Ausbao (286 Sussex Street) Pty Ltd v The Registrar General of New South Wales

Background

1. The following matters were either common ground or the subject of unchallenged findings by the primary judge.
2. The Appellant, Ausbao (286 Sussex Street) Pty Ltd, was incorporated for the purpose of acquiring and redeveloping land at 286 Sussex Street in the City of Sydney (the "Land"). [1]
3. On 26 November 2013, the Appellant purchased the Land for $55 million. The Land was described in the contract for sale by reference to four lots in specified deposited plans (also known as "DPs"). Those deposited plans described the area of each of the four parcels that made up the Land as having a total site area of 1,337.4m2. After the completion of the contract for sale, the Appellant discovered that the total site area of the Land was only 1,255.9m2. The primary judge noted that the Appellant treated small errors in the statement of areas for three of the lots as irrelevant. [2] The Appellant's claim for compensation was based on its discovery that one of the lots, being lot 1 in DP 657427 ("Lot 1"), has a site area of 502.3m2 rather than 588m2 as shown on the plan for Lot 1 (the "Plan"). This is a difference of 85.7m². [3]
4. The Land was offered for sale on the market via an information memorandum (the "Memorandum") that was circulated to potential buyers, including the Appellant, on the basis that redevelopment for commercial or combined commercial and residential purposes represented its highest and best use. The area of the Land was stated to be 1,337.4m2 in the Memorandum. [4] The Memorandum included a disclaimer "to the effect that potential purchasers must take note that the figures and calculations contained therein were provided from external sources and had not been verified in any way." [5]
5. The computer folios and the deposited plans for the four lots were included in an electronic data room (the "Data Room") inspected by the Appellant for the purpose of making its bid in response to the Memorandum. They were also annexed to the contract for sale. The primary judge accepted that the Appellant made its bid to purchase the Land based upon its inspection of the deposited plans for the four lots and determined its bid price on the basis that the site area was 1,337.4m2. The primary judge also accepted that the "final estimated floor area of the redevelopment was a critical factor in [the Appellant's] assessment of the market value of the completed development" and, as a consequence, of the price the Appellant was prepared to pay for the land. [6]
6. The Appellant's statement of claim contended that its loss or damage was the approximate sum of $5 million to $7.5 million, comprising the difference in the amount it paid for the Land (ie, $55 million) on the basis of the misdescribed area of 1,337.4m2 and the amount it would have paid if it had known that the Land only had an area of 1255.9m2. The Appellant also pleaded that it incurred additional stamp duty and costs. However, the primary judge observed that, at the hearing, the Appellant "changed its claim to one based upon the value of the chance that it lost of succeeding in acquiring the Land for a lesser price than $55 million", using the true site area of the Land as 85.7m2 less than 1,337.4m2. [7]

The Misstatement of the Area of Lot 1

1. The index of material included in the Data Room listed four title searches in the forms of folios of the Register bearing the date "20.06.13" and five "Plans". The title search for "Folio: 1/657427" (ie, Lot 1) included, under the heading "Land", the following description: "Lot 1 in Deposited Plan 657427 Local Government Area Sydney Parish of St Andrew County of Cumberland Title Diagram DP657427."
2. According to the index for the Data Room and an expert retained by the Appellant, the "Plan" (ie, the Deposited Plan for Lot 1 in DP657427) consisted of two "sheets". [8] The first sheet ("Sheet 1 of 2 DP657427") was entitled "Vol 13683 Folio 1 Plan Showing Location of Land" and was stamped "Cancelled". It also bore a note which stated "Prepared "2-6-1995" and "[t]his plan has been created to provide a unique identifier to enable the issue of an Automated Torrens Title for the Land comprised in folio of the Register Volume 13683 Folio 1". This sheet also included the following diagram:
3. It was accepted that the figure of 588m2 in this plan was erroneous. The correct size was 502.3m2.
4. The second sheet (ie, "Sheet 2 of 2 DP 657427") was a Certificate of Title for "Vol 13683 Fol 1". It was stamped "Cancelled see auto folio". It specified that it was issued on "23 8 1978" and that "Prior Title" was recorded in "Vol 4290 Folio 24". It also bore a note identical to the note on sheet 1, stating "Prepared 2-6-1995" etc. Under the heading "Estate and Land Referred To", it described the land in terms that are not necessary to recount.
5. As it is of significance to both the grounds of appeal and the Registrar General's notice of contention it is necessary to set out the effect of the evidence which the primary judge received, and appeared to accept, about the origins of these documents and the misstatement of area. [9]
6. It seems that Lot 1 formed part of the land in Certificate of Title Volume 4290 Folio 24, which was issued on 13 June 1929. (This volume and folio number is referred to in the cancelled Certificate of Title forming sheet 2 as noted above.) The land in Certificate of Title Volume 4290 Folio 24 was stated to be an estate in fee simple in the land shown as Lot A in the plan that accompanied Transfer B816491. The plan that accompanied this Transfer was catalogued as file plan DP 181693. Consequently, the land in Certificate of Title Volume 4290 Folio 24 was Lot A in DP 181693, which was drawn and edged red in the Certificate of Title. This land was described as having an area of 23.25 "perches" which converts to approximately 588m2.

