Register
Professional Misconduct

Erdem Hussein


Address: Unit 2, 2A Newton Road, Blacktown, NSW, Australia
Sex: Male
Occupation: Lawyer
Date: 27 July 2010


Details



On 07/27/2010, Erdem Hussein was disciplined by the Legal Services Division of the Administrative Decisions Tribunal by way of reprimand and a fine of $1,000 with costs for:


Failure to provide complainant with an account for costs and disbursements.


Failure to release complainant's file and other papers notwithstanding that his account had been paid in full.


Delay in providing a cheque to Counsel for fees although dated 11 July 2003 until 27 April 2004.


Drawing on funds held in payment of his costs prior to providing a Memo of his Costs and Disbursements.


Gross delay.


Failure to communicate.


Wilful breach of section 61 of the Legal Profession Act, 1987.


Wilful breach of section 62 of the Legal Profession Act, 1987.


Improper dealing of trust property.


Misleading correspondence.


Preparing and attending to the swearing of an Affidavit knowing it to be false.


Acting unethically with respect to representations to a mortgagee.


Delay in responding to correspondence.


Failure to communicate.


Failure to transfer documents.


Knowingly misled the ANZ Bank.


Hindering, Obstructing and Delaying the Investigator.


DISCLAIMER:


The fact that a person's name and details appear in the Professional Misconduct section of this website does not imply in any way that the person is a criminal or has engaged in any criminal behaviour.


 


Full details of the hearing before the Administrative Decisions Tribunal of New South Wales




    CITATION:    The Council of the Law Society of New South Wales v Hussein [2010] NSWADT 182
        
    DIVISION:    Legal Services Division
        
    PARTIES:    APPLICANT The Council of the Law Society of New South Wales

REPSONDENT Erdem Hussein
        
    FILE NUMBER:    082017
        
    HEARING DATES:    3 and 4 December 2009
        
    SUBMISSIONS CLOSED:    28 April 2010
        
    
DATE OF DECISION:     
27 July 2010
        
    BEFORE:    Hale S - Judicial Member; Riordan M - Judicial Member; Fitzgerald R - Non-Judicial Member
        
    CATCHWORDS:    Solicitor – professional misconduct –unsatisfactory professional conduct- breaches of Legal Profession Act, 1987, sections 61 and 62
        
    LEGISLATION CITED :    Legal Profession Act, 1987, Legal Profession Act, 2004, Legal Profession Regulations 1994
        
    CASES CITED:    In re Hodgekiss [1962] SR (NSW) 340; Re Miles; Ex Parte Law Society of New South Wales [1966] 84 WN (Pt 1) (NSW) 154; Re Mayes and The Legal Practitioners Act (1974) 1 NSWLR 19; Law Society of New South Wales v Hill [2002] NSWADT 190 at [45]; Law Society of New South Wales v Lukas [2004] NSWADT 231 at [19]; Council of the Law Society of New South Wales v Halligan [2009] NSWADT 317; Briginshaw v. Briginshaw (1938) 60 CLR 336
        
    REPRESENTATION:    APPLICANT
P. Boyd, Solicitor

RESPONDENT
T. Williams, Solicitor
        
    ORDERS:    1.The Respondent is guilty of professional misconduct
2.The Respondent is guilty of unsatisfactory professional conduct
3.The Respondent is publicly reprimanded
4.The Respondent is fined the sum of $1,000.00
5.The Respondent is to pay one half of the costs of the Law Society as agreed or assessed within 6 months of such costs being agreed or assessed
        

 








