Solicitor Removed From Roll for Professional Misconduct

The Tribunal found the solicitor guilty of multiple instances of professional misconduct, including unsatisfactory professional conduct and breaches of the Legal Profession Act 1987, leading to his removal from the roll of legal practitioners in NSW.

CITATION: [COMPANY] v [NAME] [2002] NSWADT 170 DIVISION: Legal Services Division APPLICANT PARTIES: Council of the [COMPANY] RESPONDENT [NAME]: 002028 & 012020 HEARING DATES: 17/09/2001-18/09/2001, 12/03/2002 SUBMISSIONS CLOSED: 03/12/2002 DATE OF DECISION: 09/17/2002

BEFORE: [NAME] Member; ; [NAME] - Member APPLICATION: Compensation - Professional Misconduct - act in a conflict of interest - Professional Misconduct - act without instructions - Professional Misconduct - alter date of document - Professional Misconduct - breach of s. 61 of the Legal Profession Act - Professional Misconduct - charge client for work negligently performed - Professional Misconduct - fail to attend court - Professional Misconduct - fail to carry out instructions - Professional Misconduct - fail to keep client adequately advised - Professional Misconduct - fail to respond to letters - Professional Misconduct - fail to terminate retainer - Professional Misconduct - gross negligence and delay/gross delay/delay - Professional Misconduct - guilty of discourtesy - Professional Misconduct - hinder investigation - Professional Misconduct - mislead client - Professional Misconduct - mislead [NAME] - terminate retainer without due cause or notice MATTER FOR

DECISION: Principal matter LEGISLATION CITED : Legal Profession Act 1987 [NAME] v General Council of Medical Education and Registration [1840] 1 QB 750 CASES CITED: [NAME] v the Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJ 563 Mayes and Legal Practitioners Act 1974 1 NSWLR19 Re Hodgekiss (1962) 62 SR (NSW) 320 APPLICANT REPRESENTATION: [NAME], solicitor RESPONDENT No Appearance ORDERS:

1. Name of [NAME] be removed from the Roll of Legal Practitioners in New South Wales; 2. [NAME] pay the costs of the applicant of and incidental to the proceedings 002028; 3. [NAME] pay [NAME] $2,650 compensation pursuant to Section 171D(1)(d).

Background 1 [NAME] (the Solicitor) was admitted as a Solicitor in New South Wales on 9 July 1982. Arising out of various complaints [NAME] was appointed [NAME] of the trust property of the Solicitor on 12 September 1997. 2 On 19 August 1999 the Professional Conduct Committee was satisfied there was a reasonable likelihood the Solicitor would be found guilty by the Tribunal of Professional Misconduct and that proceedings be instituted in the Tribunal pursuant to Section 155 (2) of the Legal Profession Act 1987 (the Act). 3 Such proceedings were commenced by Information filed 27 December 2001 and allocated number No. 002028. 4 Further in relation to the Solicitor the aforesaid Committee on 30 August 2001 resolved it was satisfied that there was a reasonable likelihood that the Solicitor would be found guilty by the Tribunal of Professional Misconduct and that proceedings be instituted in the Tribunal pursuant to Section 155(2) of the Legal Profession Act 1987. 5 Such proceedings were commenced by information filed 3 September 2001 and allocated number No. 012020. 6 Before turning to the particulars of the allegations raised in each Information it is appropriate to briefly review the history of both proceedings. This is relevant to how there came to be two Information's and in part how both proceedings commenced to be heard with no appearance on behalf of the Solicitor. 7 At the Directions hearing on 12 February 2001 in Proceedings 002028 by fax transmission the Solicitor sought to rely upon a Reply that had been filed in early proceedings, to be considered his Reply in these proceedings. The Solicitor was appearing on his own behalf. 8 Nothing turns on how proceedings 2030 99 were resolved and consent orders were made permitting the earlier Reply to be relied upon in proceedings 002028. 9 However as it transpires no such Reply had been filed in the earlier proceedings and [COMPANY] alerted the Solicitor in writing to this deficiency on 13 February 2001. The deficiency in that context was not remedied by the filing of a Reply. 10 [COMPANY] had been prompted to have the Professional Conduct Committee consider filing a further Information as it was concerned there may have been some deficiencies in the investigations, which may have impacted upon the capacity of various complainants to seek compensation. This led to the Committee passing the resolution of 30 August 2001 and filing of the further Information on 3 September 2001. There had been a Directions Hearing in proceedings number 002028 on 26 June 2001 which allocated hearing dates of 17 and 18 September 2001. 11 On 17 September 2001 when these matters were listed for hearing there was no appearance on behalf of the Solicitor and it was ascertained that the Solicitor had formed a view that the hearing dates of 17 and 18 September would be vacated to accommodate the standard 21-day period for the filing of the Reply in Matter Number 012020. 12 There had been no formal application made to vacate the hearing dates by any party prior to 17 September 2001. [COMPANY] had not consented to any adjournment and had no prior notice of any adjournment application. In neither matter had the Solicitor filed any affidavit material, nor a reply. 13 A telephone hook up was arranged and the Solicitor affirmed the following: 13.1 He consented to the joining of the two Information's to be heard together. 13.2 As he understood it the hearing dates should have vacated, and he was not in a position to proceed. 13.3 He agreed he had taken no steps to confirm his opinion that 17 and 18 September should have vacated. 14 The [COMPANY] opposed any adjournment application and pressed that the matters should proceed. 15 The Tribunal determined that the matter would be adjourned to proceed at 2.30pm on 17 September and again on 18 September 2001. 16 The Solicitor indicated that he would endeavour to attend that afternoon however he did not appear, nor did he appear when the matter proceeded on 18 September 2000. 17 The matters were next listed for hearing on 12 March 2002 and again there was no appearance on behalf of the Solicitor. A further telephone hook up was arranged and it is noted that the Solicitor consented to the matter proceeding to conclusion without his personal attendance. It should be noted that on this occasion there was some confusion as to whether the matter had been listed for hearing or mention and [COMPANY] by its correspondence to the Solicitor had contributed to that confusion however the Solicitor clearly consented to the matter proceeding to conclusion without his personal attendance. 18 [COMPANY]'s evidence was contained in extensive Affidavits tendered in the proceedings including the Affidavits of: · [NAME] sworn 16 September 1999; · [NAME] sworn 16 September 1999; · [NAME] of 21 December 2000 and 16 September 1999. 19 There was also oral evidence of [NAME] and Mr [NAME]. ISSUES 20 Professional misconduct is the subject of an inclusive definition within Section 127 of the Act which provides: (1) "For the purpose of this Part, professional misconduct includes: (a) unsatisfactory professional conduct, where the conduct is such that it involves a substantial or consistent failure to reach reasonable standards of competence and diligence, or (b) conduct (whether consisting of an act or omission) occurring otherwise than in connection with the practice of law which, if established, would justify a finding that a legal practitioner is not of good fame and character or is not a fit and proper person to remain on the roll of legal practitioners, or (b1) (Repealed) (c) conduct that is declared to be professional misconduct by any provision of this Act, or (d) a contravention of a provision of this Act or the regulations, being a contravention that is declared by the regulations to be professional misconduct. (2) For the purposes of this Part: unsatisfactory professional conduct includes conduct (whether consisting of an act or omission) 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 legal practitioner. (3) Maintenance or champerty by a legal practitioner (except in connection with a conditional costs agreement under Part 11) may constitute professional misconduct despite the Maintenance and Champerty Abolition Act 1993. (4) For the avoidance of doubt, conduct: (a) involving an act or acts of bankruptcy, or (b) that gave rise to a finding of guilt of the commission of an indictable offence or a tax offence, whether occurring before, on or after the commencement of this subsection, is professional misconduct if the conduct would justify a finding that the legal practitioner is not of good fame and character or is not a fit and proper person to remain on the roll of legal practitioners." 21 As noted above the statutory definition is inclusive. The Tribunal accepts, [COMPANY] submission that, there is no finite list of conduct that may amount to professional misconduct. 22 To further assist in understanding the concept of professional conduct, reliance is appropriately placed upon the Judgment of Lopes LJ [NAME] v General Council of Medical Education and Registration – [1840] 1QB 750: "If it is shown that a medical man, in the pursuit of his profession, has done something with regard to it which could be reasonably regarded as disgraceful and dishonourable by his professional brethren of good repute and competency, then it is open to the general medical council to say that he has been guilty of "infamous conduct in a professional respect"." 23 Further the High Court in [NAME] v the Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJ 563, [NAME] said: "...a charge of misconduct as relating to a Solicitor need not fall within any general definition of wrongdoing. It need not amount to an offence under the law. It is enough that it amounted to grave impropriety effecting his professional character and was indicative of a failure to either understand or to practise the precepts of honesty or fair dealing in relation to the courts, his clients or the public. The particular transaction the subject of the charge must be judged as a whole and the conclusion whether it is tokened unfitness to be held out by the court as a member of a profession in whom confidence could be placed, on the other hand, although a lapse of propriety was not inconsistent with general professional fitness and habitual adherence to moral standards was to be reached by a general survey of the whole transaction." 24 Against that background, it is timely now to consider the particulars relating to each ground of each Information. 25 Many grounds of professional negligence are alleged by [COMPANY] and the Tribunal will consider the grounds and the particulars thereof in the same order as set out in the Information in proceedings 002028. GROUND 1: THE SOLICITOR WAS GUILTY OF GROSS DELAY IN THE CONDUCT OF HIS CLIENT'S AFFAIRS. [NAME] 26 The particulars of the allegation of gross delay are: 26.1 The Solicitor was retained by [NAME] in debt recovery proceedings in the [ADDRESS] commenced against her by [NAME] in May 1990. 26.2 On 28 July 1993 at an arbitration hearing in which the Solicitor appeared for [NAME], the [NAME] made an award in favour of [NAME] of $16,702.12. 26.3 An Application for Re-hearing was lodged and listed for 13 December 1993. On that day the Solicitor appeared for [NAME] and a Statement of Confession was filed on her behalf confessing to the sum of $10,000.00 being the full amount of the debt claimed by Judgment Creditor. The Statement noted interest was to be calculated and added to the judgment debt. 26.4 On 22 December 1993, the Solicitor, on behalf of [NAME], made an Application to pay the Judgment debt by Instalments of $5 per week. On 25 January 1994, the Registrar refused to make the Orders sought and stood the Application over for hearing on 28 February 1994. 26.5 The Solicitor did not attend Court on the hearing of the Instalment Application on 28 February 1994 and advised his client, [NAME], to appear unrepresented. The Application was refused. 26.6 On 28 February 1994 a Certificate of Judgment was issued by the Court and on 30 March an Application to issue Execution was filed by the Judgment Creditor. 26.7 In March and May 1994 the Solicitor wrote to the Court asserting that interest could not accrue on the confessed amount. 26.8 On 27 May 1994 a further Instalment Application was lodged with the Court seeking to pay the judgment debt by instalments of $20 per week. That Application was granted by the Registrar on 31 May 1994. 26.9 Judgment Creditor filed an objection to the Instalment Order which objection was heard on 1 August 1994. The Solicitor appeared at the hearing. [ADDRESS] rejected the Application for Instalment Order and the Writ of Execution was revived. 26.10 On 10 August 1994 [NAME] instructed the Solicitor to commence proceedings against [NAME] for $4,000, [NAME] alleging an indebtedness by [NAME] to her for that amount. The Solicitor failed to take any action in relation to those instructions. 26.11 On 25 August 1994 the Solicitor, on behalf of [NAME] filed a further Application to pay by Instalments of $100 per week. That Application was successful. 26.12 On 22 September 1994 the Solicitor wrote to [NAME] suggesting to her that she pay $10,000 as confessed and continue instalments of $100 per week. 26.13 On 13 September 1994 the Judgment Creditor filed an objection to the Instalment Application. That Objection came on for hearing on 16 December 1994. Neither the Solicitor nor [NAME] attended however the Objection was withdrawn and the Instalment Order allowed to stand. 26.14 In or about November 1995 the Solicitor, on enquiry from [NAME], advised that the debt had been paid in full and that [NAME] should not make any further payments. 26.15 On 25 January 1996 the Solicitor lodged a Notice of Motion seeking to have the order for payment of interest in respect of the initial Judgment set aside. That Notice of Motion was listed for hearing on 21 February 1996. On 28 February 1996 the parties were ordered to make written submissions. 26.16 On 13 March 1996 the Court informed the Solicitor that on 11 April 1996 the Court would be handing down its decision on the Notice of Motion. The Solicitor failed to advise [NAME] of this fact until 10 April 1996. 26.17 The Notice of Motion was refused and costs, in the sum of $1,025 ordered against [NAME]. The Solicitor did not inform [NAME] of the Orders of the Court. 26.18 In or about July 1996 the Solicitor requested [NAME] to attend at his office to provide information to enable a Statement of Earnings to be completed. The Solicitor advised [NAME] that the Statement was required by the Registrar of the [ADDRESS] at Wyong and that he was not aware of the reason for the requirement. 26.19 A further Application to pay by Instalments, this time of $400 per month, was filed and on 11 July 1996, the Registrar ordered accordingly. 26.20 On 9 September 1996 an Affidavit of Default was filed by the Judgment Creditor and on 10 September 1996 the Writ of Execution was revived. 26.21 On 8 October 1996 the [NAME]'s Office seized [NAME]'s car to satisfy the balance of the Judgment debt. 26.22 The Solicitor advised [NAME] he did not know the reason(s) the [NAME] took possession of her car and in the week commencing 16 October 1996 he advised her, among other things, that a stay was in place while the question of interest was decided by the Court. 26.23 On 28 October 1996 a further Application to pay by Instalments, this time of $100 per week, was filed by the Solicitor on behalf of [NAME]. This Application was refused by the Registrar who stood the matter over for hearing on 28 November 1996. 26.24 On 8 November 1996 the Judgment Creditor made an Application to Issue Execution. 26.25 On 28 November 1996 the Application to Issue Execution was heard. There was no appearance by the Judgment Creditor. The Solicitor attended the hearing and an order was made by the Court that [NAME] pay the balance of the moneys owing by instalments of $100 per week. The Solicitor failed to inform [NAME] of the Order of the Court. The Solicitor instead informed [NAME] that the matter was still before the Court and a Stay had been ordered. 26.26 On 16 December 1996 the Judgment Creditor filed a Notice of Default and on 17 December 1996 the court advised the [NAME] that the Stay on Execution had been lifted. 26.27 On 15 January 1997 the [NAME] took an inventory of [NAME]'s household goods. The Solicitor advised [NAME] that he was not aware of the reason for this as he had not received any correspondence from the Court. 27 The Tribunal finds all the aforesaid particulars of fact to be true and is comfortably satisfied the Solicitor has been guilty of professional misconduct by gross delay in the conduct of his client's affairs and specifically in relation to the facts set out in sub-paragraphs 25, 26 and 27 herein. [NAME] 28 The particulars of the allegation of gross delay are: 28.1 The Solicitor was retained by [NAME] to act on their purchase of [ADDRESS], Wyee Point. 