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Decisions of the Superior Courts of New South Wales, 1788-1899

Dillon v Terry (1835) NSW Sel Cas (Dowling) 74; [1835] NSWSupC 77

statute of limitations - trusts, delay

Supreme Court of New South Wales

Forbes C.J., in banco, 26 September 1835

Source: Dowling, Select Cases, Vol. 4, Archives Office of New South Wales, 2/3463


[26 September]

[In 1820 Plf delivered goods to Deft to be accounted for, and waited until 1835 without any further dealings between the parties, & then filed his Bill in Equity for no account.  Held that the statute of limitations was an answer to the Bill.]

Dillon v Terry

This was a bill filed for a discovery and to account.  It stated that the compliance in the month ofJanuary 1820 delivered certain goods and merchandizes [sic] on account of Messers Dillon andMarsh to the Defendants to sell and dispose of; to retain out of the proceeds the sum of 359£.4s for advances to the Complainant and to remit the net balance due to Complainant to Messers Joseph Barret and sons in England.  The bill farther recited that at the time of delivering the said good and merchandizes [sic] a partnership was contemplated between the Complainant and Marsh; but Marsh is dead and that if the same Marsh ever had any interest in the said goods such interests survive to the Complainant.  The bill went on to state that Complainant had never received any account from the Defendant of the goods and merchandize [sic] so placed in his hands to sell and dispose of nor had any balance been remitted to Messers Barret and sons.  The bill admitted that [p.142] Complainant had made two or three voyages to this Colony since 1820 but had not been able to continue in the same above two or three weeks at a time and not long enough to carry on legal proceedings against the Defendant and concluded with praying that the Defendant be decreed to account for the said goods and merchandize [sic] and be charged interest on balance due and decreed to pay the same to the Complainant.  To this bill the Defendant pleaded the statute of limitations, that the cause of action or suit if any accrued about six years before the bill filled or process sued out and that Defendant had not at any time within six years admitted or in any manner acknowledged said debt.  There was no replication and the only question in the case was whether the statute of limitations is a complete defence to the Plaintiffs bill.  The case was argued on a former day and now.

Forbes CJ. delivered the Judgment of the Court:- We are of opinion that the statute of limitations 21 J 1 C.16 s.3 is a defence both at law and in Equity [p.143] to the Plf's demand against the deft.  The most favourable point of view in which the plf's demand can be viewed by the Court is by considering the transaction between him and the Deft, as between merchants and wholly concerning mere handage, & therefore within the exception of the statute.  But this exception has been by modern decisions limited to cases where there has been some dealing within six years, so as to draw previous dealings within the meaning and application of the statute.  In Martin v Heathcote (2 Eden.169) the Lord Chancellor is reported to have stated as follows: -

"Merchants accounts after six years total discontinuance of dealings are as much within the statute of limitations as other accounts.  The difference between the accounts of merchants and those of other persons is that a continuation afterwards will prevent the statute from running against the former accounts but will be a bar to all articles before six years in other accounts.  [p.144]  Now in the case before us there has been no dealing whatever between the parties from the month of January 1820 to the filing of the bill in April 1835 a period of fifteen years.  No point has been made in argument with respect of the Complainants being occasionally absent during this time.  He admits he returned two or three times but did not continue long enough to carry on legal proceedings.  It has been held that that [sic] where the creditor returns begins to run and is going abroad again gives him no privilege Sturt v Merrish 2 Atkins A T K 612.  It was contended on the part of the Plaintiff that this was a case of of [sic] trust and therefore not within the statute but the rule as to trusts [h]as never been extended to cases like the present were [sic] there was a legal remedy.  In Townsend v Townsend Cox 341 Brown C.C. 531 it is said "The rule holds only as between trustees and cestuique trustee cannot set up against his cestuique trust but where the trust is only by implication and as such affected by Equity that Equity must be pursued within [p.145] a reasonable time".  It is said that one of the objects of the bill is to obtain information when and what amount any balance may have been paid to Messers J. Barret and Sons.  But although this is made a part of the general statement of the bill the bill itself states in terms and the prayer assumes that no balance have been paid to Messers J Barret and Sons and expressly prays that the Defendant should account all the balance with interest and be ordered to pay the same to Plaintiff.  We think the statute of limitations an answer to the cause of suit set out in the bill and therefore we allow plea.

Judgment for the Defendant.

Carter & Foster for Plf, Plunkett S.G. Wentworth. Plf. S. Stephen for Deft.

Published by the Division of Law, Macquarie University