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Kovarfi v BMT & Associates Pty Ltd

Kovarfi v BMT & Associates Pty Ltd

Case [2012] NSWSC 1101 14 September 2012

Civil Litigation & Procedure

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Supreme Court

New South Wales

Case Title: Kovarfi v BMT & Associates Pty Ltd

Medium Neutral Citation: [2012] NSWSC 1101

Hearing Date(s): 30 August 2011; supplementary written submissions closed 21 June 2012

Decision Date: 14 September 2012

Jurisdiction:

Before: McCallum J

Decision:
Proceedings dismissed

Catchwords:
LIMITATION OF ACTIONS - cause of action founded on tort - where action brought on cause of action purportedly assigned by original assignor more than six years before commencement of proceedings - action statute-barred

NEGLIGENCE - causation - whether properly pleaded

PERSONAL PROPERTY - alienation of personal property - assignment of choses in action - whether bare right of action in tort capable of being assigned

Legislation Cited: Building and Construction Industry Security of Payment Act 1999
Conveyancing Act 1919
Limitation Act 1969
Uniform Civil Procedure Rules 2005

Cases Cited: Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (No 2) [1994] FCA 1463 (unreported, 7 November 1994)
Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246
Ellis v Torrington [1920] 1 KB 399
Equuscorp Pty Ltd v Haxton; Equuscorp Pty Ltd v Bassat; Equuscorp Pty Ltd v Cunningham's Warehouse Sales Pty Ltd [2012] HCA 7
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Foyster v ANZ Banking Group [1999] NSWSC 300
Hillebrand v Penrith Council [2000] NSWSC 1058
Kenny & Good Pty Ltd v MGICA (1992) Ltd [1999] HCA 25; (1999) 199 CLR 413
Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31; (2010) 241 CLR 357
National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd (No 1) [1995] FCA 1628
Poulton v Commonwealth [1953] HCA 101; (1953) 89 CLR 540
Rickard Constructions v Rickard Hails Moretti [2004] NSWSC 1041; (2004) 220 ALR 267
Ross v Cook [2009] NSWSC 671
Salfinger v Niugini Mining (Australia) Pty Ltd (No 3) [2007] FCA 1532
Trendtex Trading Corporation v Credit Suisse [1982] AC 679
Wardley;
Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514

Texts Cited:

Category: Interlocutory applications

Parties: Edith Kovarfi (plaintiff)
BMT & Associates Pty Ltd (first defendant)
Thomas Charles Plenty (second defendant)

Representation

- Counsel: Plaintiff in person
J Williams (defendants)

- Solicitors: Yeldham Price O'Brien Lusk (defendants)

File number(s): 347570 of 2010

Publication Restriction: None

JUDGMENT

HER HONOUR: These are proceedings for professional negligence arising out of the commercial development of a property at Queenscliff.
The proceedings were commenced by statement of claim filed on 20 October 2010. By notice of motion dated 15 June 2011, the defendants seek an order that the proceedings be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 or, alternatively, that the statement of claim be struck out pursuant to r 14.28. Failing the granting of either of those orders, the defendants seek security for their costs of the proceedings. This judgment determines those applications.
The plaintiff 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.

Continue reading Kovarfi v BMT & Associates Pty Ltd

Details

AGLC: Kovarfi v BMT & Associates Pty Ltd [2012] NSWSC 1101
Case: [2012] NSWSC 1101
Decision Date: 14 September 2012

CaseChat Overview and Summary

Kovarfi brought a claim against BMT & Associates Pty Ltd in the Federal Circuit and Family Court of Australia, alleging that the defendant was negligent in its conduct of a property transaction. The claim was based on an alleged assignment of a cause of action by the original assignor, more than six years before the commencement of the proceedings. The defendant sought to have the claim dismissed on the basis that it was statute-barred and that the plaintiff had not properly pleaded causation.

The court was required to determine whether the cause of action was statute-barred, whether the bare right of action in tort was capable of being assigned, and whether the plaintiff had properly pleaded causation. The court found that the cause of action was statute-barred, as the limitation period had expired more than six years before the commencement of the proceedings. The court held that the bare right of action in tort was not capable of being assigned, as it was not a chose in action. Furthermore, the court found that the plaintiff had not properly pleaded causation, as the plaintiff had not provided sufficient details of the factual basis for the claim.

The court dismissed the claim and made no orders for costs. The court held that the plaintiff's claim was statute-barred, that the bare right of action in tort was not capable of being assigned, and that the plaintiff had not properly pleaded causation. The court found that the plaintiff's claim was without merit and that there were no grounds for the plaintiff to succeed in the proceedings. The court held that the defendant was entitled to a dismissal of the claim with costs.

Orders