DUPAL v THE LAW SOCIETY OF NEW SOUTH WALES [1990] NSWCA 56

DUPAL v THE LAW SOCIETY OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and HANDLEY JJA 28, 29 March 1990, 26 April 1990 [1990] NSWCA 56

LEGAL PRACTITIONERS — solicitor — pecuniary dishonesty — solicitor active in local and political affairs in country town — practice faces financial difficulties — mortgagee unexpectedly requires payment — solicitor pays moneys from funds entrusted to him for investment by his sister — use of funds breaches conditions for investment agreed with sister — sister calls for repayment of her funds — solicitor uses trust fund of which he is trustee to repay sister Disciplinary Tribunal finds misappropriation of funds of sister and Trust and wilful breaches of s41(1) and $42(2) Legal Practitioner's Act 1898 — appeal — held: (dismissing appeal) (1) (by the Court) The conduct of the solicitor involved pecuniary dishonesty in respect of funds entrusted to him and required the removal of his name from the roll of solicitors. Re Colin Walter Peck, unreported, Solicitor's Statutory Committee, 23 April 1981 referred to; (2) However, the solicitor might in due course seek readmission.

WORDS and PHRASES — "fraudulent misappropriation".

Ex parte Lenehan (1948) 77 CLR 403, 422; Re Miles; Ex parte Law Society of New South Wales (1966) 84 WN (NSW) (part I) 163, 176; Dawson v Law Society of New South Wales, Court of Appeal, unreported, 21 December 1989; (1989) NSW JB 232 referred to; (3) Discussion by Handley JA of whether the conduct of the solicitor was fraudulent misappropriation under the Crimes Act 1900, s178A and of the trust obligations imposed upon the solicitor in the circumstances. Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41, 125 considered.

Crimes Act 1900, s178A. Legal Practitioner's Act 1898, s41(1), S42(2). Legal Profession Act 1987, s164. Supreme Court Act 1970, s48.