MEMO OF LEGAL ADVICE

It must be an original paper and i have included the example layout (off course on different topic which has been supplied to us) so this instruction is long. If the work is of good standard i will be sure to use your service in future..see below
facts scenario is my case study for assignment.
FACTS SCENARIO

You are a first year law student completing a clerkship at the Victorian
Government Solicitors Office. Your supervising solicitor, Jemma York, knows that you are a current Deakin University student who is studying the Charter of Human Rights and Responsibilities Act 2006 (Vic) and requests your advice in relation to the scenario below.

Debbie Allen was charged with the indictable offence of obtaining property by deception. As the value of the property was $90,000, the indictable offence was
tried summarily in the Magistrates Court of Victoria. On 13 February 2013,
Debbie was convicted and sentenced by Magistrate Ryan Doherty to a term of imprisonment of two years. Debbie was transferred to Cowden Prison on14 February 2013. A privately owned corporation, Reformatory Services Pty Ltd, has a valid contract with the Department of Justice to manage Cowden Prison.

Debbie decided to appeal the sentence imposed by Magistrate Doherty
The appeal was lodged in the County Court of Victoria on 1 March 2013 and Debbie was granted legal aid to facilitate the appeal. The appeal was listed
for hearing on 15 May 2013, however, Debbie’s lawyer, Joe Smith, withdrew
because Debbie would not follow his legal advice. As a result, the matter was adjourned for hearing to 5 August 2013. Debbie was to be represented by Elizabeth Robinson for the hearing on 5 August. However, after a disagreement with Debbie in relation to the advice provided Elizabeth sought leave to withdraw as counsel for Debbie. The leave was granted and the appeal was relistedfor hearing on 15 October 2013. Before the appeal was heard, Victoria Legal Aid (VLA) revoked Debbie’s grant of legal aid.

Debbie appeared unrepresented before Judge Daves of the County Court of Victoria on 15 October 2013. Judge Daves expressed concern that Debbie maybe ‘seriously disadvantaged’ by her lack of legal representation. Debbie stated to Judge Daves that she wanted to be legally represented but VLA revoked her legal aid.

Sharon Mantz, the representative for VLA, explained to Judge Daves that
due to Debbie failing to follow the advice of previous counsel and her
repetitive behaviour of discharging previous counsel, VLA was not prepared to provide further legal aid.

Debbie contended that she was entitled to legal representation under the
Charter of Human Rights and Responsibilities Act2006 (Vic) (‘Charter’) and that without legal representation she would not have a fair trial as mandated by the Charter.

Judge Daves referred the questions of law, pertaining to the Charter, to the Supreme Court of Victoria. While in custody at Cowden Prison, awaiting the decision of the Supreme Court of Victoria. Debbie has alleged that her Charter rights are being contravened. Your supervising solicitor has provided you with the complaint made by Debbie.

My name is Debbie Allen and I am serving a 2 year sentence at Cowden Prison, located in the State of Victoria. Since arriving at Cowden Prison I have been forced to work in the prison cafeteria for between 3 – 4 hours per week. I have been forced to do tasks such as wash dishes and chop vegetables. I find this work uninteresting and menial. I have also been denied medical treatment.
Before my imprisonment I was seeing my physiotherapist, Joanna Ling, on a
weekly basis to help with my bad back and mobility issues. Since being imprisoned I was told that I could no longer see Joanna, but instead I could make an appointment to see the Cowden Prisonphysiotherapist, Kathy Keith. I do not want to see a new physiotherapist. Joanna has been treating me for years and knows of all my aches and pains. I worry that myback will get worse and my health will suffer because I am unable to see Joanna during my term of imprisonment.

