CITATION: Law Society of New South Wales -v- Krikunov [2002] NSWADT 39 DIVISION: Legal Services Division APPLICANT PARTIES: Council of the Law Society of New South Wales RESPONDENT Victor Krikunov FILE NUMBER: 002025 HEARING DATES: 06/08/2001 SUBMISSIONS CLOSED: 08/06/2001 DATE OF DECISION: 03/28/2002 BEFORE: Officer D QC - Judicial Member; Fox R - Judicial Member; Mara A - Member APPLICATION: Professional Misconduct - act contrary to conditions of Practicising Certificate - Professional Misconduct - act contrary to instructions - Professional Misconduct - fail to account - Professional Misconduct - misappropriate trust moneys/moneys - Professional Misconduct - practice as a Solicitor/Barrister without a practising certificate MATTER FOR DECISION: Principal matter LEGISLATION CITED : Legal Profession Act 1987 CASES CITED: APPLICANT REPRESENTATION: D Barton, solicitor RESPONDENT No appearance ORDERS: 1. The name of the Practitioner be struck from the Roll of Legal Practitioners; 2. The Application by Marresso be adjourned, to be re-listed by the Registrar when there is evidence to establish the actual value of the work done by the Practitioner; 3. The papers in relation to Aranagio, Bissett, Wise, West, Humphreys, McCormick, Rosevear & Golabian be referred to the Attorney General.; 4. The Practitioner pay the costs of the Law Society – if not agreed then as assessed pursuant to the Legal Profession Act. 1 The Law Society on Information dated 20 December 2000, raised 12 matters against the Legal Practitioner. Some of the issues were of some age, arising out of events which took place, and came under notice, as long ago as 1992. Indeed, two of the complaints, (Stoyenko and Ivanof) could only proceed because the Legal Services Commissioner accepted them pursuant to section 138(2) of the Legal Profession Act , 1987 ("LPA"). 2 There were subsequent amendments to the Information and the Particulars; the full text of the amended Information and Particulars are annexed hereto. 3 Mr Barton, solicitor appeared for the Society, but the Practitioner did not appear. 4 The matters may be summarised as follows:-- (i) Stoyenko : Failure to account (ii) Kartavenko : Act contrary to Conditions of Practising Certificate, Withdraw funds contrary to instructions (iii) Ivanoff : Misrepresent Effect of Loan Agreement and Act without or contrary to Conditions of Practising Certificate (iv) Arangiego, Bissett, Wise, West, Humphreys, McCormick, Rosevear and Golabian : Act without Practising Certificate in relation to Mortgage Certification (v) Maresso : Act without or contrary to Conditions of Practising Certificate, Overcharging, Failure to account, and misappropriation 5 We were, of course not assisted by the Practitioner's absence from the hearing, and were by that absence prevented from exploring, possibly to the Practitioner's benefit, some of the matters which he sought to raise in his defence, either in the pleadings, or in correspondence with the Law Society which was in evidence before us. 6 We observe that the matter proven in relation to the funds paid to the Practitioner by the Maressos, and admitted by the Practitioner in correspondence, satisfies us to the appropriate level of satisfaction, that he appropriated them to his own use, and that, had he held any Practising Certificate at the time, he would have been in breach of section 61 of the LPA. 7 It is clear in our view that the matters alleged in Araniego and the seven other instances of execution of Solicitor's certificates and other documents in support of such Mortgages, all of which are proven, and all of which were done at a time when the Practitioner held no Practising Certificate at all, are so serious that they alone justify the Society's application for a striking off. 8 More difficult is the application made on behalf of the Maressos for Orders of, in effect, compensation pursuant to section 171D. It is alleged, and it is clearly so, that the Practitioner, either at a time when he held a restricted Practising Certificate, or when he held no Certificate at all, acted for these people in their attempt at re-financing the debt secured over their two adjacent residential properties in Campsie, and when that failed, the two residential real estate sale matters forced by the Mortgagee of the properties, (involving the discharge of mortgages apparently for debts greater than the eventual proceeds of sale), as well as a subsequent endeavour by them to purchase a