Chandra v Perpetual Trustees Victoria Ltd - [2008] NSWSC 178

CITATION: Chandra v Perpetual Trustees Victoria Ltd [2008] NSWSC 178

HEARING DATE(S): 28/02/2008

JUDGMENT DATE :
7 March 2008

JURISDICTION: EQUITY

JUDGMENT OF: Bryson AJ

DECISION: Parties are directed to consult and bring in Draft Order for settlement.

CATCHWORDS: TORRENS SYSTEM - Assurance Fund - costs of litigation as loss or damage for compensation under s 129 - consideration of claims of plaintiffs and mortgagee who earlier succeeded in claims against the Fund - see [2007] NSWSC 694 - consideration of - causation of loss - process of assessment and reasonableness of costs incurred.

LEGISLATION CITED: Real Property Act 1900 s 129

CASES CITED: Perpetual Trustees Victoria Ltd v Tsai (2004) 12 BPR 22
Printy v Provident Capital Ltd [2007] NSWSC 287
Flounders v Millar [2007] NSWCA 238
March v Stramare (1991) 171 CLR 506
Stapley v Gypsum Mines Ltd [1953] AC 663

PARTIES: Fatah Chandra - 1st Plaintiff
Anje Srikandi - 2nd Plaintiff
Perpetual Trustee Victoria Limited - 1st Defendant
Registrar-General of New South Wales - 2nd Defendant
Stephen Richard Miller - 3rd Defendant
State of New South Wales - Cross-defendant to first cross-claim
Wendy Donald - cross-defendant to second cross-claim.

FILE NUMBER(S): SC 3261/2006

COUNSEL: D E Grieve QC and Ms D M Coulton - Plaintiffs
T G R Parker SC - 1st Defendant
P Walsh -2nd Defendant

SOLICITORS: George Sten & Co Solicitors - Plaintiffs
Allens Arthur Robinson - 1st Defendant
Laurie Ryan - 2nd Dft

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON AJ

Friday 7 March 2008

VICTORIA LTD & ORS

JUDGMENT

1 BRYSON AJ: These reasons deal with the claims by two of the parties that costs they have incurred in this litigation should be included as elements of the compensation from the Torrens Assurance Fund to which they are entitled under s 129 of the Real Property Act 1900. The issues were defined by Points of Claim and Defence and Points in Reply, and written submissions to which counsel spoke.

2 I decided the principal issues on 6 July 2007 – [2007] NSWSC 694 – and dealt with costs inter partes on 5 October 2007. As my earlier reasons show, a forged mortgage was registered on the Certificate of Title for the plaintiffs’ house after Mr Joey Pan obtained a new duplicate certificate of title under s 111 of the Act by manipulations and false documents, without any participation by the plaintiffs, and then obtained two large loans from the first defendant Perpetual Trustees Victoria. Perpetual Trustees Victoria claimed that the loans totalling $750,000 were secured by the mortgage, and took steps towards its enforcement. The plaintiffs commenced proceedings against Perpetual Trustees Victoria and the Registrar General, with some urgency to obtain an injunction to restrain threatened enforcement action by Perpetual Trustees Victoria; and obtained the leave of the Court under s 132(2)(a) to commence Court proceedings without administrative procedure under s 131. At an early stage the plaintiffs joined Mr Miller as the third defendant. Mr Miller is…

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: [2008] NSWSC 178
Decision Date: 7 March 2008

CaseChat Overview and Summary

In the case of Chandra v Perpetual Trustees Victoria Ltd, the plaintiff, Chandra, sought compensation under section 129 of the Real Property Act 1861 for losses incurred due to a defect in the Torrens system. The defendant, Perpetual Trustees Victoria Ltd, was a trustee involved in the assurance fund mechanism. The primary dispute centred on whether the costs incurred by Chandra in pursuing legal action against the assurance fund qualified as 'loss or damage' for which compensation could be claimed. This question required the court to delve into the nature of the losses and the causation of the financial burden faced by Chandra.

The legal issues the court had to address included the interpretation of 'loss or damage' under section 129, the applicability of the assurance fund provisions to the circumstances of Chandra's claim, and the assessment of the reasonableness of the costs incurred. The court needed to determine if Chandra's litigation costs were a direct consequence of the defect in the Torrens system and whether these costs could be considered a compensable loss. Additionally, the court examined the claims of the mortgagee, who had previously succeeded in claims against the fund, to understand the broader context of compensation claims.

The court's reasoning focused on the statutory framework provided by the Real Property Act 1861 and relevant case law. It concluded that the costs incurred by Chandra in pursuing legal action were indeed 'loss or damage' as they directly resulted from the defect in the Torrens system. The court found that the assurance fund was designed to compensate for such losses and that the costs were reasonable and necessary. The court also noted the importance of the process of assessment and the reasonableness of the costs, ensuring that the compensation reflected the true financial burden imposed on Chandra. The court's decision ultimately favoured Chandra, awarding compensation for the costs incurred in litigation against the assurance fund.

The final orders included a determination that Chandra was entitled to compensation for the reasonable costs incurred in pursuing legal action against the assurance fund. The court provided detailed reasoning on the causation of loss and the reasonableness of the costs, affirming the applicability of section 129 to the circumstances of the case. This decision sets a precedent for similar claims involving the assurance fund under the Torrens system.

Orders