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Kirkland v Quinross Pty Ltd

Kirkland v Quinross Pty Ltd

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Case Copied 2 April 2008 57 min read

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CITATION: Kirkland v Quinross Pty Limited [2008] NSWSC 286

HEARING DATE(S): 28 March 2008

JUDGMENT DATE :
2 April 2008

JURISDICTION: Equity Division

JUDGMENT OF: Austin J

DECISION: See under heading "Conclusions".

CATCHWORDS: NEGLIGENCE - economic loss - whether solicitor requesting Registrar-General to correct lot numbers on strata plan owed duty of care to plaintiffs who later became mortgagees of a strata lot - TORRENS SYSTEM - Registrar-General's power to correct register by correcting references to lot numbers on a plan (s 12(1)(d1)) - whether plaintiffs entitled to claim compensation from solicitor under s 120 - whether plaintiffs entitled to recover compensation from Torrens Assurance Fund under s 129 - whether Court should grant leave nunc pro tunc under s 132(2) for proceedings to be commenced without prior administrative proceedings

LEGISLATION CITED: Real Property Act 1900 (NSW)
Civil Procedure Act 2005 (NSW)

CATEGORY: Principal judgment

CASES CITED: Austress Freyssinet Pty Ltd v Joseph [2007] NSWSC 1513
Bebonis v Angelos (2003) 56 NSWLR 127
Bryan v Maloney (1995) 182 CLR 609
Bullock v London General Omnibus Co [1970] 1 KB 264;
Challenger Managed Investments Ltd v Direct Money Corporation Pty Ltd (2003) 59 NSWLR 452; [2003] NSWSC 1072
Chandra v Perpetual Trustees Victoria Ltd [2008] NSWSC 178
Connell v Odlum [1993] 2 NZLR 257
Flounders v Millar [2007] NSWCA 232
FNCB-Waltons Finance Ltd v Crest Realty Pty Ltd (1987) 10 NSWLR 621
Fordyce v Fordham (2006) 67 NSW LR 497;
Gran Gelato Ltd v Richcliff (Group) Ltd [1992] Ch 560
Hill v Van Erp (1997) 188 CLR 159
March v E&MH Stramare Pty Ltd (1991) 171 CLR 506
Pirie v Registrar-General (1962) 109 CLR 619
Printy v Provident Capital Ltd [2007] NSWSC 287
Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622;
Reiffel v ACN 075 839 266 Ltd (2003) 132 FCR 437; 45 ACSR 67; [2003] FCA 194 at [69]\
Travel Compensation Fund v Tambree (2005) 224 CLR 627
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515

PARTIES: John Birch Kirkland (P1)
Jon Annette Kirkland (P2)
St George Bank Limited (D15)
Meyer Gutnick (D17)
Hama Holdings Pty Limited (D18)
Mark Ronald Frank Davidson (D22)
Registrar General (D23)
Michael David La Greca (D24)

FILE NUMBER(S): SC 1710 of 2006

COUNSEL: D Ronzani (P)
J Harris (D15)
A G Rogers with A Chee (D17 and D18)
G Curtin (D22)
G A Sirtes (D23)
M Callanan (Sol) (D24)

SOLICITORS:
Boyd House & Partners (P1 & P2)
St George Bank Limited (D15)
R L Kremnizer & Co (D17 & D18)
Ebsworth & Ebsworth (D22)
A Booth (D23)
Ellison Tillyard Callanan (D24)

- 41 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

WEDNESDAY 2 APRIL 2008

1710/06 JOHN BIRCH KIRKLAND & ANOR V QUINROSS PTY LTD & ORS

JUDGMENT

1 HIS HONOUR: By their Amended Statement of Claim filed 17 July 2006, the plaintiffs in part sought declarations and orders concerning rectification of…

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 286
Decision Date: 2 April 2008

CaseChat Overview and Summary

The case of Kirkland v Quinross Pty Ltd involved the plaintiffs, Kirkland, who were mortgagees of a strata lot that had been the subject of a mistake in its lot number. The defendant, Quinross, was the solicitor who had requested the Registrar-General to correct the lot number on the strata plan. The plaintiffs alleged that the error caused them economic loss when they were unable to register their mortgage over the lot, and sought compensation from both the solicitor and the Torrens Assurance Fund. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court were whether the solicitor owed a duty of care to the plaintiffs, and if so, whether the plaintiffs could claim compensation from the solicitor or the Torrens Assurance Fund. The court also considered whether it should grant leave nunc pro tunc for the plaintiffs to commence proceedings without prior administrative proceedings. The court needed to determine the scope of the solicitor's duty of care in requesting the Registrar-General to correct the lot number, and the extent of the plaintiffs' entitlement to compensation under the relevant sections of the Real Property Act 1900 (NSW).

The court found that the solicitor did owe a duty of care to the plaintiffs, as the plaintiffs were a foreseeable class of persons who could be affected by the solicitor's actions. The court held that the plaintiffs were entitled to claim compensation from the solicitor under section 120 of the Act, which provides for compensation for persons who suffer loss due to a solicitor's negligent acts or omissions. However, the court found that the plaintiffs were not entitled to recover compensation from the Torrens Assurance Fund under section 129, as the Fund only provides compensation for loss caused by errors in the Register itself, and not for errors in the plan. The court also declined to grant leave nunc pro tunc, finding that the plaintiffs should have followed the administrative proceedings outlined in section 132(2) of the Act.

The court ordered that the defendant solicitor pay compensation to the plaintiffs for their economic loss. The court did not make any orders in relation to the Torrens Assurance Fund or leave nunc pro tunc.

Orders