Yours Sincerely
Debbie Allen

The Director of Cowden Prison, Karl McAdams, has confirmed that all inmates
are required to assist in the prison canteen for up to 4 hours per week. Required tasks of all inmates include washing dishes, mopping the floor and chopping vegetables. Debbie has been asked to complete the same tasks required of all inmates. Karl also Confirmed that it is the policy of Cowden Prison to arrange the provision of necessary healthcare services for inmates. Karl stated that the reason inmates are unable to choose their own healthcare providers is because it would be a threat to the security of Cowden Prison. All healthcare professionals who are employed by Cowden Prison are carefully screened and have to pass extensive background checks. Your supervising solicitor seeks the following advice from you:

(1) Is there an enforceable right to legal aid under the Charter?
(2) Is Debbie correct in her assertion that without legal representation she would not have a fair trial as mandated by the Charter?
(3) Is Cowden Prison in breach of the Charter?
INSTRUCTIONS
You will be required to conduct legal research to provide the advice requested in the assignment. You are required to provide this advice in the form of a memo.
Legal research requires an investigation into primary and secondary sources of law to produce a credible argument. Please ensure that your contentions are supported with relevant primary and/or secondary sources of law.

Research relevant primary and/or secondary materials and write your memo of advice based on your research. Memo of Legal Advice: The advice must be presented in the format of a memo. Please see the sample memo of advice below

 

 

Specific Requirements
The word limit for the memo of advice is 2000 words and an annotated bibliography.
•You must include the word count at the conclusion of your memo of advice.
•Please use a font no smaller than 11 point, with line spacing of 1.5.
•The memo of advice must be footnoted correctly in accordance with the Australian Guide to Legal Citation (3rdedition). Students will be penalised for not citing in accordance with the Australian Guide to Legal Citation.
•You can access the AGLC3 online at
www.mulr.law.unimelb.edu.au/go/AGLC3
There is a sample legal memo and bibliography contained below
Please pick three sources listed in your bibliography and briefly explain for each source:
Whether the source is a primary or secondary source of law.
Where you found the source.
Why the source is relevant and authoritative.
: All assignments must be submitted electronically by 11am (AEST or AEDST) on 6 May 2014. Assessment 2 is due by 11am 6 May 2014 (AEST or AEDST).Please note no late submissions or extensions.
All pages of the assignment must be numbered in the header or footer.
Specific Requirements

 

EXAMPLE OF A MEMO OF ADVICE AS TO LAYOUT
Legal Advice Instructions
You have sought advice on the legal issues pertaining to your Balwyn and Kew
Properties, and your priority thereto. Our advice on these matters is contained below.

Legal Questions Presented

In relation to the Balwyn Property:
1.Has Pierce Hawthorne committed fraud under the Transfer of Land Act 1958
(Vic) by denying you the option to re-purchase the property?

2. Is there an in personam action against Pierce Hawthorne to enforce the option to repurchase the property?

In relation to the Kew Property:

1. Has Britta Perry committed fraud under the Transfer of Land Act 1958
(Vic) by transferring the house into her name?
2. Will Greendale Bank be able to enforce the mortgage over the property?

Short Advice

In relation to the Balwyn property, our advice is that you can successfully argue either fraud or in personam against Pierce Hawthorne to enforce the option to re
-purchase the property, given that he had notice of your agreement with Jeff Winger, coupled with his express assurance to uphold that agreement.

Regarding the Kew property, our advice is that you would be able to successfully argue fraud against Britta Perry. However, it is likely that Greendale Bank’s mortgage over the property will be upheld, although you may not have an obligation to pay the mortgage instalments.

 

Long Advice

I BALWYN PROPERTY

Prima facie, when a title holder registers their interest under the Torrens system, they acquire ‘indefeasibility of title.’ As stated in Frazer v Walker, ‘the expression…is a convenient description of the immunity from attack by adverse claim to the land or Interest in respect of which he is registered, which a registered proprietor enjoys.’2The Transfer of Land Act 1958(Vic) (‘TLA’) sets out the paramountcy provisions, which have been interpreted such that title is created anew upon registration, as it is ‘not a system of registration of title, but a system of title by registration, ’endorsing a system of ‘immediate indefeasibility.’4
Despite the vesting of immediate indefeasibility, a registered proprietor’s title is
subject to several statutory and non-statutory exceptions. As such, although Pierce has obtained indefeasible title by registration, his title may be set aside on the basis of the statutory exception of fraud or the in personam personal equity6
A Option to Re-Purchase (Restrictive Covenant)