Statutory Provisions

1. The relevant provisions of the RP Act dealing with the Register, as established under s 31B, have changed over the period the subject of the above events, especially as a result of the progressive phasing out of Certificates of Title. Despite this, neither party to the appeal suggested that anything of significance turned on the series of legislative amendments that gave effect to that policy and, except as set out below, the issues in dispute on the appeal turned on the current provisions of the RP Act (and the Conveyancing Act 1919 (NSW)). At this point, it suffices to state that, with effect from 11 October 2021, all references to certificates of title were removed from the RP Act (by operation of the Real Property Amendment (Certificates of Title) Act 2021 (NSW)).
2. Subsection 31B(1) of the RP Act obliges the Registrar General to cause a "Register" to be maintained for the purposes of the RP Act. Subsection 31B(2) provides that it shall be comprised of, inter alia, "folios" and "dealings" registered under the RP Act or any other Act. "Dealing" is defined by s 3(1) as being any "instrument" other than a grant, caveat or priority notice, including an electronic form of that instrument, which is registrable or capable of being made registrable under the RP Act or in respect of which any recording in the Register is, by the RP Act or any other legislation, required or permitted to be made. "Instrument" is defined by s 3(1) of the RP Act as "[a]ny grant, conveyance, assurance, deed, map, plan, will, probate, or exemplification of will, or any other document in writing or in electronic form relating to the disposition, devolution or acquisition of land or evidencing title to land." As at both of 1995 and 2000, that definition was not relevantly different.
3. Section 32 of the RP Act deals with "folios of the Register". Subsection 32(1) provides: "(1) The Registrar-General creates a folio of the Register for land by making a record of - (a) a description of the land and of the estate or interest therein for which it is created, (b) a description of the proprietor for the time being of the estate or interest and the fact that any such proprietor is a minor if the Registrar-General knows that to be the case, and (c) such particulars, as the Registrar-General thinks fit, of - (i) other estates or interests, if any, affecting the land, and (ii) other information, if any, that relates to the land or any estate or interest therein and is included in that record pursuant to this or any other Act (including an Act of the Parliament of the Commonwealth) or an instrument made under any such Act, and by allocating a distinctive reference to the record so made." (emphasis added)

The Primary Judgment

1. In Lincu v Registrar-General [2019] NSWSC 568; (2019) 19 BPR 39,351, Kunc J observed (at [105]) that the determination of a claim under s 129 involves a "two stage inquiry", namely that the claimant must first establish that it has suffered loss or damage falling within one of the sub-paragraphs of s 129(1) and, if so, then compensation will be paid unless it is shown that it is not payable in whole or in part by reason of any of the provisions of s 129(2) (see also Kumar v Registrar-General [2021] NSWSC 1103 at [61]; (2021) 20 BPR 41,609; "Kumar"). The primary judge adopted that approach. [16]

First Stage - Section 129(1)

