Law Society of New South Wales v Curulli [2008] NSWADT 193

CITATION: Law Society of New South Wales v Curulli [2008] NSWADT 193

DIVISION: Legal Services Division

APPLICANT Council of the Law Society of New South Wales PARTIES: RESPONDENT Anthony Curulli

FILE NUMBER: 072036

HEARING DATES: 8 May 2008

SUBMISSIONS CLOSED: 8 May 2008

DATE OF DECISION: 15 July 2008

BEFORE: Karpin A - ADCJ (Deputy President); Brennan JWF - Judicial Member; Tingle J - Non Judicial Member

CATCHWORDS: Solicitor – Disciplinary application

MATTER FOR DECISION: Principal Matter

LEGISLATION CITED : Legal Profession Act 2004

CASES CITED: Briginshaw v Briginshaw (1938) 60 CLR 336

P Boyd - solicitor REPRESENTATION: In Person

ORDERS: 1. That the name of Anthony Curulli be removed from the Roll of Local Lawyers 2. That the respondent pay the applicant's costs of the proceedings agreed at $2,500.

REASONS FOR DECISION 1 Pursuant to the provisions of section 551 Legal Profession Act 2004, the applicant seeks orders that: i. The name of the applicant be removed from the Roll of local Lawyers; ii. The respondent pay the applicant's costs of the proceedings. 2 The applicant alleges that while practising as a solicitor, the respondent was guilty of professional misconduct, in that he: 1. Wilfully breached section 255 of the Legal Profession Act, 2004. 2. Breached section 264 of the Legal Profession Act, 2004. 3. Misappropriated trust funds. 4. Breached section 262 of the Legal Profession Act, 2004. 3 Following agreed amendments, the applicant particularised those allegations as follows: In these particulars:-"Solicitor" means Anthony Curulli;"The Receiver" means Jean Sayer; "JS report" means the report of Jean Sayer dated 5 June 2007 A. Stephen Ernest Hoad, Annette Hoad and Fiona Mary Hoad 1. The solicitor acted for the Hoads on the purchase of 69 John Street, Leichhardt. 2. On 11 May 2006 the solicitor received from the Hoads a cheque he had requested for stamp duty in the sum of $25,689.00. Such cheque was deposited to the solicitor's trust account maintained with Commonwealth Bank at its Brookvale branch. 3. On 25 May 2006 a trust cheque was drawn and debited to the trust ledger account relating to the purchase and shown in the trust records as paid to the Office of State Revenue. 4. On 25 May 2006 the trust cheque in the sum of $25,689.00 was deposited to an account kept by the solicitor with the National Australia Bank at its Brookvale branch styled "Anthony Curulli & Associates Solicitors". At that date the account had a nil balance. 5. Between 25 May 2006 and 29 May 2006 the sum of $21,896.50 was disbursed from the account. On 30 May 2006 the balance remaining of $3,792.50 was transferred to the solicitor's General Account kept with the Commonwealth Bank. 6. The solicitor misappropriated the sum of $25,689.00 (less account fees). B. Anthony Renato Barbalace 1. The solicitor acted for Mr Anthony Renato Barbalace on the purchase of 164 Darling Street, Balmain. 2. On 6 April 2006 the solicitor received from Mr Barbalace a cheque he had requested for stamp duty in the sum of $70,744.00. Such cheque was deposited to the solicitor's trust account maintained with Commonwealth Bank at its Brookvale branch. 3. On 7 April 2006 a trust cheque in the sum of $4,618.98 drawn on the Account of Mr Barbalace was deposited to an account kept by the solicitor with the National Australia Bank at its Brookvale branch styled "Anthony Curulli & Associates Solicitors". Prior to the deposit the account had a credit balance of $9.62. Although the payment of $4,618.98 was said to be for costs and disbursements the Receiver could not find in the solicitor's file any Bill of Costs. 4. On 13 April 2006 a trust cheque in the sum of $971.51 drawn on the Account of Mr Barbalace was deposited to an account kept by the solicitor with the National Australia Bank at its Brookvale branch styled "Anthony Curulli & Associates Solicitors". Although the payment of $971.51 was said to be for costs and disbursements the Receiver could not find in the solicitor's file any correspondence or form of accounting in respect of the settlement of the purchase. 5. On 13 April 2006 a trust cheque in the sum of $25,000.00 drawn on the Account of Mr Barbalace was paid to Lamio Masonry being a company owned by Mr Barbalace. Mr Barbalace had loaned the solicitor the sum of $50,000 and the $25,000.00 represented part repayment of the loan. 6. On 21 April 2006 a trust cheque in the sum of $1,273.26 drawn on the Account of Mr Barbalace was paid to CP & RA Dolahenty. The payment was made to redress a deficiency in their trust funds when they were used to pay interest on the loan referred to in the previous paragraph. 7. On 24 April 2006 a trust cheque in the sum of $38,718.59 drawn on the Account of Mr Barbalace was deposited to an account kept by the solicitor with the National Australia Bank at its Brookvale branch styled "Anthony Curulli & Associates Solicitors". Prior to the deposit the account was overdrawn to the extent of $373.96. 