Ausbao (286 Sussex St) Pty Ltd v Registrar-General of NSW

Ausbao (286 Sussex St) Pty Ltd filed a claim for compensation from the Torrens Assurance Fund against the Registrar-General of New South Wales, asserting that an error in the deposited plan of their property resulted in an overstated area, leading to financial loss. The dispute centred on whether the claim was barred by section 129(2)(e) of the Real Property Act 1900 (NSW), which excludes compensation for losses arising from errors or miscalculations "in the measurement of land." The court had to determine if the error in question was indeed an error in measurement and whether the claim was clearly untenable or manifestly groundless, potentially justifying summary dismissal.

The primary legal issue was the interpretation of section 129(2)(e) of the Real Property Act 1900 (NSW) and whether the error in the deposited plan constituted an error "in the measurement of land." The court needed to assess whether the error in the plan measurement directly caused the loss claimed by Ausbao. Additionally, the court considered the threshold for determining whether a claim was so untenable or groundless that it warranted summary dismissal, given the potential for significant loss if the claim were ultimately successful.

In its reasoning, the court held that the key question was whether the loss arose due to an error "in the measurement of land" as per section 129(2)(e). The court emphasised that this was not a matter that could be decided on the face of the claim without considering the underlying facts and the nature of the error. The court concluded that the claim was not clearly untenable or manifestly groundless, thus rejecting the application for summary dismissal. The court found that the real question regarding the nature of the error and its impact on the claimed loss required a more detailed examination.

The court ordered that the application for summary dismissal be dismissed, allowing the claim to proceed to a more substantive hearing. This decision recognised the potential significance of the error and the financial loss claimed by Ausbao, deeming it inappropriate to dismiss the claim without a thorough examination of the facts. The case was to proceed to determine whether the error in the deposited plan constituted an error in measurement and the extent of any compensable loss.