Sholl Nicholson Pty Ltd v Chapman - [2001] VSC 430

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7238 of 1998

SHOLL NICHOLSON PTY (ACN 052 098 012)

Plaintiff

PHILIP ANDREW CHAPMAN as the legal personal representative of the Estate and Will of ELLEN AMELIA CHAPMAN deceased

REGISTRAR OF TITLES

Firstnamed Defendant

Secondnamed Defendant

---

JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	15, 18, 19 & 27 June, 8-10, 13-17, 20 & 29 August, and 21 September 2001
DATE OF JUDGMENT:	12 November 2001
CASE MAY BE CITED AS:	Sholl Nicholson v Chapman
MEDIUM NEUTRAL CITATION:	[2001] VSC 430

---

Plaintiff law firm’s claim for the payment of moneys said to be owed to it for work performed by it – whether the plaintiff has a caveatable interest over the title to the defendant’s property – where the title is charged with payment of those moneys, as security provided for outstanding and estimate future costs – The defence alleges inducement by the plaintiff to execute the deeds by unconscionable conduct, undue influence and duress, and seeks to have the deeds set aside.

Transfer of Land Act 1958 – section 89 A

Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Crescendo Management v Westpac (1988) 19 NSWLR 40
Johnson v Buttress (1936) 56 CLR 113
Union Bank of Australia Ltd v Whitelaw [1906] VR 711

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr AW Sandbach	Sholl Nicholson Lasky Pty
For the Firstnamed Defendant	Mr AD Robertson	Russell Kennedy

HER HONOUR:

The proceeding

In this proceeding, initiated by writ, the plaintiff seeks (in summary) payment of certain moneys claimed to be owing to it for work performed by it, as well as other orders, as to which see paragraph 24 below, relating to the title to a property said to be charged with payment of those moneys. A counterclaim was filed by the defendants on 31 August 2000, as to which see paragraph 4 below.

The plaintiff is a company which is an incorporated practitioner within the meaning of the Legal Profession Practice Act 1958 and the Legal Practice Act 1996. The solicitor who handled the matter in respect of which the moneys are said to be owing was Ms Head. Ms Head is now Ms Vosjan, and it is convenient to refer to her by that name. Her position in relation to the plaintiff company is described in paragraph 35 below.

On 6 November 1998, the date of filing of the amended writ, there were three defendants named, the firstnamed defendant being Ellen Amelia Chapman (“Ellen”), who has since died. The secondnamed defendant was her son Philip Andrew Chapman (“Philip”) in his personal capacity and the thirdnamed defendant was the Registrar of Titles (“the Registrar”).

On 11 May 2001 Master Kings ordered that unless Philip complied with certain requirements by 1 June 2001 his defence was to be struck out; there was to be judgment against him; his counterclaim was to be dismissed; and he was to pay the…

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.

Keep reading for free

Create a free CaseChat account to read Sholl Nicholson Pty Ltd v Chapman and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2001] VSC 430
Decision Date: 12 November 2001

CaseChat Overview and Summary

Sholl Nicholson Pty Ltd, a law firm, brought an action against Chapman, claiming payment for services rendered. The dispute centred on whether the law firm had a caveatable interest over Chapman’s property, which was charged with the payment of the claimed moneys as security for outstanding and estimated future costs. Chapman argued that the law firm had induced him to execute the deeds under unconscionable conduct, undue influence, and duress, and sought to have the deeds set aside.

The court was required to determine whether Sholl Nicholson Pty Ltd had a caveatable interest over Chapman’s property, and if so, whether Chapman's defences of unconscionable conduct, undue influence, and duress were valid. The court considered the provisions of the Transfer of Land Act 1958, section 89A, and relevant case law including Commercial Bank of Australia Ltd v Amadio, Crescendo Management v Westpac, Johnson v Buttress, and Union Bank of Australia Ltd v Whitelaw.

The court found that Sholl Nicholson Pty Ltd did have a caveatable interest over Chapman’s property, as the title was charged with payment of the moneys claimed. However, the court also found that Chapman had successfully established that the law firm had induced him to execute the deeds under unconscionable conduct, undue influence, and duress. Consequently, the court set aside the deeds, and Sholl Nicholson Pty Ltd's claim was dismissed.

Sholl Nicholson Pty Ltd’s claim was dismissed, and the deeds were set aside.

Orders