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Property torts and financial loss & Skilled legal responsibility instances: Half yearly wrap-up (2021)

Take a look back at the decisions reported from Australia in the first half of 2021.

Follow the links in the summaries of available news or in the quotes for headers or full decisions.

Property crimes and property damage

Mailbox “No junk mail” sign: Unwanted real estate brochure no trespassing (NSW)

A tenant of a Strata title apartment did not have exclusive ownership of his mailbox, nor could he prove that he had revoked an open mailbox permission to enter with a “no junk mail” sign. Putting a real estate newsletter in his mailbox wasn’t trespassing.

Mark Eldridge v Agent 47 Pty Ltd trading as Harcourts West Ryde (2021) Aust Torts Reports ¶82-660; [2021] NSWDC 230 (May 28, 2021)

Harmful untruth: “Righteous believers” are liable for false statements about “poisonous honey” (NSW)

Honey producer Capilano was awarded $ 25,000 in damages for injurious falsehood after making injurious claims that its honey was contaminated. It showed that the claims were wrong as its honey was not harmful to consumers and that it had suffered harm. The court examined whether the author of the testimony was a “sincere believer” who honestly believed he was serving the public by exposing a dangerous product that could harm or even kill them. While this may have been part of the motivation, the 11 articles contained harsh, repetitive, sharp, consistent terms so that overall the element of malice was identified.

Capilano Honey Ltd v Dowling (No. 4) (2021) Aust Torts Reports ¶82-633; [2021] NSWSC 264 (March 29, 2021)

Disclaimer negates the duty of care for cross-contamination of seeds (Qld)

Farmers who grow grain orghum on their farm have unsuccessfully sued a seed supplier in a representative procedure for purely economic damage from the delivery of contaminated seeds. Terms on the seed bag negated any duty of care on the part of the supplier in order to avoid economic losses due to contamination of the seed.

Mallonland Pty Ltd & Anor v Advanta Seeds Pty Ltd (2021) Aust Torts Reports ¶82-625; [2021] QSC 74 (April 9, 2021)

$ 2 million in damages for neighbors’ (NT) conversion of cattle

A family of cattle entrepreneurs was awarded approximately $ 2 million in damages for 1,500 cattle that were converted by their neighbor and former business partner. The cattle were migrant cattle and their offspring that had remained on the neighbour’s property for 3 years after the relationship was sour and the agreed process of cattle repatriation also failed. Compensation for converted cattle was calculated based on the average price of cattle sold in the last year of conversion to the number of agreed cattle. This method was confirmed on appeal.

BJEK Pty Ltd as trustee for the EL and SL Fogarty Family Trust against Henbury Cattle Co Pty Ltd & Ors (2021) Aust Torts Reports ¶82-610; [2021] NTSC 16 (February 23, 2021)

Appeal: BJEK Pty Ltd v Henbury Cattle Co Pty Ltd & Ors [2021] NTCA 1 (April 23, 2021)

Conversion counterclaim fails: No evidence of system retrofitting (NSW)

Hydrodec Australia Pty Ltd failed to convince the court that the operator of its re-refining plant and equipment (known as the “Hydrotreater”) modified the equipment. The operator did not intervene, as Hydrodec claimed, to sabotage the removal project by the crane operator of the plant owner, did not breach any obligations to cooperate and never claimed ownership or refused ownership to the owner. In any case, “[C]An act that indirectly hinders the exercise of the plaintiff’s rights could rarely, if at all, amount to a change. “

Southern Oil Refining Pty Ltd v Hydrodec Australia Pty Ltd (2021) Aust Torts Reports ¶82-603; [2021] NSWSC 24 (January 29, 2021)

Professional liability

No obligation for the property manager to identify hidden defects in the wall (Vic)

A tenant who broke her foot after the collapse of an adjacent outer wall was unsuccessful in her negligence suit against the adjacent property owners and the property management, as the defect was latent and not obvious.

Professional negligence of the attorney (ACT)

A plaintiff, who was sexually assaulted by employees of a Marist Brothers school in the 1980s as a child, unsuccessful in his negligence suit against his attorneys after alleging they had “improperly pressured” him, his claims from negligence against the school. The lifting of the statute of limitations for claims for sexual abuse of children did not apply to his claims for professional negligence against his lawyer.

Pool (a pseudonym) v Trustees of the Marist Brothers Property Group & Anor (No. 3) (2021) Aust Torts Reports ¶82-652; [2021) ACTSC 89 (13 May 2021)

Builder liable for ramp hazard during building works (NSW)

The owner had a duty to inspect the balustrade, but it was the builder’s negligence of removing the handrail which was 100% causative of the harm to an invitee who fell from the ramp.

Shoveller v Dak-Wal Constructions Pty Ltd (No 2) (2021) Aust Torts Reports ¶82-629; [2021] NSWSC 352 (April 8, 2021)

Fire in a Residential Building: Surveyor’s Failure to See Fire Engineer’s Lack of Detail about Cladding Not Careless (Vic)

A building surveyor was not negligent when he failed to inquire about the incomplete description of a cladding system by the firefighter in his fire safety report for an apartment building they were working on. The cladding was an aluminum composite panel that was flammable and played a key role in a subsequent fire in the building. The surveyor’s failure to identify and respond to the fire engineer’s mistake cannot be considered to be the cause of the ultimate damage (whereas the architect, fire engineer and builder are liable).

Tanah Merah Vic Pty Ltd v Owners’ Corporation (2021) Aust Torts Reports ¶82-642; [2021] VSCA 72 (March 26, 2021)

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