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REASONS FOR DECISION

The Disciplinary Application

1 In a Disciplinary Application filed in the Tribunal on 21 August, 2008, the Council of the Law Society of New South Wales (‘the Law Society’) alleged that the Respondent Solicitor, Erdem Hussein, (‘the Solicitor’) was guilty of professional misconduct whilst practising as a Solicitor on the basis that he:
1)delayed in responding to correspondence
2)failed to communicate
3)failed to transfer documents
4)acted without instructions
5)grossly delayed in prosecuting the client’s claim
6)entered into a fee agreement contrary to the Motor Accidents Compensation Act, 1999
7)misled or attempted to mislead his client
8)was grossly negligent
9)grossly delayed
10)wilfully breached S61 of the Legal Profession Act, 1987
11)wilfully breached S.62 of the Legal Profession Act, 1987
12)improperly dealt with trust property
13) wrote misleading correspondence
14)Prepared and attended to the swearing of an Affidavit knowing it to be false
15)acted unethically with respect to representations to a mortgagee
16)prepared and forwarded to a real estate agent a contract for sale on behalf of a vendor knowing that the vendor was not seized with title to the property being sold
17) knowingly misled the ANZ Bank in order to obtain money from the Bank belonging to a deceased estate for which the solicitor claimed to be acting, and
18) hindered, obstructed and delayed an Investigator appointed under S.55 of the Legal Profession Act, 1987
2 The Particulars included in the Application described the relevant transactions out of which the complaints arose in some detail. They occurred within the period from 2000 to 2004 and related to a number of complaints bought by the Law Society and by the Solicitor’s clients. It is not alleged that the Solicitor misappropriated any funds or gained a benefit for himself flowing from the complaints.

3 The Law Society sought to move on the Orders contained in the Application (apart from Order No. 3 which was withdrawn at the commencement of the hearing) being (1) that the Solicitor be publicly reprimanded and pay a fine; (2) that when the Solicitor first applies to the Law Society of New South Wales for a practising certificate, he shall accompany such an application with a medical report by a psychiatrist nominated by the Manager of the Professional Standards Department of the Society. The costs of the assessment and report are to be met by Mr. Hussein and no practising certificate is to be issued to him unless (and until) such medical report indicates that the examining doctor is of the opinion that Mr. Hussein is fit to resume the practice of law; (3) for a period of three (3) years during which Erdem Hussein again holds a practising certificate, any practising certificate so held shall be endorsed with the following conditions: (a) the solicitor’s right to practice is restricted to that of an employee of a solicitor holding an unrestricted practising certificate and; (b) The Solicitor is not to operate on any account of any Solicitor that may contain trust funds and (4) that the Solicitor pay the costs of the Society of the proceedings. The Reply filed by the Solicitor
4 The Solicitor filed an Amended Reply to an Application on 2 December, 2009 and moved on that document.

5 In the Reply, the Solicitor admitted breaches of Sections 61 and 62 of the Legal Profession Act, 1987 but denied they were wilful breaches. He denied the complaints relating to Roe, Kaymak Arif, Umit Arif, Milika Taufia, Sami Sarraf and the Estate Hassan Kaffa. He admitted the delay in paying Counsel’s fees in relation to the Balloot complaint but otherwise denied the balance of the complaints. In relation to the complaint of hinder, obstruct and delay Investigator, he denied same.

6 The Solicitor opposed the Orders sought by the Law Society.

Relevant Statutory Provisions
7 As already stated, the Disciplinary Application was filed on 21 August, 2008. It related to complaints which fell within a time frame between 2000 to 2004. These dates precede the commencement of the Legal Profession Act, 2004 (‘the LP Act, 2004’)

8 By virtue of clause 16 of Schedule 9 to the LP Act 2004, the complaints are therefore governed by the now-repealed LP Act 1987, except in relation to the proceedings in the Tribunal. These proceedings are governed by Chapter 4 of the LP Act, 2004, subject to the proviso that the Tribunal ‘may not make any determination or order of a disciplinary nature’ against the Solicitor that is ‘more onerous than could have been made’ under the LP Act 1987.

