Loh Min Choo v State of New South Wales [2011] NSWSC 1477

Loh Min Choo v State of New South Wales [2011] NSWSC 1477

The limitation periods in s 173(2) are determined by reference to the failure to account claimed by the claimant, not by any earlier asserted failure in relation to the same money. The claimed failure occurred when Affluent Properties failed to account for the deposit after completion of the Rose Bay sale, at the earliest on 17 November 2006, and the plaintiffs made their claim on 5 November 2008. The plaintiffs did not have actual awareness before 5 November 2007 that $582,973.59 had not been deposited into Mr Lim's NAB account or that the overcharging constituted a failure to account, so the claims were within time. The overcharging was a failure to account and, together with the...

Jurisdiction
Australia
Judgment Date
01 December 2011
Procedural Posture
Common Law Proceedings Against the State of New South Wales in Relation to Claims Against the Property Services Compensation Fund for Pecuniary Loss Caused by a Real Estate Agent's Failure to Account / Principal Judgment After Hearing; Pecuniary Loss Determined, Costs Reserved and Short Minutes Directed
Outcome
Plaintiffs' claims were found to be within time; pecuniary loss without interest or costs was assessed at $670,960.93; costs were reserved.
Legal Topics
['failure to Account by Real Estate Agent' 'claims Against Property Services Compensation Fund' 'time Limits Under S 173(2) of the Property, Stock and Business Agents Act 2002' 'actual Awareness of Failure to Account' 'pecuniary Loss, Interest and Costs' 'limits on Recovery Under S 175 of the Property, Stock and Business Agents Act 2002']
['limitation' 'property and Real Estate Agents' 'statutory Compensation Fund' 'civil Procedure'] ['failure to Account by Real Estate Agent' 'claims Against Property Services Compensation Fund' 'time Limits Under S 173(2) of the Property, Stock and Business Agents Act 2002' 'actual Awareness of Failure to Account' 'pecuniary Loss, Interest and Costs' 'limits on Recovery Under S 175 of the Property, Stock and Business Agents Act 2002']

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Procedural Posture

Common Law Proceedings Against the State of New South Wales in Relation to Claims Against the Property Services Compensation Fund for Pecuniary Loss Caused by a Real Estate Agent's Failure to Account / Principal Judgment After Hearing; Pecuniary Loss Determined, Costs Reserved and Short Minutes Directed

Legal Issues

  1. 1 ["Whether the plaintiffs' claims against the Property Services Compensation Fund were made within the limitation periods in s 173(2) of the Property, Stock and Business Agents Act 2002" 'When the relevant failure to account occurred' 'When the plaintiffs became aware of the relevant failure to account' 'Whether overcharging by Affluent Properties was a failure to account causing pecuniary loss' 'Whether interest earned on the deposit and legal costs formed part of pecuniary loss' 'How the recovery limit in s 175 operated where husband and wife plaintiffs claimed pecuniary loss']

Ratio Decidendi

The limitation periods in s 173(2) are determined by reference to the failure to account claimed by the claimant, not by any earlier asserted failure in relation to the same money. The claimed failure occurred when Affluent Properties failed to account for the deposit after completion of the Rose Bay sale, at the earliest on 17 November 2006, and the plaintiffs made their claim on 5 November 2008. The plaintiffs did not have actual awareness before 5 November 2007 that $582,973.59 had not been deposited into Mr Lim's NAB account or that the overcharging constituted a failure to account, so the claims were within time. The overcharging was a failure to account and, together with the...

Court Disposition

Plaintiffs' claims were found to be within time; pecuniary loss without interest or costs was assessed at $670,960.93; costs were reserved.

Orders

  • ["I find that the plaintiffs' pecuniary loss, without interest or costs, amounts to $670,960.93." 'Costs of these proceedings are reserved.' 'The parties are to bring in short minutes in accordance with my directions and make submissions as to the amount of costs of the equity proceedings and costs of these...