Failed Debt Recovery Action by Council

In Brisbane City Council v Amos [2019][1], the High Court had to consider two overlapping limitation provisions under the Limitation of Actions Act 1974 (Qld) (Act).

The Brisbane City Council brought an action to recover unpaid rates and charges levied between April 1999 and January 2012. The High Court appeal related only to a limitation period pleaded by the defendant.

A limitation period essentially bars the remedy sought by the appellant, that is, it permits a good defence to be pleaded.

The case involved a question of statutory interpretation arising from two provisions in the Limitation of Actions Act 1974 (Qld).

The first provision was section 26(1) which contains a 12 years limitation period that applies to an action “to recover a principal sum of money secured by a mortgage or other charge on property”. This provision encompasses, relevant to this appeal, debts created by statute and secured by charge, such as council rates and charges.

The second provision which overlaps with section 26 is section 10 of the Act. This provision relevantly creates a six years limitation period for “an action to recover a sum recoverable by virtue of any enactment”, amongst other things. This equally applies to council rates and charges.

The issue was whether section 26 that provided a “longer” 12 years limitation period excluded the operation of the “shorter” six years limitation period in section 10.

The Court relied upon an historical English case of Barnes v Glenton [1899] that held while there could be overlapping limitation periods, a longer limitation period would not extend a shorter limitation period. Both provisions apply. The result is that the registered owner of rateable land who is the defendant to that action, Mr Amos, is free to invoke by way of defence that limitation period which is shorter and more advantageous to him. The appeal by the Council was dismissed with costs.

[1] HCA 27 (4 September 2019)

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