9 Three Sections within Chapter 4 of the LP Act 2004 deal with the concept of professional misconduct and unsatisfactory professional conduct. The relevant portion of these Sections are:

Section 4971)For the purposes of this Act:
Professional Misconduct includes:
(a)unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence.....
Section 498Sub-paragraph 1 (a) lists the types of conduct that are ‘capable of being unsatisfactory professional conduct or professional misconduct’ which includes ‘conduct consisting of a contravention of this Act’.Section 496For the purposes of this Act Unsatisfactory Professional Conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
10 As already indicated, the Disciplinary Application alleged breaches of Sections 61 and 62 of the LP Act, 1987. So far as relevant, section 61 states:
S.61 Money received by solicitor on behalf of another 1)A solicitor who, in the course of practising as a solicitor in this State, receives money on behalf of another person:(a)must pay the money, within the time prescribed by the regulations, into a general trust account in New South Wales at an approved financial institution and must hold the money in accordance with the regulations relating to trust money, or (b) if the person on whose behalf the money is received directs that it be paid or delivered to a third party free of the solicitor’s control, must ensure that the money is paid or delivered:
(i) before the end of the next working day or, if that is not practicable, as soon as practicable after the next working day, or

(ii) no later than the day allowed by the solicitor’s authority or instructions (if that day is later than the day allowed under subparagraph (i)), or(c) if the person on whose behalf the money is received directs that it be paid otherwise than into a general trust account or to a third party, must pay the money as directed and (if the money is to be held under the direct or indirect control of the solicitor) must hold the money in accordance with the regulations relating to controlled money.1)In any of those three cases, the solicitor must hold the money exclusively for, and must disburse the money in accordance with the directions of, the person on whose behalf it is held.3) This section:
(a) .......................
(b) does not prevent a solicitor from withdrawing or receiving, from trust money or controlled money:
(i) reimbursement for disbursements paid by the solicitor, or
(ii) money for disbursements to be paid by the solicitor, or
(iii) money due, or to accrue due, to the solicitor for costs,
so long as the procedure prescribed by the regulations is followed, and
(c) ...........................
(d) ...........................
(e) ...........................
(f) ............................
(8) It is professional misconduct for a solicitor to wilfully contravene sub-section (1) or (2) (9)In this section:
Trust money means money required to be dealt with in accordance with subsection (1) (a).
11 So far as relevant s. 62 provides:Keeping of accounts
1)A Solicitor shall keep accounts
(a) in the case of trust money (within the meaning of Section 61) —accounting records, or
(b) ...........................
that disclose at all times the true position in relation to money received by the solicitor on behalf of another person

1)The accounting records referred to in subsection (1) shall be kept in a manner that enables them to be conveniently and properly audited

2)Without limiting the generality of subsection (2), the accounting records referred to in subsection (1) shall, if the regulations so require, be kept in such manner as the regulations prescribe

3)A wilful contravention of subsection (1), (2) or (3) is professional misconduct.
12 In the LP Act 2004, provisions broadly equivalent to Sections 61 and 62 of the earlier Act are to be found in Sections 254, 255, 256 and 264.

The Nature of the Evidence

13 The Solicitor was admitted to practice as a solicitor of the Supreme Court of New South Wales on 6 July, 1984 and held a Practising Certificate until 29 July, 2004 at which time his certificate was cancelled and his files were removed by the appointed Receiver, Mr. Andrew Brown. Prior to his ceasing to practice, he had worked as an employed solicitor reaching junior partner status and in November, 1989 he commenced practising as a sole practitioner and continued in sole practice until 29July, 2004.

14 The Solicitor had no complaints history prior to the matters the subject of this hearing.

15 The evidence tendered by the Law Society comprised three affidavits by Raymond John Collins, Solicitor, sworn on 11 August, 2004 (admitted without objection) 18 August, 2008 and 25 November, 2009 (both admitted after objection) an Affidavit of Anthony Gilbert Farquhar, Solicitor, sworn on 21 August, 2008 (admitted without objection as amended), part of Affidavit of Erdem Hussein dated 12 August, 2004 (not including pages 2-7) together with various other miscellaneous tenders.

16 Mr. Farquhar was appointed Investigator pursuant to Section 55 of the LP Act, 1987 on 15 April, 2004 to investigate the affairs of the Solicitor practising under the firm name of Erdem Hussein. Annexed to Mr. Farquhar’s Affidavit is his Final Report being annexure ‘A’ to that Affidavit . Mr. Farquhar was cross examined at length on his Affidavit as a result of which the following emerged:
(a) that following his appointment on 15 April, 2004, he did not receive material from the Law Society that enabled him to take the matter further until June and therefore the first action he took was not until 11 June, 2004 when he wrote to the Solicitor notifying him of his appointment.