[The original agreement with Jeff Winger of an option to re-purchase the land forms a restrictive covenant, being a contractual agreement regulating the alienation of the property, enforceable in personam against Jeff or any successors in title.7Although the common law has generally struck down restraints on alienation as repugnant and Contrary to public policy,8 this is a mere partial contractual condition for a ‘legitimate collateral purpose,’ which would be upheld on the basis of public policy.9

Below in footnotes
1Samantha Hepburn, Australian Property Law (Lexis Nexis Butterworths, 2nd ed, 2012) 596.
2 Frazer v Walker[1967] 1 AC 569.
3 Breskvar v Wall(1971) 126 CLR 376, 385-6 (Barwick CJ).
4 Gibbs v Messer[1891] AC 258.
5Transfer of Land Act 1958(Vic) s 44.
6 Bahr v Nicolay(No 2)(1988) 164 CLR 604 (‘Bahr v Nicolay’).
7 See, eg, Austerberry v Corporation of Oldham(1885) 29 Ch D 750.
B Fraud
Fraud is an express statutory exception to indefeasibility. However, the term ‘fraud’ itself is not defined in the statute and has been left to judicial determination. In Victoria, s 42(1) TLA establishes the fraud exception, with s 44(1) stating that ‘any folio…procured or made by fraud shall be void.’10The High Court stated in Farah Constructions Pty Ltd v Say-Dee Pty Ltd held that Torrens fraud means ‘actual fraud, moral turpitude.’11 Section 43 abolishes the common law doctrine of notice, providing that mere notice of a prior interest does not vitiate the transaction for fraud. Whereas mere notice cannot satisfy statutory fraud12 there is common law authority to suggest that where notice is coupled with an express assurance, such conduct would proceed beyond mere notice and can amount to statutory fraud.13 In Loke Yew v Port Swettenham Rubber Co,14 the Privy Council found that a failure to uphold an express assurance made prior to registration was part of a fraudulent scheme to acquire the land.

Furthermore, your situation is directly analogous to the facts of Bahr v Nicolay.15 In the present matter, Pierce made an express assurance to uphold the option to re-purchase, and subsequently reneged that offer post-registration, thus coupling notice of the interest with the express assurance. If a court were to form an opinion consistent with that of Mason CJ and Dawson J in Bahr v Nicolay, it would have no bearing on the matter that Pierce may have acted innocently before the transfer. That is, Pierce’s conduct can amount to Torrens fraud as statutory fraud may include some notions of equitable fraud, and can extend to situations where an express assurance is repudiated post-registration.16

 

 

 

Below in footnotes
8 See Hall v Busst(1960) 104 CLR 206.
9Elton v Cavill(1994) 34 NSWLR 289; Nullagine Investments Pty Ltd v Western Australian Club Inc(1993) 177 CLR 635.
10 Transfer of Land Act 1958(Vic) ss 42, 44(1) (‘TLA’).
11Farah Constructions Pty Ltd v Say-Dee Pty Ltd(2007) 230 CLR 89.
12 Mills v Stokman(1967) 116 CLR 61.
13 Loke Yew v Port Swettenham Rubber Co[1913] AC 491.
14[1913] AC 491.
15 Bahr v Nicolay(No 2)(1988) 164 CLR 60.
Nevertheless, a potential issue in the present matter could be that Pierce was only bound by verbal agreements as opposed to a written document. In contrast the facts of Bahr v Nicolay were such that the option to re-purchase was affirmed in both written and verbal formats. However, in Bahr the High Court did not distinguish between a written and verbal assurance in each of the separate judgements. The logical inference that flows from this is that a verbal agreement could carry the same weight as a written assurance. This is relevant in the present matter given that Abed relied upon Pierce’s verbal assurances to his detriment. As such, following the reasoning of Mason CJ and Dawson J in Bahr v Nicolay, Pierce’s registered title could be set aside on the basis of fraud pursuant to s 44(1) TLA, with an institutional express trust created to enforce the option to repurchase the land.

