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Ross v Cook

Ross v Cook

Case [2009] NSWSC 671 16 July 2009

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CITATION: Ross v Cook [2009] NSWSC 671

HEARING DATE(S): 10 July 2009

JUDGMENT DATE :
16 July 2009

JURISDICTION: Common Law

JUDGMENT OF: Davies J

DECISION: Each cause of action set out in the Statement of Claim against the First and Second Defendants accrued subsequent to 26 July 2004

CATCHWORDS: PROFESSIONS AND TRADES - valuers - duty of care - loan made in reliance on negligent valuation - default - when cause of action arises against valuer. TORTS - negligence - joint or several tortfeasors - proportionate liability provisions of Civil Liability Act and Trade Practices Act - concurrent wrongdoers - when liability arises - whether Part 4 Civil Liability Act engaged. LIMITATION OF ACTIONS - contracts, torts and personal - when time begins to run.

LEGISLATION CITED: Civil Liability Act 2002
Fair Trading Act 1987
Law Reform (Miscellaneous Provisions) Act 1946
Limitation Act 1969
Trade Practices Act 1974 (Cth)

CASES CITED: Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191
Bell v Peter Browne & Co [1990] 22B 495
Forster v Outred [1982] 1 WLR 86
HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640
Kenny & Good Pty Limited v MGICA (1999) 199 CLR 413
Key Nominees Pty Ltd v Ace Insurance Ltd [2008] NSWDC 62
New South Wales Aboriginal Land Council v Ace Global Markets Limited & Ors [2005] NSWSC 39
Reinhold v New South Wales Lotteries Corporation (No. 2) [2008] NSWSC 187
Wardley Australia Ltd v Western Australia [1992] 175 CLR 514
Winnote Pty Ltd v Page (2006) 68 NSWLR 531

PARTIES: Marie Ross (Plaintiff)
Michael Cook & Clydoc Pty Ltd (Defendants)

FILE NUMBER(S): SC 06/20066

COUNSEL: M Daley (Plaintiff)
R A Cavanagh (Defendants)

SOLICITORS: Duncan Scott (Plaintiff)
Gilchrist Connell (Defendants)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DAVIES J

Thursday 16 July 2009

06/20066 MARIE ROSS V MICHAEL COOK AND ANOR

JUDGMENT

1 The Plaintiff lent the sum of $1,701,279 to a company called J & A Property Group Pty Ltd to assist that company in the purchase of a property at 253 Old South Head Road, Bondi and the Plaintiff obtained a mortgage over the property to secure the loan. The Plaintiff alleges that the loan was made in reliance on a valuation carried out by the First Defendant who was employed as a valuer by Clydoc Pty Ltd, the Second Defendant, which company carried on the business of a property valuer under the name of PRD Nationwide Valuations. The Defendants valued the property at $2,950,000.

2 The Plaintiff alleges that the valuation was negligently carried and that s 42 of the Fair Trading Act 1987 (NSW) and s 52 of the Trade Practices Act 1974 were thereby breached.

3 In their defences, the Defendants have relied (inter alia) on the proportionate liability provisions in Part 4 of the Civil Liability Act 2002 and have identified the other parties who, it is alleged, are also liable in respect…

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 Ross v Cook

Details

AGLC: Ross v Cook [2009] NSWSC 671
Case: [2009] NSWSC 671
Decision Date: 16 July 2009

CaseChat Overview and Summary

In Ross v Cook, the dispute involved a valuer, Cook, who was accused of negligently providing a valuation that led to financial loss for Ross. The case was heard in the Supreme Court of New South Wales. Ross, who had received a loan based on the valuation, argued that the loan default constituted the actionable injury, thereby triggering the limitation period for the negligence claim against Cook.

The primary legal issues before the court were whether the cause of action for negligence arose when the valuation was made or when the subsequent loan default occurred. Additionally, the court needed to determine if the proportionate liability provisions of the Civil Liability Act 2002 (NSW) and the Trade Practices Act 1974 (Cth) applied to concurrent wrongdoers and when such liability would arise. Another issue was whether Part 4 of the Civil Liability Act 2002 (NSW) was engaged in the context of the facts of the case.

The court found that the cause of action for negligence arose at the time of the negligent valuation, not at the time of the loan default. The court held that the limitation period began to run from the date of the valuation. It was also determined that the proportionate liability provisions applied, meaning that if multiple parties were negligent, their liability could be apportioned according to their degree of fault. The court concluded that Part 4 of the Civil Liability Act 2002 (NSW) was not engaged in this scenario. The case was remitted for trial on the issue of damages.

The final orders of the court were to clarify the timing of the limitation period, to confirm the applicability of the proportionate liability provisions, and to remit the matter for trial to determine the quantum of damages. The court did not award any costs in this interlocutory decision.

Orders