(b) that at the time of his appointment, the Society already had before it a Report pursuant to S. 55 of the LPA prepared by Mr. Livermoore , Trust Account Inspector dated 24 December, 2002 (X ‘A’)

(c) that he had caused facsimile letters to be forwarded to the Solicitor on 11 June, 2004, 17 June, 2004, 25 June, 2004 and 30 June, 2004 and 14 February, 2005 (by post as well as by facsimile)

(d) that he had telephoned the Solicitor’s office on 21 and 22 June, 2004 leaving messages both times, and again on 12 July, 2004 leaving a message

(e) that he had received an unsigned facsimile letter from the Solicitor on 25 June, 2004

(f) that he had received one telephone message from the Solicitor asking him to call the Solicitor

(g) that he had only ever had one telephone conversation with the Solicitor being on 3 August, 2004 in which he thought he would have informed the Solicitor that his practising certificate had been cancelled and that he should co-operate with Mr. Farquhar.

(h) that it was not until 19 September, 2005 that a draft report was issued by Mr. Farquhar, the reason for the delay being due to the substantial number of files that needed to be looked at and contacts to be made with various solicitors and the fact that files themselves were forwarded to him on a piecemeal basis from Mr. Brown (the appointed Receiver). The final report was issued by Mr. Farquhar on 14 February, 2006 it containing little variation (or none) from the draft report. Mr. Farquhar was unable to proffer a reason as to why it took 5 month to provide his final report.

(i) that the Solicitor was never given any formal notification, or informal notification by Mr. Farquhar of what files/material he wished to inspect. (j) that when Mr. Farquhar did inspect the files, he was never sure that any file he had was intact, that there was rarely a diary note, including conference or telephone notes, there were a number of instances where other firms of solicitors had sent letters with client’s’ authorities to take over files but nothing on the file to indicate attendances in relation to the transfer of those files.

(k) that Mr. Farquhar did not take any steps to enquire about the integrity of the files which were provided to him.

(l) a concession that the absence of a file note does not necessarily indicate that instructions were not being taken.
17 The evidence tendered on the Solicitor’s behalf included his sworn Affidavit dated 11
November, 2009, the Report pursuant to Section 55 of the Legal Profession Act prepared
by Greg Livermoore, Trust Account Inspector, Affidavit by Justin Newall sworn on 1
December, 2009 (testimonial evidence), Affidavit by Jospeh Pinto sworn 1 December,
2009 (testimonial evidence) and other miscellaneous tenders.

18 In his Affdavit evidence, the Solicitor says that his practice had functioned
successfully, however, in 2001, his sister, Shemiye who assisted him in the practice
by providing secretarial and book keeping services, was diagnosed with breast cancer
and died on 13 June, 2003. In between her various admissions to hospital for
treatment, she continued to work for the Solicitor but her capacity was very much
reduced and this had an impact on the Solicitor’s productivity given her significant role
in the practice and his reliance upon her.

19 In early 2002, the Solicitor’s mother was diagnosed with breast and colon cancer and
died on 23 August, 2004. It seems that the Solicitor was the person who provided care
and support to both his mother and sister during their illness as the Solicitor’s father had
died in 1997. He says that this put a great strain on him both emotionally and on his
ability to conduct his practice and whilst he believed he was coping with his workload,
the reality was, he was falling more and more behind at the expense of answering the
Law Society and the complaints by clients.

20 Also, in the year 2002, the Solicitor was late in lodging his trust account report with
the Law Society and gained an extension which he complied with. The following year,
the Report was not lodged until July, 2003 as a result of which the Law Society
imposed a condition on the Solicitor’s practising certificate for the year 1 July, 2003
which required the appointment of a manager to control his trust account every three
months and a further condition that he lodge his trust cash book and trial balance
reconciliation with the Society every month. Documents were lodged with the Society
monthly but no manager was ever agreed upon or appointed to control the trust account.

