Jarrold v Isajul - [2013] VSC 461

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6646 of 2010

CLARE MARGARET JARROLD	Plaintiff
V
ISAJUL ENTERPRISES PTY LTD (t/as CONVEYANCING MELBOURNE (ACN 106 047 787)	First Defendant
JOANNE IBRAHIM	Second Defendant
THE REGISTRAR OF TITLES	Third Defendant
~~HODGES SANDRINGHAM PTY LTD (ACN 106 047 787)~~	~~Fourth Defendant~~
TELVIN JARROLD	Fifth Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	10, 11, 15, 16, 17, 18, 22, 23, 29 October 2012
DATE OF JUDGMENT:	10 September 2013
CASE MAY BE CITED AS:	Jarrold v Isajul
MEDIUM NEUTRAL CITATION:	[2013] VSC 461

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TORTS – NEGLIGENCE – Plaintiff claims a one half legal interest in a property bought by the fifth defendant and allegedly sold without her knowledge – Plaintiff claims that the first and second defendant were negligent in respect of the handling of the conveyance for the sale of the property in dispute – Plaintiff settled claim as against the first and second defendant on the second day of the trial

REAL PROPERTY – TORRENS SYSTEM – ENTITLEMENT TO STATUTORY INDEMNITY – Whether plaintiff entitled to indemnity by the third defendant for the loss and damage suffered by her as a result of the sale of her interest in the property – Transfer of Land Act1958 s 110 – Third defendant joined the fifth defendant to the proceeding

EVIDENCE – STANDARD OF PROOF – Plaintiff claims that fifth defendant forged power of attorney – Whether the plaintiff has satisfied the Court that the power of attorney was forged – Briginshaw v Briginshaw (1938) 60 CLR 336 – Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 – Evidence Act 2008 s 140(2) – Credibility of the lay witnesses – The expert evidence on handwriting – Gawne v Gawne (1979) 2 NSWLR 449

TRUSTS – PRESUMPTIONS – ADVANCEMENT – RESULTING TRUST – Contributions to the Purchase Price – Whether the presumption of advancement rebutted – Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 – Martin v Martin (1959) 110 CLR 297 – Pearson v Pearson [1961] VR 693 – Cummins v Cummins, (2006) 227 CLR 278 – Relationship between the plaintiff and fifth defendant – Whether fifth defendant intended plaintiff’s legal interest be held on trust for him

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. W. K. Burnside QC Ms G. A. Costello	Slater & Gordon Lawyers
For the 1^st and 2^nd Defendant	Mr M. Robins	HWL Ebsworth Lawyers
For the 3^rd Defendant	Mr B. Gillies	Land Victoria Legal
For the 5^th Defendant	Mr S. Pitt	Mills Oakley Lawyers

TABLE OF CONTENTS

Introduction

The Legal Issues
The Standard of Proof in relation to the Forgery Allegation
The Standard of Proof in relation to the Interest Issue Allegation
General Comments on the Evidence
The Allegation that Mrs Jarrold’s Signature on the Power of Attorney Was Forged
The Lay Evidence in respect of the Forgery Allegation
The Expert Handwriting…

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 Jarrold v Isajul

Details

AGLC: Jarrold v Isajul [2013] VSC 461
Case: [2013] VSC 461
Decision Date: 10 September 2013

CaseChat Overview and Summary

In the case of Jarrold v Isajul, the plaintiff, Ms Jarrold, sought a declaration of her one half legal interest in a property which was purchased by the fifth defendant and allegedly sold without her knowledge. Ms Jarrold brought proceedings against several defendants, including the first and second defendants, who were involved in the conveyance of the property. She alleged that these defendants were negligent in handling the conveyance. The third defendant, a solicitor, was alleged to be liable for statutory indemnity under the Transfer of Land Act 1958. The plaintiff settled her claim against the first and second defendants on the second day of the trial. The primary issues before the court were whether Ms Jarrold was entitled to indemnity for her loss and damage from the third defendant, whether the power of attorney used to purchase the property was forged, and whether there was a resulting trust in relation to the property.

The court considered the evidence and found that Ms Jarrold had not satisfied the burden of proof required to establish that the power of attorney was forged. The court relied on the Briginshaw v Briginshaw standard of proof and the provisions of the Evidence Act 2008, concluding that Ms Jarrold had not demonstrated that the power of attorney was forged on the balance of probabilities. The court also examined the credibility of the lay witnesses and expert evidence on handwriting, ultimately finding that the plaintiff had not discharged the onus of proof. Additionally, the court found that there was no resulting trust in relation to the property, and the presumption of advancement was not rebutted. Consequently, the court dismissed the plaintiff’s claims against all defendants.

The court ordered that the plaintiff pay the costs of the first, second and third defendants, as they were the successful parties in the proceedings. The court further ordered that the fifth defendant pay the costs of the third defendant. These orders reflect the court’s determination that Ms Jarrold’s claims were not substantiated and that the defendants were entitled to costs as a result of the proceedings.

Orders