28.2 On 19 February 1997 the Mortgage security documents were submitted to the Solicitor by [NAME], the Solicitors for the incoming mortgagee. 28.3 Contracts were exchanged on 21 February 1997, and specified settlement on 4 April 1997 although time was not stated to be of the essence. 28.4 The Solicitor did not submit the Transfer to the vendor's Solicitor until 17 April 1997. 28.5 On 12 May 1997 the Solicitor returned the security documentation to [NAME]. 28.6 At 3.38 p.m. on 19 May 1997 the Solicitor faxed the vendor's Solicitors indicating that there were then two (2) outstanding mortgagee requirements and sought an extension of time in which to settle to Friday 23 May 1997. The Solicitor conceded the validity of the Notice to Complete to the vendor's Solicitors. 28.7 On 22 May 1997 [NAME], the Solicitors for the incoming mortgagee, advised the Solicitor that they were still unable to certify title because the Solicitor had failed to provide certain documents. 29 The Tribunal finds all the aforesaid particulars of fact to be true and is comfortably satisfied the Solicitor has been guilty of professional misconduct by gross delay in two instances in the conduct of his client's affairs and specifically in relation to satisfying the mortgagee requirements and the delay in providing the transfer to the vendor's Solicitor. [NAME] 30 The particulars of the allegation of gross delay are: 30.1 The Solicitor was retained by [NAME] to act on the purchase and finance of an investment property in Westmead and the re-financing of his residential property in Manly Vale to facilitate the Westmead purchase. 30.2 Contracts were exchanged on 7 April 1997. contract provided for interest to be paid from 16 May 1997. 30.3 By letter dated 9 May 1997 the Solicitor for the incoming mortgagee advised the Solicitor of their client's requirements. The Solicitor failed to take all reasonable steps to comply with those requirements until 11 July 1997. 30.4 On 17 July 1997 the matter settled. The settlement figures included interest payable by the purchaser (17 May 1997 to 17 July 1997) in the sum of $4,173.53. 30.5 On or before 18 June 1997 the Solicitor altered the date on the Contract from 7 April 1997 to 17 April 1997 to avoid a fine for late payment of stamp duty. 30.6 [NAME] telephoned the Solicitor on a number of occasions including 18 and 23 June 1997. The Solicitor failed to respond to [NAME]'s numerous telephone messages and inquiries. 31 The Tribunal finds all these particulars to be true and the Tribunal is satisfied the Solicitor is guilty of gross delay in the conduct of [NAME]'s affairs particularly in the context of the Solicitor's failure to take all steps to satisfy the incoming Mortgagee's requirements in a timely way. The Solicitor was well aware of the need for expediently dealing with the Mortgagee's requirements. The Solicitor is guilty of professional misconduct. [NAME] 32 The particulars of the allegation of gross delay are: 32.1 The Solicitor was retained by the complainant on 15 January 1992 to act for her in relation to a claim to the Victims Compensation Tribunal ("the Tribunal") in respect of an assault upon her on 4 October 1991. 32.2 A Notice of Determination issued from the Tribunal on 12 October 1992 in the sum of $7,249.00. On 10 November 1992 the Solicitor received instructions from [NAME]'s father to contest the award. 32.3 On 14 May 1993 the Solicitor wrote to [NAME] requesting updated medical reports. 32.4 On 12 April 1994 the Solicitor wrote to the Tribunal enclosing a medical report. 32.5 By letter dated 12 June 1994 the Tribunal advised the Solicitor that it had no record of an Application for Payment or notification that an appeal had been lodged being received. 32.6 By letter dated 13 December 1994 the Tribunal advised the Solicitor that it had no power to reconsider its earlier decision and that its decision of October 1992 was final. 33 The Tribunal finds all these particulars to be true and The Tribunal is satisfied the Solicitor is guilty of gross delay in the conduct of [NAME]'s affairs and specifically the Solicitor failed to lodge the documents to contest the award in a period extending over 12 months. The Solicitor is guilty of professional misconduct. [NAME] 34 The particulars of the allegation of gross delay are: 34.1 In 1993 Gosford City Council refused a building application made by [NAME]. 34.2 On 9 May 1994 the Solicitor wrote to [NAME] stating "subject to advices (you) should commence Land and [ADDRESS] proceedings seeking orders in respect of Council's failure to deal with the BA if that is the case". Thereafter, [NAME] gave the Solicitor instructions to commence proceedings in the Land and [ADDRESS]. 34.3 The Solicitor failed to commence proceedings in the Land and [ADDRESS] as instructed. 35 The Tribunal finds all the aforesaid particulars of fact to be true and is comfortably satisfied the Solicitor has been guilty of professional misconduct by gross delay in the conduct of his client's affairs and in particular the failure to commence proceedings at all. [NAME] 36 The particulars of the allegation of gross delay are: 36.1 [NAME] retained the Solicitor to act for him in District Court proceedings against [NAME] in respect of which [NAME] obtained judgment on 21 July 1989 for $1,776.36 plus costs. 36.2 The Solicitor was guilty of gross delay between approximately August 1989 and April 1993 in obtaining a Writ of Execution against [NAME]. 36.3 On 15 June 1993 the Solicitor received a cheque from the Butchers in the sum of $2,837.06 which he paid to his client's daughter by cheque dated 22 July 1993. 36.4 The Solicitor failed to take any steps to recover [NAME]'s legal costs as instructed. 37 The Tribunal finds all the aforesaid particulars of fact to be true and is comfortably satisfied the Solicitor has been guilty of professional misconduct by gross delay in the conduct of his client's affairs and in particular regarding obtaining the Writ of Execution and not taking steps to recover costs. [NAME] 38 The particulars of the allegation of gross delay are: 38.1 [NAME] retained the Solicitor to act on their behalf in relation to a building dispute with [COMPANY]. 38.2 In approximately July 1995 [NAME] instructed the Solicitor to lodge a complaint on their behalf with the [COMPANY] ("[NAME]"). 38.3 On 14 July 1995 the Solicitor signed and dated a complaint form for lodgment with the [NAME]. The Solicitor provided a copy of this form to [NAME] and Mr [NAME] but did not lodge that claim with the [NAME]. 38.4 The Solicitor took no further action in relation to the complaint. 39 The Tribunal finds all the aforesaid particulars of fact to be true and is comfortably satisfied the Solicitor has been guilty of professional misconduct by gross delay in the conduct of his client's affairs, in failing to lodge the complaint at all. [NAME] 40 The further particulars of gross delay are: 40.1 In May 1996 [NAME] instructed the Solicitor to commence proceedings in the [ADDRESS] against the builder. 40.2 In August 1996 [NAME] instructed the Solicitor to file a Statement of Claim. 40.3 On 4 September 1996 the Solicitor forwarded a letter to [NAME] enclosing a copy Statement of Claim for their attention and advised that he would shortly inform [NAME] of the updated position in relation to the Statement of Claim. 40.4 The Solicitor did not file any Statement of Claim and took no further steps in the matter. 41 The Tribunal finds all the aforesaid particulars of fact to be true and is comfortably satisfied the Solicitor has been guilty of professional misconduct by gross delay in the conduct of his client's affairs and in particular not proceeding to file the Statement of Claim. There was nothing complex in the allegations to warrant any delay in the filing of the Statement of Claim. [NAME] 42 The particulars of the allegation of gross delay are: 42.1 In 1994 the Solicitor acted for [COMPANY] ("[NAME]") on the sale of its nursery business. [NAME] and [NAME] were directors of and shareholders of [NAME]. 42.2 Following settlement, the directors and shareholders fell into dispute over the Solicitor's calculation and distribution of the settlement monies. 42.3 On 3 May 1994 the Solicitor was retained by [NAME] to act on his behalf and against the other directors and shareholders of [NAME] in relation to the dispute. 42.4 The Solicitor sent letters of demand to the other parties to the dispute. When his letters of demand did not achieve a resolution of the dispute, the Solicitor took no further steps of consequence in the matter. 42.5 By letter dated 9 May 1995 [NAME] faxed a letter to the Solicitor instructing, in part, "...if they refuse our request for their share of this settlement please proceed against them immediately". The Solicitor did not act on these instructions. 43 The Tribunal finds all the aforesaid particulars of fact to be true and is comfortably satisfied the Solicitor has been guilty of professional misconduct by gross delay in the conduct of his client's affairs and in particular the failure to commence to take any action in over a year. [NAME] 44 The particulars of the allegation of gross delay are: 44.1 In about April 1996 Mr and [NAME] ("[NAME]") retained the Solicitor to act for them on their purchase of a property at [ADDRESS], Bateau Bay and the financing of that purchase. The purchase price was $177,225. [NAME] instructed the Solicitor that they would provide approximately $49,000 towards the balance of the settlement monies and the remainder was to be advanced by [NAME] ("the mortgagee") secured by a mortgage over the property. 44.2 On 14 June 1996 [NAME] arranged for some $48,967.48 to be paid to the Solicitor's trust account on account of settlement moneys. [NAME] had already personally paid a deposit of $17,722.50. 44.3 [NAME] acted for the mortgagee. 44.4 On or about 6 May 1997 [NAME] submitted security documents to the Solicitor. The documentation was not completed prior to settlement. 44.5 The purchase was settled on 21 and 25 June 1996. 44.6 On or about 23 July 1997 the Solicitor returned the completed security documents to [NAME]. [NAME]. No advance was made by the mortgagee. 45 The Tribunal finds all the aforesaid particulars of fact to be true and is comfortably satisfied the Solicitor has been guilty of professional misconduct by gross delay in the conduct of his client's affairs and in particular the failure to complete and provide the security documents to [NAME] prior to 26 June 2002. [NAME] and the Roads & Traffic Authority 46 The particulars of gross delay are: 46.1 The Solicitor was instructed by [NAME] and [NAME] to acted for them in relation to compensation for the compulsory acquisition by the Roads & Traffic Authority ("[NAME]") of part of their land at the corner of [ADDRESS] and [ADDRESS] prior to their proposed sale the land to McDonald's. 46.2 On 28 June 1996 the Solicitor received the sum of $33,563.69 being the balance of compensation due from the [NAME] and deposited it to the credit of his trust account. The earlier payment of partial compensation had been made by the [NAME] direct to [NAME] and [NAME]. 46.3 After payment of certain authorised disbursements there remained a balance of $26,008.19 of which the sum of $1,697.50 was payable by [NAME] and [NAME] on account of costs. 47 The Tribunal finds all the aforesaid particulars of fact to be true and is comfortably satisfied the Solicitor has been guilty of gross delay and in particular failure to account to his clients for the balance held in trust. [NAME] 48 The particulars of gross delay are: 48.1 The Solicitor was retained to act for [NAME] in relation to third party proceedings arising out of a motor vehicle accident on 11 October 1993. 48.2 The proceeding were settled on or about 30 April 1996. 48.3 On 26 July 1996 the insurer, [NAME], deposited $59,419.74 in the Solicitor's trust account being the balance of the settlement monies due to [NAME]. 48.4 The Solicitor failed to inform [NAME] of his receipt of these funds. 49 The Tribunal finds all the aforesaid particulars of fact to be true and is comfortably satisfied the Solicitor has been guilty of gross delay and in particular failure to inform [NAME] of receipt of funds and accounting to her. [NAME] 50 The particulars of the allegation of gross delay are: 50.1 In or about June 1995 the Solicitor was retained by [NAME] ("[NAME]") to act for him in relation to a claim against his father's estate. 50.2 By letter dated 12 February 1996 the Solicitor sent [NAME] a copy Summons which he advised was ready for finalising and filing. In the letter the Solicitor requested a cheque in favour of the Supreme Court in the sum of $540 for filing fees and a cheque in favour of [NAME] in the sum of $350 for counsel's fees. 50.3 In or about February 1996 [NAME] paid these monies to the Solicitor as requested. 50.4 In or about August or September 1997 the Solicitor had a conversation with [NAME] using words to the effect "I have obtained an order in the Supreme Court of New South Wales that your brother [NAME] pay to you the sum of $80,000 being the amount of an adjustment made against you in relation to your late father's estate. This also includes legal costs". 50.5 The Solicitor then handed [NAME] a document entitled Minutes of Orders which provided for [NAME] ("the defendant") to pay [NAME] the sum of $60,000 described as being the amount of the adjustment made against [NAME] in relation to the estate and a further sum of $15,000 described as being by way of adjustment in relation to the distribution of the assets of the estate. Further, the document provided for the defendant to pay [NAME] interest from 20 December 1995 and [NAME]' costs. 50.6 No proceedings were commenced in the Supreme Court as detailed in [NAME]' conversation with the Solicitor in August/September 1997 and no request was made to the [NAME]'s Office to take any action to satisfy the judgment debt the subject of the said Orders. 51 The Tribunal finds all the aforesaid particulars of fact to be true and is comfortably satisfied the Solicitor has been guilty of gross delay and in particular failure in drafting Summons and failure to file any proceedings at all, in nearly 3 years from receipt of instructions. GROUND 2: THE SOLICITOR WAS GUILTY IN THE GROSS NEGLECT IN THE CONDUCT OF HIS CLIENTS' AFFAIRS. 52 [COMPANY] in this Information relies at various times on either the same facts involving the same clients or related facts involving the same clients in providing particulars of the allegation of gross neglect in the conduct of the Solicitor's clients affairs. 53 The particulars are quite fulsome and where possible the Tribunal will avoid repeating particulars and rather will simply refer generally to the findings of fact, already determined in this Decision as applicable. [NAME] 54 The particulars of gross neglect are: 54.1 The Solicitor was retained by [NAME] in debt recovery proceedings in the [ADDRESS] commenced against her by [NAME] in May 1990. 54.2 28 July 1993 at an arbitration hearing in which the Solicitor appeared for [NAME], the [NAME] made an award in favour of [NAME] of $16,702.12. 55 The Tribunal finds the particulars made out, however is not satisfied that these brief facts constitute gross neglect. [NAME] was the Defendant in the [ADDRESS] proceedings and there is no evidence that the Solicitor contributed to the length of time that passed between the commencement of the proceedings and the hearing or indeed that time lag was unwarranted in terms of the particular matter. [NAME] 56 In addition to the facts found regarding the finding of gross delay in the affairs of [NAME] it is alleged: 56.1 On 5 May 1997 a Notice to Complete was issued on behalf of the vendor requiring settlement at 3.30 pm on 19 May 1997. 56.2 On 9 May 1997 the vendor's Solicitors provided settlement figures and a direction to pay in anticipation of settlement on 19 May 1997. 56.3 On 19 May 1997 the Solicitor failed, without prior notice or explanation, to attend the settlement appointed for 3.30 pm on that date. 56.4 The Solicitor, by letters dated 19 and 20 May 1997, negotiated with the vendor's Solicitors for an extension of the settlement date upon certain conditions without instructions from his clients. 56.5 On 21 May 1997 the Solicitor's secretary made an appointment to settle at 12.30 pm on 23 May 1997. 56.6 At 11.45 am on 23 May 1997 the Solicitor's secretary telephoned the vendor's Solicitor and advised that settlement could not proceed as certain documents had gone astray. 56.7 On 26 May 1997 the Solicitor telephoned the vendor's Solicitors and advised that he might be able to settle that day and he would telephone again. The vendor's Solicitors did not hear further from the Solicitor. 56.8 On 28 May 1997 the [NAME] instructed the Solicitor to send his file to their new Solicitors. 56.9 On 2 June 1997 the vendor's Solicitors issued a Notice of Termination of the contract. 