Dempster v Richardson

Elizabeth Dempster appealed to the High Court of Australia from a decision of the Supreme Court of Tasmania. The dispute concerned a claim by Mrs. Dempster for damages from the Assurance Fund under the Real Property Act 1862 (Tas.) following a boundary dispute and the subsequent demolition of a building wall. Mrs. Dempster had purchased land based on a certificate of title that included a diagram showing a frontage measurement. When she commenced construction of a building, the adjoining landowners asserted that the wall encroached on their property, and they demolished it.

The legal issues before the court were whether Mrs. Dempster had been deprived of an estate or interest in land due to an error, omission, or misdescription in her certificate of title, and whether the loss she suffered from relying on the frontage measurement in the certificate constituted a claimable loss under sections 125 and 128 of the Real Property Act 1862 (Tas.). Specifically, the court had to determine if the discrepancy in the frontage measurement, which led to the boundary dispute, was an actionable error or misdescription for which the Assurance Fund was liable, or if the loss arose from a different cause not covered by the Act.

The High Court, by majority, held that Mrs. Dempster was not entitled to recover damages from the Assurance Fund. The court reasoned that Mrs. Dempster had received all the land her vendor could transfer and was not deprived of any estate or interest in land through an error or misdescription in the certificate of title itself. The discrepancy in the frontage measurement was found to be an error of survey rather than an error of title. Furthermore, the court concluded that the loss sustained by Mrs. Dempster due to her reliance on the stated measurements, which led to the building of the wall and its subsequent demolition, did not fall within the scope of remedies provided by sections 125 and 128 of the Act. The court affirmed the decision of the Supreme Court of Tasmania.