(c) if time were extended, the proper order as to the costs of the application.
Nature of issues on appeal
119 The result of the limited grant of leave to appeal is that the proceeding will in any event go ahead in respect of the claim against Mr Ellis and in respect of the appellant's vicarious liability for any breach of duty established against Mr Ellis. There remains in issue what was described as "the systems case" and the claims for breach of fiduciary duty. The notice of appeal did not challenge so much of the decision of the primary judge as permitted the claim for breach of fiduciary duty to proceed. The breach of fiduciary duty arose because the appellant "permitted the Plaintiff to be sexually assaulted by both Sergeant Ellis and other boys in the home": statement of claim, par 22. The breach of fiduciary duty was particularised by reference to the matters pleaded with respect to the "systems case": par 16.
120 The situation was further complicated by the fact that, as conceded by senior counsel for the appellant on the leave application, the application for an extension of time, before the primary judge, was addressed on a global basis: Tcpt, NSWCA, 06/11/07, p 17(35)-(40). Indeed, the statutory defence was expressed in terms of proceedings (actions) in which damages claimed "consist of or include" personal injury damages. Understandably in those circumstances, the primary judge did not seek to distinguish between different causes of action. This consideration was directly relevant to what might properly be identified as material errors in her Honour's judgment. Thus, her Honour took into account the fact that criminal proceedings in cases of sexual assault are not infrequently brought after a considerable period of delay: at [114]. As her Honour noted, the potentially prejudicial consequences of delay are routinely dealt with by directions to the jury, in accordance with Longman v The Queen [1989] HCA 60; 168 CLR 79. Accepting that that was a significant consideration in respect of the case brought against Mr Ellis and the liability of the appellant for his conduct, it was less relevant to the "systems case" brought against the appellant. That was because the "systems case", as pleaded, could involve the activities (or inactivity) of individuals against whom no specific acts of misconduct were alleged. To the extent that the appellant had, for some years, been investigating allegations of specific misconduct, those inquiries were quite different (it was argued) from the kind of inquiries which might have been appropriate in relation to its responsibilities for establishing systems of protection, investigation of complaints and control of supervisors. However, the weight of such a distinction and the complaint that her Honour failed to recognise the distinction may have little force in circumstances where no such distinction was sought to be drawn in the course of the proceedings before her Honour.
121 For the same reason, her Honour gave no separate consideration to the cause of action based on fiduciary duty. In particular, she did not consider whether there was a limitation period operating in relation to that cause of action or whether the plaintiff was entitled to proceed on that cause of action subject to any equitable defence such as laches, which might be raised in the course of the trial by the appellant. However, once the causes of action became subject to separate consideration, as required by the grant of leave to appeal, an issue did arise as to whether the claim for breach of fiduciary duty could proceed in any event. This issue has been addressed by McColl JA at [63]-[74]. Her Honour concludes that s 36 of the Limitation of Actions Act does not extend to a claim for breach of fiduciary duty.
122 The appellant sought to rely upon the fact that the particulars of breach of fiduciary duty identified by the plaintiff in his pleading were the same as those identified with respect to the "systems case" pleaded in par 16 of the statement of claim. The appellant argued that, if it were to succeed on the "systems case", it would be because of prejudice with respect to the particulars as pleaded and hence the claim for breach of fiduciary duty must also be rejected.
123 The plaintiff relied on the other side of the same coin, namely that all of the particulars relevant to the "systems case" would need to be addressed at a trial in respect of the breach of fiduciary duty, which did not fall within the grant of leave to appeal. This was said to weaken significantly the allegation of prejudice in respect of the "systems case". The arguments in this regard have been summarised by McColl JA at [64]-[66] above.
124 The appellant did not seek to reopen the grant of leave to appeal: nevertheless, the arguments noted above reveal that the limited grant of leave achieves an unsatisfactory result. It is necessary for this Court to construe the grant of leave. As I understand the order made, when read with the transcript of the argument, the underlying purpose was to allow the appellant to challenge the "systems case", because it raised issues going beyond the direct liability of Mr Ellis and the consequent vicarious liability of the appellant in respect of that conduct. Because the particulars are identically pleaded for the purposes of the breach of fiduciary duty cause of action, the grant of leave should be construed as extending to that cause of action, if the plaintiff required an extension of time within which to bring proceedings.