residence in the Woy Woy area, which ultimately failed because finance could not be obtained. The Practitioner claimed, and apparently was paid, professional costs of $10,500.00 for this work. 9 Mr Hicks, Solicitor of Clayton Utz who act pro bono for the Maressos in these proceedings, seeks an order for the repayment by the Practitioner of the sum of $9,000.00, averring that the work done by the Practitioner had a value of no more than $1,500.00. Regrettably, we cannot agree, simply because we have before us insufficient evidence of the value of the Practitioner's work, and are in no position to make the assessment which is sought. It is fortunate that this Tribunal has wide powers of enquiry and direction of the evidence which it requires. We adjourn the application by the Maressos, and direct them to place before us evidence by a suitably qualified Solicitor, or other costing expert, of the actual value of the work done by the Practitioner as disclosed in Mrs Maresso's statement filed in these proceedings and the four Memoranda rendered by the Practitioner and also filed herein, in respect of the two sales, the aborted purchase and finance application for that, as well as the initial attempt at re-financing, all having regard to the status of the Practitioner's right to practise at the relevant times. Turning to the individual matters, and adopting the same order as the amended Information and Particulars: - Kartavenko: 10 The Practitioner had initially, properly practising as a sole Practitioner, taken instructions from Mr Kartavenko in a matrimonial matter. The Practitioner then in February 1994 commenced employment with Carroll & Knudsen, but for almost a year and half continued to act for Mr Kartavenko as a sole Practitioner. When, in mid 1995, the Practitioner ceased employment with Carroll & Knudsen, he continued to act for Mr Kartavenko, and holding only his previous restricted Certificate, received funds for Mr Kartavenko. At much the same time in 1995, Mr Kartavenko had instructed another Solicitor, and had given that Solicitor a power of attorney, pursuant to which the Practitioner was directed not to disburse the funds. Despite this the Practitioner paid Counsel $8,540.00 and appears to have paid himself approximately $4,500.00 towards his costs and disbursements. The Law Society seems to concede that the Practitioner was owed these amounts in costs and disbursements, and there may have been some explanation for what was done, but the Practitioner chose not to take the opportunity to appear before this Tribunal. These are both (the failure to follow instructions and not comply with Practising Certificate restrictions) very serious matters. Stoyenko: 11 This matter involved a dispute between the Practitioner and Mr Stoyenko about the Practitioner's fees whilst he was an employee of Aubrey Brown Partners. The matter was resolved in the Consumer Claims Tribunal (by terms of settlement) on a basis which obliged Mr Stoyenko to make payments to the Practitioner, which the Practitioner was then to on-forward to the firm. The first payment was forwarded, but the second, made by Mr Stoyenko late in July of 1992, was held by the Practitioner and the payment to Aubrey Brown Partners was not made until 10 December 1993. The material before us certainly raises the prospect that the Practitioner may have had some proper reason for part, if not all of, the delay, but without his sworn evidence, we have no alternative but to note this allegation as proven, and because of the length of time the Practitioner held the funds, note it to be serious Ivanoff: 12 The Practitioner's conduct in relation to the documentation for a borrowing by the Practitioner from a person for whom he was acting leaves much to be desired, but we are not satisfied that the Society has proven the failure set forth in the particulars. 13 In relation to the use of a letterhead, it is clear that the Practitioner was in breach of section 48C (2) in 1997 when he wrote to a medical practitioner using the words "I act for the abovenamed" using a letterhead "J Krikunov Solicitor " followed by his residential address. The Practitioner held no Practising Certificate at the time, and although in purported defence he wrote to the Society to suggest that he was merely helping a long time acquaintance, and although there is no evidence of any fee claimed by the Practitioner in relation to that matter, and so may not have been in breach of section 48 E, the fact of the matter remains that the Act very clearly proscribes any conduct by a person who does not hold a current Practising Certificate which in any way implies that such person is qualified to act as a barrister or solicitor. If the Practitioner wished to publish his professional status ("Legal Practitioner"), as he was clearly entitled to, then to stay within the law, it was necessary that he use words like " Although I do not act for him in any legal capacity, I am assisting Mr Ivanov in making a claim". 