Todd Hadley Pty Limited v Lake Maintenance (NSW) Pty Limited [2019] NSWSC 1764

Todd Hadley Pty Limited v Lake Maintenance (NSW) Pty Limited [2019] NSWSC 1764

The separate question was confined to a question of law, an order under r 28.2 had already been made, and there was a conflict in legal authority concerning the correct approach to whether loss or damage from an allegedly negligent or misleading mortgage valuation arises when the lender cannot recoup from the mortgaged property or only when recovery from the borrower is also not ascertainable. Those matters justified removal of the separate question into the Court of Appeal under r 1.21(1)(a) of the UCPR.

Jurisdiction
Australia
Judgment Date
03 December 2019
Procedural Posture
Civil Procedure Application in Supreme Court of New South Wales Common Law Jurisdiction / Notice of Motion Seeking Removal of a Separate Question Into the Court of Appeal
Outcome
Motion granted; separate question removed into the Court of Appeal; costs in the cause.
Legal Topics
['removal to Court of Appeal' 'separate Question of Law' 'mortgage Valuation' 'statute Barred Claims' 'loss or Damage']
['civil Procedure' 'professional Negligence' 'limitation of Actions'] ['removal to Court of Appeal' 'separate Question of Law' 'mortgage Valuation' 'statute Barred Claims' 'loss or Damage']

Case Brief

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Procedural Posture

Civil Procedure Application in Supreme Court of New South Wales Common Law Jurisdiction / Notice of Motion Seeking Removal of a Separate Question Into the Court of Appeal

Legal Issues

  1. 1 ['Whether the separate question ordered pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) should be removed into the Court of Appeal under r 1.21(1)(a) of the UCPR.' "Whether loss or damage in the mortgage valuation claim was sustained by the time of entry into the contract for sale of the property on 23 May 2012, with the consequence that the plaintiff's claims are statute barred."]

Ratio Decidendi

The separate question was confined to a question of law, an order under r 28.2 had already been made, and there was a conflict in legal authority concerning the correct approach to whether loss or damage from an allegedly negligent or misleading mortgage valuation arises when the lender cannot recoup from the mortgaged property or only when recovery from the borrower is also not ascertainable. Those matters justified removal of the separate question into the Court of Appeal under r 1.21(1)(a) of the UCPR.

Court Disposition

Motion granted; separate question removed into the Court of Appeal; costs in the cause.

Orders

  • ['The separate question ordered by the Court of Appeal in Todd Hadley Pty Limited v Lake Maintenance (NSW) Pty Limited [2019] NSWCA 262 be removed into the Court of Appeal for determination by the Court of Appeal pursuant to r 1.21(1)(a) of the UCPR.' 'Costs be costs in the cause.']