Limitations of Actions

A Trustee is guilty of fraud if the trustee knowingly commits an act amounting to a breach of trust, the nature of which is such that the trustee must be taken to have known that the act was contrary to law {Hicks v Trustees Executors and Agency Co Ltd (1901) 27 VLR 389}. The Trustee must be party or privy to the fraud or fraudulent breach of trust, which means that there must be some moral complicity in the wrongdoing by the Trustee {Thorne v Head [1895] AC 495}

In Queensland, South Australia, Tasmania and Victoria, no limitations period applies to an action by a beneficiary under a trust in respect of fraud or fraudulent breach of trust and actions to recover trust property converted by a trustee.

Queensland: Limitations of Actions Act 1974Section 27(1)(a)

South Australia: Limitations of Actions Act 1936Section 32(1)

Tasmania: Limitation Act 1974Section 24(1)(a)

Victoria: Limitations of Actions Act 1958Section 24(1)(a)

If there has been a deliberate concealment of the cause of action then any limitations period is postponed.

Section 32(1)(b) of the Limitations Act 1980 Act (UK) postpones the commencement of the limitation period where “any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant“.

This was considered by the House of Lords in:

Cave v. Robinson Jarvis & amp; Rolf [2002] 19 EGCS 146, [2003] AC 384, [2002] 2 WLR 1107, 81 Con LR 25, [2002] UKHL 18, [2003] 1 AC 384, [2002] 2 All ER 641, [2002] PNLR 25, [2003] 1 CLC 101 

 

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