Recent Cases

Ausbao (286 Sussex Street) Pty Ltd v The Registrar General of New South Wales [2023] NSWCA 18 (17 February 2023) (Bell CJ, Beech-Jones and Mitchelmore JJA)


Catchwords:


LAND LAW – Torrens title – compensation for loss of interest in land – Torrens assurance fund – circumstances in which compensation is not payable – where the loss or damage arises because of an error or miscalculation in the measurement of land – Real Property Act 1900 (NSW), s 129(2)(e) – where developer purchased land in the Sydney CBD for $55 million – where Deposited Plan referred to in the folios for four titles recorded total site area of the land as 1337.4m2 – where developer attributed considerable significance to the total site area in formulating the purchase price – developer subsequently discovered that true total site area of the land was 1255.9m2 – inaccurate statement of area in plan referred to in one of the folios caused by transposition errors by officers of the Registrar General in 1978 and 1995 – developer brought claim for compensation from the Torrens assurance fund – whether developer’s loss arose because of an error or miscalculation in the measurement of land – whether “measurement” refers to the fact of an erroneous statement of the dimensions and area of land or merely an error in the process of determining the dimensions or area – where s 129(2)(e) was introduced for a remedial purpose – where Torrens register disclaims accuracy in respect of dimensions and areas of land – extent to which the loss or damage is a consequence of any act or omission by the claimant – Real Property Act 1900 (NSW), s 129(2)(a) – whether the Appellant’s loss or damage was a consequence of its own act or omission – where the risk of an erroneous statement of area on Deposited Plan was real albeit rare – where potential adverse consequences of materialisation of that risk were severe for developer – whether s 129(2)(a) of the Real Property Act 1900 (NSW) establishes a regime for the apportionment of liability between claimant and Registrar General – s 129(2)(a) lacks reference to any process by which a court would undertake apportionment exercise – whether registration of Deposited Plan occurs in the execution or performance of Registrar General’s functions or duties under the Real Property Act 1900 (NSW) – whether registration of Deposited Plan occurs in the operation of the Real Property Act 1900 (NSW) – where Registrar General is required to make a record of a description of land in a folio of the Register – Real Property Act 1900 (NSW), s 32(1)(a)

WORDS AND PHRASES – “measurement” – Real Property Act 1900 (NSW), s 129(2)(e)