14 It is pertinent to observe that the modern legislation requires that the profession description of "solicitor" or "barrister" only be used by the holder of a current Practising Certificate. Even those who have honourably and diligently served the profession for the whole of their lives, and in their retirement are still an ornament to the Roll of Legal Practitioners, but choose not to hold a Certificate, may not describe themselves as "solicitor" or "barrister" without calling in aid (we suppose) the armed service device: -"(Ret)". 15 We note that old habits die hard, even the Society in its particulars describes Mr Krikunov as "solicitor" when from July of 1996 onward that epithet is, by statute, made inappropriate. The Practitioner, as a person who did not hold a practising certificate, clearly was not (and is not) "a solicitor" in the terms of the LPA. 16 A handwritten document prepared by the Practitioner in November 1994, on the same letterhead, and addressed to Mr Ivanov, headed " Memorandum of Costs and Disbursements re: you and Benthe" admits of no interpretation other than that the Practitioner was in breach of the restricted Practising Certificate which he held at that time. 17 Whilst a comparison of sections 48B, C & E (2) each of which impose a criminal sanction, and section 32 (5) which is a prohibition without penalty, might give credence to the suggestion that to act in breach of a restriction may not be all that serious, the fact remains that in the present instance such work would not have been covered by any professional indemnity insurance, and as such is a very serious breach indeed. 18 We are also satisfied that the letter to the medical practitioner establishes item (iv) of this particular part of the Amended Information. Aranagio, Bissett, Wise, West, Humphreys, McCormick, Rosevear and Golabian: 19 In each of these matters the Practitioner very clearly held himself out as entitled to practice by certifying "I Victor Krikunov of …….Solicitor acting for the borrower in relation to the above matter". The certifications date from 10 November 1998 to 1 December 1998. It is difficult to conceive of any basis upon which it could be denied that the Practitioner was "practising", and consequently was clearly in breach of section 25 (1) and the breach of sub-section 3 is just as obvious. The Practitioner had not held any Practising Certificate for some years. 20 We also note that the Practitioner (apparently quite improperly) purported to effect Statutory Declarations in each of these matters, and so we direct that the papers be referred to the Attorney General for such action as may be appropriate. 21 We observe that, apart from failure to account for funds entrusted to a Solicitor, we cannot conceive of a more serious affront to the very fabric of our legal profession, and the trust that the public is entitled to place in that profession, than engaging in legal work without a Practising Certificate. In this matter, we say that eight separate incidents cannot speak of anything other than a concerted course of action, and we are satisfied that these eight matters fully establish the Practitioner's unfitness to be on the Roll. Marresso: 22 As we have already indicated in these reasons, the Practitioner's conduct in acting for these people covers the whole range of contraventions of the Act of which he stands accused, and adds misappropriation to the list. Whilst it seems to us that it is not proven that the Practitioner was in breach of section 61 at the particular time of the acceptance of the Woy Woy deposit, because he did not hold a Certificate, and so was not at the critical time "a Solicitor", it is clear that the funds were entrusted to him, and he has not yet returned them. Again, because at the critical time he was not "a Solicitor", we think it is inappropriate to find particular (vii) proven. Be that as it may, the Practitioner's actions in relation to the funds, and the failure to this day to return them, do establish, beyond any doubt, that he is not a fit and proper person. Our orders are that: 1. The name of the Practitioner be struck from the Roll of Legal Practitioners. 