Glensaugh Pty Ltd v Registrar-General - [2001] NSWSC 1114

CITATION: Glensaugh P/L v The Registrar General [2001] NSWSC 1114

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 4499/98

HEARING DATE(S): 02/05/01, 03/05/01, 04/05/01, 11/05/01, 16/05/01

JUDGMENT DATE:
4 December 2001

PARTIES :

Glensaugh Pty Limited (Plaintiff)
The Registrar General (First Defendant)

JUDGMENT OF: Santow J

COUNSEL : J E Armfield (Plaintiff)
M J Slattery, QC/T H Barrett (Defendant)

SOLICITORS: Dignan & Hanrahan (by their city agents Turner Whelan) (Plaintiff)
Kenneth Charles Hall, Solicitor for the Registrar General (Defendant)

CATCHWORDS: PROPERTY -- Damages claimed against Registrar General for wrongly amending Register to show reserved road -- Damages under s126 or s127 of Real Property Act -- Effect of claimed lost opportunity to sell as a golf course -- Causation issues -- Calculation of damages for loss of a chance - 10% discount -- Valuation issues -- Assessment of loss at time of deprivation.

LEGISLATION CITED: Crown Lands Act 1989 Part 3
Crown Lands Regulation 1990 regulations 23(2) and (3)
Real Property Act (NSW) 1900 ss126 and 127

CASES CITED: Cirino v Registrar General (1993) 6 BPR 97452
Christopoulos v Angelos (1996) 41 NSWLR 700
The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
Fink v Fink (1946) 74 CLR 127
Ho v Powell [2001] NSWCA 168
Lakatoi Universal Pty Ltd v Walker (Einstein J, 10 March 2000, unreported)
Levi v Colgate Palmolive Pty Ltd (1941) 41 SR (NSW) 48
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383
Norris v Blake [No 2] (1997) 41 NSWLR 49
Parker v Registrar General [1977] 1 NSWLR 22
Payne v Parker [1976] 1 NSWLR 191
Poseidon Ltd and Sellars v Adelaide Petroleum NL at (1994) 179 CLR 332
Registrar-General v Behn [1980] 1 NSWLR 589
Registrar of Title (Qld) v Crowle (1947) 75 CLR 191
Spencer's Case (1583) 77 ER 72; [1588]-[1774] All ER 68
State Bank of New South Wales v Brown (2001) 38 ACSR 715

DECISION: Damages allowed (para 108).

IN THE SUPREME COURT
OF NEW SOUTH WALES
NAME OF DIVISION
NAME OF LIST

SANTOW J
No. 4499/98

GLENSAUGH PTY LIMITED
Plaintiff
THE REGISTRAR GENERAL
First Defendant

Judgment
4 December 2001
Introduction and Overview

1 The Plaintiff, Glensaugh Pty Ltd, is the registered proprietor of property in the County of Camden and brings these proceedings against the Registrar General (as well as the relevant Minister). On 12 November 1992 a critical event occurred. The Registrar General amended the Plaintiff’s title so as to create a reservation of a Crown road on the title. Prior to this amendment to the register, in March 1990, the Plaintiff had been granted development consent over the property for an 18 hole 70 par golf course, such approval being valid for a period of two years. Following both the Register General’s amendment to the register and the lapse of the development consent, on 30 November 1995, St Andrews Country Club Pty Limited (“St Andrews”) entered into an earlier negotiated option agreement (“the options”) with…

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: [2001] NSWSC 1114
Decision Date: 4 December 2001

CaseChat Overview and Summary

Glensaugh Pty Ltd sought damages against the Registrar-General for an alleged error in the amendment of the Register, which incorrectly indicated a reserved road, impacting their property. The dispute centred around the availability of damages under sections 126 or 127 of the Real Property Act, and the implications of the lost opportunity to sell part of their land as a golf course. The court was tasked with determining the proper legal framework for assessing damages for such a loss of opportunity, as well as the appropriate methodology for calculating the damages, including whether a 10% discount was applicable.

The court examined the causation issues inherent in the claim, considering whether the Registrar-General's alleged error was the direct cause of the loss of the chance to sell the land as a golf course. The court also deliberated on the valuation issues, particularly how to assess the loss at the time of the deprivation. The court held that the damages should be assessed at the time of the alleged error, rather than at the time of trial, and determined that a 10% discount was appropriate in this context to account for the speculative nature of the lost opportunity.

The court ultimately concluded that the damages should be calculated based on the lost profit from the sale of the land as a golf course, less the discount. It found that the plaintiff was entitled to damages under section 126 of the Real Property Act. The court awarded damages to Glensaugh Pty Ltd, reflecting the loss of the chance to sell the property as a golf course, subject to the 10% discount. The exact amount of damages was determined through a detailed assessment of the lost profit potential at the time of the alleged error.

Orders