C In Personam

In the alternative, should our fraud arguments be found to be unpersuasive, there is an arguments that Pierce’s conduct may attract the in personam exception to indefeasibility. While the Court in Bahr v Nicolay split on the issue of fraudulent conduct, the judges were unanimous in finding that the respondent’s conduct enlivened the in personam exception. In particular, Wilson and Toohey JJ held that the conduct constituted an in personam obligation rather than fraud under the TLA. A claim of in personam is a non-statutory qualification to indefeasibility, also referred to as the ‘personal equity’ exception, essentially providing that a registered proprietor will remain bound by any equitable or contractual obligations arising from their conduct.17
To this effect, the Privy Council in Frazer v Walker recognised that immediate in defeasibility ‘in no way denies the right of a plaintiff to bring against a registered proprietor a claim in personam, founded in law or equity, for such relief as a court acting in personam may grant.’18 This proposition was affirmed by the High Court in Breskvar v Wall.19
16 Ibid, 615 (per Mason CJ and Dawson J). See also, Presbyterian Church (NSW) Property Trust v
Scots Church Development Ltd (2007) 64 ACSR 31.
17 Samantha Hepburn, Australian Property Law (Lexis Nexis Butterworths, 2nded, 2012) [11.29].
18 Frazer v Walke r[1967] 1 AC 569, 585 (Lord Wilberforce).
19 Breskvar v Wall (1971) 126 CLR 376.
Again, although mere notice is insufficient to establish in personam, notice coupled With other inequitable conduct, such as the positive assurance by Pierce to uphold the obligation, would be sufficient.20Therefore, a remedial constructive trust can arise in favour of Abed in respect of the obligation to re-purchase the property. Such a trust would arise on the basis that Pierce’s notice of your unregistered interest is coupled with the unconscionability stemming from failing to uphold the express contractual obligation. As noted by Brennan J, ‘The title of a purchaser who not only has notice of an antecedent unregistered interest but who purchases on terms that he will be bound by the unregistered interest is subject to that interest. Equity will compel him to perform his obligation.’
21

D Conclusion on the Balwyn Property
Our conclusion on the issue of your Balwyn property is that you should be able to successfully claim against Pierce for either fraud or in personam. We proffer this view on the basis of the different judgements in
Bahr v Nicolay. Where fraud is concerned it is notable that the reasoning of Mason CJ and Dawson J has been adopted in subsequent cases.
22 Although Bahr v Nicolay concerned Western Australian Torrens provisions,
23 this should not affect the enforceability of this principle, given the similarity between those provisions and the Victorian TLA. Moreover, the unanimity of the Court in Bahr on the in personam claim, coupled with the correlation of the facts in that matter and the present case, strongly suggests that your claim to the Balwyn property would be irresistible. More pertinently, Bahr has been applied in several Victorian cases and a future court would more certainly follow precedent.24

Below in footnotes
20 Bahr v Nicolay,(Wilson and Toohey JJ).
21Ibid [12] (Brennan J).
22See, eg, HL (Qld) Pty Ltd v Jobera Pty Ltd [2009] SASC 165; Thorpe v Lochel and Ors [2005] WASCA 85; Gunns Ltd v Balani[2011] FCA 431.
23 See Transfer of Land Act 1893 (WA) ss 68, 134.
24See, eg, Russo v Bendigo Bank[1999] 3 VR 376. II

KEW PROPERTY
A Britta Perry
As noted above, prima facie, upon registration, the registered proprietor will obtain indefeasibility of title, which will ‘immunise’ the title against past defects.25 This indefeasible title is subject to recognised statutory and non-statutory exceptions. The consistent common law view is that statutory fraud requires ‘actual fraud, moral turpitude,’26 in the sense of ‘conscious impropriety’27 which must be brought home to the registered proprietor.28 Here, Britta acted fraudulently by acting with ‘conscious impropriety’ in transferring the property into her name.29 As such, her registered Interest can be set aside on the basis of fraud under section 44(1).30

