Conveyancing Process
Answer:
Facts of the Case:
Victor Batrouney and Muriel Elsie Batrouney owned a property on the Morington Peninsula at Whitecliffes Road. In the year 1998, the defendants asked their solicitor John Crump to prepare a vendors statement in accordance with the provisions that is contained in section 32 of the Sale of Land Act, 1962. While Mr. Crump, the solicitor prepared the vendors statement he found that the property was marked as “Highdunes Residential.” This information was contained as part of the vendors statement. In the year 1999, five municipalities were amalgamated to form new “Morningtion Peninsula Shire.” The property was part of one such segment and the property was marked “Residential 1.” In the year 1999, Mr. Crump was instructed to prepare a statement as per section 32 of the Act as the defendants wanted to sell their property. However, Mr. Crump prepared it in a hurry and failed to include the necessary information in the statement as per the new changes. Consequentially, property was sold to Janet Paterson that was to come in effect on 31st May 2000. On 8th May 2000 the solicitor of the plaintiff were informed about the property that was marked as “Residential 1.” The defendant received a letter from the solicitor of the plaintiff demanding rescission of contract and return of the deposited amount under section 32 (5) of the Sale of Land Act.
Summary of the Legal Issues:
Based on the facts that is stated above, the issue that arises here are the following:
- Whether the defendant provided false information to the plaintiff under section 32 (2) (c) of the Act?
- Can the plaintiff claim for rescission of contract and refund of the deposit? and;
- Did the defendants act honestly and reasonably in the matter?
Decisions of the Case:
The case was decided in the joint Judgement of Judge Charles, Judge Callaway and Judge Brooking. In deciding this case, Judges Charles and Callaway considered the requirements of section 32 (7) of the Act and the decision that was taken by the Court of Appeal in Fifty Eighth Highware Pty Ltd v. Cohen and Another. In their Joint Judgement, the Judges focused on the four requirements that were stated in section 32 subsection 7 of the Act. To adjudicate the vendor’s liability, whether or not he acted reasonably is a matter of judicial discretion. This was part of the first three requirements, the final requirement focused on the purchaser, and whether, he acted in compliance with section 32 of the Act. The Judges declared stating, “It will be usually inappropriate to visit the negligence of the solicitor on his client.” Judge Brooking was the third member and he gave reasons justifying the thoughts of the other two Judges, passed an order that the plaintiff pay the procedural and additional costs to the defendants not holding the client vicariously liable for the negligence his solicitor conducted.
Reasons for decision of the Case:
The following are the reasons of the decision of this case:
- The statement of the vendor that was prepared by the plaintiff’s solicitor was faulty due to the negligence of the solicitor and not the client themselves.
- In the given case, the defendants were eighty years old and they gave the responsibility to Mr. Crump and K. & M. Norris for executing their sale. In the opinion of the Judge, they acted quite reasonably and should not be held vicariously liable for the negligence of the solicitor.
- Hence, in dealing with the conduct of the vendor, whether or not he acted reasonably, the conduct of the vendor should be dealt with personally.
- There was no intention on the part of the plaintiff to sub divide the two allotments nor there was any proof that she wanted to be released from the contract due to the change in the planning requirements. Had she had any such intention, the division may have been difficult for her. However, she may not have to encounter such difficulties any further.
- The Judge decided the case holding the plaintiff to be in a good position and that she has complied with all the provisions of section 32 of the Act and that the defendant should be excused for the contravention as the negligence was on the part of the solicitor and not the client themselves.
References:
Fifty-Eighth Highwire Pty. Ltd. v. Cohen and Another [1996] VicRp 57; (1996) 2 V.R. 64.
Fitzpatrick, Daniel, and Andrew McWilliam. Property and social resilience in times of conflict: land, custom and law in East Timor. Routledge, 2016.
Grigg, Brendan. The Boundaries of Australian Property Law. Cambridge University Press, 2016.
Megarry, Robert, et al. The law of real property. Sweet & Maxwell, 2012.
Rembar, Charles. The law of the land: The evolution of our legal system. Open Road Media, 2015.
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