125 It becomes necessary therefore to consider whether the cause of action for breach of fiduciary duty was subject to the Limitation of Actions Act.
Breach of fiduciary duty - limitation period
126 There are reasons for approaching the operation of the Act in this respect with caution. Historically, the first Statute of Limitations, 21 Jac I c 16 (1623), did not operate in relation to proceedings in equity: see Meagher, Heydon and Leeming, Meagher, Gummow and Lehane's Equity - Doctrines and Remedies (4th ed, 2002) at [34-005]. Secondly, the nature of equitable principles, and in particular fiduciary duties, differs from equivalent common law duties (including duties under contract and in tort): see Pilmer v Duke Group Ltd (In liq) [2001] HCA 31; 207 CLR 165 at [70] and [74] (McHugh, Gummow, Hayne and Callinan JJ), quoted in part at [73] above. Thirdly, the language of equitable remedies conventionally differs from that of common law remedies, commonly (though not invariably) adopting the term "equitable compensation" in place of "damages" as an available form of relief for breach of fiduciary duty.
127 Bearing these considerations in mind, it is nevertheless necessary to focus upon the language of the specific statute. Section 36 of the Limitation of Actions Act, set out at [10] above, involves three concepts, namely "actions", claims for "damages" and claims in respect of "personal injuries". The term "action" is defined in s 3(1) to include "legal proceedings of all kinds". Absent some statutory indication to the contrary, there is no reason to exclude claims brought in equity. Secondly, the concept of "personal injuries" is defined to include any impairment of a person's physical or mental condition - in s 36(2) - and is clearly satisfied by the present proceedings. The third term "damages" may be intended to include equitable compensation, or may be limited to damages in tort or contract. The answer to that question must be found by reading the provision in its context.
128 Section 36 appears in Part 6 of the Act which is headed "Actions on simple contract and in tort". The heading of a Part forms part of an Act: Acts Interpretation Act 1915 (SA), s 19(1)(b). Section headings do not: s 19(2)(a). Nevertheless, it is clear that the heading to Part 6 is not reflective of, let alone a limitation upon, the contents of the Part. Thus, s 38 (also in Part 6) applies to an action for recovery of money paid under a mistake, or otherwise on restitutionary grounds. It also deals with recovery of tax paid pursuant to an invalid demand - s 38(2) - and refers to the effect of endorsements on promissory notes and bills of exchange: s 43. Further, although the Acts Interpretation Act appears to have no provision permitting reference to extrinsic material, that would be allowed in the case of uncertainty or ambiguity under general law principles: see CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2, 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ). It is not insignificant that the heading to Part 6 is identical with the heading of s 35. Accordingly, there is no reason to read the heading as limiting the operation of s 36 to actions for damages based on simple contract or tort. (The term "simple contract" is used to distinguish a contract from an action on "speciality", being a document under seal, addressed in s 34.)
129 If there were a statutory intention not to impose a limitation period on a cause of action for breach of fiduciary duty, where the harm for which compensation is sought is personal injury, it must arise from the use of the expression "damages". The statutory limitation period is imposed, not by reference to a cause of action, but by reference to the kind of relief sought and the harm from which the loss is claimed to flow. As Gummow J has noted, writing extra-judicially, a breach of fiduciary duty may bring into play a range of remedies: see Gummow WMC, "Compensation for Breach of Fiduciary Duty" in Youdan TG (ed), Equity, Fiduciaries and Trusts (Carswell, 1989) p 61. Although reference is made to "compensation for loss inflicted by breach of duty" and not "damages", the cases in which the terms "compensation" and "damages" are to be found, almost interchangeably, are numerous. Sometimes the term "compensation" or "equitable compensation" is used to avoid the inference that the same temporal element or other principles relevant to damages at common law apply. Nevertheless, reference to an "award of damages in equity" is by no means a misnomer: see, eg, Spry, The Principles of Equitable Remedies - Specific Performance, Injunctions, Rectification and Equitable Damages (7th ed, 2007) Ch 7; Meagher, Heydon and Leeming, Ch 23 "Damages in Equity". The use in the equitable jurisdiction of the term "damages" has a long history: see McDermott PM, "Jurisdiction of the Court of Chancery to Award Damages" (1992) 109 LQR 652. (The ancient jurisdiction used the term in a manner which would not be adopted today.) On the assumption that the plaintiff is entitled to compensation for personal injuries suffered as a result of breach of fiduciary duty on the part of the appellant, there is no reason to deny such relief the label of "damages" for the purposes of the Limitations of Actions Act. Nor does there appear to be any sufficient basis for reading down the breadth of s 36 to exclude a claim based in equity.
