Think Nicholsons

Aug 03

Commencement of Proceedings – Interpretation and Limitation Period – Update

Commencement of Proceedings – Interpretation and Limitation Period – Update

In October last year I published this article: http://www.nicholsons.com.au/think-nicholsons-blog/commencement-of-proceedings-change-in-interpretation-of-limitation-period

An update.

On 31 July 2018, the Court of Appeal unanimously overturned the earlier decision of Judge Durward and said unequivocally that the purpose and effect of the two-year, two-month period provided for in the Regulating Module is to compel the body corporate to bring a proceeding; rather than to impose a time limit. 

As such, the six year period as provided for by section 10 of the Limitations of Actions Act properly regulates the limitation period in which a body corporate can commence proceedings. 

To the extent your body corporate has deferred commencing proceedings or has made decisions not to commence proceedings relying on the earlier District Court decision, I recommend those decisions be reviewed in light of the Court of Appeal authority. 

Troy Hawthorn

Partner
Troy heads our Commercial Litigation and Dispute Resolution Division and is responsible for the litigation and resolution of disputes in all Courts. Having more than twenty years experience, he has had exposure to the full spectrum of commercial disputes, from high-profile litigation, to representing clients in specialised Tribunals.