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Trani v Trani

Trani v Trani

Case [2019] VSC 723 26 November 2019

Admissibility of Evidence

Compensatory Damages

Property Law

Civil Litigation & Procedure

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59 VR 362

TRANI and Another v TRANI and Others Supreme Court of VictoriaForbes J 22, 23 October, 26 November 2019[2019] VSC 723Negligence — Damages — Breach of duty of care — Assessment of damages — Proportionate liability — Transfer of land without knowledge or consent of all owners — Licensed conveyancer negligent but not fraudulent — Wrongs Act 1958 (Vic), ss 24AF, 24AH, 24AI, 23AM.Consumer law — False or misleading representations regarding transfer of land — Whether necessary for a person to be misled or deceived — Whether representations made in connection with the supply of goods or services — Competition and Consumer Act 2010 (Cth), sch 2, ss 18, 29.

The plaintiffs and first defendant were siblings and equal owners of an investment property. The first defendant, purporting to act on behalf of herself and the plaintiffs, instructed the third defendant, a licensed conveyancer, to prepare a sale contract, execute the transfer of the land and disburse the proceeds of the sale to the first and second defendants. The second defendant was a company of which the first defendant was sole director and shareholder. The property sale occurred without the knowledge or consent of the plaintiffs.

The first defendant represented to the third defendant that she had the authority to act on behalf of the plaintiffs. The third defendant acted on the first defendant’s instructions without verifying that the plaintiffs had agreed and consented to the sale and that they had authorised the first defendant to act on their behalf.

Judgment in default of filing a defence was entered against the first and second defendants and an assessment of damages was required. The plaintiffs also claimed negligence and breach of duty of care by the third defendant. The third defendant admitted that she owed a duty of care to the plaintiffs and admitted breach of that duty, subject to the Court being satisfied of fraud of the first defendant. The plaintiffs also claimed damages from the third defendant for breach of the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law), alleging that representations by her to the Registrar of Titles in the course of completing the conveyancing transaction were misleading or deceptive in breach of s 18 of the Australian Consumer Law or a false or misleading representation in connection with the acquisition of goods or services, in breach of s 29 of that Law.

Part IVAA of the Wrongs Act 1958 (Vic) (Wrongs Act) provided for the apportionment of liability of concurrent wrongdoers in cases defined by s 24AF(1) as:

(a)
a claim for economic loss or damage to property in an action for damages (whether in tort, in contract, under statute or otherwise) arising from a failure to take reasonable care; and
(b)
a claim for damages for contravention of section 18 of the Australian Consumer Law (Victoria).

Held:

First and second defendants

(1)
Each plaintiff was…

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

AGLC: Trani v Trani [2019] VSC 723
Case: [2019] VSC 723
Decision Date: 26/11/2019

CaseChat Overview and Summary

Marco and Luciano Trani sued their sister Patrizia Trani and two companies she controlled, alleging that she had fraudulently sold their jointly-owned property without their knowledge or consent, and that the conveyancer, the third defendant, was negligent in completing the transfer of the property. Judgment in default of filing a defence was entered against the first and second defendants, and an assessment of damages was required. The third defendant admitted liability for breach of duty of care and for breach of the Australian Consumer Law. The court found that each plaintiff was entitled to $450,000, reflecting their share of the gross sale price of the property, as the best evidence of the market value of the property. The first and second defendants were found to be jointly and severally liable for all of the damages awarded. The court found the third defendant was a concurrent wrongdoer and that the claim against her was an apportionable claim under Part IVAA of the Wrongs Act 1958 (Vic) (Wrongs Act). The court found the third defendant's proportionate responsibility for the loss or damage claimed was 15%. The court found that the claim against the third defendant for breach of s 18 of the Australian Consumer Law was made out, but that the claim against the third defendant for breach of s 29 of the Australian Consumer Law was not made out.

Orders