DR SIMON BRAHAM	Plaintiff
BRAHAM PROPERTIES PTY LTD (ACN 103 667 554)	Second Plaintiff
and
JOE CATALANO	First Defendant
STRATEGIC PROPERTY ACQUISITIONS PTY LTD (ACN 134 251 513)	Second Defendant
KEROVPE MARDIRIAN	Third Defendant
THE REGISTRAR OF TITLES	Fourth Defendant

---

JUDGE:	SIFRIS J
WHERE HELD:	Melbourne
DATE OF HEARING:	29-31 July, 1 August 2013
DATE OF JUDGMENT:	30 August 2013
CASE MAY BE CITED AS:	Braham v Catalano & Anor
MEDIUM NEUTRAL CITATION:	[2013] VSC 437

CONTRACT – Retainer – Whether first defendant was acting as solicitor – Scope of retainer in conveyancing transaction – Property not registered in name of purchaser – Breach of retainer.

SOLICITORS – First defendant not holding a practising certificate – Undertaking a conveyancing transaction for purchaser – Nature and extent of duties – Duty of care – Fiduciary duties – Property not registered in name of purchaser – Breach of duties.

FRAUD – Dishonesty and moral turpitude on part of first and third defendants inferred from conduct of parties, unusual features of transaction and failure of third defendant to participate in trial.

REAL PROPERTY – Torrens system – Loss or damage – Indemnity – Entitlement – Fraud of agent acting altogether outside scope of authority – Transfer of Land Act 1958 (Vic) s 110(1)(c), 110(3)(a), Registrar of Titles v Fairless [1997] 1 VR 404 applied.

---

APPEARANCES:	Counsel	Solicitors
For the First and Second Plaintiffs	M Gronow	B2B Lawyers
For the First Defendant	Self represented
For the Fourth Defendant	W Gillies	Land Victoria Legal

HIS HONOUR:

A. Introduction

Simon Braham (‘Dr Braham’) is a surgeon. Joseph Michael Catalano (‘Catalano’) is a duly qualified solicitor. In 1998 Catalano was suspended from practising as a solicitor and since that date he has not held a practising certificate.

By a contract of sale dated 16 September 2006, Dr Braham purchased, from the estate of Heather Marion James, a residential apartment in Mitford Street, St Kilda (‘the Property’) for $400,000 (‘Contract of Sale’). The Contract of Sale was entered into by Dr Braham ‘and/or nominee’; Dr Braham subsequently nominated Braham Properties Pty Ltd (‘Braham Properties’) as purchaser, a company of which he was and remains the sole director.

Dr Braham and Braham Properties allege that they retained Catalano to act for them as their solicitor for the purpose of the acquisition. As a result of what Catalano told him, Dr Braham believed that Catalano was a practising solicitor, and did not realise (nor did Catalano disclose) that he was in fact a solicitor who had not been entitled to practice since 1998.

Catalano disputes that he was acting as a solicitor. He alleges that he was merely assisting a friend and agreed to attend settlement but did not agree to attend to the completion of the conveyance into the name of the purchaser, Braham Properties. This was to be attended to by someone…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Braham v Catalano

Details

AGLC: Braham v Catalano [2013] VSC 437
Case: [2013] VSC 437
Decision Date: 30 August 2013

CaseChat Overview and Summary

The case of Braham v Catalano involved the plaintiffs suing the first, second, and third defendants in the Supreme Court of Victoria over a failed property transaction. The plaintiffs alleged that the first defendant, who was not a practising solicitor, acted as their solicitor in a conveyancing transaction, breached their retainer by not registering the property in the plaintiffs' name, and committed fraud by acting dishonestly and with moral turpitude. The court was tasked with determining whether the first defendant was acting as a solicitor, the scope of the retainer, and whether the first and third defendants breached their duties and engaged in fraud.

The primary legal issues the court had to address were whether the first defendant was acting as a solicitor and the extent of their duties in the property transaction. The court also had to examine the nature and scope of the retainer and whether it was breached. Furthermore, the court considered the fiduciary duties owed by the first defendant, including the duty of care, and whether the first and third defendants engaged in fraud. The court had to determine if the first defendant's failure to hold a practising certificate and the unusual features of the transaction indicated dishonesty and moral turpitude.

The court found that the first defendant was not holding a practising certificate and was not acting as a solicitor for the plaintiffs. However, the court determined that the first defendant did owe the plaintiffs a duty of care and fiduciary duties as an agent in the property transaction. The court held that the first defendant breached their retainer by failing to register the property in the plaintiffs' name. The court also found that the first and third defendants engaged in fraud based on their conduct, the unusual features of the transaction, and the third defendant's failure to participate in the trial. The court applied the principles of indemnity under the Torrens system and relevant statutory provisions, concluding that the plaintiffs were entitled to indemnity for the loss or damage caused by the fraud of the agent acting outside their authority.

The court ordered the first and third defendants to indemnify the plaintiffs for the loss or damage caused by the fraud, and the second defendant to indemnify the plaintiffs for the amount they paid to the first defendant. The court also made orders for costs.

Orders