Law Society of New South Wales v Day [2009] NSWADT 95

CITATION: Law Society of New South Wales v Day [2009] NSWADT 95

DIVISION: Legal Services Division

APPLICANT Law Society of New South Wales PARTIES: RESPONDENT Benn Reginald Day

FILE NUMBER: 072048

HEARING DATES: 26/11/08

SUBMISSIONS CLOSED: 26 November 2008

DATE OF DECISION: 6 May 2009

BEFORE: Pheils J - Judicial Member; Riordan M - Judicial Member; Fitzgerald R - Non-Judicial Member

LEGISLATION CITED : Legal Profession Act 2004

APPLICANT P Boyd, solicitor REPRESENTATION: RESPONDENT No appearance

ORDERS: 1. Pursuant to s18(2) Legal Profession Act 2004 any law practice is prohibited (without approval under section 17) from employing or paying the Respondent, Ben Reginald Day, in connection with the legal practise engaged in by the law practice 2. The Respondent pay the Society's costs of these proceedings.

REASONS FOR DECISION 1 On 19 December 2007 the Council of the Law Society of New South Wales filed an application seeking: a An order under Section 18(2) Legal Profession Act 2004 ("The Act") prohibiting (without approval under section 17) any law practice from employing or paying the Respondent in connection with the legal practise engaged by the law practice. b That the Respondent pays the costs of the Law Society of these proceedings. 2 The Respondent did not appear in the proceedings. An affidavit of service was tendered in the proceedings establishing that the Respondent was personally served with the application on 18 February 2008. Further correspondence was tendered from the Law Society to the Respondents last known address establishing that he had been advised of the hearing date of the application. The Tribunal was satisfied that the Respondent was aware of the hearing date and proceeded to hear the matter. 3 The applicant relied on the following material: i. Affidavit of Raymond John Collins dated 18 December 2007 ii. Affidavit of Jean Sayer dated 1 February 2008. 4 The particulars of the facts are set out below: Sarah Jane Thomson ["the Solicitor"] was born in New Zealand and obtained her professional qualifications on 31 December 2000. She was admitted as a Solicitor in New Zealand on 8 June 2001. The Solicitor obtained a New South Wales Practising Certificate on 6 May 2003 and commenced practice as an employed Solicitor. On 27 April 2004 the Solicitor became an employed Solicitor of Dayton Legal Pty Limited ["Dayton"] and, on 1 August 2004, became a Director Solicitor of Dayton. On 27 June 2005 the Supreme Court of New South Wales, pursuant to the provisions of Section 92 of the Legal Profession Act, 1987, appointed Jean Sayer as Receiver to the trust property of the Solicitor. The Solicitor did not renew her Practising Certificate on 1 July 2005 At all material times, Mr Benn Reginald Day ["Mr Day"] was a non Solicitor/Director of Dayton and was the managing director and 100% shareholder of Dayton. Mr Day carried out the functions of a paralegal. Dayton carried on business at 8 Dibbs Street, Alexandria which was the residence of the Solicitor. On 1 April 2004 a trust account was opened and styled "Dayton Legal Pty Limited Trust Account" ["the trust account"]. The trust account was kept at the Westpac Bank, Cnr Market and Clarence Street, Sydney. The Solicitor was the sole signatory on the trust account. From 30 June 2004 to 31 May 2005 the trust account had a nil balance except for a small balance of $694.24 as at 31 July 2004. There was a further account of Dayton kept with the Westpac Bank, Cnr Market and Clarence Street, Sydney account no. 227724 ["the general account"]. Mr Day was the signatory to this account and which account was used as a general account for the payment of disbursements and overhead expenses including salaries of staff. The general account was also used as a personal/business account for other activities of Mr Day. Trust moneys received in relation to the practice were dealt with in this account. A Mouzouros 1 Dayton acted for Mrs Mouzouros on a transfer to her, pursuant to Family Court Orders, of a property 9 Angel Court, Glenwood ["the property"]. The Solicitor had the carriage of the matter. 2. Mrs Mouzouros received a mortgage advance of $440,000.00 from the Commonwealth Bank which was to be secured over the property and which was to discharge a prior mortgage thereon. 3. Mr Day, by letter dated 19 May 2005, requested the Commonwealth Bank to draw cheques on settlement as follows: Perpetual Trustee Company Limited 417,234.63 Resimac Limited 275.00 Dayton Acquisitions 22,484.97 Bank Cheque Fee 5.40 $440,000.00