2. The Application by Marresso be adjourned, to be re-listed by the Registrar when there is evidence to establish the actual value of the work done by the Practitioner. 3. The papers in relation to Aranagio, Bissett, Wise, West, Humphreys, McCormick, Rosevear & Golabian be referred to the Attorney General. 4. The Practitioner pay the costs of the Law Society - if not agreed then as assessed pursuant to the Legal Profession Act. ADMINISTRATIVE DECISIONS TRIBUNAL No. 002025 LEGAL SERVICES DIVISION re: VICTOR KRIKUNOV and Part 10 of the Legal Profession Act, 1987 TEXT OF AMENDED INFORMATION AND AMENDED PARTICULARS FURTHER AMENDED In these particulars, 'the solicitor' refers to Victor Krikunov. Employment History At material times, the solicitor's status with respect to his employment was as follows: From To Status Firm 02/03/85 31/07/89 Sole Principal Victor Krikunov 03/07/89 24/08/90 Employee Aubrey Brown Partners 01/03/93 30/06/94 Sole Principal V. Krikunov Solicitor 21/02/94 07/07/95 Employee Michael P Carroll & Peter S Knudsen From 8 July 1995 the solicitor was not employed by any solicitor or firm of solicitors practising in New South Wales. Practising Certificate Status At material times, the solicitor's status with respect to the practising certificate held by him from time to time was as follows: From To Practising Certificate Status 02/06/87 30/06/88 No conditions 07/06/88 30/06/89 No conditions 30/06/89 30/06/90 No conditions 01/07/90 30/06/91 Conditions - employee private practice 01/07/91 30/06/92 Conditions - employee private practice 01/07/92 01/03/93 Conditions - employee private practice 01/03/93 30/06/93 No conditions 01/07/93 30/06/94 No conditions 01/07/94 30/06/95 Conditions - employee private practice 01/07/95 30/06/96 Conditions - employee private practice The solicitor did not seek to renew his practising certificate from 1 July 1996 and he has not held a practising certificate since that date. 1. re Mr V Kartavenko (i) The solicitor wilfully acted as a solicitor for Mr Victor Kartavenko in breach of the conditions of his practising certificate which restricted him to practise only as an employee of another solicitor then holding an unconditional practising certificate. (a) Between 1 March 1993 and 30 June 1994 the solicitor practised as a sole practitioner from his residential premises in North Gosford. During this time, the solicitor was retained by Mr Victor Kartavenko ("Mr Kartavenko") in relation to Family Law proceedings ("the Kartavenko matter"). (b) On or about 21 February 1994 the solicitor commenced employment as an employed solicitor with Carroll & Knudsen, solicitors of Sydney. When he commenced this employment, the solicitor continued to act as if he were a principal in respect of the Kartavenko matter. (c) During the period of his employment, the solicitor continued to act in the Kartavenko matter without the knowledge of the partners of Carroll & Knudsen solicitors. (d) The solicitor ceased his employment with Carroll & Knudsen solicitors on or about 7 July 1995. (e) The solicitor received the sum of $45,000.00, on behalf of Mr Kartavenko, from solicitors acting for Mr Kartavenko's wife. On 10 July 1995 the solicitor paid the moneys to an account with the Advance Bank. The account was maintained in the solicitor's name. (f) The solicitor continued to act for Mr Kartavenko while employed by Carroll & Knudsen solicitors, at which time he did not hold an unconditional practising certificate and without the authority of that firm. (g) At the time of receipt on behalf of Mr Kartavenko of the $45,000.00, approximately $13,000.00 was due to the solicitor for legal fees and for fees due to Ms L Cohen of Counsel, and approximately $2,000.00 was due to the solicitor's aunt in repayment of a loan made to Mr Kartavenko. (h) On 14 July 1995 the solicitor withdrew the sum of $1,000.00 from the Advance Bank account. (i) On 17 July 1995 the solicitor withdrew the sum of $30,000.00 from the Advance Bank account and paid the moneys to Mr Kartavenko. (j) On 17 July 1995 the solicitor withdrew the sum of $8,540.00 from the Advance Bank account for Counsel's fees due to Ms E Cohen, barrister-at-law. (ii) Notwithstanding that the solicitor was aware that Ms Margaret Smyth then acted for Mr