1. Before the primary judge, the Appellant contended that it was entitled to compensation pursuant to either or both of s 129(1)(a) and s 129(1)(c). With respect to s 129(1)(a), the Appellant contended that the misstatement of the area of Lot 1 arose from an "act … of the Registrar-General in the execution or performance of his or her functions or duties under [the RP Act] in relation to the land", specifically the preparation of the Plan and its use in the creation of the computer folio for Lot 1 in the exercise of the powers and functions referred to in s 31B. [17] With respect to s 129(1)(c), the Appellant contended that the statement of the incorrect area in the Plan was an error or misdescription in the Register in relation to the subject land. [18]
2. The Registrar General's response to the Appellant's contentions was three-fold. First, the Registrar General contended that any loss or damage suffered by the Appellant was not occasioned "as a result of the operation of [the RP Act] in respect of [the] land" because it was not caused by the automatic operation of some provision of the RP Act that affects title to land such as the guarantee of indefeasibility in s 42. [19]
3. Second, the Registrar General submitted that the Plan was registered under Division 3 of Part 23 of the Conveyancing Act, specifically s 195G, such that any loss or damage suffered by the Appellant did not arise "as a result of the operation" of the RP Act, but from its registration under the Conveyancing Act. [20] The making of that submission by the Registrar General touched off a significant dispute between the parties about whether or not the Plan was registered in the Register of Plans under s 195G of the Conveyancing Act.
4. Third, the Registrar General submitted that it had not engaged in a relevant act or omission unless it was under some duty or obligation, imposed by the RP Act, to include a statement of the area of the relevant land in the Register, and that in the present case there was none. [21]
5. The primary judge rejected the first of these submissions as unnecessarily restricting the scope of the eligibility for compensation provided for by s 129. Instead, his Honour held that "the operation of the [RP] Act" as referred to in s 129(1) "mean[s] the general administration of the Act in so far as it relates to the issue of official searches". [22] His Honour rejected the third of these submissions for similar reasons. The primary judge found that the inclusion by an officer of the Registrar General of the incorrect area of Lot 1 in the Plan was a "step taken in recording the description of the Lot in the folio of the Torrens Register, as was required by s 32(1)(a)", even though "it was not specifically required by the [RP Act] and was only a step chosen by the officer as the appropriate means for the Registrar-General to comply with the duty imposed by s 32(1)(a)". [23]

Second Stage - Section 129(2)

1. The Registrar General relied on various provisions of s 129(2) of the RP Act as excluding the Appellant's claim.
2. First, the Registrar General contended that any loss or damage suffered by the Appellant arose "because of an error or miscalculation in the measurement of land" (s 129(2)(e)). The primary judge upheld that contention and this conclusion was sufficient to warrant the dismissal of the claim. [29] This conclusion is the subject of ground 2 of the appeal.
3. Second, the Registrar General contended that the Appellant's loss or damage was a consequence of a "negligent act or omission by [its] solicitor" which was "compensable under an indemnity given by a professional indemnity insurer" (s 129(2)(b)). The Registrar General contended that the Appellant's solicitors were negligent in failing to obtain, or to advise the Appellant to obtain, a survey of the subject land. [30] However, the primary judge found that their failure to do so "was consistent with the solicitors having acted in a manner that was widely accepted in Australia by peer professional opinion" [31] and that it was "not practicable" to determine whether the Appellant's loss or damage was "compensable under an indemnity given by a professional indemnity insurer" (s 129(2)(b)(ii)). [32] This aspect of the primary judgment is not the subject of a ground of appeal or a notice of contention.
4. Third, the Registrar General contended that the Appellant's loss or damage was a consequence of its own acts or omissions and any entitlement to compensation was excluded by s 129(2)(a). The primary judge found that the material cause of any loss or damage suffered by the Appellant was its failure to "take any effective step to verify the site area of the Land", [33] which was sufficient to deny its claim for compensation entirely. [34] The primary judge's rejection of the claim for compensation on this basis is the subject of ground 1 of the appeal.