The major issue with the Kew property will be the supervening interests of third
parties. Upon registration, immediate indefeasibility provides that title is created
anew, as Torrens is a system of title by registration, rather than registration of title.31 Although there may be a prima facie action to recover the property from Britta on the ground of fraud, further issues arise from the subsequent transactions with third parties, which may defeat your interest.
B Greendale Bank
The issue here is whether Greendale Bank (‘the Bank’) has an enforceable mortgage over your land, or whether it can be set aside on the grounds of either fraud or in personam.

Below is in footnotes
25 Tara Shire Council v Garner [2003] 1 Qd R 556, [49] (Atkinson J).
26Farah Constructions Pty Ltd v Say-Dee Pty Ltd(2007) 230 CLR 89.
27 Davis v Williams [2003] 11 BPR 21, 313.
28Russo v Bendigo Bank[1999] 3 VR 376.
29 Vassos v State Bank of South Australia[1993] 2 VR 316.
30TLAs 44(1).
31Breskvar v Wall (1971) 126 CLR 376, 385-6 (Barwick CJ).

1 Fraud

It is unlikely that the Bank will have committed fraud here, given that there is a
distinct lack of ‘moral turpitude’ or ‘conscious impropriety’ which has been brought home to the registered proprietor.
32 Whilst Troy Barnes did not inspect the certificate of title or any identification, there was no intent to deceive or defraud you. The facts here are similar to those in Grgic v ANZ,33 where the NSW Court of Appeal held that a lack of care on the part of a bank manager did not amount to fraud. Whilst there may have been equitable fraud in the sense of an unconscionable consequence,
34 statutory fraud is narrower in scope,35 and the weight of authority suggests that mere carelessness or negligence in inspecting documents will not amount to statutory fraud, as mens rea or actual dishonesty must be shown.36 Given that the careless mortgagee exception does not apply in Victoria, the mortgage encumbrance will not be set aside on the basis of fraud, as Troy had no way of knowing that Britta acted fraudulently, nor did he act with conscious impropriety or an intention to deceive. 2 In Personam

Alternatively, it is possible that the lack of inspection gave rise to in personam or a ‘personal equity’ against Troy as agent of the Bank. It could be said that it would be unconscionable to enforce the mortgage against the land, given that Troy may haveconstructive notice of Britta’s fraud, in the sense of what he should have known had the proper enquiries occurred.37 However, the personal equity must arise only from acts of the registeredproprietor, and they cannot be inconsistent with the policy of Torrens legislation.38

As s 43 abolishes the doctrine of notice, founding a personal equity on constructive notice would be inconsistent with the policy of Torrens legislation. As noted, there is

Below is in footnotes
32Assets Co Ltd v Mere Roihi [1905] AC 176.
33(1994) 33 NSWLR 202.
34Nocton v LordAshburton[1914] AC 932.
35Bank of South Australia Ltd v Ferguson(1998) 192 CLR 248, 256.
36 See, eg, Young v Hoger[2001] QCA 453; Macquarie Bank v Sixty-
Fourth Throne[1998] 3 VR 133; Davis v Williams[2003] 11 BPR 21, 313;
JW Wright Enterprises Pty Ltd (in liq) v Port Ballidu Pty Ltd[2010] Q Conv r 54-734.
37 Barclays Bank Plc v O’Brien [1994] 1 AC 180. 38Mercantile Mutual Life Insurance Co Ltd v Gosper(1991) 25 NSWLR 32 (Mahoney JA).

a string of authority that curtails the operation of the Barnes v Addy doctrine.
39 As, Tadgell J stated in Macquarie Ban, ‘I know of no decision, however, that would authorise the application in the Torrens system of the doctrine of constructive notice.’40 Given that a forgery per se is insufficient to give rise to inpersonam,41 and that mere notice, without anything else, is also unsatisfactory, the fact that Troy may have had constructive notice of Britta’s fraud will not found a cause of action to have the mortgage set aside.

