Teresa Nadia Pedulla v Fernando Rene Panetta & Ors

Proper Construction - Section 129A 7I am not able to accept the Registrar-General's submission. In my view, on the proper construction of Section 129A, and having regard to what I consider to be its policy objectives, it both defines and limits the components that comprise an award of compensation. The components are twofold - market value of land and professional costs. 8In my view, Section 129A is intended to provide a successful claimant with an indemnity for the professional costs incurred in making the claim other than those costs that are not reasonably incurred. Those professional costs form part of the award of compensation to which a successful claimant is entitled from the Torrens Assurance Fund. 9That is the natural and ordinary meaning of the language and syntax of Section 129A. To construe it as the Registrar-General contends would be to emasculate its language and to ignore its terms. It is difficult to see what useful purpose would be served by the concluding words of Section 129A if a successful claimant in court proceedings for an award of compensation pursuant to Section 129 were only entitled to recover his or her professional costs as costs of the proceedings in accordance with Section 98 of the Civil Procedure Act, 2005 and the Uniform Civil Procedure Rules, 2005 . If that were the case, the concluding words of Section 129A would be surplusage. 10There is, I think, no direct parallel between the policy and object behind Section 129A, insofar as it provides for the inclusion of professional costs in the award of compensation, and the process by which costs are awarded and assessed in ordinary proceedings in the court. And there are sound policy reasons why the former should be treated differently, perhaps even more generously. The object of the scheme for an award of compensation from the Torrens Assurance Fund is to compensate an entirely innocent person for the loss of their property, in circumstances where that loss has been caused by the fraud of another person or by some act, error or omission of the Registrar-General. The clear legislative intention appears to me to be that a person in that position should not be left out of pocket - except to the extent that costs have been unreasonably incurred. 11I should add that I see no particular difficulty in the meaning and application of the phrase "legal valuation or other professional costs reasonably incurred". It reflects similar language to that used in the Rules dealing with an award of indemnity costs: Rule 42.5(b). The claimant must of course prove as a fact that the professional costs were reasonably incurred. She has done so in this case. 12Given that there is no evidence and no submission as to any unreasonableness in the costs incurred by the plaintiff, and having regard to my own review of the evidence of the professional costs incurred by her, I see no reason not to award the full amount claimed as part of the compensation to which she is entitled from the Torrens Assurance Fund. 13In any event, even if the Registrar General's analysis were correct, I would have been inclined to make an order pursuant to Section 98(4)(c) of the Civil Procedure Act in the amount which has been claimed by the plaintiff. I explained in Ireland v Retallack (No 2) 2011 NSWSC 1096 at [38] - [44] the reasons why, in my view, the exercise of the power to award lump sum costs pursuant to Section 98(4)(c) can sometimes be a valuable adjunct in the administration of justice. I need not in fact do so in this case having regard to my view as to the proper construction of Section 129A. But it is an alternative route by which, subject to hearing further from the parties, I might well have been prepared to arrive at the same result.

Remaining Discretionary Costs Issues 14The remaining costs issues can be shortly dealt with. They are entirely discretionary. Notwithstanding the award of compensation that I propose to make, it is still appropriate that there be an order that the defendants pay the plaintiff's costs. There is unlikely to be much in the way of costs incurred by the plaintiff that is not covered by the award of compensation. However those costs, as assessed or agreed, should be paid by all of the defendants and the plaintiff can elect to recover from any one of them. 15As between Mr Yee (fourth defendant) and the Registrar-General (third defendant), it is appropriate that the Registrar-General be entitled to recover, pursuant to his right of statutory subrogation, an amount that reflects the proportionate responsibility of Mr Yee. It is also appropriate that Mr Yee pay the Registrar-General's costs of the cross-claim against him. 16I should observe that, at a practical factual level, the majority of the hearing time was taken up with the evidence of Mr Yee whose conduct was in many respects indefensible. Therefore I think it is appropriate in the exercise of my discretion that the orders be as I have proposed. I do not propose to limit the costs liability of Mr Yee any further than I have already explained.

Orders 17For those reasons I will make the further orders in the form of paragraph 5(b), 7(b) and 9 of the Short Minutes as amended by me.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 December 2011