Quantum of Claim

1. The primary judge also addressed the quantum of the Appellant's claim for compensation. [35] As noted, during the course of the proceedings the Appellant changed the basis of its claim so that it sought damages for the lost opportunity to obtain the Land for a lesser price as opposed to the difference between the price paid and the market value of the Land at the time of acquisition. His Honour addressed that case by reference to the approach of valuing lost commercial opportunities enunciated in Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4 at 355 ("Sellars"), whereby "the applicant must prove on the balance of probabilities that he or she has sustained some loss or damage" (emphasis in original) and, if so proved, the value of that loss or damage is ascertained "by reference to the degree of probabilities or possibilities". His Honour accepted the Appellant's contention that, had it determined its bid price based on the true area of the land, then it would have bid between $47.5m and $50m instead of $55m. [36] The primary judge found that there was a "substantial commercial possibility that the other selected bidders would have offered lower prices" and the vendor would have accepted the lesser bid by the Appellant. [37] His Honour concluded that was sufficient to demonstrate "some loss or damage" as referred to in Sellars and then valued that lost opportunity as worth $2 million. [38]
2. As explained below, in relation to ground 3 there is a substantial debate between the parties as to whether in doing so his Honour found that the Appellant was precluded from seeking compensation on the "lost opportunity" basis and instead was confined to adopting the approach stated in Potts v Miller (1940) 64 CLR 282 at 289 and 297; [1940] HCA 43 ("Potts v Miller"), where it was held that the proper measure of damages for the tort of deceit in cases where the injured party was induced to acquire property was the difference between the price paid and the fair or real value of the property at the time it was acquired. [39]

The Notice of Contention: The Register of Plans and "Operation of the Act"

1. It is appropriate to address the notice of contention first as it concerns the opening words of s 129(1), namely the "operation of [the RP Act]".
2. The Registrar General's notice of contention seeks to reagitate the second point noted above (at [34]). The Registrar General contended that, based on the primary judge's finding that the Plan, including its erroneous statement of area, was registered under Division 3 of Part 23 of the Conveyancing Act, his Honour should have held that "the act of registering the plan was not an act done in the exercise of the [Registrar General's] functions under the Real Property Act 1900". The notice further contended that this meant that the error as to the area of the Land was not "as a result of the operation of this Act" within the meaning of s 129(1) of the RP Act and that the relevant error was not "in the Register" within the meaning of s 129(1)(c).
3. As formulated, this notice of contention does not engage with the primary judge's reasoning. His Honour did not find that the "act of registering the plan" under Division 3 of Part 23 of the Conveyancing Act was an act done in the exercise of the Registrar General's functions under the RP Act. Instead, one of the (separate) bases for his Honour's rejection of this part of the Registrar General's case was to identity the relevant "act" of the Registrar General as the use of the Plan to create DP 657427, and in turn using that as the "description" of the land for the purposes of s 32(1)(a) of the RP Act. [40] Subject to what follows, the conduct of the Registrar General in creating a folio of the Register under s 32(1) was undoubtedly an "act … of the Registrar-General" under s 129(1) of the RP Act, which extended to the inclusion of the form of the "description" of Lot 1 that the Registrar General determined to make a record of under s 32(1)(a).
4. The other (separate) basis for this aspect of the primary judge's reasoning was his Honour's acceptance that "the Plan, when prepared by the Registrar-General [in 1978] for the purpose of identifying the land in certificate of title volume 13683 Folio 1, was an act … of the Registrar-General in the execution or performance of his or her functions or duties under this Act in relation to the land within s 129(1)(a)" of the RP Act. [41] With respect, the basis for this is not entirely clear, however I take it to be a reference to the "act" of the Registrar General in issuing a Certificate of Title. By a combination of ss 32 and 33 of the RP Act (as then in force) and the Real Property Act Regulation 1970 (NSW), the Registrar General was permitted (or authorised) to include a "plan drawing" of the land in or on the Certificate of Title. [42] The conclusion in the previous paragraph applies with equal force to that "act" of the Registrar General.