56.10 Between February and June 1997 [NAME] and [NAME] of [NAME], the vendor's agent, made numerous telephone calls to the Solicitor to ascertain the progress in the matter. Messages were left for the Solicitor to return their calls but he failed to do so. 57 There has clearly been gross neglect in the conduct of this matter and the Tribunal is comfortably satisfied the allegations has been made out and in particular the failure to attend on settlement on 19 May 1995, the settlement not being able to proceed on 26 May, and the failure to refer the security documentation promptly to [NAME]. The Solicitor is guilty of professional misconduct. [NAME] 58 The particulars of gross neglect are: 58.1 In or about September 1996 [NAME] retained the Solicitor to act for him in relation to Family Law proceedings commenced by his former de facto wife and relating to his infant son. 58.2 On 21 November 1996 the Solicitor, at Court, agreed to orders which were that day entered in the Family Court at Parramatta providing for [NAME] to have contact with his son each Wednesday. This was contrary to [NAME]'s instructions that contact take place on a Sunday. 58.3 The Solicitor, at Court, showed the orders to [NAME] who informed him that he wanted the contact day to be a Sunday. 58.4 The Solicitor advised [NAME] to nonetheless sign the Orders, on the basis that the Solicitor, would attend to varying the contact day. The Solicitor witnessed [NAME]'s signature on the Orders. 58.5 On 21 November 1996 the Solicitor advised the complainant that the Orders had been amended so that contact could take place on a Sunday. This was not the case. 58.6 The proceedings were adjourned for further hearing on 16 December 1996 at Parramatta. The Solicitor failed to appear on this date. 58.7 At the request of [NAME] of Counsel appeared on 16 December 1996 for the early part of the hearing. For the latter part of the hearing [NAME] represented himself at which time the Registrar adjourned the matter to 23 December 1996. The Solicitor was informed of this by letter dated 17 December 1996 from [NAME]. 58.8 [NAME]'s letter further advised the Solicitor of the Orders made by the Registrar on 16 December 1996; that the Court had not received the further Application for Final Orders and that Counsel would not be attending further in the matter unless so requested by the Solicitor. 58.9 The Solicitor failed to appear at Court on 23 December 1996. 58.10 Subsequent to the hearing on 23 December 1996 [NAME] telephoned the Solicitor on a number of occasions. [NAME] was not able to speak to the Solicitor and left a number of messages for the Solicitor to return his calls. The Solicitor failed to respond to [NAME]'s numerous telephone messages and inquiries. 58.11 The Solicitor failed to terminate his retainer in accordance with the Family Law Rules. 59 The Tribunal finds all particulars of fact to be true and is comfortably satisfied the Solicitor is guilty of gross neglect in the conduct of his client's affairs, in particular allowing [NAME] to sign Orders he did not agree to, and failing to appear on 16 and 23 December 1996, and/or make appropriate arrangements for an alternative representative. The Solicitor is guilty of professional misconduct. [NAME] 60 The Tribunal refers to the facts determined in paragraphs 30 and 31 herein dealing with [NAME] and the allegation of gross delay, and is similarly comfortably satisfied that the Solicitor was guilty of gross neglect in the conduct of [NAME]'s affairs and in particular contributing to circumstances where [NAME] had an interest liability, when on notice of the interest clause. The Solicitor is guilty of professional misconduct. [NAME] 61 The Tribunal refers to the facts determined in paragraphs 32 and 33 herein dealing with [NAME] and the allegation of gross delay and is similarly comfortably satisfied that the Solicitor was guilty of gross neglect in the conduct of [NAME]'s affairs, including failing to appeal and failing to advise the client there was no appeal lodged. The Solicitor is guilty of professional misconduct. [NAME] 62 The Tribunal refers to the facts determined in paragraphs 34 and 35 herein dealing with [NAME] and the allegation of gross delay and is similarly comfortably satisfied that the Solicitor was guilty of gross neglect in the conduct of [NAME]'s affairs. The Solicitor is guilty of professional misconduct. [NAME] 63 The Tribunal refers to the facts as determined in paragraphs 36 and 37 herein dealing with [NAME] and the allegation of gross delay and is similarly comfortably satisfied that the Solicitor was guilty of gross neglect in the conduct of [NAME]'s affairs, by failing to take appropriate steps to recover the costs. The Solicitor is guilty of professional misconduct. Legal Aid Commission of New South Wales re [NAME] 64 The particulars are: 64.1 [NAME] received a grant of legal aid for the purposes of instituting Supreme Court proceedings against [NAME] for damages arising out of a motor vehicle accident. 64.2 By letter dated 14 October 1988 the Legal Aid Commission transferred the Grant to the Solicitor's firm. 64.3 The proceedings settled on 3 November 1993 with a substantial sum being awarded to [NAME]. 64.4 The office of the Protective Commissioner wrote to the Solicitor on 2 May 1995, 31 May 1995 and 5 March 1996 concerning the preparation of Solicitor/client and party/party bills to which the Solicitor failed to make any substantive response and in particular he failed to inform the Office of the Protective Commissioner of the Solicitor's receipt of party/party costs in the sum of $27,000.00 on 7 January 1994. 64.5 The Legal Aid Commission wrote to the Solicitor on 5 September 1995, 30 January 1996 and 16 April 1996 concerning a final accounting in the matter. The Solicitor failed to make any response. 64.6 The Office of the Legal Services Commissioner wrote to the Solicitor on 17 July 1996, 12 September 1996, 19 December 1996 and 24 February 1997 concerning the Solicitor's failure to respond to the Legal Aid Commission's correspondence. The Solicitor failed to make an adequate response. 64.7 The Solicitor failed to supply, as requested, a Solicitor/client bill to the Office of the Protective Commissioner. 65 The Tribunal finds all the particulars of fact to be true and it is comfortably satisfied the Solicitor is guilty of professional misconduct on the ground of gross neglect in the conduct of [NAME]'s affairs including the reported failure to respond to the correspondence of the Protective Commissioner and the failure to prepare the Solicitor/Client and Party/Party bills and the failure to inform the Protective Commissioner of receipt of Party/Party costs, which was negotiated without instructions. The Solicitor is guilty of professional misconduct. [NAME] and [NAME] 66 The Tribunal refers to the facts as determined in paragraphs 38 and 39 and further in paragraphs 40 and 41 herein dealing with [NAME] and the allegation of gross delay and is similarly comfortably satisfied that the Solicitor was guilty of gross neglect in the conduct of [NAME] and C Pearsons's affairs including the failure to lodge the claim with the [COMPANY] and the failure to file the Statement of Claim. The Solicitor in each instance is guilty of professional misconduct. [NAME] 67 The Tribunal refers to the facts as determined in paragraphs 42 and 43 herein dealing with [NAME] and the allegation of gross delay and is similarly comfortably satisfied that the Solicitor was guilty of gross neglect in the conduct of [NAME]'s affairs, and more specifically the failure to commence proceedings and failing to recognise a potential conflict of interest. The Solicitor is guilty of professional misconduct. [NAME] 68 The Tribunal refers to the facts as determined in paragraphs 44 and 45 herein dealing with [NAME] and the allegation of gross delay and is similarly comfortably satisfied that the Solicitor was guilty of gross neglect in the conduct of [NAME]'s affairs. The Solicitor is guilty of professional misconduct. [NAME] and the Roads & Traffic Authority 69 The Tribunal refers to the facts as determined in paragraphs 46 and 47 herein dealing with [NAME] and the allegation of gross delay and is similarly comfortably satisfied that the Solicitor was guilty of professional misconduct due to gross neglect in the conduct of [NAME]'s affairs. [NAME] re [NAME] 70 The particulars are: 70.1 The Solicitor acted for [NAME] and [NAME] ('[NAME]") on the sale of 2/[ADDRESS], Avoca Beach to a Mr and Mr s [NAME] ("[NAME]"). 70.2 The sale price was $385,000 and contracts were exchanged on 26 February 1997. A deposit of $38,500 was payable under the contract. 70.3 It was agreed between [NAME] and [NAME]' that the Solicitor, as stakeholder, invest the deposit monies in their joint names with interest to be shared equally between them 70.4 The deposit cheque dated 26 February 1997 was presented on 28 February 1997. The Solicitor deposited the deposit monies to the credit of his trust account. 71 The Tribunal finds all the particulars of fact to be true and is comfortably satisfied that the Solicitor is guilty of professional misconduct due to the gross neglect as alleged, particularly in dealing with the money contrary to instructions and not disclosing his actions. [NAME] re [NAME], 72 The particulars are: 72.1 The Solicitor acted for [NAME] on the sale of 4/[ADDRESS], Avoca Beach to a [NAME] and Mr s [NAME] ("[NAME]"). 72.2 The sale price was $350,000 and contracts were exchanged on 17 June 1997. A deposit of $35,000 was payable under the contract. 72.3 The contract provided for the Solicitor to invest the deposit of $35,000. in an interest bearing account on behalf of the parties with interest to be shared equally between them. 72.4 The cheque for the deposit which was dated 10 June 1997 was presented on 20 June 1997. The Solicitor deposited the money to the credit of his trust account. 73 The Tribunal finds all the particulars of fact to be true and is comfortably satisfied that the Solicitor is guilty of gross neglect as alleged particularly dealing with the money contrary to instructions, and not disclosing his actions. The Solicitor is guilty of professional misconduct. [NAME] 74 The particulars are: 74.1 The Solicitor was retained by [NAME] to act for her on her purchase of 4/[ADDRESS], Kirribilli. Contracts were exchanged on or about 21 July 1995. 74.2 On 31 August 1995 $263.550.36 was received into the Solicitor's trust account by bank transfer from [NAME]'s bank account in Perth on account of the balance of settlement monies, costs, disbursements and stamp duty. Of this amount, the sum of $9,335.00 was, without authority, the same day transferred to the Solicitor's office account. 74.3 The Solicitor failed to pay stamp duty on the Contract and Transfer. 75 The Tribunal finds all the particulars of fact alleged to be true and is comfortably satisfied that the Solicitor is guilty of gross neglect both in relation to the transfer of $9,335.00 to the Solicitor's office account and in the failure to pay stamp duty on the Contract and Transfer. The Solicitor is guilty of professional misconduct. [NAME] 76 The particulars are: 76.1 In or about March 19976 the Solicitor was retained by [NAME] to act for him in relation to [ADDRESS] debt recovery proceedings against Mr [NAME]. 76.2 On or about 25 March 1997 the Solicitor advised [NAME]: 76.2.1 That judgment had been obtained against [NAME] in the sum of $34,418.78. 76.2.2 That agreement had been reached with [NAME] for the judgment debt to be paid by monthly instalments of $5,000 commencing in April 1997. 76.3 No proceedings had been commenced by the Solicitor in the [ADDRESS] and no agreement had been reached with [NAME] for any payment by him to [NAME]. 77 The Tribunal finds all the particulars of fact alleged to be true and is comfortably satisfied that the Solicitor failed to initiate proceedings and is clearly guilty of professional misconduct on the ground of gross neglect in the conduct of [NAME]'s affairs. [NAME] 78 The particulars are: 78.1 During 1996 [NAME] retained the Solicitor to act on his behalf in relation to his divorce and property settlement. 78.2 On 7 August 1996 the Solicitor, in a telephone conversation with [NAME], advised that he had received an offer from [NAME]'s Solicitors whereby she would take the family farm and "all the debts attached to it". The Solicitor advised [NAME] that "all the debts" included the mortgage, a personal loan and an overdraft with [NAME]. On the basis of the above advice, [NAME] instructed the Solicitor to accept [NAME]'s offer. 78.3 The Solicitor subsequently advised [NAME] that all proceedings in the Family Law Court had been dismissed on the above basis. 78.4 [NAME] wrote to [NAME] seeking re-payment of the outstanding mortgage, personal loan and overdraft. 78.5 After receipt of the correspondence referred to in paragraph 4 above [NAME] telephoned the Solicitor and advised him of that correspondence. The Solicitor asked [NAME] to forward that correspondence to him which he did. The Solicitor advised [NAME] that he "did not have anything to worry about" and that he would "fix the problem". 78.6 On subsequent occasions the Solicitor again assured [NAME] that there was nothing to worry about and that his former wife was responsible for the mortgage, personal loan and overdraft. 78.7 On or about 7 August 1996 the Solicitor, contrary to his instructions, consented to an Order made in the Family Court that [NAME] indemnify his former wife against any losses. [NAME] was not advised by the Solicitor of the terms of the Order. 79 The Tribunal finds all the particulars of fact alleged to be true and clearly there has been gross neglect in the conduct of [NAME]'s affairs including acting contrary to instructions and entering orders contrary to instructions. [NAME] 80 The particulars are: 80.1 In or about March 1997 the Solicitor acted for [NAME] on their purchase of [ADDRESS], Kincumber. Settlement took place on 24 April 1997. 80.2 By letter dated 28 April 1997 the Solicitor wrote to [NAME] advising, in part, "... relevant title documentation have (sic) been forwarded by this office for registration and upon its return will be held in safe custody pending your instructions." In the Solicitor's letter of 28 April 1997 he requested a cheque for stamp duty in the sum of $4,549. 80.3 Sometime after 28 April 1997 [NAME] paid the sum of $4,549 in cash to the Solicitor. 80.4 The Solicitor did not stamp the Contract. 81 The Tribunal finds all the particulars of fact alleged to be true and clearly there has been gross neglect in the conduct of [NAME]'s affairs including the failure to stamp the contract. The Solicitor is accordingly guilty of professional misconduct. [NAME] 82 The Tribunal refers to the facts as determined in paragraphs 50 and 51 herein dealing with the allegation of gross delay and is similarly comfortably satisfied that the Solicitor was guilty of professional misconduct due to gross neglect. GROUND 3: THE SOLICITOR FAILED TO CARRY OUT HIS CLIENTS' INSTRUCTIONS 83 The Information filed by [COMPANY] repeats the particulars relied upon in relation to the ground of gross delay in the conduct of the Solicitor's clients affairs regarding the following clients: [NAME]. [NAME]. [NAME] and [NAME]. [NAME] Mr & [NAME]. [NAME] and Mr [NAME] Authority. [NAME]. 