130 The Court's attention was drawn to a statement in the judgment of Gray J in Trevorrow v South Australia (No. 5) [2007] SASC 285; 98 SASR 136 at [948]:
"The Limitation of Actions Act does not impose a limitation period in respect of the plaintiff's equitable claim including the claim for breach of fiduciary duty. An action for breach of fiduciary duty is an action in equity. The State submitted that in the event that this Court concluded that the State owed any fiduciary duty to the plaintiff, the claim for breach should be barred by the equitable defence of laches."
131 Mr Trevorrow was an Aboriginal man who had been removed from his Aboriginal family in 1958. To the extent that he claimed damages for personal injuries, it appears to have been accepted that s 36 was the relevant provision prescribing a limitation period: at [892]. Nevertheless, there is no indication that such a defence was pleaded in relation to a cause of action based on breach of fiduciary duty and the passage at [948] set out above suggests otherwise. Further, his Honour concluded that the compensation available pursuant to equitable causes of action entirely overlapped with that payable in respect of Mr Trevorrow's common law entitlements and accordingly only the latter needed to be granted: at [1009]. In these circumstances, his Honour's comment, entitled to respect as it is, does not provide a basis for reaching a different conclusion from that proposed above.
132 At [68], McColl JA implies that the conclusion reached by Gray J was consistent with the view adopted in The Duke Group Ltd (In liq) v Alamain Investments Ltd [2003] SASC 415. However, that case involved a different provision and a different argument. The question was whether a claim in equity for breach of fiduciary duty, based on Barnes v Addy (1874) LR 9 Ch App 244, was an action "for the recovery of money paid under a mistake … or otherwise based on restitutionary grounds", within s 38 of the Limitations of Actions Act. Doyle CJ held that it was not, as a matter of statutory construction: at [102]-[104]. That conclusion provides no assistance in construing s 36, although it does provide express recognition that some provisions found in Part 6 of the Act deal with equitable relief, despite the heading to the Part.
133 McColl JA finds further support for that conclusion in Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497: see [75]-[79] above. Although based on similar general principles, the Limitation Act 1969 (NSW) adopts a different form to the Limitation of Actions Act. Thus critical provisions relevant for present purposes identify limitations by reference to "causes of action": see ss 14 and 18A. Furthermore, there is express provision that those sections which might be capable of including equitable relief do not: see s 23. An exception to that statutory structure may be found in Part 2, Div 6 relating to personal injury actions, which is applicable only to causes of action where the relevant act or omission occurred on or after the commencement of the Division on 6 December 2002: s 50A(2). The application of these provisions to a claim like the present has not yet been considered. In my view, Williams provides no assistance in construing the South Australian provision.
Approach to issues on appeal
134 As noted by McColl JA, all members of the High Court in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541 approached the appeal from a decision of a primary judge extending time to bring proceedings as governed by the principles in House v The King [1936] HCA 40; 55 CLR 499 at 505 - see Brisbane South at 549 (Toohey and Gummow JJ), and 569 (Kirby J) - or according to the principles espoused in Australian Coal & Shale Employees' Federation v The Commonwealth [1953] HCA 25; 94 CLR 621 at 627 (Kitto J): see Brisbane South at 556 (McHugh J, Dawson J agreeing). Reliance on these authorities suggests that the Court has been content to adopt the same principles in relation to review of a sentencing decision in criminal proceedings, the review of a decision of a taxation officer operating under court rules and, in respect of a discretionary judgment, an appeal by way of rehearing under s 75A of the Supreme Court Act 1970 (NSW). These principles would allow for intervention in limited circumstances, but including those where the primary judge "mistakes the facts" or fails to give "sufficient weight" to relevant considerations. Furthermore, it seems that a similar principle of restraint should apply to an appeal challenging an inference, at least where it may be difficult to draw a bright line between the drawing of an inference and the exercise of a discretion: see White v Barron [1980] HCA 14; 144 CLR 431 at 443 (Mason J); Goodman v Windeyer [1980] HCA 31; 144 CLR 490 at 502 (Gibbs J) and 509 (Aickin J). In accordance with these authorities, the entitlement of the appellant to have the Court exercise its powers under s 75A(6) must be subject to the kinds of constraint identified.
