Limitation of Actions Consultation - Law Commission

fraudulent breach of trust or the retention or conversion of trust property, which is
not subject to any limitation period. 161
Queensland, 162
Tasmania 163
and Victoria 164
have followed the English Limitation Act 1939 with regards to actions for breach
of trust. They therefore apply a uniform period of six years for all actions against
trustees, whatever the nature of the trust (save for actions related to fraudulent
breach of trust and trust property). New South Wales has gone further, subjecting
actions in respect of fraud, fraudulent breach of trust or retention or conversion of
trust property to a limitation period of twelve years running from the date of
discoverability. 165
Other actions for breach of trust are subject to the six year
limitation period. 166
(5) Actions in respect of land
10.59 In general, limitation provisions on actions to recover unregistered land in most
Australian jurisdictions are similar to those contained in the English Limitation Act
1939: 167
actions to recover land are subject to a limitation period of twelve years
from the moment the land comes into adverse possession, and after the expiry of
that period the person in adverse possession of the land can claim title to it, as the
owner’s rights are extinguished. 168
There are however significant differences with
respect to land which is registered under the Torrens system. 169
Some jurisdictions
still recognise the acquisition of title following a period of adverse possession, 170
some subject such acquisition to further restrictions, 171
and in some jurisdictions
161 Western Australia Limitation Act 1935, s 47; South Australia Limitation of Actions Act
1936, ss 31 - 32.
162 Limitation of Actions Act 1974, s 27.
163 Limitation Act 1974, s 24.
164 Limitation of Actions Act 1958, s 21.
165 Limitation Act 1969, s 47. See also Australian Capital Territory Limitation Ordinance
1985, s 27(1) and Northern Territory Limitation Act 1981, s 32.
166 New South Wales Limitation Act 1969, s 48. The corresponding provision in the Northern
Territory is similar, except with a three-year limitation period: Limitation Act 1981, s 33.
167 Which was followed in Queensland, Tasmania, Victoria and New South Wales (though New
South Wales made a number of changes to the drafting of the Act). See Queensland
Limitation of Actions Act 1974, ss 13 - 24, Tasmania Limitation Act 1974, ss 10 - 21;
Victoria Limitation of Actions Act 1958, ss 7 - 18; New South Wales Limitation Act
1969, ss 27 - 39. It should be noted that the limitation provisions of Western Australia and
South Australia on actions to recover land still reflect the provisions of the 1833 and 1874
English Real Property Limitation Acts.
168 In addition, in New South Wales and Tasmania, the limitation period for an action to
recover land by virtue of a forfeiture or breach of condition runs from the date of
discoverability of the facts giving the right of forfeiture or showing that the condition is
broken: New South Wales Limitation Act 1969, s 32; Tasmania Limitation Act 1974, s
14(1). In South Australia and Western Australia, actions to recover land in respect of
concealed fraud are based on a discoverability test: South Australia Limitation of Actions
Act 1936, s 25(1); Western Australia Limitation Act 1935, s 27.
169 In force in all Australian jurisdictions: for general background see D J Whalan, The Torrens
System in Australia (1982).
170 Tasmania, Victoria and Western Australia.
171 See Queensland Limitation of Actions Act 1974, ss 13 - 26; South Australia Limitation
of Actions Act 1936, ss 4 - 30 and 33; New South Wales Limitation Act 1969, ss 27 - 39.
200