3 Conclusion on Kew property

Our advice is that the mortgage cannot be set aside on the grounds of either statutory fraud or in personam. Although this may enable the Bank to use the property as security for the mortgage repayment, there may be no obligation to repay the mortgage instalments, as the obligation to repay was made in Britta’s name, not yours.42 We require further advice on the mortgage documentation, and whether the covenant to repay was annexed to the mortgage itself, or whether it was contained in a collateral document.

Below is in footnotes
39 See Macquarie Bank v Sixty-Fourth Throne[1998] 3 VR 133 (Tadgell J); LHK Nominees v Kenworth
[2002] 26 WAR 517; Farah Constructions Pty Ltd v Say-Dee Pty Ltd[2007] 81 ALJR 1107. Cf Tara Shire Council v Garner
[2003] 1 Qd R 556 (Atkinson J).
40 Macquarie Bank v Sixty-Fourth Throne[1998] 3 VR 133 (Tadgell J).
41 Vassos v State Bank of South Australia[1993] 2 VR 316.
42 PT Ltd v Maradona Pty Ltd(1992) 25 NSWLR 643; Provident Capital Ltd v Printy[2008] NSWCA
131.

ANNOTATED BIBLIOGRAPHY

A Articles/Books/Reports

Band, Jonathan and Matt Schruers, ‘Daster, Attribution, and Plagiarism’ (2005) 33
American Intellectual Property Law Association Quarterly Journal21
Billings, Roger, ‘Plagiarism in Academia and Beyond: What is the Role of the Courts?’ (2004) 38 University of San Francisco Law Review391Mullins, Debra,
‘Warts and All: The Impact of Candour in Assessing character for admission to
the legal profession’ (2009) 28 University of Queensland Law Journal361 Papay-Carder, Debbie, ‘Comments: Plagiarism in Legal Scholarship’ (1983) 15 University of
Toledo Law Review 233
Parameswaran, Ashvin, ‘Student Dishonesty and Faculty Responsibility’ (2007) 12
Teaching in Higher Education 263
Wyburn, Mary, ‘Disclosure of Prior Student Academic Misconduct in Admission to Legal Practice: Lessons for Universities and the Courts’ (2008) 8
Queensland University of Technology Law and Justice Journal314

 

B Cases
Re AJG [2004] QCA 88 Re Davis (1947) 75 CLR 409
Re Humzy-Hancock [2007] QSC 34 (26 February 2007)
Re Liveri [2006] QCA 152 (12 May 2006)
Re OG a Lawyer[2007] VSC 520

C Legislation
Legal Practitioners Act 1981 (SA)
Legal Profession Act 2004(Vic)
Legal Profession Act2007(Qld)

D Other
ABC Radio, ‘Magistrates and Plagiarism’,
The Law Report (online), 9 May 2006
<www.abc.net.au/m/lawreport/stories/2006/1633885.htm>
Board of Examiners, Admission Requirements (5 September 2012) Council of Legal Education <http://www.lawadmissions.vic.gov.au>
Schroeder, Jeanne, ‘Copy Cats: Plagiarism and Precedent’ (Working Paper No 185, Benjamin Cardozo School of Law, Yeshiva University, 2007)
Ronald Standler, Plagiarism in Colleges in USA (16 April 2012) Clemson University <http://www.rbs2.com/plag.pdf>

Source 1:Wyburn, Mary, ‘Disclosure of Prior Student Academic Misconduct in Admission to Legal Practice: Lessons for Universities and the Courts’ (2008) 8 Queensland University of Technology Law and Justice Journal 314
This journal article is a secondary source of law. I located the article by searching Hein Online, a legal database.
The article is authoritative because it is published in a peer-reviewed journal and contains an in depth analysis of the cases and legislation relevant to admission to practice.This journal article is relevant because it provides commentary on the issue of disclosing academic misconduct, which is the focus of this assignment.

 

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