Rubino v Pineview Property Holdings Pty Ltd

Supreme Court

New South Wales

Medium Neutral Citation:

Rubino & Anor v Pineview Property Holdings Pty Ltd & Ors [2016] NSWSC 904

Hearing dates:

11-14; 18-22; 26 April 2016; 17 and 18 May 2016; 16 and 17 June 2016

Decision date:

30 June 2016

Jurisdiction:

Equity

Before:

White J

Decision:

Refer to para [376] of judgment.

Catchwords:

REAL PROPERTY — Loss of interest in land — Claim for compensation out of Torrens Assurance Fund — Real Property Act s 129 — Plaintiffs transferred ownership of real property to second defendant — Second defendant mortgaged properties to secure loan — Proceeds of loan disbursed largely to the benefit of third, fourth and fifth cross-defendants to third cross-claim — Plaintiffs claim to have been deceived into signing transfer documents — Whether plaintiffs deprived of their interest in land by fraud — Plaintiffs intended second defendant to raise finance by becoming the registered proprietor of the properties and borrowing moneys on security of them — Signatures on transfer documents not procured by fraud — Claim against second defendant dismissed — Claim against Registrar General dismissed

 

TORTS — Negligence — Whether fourth defendant breached duty of care by failing to take reasonable care to ensure certificate of title used only as instructed — Solicitor not retained to advise on wisdom of proposed transaction — Certificate of title used only as instructed by plaintiffs — Whether fourth defendant had duty to disclose known facts concerning third cross-defendant to third cross-claim’s discredit — Plaintiffs had prior experience of third cross-defendant to third cross-claim’s business practices — No duty of care — No breach of duty in any event

    EQUITY — Breach of fiduciary duty — Deceit — Whether third, fourth and fifth cross-defendants to third cross-claim owed a fiduciary duty to cross-claimants to third cross-claim — Whether third cross-defendant to third cross-claim deceived first cross-claimant to third cross-claim — Whether excess borrowed moneys disbursed without authority — Excess of moneys borrowed to purchase plaintiff’s property intended to be used to discharge debts of plaintiffs and first cross-claimant to third cross-claim — Excess moneys disbursed by third cross-defendant to their own benefit without knowledge or authority of cross-claimants — Third, fourth and fifth cross-defendants to third cross-claim breached fiduciary duty owed to cross-claimants to third cross-claim — Third cross-defendants to third cross-claim deceived first cross-claimant to third cross-claim — Judgment in favour of cross-claimants to third cross-claim

Legislation Cited:

Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Consumer and Competition Act 2010 (Cth)
Environmental Planning and Assessment Act 1979 (NSW)
National Consumer Credit Protection Act 2009 (Cth)
Real Property Act 1900 (NSW)

Cases Cited:

Abigroup Pty Ltd v Abignano (1992) 39 FCR 74
Australia and New Zealand Banking Group Ltd v Huybers [2014] NSWSC 720
Australian Hardboards Ltd v Hudson Investment Group Ltd [2007] NSWCA 104; (2007) 70 NSWLR 201
Breen v Williams [1996] HCA 57; (1996) 186 CLR 71
Cassegrain, Felicity v Cassegrain, Denis [2016] NSWCA 71
Hardoon v Belilos [1901] AC…