement of this Act.

Subject to sections 6A and 26, to Division 3 of Part 3 and to Schedule 5, nothing in this Act—

affects an action brought or arbitration commenced before the commencement of this Act,

enables an action or arbitration to be commenced or maintained which is barred at the commencement of this Act by an enactment or an Imperial enactment repealed or amended by this Act,

affects the extinction of the title of a person to land under section 34 of the Imperial Act shortly entitled the Real Property Limitation Act 1833, as adopted and applied by the Act passed in the eighth year of the reign of King William the Fourth, number three, where the period limited by that Imperial Act, as so adopted and applied, to that person for making an entry or distress or bringing any action or suit to recover the land has commenced to run before the commencement of this Act, or

prevents the commencement and maintenance of an action or arbitration within the time allowed by an enactment or an Imperial enactment repealed or amended by this Act on a cause of action which accrued before the commencement of this Act, but this paragraph has effect subject to paragraphs (b) and (c).

Schedule 5 has effect.

An action for damages that relates to the death of or personal injury to a person resulting from an act or omission that constitutes child abuse of the person may be brought at any time and is not subject to any limitation period under this Act despite any other provision of this Act.

In this section, child abuse means any of the following perpetrated against a person when the person is under 18 years of age—

sexual abuse,

serious physical abuse,

any other abuse (connected abuse) perpetrated in connection with sexual abuse or serious physical abuse of the person (whether or not the connected abuse was perpetrated by the person who perpetrated the sexual abuse or serious physical abuse).

To remove doubt, connected abuse is child abuse only if both the connected abuse and the sexual abuse or serious physical abuse in connection with which it is perpetrated are perpetrated when the person is under 18 years of age.

This section applies regardless of whether the claim for damages is brought in tort, in contract, under statute or otherwise.

This section extends to the following causes of action—

a cause of action that arises under the Compensation to Relatives Act 1897,

a cause of action that survives on the death of a person for the benefit of the person’s estate under section 2 of the Law Reform (Miscellaneous Provisions) Act 1944.

This section does not limit—

any inherent jurisdiction, implied jurisdiction or statutory jurisdiction of a court, or

any other powers of a court arising or derived from the common law or under any other Act (including any Commonwealth Act), rule of court, practice note or practice direction.

Note—

For example, this section does not limit a court’s power to summarily dismiss or permanently stay proceedings where the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible.

Nothing in this Act—

applies to an action or arbitration for which a limitation period is fixed by or under an enactment other than this Act or by or under an Imperial enactment (not being an enactment or an Imperial enactment repealed or omitted by this Act), or

applies to an action or arbitration to which the Crown is a party and for which, if it were between subjects, a period of limitation would be fixed by or under an enactment other than this Act or by or under an Imperial enactment (not being an enactment or an Imperial enactment repealed or omitted by this Act).

Nothing in this Act affects the operation of—

section 45C of the Real Property Act 1900,

section 13.1 of the Crown Land Management Act 2016, or

subsection (2) of section 50 of the Conveyancing Act 1919.

This Act has effect subject to section 12A of the Dust Diseases Tribunal Act 1989 and clause 7 of Schedule 3 to that Act.

Nothing in this Act affects the rules of equity concerning the refusal of relief on the ground of laches acquiescence or otherwise.

Subject to subsections (3) and (4), this Act binds the Crown and the Crown has the benefit of this Act.

For the purposes of this Act an action by an officer of the Crown as such or a person acting on behalf of the Crown is an action by the Crown.

This Act does not apply to an action by the Crown—

for the recovery of a tax or duty or of interest on a tax or duty, or

in respect of the forfeiture of a ship.

This Act does not affect the prerogative right of the Crown to gold and silver.

In this Act, unless the context or subject matter otherwise indicates or requires—

Action includes any proceeding in a court.

Beneficiary, when used in relation to an order under section 60D or 60H or an application for such an order, means a person for whose benefit an action might be, or might have been, brought under the Compensation to Relatives Act 1897.

Breach of duty, when used in relation to a cause of action for damages for personal injury, extends to the breach of any duty (whether arising by statute, contract or otherwise) and includes trespass to the person.

Crown includes not only the Crown in right of New South Wales but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.