Kartavenko and that she had instructed the solicitor not to withdraw any funds held by him, for Mr Kartavenko, the solicitor withdrew his costs from those funds. The Society repeats Particulars 1(i)(a) to 1(i)(e), above. (f) At approximately 6.00 pm on 12 July 1995 Ms Margaret Smyth ("Ms Smyth"), a solicitor employed by "IMMICARE", an immigration advisory service, spoke to the solicitor by telephone. During the conversation, Ms Smyth informed the solicitor that she held a power of attorney for Mr Kartavenko; that his, the solicitor's, instructions had been withdrawn and the solicitor should not deduct any moneys from the moneys held by him on behalf of Mr Kartavenko. (g) On the same day Ms Smyth forwarded a letter by courier to the solicitor's residential address at 17/257 Henry Parry Drive, North Gosford. The letter contained the information and instructions given by Ms Smyth to the solicitor during the telephone conversation. The Society repeats Particulars 1(i)(g) to 1(i)(j), above. 2. re Mr Stoyenko The solicitor received the sum of $1,585 from Mr Stoyenko and failed to account for those moneys. (a) In early June 1989, the solicitor, while engaged in sole practice, assumed the conduct of a civil matter brought by Mr Alfred Stoyenko ("the Stoyenko matter"). (b) On 3 July 1989, the solicitor commenced employment as an employed solicitor with Aubrey Brown Partners and transferred conduct of the Stoyenko matter to Aubrey Brown Partners. (c) On 24 August 1990, the solicitor left his employment with Aubrey Brown Partners. The carriage of the Stoyenko matter remained with that firm. (d) On or about 22 November 1990, Aubrey Brown Partners sent an interim bill to Mr Alfred Stoyenko (Mr Stoyenko) for an amount of $3,530.00. Mr Stoyenko did not pay that bill but lodged a claim before the Consumer Claims Tribunal against Aubrey Brown Partners and the solicitor as Respondents. Mr Stoyenko contended that since he had never furnished any instructions to Aubrey Brown Partners, he did not owe that firm any moneys. (e) On 2 June 1992 the Consumer Claims Tribunal noted agreed terms of settlement requiring Mr Stoyenko to pay the sum of $3,170.00 to the solicitor for payment to Aubrey Brown Partners. The terms of settlement required the settlement moneys be paid in two equal instalments of $1,585.00; the first payment to be made on or before 2 July 1992 and the second and final payment to be made on or before 2 August 1992. (f) The solicitor received the first cheque in the sum of $1,585.00, drawn in his favour, from Mr Stoyenko. The solicitor endorsed this cheque and forwarded it to Aubrey Brown Partners on or about 9 July 1992. (g) Shortly thereafter the solicitor received a second cheque in the sum of $1,585.00, drawn in his favour, from Mr Stoyenko. (h) By letter dated 9 August 1992 the solicitor wrote to Aubrey Brown Partners advising that he had made independent arrangements with Mr Eric Strasser of Counsel ("Counsel") to pay Counsel's outstanding memorandum of fees, in the Stoyenko matter, in the sum of $2,450.00. (i) On 11 August 1992 Mr Eric Grimes ("Mr Grimes"), a partner with Aubrey Brown Partners, received a telephone call from the solicitor who advised him that Counsel had accepted the sum of $2,000.00 in full payment of his outstanding fees of $2,450.00. The solicitor informed Mr Grimes that he proposed to pay the second instalment of $1,585.00 received from Mr Stoyenko, together with his personal funds in the sum of $415.00 to Counsel in final settlement of Counsel's fees. Mr Grimes accepted that proposal. (j) By letter dated 14 August 1992 Mr Grimes wrote to Counsel and sought his formal approval of the proposal by the solicitor for settlement of Counsel's outstanding fees. (k) Shortly thereafter, by letter, Counsel accepted this proposal provided that payment was made within 14 days and that the cheques were met on presentation. (l) The solicitor did not pay Counsel's outstanding fees until 10 December 1993. (m) By letter dated 8 November 1993 the solicitor informed Counsel that he had received the final payment of $1,585.00 from Mr Stoyenko and he admitted that he had appropriated these funds for himself as recompense for his (the solicitor's) assistance to Mr Stoyenko during the Consumer Claims Tribunal proceedings. (n) On 10 December 1993 the solicitor forwarded a bank cheque in the sum of $2,450.00 to Aubrey Brown Partners who in turn forwarded that cheque to Counsel. This was the amount of outstanding fees due to Counsel without the discount that Counsel had allowed for early payment. (o) The solicitor's failure to account for the sum of $1,585.00 between 11 August 1992 and 10 December 1993 was willful. 