84 In addition [COMPANY] repeats the particulars of gross neglect in the conduct of his client's affairs as identified above in relation to the following persons: [NAME] and [NAME] re: the sale of property. [NAME] re [NAME] and [NAME] re [NAME]. [NAME] 85 The Tribunal does not repeat the facts already found to be true in relation to all of the aforesaid clients. The failures of the Solicitor are glaring from the facts found above and the Tribunal is comfortably satisfied in each instance the Solicitor has been guilty of professional misconduct on the ground of failing to carry out his client's instructions. [NAME] 86 More specifically the Tribunal finds in relation to [NAME] the Solicitor failed to commence proceedings against [NAME] for $4,000.00 for alleged indebtedness [NAME] 87 In relation to [NAME] the Tribunal finds that in the circumstances of the matter the Solicitor had clear instructions to expeditiously move to settle the matter in a timely way and certainly prior to an interest liability accruing post 16 May 1997 and further to satisfy the requirements of the incoming mortgagee [NAME] 88 In relation to [NAME] the Tribunal is satisfied that instructions were received on 10 November 1992 to contest the award and no such action was taken. [NAME] 89 The Solicitor had instructions to commence proceedings in the Land & [ADDRESS] and failed to do so. [NAME] 90 The Solicitor had instructions to recover [NAME]'s legal costs as instructed. [NAME] and [NAME] 91 The Solicitor failed to act on instructions to lodge a complaint with the [COMPANY] and further failed to act on instructions to commence proceedings by way of Statement of Claim against [COMPANY]. [NAME] 92 The Solicitor failed to commence proceedings pursuant to instructions from [NAME] of 9 May 1995. [NAME] 93 The Tribunal finds in relation to the matter the Solicitor had instructions as part of his general retainer to protect the interests of [NAME] to take all reasonable and necessary steps to ensure compliance with the terms of the contract and this included effecting settlement on or before 4 April 1997 and the submission of a Transfer to the vendor's solicitors in a timely way. [NAME] 94 The Tribunal finds in relation to this matter the Solicitor failed to pursue [NAME]'s instructions for [NAME] to have contact with his son to occur on a Sunday. [NAME] and [NAME] 95 As part of the Solicitor's general retainer he had an obligation to account to them for the monies in Trust and he failed to do so. [NAME] 96 Contrary to instructions not satisfying the requirements of [NAME] in relation to having the purchase partially secured by a mortgage over the property and proceeding to effect settlement without the mortgage being in place and thereafter despite the submission of the mortgage documentation failing to put the mortgage in place. [NAME] and [NAME] 97 The Tribunal finds in relation to this matter the Solicitor failed to act on instructions in relation to increasing the sale price from $950,000. to $981,000 to reflect an increase in the area of the land being sold and contrary to instructions on 25 February 1997 depositing the deposit moneys to the credit of the Solicitor's Trust Account. [NAME] 98 The Solicitor failed to act on instructions of [NAME] in relation to a claim against his late father's estate and specifically failed to commence proceedings pursuant to instructions. [NAME] re [NAME] 99 Regarding the sale to [NAME], contrary to instructions the Solicitor deposited $38,500 being the deposit monies into his trust account instead of into an interest bearing account in the names of the vendors and the purchasers. [NAME] re [NAME] 100 Regarding the sale to [NAME], contrary to instructions the Solicitor deposited $35,000 being the deposit monies, into his trust account instead of into an interest bearing account in the names of the vendors and the purchasers. [NAME] 101 The Solicitor contrary to instructions did not finalise the conveyancing procedure in a regular way including the payment of the Stamp Duty. [NAME] 102 Contrary to instructions the Solicitor failed to commence proceedings pursuant to [NAME]'s instructions against [NAME]. [NAME] 103 The Solicitor had instructions to accept the proposal whereby [NAME] would take the family farm and all debts attached to it and this would include any mortgage, personal loan or overdraft with the [NAME]. Contrary to those instructions the Solicitor agreed to Consent Orders whereby [NAME] was obliged to indemnify his former wife against any losses. GROUND 4: THE SOLICITOR FAILED TO ATTEND COURT 104 [COMPANY] in relation to [NAME] relies upon the Judgment Creditor, filing on 23 September 1994 an objection to the instalment application. That objection came on for hearing on 16 December 1994. Neither the Solicitor nor [NAME] attended however the objection was withdrawn and the instalment order allowed to stand. 105 Whilst the Tribunal accepts as a matter of fact that the Solicitor did not attend at Court, without more the Tribunal is not comfortably satisfied the Solicitor is guilty of professional misconduct in this instance. 106 [COMPANY] alleged, in relation to [NAME] and the particulars of the matter set out above, with focus on the failure to appear on 16 December and on 23 December 1996, as constituting professional misconduct. 107 In relation to 16 December, there is a suggestion that the Solicitor's failure to attend was related to the death of a family member, however the evidence of [NAME] identifies the Solicitor assured him that he would appear. In the circumstances of this matter without further explanation the failure to appear in contentious family law proceedings without further explanation must in the Tribunal's view be professional misconduct. 108 As to 23 December 1996, whilst the Solicitor took some steps on the day to convey certain information to [NAME], Barrister, this does not in our view excuse the Solicitor from his obligations, as the Tribunal is mindful of the following: 108.1 He remained on the record. 108.2 He had specific notice of the date from [NAME] and from the evidence of [NAME], he must have been on notice of the date. 108.3 He was on notice that [NAME] had made it clear that he would not be appearing without a specific request. A belated request on the day does not satisfy the Tribunal as being adequate in the circumstances. 109 Accordingly the Solicitor is guilty of professional misconduct in failing to appear on 23 December 1996 GROUND 5: THE SOLICITOR FAILED TO KEEP HIS CLIENTS INFORMED OF ALL MATERIAL DEVELOPMENTS AFFECTING THEIR MATTERS 110 [COMPANY] in this information relies upon particulars relating to a range of clients, all of whom have been referred to in this decision at this stage and, specifically the particulars relate to: [NAME]. [NAME]. [NAME]. 111 Turning to [NAME] the particulars allege 3 instances where there had been a failure to keep the client informed of all material developments affecting their matters. These being: 111.1 On 25 January 1996 the Solicitor lodged a Notice of Motion seeking to have the order for payment of interest in respect of the initial Judgment set aside. That Notice of Motion was listed for hearing on 21 February 1996. On 28 February 1996 the parties were ordered to make written submissions. 111.2 On 13 March 1996 the Court informed the Solicitor that on 11 April 1996 the Court would be handing down its decision on the Notice of Motion. The Solicitor failed to advise [NAME] of this fact until 10 April 1996. 111.3 On 28 November 1996 the Application to Issue Execution was heard. There was no appearance by the Judgment Creditor. The Solicitor attended at the hearing and an Order was made by the Court that [NAME] pay the balance of the moneys owing by instalments of $100 per week. The Solicitor failed to inform [NAME] of the Order of the Court. The Solicitor instead informed [NAME] that the matter was still before the Court and a Stay had been ordered. 112 As to the circumstances of the Notice of Motion listed for decision on 11 April 1996, the Tribunal is not comfortably satisfied that this constitutes a failure to advise of all material developments. There is no suggestion that since it is simply a date for a decision, that there was a need for any further specific instructions to be taken. 113 By way of sharp contrast the failure to advise [NAME] of the orders made on 11 April 1996 involving a refusal of the Notice of Motion and a Costs order is in the Tribunal's view professional misconduct as such information is in the Tribunal's opinion a failure to inform of material developments. Such information was vital to the client. This was a clear act of a failure to keep the client informed of material developments affecting the matter and constituting professional misconduct. 114 Similarly in relation to the events of 28 November 1996 there clearly had been a material development and such information was not conveyed to the client. The Tribunal determines this failure, was professional misconduct. 115 In relation to [NAME] the relevant particulars are in sub paragraphs 56.3, 28.6 and 56.4 herein and without repeating such particulars, the Tribunal is comfortably satisfied that such developments were material, and the Solicitor failed to inform the client of his non attendance at the settlement on 19 May 1997, the belated notice to the Vendor's Solicitors of two outstanding mortgagee requirements and the negotiation of an extension of time for settlement. Again the Solicitor is guilty of professional misconduct on the grounds of failing to keep his clients informed of all material developments affecting their matter. 116 [NAME] [COMPANY] relies upon the particulars in paragraph 48 herein, without repeating them and noting the finding of fact in paragraph 49 herein, the Tribunal is comfortably satisfied the Solicitor is guilty of professional misconduct in failing to inform [NAME] of the receipt of the settlement monies into the trust account on 26 July 1996. This was a clear act of a failure to keep the client informed of material developments affecting the matter and constitutes professional misconduct. 117 [NAME] [COMPANY] relies upon the particulars in sub paragraphs 78.1 and 78.7 herein, without repeating them and noting the finding of fact in paragraph 79 herein, the Tribunal is comfortably satisfied that the Solicitor failed to advise [NAME] that the Solicitor had on 7 August 1996 consented to an order that [NAME] indemnify his former wife against any losses. [NAME] was not advised by his Solicitor as to the terms of the order. This was a clear act of a failure to keep the client informed of material developments affecting the matter and constitutes professional misconduct. GROUND 6: THE SOLICITOR MISLED HIS CLIENTS 118 [COMPANY] relies upon particulars that have already been identified in relation to a range of clients, such clients being: (a) [NAME] (5 instances) (b) [NAME] (c) [NAME]. (d) [NAME]. (e) [NAME] and [NAME] (2 instances). (f) [NAME] and [NAME] (g) Mr & [NAME] (h) [NAME] (i) [NAME] (j) [NAME]. (k)[NAME]. 119 The Tribunal specifically finds that in relation to [NAME] the Solicitor misled her and in November 1995 on enquiry from [NAME] the Solicitor advised her that the debt had been paid in full and that [NAME] should not make any further payments. 120 Further he misled her in or about July of 1996 when [NAME] attended upon his office to enable a Statement of Earnings to be completed and the Solicitor asserted that the statement was required by the Registrar of the [ADDRESS] at Wyong and he was not aware of the reason for the requirement. 121 Further he misled her in October of 1996 when he advised [NAME] that he did not know the reason (s) the [NAME] had taken possession of her car and further in the week commencing 14 October 1996 he misled her when he told her that a Stay was in place, while the question of interest was decided by the Court. 122 He misled [NAME] in relation to the events of 28 November 1996 at Court and advised her the matter was still before the Court and a Stay had been ordered. 123 He further misled her after the [NAME] had taken an inventory of [NAME]'s household goods in that he advised [NAME] that he is not aware of the reason for this as he had not received any correspondence from the Court. The Solicitor is guilty of professional misconduct on the ground of misleading [NAME] on each occasion. 124 The Tribunal finds that [NAME] was misled on 21 November 1996 when the Solicitor alleged that orders had been amended so the contact could take place on a Sunday. The Solicitor is accordingly guilty of professional misconduct. 125 In relation to [NAME] the Tribunal is comfortably satisfied that on 27 June when the Solicitor wrote to [NAME] advising that the delay in the matter rested with [NAME]'s financiers and he misled [NAME]. The Solicitor is accordingly guilty of professional misconduct. 126 In regard to [NAME] the Tribunal finds that the Solicitor misled [NAME] when he advised him in or about October 1996 that proceedings had been commenced in the Land & [ADDRESS] and further some time after October 1996 and prior to June 1997, that the delay in the matter was the fault of Gosford City Council and on 27 June 1997 that a cheque had been received in settlement of the Land & [ADDRESS] proceedings which would be deposited into [NAME]'s bank account in July 1997. The Solicitor is guilty of professional misconduct on the ground of misleading [NAME].' 127 In relation to [NAME] in addition to the factual matters in paragraphs 38 and 39 herein, further particulars were included in the information of [COMPANY] as follows: 127.1 Between approximately October 1995 and February 1996 in a telephone conversation with [NAME] the Solicitor advised her that he had filed the claim. (This being a reference to the filing of a complaint form for lodgment with the [COMPANY]). 127.2 The Tribunal finds that no action had been taken in relation to the filing of the claim and the Solicitor had misled [NAME]. The Solicitor is accordingly guilty of professional misconduct. 128 [COMPANY] relies on particulars in paragraphs 40.1 to 40.4 herein and further alleges: 128.1 On 8 October 1996 during a telephone conversation with [NAME] the Solicitor said words to the effect "you've got judgment in your favour." 129 The Tribunal finds that [NAME] was misled by the Solicitor as to the alleged entry of judgment in his favour and further finds that no such Statement of Claim had been filed, let alone had judgment been entered. The Solicitor is accordingly guilty of professional misconduct. 130 The Tribunal is comfortably satisfied that the Solicitor was guilty of misleading his clients [NAME] in the following circumstances. 130.1By letter of 9 November 1994 advising [NAME] that the delay in the matter was due to the other parties. This was not the case. By advising [NAME] in mid 1995 in substance " a judgment had been given in your favour and it was now a matter for the [NAME] going out and collecting goods to the value of debt owed." No Judgment had been entered. By requesting a cheque of [NAME] for $200 in favour of the [NAME]'s office for advertising the Judgment Debtors' goods. This request was to reinforce the misleading comment that Judgment had been entered. In each instance the Solicitor was guilty of professional misconduct and misleading [NAME]. 131 Additional particulars provided by [COMPANY] of the allegations relating to Mr & [NAME] are: 131.1 On 25 June 1996, when he held no moneys in his trust account on behalf of [NAME], the Solicitor appropriated the sum of $111,736.00 from his trust account and applied it towards the completion of the [NAME]'s purchase. On or about 24 July 1996 [NAME] telephoned the Solicitor and enquired about the mortgage. The Solicitor informed her to the effect that the purchase was settled; the mortgage would be finalised shortly and any delay was at the hands of the mortgagee. On or about 11 September 1996 [NAME] telephoned the Solicitor to request information on the mortgage. The Solicitor advised [NAME] that she should soon hear from the mortgagee; that any continuing difficulty was with the mortgagee and that the matter had settled on 24 June 1996. 131.2 Some weeks after 11 September 1996 [NAME] attended on the Solicitor to request information on the mortgage. At that meeting the Solicitor handed [NAME] a copy of a settlement statement dated 12 June 1996 and advised them they should have no concerns in respect of the fact that they had not heard from the mortgagee concerning loan repayments. In late November or early December 1996 [NAME] attended on the Solicitor again requesting information on the mortgage. The Solicitor as on prior occasions, assured [NAME] that he had attended to all matters and that any continuing delay was at the hands of the mortgagee. 132 The Tribunal finds these particulars made out and determines that in each instance being the attendances on or about 24 July 1996, on or about 11 September 1996, some weeks after 11 September 1996 and in or about late November or early December 1996 that the clients were misled by the Solicitor in relation to the particulars set out above. The Solicitor is guilty of professional misconduct. 133 [NAME] the Tribunal is satisfied that the Solicitor was guilty of professional misconduct in misleading [NAME], in relation to his advising her as follows: 133.1 In or about September/October 1996 that [NAME] had probably lost their file, they can't find it and he is going to get back onto them and let [NAME] know as soon as possible in relation to the payment of compensation. In February of 1997 advising [NAME] that the matter was in substance in the same situation and the [NAME] had still lost their file. 133.2 In April 1997 advising [NAME] to fax through all the details and he'll sort it out and don't worry about it. At all material times the matter had settled and as at 26 July 1996 the monies had been deposited into the Solicitor's trust account. 134 The Tribunal is comfortably satisfied that [NAME] was misled by the Solicitor who is guilty of professional misconduct in the following circumstances. 134.1 On 25 March 1997 advising [NAME] that Judgment had been entered against [NAME] in the sum of $34,418.78. 134.2 That agreement had been reached with [NAME] for the Judgment Debt to be paid by monthly instalments of $5,000 commencing April 1997. In August 1997 advising [NAME] that the alleged August 1997 instalment would be delayed until September 1997 and further the September 1997 payment would be available in the last week of September 1997. On 9 September 1997 advising [NAME] that he received a cheque for the August payment which would be available for collection on 15 September 1997. 135 Accordingly the Solicitor is guilty of professional misconduct by misleading [NAME] as to the alleged securing of judgment and the instalment payment arrangements. 