Deed includes an instrument having the effect of a deed under the law of New South Wales or, in the case of an instrument executed pursuant to the law of—

the United Kingdom of Great Britain and Northern Ireland,

another State of the Commonwealth,

the Commonwealth,

a Territory of the Commonwealth, or

New Zealand,

having the effect of a deed under the law pursuant to which it is executed.

Income includes interest on a judgment and other interest, and includes rent annuities and dividends, but does not include arrears of interest secured by a mortgage and lawfully treated as principal.

Judgment includes not only a judgment of a court of New South Wales but also a judgment of a court of the United Kingdom of Great Britain and Northern Ireland, a court of another State of the Commonwealth, a court of the Commonwealth, a court of a Territory of the Commonwealth, or a court of any other place.

Land includes—

corporeal hereditaments and rentcharges and any estate or interest therein whether freehold or leasehold and whether at law or in equity, and

the interest pending sale of land (including incorporeal hereditaments) held on trust for sale of a person having an interest in the proceeds of sale,

but does not include easements or profits à prendre nor, subject to paragraphs (a) and (b) of this definition, other incorporeal hereditaments.

Landlord means a person entitled to land subject to a lease.

Mortgage does not include a possessory lien on goods nor any binding effect on property arising under a writ of execution against the property but otherwise includes a charge or lien on any property for securing money or money’s worth and also includes, in relation to land under the provisions of the Real Property Act 1900, a charge within the meaning of that Act.

Mortgagee includes a person claiming a mortgage through an original mortgagee.

Mortgagor includes a person claiming property subject to a mortgage through an original mortgagor.

Personal injury includes any disease and any impairment of the physical or mental condition of a person.

Personal representative means an executor to whom probate has been granted, including an executor by right of representation, or an administrator within the meaning of the Probate and Administration Act 1898, and includes the NSW Trustee and Guardian acting under section 25 of the NSW Trustee and Guardian Act 2009.

Plaintiff means a person bringing an action.

Principal money, in relation to a mortgage, means all money secured by the mortgage, including arrears of interest lawfully treated as principal, but does not include other interest.

Rent includes a rent payable under a lease and any other rent service and a rentcharge.

Rentcharge means an annuity or other periodical sum of money, being an annuity or sum charged on or payable out of land, but does not include a rent payable under a lease nor any other rent service nor interest under a mortgage.

Successor, in relation to a person liable on a cause of action, means a person on whom the liability of the firstmentioned person devolves, whether as personal representative or otherwise on death, or on bankruptcy, disposition of property, or determination of a limited estate or interest, or otherwise.

Trust includes express implied and constructive trusts, whether or not the trustee has a beneficial interest in the trust property, and whether or not the trust arises only by reason of a transaction impeached, and includes the duties incident to the office of personal representative but does not include the duties incident to the estate or interests of a mortgagee in mortgaged property.

Trustee has a meaning corresponding to the meaning of “trust”.

For the purposes of this Act—

a person claims through another person in respect of any property or right if the person is entitled to the property or right by through under or by the act of that other person, but a person entitled to property or a right by virtue of an appointment under a special power of appointment does not, by reason of the appointment, claim the property or right through the appointor,

a reference to a cause of action to recover land includes a reference to a right to enter into possession of the land,

a thing done to or by or suffered by an agent is done to or by or suffered by his or her principal, and

a cause of action to which any of the provisions of Division 4 of Part 2 applies is not a cause of action to recover land or a cause of action to enforce an equitable estate or interest in land.

For the purposes of this Act a person is under a disability—

while the person is under the age of eighteen years, or

while the person is, for a continuous period of twenty-eight days or upwards, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of—

any disease or any impairment of his or her physical or mental condition,

restraint of his or her person, lawful or unlawful, including detention or custody under the Mental Health Act 1958,

war or warlike operations, or

circumstances arising out of war or warlike operations.

In this Act, in respect of land which is a rentcharge—

a reference to the possession of land is a reference to the receipt of the rent, and

a reference to the date of dispossession or discontinuance of possession of land is a reference to the date when rent first becomes overdue.

The provisions of this Act as to the date of accrual of a cause of action have effect for the purposes of this Act but not for any other purpose.

In this Act, a reference to an Act includes amendments of that Act by subsequent Acts.

Notes included in this Act do not form part of this Act.

The provisions of this Part have effect subject to the provisions of Part 3.