21 From early 2003, the Law Society commenced writing to the Solicitor in relation to
the various complaints.

22 On 16 July, 2004 the Law Society sent a letter by DX and fax to the Solicitor advising
that a resolution had been passed by the Council of the Law Society to the effect that it
was considering cancelling his practising certificate and requesting that he explain in
writing, by Thursday 22, July, 2004, the specified conduct referred to in the attachment
to the letter. The Solicitor did not respond.

23 On 29 July, 2004, the Solicitor received a fax from Mr. Andrew Brown on behalf of
the Law Society advising that the Society had cancelled his practising certificate and that
he was no longer entitled to practice and he has not done so since that time.

24 On 11 August, 2004 the Solicitor received a telephone call at his home from Mr.
Brown advising that an ex parte application was to be made by the Law Society to a
judge in chambers at 4.30 pm on that day for the appointment of a receiver to his
practice. On 12 August, 2004, orders were made by consent for the appointment of a
Manager to the Solicitor’s practice. A receiver was not appointed.

25 The cancellation of the Solicitor’s practising certificate came about as a result of his
lack of response to the letters and phone calls from Mr. Farquhar , the investigator
appointed pursuant to S.55 of the Legal Profession Act, 1987 on 15 April, 2004. In fact,
the genesis to these entire proceedings appears to stem from the Solicitor’s inability to
respond to correspondence and phone calls as set out in the complaints and, even
allowing for the sad events that engulfed the Solicitor as set out above, it is difficult to
understand why a Solicitor of some 20 years standing would adopt such an approach
which he must have known would be to his detriment.

26 The Solicitor’s oral evidence, for the most part, did not enlighten the tribunal in that
his answers were often not responsive to the questions, sometimes not plausible and
admissions were scarce.

27 No evidence was put forward by the Law Society in relation to Order No. 4 and
indeed Mr. Boyd, in his submissions, was unable to assist the Tribunal as to why the
Order was sought in the first place and did not press the Order and, in the opinion of the
Tribunal, rightfully so. Mr.Williams, for the Solicitor submitted it should never have
been sought on the material available to the Society and the Tribunal is of the same view
and dismisses that part of the Application.

The Various Complaints
Balloot -
[Time Line re conduct complained of – 11 July, 2003 to 19 November, 2003]
(a)Solicitor failed to provide the complainant with an account for costs and disbursements
(b)Solicitor failed to release the complainant’s file and other papers notwithstanding that his account had been paid in full
(c)Solicitor delayed in providing a cheque to Counsel for fees although dated 11 July, 2003 until 27 April, 2004
(d)Solicitor drew on funds held in payment of his costs prior to providing a Memo of his Costs and Disbursements
(e)Solicitor wilfully breached S. 61 of the Legal Profession Act

28 The background to this complaint centred on the Solicitor acting for the client in Supreme Court Equity proceedings to defend a claim bought against the client by Divine Homes Pty Ltd which proceedings were settled in or about June, 2003. Mr. Balloot complained that the Solicitor had not issued an account to him despite the fact that he had paid $2,000.00 for Counsel’s fees and $5,000.00 for Solicitor’s costs. Mr. Balloot also complained that he had repeatedly requested his file be handed over without success ie from July to November, 2003. It was common ground that the $5,000.00 had not been put into a trust account, rather, the Solicitor had paid the costs into his office account sometime around about 18 July, 2003 but had not issued an account in a form specified by the Act until March, 2004.