Ground 2: Error or Miscalculation in the Measurement of Land (RP Act, s 129(2)(e))

1. It is convenient to deal with ground 2 of the appeal at this point. Ground 2 contends that the primary judge erred in finding that, by the operation of s 129(2)(e) of the RP Act, the Appellant was not entitled to compensation. Various sub-particulars of ground 2 were included in the notice of appeal, but the essence of the Appellant's complaint is that the primary judge erred in finding that, in the context of s 129(2)(e), the term "measurement" refers to a stated or ascertained size or dimension as well as (or as opposed to) the process of ascertaining a size or dimension.
2. In addressing s 129(2)(e), the primary judge noted that the dispute between the parties turned on the meaning of "measurement". His Honour correctly noted that the Appellant contended that measurement "refers only to the process of determining the size of the physical attributes of land", which does not include the erroneous transposition of the area of land onto a plan without realising that a portion of the Lot had been resumed. The Registrar General submitted that "a measurement" also includes a statement of the area of land. [43] His Honour accepted that "measurement" was capable of having both meanings. The primary judge considered that the Registrar General's construction [44] was preferable because, while a statement of the "dimensions of land, including its area" [45] may be of potential significance to both the Registrar General's functions and persons with an interest in purchasing land, the process by which land is measured has no "real significance … what is significant is the result not the process". [46] His Honour also noted that there was no apparent reason why an error in one form of "measurement" would be excluded under s 129(2)(e) but not the other. [47] Further, his Honour concluded that, to the extent that there is any ambiguity in the meaning of the word "measurement", recourse to the Second Reading Speech concerning the introduction of s 129(2)(e) strongly supported the Registrar General's suggested construction. [48]
3. The Appellant's written submissions contended that the primary judge was obliged to determine which of the two meanings (ie, an erroneous process of measurement or an error in stated dimensions) was correct rather than to conclude that the term encompassed both. The Appellant contended that, because s 129(2)(e) refers to an "error or miscalculation", it must be referring to the process of measurement as opposed to the outcome because "it would be incorrect to speak of the miscalculation being in the result rather than the process" whereas it "is syntactically correct to speak of both an 'error' or 'miscalculation' in the process [of] measuring land" (emphasis added).

Ground 1: Act or Omission by the Claimant (RP Act, s 129(2)(a))

1. Ground 1 of the appeal contends that the primary judge erred in finding that the Appellant was not entitled to compensation by reason of s 129(2)(a) of the RP Act. The particulars of this ground take issue with each of the two critical findings of the primary judge on this topic as described above, namely that (i) the material cause of any loss or damage suffered by the Appellant was its failure to "take any effective step to verify the site area" of the Land [53] and (ii) that this meant that the claim for compensation failed in its entirety. [54]

Appellant's failure to verify the site area

1. The matters that led to the primary judge making the first of these findings were as follows. His Honour noted that the development of the Land proposed by the Appellant involved the aggregation of four separate land titles that bore no relationship to the existing building or the proposed development and it was the Appellant's proposed development that "created the significance of the accuracy of the individual areas". [55] His Honour also noted that the Memorandum disclaimed responsibility for the accuracy of the information contained therein. His Honour found that the relevant officer of the Appellant, Mr Zhang, was aware of that statement and of the fact that the Memorandum did not contain any survey, [56] but believed that there could not be an error given that the Plan was a "government record". [57] His Honour observed that it was reasonably obvious that the Plan was a "sketch plan" and bore no indication that it was prepared by a surveyor. [58]
2. The primary judge also found that the Appellant "did not instruct any of the consultants that it retained to verify all assumptions made or information relied upon that was critical to the achievement of the development approval that was the basis upon which [the Appellant] determined the bid price" and that the Appellant specified the services "its solicitors were required to provide in a manner that excluded [them from] having professional responsibility for issues concerning the Land other than [the Appellant] obtaining good title". [59] Further, implicit in his Honour's analysis is the very large financial commitment the Appellant entered into by purchasing the land and the sophisticated nature of its commercial objective for the site.
3. The Appellant's written submissions in effect made six points in support of its contention that its failure to verify the area of the site in the Plan did not involve any "fault" on its part or was not a relevant "act or omission" for the purposes of s 129(2)(a).
4. First, each of the relevant officers of the Appellant cross-checked the Deposited Plans against the areas stated in the Memorandum and it was submitted that it was never put to them that they ought to have been cognisant of the risk that the areas on the plans were wrong.
5. Second, it was contended that none of its consultants ever advised the Appellant of the risk that the stated areas might be wrong or that it should obtain a survey, in circumstances where the Appellant was entitled to rely on its consultants to advise it of possible risks.

