Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of New South Wales v Dennis [2015] NSWCATOD 95 Hearing dates: 25 and 26 May 2015 Decision date: 16 September 2015 Jurisdiction: Occupational Division Before: D Patten Principal Member S Hale Senior Member E Hayes General Member Decision: 1. That the Solicitor is guilty of professional misconduct. 2. That this matter be listed for directions on 21 September 2015 at 9.30am. Catchwords: Multiple breaches of statutory obligations-finding of professional misconduct Legislation Cited: Legal Profession Act Cases Cited: Brook v Reed [2011] EWCA CIV 331 Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) Bruce Vernon Dennis (Respondent) Representation: Solicitors: C Webster SC and P Maddigan (Applicant) J Johnson (Respondent) File Number(s): 1420117 reasons for decision 1. This is an application by the Council of the Law Society of New South Wales (the Council) for a finding of professional misconduct or unsatisfactory professional conduct against Bruce Vernon Dennis (the Solicitor) and for consequential orders including an order that the name of the Solicitor be removed from the roll. 2. The misconduct alleged related to the Solicitor's dealings with about 20 clients. Particulars of allegations occupied some 35 pages in the Application was filed on 4 March 2014. We are indebted to Counsel and their solicitors for reducing on the second day of the hearing a large volume of complex material to a Statement of Agreed Facts Exhibit B which we reproduce below: STATEMENT OF AGREED FACTS In this Statement of Agreed Facts: The Solicitor means Bruce Vernon Dennis. The Society means the Law Society of New South Wales. OLSC means Office of the Legal Services Commissioner. The Act means the Legal Profession Act, 2004. GST means Goods and Services Tax. Hocking means Bruce Percy Hocking, solicitor, a Director and Principal of DC Legal Pty Ltd. DC Legal means DC Legal Pty Ltd. The Master file trust ledger means trust account ledger numbered 80104, in the name of Sons of Gwalia - Master File within the trust accounts of Dennis & Co [during the period 31 July 2008 to 20 July 2009] and DC Legal [from 11 December 2009 and continuing]. Introduction 1. At all relevant times DC Legal was an incorporated legal practice. The shares in DC Legal are held by Legalfund Pty Ltd. The solicitor owns 90% of the shares in Legalfund Pty Ltd. Legalfund Pty Ltd is in liquidation. 2. At all relevant times Maria Papanicolaou was the Solicitor's secretary, at Dennis & Co and at DC Legal. 3. On 13 July 2009 Hocking was appointed as a Director of DC Legal. 4. DC Legal was incorporated on 11 June 2009. 4A. On 21 July 2009 Hocking commenced as a principal of the law practice conducted by DC Legal, known as DC Legal. 4B. DC Legal commenced practice and took over the business of Dennis & Co effective 1 July 2009. 5. On 20 August 2009 Hocking became a Secretary of DC Legal. 6. On 20 August 2009 the Solicitor ceased to be a principal and as a director of DC Legal. 7. The Solicitor was not the holder of a practising certificate and not a legal practitioner entitled to practise in New South Wales between 21 August 2009 and 10 May 2010. 6. On 10 May 2010 the Solicitor commenced to be a non-principal solicitor of DC Legal. 7. On 11 October 2010 the Solicitor was reappointed as a Director of DC Legal. 8. On 1 March 2012 the Solicitor commenced to be a principal of DC Legal. 9. The Solicitor contends that he was not was a signatory on the trust account of DC Legal. 10. The Solicitor accepts that as a Director of DC Legal he had duties during the time of his appointment as such, arising under s. 344 of the Corporations Act 2001, to cause the company to maintain appropriate financial records including records relating to trust transactions under s. 286 of the Corporations Act 2001. 11. On 11 November 2014 the Solicitor again ceased to be a Director and Secretary of DC Legal and Paul Fordyce was appointed Sole Director and Secretary of DC Legal. 12. From 11 November 2014 Paul Mervyn Fordyce became the sole signatory upon the general Trust Account of DC Legal A. Complaint by Law Society In relation to his client Lindsay Allen: i. Breach of Section 255 of the Legal Profession Act, 2004. ii. Transferring costs prior to issuing any account. 1. The Solicitor was instructed by Mr Lindsay Allen ("the client") to act on an application for a grant of Probate of the Will of the late Emily Beatrice Allen who died on 10 August 2007 ("the Estate"). 2. No Costs agreement was issued in relation to the matter. 3. On or about 23 October 2007 monies received from Westpac Banking Corporation in the sum of $2,754.85 were deposited into the Solicitor's trust account and credited to the Estate's trust ledger described as 'Estate funds'. 4. On or about 4 December 2007 the sum of $2,000 was transferred from the Estate's trust ledger to the Solicitor's general account described as 'Costs (BVD)'. 5. The transfer of the sum of $2,000 from the Estate's trust ledger referred to in Particular A4 was not authorised. 6. On or about 5 December 2007 Probate of the Will of the late Emily Beatrice Allen was granted to the client. 7. On or about 11 January 2008 monies received from the ANZ bank in the sum of $3,752.70 were deposited into the Solicitor's trust account and credited to the Estate's trust ledger described as 'Estate funds'. 8. On or about 15 January 2008 the sum of $3,500 was transferred from the Estate's trust ledger to the Solicitor's general account described as '(BVD)-Costs&Disbs'. 9. The transfer of the sum of $3,500 from the Estate's trust ledger referred to in Particular A8 was not authorised. 10. On 18 January 2008 the Solicitor issued to the client his bill. 11. The Solicitor accepts that the conduct amounts to professional misconduct in respect of complaints i and ii above. B. Complaint by Law Society (a) In relation to his client Marcus Boland: i Failure to respond to the letter of Vincent CCL dated 12 December 2008 - unsatisfactory professional conduct. ii. Breach of section 255 of the Legal Profession Act 2004. iii Delay in preparing final bill of costs and disbursements - unsatisfactory professional conduct. 1. The Solicitor was instructed to act for Mr Marcus Boland ("the client") in Supreme Court proceedings. 2. On or about 2 April 2008 the sum of $3,000 received from the client on account of legal fees was deposited into the Solicitor's general account. 3. On or about 22 April 2008 a further sum of $3,000 received from the client on account of costs was deposited into the Solicitor's general account. 4. The client contends that in about October 2008 the client first received a Fees Agreement dated 28 March 2008. The Fees Agreement does not contain any provision for the withdrawal of money for costs and disbursements. 5. On or about 12 December 2008 the client transferred his instructions from the solicitor's firm to Vincent CCL Pty Limited. 6. By letter dated 12 December 2008 Vincent CCL Pty Limited, on behalf of the client, wrote to the Solicitor with certain enquiries and requests and sought the Solicitor's urgent reply failing receipt of which Vincent CCL Pty Limited would forward its concerns regarding trust monies to the Law Society and make a complaint to the Office of the Legal Services Commissioner. The Solicitor did not respond to the letter. 7. On 15 January 2009, Mr Craig Young, Solicitor of Vincent CCL Pty Limited, telephoned the Solicitor's office for the purpose of following up on his letter dated 12 December 2008 and was advised the Solicitor was out of the office. Mr Young left a detailed message for the Solicitor explaining the call was about the trust account complaint and that the Solicitor needed to call him urgently before he referred the matter to the Law Society. The Solicitor did not return Mr Young's call. 8. The Solicitor's ledger reflects that bill no. 17336 dated 2 April 2008 for $3,000 and bill no. 17349 dated 29 April 2008 for $3,000 were entered in the accounting system and both were reversed. A tax invoice did not issue until 29 September 2008 ("the tax invoice"). The tax invoice was replaced by a final amended bill dated 1 May 200916. The Solicitor says he is unable to recollect or say anything about the apparent reversal of the tax invoice. (b) In relation to his client George Poulos: i Breach of section 255 of the Legal Profession Act, 2004. ii The Solicitor withdrew money for costs and disbursements without complying with the relevant procedures or requirements of the Legal Profession Act, 2004. 1. The Solicitor was instructed to act for Mr George Poulos ("the client") in relation to a building dispute. 2. On 3 May 2007 the Solicitor issued to the client a Fees Agreement. The Fees Agreement does not contain any provision for the withdrawal of money for costs and disbursements. 3. On or about 4 May 2007 monies received from the client in the sum of $2,000 were deposited into the Solicitor's trust account described as 'Trust Pay in'. 4. On or about 18 May 2007 monies received from the client and 'S Poulos' in the sum of $1,000 were deposited into the Solicitor's trust account described as Trust Pay in'. 5. On or about 4 September 2007 the sum of $3,000 was transferred from the Solicitor's trust account to his general account described as 'Professional Costs'. 6. The transfer of the sum of $3,000 from the Solicitor's trust account referred to in Particular B(b) 5 was not authorised. 7. No bill was issued by the Solicitor until the Solicitor issued bill no. 17251 dated 11 September 2007 in the sum of $3,000 inclusive of GST. 8. The Solicitor accepts that the conduct amounts to professional misconduct in respect of complaints i and ii above. C. Complaint by Saka Draskovic (Personal Injuries Claim and Claim against I.P.B. Australia Pty Ltd (in liquidation) and another) The practitioner has failed to account for $30,000.00 paid into trust arising out of the personal injury proceedings settled on 28 May 2006. 1. The Solicitor acted for Mr Saka Draskovic ("the client") on a claim for compensation arising out of injuries at work ("the claim"). 2. On or about 30 May 2005 the client entered into a Cost Agreement and Disclosure Form with the Solicitor. 3. The claim was settled in the course of a mediation conducted under the provisions of the Workplace Injury Management & Workers Compensation Act 1998 for a sum of $260,000 (plus workers' compensation benefits already paid and costs). 4. The client contended that he had instructed the Solicitor to retain from the proceeds of the claim the sum of $30,000.00 to be applied towards the Solicitor's costs of acting for the client in another matter. 5. On or about 26 June 2006 the Solicitor received part of the proceeds of settlement by way of a bank cheque in the sum of $234,000 and on 26 June 2006 this sum was deposited into the Solicitor's trust account and credited to the client's trust ledger described as "being 90% re settlement monies". The balance of settlement monies in the sum of $26,000 was forwarded by the insurer's Solicitors to Medicare Australia. 6. On 27 June 2006 the Solicitor issued a tax invoice in the sum of $36,892.00 endorsed "but say $35,000.00" ("the tax invoice"). The tax invoice was sent to the Solicitors for the insurer as a claim for party/ party costs ("the party/party costs claim"). 7. On 27 June 2006 the sum of $35,000.00 was transferred from the client's trust ledger to the Solicitor's general account described as 'Costs & Disbs - Internet tfr (BVD)'. 8. On 4 July 2006 a cheque was drawn on the client's trust ledger in the sum of $199,000.00 described as "Settlement monies" and forwarded to the client. 9. By letter dated 4 July 2006 the Solicitor wrote to the client and advised, in part, "We are also awaiting payment of party/party costs which will make up the balance of your settlement monies." 10. By letter dated 9 August 2006 the solicitors for the insurer objected to the party/party costs claim. Pursuant to Schedule 7 of the Workplace Injury Management and Workers Compensation Act, 1998 (which provides for maximum costs payable depending when the matter is settled or determined) the amount payable was $14,200 plus $500 for Counsel's fees. 11. By letter dated 23 February 2007 the solicitors for the insurer forwarded to the Solicitor a cheque in the sum of $14,700.00 "representing your costs and disbursements as agreed in the above matter." 12. On 27 February 2007 the sum of $14,700.00 received from the Solicitors for the insurer was deposited into the Solicitor's general account and described as "Payment of Costs and Disbursements". This sum was not paid to the client as foreshadowed in the Solicitor's letter to the client dated 4 July 2006. 13. The Solicitor did not account to the client for the sum of $14,700.00 referred to in paragraph C12. D. Complaint by Law Society In relation to his client Saka Draskovic: i. Breach of Section 254 of the Legal Profession Act, 2004. ii. Breach of Section 255 of the Legal Profession Act, 2004. iii. Misappropriation. See C. 1-3 and 5-12 E. Complaint by Gerull In relation to his client Firoozeh Sasani: i. Failing to pay the complainant's fees. ii. Failing to communicate with the complainant. 1. The Solicitor was retained to act for Firoozeh Sasani. 2. Friederike Gerull is a Psychologist who was, at the relevant times, being consulted by Firoozeh Sasani. 3. By letter to Gerull, undated but received by Gerull in mid-January 2012, the Solicitor wrote relevantly as follows: "We are informed by our client that she has consulted you in treatment of her psychological condition, and accordingly we would be pleased if you would provide us with a report set along the following lines:- The letter did not inform Gerull either that the Solicitor would accept personal liability for payment of the fees to be charged for the service or, if the practitioner did not accept personal liability, the letter did not inform Gerull of the arrangements intended to be made for payment of the fees. 4. By Tax Invoice dated 18 January 2012 Gerull invoiced the Solicitor the amount of $800.00 and advised "I am happy to dispatch the report upon receipt of payment." 