29 The evidence shows that the Legal Services Commissioner first referred the Balloot complaint to the Law Society on 17 December, 2003 following Mr. Balloot complaining to that authority. The Law Society wrote to the Solicitor on 4 February, 2004,(of note, that letter contained a paragraph which read ‘Please note that I have spoken to Mr. Balloot concerning this matter and he has advised me that he is prepared to regard his complaint as resolved on the provision to him of your account and his files as noted above’) 18 February, 2004 and on 25 February, 2004 (fax). Instead of resolving the matter as suggested, the Solicitor responds by letter dated 3 March, 2004, and that response, in the view of the Tribunal, was consistent with the manner in which the Solicitor gave his evidence during the hearing that is to say, not helpful or responsive and sometimes obstructive. By way of example, in the first paragraph, he gives a broad description of the litigation matters he had been involved in and other difficulties with office equipment etc which he said had prevented him from responding to the Law Society's correspondence; in the second paragraph he states 'to find time to answer your letter today, the writer has had to brief Counsel to conduct an appeal in the District Court and cost him $2,000.00 in fees'; in the third paragraph he questions why he had not received correspondence from the Legal Services Commissioner (in relation to this matter); in the next paragraph he questions why the fax sent to him from the Law Society was not marked 'private and confidential'; in the next paragraph he is critical of the time frame given to the solicitor to respond in 14 days especially in circumstances where the complainant (Balloot) had over 7 months to complain; in the next paragraph he is also critical of the Law Society; and in the next paragraph, questions why a Notice pursuant to S.152 had not been received by him. All of this took up almost the first two pages of the letter, the balance providing information relevant to the Balloot complaint. It is relevant to note that it is not until the last paragraph of the letter, that the Solicitor apologises to Mr. Balloot at the same time requesting that $250.00 be paid to him for his charges for photocopying the file which 'involved considerable time and expense.'

30 Under cross examination, the Solicitor was questioned as to his lack of reference in his correspondence with the Law Society about various alleged conversations which he deposed to in his Affidavit evidence which took place at the meetings he had with Mr. Balloot in July, 2003 and also the fact that such conversations were not referred to in a file note which he made on 11 July, 2003 following his attendance on Mr. Balloot. The alleged conversations centred around Mr. Balloot instructing the Solicitor ‘not to bank the cheque for a few days...’ and also in relation to counsel’s fees ‘not to give him this for some weeks, he should have reduced his bill more, he is to wait for payment’ and ‘I don’t want a receipt, I don’t want any more of counsel paperwork.’ Contrary to the Solicitor's assertion is Mr. Balloot's handwritten assertion in his complaint form that ' I asked him not to bank the cheque given to him for $5,000 before I receive the documents and the bill, and he can forward Mr. Johnson's cheque to him......'

31 In response to several questions from Member Riordan about the making of file notes and the protection such notes can give as well as information to others perusing the file, the solicitor was very slow in conceding that it might have been useful for such a file note to have been made. Certainly, in this instance, it would have been of great assistance to the Solicitor by providing corroborative evidence of the alleged conversation with Mr. Balloot which the Solicitor was relying on in part as to the question of delay.

32 The Solicitor was also questioned about his handwritten account (X1A) which was not on letterhead, not signed, not dated and in response to the question ‘I put it to you again, it does not comply with the regulations as they stood at that time under the Legal Profession Act? He responded, ‘Well at that particular point in time I don’t quite know
what the requirements were. I had given it a totals figure and GST figure I believe.’ The Solicitor also said ‘I can also say that from my recollection at the time that he didn’t want an account. This is on 11 July. He didn’t want any paperwork. He paid me the money and I assumed that the matter was completed pending paying Mr. Johnson (Counsel) and including my own cheque. I don’t recall any phone calls between July and November (from Mr. Balloot) I do recall him coming into my office asking for the documents which I did but if you are asking me if I prepared an account in the form which appears on page 157 of Mr. Collin’s Affidavit, no, I didn’t do an account like that before that time.’

33 The Solicitor went on to say, I didn’t prepare one for a number of reasons. One, because my sister had just passed away and I didn’t have the secretary to type the account, number two, he had accepted –I reduced my account substantially and really the account, even the handwritten account for 53 was really under-costed, it should have properly been close to $9,- 10,000 but I was happy to receive that amount which I thought was fair in the circumstances but I didn’t have the resources to type that account at that time and I wanted to be paid and move on with other matters’.

34 Questioned about the necessity to pay funds into a trust account pending the issue of an account complying with the Regulations, the Solicitor appeared to rely on the handwritten account (XIA) as giving him authority to place the cheque into his office account, saying ‘normally money on account of costs and disbursements would be put into a trust account, yes. If it’s in direct payment of a bill it doesn’t have to go into a trust account.’ Further questioning led to the Solicitor agreeing that in hindsight, it would have been prudent for him to have prepared an account in proper form at the time.

