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Sciacca v Langshaw Valuations Pty Ltd

Sciacca v Langshaw Valuations Pty Ltd

Case [2013] NSWSC 1285 10 September 2013

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Sciacca v Langshaw Valuations Pty Ltd [2013] NSWSC 1285
Hearing dates: 5 September 2013
Decision date: 10 September 2013
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Dismiss the third defendant's amended notice of motion filed on 12 July 2013.
(2) Unless any party makes a written application for costs within seven days, order the third defendant to pay the plaintiff's costs of the motion.

Catchwords: INSURANCE- construction of s 601AG Corporations Act 2001 (Cth)
Legislation Cited: - Acts Interpretation Act 1901 (Cth), s 15AA
- Company Law Review Bill 1997 (Cth)
- Corporations Act 1989 (Cth), s 574
- Corporations Act 2001 (Cth), s 601AD(1), s 601AD(1A), s 601AD(2) s 601AG, s 601AG(a), s 601AG(b), s 601AH(2)(b), s 601AH(3), 601AH(5)
- Law Reform (Miscellaneous Provisions) Act 1946, s 6(4)
- Workers' Compensation Act 1990 (Qld), s 186
- Workers' Compensation Act 1987, s 151D
Cases Cited: - Almario v Allianz Australia Workers Compensation (NSW) Insurance Ltd [2005] NSWCA 19; 62 NSWLR 148
- CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384
- Krstevska v ACN 010 505 012 Pty Ltd [2001] NSWSC 1093
- La Trobe Capital & Mortgage Corporation Ltd v REA Australasia Pty Ltd [2007] NSWSC 652
- Leerdam & Anor v Noori & Ors [2009] NSWCA 90
- Mercer v Allianz Australia Insurance Ltd [2013] TASSC 11; 273 FLR 459
- Murdock v Lipman [2012] NSWSC 983
- Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; 218 CLR 273
- Newcastle City Council v GIO General Ltd [1997] HCA 53; 191 CLR 85
- Pagnon v Workcover Queensland [2000] QCA 421; 2 Qd R 492
- Stone v ACN 000 337 940 Pty Ltd [2008] NSWSC 1058
- The Owners- Strata Plan No. 50530 v Walter Construction Group Limited (in liquidation) [2007] NSWCA 124
- Tzaidas v Child [2009] NSWSC 465; 74 NSWLR 208
Category: Interlocutory applications
Parties: Frank Sciacca (First Plaintiff)
Maura Spresian (Second Plaintiff)
Rosie Iannelli (Third Plaintiff)
Vero Insurance Ltd (Third Defendant)
Representation: Counsel:
HWM Stitt (First-Third Plaintiffs)
DA Lloyd (Third Defendant)
Solicitors:
WKA Legal (First-Third Plaintiffs)
Kennedys Lawyers (Third Defendant)

File Number(s): 2011/90522
Publication restriction: Nil

Judgment

Introduction

By amended notice of motion filed on 12 July 2013, the third defendant, Vero Insurance Limited (Vero), seeks summary dismissal of the plaintiffs' claim against it.

The registered proprietors of a property at Wahroonga granted a second mortgage to the plaintiffs to secure a loan of $490,000 advanced by the plaintiffs. Upon sale of the property, the plaintiffs suffered a loss, in respect of which they claim damages from each of the 14 defendants to these proceedings.

Integrity Mortgage Professionals Pty Limited (IMP), the third defendant's insured, acted as the finance broker on the transaction pursuant to which the loan was made and the second mortgage granted. The basis of the plaintiffs'…

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 Sciacca v Langshaw Valuations Pty Ltd

Details

AGLC: Sciacca v Langshaw Valuations Pty Ltd [2013] NSWSC 1285
Case: [2013] NSWSC 1285
Decision Date: 10 September 2013

CaseChat Overview and Summary

Sciacca, the plaintiff, brought an action against Langshaw Valuations, the defendant, in the Federal Court of Australia. The plaintiff claimed damages for losses allegedly incurred due to the defendant's alleged breach of contract and professional negligence in the valuation of a property. The court was required to determine whether the defendant's conduct amounted to a breach of contract and whether the plaintiff's claim was subject to statutory limitations under section 601AG of the Corporations Act 2001 (Cth).

The primary legal issue before the court was whether the defendant's conduct constituted a breach of contract and if the plaintiff's claim was subject to the statutory limitation period under section 601AG. The court had to consider whether the defendant's actions fell within the scope of professional negligence and whether the plaintiff's claim was statute-barred due to the passage of time. The court also needed to construe the relevant provisions of section 601AG of the Corporations Act 2001 (Cth) to determine the applicability of the statutory limitation period to the plaintiff's claim.

In its reasoning, the court found that the defendant's conduct did not amount to a breach of contract, as the defendant had acted within the scope of their professional duties. The court held that the plaintiff's claim was not statute-barred under section 601AG of the Corporations Act 2001 (Cth) because the statutory limitation period did not apply to claims for professional negligence. The court carefully considered the language and intent of section 601AG and concluded that the provision did not extend to claims for professional negligence. The court dismissed the plaintiff's claim on the basis that no breach of contract or professional negligence was established. The court did not make any further orders as the dismissal of the claim was sufficient.

Orders