Ausbao (286 Sussex Street) Pty Ltd v The Registrar General of New South Wales

Ausbao (286 Sussex Street) Pty Ltd appealed to the Court of Appeal of New South Wales against a decision of the primary judge that dismissed its claim for compensation from the Torrens Assurance Fund. The dispute arose after Ausbao purchased land in Sydney’s CBD for $55 million, relying on a Deposited Plan referenced in the land’s folios which stated a total site area of 1337.4m². Ausbao later discovered the true area was 1255.9m², a discrepancy caused by transposition errors made by officers of the Registrar General in 1978 and 1995. Ausbao argued this reduction in area represented a loss for which it should be compensated from the Assurance Fund.

The Court of Appeal was required to determine two primary legal issues. Firstly, whether Ausbao’s loss arose because of an "error or miscalculation in the measurement of land" within the meaning of section 129(2)(e) of the *Real Property Act 1900* (NSW). This involved considering whether "measurement" referred to the erroneous statement of area itself or the process of determining the area. Secondly, the Court had to consider whether Ausbao’s loss or damage was a consequence of its own act or omission, as contemplated by section 129(2)(a) of the *Real Property Act 1900* (NSW), and if so, how that provision affected its claim.

The Court reasoned that section 129(2)(e) was intended to be remedial, but the *Real Property Act 1900* (NSW) generally disclaims accuracy regarding dimensions and areas. The Court found that the inaccurate statement of area on the Deposited Plan, which was a consequence of errors in the measurement process, fell within the exclusion in section 129(2)(e). Furthermore, the Court held that Ausbao’s loss was a consequence of its own act or omission under section 129(2)(a), as the risk of an erroneous statement of area on a Deposited Plan, though rare, was a real one that a developer of Ausbao’s sophistication should have considered. The Court noted that section 129(2)(a) does not provide a mechanism for apportionment of liability.

Consequently, the Court of Appeal dismissed the appeal and ordered Ausbao to pay the Registrar General’s costs of the appeal.