AustLII Tasmanian Consolidated Acts

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SUPREME COURT CIVIL PROCEDURE ACT 1932 - SECT 11

Miscellaneous rules of law

(1)  .  .  .  .  .  .  .  .  
(2)  Except as provided by the Trustee Act 1898 , no claim of a cestui que trust against his trustee for any property held on an express trust, or in respect of any breach of such trust, shall be held to be barred by any statute of limitations.
(3)  An estate for life without impeachment of waste shall not confer or be deemed to have conferred upon a tenant for life any legal right to commit waste of the description known as equitable waste, unless an intention to confer such right shall expressly appear by the instrument creating such estate.
(4)  As from the commencement of the Legal Procedure Act 1903 , there shall not be any merger by operation of law only of any estate, the beneficial interest in which would not be deemed to be merged or extinguished in equity.
(5)  A mortgagor entitled for the time being to the possession or receipt of the rents and profits of any land, not being land under the provisions of the Land Titles Act 1980 , as to which no notice of his intention to take possession or to enter into the receipt of the rents and profits thereof shall have been given by the mortgagee, may sue for such possession, or for the recovery of such rents or profits, or to prevent or recover damages in respect of any trespass or other wrong relative thereto, in his own name only, unless the cause of action arises upon a lease or other contract made by him jointly with any other person.
(6)  .  .  .  .  .  .  .  .  
(7)  Stipulations in contracts as to time or otherwise which would not, in the Supreme Court when exercising its jurisdiction in equity before the commencement of the Legal Procedure Act 1903 , or this Act, have been deemed to be or to have become of the essence of such contracts shall receive the same construction and effect as they would have received in such Court when exercising such jurisdiction before the commencement of the Legal Procedure Act 1903 .
(8)  Subject to the express provisions of any other Act, in questions relating to the custody and education of infants the rules of equity shall prevail.
(9)  Subject to the provisions of this Act and the Rules of Court , the rules of equity as to discovery shall apply to all proceedings in the Court which are subject to this Act; but where an affidavit as to documents in the possession or power of any party to any such proceeding has been made pursuant to an order in that behalf, the Court or any judge thereof may, if it or he thinks it just so to do, make an order for the inspection by any other party to the proceeding of any document in the possession or power of such first-mentioned party, notwithstanding that he has not referred to such document in his affidavit of documents or that he has by affidavit claimed protection from the production of such document on the ground that the same forms, supports, evidences, or relates exclusively to his own case, and that it contains nothing supporting or tending to support the case of the other party and notwithstanding that the Court in its jurisdiction in equity would not have ordered such inspection before the commencement of this Act; but nothing in this subsection contained shall be so construed as to deprive any party to any proceeding of any common law right to inspect any document.
(10)  Generally, in all matters not particularly mentioned in this Act in which there was, before the commencement of the Legal Procedure Act 1903 , or this Act, any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity shall, subject to the express provisions of any other Act, prevail.
(11)  –
(a) Where by the fault of two or more vessels damage or loss is caused to one or more of those vessels, to their cargoes or freight, or to any property on board, the liability of the owner of each of those vessels to make good the damage or loss shall be in proportion to the degree in which each vessel was in fault: Provided that –
(i) if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally;
(ii) nothing in this subsection shall operate so as to render any such owner liable for any loss or damage to which his vessel has not contributed;
(iii) nothing in this subsection shall affect the liability of any person under a contract of carriage or any contract, or shall be construed as imposing any liability upon any person from which he is exempted by any contract or by any provision of law, or as affecting any right of any person to limit his liability in the manner provided by law;
(iv) nothing in this subsection shall affect the right of an owner of a vessel not itself in fault which has suffered damage or loss by reason of the fault of two or more other vessels, to recover his damage or loss from the owners of the vessels in fault jointly or severally; and
(v) nothing in this subsection shall be construed to affect the liability at common law, as for a tort, of an owner of any vessel in fault to any owner of any cargo or any property on board such vessel or any other vessel or vessels in fault, it being the intent of this clause to preserve the right of the owner at common law of any cargo or property on board any vessel in fault, who is not the owner of any such vessel or otherwise responsible for the fault, to recover the whole of his damage or loss from the owner of any such vessel;
(b) In this subsection references to damage or loss caused by the fault of a vessel shall be construed as including references to any salvage or other expenses, consequent upon that fault, recoverable at law by way of damages;
(c) –
(i) Where loss of life or personal injuries is or are suffered by any person on board a vessel, owing to the fault of that vessel and of any other vessel or vessels, the liability of the owners of the vessels shall be joint and several;
