Senior Counsel Assisting the Royal Commission's serious error about the Law regarding Auctions and the Sale of Land Act, Victoria
Senior Counsel Assisting the Royal Commission Jeremy Stoljar SC made a serious error in his Submission to the Commission regarding the AWU WRA Inc and in particular the Power of Attorney used in the Kerr Street purchase.
The signing of the Power of Attorney
It is now possible to consider further the circumstances in which Mr Blewitt came to sign the Power of Attorney.
The starting point is that it would appear objectively likely that Mr Wilson and Ms Gillard had the original power of attorney at the auction on 13 February 1993. It would seem unlikely that the vendors under the contract of sale would have exchanged contracts with a person (Wilson) who was not, himself, the purchaser of the property (i.e. Blewitt), and who did not have a Power of Attorney from that purchaser. In the unlikely event that the vendors would have exchanged on the basis of a contract signed by Wilson without some proof of his authority to do so one would have expected detailed correspondence on this issue immediately following the auction. There is no such correspondence.
If Mr Wilson and Ms Gillard had the executed Power of Attorney with them at the auction on 13 February 1993 then it would appear reasonable to infer that it was executed at some point leading up to that date – presumably on the evening of 3 February or the morning of 4 February 1993 when Mr Blewitt was last in Melbourne. This version is also consistent with Ms Gillard’s evidence as to her practice as a solicitor, namely that she would not have witnessed Mr Blewitt’s signature without having seen him sign the Power of Attorney. Ms Gillard had no reason to take a professional risk by departing from her usual practice, since Mr Blewitt had been in Melbourne on the evening of 3 February and the morning of 4 February 1993.
Mr Stoljar produces no evidence to support his opinion that it "would seem unlikely that the vendors would exchange contracts" with Wilson without a copy of the Power of Attorney. Mr Stoljar's opinion is at odds with Victoria's Sale of Land Act 1962 and the express written provisions of the contract for the sale prepared on behalf of the vendors and distributed well in advance of the auction date (as required under the Act).
The vendors used a standard form of contract prepared by the Law Institute of Victoria and the Real Estate Institute of Victoria.
One of the General Conditions of the Contract of Sale is the provision for the Purchaser to to use a "Nominee" to attend the auction and enter into the contract;
However such were the express wishes of the vendors and their Solicitor that they further provided in the Contract for the Sale of Land the following Special Condition, prepared and distributed in advance of the Auction and prominently displayed (as required by the Act) prior to the Auction:
The Clause continues in the copy of the Contract first tendered to the Commission by Senior Counsel Assisting Mr Stoljar himself on 12 May 2014 in Blewitt and again by Mr Stoljar for the witnesses Wilson, Palmer and Gillard.
Stoljar's misplaced confidence in his opinion over Victoria's Sale of Land Act and the express Special Condition of the Vendor's Contract of Sale resulted in him making this extraordinary Submission to the Commissioner as to the "starting point" for the Commissioner's findings as to the preparation and witnessing of Blewitt's Power of Attorney:
The starting point is that it would appear objectively likely that Mr Wilson and Ms Gillard had the original power of attorney at the auction on 13 February 1993.
He bases that "starting point" on his opinion as to the vendors state of mind at the Auction on 13 February. We know that Stoljar's opinion as to what they may have thought is at odds with their written intentions and the express provisions of the Sale of Land Act which provided for the use of any person to exchange contracts as Nominee. Further, the law at the time required those express provisions to be read to the Auction attendees by the Auctioneer, a standard practice that Mr Hedditch the auctioneer will confirm to the Commission was adhered to by him on the day of the Auction.
Mr Stoljar's failure to exercise due diligence in commenting on the vendor's intentions and the provisions of the Act and the written contract was reflected in the Interim Report of the Royal Commission in relation to the AWU WRA Inc, Power of Attorney - Pages 293-295. The Commissioner dismisses the evidence of the Donor of the Power of Attorney as to the circumstances in which he made the donation in favour of his boss Bruce Wilson, such donation ostensibly witnessed by Wilson's de-facto partner Julia Gillard:
"Hence Wilson and Gillard had the executed Power of Attorney with them".
They certainly had a cheque for the deposit with them - a fact that would have satisfied the auctioneer and the Agents for the vendor poised with the backing already removed from the adhesive banner emblazoned with the word "SOLD".
The Commission's preference for Mr Stoljar's opinion as to the state of mind of the vendors, the auctioneer and the vendors' agents is not supported by any evidence from them. I know that the auctioneer and the young agent Heidi were available to give evidence if Counsel Assisting thought it might be helpful to his cause. He didn't call them.
The Sale of Land Act would have bound them to accept a Nominee purchaser with Blewitt's details substituted at leisure prior to settlement. The express provisions of Clause 8 of the Special Conditions make their intentions clear beyond doubt.
The law deals very harshly with persons who mis-represent the wishes of those who donate their Power of Attorney. When in doubt, the benefit of that doubt ought vest in the Donor, particularly where the Donee is the Donor's boss and the solicitor who purportedly witnesses the Donation is the Donee's de-facto, who later attends an auction for real property where the Power is exercised and further used (and substantially read up in terms of its authority) to burden the Donor with a $100K loan. Blewitt states he signed the document in the week commencing Monday 15 February 1993. As the Donor he should know what he donated and when.
I would imagine the Commission might expect further legal action on this matter.
The basis for the Commission's exoneration of Ms Gillard's conduct in the Power of Attorney is one man's erroneous "opinion" about what the owners of a property for sale might have been thinking. The law makes clear that Stoljar is wrong, thus the finding about when the Power of Attorney was executed is unsafe. Every touch leaves its trace.