3. re Nikita Ivanoff (i) The solicitor drafted a loan agreement dated 1 July 1994 on the basis that it was a legally secured loan when he was conscious that it was not. (a) Nikita Ivanoff (Mr Ivanoff) was the executor of the estate of his late mother, Olga Dubanova. Mr Ivanoff instructed Aubrey Brown Partners, solicitors of Killarney Vale, in relation to the administration of the Estate of Olga Dubanova. The solicitor also acted as a solicitor in relation to the Estate. (b) The solicitor drafted a loan agreement dated 1 July 1994 ("the agreement"). This loan agreement noted an agreement by Mr Ivanoff to lend the solicitor the sum of $20,000.00 for a period of twelve months. The agreement provided that: (1) the loan was to be repaid at the sum of $500.00 per week; and (2) security for the loan would be by way of first mortgage over a home unit at 7/17 Doodson Street, Lidcombe and by a personal guarantee by the solicitor. (c) No mortgage was effected as envisaged in the agreement. (d) On 24 November 1994 the solicitor rendered a memorandum of costs and disbursements to Mr Ivanoff for legal assistance provided by the solicitor in relation to a recovery of debt and also in relation to an apprehended violence order sought by Mr Ivanoff. This account was paid. (ii) The solicitor used a personal professional letterhead at times when he either held no practising certificate whatsoever or when he held a practising certificate subject to the condition that he practise only as a solicitor employed by a solicitor holding an unconditional practising certificate. (a) On 6 August 1997 the solicitor used a personal professional letterhead to write to Dr I J Lalak at Strathfield, on behalf of Mr Ivanoff, seeking a medico-legal report relating to injuries sustained by Mr Ivanoff for use in a proposed victim's compensation claim. (b) The letterhead was styled: V. KRIKUNOV Solicitor" 17/257 Henry Parry Drive North Gosford NSW 2250 043-236922 (iii) The solicitor willfully breached the condition of his practising certificate in or about November 1994. The Society repeats Particular 3(ii)( a) & (b ), above. (iv) The solicitor acted without a practising certificate in relation to matters concerning the solicitor and a potential Victims Compensation Claim in or about August 1997. (a) In August 1997 the solicitor advised Mr Ivanoff in relation to a proposed victim's compensation claim. (b) The Society repeats Particulars 3(ii)(a) & (b). 4. re Araniego, Bissett, Wise, West, Humphreys, McCormick, Rosevear and Golabian The solicitor wilfully breached the provisions of Section 25(1) and (3) of the Legal Profession Act 1987 in that he practised as a solicitor without being the holder of a current practising certificate. (i) The solicitor presented the mortgage documents to the following mortgagors. The solicitor retained the executed documents pending delivery as set out in particular 4(x) below: Rose Marie and Teodoro Araniego, Ronald Gordon and Cheryl Mary Bissett, Neil John and Frieda Diane Wise, Clive Owen and Lynette Esther West, Jeffrey Charles and Marion Joy Humphreys, Kevin Paul and Michelle McCormick, Craig Richard and Lauraine Alma Rosevear, and Uretta and Behdad Golabian. (ii) The solicitor filled in and executed a "solicitors confirmation" in respect of the following mortgage transactions: Rose Marie and Teodoro Araniego, Ronald Gordon and Cheryl Mary Bissett, Neil John and Frieda Diane Wise, Clive Owen and Lynette Esther West, Jeffrey Charles and Marion Joy Humphreys, Kevin Paul and Michelle McCormick, Craig Richard and Lauraine Alma Rosevear, and Uretta and Behdad Golabian; each to the Adelaide Bank Limited. (iii) The solicitor filled in each "solicitors confirmation" by placing his name immediately prior to the words, "Solicitor acting for the borrower..." and certified that the borrower received and read the schedule, the contract terms and conditions and the security documents. (iv) The solicitor witnessed the execution of the following mortgages by the mortgagees and caused the mortgages to be delivered to the mortgagor's solicitors: Rose Marie and Teodoro Araniego, Ronald Gordon and Cheryl Mary Bissett, Clive Owen and Lynette Esther West, Jeffrey Charles and Marion Joy Humphreys, Kevin Paul and Michelle McCormick, Craig