8. The solicitor misappropriated the sum of $70,744.00 (less fees). C. Craig Peter Dolahenty and Rachael Lee Dolahenty 1. The solicitor acted for Mr & Mrs Dolahenty on the sale of 28 Stella Street, Collaroy Plateau and a simultaneous purchase. 2. On 30 January 2006 the solicitor received from the purchaser a cheque in the sum of $43,000.00 to be held by him as stakeholder. Such cheque was deposited to the solicitor's trust account maintained with Commonwealth Bank at its Brookvale branch. 3. On 3 February 2006 a trust cheque in the sum of $1,666.66 drawn on the Account of Mr & Mrs Dolaheny was paid to Lamio being interest due on the loan by Lamio Masonry to the solicitor and previously referred to. The payment was not in any way connected to the affairs of Mr & Mrs Dolahenty. 4. On 21 April 2006 a trust cheque in the sum of $1,273.26 drawn on the Account of Anthony Renato Barbalace was paid to CP & RA Dolahenty. The payment was made to redress, in part, the deficiency in their trust funds referred to in the previous paragraph. 5. On 21 April 2006 a trust cheque in the sum of $393.40 drawn on the Account of Williams Design Associates Pty Limited was paid to CP & RA Dolahenty. The payment was made to complete the redress of the deficiency in their trust funds. 6. The solicitor misappropriated the sum of $1,666.66. D. Eleanor Joanne Hurley 1. The solicitor acted for Eleanor Joanne Hurley ("Ms Hurley") on the sale of 11 Parr Avenue North Curl Curl. 2. On 9 June 2005 the solicitor received from the purchaser a cheque in the sum of $91,125.00 to be held by him as stakeholder. Such cheque was deposited to the solicitor's trust account maintained with Commonwealth Bank at its Brookvale branch. 3. On 28 June 2005 a trust cheque in the sum of $50,000.00 drawn on the Account of Ms Hurley was paid to DS & JL Williams being on account of monies due to Williams Design Associates Pty Limited. The payment was not in any way connected to the affairs of Ms Hurley. Accordingly the solicitor misappropriated the sum of $50,000.00. 4. On 30 June 2005 a trust cheque in the sum of $14,400.00 drawn on the Account of Ms Hurley was paid to Pacific Multimedia being part of the purchase monies payable by the clients Frazer and Hastings (see matter E below). The payment was not in any way connected to the affairs of Ms Hurley. Accordingly the solicitor misappropriated the sum of $14,400.00. 5. On 7 July 2005 the sale by Hastings and Frazer settled and pursuant to a direction from the solicitor he received a cheque in the sum of $14,400.00 which he deposited to the trust ledger account of Hastings and Frazer. 6. On 8 August 2005 a cheque in the sum of $14,400.00 (debited to the trust ledger of Hastings and Frazer) was deposited to Ms Hurley's account with ING. 7. On 8 August 2005 the balance of the deposit which remained in the trust account, namely $12,225.00 was paid into Ms Hurley's account with ING. 8. On 8 August 2005 the balance due to Ms Hurley (after payment of Agent's commission) namely $50,000.00 was deposited to her account with ING. To effect such deposit the solicitor borrowed the sum of $50,000.00 from Mr Barbalace as previously referred to. A cheque in the sum of $50,000.00, in favour of "ING Direct" was drawn by Lamio Masonry NSW Pty Ltd. E. Fiona Hastings and Anthony Frazer 1. The solicitor acted for Ms Hastings & Mr Frazer on the sale of 3/17 Cohen Street, Fairlight and the simultaneous purchase of 8 Birinta Street, Narraweena at the same time acting for the Vendors on the sale of such Narraweena property. 2. On 30 June 2005 a cheque was drawn on the Trust Account, payable to Pacific Multimedia Pty Limited, in the sum of $14,400.00. The payment was made from funds held by the solicitor as stakeholder in matter D above. In fact the payment was made to the Vendors of the Narraweena property and said to have been made by the purchasers of that property. 3. On settlement of the sale of the Fairlight property at the direction of the solicitor a cheque in the amount of $14,400.00 was drawn in favour of the solicitor's trust account to which it was deposited on 7 July 2005 and credited to the trust ledger account of Hastings and Frazer. 4. On 8 August 2005 a cheque drawn on the Trust Account for $14,400.00 was paid to the ING account of the client (Ms Hurley) to whom it belonged to make good the deficiency in her trust funds. 4 The evidence upon which the applicant relied, consisted of the affidavit of Raymond John Collins sworn 19 October 2007, and the affidavit of Jean Sayer sworn 16 August 2007, both of which were admitted into evidence without objection from the respondent, who appeared in person. 5 The relevant sections of the Legal Profession Act 2004 are: 255 Holding, disbursing and accounting for trust money