Construction of s 129(2)(a): Failure to Apportion

1. The Appellant contended that, even if it was found that its failure to verify the area of the Land was a material cause of its loss, the primary judge erred in finding that it followed that it was precluded from recovering any of its loss as opposed to undertaking an apportionment exercise to reduce its claim proportionately.
2. Having made the above finding, the primary judge followed a number of first instance decisions to the effect that s 129(2)(a) of the RP Act should be interpreted in a way that requires some "fault" on the part of the claimant and, if that is established, then the right to compensation will be lost when the "faulty" act or omission of the claimant is a material cause of the loss or damage that has been suffered (Kumar at [107]-[108]; [119]; Chandra v Perpetual Trustees Victoria Ltd [2007] NSWSC 694; (2007) 13 BPR 24,675 at [52] per Bryson AJ; ("Chandra"); Wassell v Ken Carr Bobcat & Tipper Hire Pty Ltd [2021] NSWSC 1415 at [245]-[253]; ("Ken Carr Bobcat")). [67] The primary judge also followed those decisions in concluding that s 129(2)(a) did not allow for an "apportionment of responsibility regime".
3. In Kumar at [107]-[109], Darke J explained the position as follows: "In Chandra v Perpetual Trustees Victoria Ltd (2007) 13 BPR 24,675; [2007] NSWSC 694 at [52] Bryson AJ said that s 129(2)(a) operates where the act or omission to which it refers 'arises through fault in some sense' … At [59], his Honour considered the words 'to the extent to which' which appear in s 129(2)(a) (and also in sub-paragraphs (b) to (d)) and the question whether they require an apportionment of responsibility. Bryson AJ stated: I do not favour the view that s 129(2)(a) requires apportionment based on deciding the extent to which the loss or damage was a consequence of any act or omission by the person claiming compensation and the extent to which the loss or damage was a consequence of any act or omission by some other person or a consequence of something else: loss or damage is a consequence of an act or omission either wholly or not at all, whether or not other causes also operate, and it is unlikely that the legislature set about creating a new apportionment regime without in some way stating the principle or basis to be applied, as other apportionment legislation does. I was not referred to any authority which casts doubt upon the correctness of the views expressed by Bryson AJ, but it was suggested by the plaintiff, and not clearly disputed by the Registrar-General, that s 129(2)(a) would allow the Court to reduce an amount of compensation otherwise payable, on the basis of an apportionment of responsibility to the claimant. However, no case where this had occurred was cited, and I am not aware of any such case. For the reasons that follow I think that I should follow the view expressed by Bryson AJ that s 129(2)(a) does not establish an apportionment of responsibility regime. The words 'to the extent to which' are apt to allow a reduction in an amount of compensation otherwise payable, but a reduction is only permitted to the extent the loss or damage is 'a consequence' of relevant 'conduct of the claimant. The language of the provision seems directed to a question of causation of the relevant loss or damage, not to an attribution, on some basis, of responsibility for the loss or damage (cf s 5(2) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) and s 9(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW)). I appreciate that the legislature has employed the expression 'to the extent to which' in s 129(2)(a) (and also in sub-paragraphs (b) to (d)) rather than the word 'where' that is found in sub-paragraphs (e) to (p). However, the expression when used in s 129(2) does not seem to me to be suggestive of anything more than a reduction in compensation (or preclusion of compensation) if the specified circumstances exist. So, s 129(2)(a) would operate to reduce the compensation to nil (or entirely preclude compensation) if the whole loss or damage is a consequence of relevant conduct of the claimant. If only an identified part of the loss or damage is a consequence of relevant conduct of the claimant, s 129(2)(a) would operate to reduce the compensation (or preclude compensation) to that extent." (emphasis added)

Nature of the "Act or Omission"

