Clarey v Permanent Trustee Co Limited & Anor

[2005] VSCA 128

Victorian Court of Appeal

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Practice and Procedure
2. › Adjournment
3. › Refusal of adjournment
4. › Party involuntary patient in psychiatric hospital
5. › Whether refusal of adjournment denial of procedural fairness
6. › Right of party to be present at trial
1. Practice and Procedure
2. › Persons under disability
3. › Litigation guardian
4. › Failure to appoint litigation guardian
5. › Whether failure rendered proceedings a nullity or mere irregularity
6. › Supreme Court (General Civil Procedure) Rules 1996 (Vic), Orders 15.02, 15.03
1. Practice and Procedure
2. › No case to answer
3. › Submission of no case
4. › Whether defendant required to elect not to call evidence
5. › Cross-examination of plaintiff incomplete
6. › Whether decision to entertain no-case submission premature
7. › Discretion exercised in error
1. Agency
2. › Authority of agent
3. › Actual authority
4. › Conveyancer appointed to act in sale of land
5. › Whether conveyancer had actual authority to receive purchase price in form of cheque payable to conveyancer's company

Quick Take

A conveyancer appointed to act in a sale of land does not have customary authority to receive the purchase price in the form of a cheque drawn payable to the conveyancer or the conveyancer's company; a purchaser's lender who pays in that form without express authority from the vendor does so at its own risk. A trial judge should not entertain a no-case submission on the sufficiency of evidence without requiring the defendant to elect not to call evidence where the plaintiff's evidence is incomplete due to illness and the deficiencies in the plaintiff's evidence may be attributable to that illness. Failure to appoint a litigation guardian for a party under disability is an irregularity capable of being cured, not a nullity.