136 In relation to the client, [NAME] the Tribunal is comfortably satisfied [NAME] was misled by the Solicitor when the Solicitor advised [NAME] as follows: 136.1 That Family Court proceedings had been dismissed on the basis that [NAME] would take the family farm and all the debts attached to it including a mortgage, a personal loan and an overdraft with [NAME]. This was not the case. 136.2 That [NAME] after receiving a letter from [NAME] seeking repayment of outstanding mortgage, personal loan and overdraft had nothing to worry about. Subsequent reassurances by the Solicitor to that [NAME] that had nothing to worry about and that his former wife was responsible for the mortgage, personal loan and overdraft. 137 The Tribunal is comfortably satisfied that [NAME] was misled by the Solicitor as follows: 137.1 In August or September 1997 advising [NAME] that an order had been secured in the Supreme Court of NSW that his brother [NAME] pay the sum of $80,000.00. On 27 March 1998 advising [NAME] that if his brother did not make a payment to the [NAME]'s office by 15 April 1998 the vehicle referred to in the Notice of Removal and Sale of Goods would be sold. On 27 May 1998 alleging to [NAME] that the Solicitor was awaiting the [NAME]'s Office to report on the progress of the matter. 138 None of the Solicitor's assertions to [NAME] were true. Accordingly the Solicitor is guilty of professional misconduct by misleading [NAME]. GROUND 7: THE SOLICITOR HINDERED, OBSTRUCTED AND DELAYED THE INVESTIGATOR 139 [NAME] was appointed to investigate the affairs of the Solicitor on 3 July 1997. As part of that process it was necessary for [NAME], as the investigator to seek to attend upon [NAME] and access records which clearly included certain specific files and his trust account records. [COMPANY] provides the following particulars of this ground. [NAME] 140 By letter dated 8 July 1997 the Investigator wrote to the Solicitor requesting him to produce his trust account records and noting, "There is little correspondence or documentation on the file regarding commencement of proceedings on behalf of [NAME] against [NAME] from late 1994 onwards. This must be supplied." 141 The solicitor failed to produce his trust account records as requested and produced only an incomplete file. Legal Aid Commission of New South Wales re [NAME] 142 By letter dated 8 July 1997 the Investigator wrote to the Solicitor requesting him to produce his trust account records and noting, "There was no correspondence or other documentation on file from 1995 and subsequent material must be supplied" 143 The Solicitor failed to produce his trust account records as requested and produced only an incomplete file. [NAME] 144 By letter dated 8 July 1997 the Investigator wrote to the Solicitor requesting him to produce his trust account records and noting, "There was no items of correspondence, message slips or other documents on this file after your letter to [NAME] dated 9 November 1994. That correspondence and the like must be provided". 145 The Solicitor failed to produce his trust account records as requested and produced only an incomplete file. [NAME] 146 By letter dated 8 July 1997 and, on prior occasions orally, the Investigator requested the Solicitor's trust account records and noted. "There is no correspondence, telephone messages or other material relating to this matter after the furnishing of client details by [NAME] for the vendor on 20 June 1996. The balance of the file after that date must be supplied". The Solicitor failed to produce his complete file and trust account records as requested. 147 On 10 July 1997 the Solicitor and the Investigator had a conversation to the following effect: Investigator: "I am not satisfied with the records in the [NAME] matter." Solicitor: [redacted] Investigator: "Your file does not reflect that. I will have to contact [NAME] and [NAME]. You appreciate the funds to complete must be located somewhere." Solicitor: [redacted] 148 [NAME] had clearly endeavoured to discharge his obligations and to provide reasonable timelines for the production of documentation, which the Solicitor did not meet, or sought to extend and then failed to produce documents. The Solicitor made no admissions as to any inadequacies in his files and what was produced. 149 The Tribunal is comfortably satisfied that the Solicitor was well aware of the deficiency of his trust accounting records in relation to the matters particularised and the Solicitor made no acknowledgments in this regard, nor did he genuinely co-operate with the requests of the Investigator. The Solicitor appeared too busy to meet the Investigator at the Solicitor's office. This is certainly the case in relation to the matters of [NAME] and [NAME]. 150 As to the matter of [NAME], the Solicitor was hindering, obstructing and delaying the Investigator, in that the Tribunal is satisfied he was deliberately misleading the Investigator in the conversation of 10 July 1997 and under no circumstances could it be represented that the matter of [NAME] had settled in the normal course, and further the Solicitor had deliberately sought to divert attention from the status of his trust account. The Solicitor is guilty of professional misconduct. 151 As to the matter of [NAME], the Tribunal is not satisfied that the allegation can be made out. There is a distinction to be drawn between not having records and having records and then hindering, obstructing and delaying the investigator in relation to accessing the records. 152 In the circumstances the Tribunal is not comfortably satisfied that the ground has been made out. GROUND 8:THE SOLICITOR WAS GUILTY OF DISCOURTESY 153 [COMPANY] in the Information has relied upon particulars involving a range of the same clients and where possible the Tribunal does not repeat all the allegations and refers to the facts set out herein. 154 The Tribunal is mindful in considering this ground, of the particular circumstances in which the allegations are raised. 155 At its simplest there is a failure to return phone calls and communicate with clients, however when put in context the discourtesy is part of grossly unsatisfactory circumstances and needs to be assessed in that context and not in isolation. Further it must be appreciated in considering this issue of discourtesy that the failure to communicate with clients can cause unnecessary distress/frustration and agitation in an environment where there is often uncertainty. 156 The relevant particulars relied upon by [COMPANY] are as follows: [NAME] 157 On 19 May 1997 the Solicitor failed, without prior notice or explanation, to attend the settlement appointed for 3.30 p.m. on that date. The non attendance has been established. In the context of this matter no reasonable explanation has been offered as the failure to attend, nor was any apology offered by the Solicitor. 158 The Tribunal, in considering the issue of discourtesy must look to the context in which it arises and in the matter of [NAME], adverse findings have already been made as to the Solicitor's conduct. In the circumstances of this matter it is considered that the failure to attend on the settlement constituted unsatisfactory professional conduct by discourtesy. [NAME] 159 Between February and June 1997 [NAME] and [NAME] of [NAME], the vendor's agent, made numerous telephone calls to the Solicitor to ascertain the progress in the matter. Messages were left for the Solicitor to return their calls but he failed to do so. The Tribunal finds this allegation to be true. 160 These particulars relate specifically to the conveyancing matter of [NAME] as purchasers of property. The enquiries made by the agents were intimately linked to the conduct of the conveyance for the [NAME] and there was a legitimacy to such enquiries. The Solicitor's failure to respond to the calls at all warrants censure and the Tribunal is satisfied the Solicitor is guilty of unsatisfactory professional conduct by discourtesy. [NAME] 161 Subsequent to the hearing on 23 December 1996 [NAME] telephoned the Solicitor on a number of occasions. [NAME] was not able to speak to the Solicitor and left a number of messages for the Solicitor to return his calls. The Solicitor failed to respond to [NAME]'s numerous telephone messages and inquiries. The Tribunal finds these allegations to be true. 162 In context the Solicitor has not appeared on two occasions and it is accepted that he made representations to [NAME] that he would appear. The Family Court proceedings were contentious. Again the Tribunal is satisfied that the Solicitor is guilty of unsatisfactory professional conduct by discourtesy. [NAME] 163 [NAME] telephoned the Solicitor on a number of occasions including 18 and 23 June 1997. The Solicitor failed to respond to [NAME]'s numerous telephone messages and inquiries. The Tribunal finds these allegations to be true. 164 Whilst the Solicitor did write to [NAME] on 27 June 1997, it is grossly unsatisfactory to not be returning clients telephone calls, when there is genuine concern as to the delay in settlement of the purchase and concerns in relation to the financing of the property. Again the Tribunal is satisfied that the Solicitor is guilty of unsatisfactory professional conduct by discourtesy. [NAME] 165 The Solicitor failed to respond to numerous telephone calls from Mr [NAME]' daughter between 1994 and 1996 and to her letters dated 26 June 1996, 5 August 1996, 15 January 1997 and 7 March 1997. 166 The Tribunal finds the allegations to be true and notes the Solicitor had instructions dating back to 1989 and in this particular matter the failure to respond either by telephone or in writing constitutes professional misconduct by discourtesy. [NAME] 167 The Solicitor failed to respond to the telephone messages left for him by [NAME] on 12 September 1996 (2) 8 October 1996 5 November 1996 8 November 1996 19 November 1996 28 November 1996 2 December 1996 3 December 1996 4 December 1996 5 December 1996 6 December 1996 (4) 11 December 1996 17 December 1996 (3) 13 January 1997 (2) requesting a return telephone call. 168 The Tribunal finds these allegations to be true and is comfortably satisfied that the Solicitor is guilty of professional misconduct in this context as [NAME] was clearly seeking to clarify the status of his matter and the Solicitor was simply seeking to avoid him, rather than address the issues of concern. Accordingly the Tribunal is satisfied the Solicitor is guilty of professional misconduct by these acts of discourtesy. 169 Further, in October 1996 the Solicitor failed to respond to five (5) telephone messages left for him by [NAME] requesting a Plaint Number for the proceedings which she and [NAME] had instructed the Solicitor to commence in the [ADDRESS]. The Tribunal is satisfied that the allegations of fact are true and considers in the circumstances of this matter where again enquiries were being made in relation to the proceedings, which had not been commenced, the Solicitor was seeking to avoid communication with [NAME] and is guilty of professional misconduct by these acts of discourtesy. [NAME] 170 The Solicitor failed to respond to [NAME]'s numerous telephone messages left between May 1994 and June 1995 requesting a return call. 171 Further on 26 July 1996 [NAME] made inquiries at the [ADDRESS] and was informed the Court had no record of the matter. She attended on the Solicitor's office and requested the number of the proceedings. The Solicitor gave her a paper on which he had written "[NAME] No. 394/95." 172 Further the Solicitor failed to respond to [NAME]'s telephone messages on 26 July 1996 (3) 29 July 1996 1 August 1996 requesting a return phone call. 173 The Tribunal is satisfied the allegations of fact are true, again in context the Solicitor has failed to act on his instructions and no proceeding had been commenced. Failing to return the telephone calls in July and August 1996 again involved the Solicitor avoiding his obligations and constitutes in this particular circumstance professional misconduct. Further the failure to return calls between May 1994 and June 1995 is similarly professional misconduct by discourtesy. [NAME] 174 It is particularised that: 174.1 On 19 June 1997 [NAME] telephoned the Solicitor's office on several occasions however, she was unable to speak to the Solicitor. [NAME] left messages for her Solicitor to return her calls. The Solicitor did not return her calls. 174.2 The Tribunal is satisfied that this allegation of fact is true, and in context it must be remembered that this property purchase settled on 21 and 25 June 1996 and [NAME] had been seeking information for nigh on 1 year, however even taking that on board, the allegation in the Tribunal's views does not satisfy the requisite standard of being either professional misconduct or unsatisfactory professional conduct. It is not clear that the Solicitor was in the office on that day or what other activities he may have been undertaking. [NAME] 175 It is particularised that: 175.1 The Solicitor was retained to act for [NAME] in relation to third party proceedings arising out of a motor vehicle accident on 11 October 1993. 175.2 The proceeding were settled on or about 30 April 1996.[NAME] telephoned the Solicitor between May and September 1997 and left messages for him to return her calls, but the Solicitor failed to do so. 176 The Tribunal is satisfied the allegations of fact are true and again the Tribunal is comfortably satisfied is guilty of professional misconduct by his discourtesy. He was well aware the matter had settled and simply did not want to deal with his client and face the consequences of his action. GROUND 9: THE SOLICITOR ACTED WITHOUT INSTRUCTIONS 177 [COMPANY] relies upon a range of the same clients already addressed in this decision and upon a range of overlapping facts to support the allegation of professional misconduct on this ground. Again the Tribunal will not repeat the facts other than is necessary, to address the particular allegation. [NAME] 178 The Tribunal finds that at 3.38 pm on 19 May 1997 the Solicitor faxed the vendor's Solicitors indicating that there were then two (2) outstanding mortgagee requirements and sought an extension of time in which to settle to Friday 23 May 1997. The Solicitor conceded the validity of the Notice to Complete to the vendor's Solicitors. The Solicitor, by letters dated 19 and 20 May 1997, negotiated with the vendor's Solicitors for an extension of the settlement date upon certain conditions without instructions from his clients. 179 The Tribunal finds there crucially was no communication with [NAME] in relation to the aforesaid developments in the conveyance and acting without instructions in relation to the matter including: 180 Conceding the validity of a Notice to Complete. Negotiating for an extension of settlement date upon certain conditions without instructions from the clients. The Solicitor on this ground is guilty of professional misconduct. [COMPANY]. 181 The Tribunal finds that the Solicitor acted for the company, [COMPANY]. Following a dispute between the directors and shareholders of the company, [NAME] and [NAME] over the distribution of the proceeds of sale of the company's property at [ADDRESS], Berkeley Vale the proceeds of sale were invested by the Solicitor in or about May 1990 in a V2 account with [COMPANY]. The account was styled "[NAME]." 182 On 21 February 1996 the Solicitor closed the account and transferred the balance of the account together with interest accrued thereon in the sum of $128,408.56 to the credit of his trust account without the knowledge or authority of the parties. The Solicitor made the following unauthorised withdrawals from the trust account: 8 March 1996 payment to [NAME]. $ 450 21 March 1996 payment to [NAME]. (costs/disbursements) $5,360 28 March 1996 payment to [NAME]. (costs) $3,000 15 April 1996 payment to [NAME]. (balance of fees and disbursements) $10,100 183 The Tribunal is comfortably satisfied that the Solicitor is guilty of professional misconduct in that he acted without instructions in relation to the closing of the account on 21 February 1996 and transferring the balance of the monies from the account into his trust account without knowledge or authority of the relevant parties, and further the four transactions particularised were also undertaken without instructions. The Estate of the Late [NAME] 184 The Tribunal finds that the Solicitor was retained by [NAME] to act in relation to the Estate of [NAME]'s late mother, [NAME], who died on 9 December 1996. [NAME] was the executor named in her late mother's will. The only estate assets under the Solicitor's control were a St. George passbook and a cheque in favour of the deceased in the sum of $521 being a refund of overpaid fees paid to the [NAME]. On 15 January 1997 the Solicitor issued office account receipt number 29 which records receipt of the cheque for $521 as a part payment of the Solicitor's fees and costs. [NAME] did not receive an invoice for these fees and costs nor did she authorise the Solicitor to apply these monies against his outstanding fees and costs. 185 The Tribunal is comfortably satisfied that without instructions $521 was appropriated for payment of Solicitor's fees without authority. The Solicitor is guilty of professional misconduct. GROUND 10: THE SOLICITOR FAILED TO TERMINATE HIS RETAINER IN ACCORDANCE WITH THE FAMILY [NAME] 186 The Tribunal finds the Solicitor failed to terminate his retainer in accordance with the Family Law Rules. 