1. One part of the Appellant's submissions complained that, although the primary judge construed s 129(2)(a) as requiring "some fault on the part of the claimant before the right to compensation is excluded", [68] his Honour did not specify what constitutes "fault". The Appellant submitted that the appropriate test threshold should require conduct that amounts to "contributory negligence or … want [of] reasonable care" in the protection of the claimant's own interests.
2. As noted, numerous first instance decisions have proceeded on the basis that s 129(2)(a) is only engaged in the event of some "fault" on the part of the claimant; i.e. it is not sufficient simply to point to any act or omission of the claimant that contributed to the loss being suffered (Chandra at [52] per Bryson J; Chandra v Perpetual Trustees Victoria Ltd [2008] NSWSC 178; (2008) 13 BPR 25,259 at [11] per Bryson AJ; Kumar at [107]; Ken Carr Bobcat at [248]). These decisions have also held that negligence, in the sense of a failure by a claimant, or those for whom it is legally responsible, to take reasonable care to protect his, her or its own interests is sufficient to satisfy s 129(2)(a) (Kumar at [119]; Ken Carr Bobcat at [253]; Chandra at [54]). This is consistent with the extract from the Second Reading Speech to the Amendment Act set out above. However, it is unnecessary to determine whether a finding of negligence is necessary to engage s 129(2)(a) or whether some other form of fault suffices. Although the primary judge did not express it in such terms, his Honour appeared to treat the finding that the Appellant's failure to "take any effective step to verify the site area" of the Land was a material cause of any loss or damage it suffered as synonymous with a failure on its part to take reasonable care for the protection of its own interests. [69] In any event, in upholding that finding I regard it as such.

Relative Responsibility and Effective Cause

1. Finally, in relation to this ground, the Appellant's submissions took issue with the following analysis by the primary judge: [70] "As a result of this analysis of the relative responsibility for the error in the Plan and the failure by [the Appellant] to take any effective step to verify the site area of the Land, I find that the material cause of any loss or damage suffered by [the Appellant] was an act or omission of [the Appellant] for the purposes of s 129(2)(a), and that [the Appellant's] responsibility for the loss or damage extends to the whole of that loss or damage. This conclusion recognises that the inadvertent transposition error made by an officer of the Registrar-General, when the original sketch plan was prepared on 2 June 1995, was as a matter of fact a material cause of [the Appellant's] loss or damage, but proceeds upon the basis that, having regard to the relative responsibility for the loss or damage as between the two separate causes, the proper interpretation of s 129(2)(a) requires that the Court treat [the Appellant's] act or omission as the effective cause of its loss or damage." (emphasis added)
2. The Appellant contended that the primary judge's attribution of its conduct as the "effective cause" of its loss or damage was inconsistent with the language of s 129(2)(a). It also contended that his Honour erred in inquiring into the parties' "relative responsibility" for the loss or damage because, according to the Appellant, it would be inconsistent with the RP Act if "the effect of s 129(2)(a) were that an entitlement to compensation could be lost because, relatively speaking, the applicant was more at fault for the loss and damage suffered than the Registrar General when the Act does not require that there be any fault on the Registrar General's part in order [for] there to be [an] entitlement to compensation under s 129(1) in the first place."
3. I have already upheld the second of these contentions, although I consider that it warrants a rejection of the proposition that there must be any apportionment exercise by reference to fault. That said, I agree that s 129(2)(a) does not require or permit a comparison between the "relative [causal] responsibility" for the matter that invokes s 129(1), and any fault of the claimant, to establish some "effective cause" if that is what the primary judge meant. The concept of "effective cause" has no role to play in this context (cf, Moneywood Pty Ltd v Salamon Nominees Pty Ltd (2001) 202 CLR 351; [2001] HCA 2 at [81]-[83] per Gummow J). Instead, s 129(2)(a) simply requires a determination of whether some (faulty) act or omission of the claimant was a material cause of the relevant loss or damage. If it was, then compensation cannot be awarded for that loss or damage. On the primary judge's findings, which I have upheld, the Registrar General's reliance on s 129(2)(a) succeeds.

