Atlantis Properties P/L v Cameron - [2005] QCA 297

SUPREME COURT OF QUEENSLAND

CITATION:

Atlantis Properties P/L v Cameron [2005] QCA 297

PARTIES:

ATLANTIS PROPERTIES PTY LTD ACN 086 305 259
(plaintiff/appellant)
v
DAVID ALAN STUART CAMERON
(defendant/respondent)

FILE NO/S:

Appeal No 2900 of 2005
DC No 3150 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

19 August 2005

DELIVERED AT:

Brisbane

HEARING DATE:

20 July 2005

JUDGES:

de Jersey CJ, Jerrard and Keane JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal dismissed
2. Appellant to pay the respondent's costs of, and incidental to, the appeal to be assessed on the standard basis

CATCHWORDS:

TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - STANDARD OF CARE - PARTICULAR PERSONS AND SITUATIONS - OTHER CASES - where appellant was the manager of an apartment building - where the terms of the appellant's employment were contained in a service agreement between the appellant and the body corporate - where one of the terms of the service agreement provided for the appointment of a registered valuer to determine the 'fair market remuneration' of the appellant - where the respondent, a registered valuer, was appointed by the parties to the service agreement to undertake this valuation - where appellant brought an action for damages against the respondent alleging that the respondent had been negligent in the choice and application of the valuation methodology that had been used to value the appellant's remuneration - where the approach taken by the respondent was contrasted at trial with the approach taken by an expert called on behalf of the appellant - where this expert was not a registered valuer - whether the appellant could point to any evidence that a registered valuer with the other qualifications required by the service agreement would have carried out the valuation any differently from the respondent - whether the evidence given by the appellant's witness could be taken to cast any doubt on the propriety of the valuation methodology employed by the respondent

Rogers v Whitaker (1992) 175 CLR 479, cited

COUNSEL:

P W Hackett for appellant
P J Roney for respondent

SOLICITORS:

Walters & Co for appellant
Macfie Curlewis Spiro for respondent

de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Keane JA. I agree with the orders proposed by His Honour, and with his reasons.

JERRARD JA: In this appeal I have read the reasons for judgment and orders proposed by Keane JA, and respectfully agree with those.

KEANE JA: The appellant was the manager under a service and maintenance agreement ("the service agreement") with the body corporate of a building known as the Royal Albert Hotel. The respondent, a registered valuer, was appointed by the parties to the service agreement to determine "the fair market remuneration" of the appellant as manager on the occasion of a market adjustment at 30 June 2001. The respondent determined the…

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: [2005] QCA 297
Decision Date: 19 August 2005

CaseChat Overview and Summary

In the case of Atlantis Properties P/L v Cameron, the appellant, who was the manager of an apartment building, initiated a legal action against the respondent, a registered valuer, seeking damages for alleged negligence in the valuation of the appellant's remuneration. The terms of the appellant's employment were governed by a service agreement between the appellant and the body corporate, which included a provision for a registered valuer to determine the fair market remuneration. The appellant argued that the respondent had been negligent in the choice and application of the valuation methodology used to assess the appellant's remuneration. The appellant's case was based on the contrast between the respondent's approach and the methodology proposed by an expert witness, who was not a registered valuer.

The court was required to determine whether the appellant could demonstrate that a registered valuer, with the qualifications specified in the service agreement, would have employed a different valuation methodology. Furthermore, the court needed to assess whether the evidence provided by the appellant's expert witness cast any doubt on the propriety of the valuation methodology used by the respondent. The central issue was whether the respondent had met the standard of care expected of a registered valuer in the valuation of the appellant's remuneration, and if the appellant's expert witness's testimony could establish a breach of that standard.

The court examined the evidence presented and concluded that the appellant failed to provide sufficient evidence to show that a registered valuer with the requisite qualifications would have used a different valuation methodology. The court found that the appellant's expert witness's evidence did not undermine the propriety of the valuation methodology employed by the respondent. Therefore, the court held that the respondent had not been negligent in the valuation of the appellant's remuneration and dismissed the appeal. Additionally, the court ordered the appellant to pay the respondent's costs of and incidental to the appeal, to be assessed on the standard basis.

Orders

Orders of the court

1. Appeal dismissed

2. Appellant to pay the respondent's costs of, and incidental to, the appeal to be assessed on the standard basis

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Atlantis Properties P/L v Cameron [2005] QCA 297
PARTIES:	ATLANTIS PROPERTIES PTY LTD ACN 086 305 259 (plaintiff/appellant) v DAVID ALAN STUART CAMERON (defendant/respondent)
FILE NO/S:	Appeal No 2900 of 2005 DC No 3150 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	19 August 2005
DELIVERED AT:	Brisbane
HEARING DATE:	20 July 2005
JUDGES:	de Jersey CJ, Jerrard and Keane JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal dismissed 2. Appellant to pay the respondent's costs of, and incidental to, the appeal to be assessed on the standard basis
CATCHWORDS:	TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - STANDARD OF CARE - PARTICULAR PERSONS AND SITUATIONS - OTHER CASES - where appellant was the manager of an apartment building - where the terms of the appellant's employment were contained in a service agreement between the appellant and the body corporate - where one of the terms of the service agreement provided for the appointment of a registered valuer to determine the 'fair market remuneration' of the appellant - where the respondent, a registered valuer, was appointed by the parties to the service agreement to undertake this valuation - where appellant brought an action for damages against the respondent alleging that the respondent had been negligent in the choice and application of the valuation methodology that had been used to value the appellant's remuneration - where the approach taken by the respondent was contrasted at trial with the approach taken by an expert called on behalf of the appellant - where this expert was not a registered valuer - whether the appellant could point to any evidence that a registered valuer with the other qualifications required by the service agreement would have carried out the valuation any differently from the respondent - whether the evidence given by the appellant's witness could be taken to cast any doubt on the propriety of the valuation methodology employed by the respondent Rogers v Whitaker (1992) 175 CLR 479, cited
COUNSEL:	P W Hackett for appellant P J Roney for respondent
SOLICITORS:	Walters & Co for appellant Macfie Curlewis Spiro for respondent