187 It is noted that the Solicitor wrote to [NAME] advising that he would no longer act however he did not comply with Order 37, Rule 1. 188 The Tribunal is satisfied that the Solicitor had been retained to act on behalf of [NAME] and that he was bound in the termination of his retainer to comply with the Rules of the Family Law Court, in relation to how a retainer in that jurisdiction was to be terminated. The Tribunal is comfortably satisfied he did not comply with such Rules. 189 In considering the ramifications of a breach of the Rules the Tribunal is mindful of the following: (a) The matter had been contentious. (b) There had been a failure to ensure adequate representation for [NAME] on 2 occasions by the Solicitor not appearing. 190 Terminating a retainer in a procedurally regular way is important not only for the client but also the legal representatives of the other party and the Court itself. It is not clear to the Tribunal whether the failure to comply with the rule was deliberate or a matter of mere oversight. There is no evidence of any actual adverse consequences arising out of non compliance. The Tribunal is satisfied the Solicitor is guilty of unsatisfactory professional conduct. GROUND 11: THE SOLICITOR ALTERED THE DATE OF A CONTRACT FOR SALE OF LAND WITHOUT THE KNOWLEDGE OR AUTHORITY OF THE PARTIES. [NAME] 191 The Tribunal finds on or before 18 June 1997 the Solicitor altered the date on the Contract from 7 April 1997 to 17 April 1997 to avoid a fine for late payment of stamp duty. This was done without the knowledge or authority of the parties. 192 This is a glaring instance of professional misconduct and warrants the most serious censure. By itself this act of professional misconduct, would almost certainly warrant removal from the Roll. GROUND 12:THE SOLICITOR FAILED TO RESPOND TO LETTERS FROM THE OFFICE OF THE LEGAL SERVICES COMMISSIONER. 193 The Tribunal finds that [NAME], on 16 September 1996, lodged with the Office of the Legal Services Commissioner a complaint form dated 26 August 1996 and the Solicitor failed to respond to correspondence from the Office of the Legal Services Commissioner dated 24 September 1996, 13 December 1996, 10 January 1997, 31 January 1997, 24 February 1997 and 28 April 1997. 194 The Tribunal finds this failure to respond to the correspondence from the Commissioner was an instance where the Solicitor had failed to comply with his obligations and is completely at odds with how a Solicitor should conduct himself in relation to any enquiry from the Office of the Legal Services Commissioner. The Office of the Legal Services Commissioner discharges an important public function and the failure of the Solicitor to respond to such an array of correspondence is professional misconduct. This matter had a history of instructions dating back to at least 10 November 1992 in terms of becoming contentious. Legal Aid Commission of New South Wales re [NAME] 195 The Tribunal finds that the Office of the Legal Services Commissioner, wrote to the Solicitor on 17 July 1996, 12 September 1996, 19 December 1996 and 24 February 1997 concerning the Solicitor's failure to respond to the Legal Aid Commission's correspondence. The Solicitor failed to make an adequate response. 196 This failure to respond to the correspondence from the Commissioner was an instance where the Solicitor had failed to comply with his obligations and is completely at odds with how a Solicitor should conduct himself in relation to any enquiry from the Office of the Legal Services Commissioner. The Solicitor is guilty of professional misconduct. GROUND 13: THE SOLICITOR FAILED TO RESPOND TO LETTERS FROM THE OFFICE OF THE PROTECTIVE COMMISSIONER 197 In the matter of Legal Aid Commission of New South Wales re [NAME], the Tribunal finds that the Office of the Protective Commissioner wrote to the Solicitor on 2 May 1995, 31 May 1995 and 5 March 1996 concerning the preparation of solicitor/client and party/party bills to which the Solicitor failed to make any substantive response and in particular he failed to inform the Office of the Protective Commissioner of the Solicitor's receipt of party/party costs in the sum of $27,000 on 7 January 1994. The Tribunal is comfortably satisfied the Solicitor is guilty of professional misconduct. GROUND 14: THE SOLICITOR FAILED TO RESPOND TO LETTERS FROM THE LEGAL AID COMMISSION 198 In the matter of Legal Aid Commission of New South Wales re [NAME], the Tribunal finds that the Legal Aid Commission wrote to the Solicitor on 5 September 1995, 30 January 1996 and 16 April 1996 concerning a final accounting in the matter. The Solicitor failed to make any response. This is clearly professional misconduct and the Solicitor has put himself in a situation where he has disregarded appropriate communications from the Legal Aid Commission. The Commission was quite within its rights to be seeking a final accounting and the Solicitor had an obligation to address that correspondence. GROUND 15: THE SOLICITOR TERMINATED HIS RETAINER WITHOUT DUE CAUSE OR REASONABLE NOTICE. 199 In relation to [NAME], the Tribunal finds by letter dated 23 January 1997 the Solicitor terminated his retainer with the complainants. It is alleged that he did so without due cause or reasonable notice. The Solicitor had been grossly remiss in the conduct of this matter and failed to either lodge a complaint with the [COMPANY] and/or file a Statement of Claim. Yet he made representations to the contrary to his clients. 200 The Solicitor outlined his concerns in a letter dated 23 January 1997 that [NAME]'s communication was upsetting the Solicitor's staff and perceived as inappropriate. As such he determined that he should terminate the retainer. He indicated he would reconcile the work done on the file, however he did not do so. On its face the correspondence appears appropriate, however the correspondence does not address the Solicitor's underlying failures and he did not propose any remedial action. 201 On one view it may have been a blessing for [NAME] to no longer have a relationship with the Solicitor, however the Tribunal is not satisfied the Solicitor had a legitimate basis to terminate his retainer. The Tribunal finds the Solicitor is guilty of unsatisfactory professional conduct in the manner in which he terminated his retainer. GROUND 16: THE SOLICITOR ACTED IN A CONFLICT OF INTEREST 202 In relation to [NAME] the Tribunal finds that in 1994 the Solicitor acted for [COMPANY] ("[NAME]") on the sale of its nursery business. [NAME] were directors of and shareholders of [NAME]. Following settlement, the directors and shareholders fell into dispute over the Solicitor's calculation and distribution of the settlement monies. On 3 May 1994 the Solicitor was retained by [NAME] to act on his behalf and against other directors and shareholders of [NAME] in relation to the dispute. It is noted the Solicitor pursuant to instructions from [NAME] submitted letters of demand to [NAME] and [NAME]. There is no suggestion the Solicitor advised on conflict of interest or considered how a conflict might arise. The Tribunal is satisfied the conflict of interest did arise and is satisfied the Solicitor is guilty of unsatisfactory professional conduct. GROUND 17: DELETED BY [COMPANY] 18: THE SOLICITOR [NAME] 203 In relation to [NAME] the Tribunal finds that on 15 September 1996 the Solicitor and [NAME] had a conversation to the following effect: [NAME]: "Do you know about the [NAME] matter" Solicitor: [redacted] [NAME]: "How did that occur as from the point of view of [NAME], no moneys have been paid across to the vendor." Solicitor: [redacted] [NAME]: "Well, what has happened in relation to the transaction" Solicitor: [redacted] [NAME]: "So at this stage, you are not able to assist me because of your state of mind". Solicitor: [redacted] 204 Subsequent to this conversation [NAME] tried on several occasions to obtain further information from the Solicitor in respect of the [NAME]'s matter. Those attempts were unsuccessful. 205 The Tribunal finds that the Solicitor knew full well that the [NAME] matter had not resolved in a procedurally regular way and was well aware it was not [NAME] which were at fault. There is no expert evidence before the Tribunal that there was any difficulty with the Solicitor's state of mind at the time, that would excuse his comments to [NAME]. The Tribunal is satisfied that the Solicitor is guilty of professional misconduct. GROUND 19: THE SOLICITOR CHARGED HIS CLIENTS FOR WORK WHICH HE NEGLIGENTLY PERFORMED 206 [COMPANY]'s information raises grounds of professional misconduct relating to the same range of clients already considered and in relation to the [NAME] matter the Tribunal finds In about April 1996 [NAME] ("[NAME]") retained the Solicitor to act for them on their purchase of a property at [ADDRESS], Bateau Bay and the financing of that purchase. The purchase price was $177,225. [NAME] instructed the Solicitor that they would provide approximately $49,000 towards the balance of the settlement monies and the remainder was to be advanced by [NAME] ("the mortgagee") secured by a mortgage over the property. On or about 23 July 1997 the Solicitor returned the completed security documents to [NAME]. No advance was made by the mortgagee. By his bill dated 12 June 1996 the Solicitor charged [NAME] for having acted on the incoming mortgage when, at that time, he had not completed his instructions. The work was negligently performed and the mater only proceeded to settlement by the misappropriation of trust money. 207 It was grossly inappropriate to be rendering a fee for the acting on behalf of [NAME] in relation to the incoming mortgage when it had not been completed. The Tribunal finds the Solicitor knew full well it had not been completed and determines the Solicitor is guilty of professional misconduct for charging for work he negligently performed. 208 In relation to [NAME], the Tribunal finds that the Solicitor was retained by [NAME] to act for her on her purchase of 4/[ADDRESS], Kirribilli. Contracts were exchanged on or about 21 July 1995. The Solicitor rendered to [NAME] a bill dated 1 September 1995 in which he charged her $812 costs and disbursements for acting on the purchase. The Solicitor failed to pay stamp duty on the Contract and Transfer. 209 By letter dated 4 September 1995 the solicitor wrote to [NAME] advising that settlement had been effected that day, that the title documents had been forwarded for registration, and that statutory bodies had been advised of the change of ownership. As of 5 December 1997 the property was still registered in the names of the vendors to [NAME]. 210 The Tribunal is satisfied that the Solicitor is guilty of professional misconduct for charging for work negligently performed. On its face it is extraordinary, particularly when regard is had to the representation that the title documents had been forwarded for registration. GROUND 20: THE SOLICITOR MISAPPROPRIATED HIS CLIENTS' MONEYS GROUND 21: THE SOLICITOR WILFULLY BREACHED S.61(1) OF THE LEGAL PROFESSION ACT, 1987 211 [COMPANY] in the Information, has relied upon the same particulars in respect of the alleged professional misconduct for the misappropriation of his clients' monies and the alleged wilful breach of Section 61 (1) . 212 It is noted that Section 61(1) of the Legal Profession Act 1987 provides: "(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. (4) 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.: 213 Further regard should be had to Section 61(8) of the Act which provides: "(8) It is professional misconduct for a solicitor to wilfully contravene subsection (1) or (2). " 214 [COMPANY] submitted that a necessary element of the alleged breaches of Section 61 of the Act and the misappropriation of clients' monies is that the conduct of the Solicitor should be wilful. The Tribunal agrees with that approach. 215 The Tribunal in the context of Section 61 is mindful of the need to consider whether there has been a wilful breach and as noted by Hardie J in re Mayes and Legal Practitioners Act 1974 1NSWLR19: " there can be wilful failure within the meaning of the section without any positive intention to breach the law: breaches committed over a period of time can, in the light of the relevant circumstances, be so substantial and reckless and show such complete indifference on the part of the Solicitor to do his important obligations to his clients and to the public, as to amount to wilful failure". 216 In considering the facts in each matter the Tribunal is comfortably satisfied that given the nature, the extent and repeated nature of the breaches it is demonstratively clear that they are wilful. 217 In doing so, the Tribunal accepts that the evidence clearly shows a course of conduct whereby the Solicitor knew precisely what he was doing in each instance particularised. 218 It is further noted the [ADDRESS] of Appeal in Re Hodgekiss – (1962) 62 SR (NSW) 320 held that a reckless indifference to the conduct in question may suffice. Hardie J, having considered the English concept of "wilful neglect or default" noted that a breach of the then Section 41 of the Legal Practitioners Act 1898, the predecessor to Section 61, occurred when "the Solicitor knew or believed that he was committing such breaches or was recklessly careless in that regard. 219 His Honour further noted: "It is essential ... to examine the facts and circumstances relevant to his state mind, knowledge and intention of the material dates". 220 The Solicitor has filed no Affidavit material in the proceedings and considering the facts in each matter the Tribunal is comfortably satisfied that given the nature, the extent of the breaches and the repeated nature of the breaches it is demonstrably clear that in each instance they are wilful. The breaches of Section 61(1) are wilful, as were the misappropriations. 221 Of course the allegations are extremely serious and the Tribunal considers it important to set out in some detail the findings of fact in relation to each allegation. 222 In relation to [NAME] the Tribunal finds, in about April 1996 [NAME] ("[NAME]") retained the Solicitor to act for them on their purchase of a property at [ADDRESS], Bateau Bay and the financing of that purchase. The purchase price was $177,225. [NAME] instructed the Solicitor that they would provide approximately $49,000 towards the balance of the settlement monies and the remainder was to be advanced by [NAME] ("the mortgagee") secured by a mortgage over the property. On 14 June 1996 [NAME] arranged for some $48,967.48 to be paid to the Solicitor's trust account on account of settlement moneys. [NAME] had already personally paid a deposit of $17,722.50. 223 On 25 June 1996, when he held no moneys in his trust account on behalf of [NAME], the Solicitor appropriated the sum of $111,736 from his trust account and applied it towards completion of the [NAME]'s purchase. On or about 23 July 1997 the Solicitor returned the completed security documents to [NAME]. No advance was made by the mortgagee. 224 The Tribunal finds that the Solicitor misappropriated his client's monies in the sum of $111,736 on 25 June 1996 and wilfully breached Section 61(1) of the Legal Profession Act. The Tribunal finds the Solicitor guilty of professional misconduct on both grounds. 225 In relation to [NAME] and [NAME], the Tribunal finds the Solicitor was retained to act for Mrs [NAME] and Mr A.J. [NAME] on the sale of a property at the corner of [ADDRESS] and [ADDRESS] to [COMPANY] ("McDonalds"). Clause 24 of the Annexure to the Contract for Sale provided for the deposit monies to be invested in a financial institution by the Solicitor pending completion. It was agreed between Ms [NAME] and "McDonalds" that the financial institution be the Commonwealth Bank, Gosford. 226 Without the knowledge or authority of the parties the Solicitor, on 25 February 1997, deposited the deposit moneys to the credit of his trust account. Further without authority the moneys were withdrawn from the trust account. At the date of the appointment of [NAME], 12 September 1997, the Solicitor's trust account contained an overall credit of $382.48. The Solicitor therefore had sometime on or before 12 September 1997 misappropriated the sum of $95,000. 227 Accordingly the Tribunal finds that some time on or before 12 September 1997 the Solicitor misappropriated his client's monies in the sum of $95,000 and wilfully breached s.61(1) of the Legal Profession Act. The Tribunal finds the Solicitor guilty of professional misconduct on both grounds. 228 In relation to [NAME] and the Roads & Traffic Authority, the Tribunal finds the Solicitor was instructed by [NAME]. [NAME] to act for them in relation to compensation for the compulsory acquisition by the Roads & Traffic Authority ("[NAME]") of part of their land at the corner of [ADDRESS] and [ADDRESS] prior to their proposed sale the land to McDonald's. On 28 June 1996 the Solicitor received the sum of $33,563.69 being the balance of compensation due from the [NAME] and deposited it to the credit of his trust account. The earlier payment of partial compensation had been made by the [NAME] direct to [NAME] and [NAME]. After payment of certain authorised disbursements there remained a balance of $26,008.19 of which the sum of $1,697.50 was payable by [NAME] and [NAME] on account of costs. Without authority the money was withdrawn from the trust account. 