Richard and Lauraine Alma Rosevear, and Uretta and Behdad Golabian; each to the Adelaide Bank Limited. (v) The solicitor attended upon and witnessed, or purported to attend upon and witness, execution by the following of statutory declarations relating to the mortgage transactions: Rose Marie and Teodoro Araniego, Ronald Gordon and Cheryl Mary Bissett, Clive Owen and Lynette Esther West, Jeffrey Charles and Marion Joy Humphreys, Kevin Paul and Michelle McCormick, Craig Richard and Lauraine Alma Rosevear, and Uretta and Behdad Golabian. (vi) The solicitor signed each statutory declaration above the words, "Justice of the Peace/Solicitor" without deleting either description. Sections 18 and 27 of the Oaths Act 1900 (read together) make relevant provision as to the classes of persons empowered to attend upon the making and subscription of a statutory declaration. Such classifications include; s.27 (1) "A solicitor who has in force a certificate issued under Part 3 of the Legal Profession Act 1987..." (vii) The solicitor procured the signature of each of the following mortgagors upon documents styled "Authority to Date and Pay Advance": Rose Marie and Teodoro Araniego, Ronald Gordon and Cheryl Mary Bissett, Clive Owen and Lynette Esther West, Jeffrey Charles and Marion Joy Humphreys, Kevin Paul and Michelle McCormick, Craig Richard and Lauraine Alma Rosevear, and Uretta and Behdad Golabian. (ix) Each "Authority to Date and Pay Advance" authorised the mortgagee (Adelaide Bank Limited) and the mortgagee's solicitors to place a date on the security documents and to disburse the mortgage advance (inter alia) in accordance with the directions of the mortgagors' solicitor. The terms of each "Authority to Date and Pay Advance" included a representation by the mortgagors that they had received and read a copy of the relevant Memorandum. (x) The solicitor caused the foregoing documents to be delivered to the mortgagee's solicitors, Messrs Gray and Perkins, following filling in and execution thereof. 5. re Maresso (i) The solicitor acted for Mr & Mrs Maresso between January 1996 and 30 June 1996 in breach of the conditions of his practising certificate in that he held a practising certificate which was subject to the condition that he could only practise as a solicitor as the employee of another solicitor holding an unconditional practising certificate. (a) In or about November 1995, the solicitor indicated to Mrs Maresso that he was prepared to accept instructions to act for them as a solicitor. (b) In or about November 1995, the solicitor accepted instructions in relation to a notice of demand served by Croyden Towing Service and subsequently billed Mrs Maresso for so acting. (c) In or about early 1996, the solicitor accepted instructions from Mr and Mrs Maresso to act for them in seeking removal of caveats on property at 40 Campsie Street, Campsie and 42 Campsie Street, Campsie. (d) In or about early 1996, the solicitor accepted instructions from Mr and Mrs Maresso to act for them in relation to mortgages of property at 40 Campsie Street, Campsie and 42 Campsie Street, Campsie. The mortgages were proposed in relation to an attempt by Mr and Mrs Maresso to refinance the properties. The attempt was not successful and the mortgage transactions were abortive. (e) In or about March 1996, the solicitor rendered to Mr Maresso a memorandum of costs and disbursements in the sum of $400.00 (including the sum of $434.00 charged as solicitor's costs) in respect of seeking lapse of caveats on his personal professional letterhead styled: V. KRIKUNOV Solicitor" 17/257 Henry Parry Drive North Gosford NSW 2250 043-236922 (f) In or about March 1996, the solicitor accepted instructions from Mr and Mrs Maresso to act in relation to varying the beneficiaries of the Maresso family Trust. The solicitor rendered a memorandum of costs in the sum of $500.00 for the work performed. (g) In or about April 1996, the solicitor accepted instructions from Mrs Maresso to prepare contracts for sale of property at 40 Campsie Street, Campsie and 42 Campsie Street, Campsie. The purchasers were the same in respect of each property, being J & D Flevaris Pty Limited and Anvic Pty Limited. (h) In or about May 1996, the solicitor rendered an undated memorandum of costs by which he confirmed the sum of $2,500.00 as his professional costs for the work performed in relation to the proposed mortgages on the Campsie properties. Mr and Mrs Maresso paid the