35 Mr. Williams, in reply, showed the Solicitor a copy of Regulation 45 (LPR 2002) (X8), copy of Sections 192 and 193 of the LP Act (XK) and copy of Regulation 78 (LPR 2002) and it was put to him ‘Having now had the opportunity of looking more closely at clauses 45 and 78 of the regulation ,is it your understanding today that either of those clauses have any application in circumstances where you were neither transferring money from the trust account nor commencing recovery proceedings against a client?’ The Solicitor responded. ‘I don’t believe that those provisions apply’. Mr. Williams followed up this aspect in his submissions putting forward the view that the $5,000.00 was never trust money and therefore the Solicitor could not put it into his trust account, rather it was the amount that the Solicitor had agreed to accept in full payment of his costs from Mr. Balloot.

36 There is no doubt in the Tribunal's mind that the Solicitor did believe the $5,000.00 had been accepted in full payment of his outstanding costs and that his handwritten account made it clear that is the amount he was accepting in full payment of his fees and certainly that amount was paid to the Solicitor by Mr. Balloot on that basis. However, if one accepts the evidence of Mr. Balloot, and the Tribunal prefers his evidence to that of the Solicitor, then the Solicitor was not entitled to deal with the $5,000.00 until an account in proper form had been issued to Mr. Balloot.

37 In relation to the payment of Counsel’s fees, it was common ground that the cheque was not sent to Counsel until 22 April, 2004 and by way of explanation, the Solicitor said he had no reason to delay sending payment to Counsel, the cheque had been put with the file and sat on the file and was not found until the Solicitor looked at the file in order to respond to the Law Society’s letter on March, 2004 but even then, the cheque was not forwarded to Counsel until 22 April, 2004.

38 The Tribunal is satisfied that complaints (a), (b), (c) and (d) have been made out to the requisite standard of proof. In relation to complaint (e) the Tribunal is of the view, on balance, that the Solicitor’s conduct in dealing with the $5,000 prior to issuing an account to Mr. Balloot was a breach of Section 61 but not 'wilful' within the meaning of S.61(8) because we cannot establish to our 'reasonable satisfaction' (Briginshaw v. Briginshaw (1938) 60 CLR 336 AT 3) that the Solicitor's actions in dealing with the cheque could amount to reckless carelessness in accordance with the established cases and accordingly, that part of the complaint is dismissed.

Milika Taufia
[Time line re conduct complained of – September, 1996 – July, 2004]
(a)Act without instructions
(b)Mislead client
(c)Gross negligence
(d)Gross delay
(e)Failure to communicate

39 In September, 1996, the Solicitor received instructions from this client after she suffered injuries when she slipped and fell outside Auburn Shopping Village in September, 1991. By that time the three year limitation period had expired.

40 A file diary note (11 September, 1996) indicated that the Solicitor was alert to the limitation period in which he must commence proceedings against the client’s former solicitors.

41 The Solicitor commenced correspondence with the NZI Insurance (the public liability insurer for the company operating the shopping centre) and that insurer by letter dated 13 March, 1998 made clear any claim was Statute barred.

42 Between July, 1998 and 6 May, 1999 the Solicitor took witnesses statements and briefed Counsel to advise and on 6 May, 1999 issued a District Court Statement of Claim against the former solicitors of Mrs. Taufia but failed to serve the process until 10 August, 1999.

43 In December, 1999, the Solicitor sent a brief to a Mr. David Maddox of Counsel who subsequently advised that it was usual to seek an extension of the liability period before commencing proceedings against the Solicitors.

44 On 14 February, 2000 the claim by Mrs. Taufia was struck out by the presiding Judge pursuant to the District Court Rules. The Solicitor gave notice that he would seek to reinstate the claim and the Solicitors for the Defendants wrote requesting he provide answers to particulars which they had originally sought in October, 1999. Those particulars were not supplied until May, 2001 despite the fact they had been drafted by Counsel in late February, 2000.