5. By facsimile to the solicitor dated 20 February 2012 (successfully transmitted on 21 February 2012) Gerull noted that she had not received a response from the Solicitor and attached a further copy of her Tax Invoice dated 18 January 2012. 6. Gerull deposes that on 5 March 2012 at 11.30am Gerull telephoned the Solicitor. The Solicitor was unavailable and Gerull left a message for the Solicitor to return her call28. The Solicitor did not do so. 7. By facsimile to the Solicitor dated 20 March 2012 (successfully transmitted on 20 March 2012) Gerull noted that she had not received a response from the Solicitor and requested payment failing receipt of which she would refer the matter to the Law Society. 8. By complaint form, undated but received by OLSC on 12 July 2012, Gerull made a complaint against the Solicitor. 9. On 13 July 2012 the complaint was referred to the Society by the OLSC. 10. On 24 July 2012 the complaint was referred by the Society to the Solicitor. 11. By letter dated 1 August 2012 to the Society the Solicitor advised, relevantly, as follows: (i) Gerull's account had been referred to his client with a request for payment; (ii) The client was then in South Korea and was due to return to Australia for the hearing of her matter on 3 September 2012. (iii) The Solicitor had been unable to make telephone contact with Gerull. 12. By letter dated 8 August 2012 to the Society Gerull advised, relevantly, as follows: (i) The Solicitor had telephoned her on her mobile at 2.02pm on 1 August 2012 whilst she was with a patient. She advised the Solicitor that she would like to talk to him and named a suitable time a little later that day (after 5pm). Although the Solicitor agreed to call her back, he never did. (ii) As the request for the report was from the Solicitor, she looked to him for payment thereof. 13. By letter dated 9 September 2012 to the Society the Solicitor advised, relevantly, as follows: (i) He did not agree that his firm was responsible nor was he personally responsible for Gerull's fees. (ii) The Solicitor's letter requesting a medical report did not undertake to pay the fees. (iii) The Solicitor had withdrawn his request for a report from Gerull. 14. By letter dated 8 October 2012 Gerull's further comments were forwarded by the Society to the Solicitor. The Solicitor was invited by the Society to comment on Rule 32 of the Revised Professional Conduct and Practice Rules 1995. 15. By letter dated 12 October 2012 the Solicitor wrote to the Society, relevantly, as follows: (i) There did not appear to be a binding contract in this matter. There was merely a request for a copy of a report from the Solicitor's client's general practitioner. (ii) No report has been provided and the Solicitor had never agreed to pay the fee sought. (iii) Prior to receiving the report the Solicitor had indicated that the report would not be required. In any event, the Solicitor had not received any monies from his client in relation to this matter and she had withdrawn her instructions prior to hearing. 16. By letter dated 22 January 2013 the Solicitor wrote to the Society, relevantly, adding the following explanation for the non-payment of Gerull's fees The client had stated that she would negotiate with Gerull and pay a fair amount to her. 17. Gerull has not been paid for her report by the Respondent. 18. The Solicitor accepts that the conduct amounts to unsatisfactory professional conduct complaints i and ii above. F. Complaint by Law Society (Failure to answer s 660 Notice dated 11 July 2012) In relation to his client Ross Dickson: i. The Australian Lawyer, without reasonable excuse, failed to comply with a requirement under section 660 of the Legal Profession Act, 2004. ii. The Australian Lawyer has failed to assist the Investigator in the investigation of a complaint. 1. By letter dated 23 February 2012 the OLSC referred to the Society for investigation a complaint by Ross Dickson about the Solicitor. The complaint had been partly investigated by the OLSC. 2. By letter dated 17 April 2012 the Society wrote to the Solicitor advising that the complaint had been referred to it for investigation by the OLSC and requesting further information in relation to the complaint. 3. By letter dated 11 May 2012 the Society wrote to the Solicitor enclosing a further copy of its letter dated 17 April 2012, noting that no response had been received and requesting a response by 28 May 2012. 4. By letter dated 20 June 2012 the Society wrote to the Solicitor noting that no response had been received to its letters dated 17 April 2012 and 11 May 2012 and requesting a response by 29 June 2012 failing which a Notice pursuant to section 660 of the Act would be issued. 5. On 11 July 2012 the Society issued to the Solicitor a Notice pursuant to Section 660 of the Act ("the Notice"). 