FEDERAL COURT OF AUSTRALIA
Valcorp Australia Pty Ltd v Angas Securities Limited [2012] FCAFC 22
Citation: Valcorp Australia Pty Ltd v Angas Securities Limited [2012] FCAFC 22 Appeal from: Angas Securities Limited v Valcorp Australia Pty Ltd [2011] FCA 190
Angas Securities Limited v Valcorp Australia Pty Ltd (No 2) [2011] FCA 248Parties: VALCORP AUSTRALIA PTY LTD (ACN 008 147 671) v ANGAS SECURITIES LIMITED (ACN 091 942 728), BARKER MORTGAGES PTY LTD (ACN 106 071 676) and KWS CAPITAL PTY LTD (ACN 114 209 808) File number: SAD 59 of 2011 Judges: JACOBSON, SIOPIS AND NICHOLAS JJ Date of judgment: 9 March 2012 Catchwords: TRADE PRACTICES – valuation of property – financiers made advances in reliance of valuation – no reasonable grounds for valuation – conduct of valuer fell below standard of reasonably competent valuer –financiers did not carry out adequate inquiries as to whether borrowers could service the loans – borrowers defaulted within two months of the loans being made – contributory negligence of lenders – apportionment of the responsibility for loss between the valuer and each lender – damages for loss of opportunity of some value – whether evidence discharged the onus of proof. Legislation: Trade Practices Act 1974 (Cth) ss 52, 82, 82(1B)
Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) ss 7(1), 7(2)Cases cited: Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 592
Liftronic Pty Ltd v Unver (2001) 179 ALR 321
Pennington v Norris (1956) 96 CLR 10
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332
Tabet v Gett (2010) 240 CLR 537
La Trobe Capital & Mortgage Corporation Limited v Hay Property Consultants Pty Ltd (2011) 190 FCR 299
St George Bank Ltd v Quinerts Pty Ltd (2009) 25 VR 666Date of hearing: 17 August 2011 Place: Adelaide Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 184 Counsel for the Appellant: Mr I Robertson SC and Ms G Walker Solicitor for the Appellant: Fox Tucker Lawyers Counsel for the First, Second and Third Respondents: Mr MCJ Hoffman QC and Mr BC Roberts
Solicitor for the First, Second and Third Respondents: Madsen Rowley
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 59 of 2011
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: VALCORP AUSTRALIA PTY LTD (ACN 008 147 671)
AppellantAND: ANGAS SECURITIES LIMITED (ACN 091 942 728)
First RespondentBARKER MORTGAGES PTY LTD (ACN 106 071 676)
Second RespondentKWS CAPITAL PTY LTD (ACN 114 209 808)
Third Respondent
JUDGES:
JACOBSON, SIOPIS AND NICHOLAS JJ
DATE OF ORDER:
9 MARCH 2012
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.The appeal is allowed in part, but is otherwise dismissed.
2.The orders made by Besanko J on 17 March 2011 are set aside.
3.Within 7 days, the parties are to provide a minute of orders which gives effect to the reasons of the Court.
4.Within 7 days,…
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- Case
- [2012] FCAFC 22
- Decision Date
CaseChat Overview and Summary
The court held that the valuer’s conduct fell below the standard of a reasonably competent valuer, and that the financiers did not carry out adequate inquiries as to whether the borrowers could service the loans. The court found that the evidence discharged the onus of proof, and that the loss should be apportioned between the valuer and the financiers. The court held that the primary judge erred in finding that the financiers were not contributorily negligent, and that the damages awarded to the respondents should be reduced by 25% on account of their contributory negligence. The appeal was allowed in part, but was otherwise dismissed. The orders made by Besanko J on 17 March 2011 were set aside, and the parties were required to provide a minute of orders which gave effect to the reasons of the Court within 7 days. The parties were also required to file and serve submissions not exceeding 4 pages on the question of costs within 7 days.
Orders
Orders of the court
1. The appeal is allowed in part, but is otherwise dismissed.
2. The orders made by Besanko J on 17 March 2011 are set aside.
3. Within 7 days, the parties are to provide a minute of orders which gives effect to the reasons of the Court.
4. Within 7 days, each party is to file and serve submissions not exceeding 4 pages, on the question of costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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