66 Section 32(3) requires relevant title documentation to be attached to the s.32 statement.
67 Section 32(4) provides that where information required by paragraphs (c), (d) or (e) of sub-section (2) is contained in a certificate issued by the relevant authority, provision of the certificate will be sufficient compliance with the sub-section.
68 Section 32(5) provides that if false information is supplied in the statement or certificates required by the section, or there is a failure to supply information required by the section, the purchaser may rescind any contract for the sale of land which has been entered into on the basis of the information supplied, at any time before the purchaser accepts title and becomes entitled to possession or the receipt of rents or profits.
69 Section 32(5)(A) governs the situation where a notice of intention to acquire land has been served under s.6 of the LAC Act.
70 Section 32(6) makes it an offence for a vendor to knowingly or recklessly supply false information or fail to supply information required by the section.
71 Section 32(7) provides a proviso to s.32(5) in specified circumstances.
72 Section 32(8) provides that the section cannot be excluded, modified or restricted by contract.
73 Section 32(9) provides for exceptions in the case of consecutive contracts between the same parties on substantially similar terms.
74 As the Institute submitted, non-compliance with s.32 has serious consequences for a vendor. In particular, innocent non-compliance gives the purchaser the right to rescind pursuant to s.32(5).[21]
Facts in the Present Case
75 The first defendant has both practical background and academic training in conveyancing. She has undertaken several initial extended periods of work involving participation in conveyancing transactions in the capacity of a legal secretary. She has also undertaken studies at RMIT University with respect to conveyancing practice, property law, and land contracts as part of a Business Studies (Law) course.
76 In 1995 she commenced full time employment as a conveyancer for a firm of solicitors and a related conveyancing business known as "AAA1 Conveyancing Services". Since that time she has carried on the occupation of conveyancer.
77 The second defendant was initially incorporated by a firm of solicitors in 1997 to conduct a conveyancing business with legal assistance being provided by the solicitors firm. The business utilised precedent documents supplied by a solicitor of that firm.
78 The business was acquired by the first defendant together with another person and since 2001 has been conducted by the first defendant alone. The business has utilised a computer software program and precedents approved by solicitors.
79 The s.32 statement forming the basis of this proceeding first aroused interest upon its receipt by the solicitor acting for another party to the transaction, because it contained extraneous matters, namely contractual terms. In so doing however, I am satisfied it did not evidence a practice which is likely to continue.
80 The first defendant has further deposed to the circumstances in which she completed the s.32 statement giving rise to this proceeding. She says that she completed some parts only of the statement which was otherwise completed by the client. She says she was personally aware of the relevant planning controls and completed information in the statement relating to such controls from her own knowledge.
81 She says further that she completed information with respect to the provision of services to the property partly from information provided by the client's son and partly from documents obtained from Yarra Valley Water.
82 She was advised by the client's son that there were no building approvals, guarantees or insurance. She made the necessary deletions to the s.32 statement accordingly.
83 This evidence demonstrates that the extent to which a conveyancer may exercise judgment with respect to a s.32 statement may vary materially with the facts of a transaction.
84 It is further the first defendant's evidence that she does not give legal advice and there is no suggestion that she has failed to comply with s.330(2) of the Practice Act or purported to act as a solicitor or legal adviser. She deposes that her clients are well aware and informed that she is not a solicitor and only operates a conveyancing company. She notified her client in the present case that a legal practitioner was retained to perform legal work in connection with the transaction.
85 She deposes that if she were required to refer every s.32 statement to a solicitor on an individual basis, the costs involved would severely affect her business.
Legal Advice
86 The Institute contends that the completion of a s.32 statement necessarily involves the giving of express or implied legal advice and therefore constitutes legal work as defined by s.326 of the Practice Act and the equivalent provision of the Profession Act. More fundamentally it would involve engaging in legal practice because the giving of legal advice is something which is required to be done only by those who have the necessary training and expertise in the law, in order that the public be protected.[22] It submits that the preparation of a s.32 statement will always constitute the practice of the law, such that it can only be undertaken by a legally qualified person.
87 I accept that the completion of a s.32 statement may involve the giving of legal advice, but in my view the Institute could not be entitled to an injunction restraining the defendants from the preparation of s.32 statements unless it can demonstrate that the preparation of such statements will always involve the giving of legal advice or at the very least there is a real and substantial probability that the defendants will in fact engage in the preparation of s.32 statements in circumstances involving the giving of legal advice.
88 The Institute places particular reliance on the decisions of Ipp J in Attorney-General (WA) v Quill Wills Ltd[23] and Heerey J in Australian Competition and Consumer Commission (ACCC) v Murray[24]. Both cases concerned "do it yourself" will kits. In Quill Wills the defendant had attempted to setup a business to sell "will making franchises". A client would be offered a bank of clauses from which they would choose to form a valid will. Ipp J concluded that the Quill Wills system involved the giving of legal advice. His Honour stated: