Xu v Council of the Law Society of NSW [2009] NSWCA 430

New South Wales Court of Appeal

CITATION: Xu v Council of the Law Society of NSW [2009] NSWCA 430

HEARING DATE(S): 10/11/2009

JUDGMENT DATE: 23 December 2009

JUDGMENT OF: Tobias JA at 1; Basten JA at 2; Handley AJA at 21

1. Appeal allowed with costs. 2. The Tribunal's finding that the third charge had been established is set aside. 3. The Tribunal's finding that the first two charges had been established is confirmed but the finding that they constituted professional misconduct is set aside and a finding that they constituted unsatisfactory professional conduct is substituted. DECISION: 4. The fines of $3000 imposed by the Tribunal on all three charges are quashed and in lieu thereof the solicitor is fined $1500 for unsatisfactory professional conduct evidenced by the findings in respect of the first two charges. 5. Order that the overpayment of $1500 by the solicitor in respect of the fines imposed by the Tribunal be refunded to him. 6. The public reprimand ordered by the Tribunal for professional misconduct is set aside and in lieu thereof the solicitor is publicly reprimanded for unsatisfactory professional conduct. 7. The order by the Tribunal that the solicitor pay the Law Society's costs of the proceedings is set aside and in lieu thereof there is substituted an order that there be no order as to costs. 8. The respondent is to have a certificate under the Suitors Fund Act.

CATCHWORDS: LEGAL PRACTITIONERS – discipline - sloppy conveyancing - contracts exchanged with s.66W certificate - solicitor did not interview wife co-purchaser - unsatisfactory professional conduct. - LEGAL PRACTITIONERS – lien for unpaid costs – client's passport held in connection with bail application - solicitor entitled to lien - limits of lien. - PASSPORT - general property of Commonwealth – grantee has special property - grantee may create lien in favour of solicitor.