solicitor that sum by instalments. (i) On or about 30 May 1996, the solicitor claimed his professional fees in the sum of $200.00 for negotiations with the sheriff in relation to a claim made on Mr and Mrs Maresso's daughter's businesses. (j) On or about 26 June 1996, the solicitor rendered memoranda of costs and disbursements dated 26 June 1996 in relation to acting on Mr and Mrs Maresso's behalf on the sale of the Campsie properties. Each memorandum was in the sum of $2,750.00. Each memorandum was prepared on the solicitor's personal professional letterhead; see Particular 5(i)(e), above. (ii) From 30 June, 1996, the solicitor acted for Mr & Mrs Maresso without a practising certificate. (a) The solicitor took payment in satisfaction of the memoranda of costs and disbursements at the time of settlement of the Campsie properties on 26 July 1996. (b) In or about August 1996 the solicitor accepted instructions from Mrs Maresso to act in relation to the purchase of a property at Woy Woy. Mrs Maresso gave the solicitor a cheque in the sum of $14,550.00 for payment of the deposit on this property. (c) In late August or early September 1996, the solicitor asked Mrs Maresso for the sum of $4,800.00 for stamp duty and related costs that would be incurred in relation to the proposed purchase of the property at Woy Woy. Mrs Maresso paid that sum to the solicitor in cash. The solicitor did not give a receipt for the money. (d) The Woy Woy purchase did not proceed to exchange because finance was refused. The sum of $14,550.00 previously paid for the deposit on the Woy Woy property was refunded by the solicitor on 8 October 1996. (e) On 8 October 1996, the solicitor attended Mr and Mrs Maresso at their home at 12 Edith Avenue, Concord. The solicitor offered to invest the sum of $10,000.00 (comprising the sum of $4,800.00 previously paid to the solicitor for stamp duty and another $5,000.00 to be paid for the purpose of the investment by Mrs Maresso and $200.00 to be contributed by the solicitor) with the Macquarie Bank, repayable on 24 hours notice at interest of $197.00 a month. (f) On 8 October 1996 Mrs Maresso caused the solicitor to be paid the sum of $5,000.00 by cheque drawn by St George Bank pursuant to a withdrawal of that sum from Mrs Maresso's account with St George Bank at Burwood. (g) On 8 October 1996 the solicitor deposited the cheque for $5,000.00 obtained from the St George Bank into his personal account with the Advance Bank at Burwood. (h) On or about 19 November 1996, the solicitor rendered a memorandum of costs and disbursements to Mr and Mrs Maresso in the sum of $2,525.00 in relation to his assistance to obtain finance for the purchase of the property at Woy Woy. (iii) The solicitor overcharged Mr & Mrs Maresso for acting for them in a proposed mortgage/refinancing of two properties. (a) The Society repeats particulars 5(i)(d), 5(i)(h), above. (c) the sum of $2,500.00 charged as solicitor's professional costs for the work performed in relation to the proposed mortgages of the Campsie properties was, in the circumstances, grossly excessive. (iv) The solicitor overcharged Mr & Mrs Maresso for acting for them in the sale of two (2) properties. (a) The Society repeats particulars 5(i)(g), 5(i)(j) and 5(ii)(a), above. (d) The sum of $5,500.00, comprising the sum of $2,750.00 charged as professional costs for the conveyance of each of the Campsie properties was, in the circumstances, grossly excessive. (v) The solicitor wilfully breached Section 61 of the Legal Profession Act. (a) The Society repeats particulars 5(ii)(e), 5(ii)(f) and 5(ii)(g), above. (d) The solicitor failed to repay or otherwise account for the moneys. (vi) The solicitor misappropriated the sum of $9,800, received from Mr & Mrs Maresso. (a) The Society repeats particulars 5(ii)(e), 5(ii)(f) and 5(ii)(g), above. (d) In or about late October 1996 Mr and Mrs Maresso asked the solicitor to repay the $9,800.00 which had been given to the solicitor to invest on their behalf. (e) Mrs Maresso asked the solicitor on numerous subsequent occasions to repay the $9,800.00. (f) The solicitor failed to repay or otherwise account for the moneys. (vii) The solicitor failed to act in accordance with his instructions from Mr & Mrs Maresso in relation to the investment of moneys and to ensure that the moneys were available at call. (a) The Society repeats particulars 5(ii)(e), 5(ii)(f) and 5(ii)(g), above. 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