Western Australian Current Acts Western Australian Current Acts (1) In any action or
other proceeding against a trustee or any person claiming through him, or in
reference to any trust, except where the claim is founded upon any fraud or
fraudulent breach of trust to which the trustee was a party or privy, or is to
recover trust property or the proceeds thereof still retained by the trustee
or previously received by the trustee and converted to his own use, the
following provisions shall apply: —
(a) All
rights and privileges conferred by this Act or any statute of limitations
shall be enjoyed in the like manner and to the like extent as would have been
the case if the trustee or person claiming through him had not been a trustee
or person claiming through him.
(b) If
the action or other proceeding is brought to recover money or other property
and is one to which no existing statute of limitations applies, the trustee or
person claiming through him shall be entitled to the benefit and be at liberty
to plead the lapse of time as a bar to such action or other proceeding in the
like manner and to the like extent as if the claim had been against him
(otherwise than as a trustee or person claiming through a trustee) in an
action of debt for money had and received; but so nevertheless that the
statute or bar by lapse of time shall not begin to run against any beneficiary
until the interest of such beneficiary is an interest in possession.
(2) No beneficiary as
against whom there would be a good defence by virtue of this section shall
derive any greater or other benefit from a judgment or order obtained by
another beneficiary than he could have obtained if he had brought such action
or proceeding and this section had been pleaded.
(3) For the purposes
of this section the expression trustee includes an executor or administrator,
who for such purposes is included in the term trustee, and includes a trustee
whose trust arises by construction or implication of law as well as an express
trustee, and the provisions of this section relating to a trustee shall apply
as well to several joint trustees.
(4) This section shall
not deprive any executor or administrator of any right or defence to which he
is entitled under any existing statute.
[Section 47 amended: No. 28 of 2003 s. 120(3).]
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