This article from 2009 considers how a supreme court decision of that year highlights the importance of taking good file notes.
A recent Supreme Court decision of Anthony v Vaclav [2009] VSC 357 illustrates the importance and value of good file notes and making inquiries of the client as to why they are acting as they are if it appears to be to their detriment. The purchaser, Mr Anthony, sought specific performance of a contract of sale of a house owned by Mrs Vaclav. Mrs Vaclav had sought to avoid the contract of sale on the grounds of unconscionability, that it was procured by undue influence or was entered into when she was of unsound mind.
Mrs Vaclav was an elderly lady whose husband had died the previous year. She agreed to sell her home privately to Mr Anthony and sought advice from her long-time solicitor. The judge in the case accepted the evidence given by Mrs Vaclav’s solicitor. He took file notes of the critical conversations he had with Mrs Vaclav and the judge accepted that those conversations took place as recorded in the file notes. The solicitor gave evidence that he was concerned that Mrs Vaclav was vulnerable and that the price agreed upon was too low. He questioned her and satisfied himself that she knew what she was doing and was happy to sell her house at the price agreed. The judge found that ‘critically she was specifically advised by her solicitor on the important issue of the sale price, and understood his advice.’
The judge found that the timing and quality of Mrs Vaclav’s solicitor’s advice was such that any inequality between Mr Anthony and Mrs Vaclav was neutralised. He also found that there had been no undue influence nor was she of unsound mind.