229 At the date of the appointment of [NAME], namely 12 September 1997, the Solicitor's trust account contained an overall credit of $382.48. The Solicitor had therefore misappropriated the sum of $24,310.69 sometime on or before 12 September 1997. 230 Accordingly the Tribunal finds that some time on or before 12 September 1997 the Solicitor misappropriated his client's monies in the sum of $24,310.69 and wilfully breached Section 61(1) of the Legal Profession Act. The Tribunal finds the Solicitor guilty of professional misconduct on both grounds. 231 In relation to [NAME] the Tribunal finds, the Solicitor acted for [NAME] on a sale to her daughter and son-in-law of her property at [ADDRESS], Wyoming. The sale settled on 22 October 1996. On settlement, the Solicitor received from the balance of settlement monies a cheque drawn in his favour for $805 representing his fees. 232 On 28 October 1996 the Solicitor drew from the trust account a further sum of $805. 233 Accordingly The Tribunal finds that on 28 October 1996 the Solicitor misappropriated his client's monies in the sum of $805 and wilfully breached Section 61(1) of the Legal Profession Act. The Tribunal finds the Solicitor guilty of professional misconduct, on both grounds. 234 In relation to [NAME] and the sale to [NAME], the Tribunal finds that the Solicitor acted for [NAME] and [NAME] ('[NAME]") on the sale of 2/[ADDRESS], Avoca Beach to a [NAME] ("[NAME]"). The sale price was $385,000 and contracts were exchanged on 26 February 1997. A deposit of $38,500 was payable under the contract. It was agreed between [NAME] and [NAME]' that the Solicitor, as stakeholder, invest the deposit monies in their joint names with interest to be shared equally between them. The deposit cheque dated 26 February 1997 was presented on 28 February 1997. The Solicitor deposited the deposit monies to the credit of his trust account, without authority. 235 The sale by [NAME] to [NAME]' settled on 23 December 1997. 236 The Solicitor did not pay or account to either [NAME] or [NAME]' for the $38,500 which he had retained as stakeholder pursuant to the contract. 237 At the date of the appointment of [NAME], 12 September 1997, the Solicitor's trust account contained an overall credit of $382.48. The Solicitor had therefore misappropriated the sum of $38,500 sometime on or before 12 September 1997. 238 Accordingly The Tribunal finds that on or before 12 September 1997 the Solicitor misappropriated his client's monies in the sum of $38,500 and wilfully breached Section.61(1) of the Legal Profession Act. The Tribunal finds the Solicitor guilty of professional misconduct on both grounds. 239 In relation to the [NAME] sale to [NAME], the Tribunal finds the Solicitor acted for [NAME] on the sale of 4/[ADDRESS], Avoca Beach to a [NAME] and [NAME] ("[NAME]"). The sale price was $350,000 and contracts were exchanged on 17 June 1997. A deposit of $35,000.00 was payable under the contract. The contract provided for the Solicitor to invest the deposit of $35,000 in an interest bearing account on behalf of the parties with interest to be shared equally between them. The cheque for the deposit which was dated 10 June 1997 was presented on 20 June 1997. The Solicitor deposited the money to the credit of his trust account without authority. The sale by [NAME] to [NAME] settled on 22 December 1997. The Solicitor did not pay or account to either [NAME] or [NAME] for the $35,000 which he had retained as stakeholder pursuant to the contract. 240 At the date of the appointment of [NAME], 12 September 1997, the Solicitor's trust account contained an overall credit of $382.48. The Solicitor had therefore misappropriated the sum of $35,000 sometime on or before 12 September 1997. 241 Accordingly The Tribunal finds that on or before 12 September 1997 the Solicitor misappropriated his client's monies in the sum of $35,000 and wilfully breached Section.61(1) of the Legal Profession Act. The Tribunal finds the Solicitor guilty of professional misconduct on both grounds. 242 In relation to [NAME], the Tribunal finds that on 26 July 1996 the Insurer, [NAME], deposited $59,419.74 in the Solicitor's trust account being the balance of settlement monies due to [NAME]. 243 At the date of the appointment of [NAME], 12 September 1997, the Solicitor's trust account contained an overall credit of $382.48. The Solicitor had therefore misappropriated the sum of $59,419.74 sometime on or before 12 September 1997. No authority had been given by [NAME] to transfer money from trust. 244 Accordingly The Tribunal finds that on or before 12 September 1997 the Solicitor misappropriated his client's monies in the sum of $59,419.74 and wilfully breached Section61(1) of the Legal Profession Act. The Tribunal finds the Solicitor guilty of professional misconduct on both grounds. 245 In relation to [NAME], the Tribunal finds that the Solicitor was retained by [NAME] to act for her on her purchase of 4/[ADDRESS], Kirribilli. Contracts were exchanged on or about 21 July 1995. 246 On 31 August 1995 $263.550.36 was received into the Solicitor's trust account by bank transfer from [NAME]'s bank account in Perth on account of the balance of settlement monies, costs, disbursements and stamp duty. Of this amount, the sum of $9,335 was, without authority, the same day transferred to the Solicitor's office account. 247 The Solicitor failed to pay stamp duty on the Contract and Transfer. The Solicitor misappropriated, at least, the sum of $8,364 being the amount of stamp duty payable on the purchase. 248 Accordingly The Tribunal finds that on 31 August 1995 the Solicitor misappropriated his client's monies in the sum of $8,364 and wilfully breached Section.61(1) of the Legal Profession Act. The Tribunal finds the Solicitor guilty of professional misconduct on both grounds. 249 In relation to [NAME], the Tribunal finds that in or about March 1997 the Solicitor was retained by [NAME] to act for him in relation to [ADDRESS] debt recovery proceedings against [NAME]. No proceedings had been commenced by the Solicitor in the [ADDRESS] and no agreement had been reached with [NAME] for any payment by him to [NAME]. 250 The Tribunal finds the Solicitor is guilty of misappropriation between May and June 1997 when the Solicitor paid the sum of $12,000 to [NAME] from moneys in the Solicitor's trust account when there were no moneys standing to the credit of [NAME]. 251 Accordingly The Tribunal finds that between May and June 1997 the Solicitor misappropriated his client's monies in the sum of $12,000 and wilfully breached Section 61(1) of the Legal Profession Act. The Tribunal finds the Solicitor guilty of professional misconduct on both grounds. 252 The Tribunal finds that the Solicitor is guilty of misappropriation between May and July 1997 when the Solicitor drew from the trust account cheques in his own favour totalling $4,500 when there were no moneys standing to the credit of [NAME] in that trust account. 253 Accordingly The Tribunal finds that between May and July 1997 the Solicitor misappropriated his client's monies in the sum of $4,500 and wilfully breached Section 61(1) of the Legal Profession Act. The Tribunal finds the Solicitor guilty of professional misconduct on both grounds. 254 In relation to the [NAME], the Tribunal finds that on or about 22 January 1996 [NAME] instructed the Solicitor to act for him in relation to the Estate of his late wife [NAME] who died on 13 December 1995. In accordance with his instructions, the Solicitor attended to the realisation of the assets of the deceased. 255 On 17 July 1996 the Solicitor deposited the sum of $1,397.50 to the credit of his trust account being monies received from the National Australia Share Registry on behalf of the Estate. On 29 August 1996 the Solicitor deposited the sum of $360 to the credit of his trust account, being monies received from [NAME] on behalf of the Estate. On or about 7 January 1997 the Solicitor received the sum of $288 from [NAME] on behalf of the Estate and on that date deposited these funds to the credit of his general account when he had no authority to do so. 256 At the date of the appointment of [NAME], 12 September 1997, the Solicitor's trust account contained an overall credit of $382.48. The Solicitor had therefore misappropriated the sum of $1,757.50 sometime on or before 12 September 1997. 257 Accordingly the Tribunal finds that on or before 12 September 1997 the Solicitor misappropriated his client's monies in the sum of $1,757.70 and wilfully breached Section 61(1) of the Legal Profession Act. The Tribunal finds the Solicitor guilty of professional misconduct on both grounds. 258 In relation to [NAME], the Tribunal finds that in or about March 1997 the Solicitor acted for [NAME] on their purchase of [ADDRESS], Kincumber. Settlement took place on 24 April 1997. 259 By letter dated 28 April 1997 the Solicitor wrote to [NAME] advising, in part, "... relevant title documentation have (sic) been forwarded by this office for registration and upon its return will be held in safe custody pending your instructions." 260 In the Solicitor's letter of 28 April 1997 he requested a cheque for stamp duty in the sum of $3,549. Sometime after 28 April 1997 [NAME] paid the sum of $4,549 in cash to the Solicitor. The Solicitor did not stamp the Contract. 261 At the date of the appointment of [NAME], 12 September 1997, the Solicitor's trust account contained an overall credit of $382.48. The Solicitor had therefore misappropriated the sum of $4,549 sometime on or before 12 September 1997. 262 Accordingly The Tribunal finds that on or before 12 September 1997 the Solicitor misappropriated his client's monies in the sum of $4,549.00 and wilfully breached Section 61(1) of the Legal Profession Act. The Tribunal finds the Solicitor guilty of professional misconduct on both grounds. 263 In relation to [COMPANY], the Tribunal finds that the Solicitor acted for the company, [COMPANY]. 264 Following a dispute between the directors and shareholders of the company, [NAME] and [NAME] over the distribution of the proceeds of sale of the company's property at [ADDRESS], Berkeley Vale the proceeds of sale were invested by the Solicitor in or about May 1990 in a V2 account with [COMPANY]. The account was styled "[NAME]." On 21 February 1996 the Solicitor closed the account and transferred the balance of the account together with interest accrued thereon in the sum of $128,408.56 to the credit of his trust account without the knowledge or authority of the parties. 265 Further the Solicitor made the following unauthorised withdrawals from the trust account: 8 March 1996 payment to [NAME]. 450 21 March 1996 payment to [NAME]. (costs/disbursements) $5,360 28 March 1996 payment to [NAME]. (costs) $3,000 15 April 1996 payment to [NAME]. (balance of fees and disbursements) $10,100 266 Accordingly The Tribunal finds that the Solicitor misappropriated his client's monies through unauthorised withdrawals from the Solicitor's trust account in the sum of $18,910.00 and wilfully breached s.61(1) of the Legal Profession Act. The Tribunal finds the Solicitor guilty of professional misconduct on both grounds. 267 At the date of the appointment of [NAME], 12 September 1997, the Solicitor's trust account contained an overall credit of $382.48. The Solicitor had therefore misappropriated the sum of $80,557.06 sometime on or before 12 September 1997. Accordingly the Tribunal finds that the Solicitor misappropriated his client's monies through unauthorised withdrawals from the Solicitor's trust account in the sum of $80,557.06 some time on or before 12 September 1997 and wilfully breached Section 61(1) of the Legal Profession Act. The Tribunal finds the Solicitor guilty of professional misconduct on both grounds. 268 In relation to the Estate of the Late [NAME], the Tribunal finds, the Solicitor was retained by [NAME] to act in relation to the Estate of [NAME]'s late mother, [NAME], who died on 9 December 1996. [NAME] was the executor named in her late mother's will. The only estate assets under the Solicitor's control were a St. George passbook and a cheque in favour of the deceased in the sum of $521 being a refund of overpaid fees paid to the [NAME]. On 15 January 1997 the Solicitor issued office account receipt number 29 which records receipt of the cheque for $521 as a part payment of the Solicitor's fees and costs. [NAME] did not receive an invoice for these fees and costs nor did she authorise the Solicitor to apply these monies against his outstanding fees and costs. 269 On 21 February 1997 the Solicitor received a cheque for the sum of $5,583.65 being the proceeds of account number [PHONE] held by the deceased with [COMPANY]. The same day the Solicitor deposited the funds to his trust account. 270 At the date of the appointment of [NAME], 12 September 1997, the Solicitor's trust account contained an overall credit of $382.48. The Solicitor had therefore misappropriated the sum of $5,583.65 sometime on or before 12 September 1997. 271 Accordingly The Tribunal finds that the Solicitor on 15 January 1997 misappropriated his client's monies in the sum of $521 and wilfully breached Section 61(1) of the Legal Profession Act. The Tribunal finds the Solicitor guilty of professional misconduct on both grounds. 272 Accordingly The Tribunal finds that the Solicitor on or before 12 September 1997 misappropriated his client's monies in the sum of $5,583.65 and wilfully breached Section 61(1) of the Legal Profession Act. The Tribunal finds the Solicitor guilty of professional misconduct on both grounds. 273 In relation to [NAME], the Tribunal finds the Solicitor acted for [NAME] on their purchase of [ADDRESS], Glenning Valley. 274 By letter dated 3 September 1997 the Solicitor requested of his clients $590 for estimated stamp duty payable in respect of the purchase. On 5 September 1997 [NAME] paid the sum of $590 in cash to the Solicitor on account of the duty. The Solicitor endorsed a copy of his letter to [NAME] dated 3 September 1997 with an acknowledgment of receipt of this sum. On 5 September 1997 the Solicitor lodged the Transfer at the Office of State Revenue without the payment of duty. No duty was paid to the Office of State revenue until the matter was taken over by other Solicitors. 275 At the date of the appointment of [NAME], 12 September 1997, the Solicitor's trust account contained an overall credit of $382.48. The Solicitor had therefore misappropriated the sum of $590 sometime on or before 12 September 1997. 276 Accordingly The Tribunal finds that the Solicitor on or before 12 September 1997 misappropriated his client's monies in the sum of $590 and wilfully breached Section 61(1) of the Legal Profession Act. The Tribunal finds the Solicitor guilty of professional misconduct on both grounds. 277 In relation to [NAME], the Tribunal finds the Solicitor acted for [NAME] on the sale of her Lisarow property. On 11 November 1996 the Solicitor drew a cheque from the Solicitor's trust account in the sum of $13,755 in favour of the [COMPANY] to enable [NAME] to receive a total hip replacement on 12 November 1996. As at 11 November 1996 the Solicitor did not hold in his trust account or otherwise any monies on behalf of [NAME]. 278 On 17 December 1996 the sum of $58,472.93 was deposited to the Solicitor's trust account on behalf of [NAME] being part of the balance of the proceeds of sale of her Lisarow property. Of this amount $50,000 was applied towards the purchase by [NAME] of another property. On 13 May 1998 [NAME] reimbursed to [NAME], at his request the sum of $5,282.07. 279 Accordingly The Tribunal finds that the Solicitor on 11 September 1996 misappropriated his client's monies in the sum of $13,755 and wilfully breached Section 61(1) of the Legal Profession Act. The Tribunal finds the Solicitor guilty of professional misconduct on both grounds. 280 In relation to [NAME], the Tribunal finds in or about June 1995 the Solicitor was retained by [NAME] ("[NAME]") to act for him in relation to a claim against his father's estate. 281 By letter dated 12 February 1996 the Solicitor sent [NAME] a copy Summons which he advised was ready for finalising and filing. In the letter the Solicitor requested a cheque in favour of the Supreme Court in the sum of $540 for filing fees and a cheque in favour of [NAME] in the sum of $350 for counsel's fees. 282 Whilst allegations were raised in the context of misappropriation of client's monies and wilful breach of Section 61(1) of the Legal Profession Act the Tribunal on the evidence could not be comfortably satisfied that the sum of $890 as alleged had been misappropriated or had involved the Solicitor in a breach of Section 61(1) of the Legal Profession Act.

