High Court of Australia determination on the applicability of limitation periods under the Limitations of Actions Act 1974 to local government recovery of overdue rates and charges claim

In brief

The case of Brisbane City Council v Amos [2019] HCA 27 concerned a special leave application to the High Court of Australia (High Court) against the majority decision of the Court of Appeal of the Supreme Court of Queensland (Court of Appeal), that the action for debt by the Brisbane City Council (Council) against the respondent (Landholder) to recover overdue rates and charges was subject to section 10(1)(d) of the Limitation of Actions Act 1974, and thus, a limitation period of six years. 

The High Court allowed the special leave application and unanimously dismissed the Council’s appeal with costs. The High Court upheld the majority conclusions of the Court of Appeal that the Landholder was entitled to argue that the shorter limitation period of six years in section 10(1) applied, where section 10(1) and the 12-year limitation period in section 26(1) overlapped. 

Factual circumstances

The Landholder was the owner of seven lots of land for which the Council had levied various rates and charges that it sought to recover as a debt in the Supreme Court of Queensland. The rates notices issued by the Council were for periods between 30 April 1999 and 9 January 2012. The total amount the Council sought to recover was in excess of $494,000.00. 

One issue for the Supreme Court in Brisbane City Council v Amos [2016] QSC 131 was the limitation period applicable to the Council’s action. On the one hand, the Council’s claim would be in time, if the 12-year limitation period in section 26(1) applied; whereas, on the other hand, some of the claim would be statute barred, if the six-year limitation period in section 10(1) applied. 

The Supreme Court found in favour of the Council and section 26(1) was said to apply. On appeal, in Amos v Brisbane City Council [2018] QCA 11, the majority of the Court of Appeal set aside the Supreme Court’s decision and held that the six-year period applied to the Council’s action to recover unpaid rates and charges from the Landholder as a debt. 

This limitation period point was the only issue to be considered by the High Court. 

High Court’s reasoning in upholding the Court of Appeal’s determination that the Council’s claim was subject to a limitation period of six years 

The parties agreed that the proceedings brought by the Council were capable of falling within both sections 10(1) and 26(1) of the Limitations of Action Act 1974 due to the overdue rates and charges being a charge over the Landholder's property, as well as being a sum recoverable by the Council by virtue of the City of Brisbane Regulation 2012 and, before that, its predecessors.

It was the Council’s argument before the High Court that section 26(1) was the applicable section, and thus a limitation period of 12 years applied, because: 

(a) the structure of the Limitations of Action Act 1974 was such that only one limitation period could apply to any action; and

(b) section 26(1), which related to an action to recover a principal sum of money secured “by a mortgage or other charge on property”, was more specific than section 10(1)(d), which related to a sum recoverable “by virtue of any enactment”. 

Invoking a limitation period is not restricted to a specific section 

The High Court examined the wording of sections 10 and 26, their predecessor provisions, and the approach of the courts historically, and particularly, in the case of Barnes v Glenton [1899] 1 QB 855, to issues of overlapping limitation periods.

The High Court referred to a long-settled understanding that the limitation periods within sections 10(1) and 26(1) do not operate so as to extinguish the rights of one to bring a suit, rather they permit a good defence to be pleaded by one subjected to suit (see reasons of Kiefel CJ and Edelman J at [7]). 

The High Court observed that the Council’s first argument (identified above) did not sit well with the fact that the limitation sections within the Limitations of Action Act 1974 only come into operation if invoked as a defence by a party to a proceeding (see reasons of Gageler J at [40]). 

The significant issue for the High Court was whether, if section 26(1) applied, section 10(1) was excluded from having application. 

Not exclusionary, advantageously 

The High Court formed the view that the language within section 26(1) did not support the submission that if section 26(1) applied, the section operated so as to exclude the operation of section 10(1)(d) (see reasons of Kiefel CJ and Edelman J at [37]). 

The High Court held that sections 26(1) and 10(1)(d) would operate consistently with their historical foundations, if both periods applied concurrently, and it is open to a defendant to choose to invoke the most advantageous period (see reasons of Kiefel CJ and Edelman J at [35] and reasons of Gageler J at [46]). 

Conclusion 

The appeal was dismissed with costs.