Mr Perera was a property valuer. Genworth was a mortgage insurer, which provided lenders mortgage insurance to financial
Judgment Summary Supreme Court New South Wales Court of Appeal
Perera v Genworth Financial Mortgage Insurance Pty Ltd [2017] NSWCA 19 Macfarlan JA; Leeming JA; Simpson JA The Court of Appeal has allowed an appeal in part from a decision of the Supreme Court summarily dismissing proceedings, allowing Mr Perera’s claim in defamation to proceed but dismissing the appeal insofar as it related to two novel claims in negligence. Mr Perera was a property valuer. Genworth was a mortgage insurer, which provided lenders mortgage insurance to financial institutions who lent on security of real property mortgages. Mr Perera formerly worked for, and later owned and controlled, Hodder Rook & Associates Pty Ltd, a company which provided professional valuation services, until it was wound up. Genworth had previously sued Hodder Rook for the allegedly negligent valuation of two properties, but its claims were not finally determined. More recently, Mr Perera provided valuations through another company, Valfirm Pty Ltd. Mr Perera’s three claims against Genworth arose out of claims made by Genworth concerning Mr Perera’s expertise as a valuer. First, Genworth was said to have alleged that Mr Perera negligently valued a property in Bankstown in March 2004, and to have subsequently admitted the allegation was in error. As a result, Mr Perera claimed he was unable to obtain professional indemnity insurance and so lost clients and work. Genworth’s claim was said to give rise to a cause of action in negligence occasioning economic loss, positing a novel duty said to be owed by a potential plaintiff to a potential defendant not to bring proceedings negligently. Secondly, Genworth was said to have sent a letter in 2013 to its client Police Bank Ltd concerning Mr Perera’s valuation of a property in Jordan Springs in western Sydney, which founded the alleged defamation. Thirdly, a conversation was said to have taken place in January 2014 between Mr Perera and the “Property Services Leader” of Genworth, in connection with the same Jordan Springs property, in which the latter was said to have threatened to sue Mr Perera personally, causing him psychological injury. This threat was also said to give rise to a claim in negligence. The Court of Appeal held that the primary judge was right to strike out the two claims in negligence because the asserted novel duties of care could not exist coherently with the current law, such that any findings of fact were unnecessary. However, the Court of Appeal determined that the defamation proceedings should not have been struck out and should proceed in the District Court.
This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.