6. On 26 July 2012 the Notice was personally served on the Solicitor. 7. The Notice required the Solicitor, on or before 16 August 2012, to provide to the Society's Investigator, verified by statutory declaration, information listed in Schedule 1 of the Notice and to produce to her the documents listed in Schedule 2 of the Notice. 8. On 13 August 2012 the Solicitor was provided with a further copy of the Notice which he had, he advised, misplaced. 9. By letter to the Society dated 21 August 2012, which was received by the Society on 22 August 2012, the Solicitor requested an extension by which to respond to the Notice. 10. By letter to the Solicitor dated 22 August 2012 the Society's Investigator noted that the time for response to the Notice had already passed and declined to extend the time for the Solicitor's response to the Notice. 11. The Solicitor did not provide by the due date, verified by Statutory Declaration, the information and documents required by the Notice or a Statutory Declaration to the Manager of the Professional Standards Department setting out reasons for his inability to comply with the Notice. 12. On 23 August 2012 the Society received from the Solicitor a Statutory Declaration made by him on 23 August 2012 responding to the Notice. 13. The Solicitor accepts that the conduct amounts to professional misconduct in respect of complaints i and ii above. G. Complaint by Hancock obo Equititrust In relation to his clients Peter and James Birch: i. Failure to communicate - unsatisfactory professional conduct 1. In about February 2011 Equititrust Limited ("Equititrust") commenced proceedings in the Supreme Court ("the proceedings"). 2. Tucker & Cowen Solicitors of Brisbane acted for Equititrust in the proceedings. 3. The Solicitor acted for the Second Defendant, Peter Birch, and the Third Defendant, James Birch in the proceedings. 4. The proceedings concerned Equititrust's loan to the First Defendant, Checkling Pty Limited (Receiver & Manager appointed) (in Liquidation) ("Checkling") which was secured over 2 properties located at Richmond and Windsor. Relevantly, possession was sought of the Richmond property as well as an order that the Second Defendant, Peter Birch, and the Third Defendant, James Birch, surrender occupation of the Richmond property pursuant to a residential tenancy given by Checkling of which Equititrust had been given no prior notice as required under the mortgage. 5. On 18 May 2011 Consent orders were made in the proceedings relevantly as follows: 1. An order that the Plaintiff have leave to bring the Second Proceedings against the First Defendant. 2. Judgment for possession of the land described in the Schedule (the Land). 3. Leave to issue a writ of possession forthwith in relation to the Land. 4. A declaration that the Plaintiff as mortgagee under the mortgages dealing numbers AD774452 AND 774453 is not bound by the lease on or about 9 October (or alternatively 28 October) 2009 from the First Defendant to the Second Defendant dated of part of the Land (sic). 5. A declaration that the Plaintiff as mortgagee under the mortgages dealing numbers AD774452 and 774453 is not bound by the lease dated 1 January 2010 from the First Defendant to the Third Defendant of part of the Land. 6. An order that the Second and Third Defendants surrender any and all leases or licenses in respect of (a) the Land, to Checkling Pty Ltd; (b) the property situated at Dight Street, Richmond owned by Gonfanon Pty Ltd to Gonfanon Pty Ltd (the "Boral Land") within 14 days. 7. An order the Second and Third Defendants surrender occupation of the Land and the Boral Land on or before 14 June 2011. 8. An order that Equititrust Ltd pay the sum of $35,000 to the trust account of the solicitors for the Second and Third Defendants within 7 days. 9. The Court notes the agreement of the parties that the solicitor for the Second and Third Defendants may release $5,000 immediately upon receipt of said sum and the balance only after compliance with orders 6 and 7 above.…." 6. On 20 May 2011 the sum of $35,000 was received from Equititrust and deposited to the credit of ledger account no 100727 in the trust account of DC Legal in the name of "Peter & Erica Birch, Peter Birch & Erica Birch ats Checkling Pty Ltd" ("the account"). 7. The ledger for the account records on 20 May 2011 "Interim Costs bill per BVD Instructions Fees billed $4,545.45 GST applied to fees $454.55" 8. On 20 May 2011 the sum of $5,000 was debited from the account described as "Cheque to DC Legal-Interim costs per bill 23606 ($12,000.00)" and transferred to DC Legal's office account. 9. On 20 May 2011 the ledger for the account records "Reversal of incorrect bill-to be amended Fees billed $4,545.45 Reverse GST applied $454.55". 10. By email to the Solicitor dated 23 May 2011 the Solicitors for Equititrust enclosed remittance advice for the $35,000 and noted "I note that $5,000 may be released immediately and the balance of $30,000 may not be released until your clients comply with paragraphs 6 and 7 of the judgment." 11. On 8 June 2011 office account cheque no. 001615 in the sum of $5,000 was drawn payable to "James Birch" and signed by Hocking. 12. On 9 June 2011 Peter Birch acknowledged receipt on behalf of James Birch of the cheque in the sum of $5,000. 13. The Second and Third Defendants were required to surrender occupation of the land by 14 June 2011. They did not do so and thereby breached Order 7 of the Orders made on 18 May 2011. By reason of the failure to comply with order 7, there was no entitlement to the payment of the balance of $30,000. That payment was only to be made, if both order 6 and order 7 were complied with, which they had not been. 14. By letter to DC Legal dated 14 June 2011, sent by facsimile transmission, Tucker & Cowen advised, relevantly: "...Finally, we remind you that pursuant to the terms of the judgement you are not entitled to deal with the balance of the funds in your trust account until your clients vacate the property." 15. By letter to DC Legal dated 12 July 2011, sent by facsimile transmission, Tucker & Cowen advised, relevantly: "As the time for compliance with order 7 has well and truly passed, compliance is impossible, even if your clients now surrender occupation of the land. Therefore the special purpose for which the money was paid by Equititrust has failed, and in accordance with the principles set out in Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567, you now hold the moneys on trust for our client." and demanded the immediate repayment of the funds and a current trust account statement in respect of the payment. 16. By letter to DC Legal dated 8 September 2011 Tucker & Cowen advised relevantly: "...We understand that Mr Birch may have had discussions recently with Mr Mclvor. Mr Mclvor is not a director of Equititrust and has not been a director for some time. He has no authority to commit Equititrust to any obligation or arrangement." 17. On 18 October 2011 the sum of $9,663.81 was debited from the account described as "To DC Legal - (Joumal transfer for costs) (being balance of costs billed and owing to date)". 18. On 20 October 2011 the Solicitor made a file note as follows: "Peter Birch Call from Peter - he is with Mclvor. Discussion with Mclvor re the monies in trust. Informed by him to release monies. He would inform the lawyers about the matter and have them withdraw the proceedings." Neither Mr Mclvor nor Peter Birch had authority to direct release/transfer of the funds referred to in paragraphs 17 above and 20 below. 19. On 21 October 2011 the sum of $20,336.19 was debited from the account "Cheque to DC Legal costs and disbursements (bill 24319 $20,339.19 including reimbursement of $5,000.00 payment to James Birch, paid from general account)". This brought the balance of the account to nil. 20. The deposits of $9,663.81 and $20,336.19 into DC Legal's office account benefited the solicitor by reason of the reduction of the office account overdraft, guaranteed by the Solicitor, corresponding to those deposits. 21. On 27 February 2012 Orders were made by the Supreme Court, relevantly, as follows: 1. (c) that DC Legal Pty Ltd forthwith pay the said amount of $30,000.00 to the Plaintiff; 2. (d) in the event that DC Legal Pty Ltd has paid the said amount of $30,000.00 to or at the direction of the Second Defendant and/or Third Defendant, that the Second Defendant and the Third Defendant repay the said amount to the Plaintiff." 22. By email dated 27 February 2012 sent to the solicitor's secretary, Maria Papanicolaou, Tucker & Cowen forwarded a copy of the orders referred to in the preceding paragraph and advised relevantly, as follows: "We require your firm to comply with the orders made by Justice Schmidt of the Supreme Court this morning and, in particular, para 1(c) of the orders, which requires your firm to pay the $30,000 to the plaintiff forthwith. We require your firm to comply with that order by transferring the sum of $30,000 to this firm's trust account - we being the solicitors representing the plaintiff in this matter. Our trust account details are as follows: (Details supplied) No response was received. 23. On 1 March 2012 the Solicitor commenced to be a principal of DC Legal. 24. On 5 March 2012 Richard Geoffrey Hancock, Solicitor, of Tucker & Cowen telephoned the Solicitor. The solicitor was unavailable and a message was left for the Solicitor to return the call. The Solicitor did not do so. 25. On 14 March 2012 Mr Hancock, Solicitor, of Tucker & