High Court judgement clarifies overlap in application between ss 10 and 26 of the Limitation of Actions Act 1974

On 4 September 2019, the High Court delivered judgement in Brisbane City Council v Amos [2019] HCA 27.

The matter concerned an appeal to the High Court against the decision of the Queensland Court of Appeal in Amos v Brisbane City Council (2018) 230 LGERA 51. Brisbane City Council commenced the original proceeding against the respondent for overdue rates and charges.

On appeal, the High Court unanimously held that where there is an overlap in application between ss 10 and 26 of the Limitation of Actions Act 1974 (Qld), and as such, the defendant is free to invoke the limitation period under s10 of the LAA which is shorter and more advantageous to him. The conclusion was based upon a comprehensive analysis of the history of the provisions in the judgment of Kiefel CJ and Edelman J and a conclusion that ss 10 and 26 ‘do not create wholly distinct spheres of operation’.

The practical consequence of the High Court’s decision is that where an action is brought to recover a sum recoverable pursuant to an enactment (other than a penalty or forfeiture) it will need to be commenced within six years from the date the cause of action arose, even where it is secured by a charge on property in the sense described by s 26(1) which provides a 12 year limitation period.