Conclusion in relation to Ground 1

1. It follows that I would reject ground 1.

Ground 3: Loss or Damage

1. Ground 3 of the notice of appeal contends that "[t]he primary judge erred in finding, if he so found, that [the Appellant's] damages should have been assessed by reference to the difference between the price paid for the land and its market value at the date of acquisition."
2. Aspects of the reasoning of the primary judge in relation to the determination of the quantum of the Appellant's claim are summarised above. As formulated, this ground reveals some uncertainty about the status of a finding made by the primary judge about the proper approach to quantifying the Appellant's loss or damage. This uncertainty arises from the change in the Appellant's approach to the formulation of its case as to quantum, which in turn led to the Registrar General submitting that its earlier submissions "which address the Potts v Miller … basis of assessment can therefore be disregarded in circumstances where the plaintiff has now eschewed it" [71] as a basis for its claim. His Honour found that the Registrar General had therefore abandoned a contention that the proper approach to assessing the Appellant's pleaded compensation was by reference to the principle supposedly stated in Potts v Miller. Even so, his Honour addressed the significance of Potts v Miller as follows: [72] "As a result of the course taken by the parties, the Court finds itself in the position that it is required to consider [the Appellant's] entitlement to compensation on a different legal basis than the one the Court considers is truly applicable. Consequently, the reasoning that follows is not only obiter by reason of the fact that I have found that [the Appellant] is not entitled to compensation, but it also should not be taken to reflect my own considered view of what the applicable legal principles would have been if I had found otherwise on the issue of entitlement to compensation. … In my view, even though the law may theoretically allow a choice between these two alternative means of quantifying [the Appellant's] loss, in the usual case where the claimant acquires the property, and so has not lost an opportunity to acquire, the proper approach to quantifying the loss is on the basis of the Potts v Miller principle. Simply put, [the Appellant's] loss, as recognised by the law, is the difference between the price that it paid and the objectively determinable true value of the Land." (emphasis added)

Conclusion and Proposed Orders

1. It follows from my rejection of each of grounds 1 and 2 of the Appeal that I would dismiss the appeal.
2. I propose the following orders: (1) Appeal dismissed. (2) The Appellant pay the Respondent's costs of the Appeal.
3. MITCHELMORE JA: I agree with Beech-Jones JA.

Endnotes

1. Ausbao (286 Sussex St) Pty Ltd v The Registrar-General of New South Wales [2021] NSWSC 1651 at [4] ("Ausbao").
2. Ausbao at [5].
3. Ausbao at [5].
4. Ausbao at [6].
5. Ausbao at [278].
6. Ausbao at [6].
7. Ausbao at [7].
8. Ausbao at [169].
9. Ausbao at [136]-[137].
10. Ausbao at [136(4)].
11. See footnote 42.
12. Ausbao at [136(9)].
13. Ausbao at [136(10)-(11)].
14. Ausbao at [136(12)].
15. Ausbao at [154].
16. Ausbao at [8].
17. Ausbao at [12].
18. Ausbao at [12].
19. Ausbao at [55]-[56].
20. Ausbao at [191].
21. Ausbao at [103].
22. Ausbao at [80]-[96].
23. Ausbao at [113].
24. Ausbao at [192].
25. Ausbao at [199].
26. Ausbao at [202].
27. Ausbao at [206].
28. Ausbao at [116] and [206].
29. Ausbao at [208]-[227].
30. Ausbao at [282].
31. Ausbao at [297].
32. Ausbao at [308].
33. Ausbao at [331].
34. Ausbao at [332].
35. Ausbao at [339]-[404].
36. Ausbao at [385].
37. Ausbao at [388].
38. Ausbao at [404].
39. Ausbao at [344] and [352].
40. Ausbao at [202].
41. Ausbao at [199].
42. As at 23 August 1978, s 32(1) of the RP Act provided that a Certificate of Title shall be in the prescribed form and the Registrar General shall record, inter alia, "particulars of all subsisting encumbrances affecting the land" (s 32(1)(a)(i)). Subsection 32(1)(b) provided that the Registrar General may record on the Certificate of Title such other matters as he or she was "authorised to record" under the RP Act or any other State or Commonwealth Act. Subsection 32(2)(c) empowered the Registrar General to record in the Register, "in such manner as he shall determine, such particulars of the grant or certificate of title as he thinks fit". Regulation 4 of the Real Property Act Regulation 1970 (NSW) required that a Certificate of Title be in or to the effect of Form 1. Form 1 provided for a Schedule 2 to the Certificate of Title with space for the inclusion of a "plan drawing". With effect from 14 December 1979, s 32 was amended so that it required a folio of the Register to record a "description of the land" (s 32(1)(a); Real Property (Computer Register) Amendment Act 1979 (NSW)).