(ii) Provided that nothing in this paragraph shall be construed as depriving any person of any right of defence on which, independently of this paragraph, he might have relied in an action brought against him by the person injured or any person or persons entitled to sue in respect of such loss of life, or shall affect the right of any person to limit his liability in cases to which this paragraph relates in the manner provided by law;
(d) –
(i) Where loss of life or personal injuries is or are suffered by any person on board a vessel, owing to the fault of that vessel and any other vessel or vessels, and a proportion of the damages is recovered against the owners of one of the vessels which exceeds the proportion in which she was in fault, they may recover by way of contribution the amount of the excess from the owners of the other vessel or vessels to the extent to which that vessel or those vessels was or were respectively in fault;
(ii) Provided that no amount shall be recovered which could not, by reason of any statutory or contractual limitation of, or exemption from, liability, or which could not for any other reason, have been recovered in the first instance as damages by the person entitled to sue therefor;
(iii) In addition to any other remedy provided by law the person entitled to any such contribution as aforesaid shall, for the purpose of recovering the same, have, subject to the provisions of this Act, the same rights and powers as the person entitled to sue for damages in the first instance;
(e) –
(i) No action or other proceeding shall be maintainable to enforce any claim against the owner of a vessel in respect of any damage or loss to another vessel, her cargo or freight, or any property on board her, or damages for loss of life or personal injuries suffered by any person on board her, caused by the fault of the former vessel, whether such vessel is wholly or partly in fault, unless proceedings are commenced within two years from the date when the damage or loss or injury was caused; and an action shall not be maintainable under this subsection to enforce any contribution in respect of an overpaid proportion of any damage for loss of life or personal injuries unless proceedings therein are commenced within one year from the date of payment;
(ii) Provided that the Court or a judge may, in accordance with the Rules of the Court , extend any such period to such extent and on such conditions as it or he thinks fit, and shall, if satisfied that there has not during such period been any reasonable opportunity of enforcing the claim, extend such period to an extent sufficient to give such reasonable opportunity;
(f) The provisions of this subsection –
(i) shall be read and construed subject to the provisions of section 9 (5) ;
(ii) shall be read and construed subject to the Navigation Act 1912-1961 .
(12)  An injunction may be granted or a receiver appointed by an interlocutory order of the Court or a judge thereof in all cases in which it shall appear to the Court or judge to be just and convenient that such order should be made; and any such order may be made either unconditionally or upon such terms and conditions as the Court or judge shall think just; and if, whether before, or at, or after the hearing of any cause or matter, an application is made for an injunction to prevent any threatened or apprehended waste or trespass, the injunction may be granted if the Court or judge thinks fit, whether the person against whom the injunction is sought is or is not in possession under any claim of title or otherwise, or (if out of possession) does or does not claim a right to do the act sought to be restrained under any colour of title, and whether the estates claimed by both or by either of the parties are legal or equitable.
(13)  –
(a) In all cases in which the Court or any judge thereof now has jurisdiction to entertain an application for an injunction against a breach of any covenant, contract, or agreement, or against the commission or continuance of any wrongful act, or for the specific performance of any covenant, contract, or agreement, it shall be lawful for the Court or any judge thereof, if it or he thinks fit, to award damages to the party injured, either in addition to or in substitution for such injunction or specific performance, and such damages may be assessed in such manner as the Court or judge directs;
(b) But paragraph (a) shall not be so construed as to empower the Court or a judge to award damages in substitution for an injunction in any case in which no breach of covenant, contract, or agreement, or no wrongful act (as the case may be), has been committed.
(14)  In the case of any action for a forfeiture brought for non-payment of rent, the Court or a judge thereof shall have power to give relief in a summary manner, and subject to the same terms and conditions in all respects as to payment of rent, costs, and otherwise as could formerly have been imposed in the Court in its jurisdiction in equity; and if the lessee, his executors, administrators, or assigns are so relieved, they shall hold the demised premises according to the terms of the lease, and without the necessity of any new lease.
(14A)  Every tenant to whom there is delivered any writ in ejectment for the recovery of premises demised to or held by him, or to whose knowledge any such writ comes, shall forthwith give notice of that writ to his landlord, bailiff, or receiver, and, if he fails so to do, he shall be liable to forfeit to the person of whom he holds the premises an amount equivalent to the value of 3 years' improved or rack rent of the premises, to be recovered by action in the Court.
(15)  No action or process may be had, maintained, or prosecuted against a person on whose land a fire accidentally begins, and he shall not be required to make recompense for any damage suffered thereby, any law, usage, or custom to the contrary notwithstanding.
(16)  Subsection (15) does not affect contracts or agreements made between landlord and tenant.



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