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Merrett v Babb

19 February 2001
The issues

Surveyor’s Duty Of Care – Mortgage Applicants – Limitation

The facts

A Surveyor prepared a valuation report in relation to a residential property and in relation to a mortgage advance intended to be made jointly to Claimant and her mother. Surveyor was a salaried employer of a firm of Surveyors and Valuers. The property was purchased. Two years later the principal of the firm that employed the Surveyor was adjudged bankrupt.

Later that year the firm’s indemnity insurance was cancelled by the trustee and bankruptcy without run off cover. The employee was uninsured. Claimant and her mother executed a declaration of trust transferring the entire beneficial interest to Claimant. She then brought proceedings against the employee alleging negligence. The limitation period in respect of a claim by the Mother expired in 1998 before the action came on for Trial. The Defendant contended he owed no duty of care to Claimant or Claimant’s mother and that the Judge only awarded Claimant half the amount of damages because she only had a half interest in the property and the mother was not a party to the proceedings.

The decision

A professional person who carried out an inspection of a property and made a valuation was a person who would purchase and relied to exercise proper skill and care. The duty of care was owed.

In respect of the limitation issue, the Surveyor had owed a duty of care to both the Claimant and his mother. The claim ought to have been brought as a joint one. Since it could not properly be brought or maintained in the name of the Claimant alone, it was “necessary” that the mother be joined to perfect the claim for the full amount of the damages awarded by the Judge. The Court would therefore in the exercise of its discretion order the mother to be joined as a Claimant.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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