45 The Solicitor on 3 May, 2001 made an offer to settle the proceedings (notwithstanding the proceedings had been struck out) of $55,000 inclusive of costs. There was no evidence on the file that the solicitor had instructions from his client to make an offer or settle for that figure.

46 Nothing was done by the Solicitor to reinstate the matter despite the fact that Mr. Maddox of Counsel had written to the Solicitor in October, 2001 and on 25 August, 2003 reminding him that the delay will diminish the prospects of success (of reinstating the claim).

47 On 20 January 2004, Mr. Maddox returned his Brief and on 22 July, 2004, another firm of solicitors sent an authority requesting the file.

48 The Solicitor was briefly cross examined as to inconsistencies between what he had deposed in his Affidavit and that of the Farquhar Affidavit relating to the striking out aspect. The Solicitor stated in his Affidavit, ‘the matter was mentioned by the solicitor for the defendant on behalf of both parties for the purpose of obtaining an adjournment by consent. The Registrar referred the matter to Delaney J. who struck out the matter in the absence of argument. I was available to come to Court on short notice if any difficulty arose, but was not contacted by the solicitor who mentioned the matter. ........’

49 It was put to the Solicitor that the Farquhar Affidavit (page 62) contained a letter from Price Waterhouse Coopers Legal of 16 February, 2000 which stated at the third paragraph, ‘both our agent and the writer attempted to contact you prior to the said directions hearing and left messages in your office answering machine in this regard’ and the Solicitor did not dispute this. Furthermore , the Solicitor said, ’I gave them bothmy mobile number and they rang my office and did not leave messages on my mobile’

50 In his affidavit evidence, the Solicitor deposed that he was relying on Mr. Maddox to draft the necessary documents for reinstatement of the matter but the Tribunal notes that evidence is inconsistent with the correspondence written by Mr. Maddox to the Solicitor as set out in the particulars. The Solicitor also deposed that from about May, 2001 until 24 September, 2002, the client was not contactable firstly because she was hospitalised and then was absent Australia until September, 2002. The Solicitor offered no explanation for the delay between September, 2002 to 19 July, 2004 when his practice came under the control of Mr. Brown.

51 The Tribunal is satisfied that the complaints (d) and (e) have been made out to the requisite standard of proof. However, the evidence does not support the Tribunal making a finding based on the Briginshaw test as regards complaints (a), (b) and (c) given that Mr. Farquhar's evidence as regards this complaint was at times, based on assumptions and the Tribunal did not have the benefit of any evidence from Mrs. Taufia.

Estate Late Sami Sarraf
[Time line re conduct complaint of – November, 2001 to March, 2002]
(a)Wilful breach of S.61

(b)Wilful breach of S. 62

(c) Improper dealing of trust property

(d) Misleading correspondence

(e) Preparing and attending to the swearing of an Affidavit knowing it to be false

(f)Acting unethically with respect to representations to a mortgagee

52 On 24 June, 2001 Sami Sarraf died intestate. He was survived by four infant children , their mother, being his former wife (Kathy Zghab) and an adult son (Michael Sarraf)

53 The Solicitor received instructions from the adult son to make an application for Letters of Administration but by late 2001, he ceased to act for that son. The Solicitor then commenced to act for the former wife to whom Letters of Administration were ultimately granted on 26 February, 2003.

54 The assets of Mr. Sarraf’s estate included a property (subject to a mortgage) at 20 Parkes Street, Guildford, a Toyota Ute, a stump grinder and a Isuzu truck (registered in the name of its original owner)

55 On 30 November, 2001 the solicitor wrote a letter to the mortgagee manager of the Guildford property stating “.....we act for the Administrator of the estate of the late Sami Sariff. It is confirmed that we have listed the property for sale....’ At the time the solicitor wrote this letter and further letters on 13 December, 2001 and 22 December, 2001 Letters of Administration had not issued to Kathy Zghab nor had she applied for same.

56 On 30 November, 2001 the solicitor wrote a letter to Merrylands First National Real Estate Agency enclosing a draft contract for sale. The vendor in the contract was described as ‘Kathy Zghab the administratrix for the Estate of the Late Sami Sarraf’ At the time the solicitor prepare