By Elissa Baxter and Alex Haslam -
Snapshot
- Limitation periods for equitable causes of action are not straightforward and require careful investigation and analysis.
- Consider the closest common law claim by analogy and research the limitation period for that action.
- If in doubt as to which limitation period applies, it is prudent to check Lawcover’s Schedule of Limitation Periods.
Missing a limitation period was once the single largest cause of claims (25 per cent) against solicitors in New South Wales. Now out-of-time claims account for only 5 per cent of all claims against solicitors. As a profession, we better understand the importance of properly researching the appropriate limitation period for a claim and applying it in practice. However, applying limitation periods is not always a simple matter. While many causes of action are governed by fairly straightforward provisions in the Limitation Act 1969 (NSW) and other statutes, causes of action in equity require a more complex and nuanced approach. Claims for breach of trust and in respect of trust property, for example, are dealt with in s 48 of the Limitation Act, while claims for fraudulent breach of trust are covered in s 47, providing for a 12-year limitation period from discovery of the fraud.