135 The difficulty for the appellant is exacerbated in the present case by the fact that the primary challenge on appeal, identified by reference to the prejudice arguably caused in facing the "systems case", requires the Court to identify potential error in the judgment below on a basis which, though not ignored, did not form the focus of the arguments presented by the appellant. The fact that the grant of leave has been confined, so as to render this the sole basis of challenge, should not obscure the function of the Court, which is to consider whether error is revealed by reference to the matters addressed below. Furthermore, the assessment of prejudice must be approached on the basis that the appellant will in any event be required to face a case based on vicarious liability.
136 Success on the "systems case" is unlikely if the plaintiff fails on the vicarious liability case; nor will success on the "systems case" achieve any better result for the plaintiff than success on the vicarious liability case. The reason for pursing the "systems case", as explained in the course of argument, was a concern lest the principles considered in State of New South Wales v Lepore [2003] HCA 4; 212 CLR 511 were found not to favour a finding of vicarious liability in the circumstances of the plaintiff's case.
Application of principles
137 So far as the reasons of the primary judge are concerned, subject to what follows, I agree with McColl JA that the appellant has not demonstrated error of a kind sufficient to justify intervention, on the principles set out above. Her Honour describes the primary judge as having been "entitled to take a jaundiced view" of the appellant's case of actual prejudice: at [104]. That is a matter on which I would place no weight. The primary judge's description of at least one of the submissions put forward by the appellant as "somewhat disingenuous" - at [119] - may be thought to carry with it a connotation of lack of probity which, perhaps understandably, gave rise to challenge. Whether or not the connotation was intended, and whether or not it was justified, it was of little relevance to the exercise to be undertaken. However, I would not read her Honour's reasons as indicating that she was diverted in any material respect from the statutory task of assessing whether the extension of time was required by "the justice of the case", a task which it was conceded the primary judge had correctly identified in terms of legal principle.
138 A greater concern arises with respect to the "systems case". McColl JA refers (at [101] above) to her Honour's reasons for considering that a fair trial was possible, by reference to statements in the judgment below at [38], [68] and [119]. Each of those paragraphs, and in particular the first and last, deal with the complaints of assault directly upon the plaintiff and inquiries made in relation to those complaints. They do not in terms address the "systems case". Although the reason for that has been explained, it is necessary to take the matter a step further for the purposes of the appeal.
139 In its written submissions, the appellant stated at paragraphs 25 and 31:
"According to Major Ian Huxley and Major Merna Huxley, records relating to the conduct of Eden Park were kept by Brigadier Lawler and his wife as part of their duties. The records were physically located in the Brigadier's living quarters, which was a separate building away from the main block and other buildings comprising the Eden Park complex. The nature and content of these records is not known.
…
Clearly, any records which had, or may have had, a bearing on the 'systems' case have long since been destroyed."
140 In addition, at least three key witnesses have died: Brigadier Lawler in 1979, his wife in 1988 and Major Huxley in September 2004. Any information that might have been obtained from them as to the "systems case" has, it would appear, been lost.
141 These concerns do not, however, demonstrate a significant level of prejudice. One aspect of the "systems case", involving a failure to select appropriate carer staff at the home, was expressly abandoned during the course of the appeal. The other particulars of the "systems case" involved failures to supervise, protect from abuse, provide counselling to ensure complaints were heard and investigate complaints. The plaintiff submitted that matters of that kind would not primarily depend upon written records. There were a number of witnesses still alive (including Mr Ellis) who should have had knowledge of such systems if they existed and were effective. Furthermore, if the plaintiff were believed in relation to his complaints of individual abuse, that would itself constitute probative evidence of the inadequacy of any system which may have existed on paper.
142 Secondly, an affidavit prepared by a solicitor for the appellant stated that, upon inquiry, he had been informed that "the provision of services by The Salvation Army at various institutions, including the provision of children's homes such as Eden Park where the plaintiff was a resident, was decentralised to those institutions in every possible way". The affidavit continued:
"The decentralisation extended to the engagement of staff, the recording of the admission and discharge of residents at the various institutions, and the determination of the level and type of services to be provided at the institution."
