Astell v Australian Capital Territory - [2016] ACTSC 238

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Astell v Australian Capital Territory
Citation:	[2016] ACTSC 238
Hearing Date:	15 August 2016
DecisionDate:	22 August 2016
Before:	Mossop AsJ
Decision:	See [41]
Catchwords:	STATUTORY INTERPRETATION – Whether plaintiff whose house was sold by an unidentified fraudster can recover damages from Territory under Land Titles Act 1925 (ACT), s 155 – What “remedy by action for recovery of damages” is provided for in Pt 16 – Meaning of “inapplicable” – Where evidence demonstrates little to not prospect of fraudster ever being identified – Remedies in ss 154, 143 inapplicable where fraudster cannot be identified because plaintiff cannot bring proceedings against an unidentified person DAMAGES – Test to be applied – Plaintiff to be put in the position she would have been but for the fraud – Value of property to be assessed according to current market value – Sale price does not reflect market value as fraudster cannot be considered a willing seller in an arms length transaction – Plaintiff entitled to market value of property, net loss of rent and transaction costs for purchase of equivalent house
Legislation Cited:	Land Titles Act1925 (ACT), ss 143, 152, 154, 155 Legislation Act 2001 (ACT), s 139
Cases Cited:	Perpetual Trustees Victoria Ltd v Van Den Heuvel (No 2) (2009) 14 BPR 26, 765 Registrar-General (NSW) v Behn (1981) 148 CLR 562 Registrar of Titles (WA)v Franzon (1975) 132 CLR 611 Registrar of Titles v Mrsa [2015] WASCA 204 Registrar of Titles v Spencer (1909) 9 CLR 641 Saade v Registrar-General (NSW) (1993) 179 CLR 58
Texts Cited:	Carruthers, P and Skead, N, “150 years on: the Torrens compensation provisions in the “last resort” jurisdictions” (2011) 19 Australian Property Law Journal 174
Parties:	Imera Astell (Plaintiff) Australian Capital Territory (Defendant)
Representation:	Counsel Mr M Orlov (Plaintiff) Mr W L Sharwood (Defendant)
Solicitors CS Legal (Plaintiff) Australian Capital Territory Government Solicitor (Defendant)
File Number:	SC 337 of 2015

MOSSOP AsJ:

Introduction

The plaintiff was the victim of what is now commonly known as identity theft. A house in Canberra which she owned was sold upon the instructions of a fraudster who provided instructions to the real estate agent and a solicitor. Neither the real estate agent nor the solicitor undertook checks sufficient to identify that their instructions were being provided by a fraudster rather than by the owner of the properties. The property was sold and the proceeds lost. The fraudster has not been identified.

The plaintiff now claims damages against the Territory pursuant to s 155 of the Land Titles Act1925 (ACT) (Land Titles Act). Whether or not she is entitled to those damages depends upon the interpretation of that section and its application to the circumstances of this case.

Facts

The plaintiff was the owner of an unencumbered residential property at 35 Cumpston Place, MacGregor ACT 2615 (the property). She had acquired that property in September 1991. She had purchased the property using a loan from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] ACTSC 238
Decision Date: 22 August 2016

CaseChat Overview and Summary

In Astell v Australian Capital Territory, the plaintiff sought damages from the defendant territory following the fraudulent sale of her house. The plaintiff's house was sold by an unidentified fraudster and, as a result, the plaintiff sought to recover the difference in value between the sale price and the current market value of the property. The court had to determine whether the plaintiff could recover damages under the Land Titles Act 1925 (ACT), section 155, which provides for a remedy by action for recovery of damages.

The legal issues before the court included the interpretation of the phrase "remedy by action for recovery of damages" in Part 16 of the Act, and the meaning of "inapplicable" in the context of the statutory provisions. The court had to consider whether the remedies in sections 154 and 143 of the Act were inapplicable in cases where the fraudster could not be identified because the plaintiff could not bring proceedings against an unidentified person. The court also had to determine the appropriate test for damages and the value of the property to be assessed.

The court found that the statutory provisions were inapplicable in this case as the plaintiff could not bring proceedings against an unidentified person. The court held that the plaintiff was entitled to be put in the position she would have been but for the fraud, which included the market value of the property, net loss of rent and transaction costs for the purchase of an equivalent house. The court found that the sale price did not reflect the market value of the property as the fraudster could not be considered a willing seller in an arm's length transaction. The court ordered the defendant to pay the plaintiff the market value of the property, net loss of rent and transaction costs for the purchase of an equivalent house.

Orders

Orders of the court

See [41]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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