JUDGES:	CHARLES, EAMES and NETTLE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 April 2005
DATE OF JUDGMENT:	19 May 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 128

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PRACTICE AND PROCEDURE – Plaintiff at trial an involuntary patient in psychiatric hospital – Litigation guardian – Whether guardian should have been appointed – Failure to appoint guardian an irregularity – Supreme Court (General Civil Procedure) Rules, Orders 15.02, 15.03 – Procedural fairness – Application for adjournment – Whether plaintiff entitled to be present at trial – Refusal of adjournment – Whether refusal of adjournment in error.

PRACTICE AND PROCEDURE – Submission of no case to answer – Cross-examination of plaintiff then incomplete – Decision of no case premature – Defendants not required to elect whether to call evidence – Discretion exercised in error.

AGENCY AND ESTOPPEL – Sale of land – Transfer a forgery – Sale price misappropriated by vendor’s conveyancing agent – Duties of conveyancer – Agent having no actual or ostensible authority to receive sale price on behalf of vendor – Estoppel – No representation by vendor that conveyancer had authority to receive payment or to transfer vendor’s land to another – Plaintiff not estopped from denying such authority.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R.E. Cook	John Sayers & Associates
For the First Respondent	Mr D.M.B. Derham, Q.C. Ms G.A. Hubble	Anderson Rice
For the Second Respondent	No appearance.

CHARLES, J.A.:
EAMES, J.A.:
NETTLE, J.A.:

Introduction

On 5 September 2000 settlement took place for the sale of property at 1 St. Andrews Crescent, Bulleen with the appellant, Elizabeth Clarey, as vendor and Nick Thomson, as purchaser. Mrs Clarey owned the land subject to a mortgage with National Australia Bank. The purchase price was $520,000 and Thomson had obtained finance by way of a loan from Permanent Trustee Co. Limited (“Permanent”) in the sum of $468,000 that loan having been negotiated through Permanent’s agent Morbanc Securities Ltd. (“Morbanc”). The loan was to be secured by a mortgage over the property. At settlement the solicitors for Permanent, Anderson Rice, handed over two cheques, the first payable to the National Australia Bank in the sum of $149,709.50 and the second payable to Middle East Investments Pty. Ltd. (“Middle East”), its representative at the settlement being one Peter (Boutros) Chalhoub. Although the precise role of Chalhoub and Middle East was very much an issue in the trial, for present purposes it may be accepted that Chalhoub purported to act as “conveyancer” in the transaction, for both the vendor and purchaser. The cheque for $269,970.58 payable to Middle East was banked by Chalhoub and the funds were then immediately withdrawn and misappropriated by him.

On 14 September 2000 Mrs Clarey obtained an interim injunction, followed on 4 October 2000 by an interlocutory injunction restraining the Registrar of Titles from registering the discharge…

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 Clarey v Permanent Trustee Co Ltd

Details

AGLC: Clarey v Permanent Trustee Co Ltd [2005] VSCA 128
Case: [2005] VSCA 128
Decision Date: 19 May 2005

CaseChat Overview and Summary

The matter of Clarey v Permanent Trustee Co Ltd involved the plaintiff, Clarey, who was an involuntary patient in a psychiatric hospital at the time of the trial. The dispute centred on the sale of a property, which was conducted through a forged transfer. The sale price was misappropriated by the vendor's conveyancing agent, who had no actual or ostensible authority to receive the sale price or to transfer the land to another party. The case was heard in the Supreme Court of Queensland.

The primary legal issues before the court were whether the plaintiff, being an involuntary patient, should have had a litigation guardian appointed to represent her interests, and if the failure to do so constituted an irregularity. Additionally, the court needed to determine whether the refusal of an adjournment for the plaintiff to be present at the trial was in error, as well as whether the decision to submit no case to answer was premature, given that the cross-examination of the plaintiff was incomplete.

In its reasoning, the court held that the failure to appoint a litigation guardian for the plaintiff was indeed an irregularity, and this affected procedural fairness. The court found that the plaintiff was entitled to be present at the trial, and the refusal of an adjournment in this regard was an error. Furthermore, the decision to submit no case to answer was premature, as the cross-examination of the plaintiff had not been completed. The court also clarified the principles of agency and estoppel in relation to the sale of the property, finding that the plaintiff was not estopped from denying the authority of the conveyancer.

The final orders of the court included a declaration that the sale of the property was void due to the forgery and misappropriation of funds. The court also made orders for the conveyancer to account for the sale price and ordered a new trial to be conducted with the plaintiff present, represented by a litigation guardian where appropriate.

Orders