143 That evidence tends to diminish the force of the appellant's fear of prejudice in relation to the "systems case". As Bell JA notes at [156] below, documents relevant to procedures operating at Eden Park would be likely to have been within the knowledge or control of those in charge of the home, but there was no evidence from them of lost relevant records. The evidence also tends to undermine the apparent degree of separation between the cause of action based on vicarious liability and that relying on the appellant's systems. Although each has a different legal structure, the evidential material supporting each is likely to depend to a significant degree on the same witnesses. Such an element of commonality allows a reasonable degree of confidence that a different approach during the hearing below (focusing substantially on the systems case) would not have led to a different outcome. It also suggests that the approach adopted by the appellant at trial was strategically sound and not inadvertent, bearing in mind that the limitation period operated with respect to damages for personal injuries, without regard to the nature of the cause of action.
Costs
144 Her Honour ordered that the appellant was to pay the plaintiff's costs of the application. She gave no reasons for that order, from which it may be inferred that she adopted the usual principle that costs follow the event. The challenge by the appellant to that order requires consideration of whether there was reason to depart from that approach and, if so, whether error has been made out in the exercise of what is, essentially, a discretionary judgment.
145 The appellant contended that the usual order would be to require the applicant for an extension of time to pay the costs of the application in any event. That followed, it was said, from the approach adopted by this Court in Holt v Wynter [2000] NSWCA 143; 49 NSWLR 128, and followed in Commonwealth of Australia v Lewis [2007] NSWCA 127. In Holt v Wynter, Sheller JA stated that "ordinarily a successful applicant, who has allowed him or herself to get out of time, should pay the costs of the application unless the respondent's opposition was wholly unreasonable": at [121]. That principle was applied in Lewis at [95] (Beazley JA, Santow and Ipp JJA agreeing).
146 Whether there is an 'ordinary course' may be open to doubt. In Commonwealth of Australia v Smith [2005] NSWCA 478, Santow JA noted the statement in Holt v Wynter but continued that there was "no rule that binds the judge to deny costs to an applicant for an extension of the limitation period": at [159]-[160]. On a basis not apparently agitated below, his Honour held that the judge "would have been entitled to find that the Commonwealth acted unreasonably in opposing an extension of time and should pay the applicant's costs". (Handley JA agreed with the orders proposed by Santow JA, but did not address this aspect of his Honour's reasons.)
147 The language adopted by Sheller JA in Holt v Wynter, referring to an applicant who has "allowed him or herself to get out of time" was apt in the circumstances of that case, the applicant having formed an intention to make a claim within time, but failed to effect the intention before the expiration of the relevant limitation period. That was the kind of case in which it could appropriately be said that the applicant was seeking an indulgence. However, that is not true of a case in which the applicant was unaware of material facts until after the expiration of the limitation period.
148 Nevertheless, an application for an extension of time, if successful, results in the prospective defendant losing an immunity from suit which it would otherwise enjoy. Whether the suit will ultimately be successful is not known. The application may be seen in these circumstances as an interlocutory, but essential, element of the plaintiff's proceedings. Unless it can be said that the plaintiff was at fault in not bringing the proceedings earlier, or did not otherwise run the application appropriately, it is doubtful whether the applicant should be ordered routinely to pay the respondent's costs of a successful application.
149 That being so, it does not follow that the respondent should be required to pay the applicant's costs of the application, on the assumption that the respondent had not acted unreasonably or inappropriately in resisting the application. In such a case, the preferable order may be that the costs of the motion be the applicant's costs of the proceedings. Such an order means that, as explained by Heydon JA in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; 53 NSWLR 116, at [37], if the plaintiff succeeds at trial he or she will receive the costs of the application but, if the plaintiff is ultimately unsuccessful, there will be no order as to the costs of the application for extension of time.
150 Had the application been brought under the Limitation Act (NSW), the appropriateness of such an order might have found support in s 60L of that Act. However, that provision has no equivalent in the Limitation of Actions Act and the parties proceeded on the basis that the relevant statutory provisions governing costs were s 98 of the Civil Procedure Act 2005 (NSW) and r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW), providing that "the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs".
151 As was noted in Baker v Towle [2008] NSWCA 73; 39 FamLR 323, identification of "the event" for the purposes of the rule may vary in particular circumstances: at [10]-[13] and [20]-[22] (Beazley JA, Mathews AJA agreeing) and at [83]-[84] in my judgment. In the present case, it could be said that the application for an extension of time was a separate and discrete matter, properly treated as an "event" in its own right, for the purposes of the costs rule. The alternative view is that the application for extension of time was but one essential step on the way to success for the plaintiff and not properly severable from the outcome of the proceedings. In my view, the latter approach should be preferred. It accords with the approach adopted in Nowlan. The question is whether the primary judge in the present case erred in the exercise of her Honour's discretion in failing to adopt that approach.
152 As noted above, the primary judge was critical, in significant respects, of the conduct of the appellant's solicitors in preparing and presenting material on the application. Nevertheless, I would not treat her Honour's criticisms as having been relied on to justify a costs order which was not otherwise appropriate. That is because, were the criticisms to be reflected in a costs order, that should properly occur by reference to some part of the costs, rather than the whole costs of the application.
153 A question remains as to whether it has been shown her Honour was in error in making an order other than that to which preference is given above. One question is whether her Honour was invited to make some other order. Neither party drew the Court's attention to any submissions in this respect and, indeed, the appellant's case was in part based upon the fact that the order was made without it being given an opportunity to be heard: written submissions, par 89. That is not a sound basis of complaint. The appellant should have given consideration to possible costs orders, both in the event of its success and its failure on the motion, before or during the hearing of the motion. If it foresaw some complicating factor which might have prevented it sensibly addressing on the issue before the outcome was known, it should have expressly reserved its position. Even when judgment was handed down, it might have sought leave to be heard on the question of costs. Thereafter, it had 14 days to seek a variation of the order made: UCPR, r 36.16(3A). None of these steps were taken. Accordingly, because the costs order was one that was undoubtedly available to her Honour under the relevant rule, no basis has been identified for appellate interference.
Conclusion
154 For these reasons, I agree with the orders proposed by McColl JA.
155 BELL JA: I have had the advantage of reading the judgments of McColl JA and Basten JA in draft. Their Honours have come to differing conclusions on the question of whether the claim for equitable compensation for breach of fiduciary duty that is pleaded in pars 21 and 22 of the statement of claim is subject to s 36 of the Limitations of Actions Act 1936 (SA). This question was not agitated before the primary judge and her Honour's determination, that it was just to grant the extension, was not influenced by any consideration that the equitable claim might proceed in any event. The limited grant of leave to appeal did not, in terms, extend to the equitable claim. Neither party addressed the pleading of the equitable claim in the submissions that were filed prior to the hearing. The point was first taken by Dr A Morrison SC on the morning of the appeal. Mr Garling SC submitted at the hearing that the contention that the equitable claim was not subject to the limitation period appeared to be correct. It was not a matter that he had turned his mind to and he sought leave to file a note should he decide, after reflecting on the matter, to challenge the contention. This he did. The question is finely balanced, as the judgments of McColl JA and Basten JA demonstrate.
156 I agree with McColl JA, for the reasons that she gives, that no error has been demonstrated in the primary judge's determination of the application. I also agree with the observations made by Basten JA at [141] and [142] with respect to the submissions made by the appellant concerning the asserted prejudice in dealing with the "systems case". I would add that there is no reason to conclude that the loss of the documents maintained by Brigadier Lawler and his wife has occasioned actual prejudice to the appellant in defending the "systems case". One would expect documents relevant to the "systems case" would be documents of which the assistant managers of Eden Park had knowledge. Major Merna Huxley, Assistant Manager of Eden Park between January 1961 and January 1966, appears not to have known the nature and content of the records that Brigadier Lawler and his wife kept at their living quarters. (Affidavit of Gregory Doran sworn 1.3.04, at [3]; Blue 442 C-J)
157 Since the question of whether the equitable claim was subject to the limitation period was not raised before the primary judge, and was not fully argued on the hearing of the appeal, I would prefer not to express an opinion as to whether the order extending the time for the commencement of the proceedings was required with respect to it.
158 I agree with McColl JA's reasons concerning the primary judge's costs order.
159 I agree with the orders that McColl JA proposes.
**********