CONCLUSION 283 The Tribunal has been presented with an Information File Number 002028 alleging professional misconduct on numerous grounds and with a detailed schedule of particulars. As already noted a substantial number of the grounds rely upon the same or overlapping particulars. 284 The grounds have been dealt with in order of the information and the Tribunal finds that the Solicitor's conduct has been reprehensible in the extreme. The Tribunal is absolutely convinced the Solicitor is not a fit and proper person to be entrusted with the responsibilities associated with the position. 285 Reliability and integrity in the handling of trust funds are fundamental and the numerous breaches convince us that the Solicitor is not a fit and proper person to be entrusted with the responsibilities of a Solicitor. He has failed to maintain the standard of honesty and integrity in dealing with his clients and having their moneys entrusted to him. The Solicitor's conduct has been disgraceful. 286 He has misled his clients in many circumstances and has clearly engaged in misleading conduct to avoid making disclosures as to his own lack of action. 287 The Tribunal is comfortably satisfied it is appropriate to make the following orders: (a) The name of [NAME] be removed from the Roll of Legal Practitioners of New South Wales. (b) [NAME] pay the costs of the applicant of and incidental to the Proceeding 002028. FURTHER INFORMATION. PROCEEDINGS 012022 288 [COMPANY] proceeded on two Informations and in Proceeding Number 012022 there were no additional grounds of professional misconduct or reliance on any additional particulars. Rather such proceedings involved a repetition of certain grounds involving certain individuals which are identical to certain grounds and particulars in Proceedings 002028. 289 The Tribunal notes the grounds and the clients concerned in proceedings No. 012022 are: GROUND 1: THE SOLICITOR WAS GUILTY OF GROSS DELAY IN THE CONDUCT OF HIS CLIENTS AFFAIRS. 290 The nominated clients are [NAME] and [NAME] and the particulars for each client are as relied upon by [COMPANY] in Proceedings No 002028. Noting those allegations have been addressed in the course of this Decision, such allegations and findings of fact are not repeated. 291 The Tribunal finds in Proceedings No 012020, the Solicitor is guilty of professional misconduct on the grounds of gross delay in the conduct of his client's affairs for the reasons nominated in Proceedings No. 00 2028. Such clients being [NAME] and [NAME]. GROUND 2: THE SOLICITOR WAS GUILTY OF GROSS NEGLECT IN THE CONDUCT OF HIS CLIENTS' AFFAIRS 292 The Tribunal finds in File No 012020 that the Solicitor is guilty of professional misconduct on the ground of gross neglect in the conduct of his clients affairs, in relation to [NAME] and [NAME]. 293 The nominated clients are [NAME] and [NAME] and the particulars for each client are as relied upon by [COMPANY] in Proceedings No 002028. Noting those allegations have been addressed in the course of this Decision, such allegations and findings of fact are not repeated. 294 The Tribunal finds in Proceedings No 012020, the Solicitor is guilty of professional misconduct on the grounds of gross delay in the conduct of his client's affairs for the reasons nominated in Proceedings No 002028. Such clients being [NAME] and [NAME]. GROUND 3: THE SOLICITOR FAILED TO CARRY OUT HIS CLIENTS' INSTRUCTIONS 295 The nominated clients are [NAME] and [NAME] and the particulars for each client are as relied upon by [COMPANY] in Proceedings No 002028. Noting those allegations have been addressed in the course of this Decision, such allegations and findings of fact are not repeated. 296 The Tribunal finds in File No 012020 that the Solicitor is guilty of professional misconduct on the ground of failing to carry out his client's instructions in relation to [NAME] and [NAME]. GROUND 4: THE SOLICITOR FAILED TO ATTEND COURT 297 The nominated clients are [NAME], and [NAME], and the particulars for each client are as relied upon by [COMPANY] in Proceedings No 002028. Noting those allegations have been addressed in the course of this Decision, such allegations and findings of fact are not repeated. 298 The Tribunal finds in File No 012020 that the Solicitor is guilty of professional misconduct on the ground of failing to carry out his client's instructions in relation to [NAME] 5: THE SOLICITOR FAILED TO KEEP HIS CLIENTS INFORMED OF ALL MATERIAL DEVELOPMENTS AFFECTING THEIR MATTERS. 299 The nominated clients are [NAME], and [NAME] and the particulars for each client are as relied upon by [COMPANY] in Proceedings No 002028. Noting those allegations have been addressed in the course of this Decision, such allegations and findings of fact are not repeated. 300 The Tribunal finds in File No 012020 the Solicitor was guilty of professional misconduct on the ground of failing to keep his clients informed of all material developments affecting their matters in relation to [NAME] and [NAME]. GROUND 6: THE SOLICITOR MISLED HIS CLIENTS 301 The nominated clients are [NAME], and [NAME] and [NAME] and the particulars for each client are as relied upon by [COMPANY] in Proceedings No 002028. Noting those allegations have been addressed in the course of this Decision, such allegations and findings of fact are not repeated. 302 The Tribunal finds in File No 012020 that the Solicitor was guilty of professional misconduct on the grounds of misleading his clients in relation to [NAME] and [NAME]. GROUND 7: THE SOLICITOR HINDERED, OBSTRUCTED AND DELAYED THE INVESTIGATOR 303 The nominated client is [NAME], and the particulars for each client are as relied upon by [COMPANY] in Proceedings No 002028. Noting those particulars have been addressed in the course of this Decision, such particulars are not repeated. 304 The Tribunal finds in File No 012020 that the Solicitor was guilty of hindering, obstructing and delaying the investigator in relation to [NAME] and was guilty of professional misconduct. GROUND 8: THE SOLICITOR WAS GUILTY OF DISCOURTESY 305 The nominated clients are [NAME] and [NAME], and the particulars for each client are as relied upon by [COMPANY] in Proceedings No 002028. Noting those allegations have been addressed in the course of this Decision, such allegations and findings of fact are not repeated. 306 The Tribunal find in File No 012020 the Solicitor was guilty of unsatisfactory professional conduct on the grounds of discourtesy in relation to [NAME]. The Tribunal find in File No 012020 the Solicitor was guilty of professional misconduct on the ground of discourtesy in relation to [NAME]. GROUND 9: THE SOLICITOR ACTED WITHOUT INSTRUCTIONS 307 The nominated clients are [NAME], and the particulars for each client are as relied upon by [COMPANY] in Proceedings No 002028. Noting those allegations have been addressed in the course of this Decision, such allegations and findings of fact are not repeated. 308 The Tribunal finds in File No 012020 that the Solicitor is guilty of professional misconduct on the ground of acting without instructions in relation to [NAME]. GROUND 10: THE SOLICITOR FAILED TO TERMINATE HIS RETAINER IN ACCORDANCE WITH THE FAMILY LAW RULES 309 The nominated client is [NAME], and the particulars for each client are as relied upon by [COMPANY] in Proceedings No 002028. Noting those allegations have been addressed in the course of this Decision, such allegations and findings of fact are not repeated. 310 The Tribunal finds in File No 012020 the Solicitor was guilty of unsatisfactory professional conduct in failing to terminate his retainer in accordance with the Family Law Court rules in relation to [NAME]. GROUND 11: THE SOLICITOR ALTERED THE DATE ON A CONTRACT FOR SALE OF LAND WITHOUT THE KNOWLEDGE OR AUTHORITY OF THE PARTIES 311 The nominated client is [NAME], and the particulars for each client are as relied upon by [COMPANY] in Proceedings No 002028. Noting those allegations have been addressed in the course of this Decision, such allegations and findings of fact are not repeated. 312 The Tribunal finds in File No 012020 the Solicitor was guilty of professional misconduct in altering the date of the contract of sale of land without the knowledge or authority of the parties in the matter of [NAME]. 313 In the course of proceedings it was made clear that [COMPANY] seeks to proceed on both Informations and it submits that the same orders may be made against the same Solicitor in more than one Information. 314 Whilst this information does not raise issues regarding the misappropriation of his client's monies and/or a wilful breach of Section 61(1) of the Act, the Solicitor's behaviour has been found in numerous instances in this Information to be professional misconduct and in other circumstances to be unsatisfactory professional conduct. 315 The conduct of the Solicitor has been reprehensible. The findings speak for themselves and it is not possible in the public interest to contemplate the Solicitor remaining on the Roll. 316 The Tribunal accordingly orders that the name of [NAME] be removed from the Roll of Legal Practitioners in New South Wales. 317 As to costs, it is noted that costs have been sought in both [COMPANY] does seek costs in relation to the presentation of its case in each of the two Informations. 318 However the [COMPANY] also says that it does not in seeking such orders, seek to twice recover its costs. 319 [COMPANY]'s rationale for filing the second Information that is File Number 01 2020 related to concerns the [COMPANY] had as to whether all 9 potential claimants for compensation were properly before the Tribunal, in proceeding 00 2028 and the rationale for commencing proceedings 01 2022 was to ensure jurisdiction for 5 of those potential 9 claimants. 320 There is no suggestion that the Solicitor by his conduct had done anything to hinder the proper investigation or presentation of the consumer compensation claims in proceeding 00 2028, indeed [COMPANY] has not taken the Tribunal to the exact cause of concern as to jurisdiction dealing with the compensation claims. 321 In the circumstances the Tribunal will not grant [COMPANY]'s application for an order for costs in Proceedings No. 01 2020. CLAIMS FOR COMPENSATION 322 The Tribunal considers claims for Compensation pursuant, to Section 171D of the Act and regard must be had to sub-section (1) thereof which provides: (1) If, after it has completed a hearing relating to a complaint against a legal practitioner, the Tribunal is satisfied that the legal practitioner is guilty of unsatisfactory professional misconduct or professional misconduct and that the Complainant has suffered loss because of the conduct concerned, the Tribunal may do any one or more of the following to compensate the complainant: (a) order that the legal practitioner waive or repay the whole or a specified part of the amount charged to the complainant by the legal practitioner in respect of the legal services specified in the order, (b) order that the legal practitioner provide to the complainant the legal services specified in the order, either free of charge or for a specified charge, (c) order that the legal practitioner waive any lien in respect of the document or class of documents specified in the order. (d) order that the legal practitioner pay to the complainant, by way of monetary compensation for the loss, the amount specified in the order. 323 Applications for compensation have been made by: [NAME] and [NAME] 324 The Tribunal is on notice that persons potentially claiming compensation were sent letters of 28 March 2001 from [COMPANY] which relevantly advised: "The Tribunal ordered that any person seeking compensation should file and serve any Affidavits, on which they wish to rely, on or before 23 April 2001. The matter was stood over to 7 April 2001 when the [COMPANY] intends to seek a date for hearing. You should now consider your position in relation to your claim for compensation and prepare, file and serve any Affidavit evidence on which you wish to rely by the due date. As you have been advised previously, whilst the [COMPANY] is conducting your complaint it may not assist you with your compensation claim. In relation to your claim you may act for yourself or retain a Solicitor to act for you. You may, if you wish, approach the Registrar or the Tribunal for advice on procedural matters". 325 Further on 29 June 2001 [COMPANY] wrote to such potential claimants and advised: "I advise you that this matter came before the Tribunal on 25 June 2001 when it was set down for hearing on the two days commencing 17 September 2001. The Presiding Member directed that the [COMPANY] inform you that your claim for compensation will be dealt with on 18 September 2001, and at the conclusion of [COMPANY]'s case. As I have indicated to you in the past, it is for you to now determine how you will prosecute your claim and whether you will be represented before the Tribunal". 326 At the hearing on 18 September 2001, the following persons appeared: [NAME] on behalf of himself and his wife [NAME]. 327 Further an Affidavit was filed by [NAME]. 328 The Tribunal has to be satisfied that the complainant has "suffered loss because of the conduct concerned" and that as a matter of construction the reference, to conduct is a reference to the conduct which the Tribunal determines was either unsatisfactory professional conduct or professional misconduct. 329 Accordingly it is necessary to consider the claims for compensation in the context of the specific grounds of professional misconduct alleged and the particulars thereof as, set out in the Information and the determination of such allegations by the Tribunal. 330 In relation to [NAME] the Tribunal has made determinations of professional misconduct by the Solicitor specifically in terms of gross delay, gross neglect, failure to carry out his client's instructions, failure to keep his clients informed of all material developments affecting their matter, discourtesy and acting without instructions. Such determinations were made in both Informations. 331 The Tribunal is satisfied that [NAME] had to pay the vendors a further $2,000 as compensation, due to the inability to settle the matter in a timely way in accordance with the terms of the contract. 332 A claim is also pressed in relation to additional legal fees incurred having another Solicitor, [NAME] of [NAME] assumed the conduct of the matter and brought it to finalisation. That claim is quantified at $650. 333 The Tribunal is satisfied that [NAME] have suffered a loss of $2,650 because of the conduct of the Solicitor which the Tribunal has determined was professional misconduct. The Tribunal orders in Proceedings No 012020 the Solicitor to pay to [NAME] the sum of $2,650 pursuant to s.171E(1)(d) of the Legal Profession Act 1987. 334 In relation to [NAME] the Tribunal has determined that the Solicitor was guilty of professional misconduct on the grounds of gross delay, gross neglect, failure to carry out instructions, misleading them and discourtesy. Further the Tribunal has determined that the Solicitor was guilty of unsatisfactory professional conduct in relation to the termination of his retainer. 335 On the evidence the Tribunal is satisfied that [NAME] had a reasonably strong prima facie case against [COMPANY]. in relation to the construction of a tennis court. 336 This opinion is consolidated by the shortness of time between the date of the erection of the tennis court and the obvious defects that were manifest in the court, specifically in terms of the ground slippage and the consequential damage to the court itself and the fencing surrounding the court. Further there was a supportive engineering report. 337 It is clear that the Solicitor in accordance with instructions did not lodge any complaint with the [COMPANY] nor in accordance with instructions did he commence any proceedings against [COMPANY]. 338 The claimants originally quantified their claim at approximately $16,500 based on the cost of installation of the failed construction and the cost of the engineering report. They did not ultimately proceed to have the repairs undertaken, as they sold the property. 339 An alternative approach to the quantification of the Plaintiff's loss involves evidence that the property when sold. if the tennis court was in good order and repair could possibly have been worth in the order of $10,000 to $20,000 more. 340 The instructions to the Solicitor to put the claim on a litigated basis against the company dated back to August of 1996. The Solicitor did not do so. The Claimants commenced their own action in the local court in early 1997. The company was placed into administration on 30 May 1997. 341 As at approximately 18 August 1997 the Claimants were put on notice that [COMPANY] had gone into liquidation and in substance there was no funds to deal with their claim. 342 The Claimaints can only succeed if it is established that they have suffered a loss because of the conduct concerned. Here, there has been a supervening event beyond the control of the Solicitor, namely the failing of the company. It was a comparatively short time between when instructions were received to file a Statement of Claim and when the company failed, a period of less than 1 year. 343 The Complainants had lodged their own complaint with the [COMPANY] and had also lodged their own Statement of Claim, and clearly they were well within the 6 year limitation period when they filed their own Statement of Claim. 344 However the Tribunal is concerned that it was not of the Solicitor's doing that [COMPANY]. ceased to trade and no longer had the assets to satisfy judgment. Further the Tribunal notes by Section 171D(2) of the Act, in summary an order for payment exceeding $10,000, is not to be made by the Tribunal unless the complainant and the legal practitioner both consent to the making of the order. 345 The Tribunal is not satisfied there is a sufficient nexus between the alleged loss and the conduct of the Solicitor, which the Tribunal has found to be wanting. There is of course no guarantee that the Complainants would have succeeded against [COMPANY] and there is no suggestion the Solicitor was on notice that the company was at risk of failing. It is considered the Complainant's claim is too remote to ground a basis for recovery. 346 Accordingly no order for compensation is made in favour of [NAME] and [NAME]. 347 [NAME] the Tribunal has made findings of professional misconduct and unprofessional conduct, however again the necessary causal connection needs to be established between the conduct complained of and the loss. The claimed loss is quantified at $4,835.10. 348 They seek a compensation order for this sum. 349 Briefly put [NAME] were aware of their alleged entitlement of this money based upon a claim from [NAME], each claim being the sum of $2,417.55. 350 Their concerns in this regard dated back to in or about May of 1994 and it is noted the Tribunal has found that the Solicitor received instructions to commence recovery proceedings and did not do so. 351 [NAME], by mid to late 1997 were well and truly aware that no proceedings had been commenced on their behalf against [NAME]. They sought no alternative legal advice and commenced no action of their own against the former fellow directors of [NAME], namely the [NAME]. 352 [NAME] submit the claimed loss was due to a miscalculation by the Solicitor as to the respective contributions that had to be made by [NAME] and [NAME]. Further at least inferentially there is a complaint that whilst an agreement was made on the sale price on or about 17 February 1994 the settlement did not occur until 2 May 1994 and this exposed [NAME] to an additional interest liability. 353 However when the Tribunal considers the particulars of the complaints against the Solicitor relate to [NAME] none of the complaints and the findings focus on these two issues. 354 Nor can it be said from the evidence have there been any acknowledgments of a liability by [NAME]. 355 The claim relating to the alleged miscalculation by the Solicitor is by no means clear cut and there is some evidence to suggest that the claims would be quite controversial between the directors, [NAME]. 356 It was in the hands of [NAME] at any time through to in or about May of 2000 to have issued their own proceedings against [NAME] and they did not do so. 357 Again the Tribunal has considerable sympathy for [NAME] as to how they were treated by the Solicitor, however is constrained by the legislation from making any order for compensation.

Revised

Paragraph 26.22: The word "care" changed to "car" Paragraphs 32 and 33: "[NAME]" changed to "[NAME]" Paragraph 32.2: The word "the" deleted Paragraph 46.2: The word "it" inserted after the word "deposited" Paragraph 48: "[NAME]" changed to "[NAME]" Paragraph 50.2: The word "Hands" changed to "[NAME]" Paragraph 54.1: "[NAME]" changed to "[NAME]" Paragraph 61: "[NAME]" changed to "[NAME]" Paragraph 66: "[NAME]" changed to "[NAME]" Paragraph 76: "[NAME]" changed to "[NAME]" Paragraph 78.2: The word "the" inserted before the word "debts" Paragraph 86 "[NAME]" changed to "[NAME]" Paragraph 88: "[NAME]" changed to "[NAME]" Paragraph 104: "[NAME]" changed to "[NAME]" Paragraph 108.3: The word "e" changed to "he" Paragraph 118 (a): "[NAME]" changed to "[NAME]" Paragraph 118 (e): "[NAME]" changed to "[NAME]" Paragraph 118 (f): "[NAME]" changed to "[NAME] and [NAME]" Paragraph 131.1: "$111,7636.00" changed to "$111,736.00" Paragraph 133: "[NAME]" changed to "[NAME]" Paragraph 134: The word "and" changed to "who" Paragraph 147: The word "doe" changed to "does" Paragraph 193: "[NAME]" changed to "[NAME]" Paragraph 228: The word "it" inserted after the word "deposited" Paragraph 254: The words "[NAME]" changed to "[NAME]" Paragraph 281: The word "Hands" changed to "[NAME]" Paragraphs 290-293, 294-297 and 299-304: "[NAME]" changed to "[NAME]" Paragraphs 311-312: "[NAME] changed to " [NAME]"

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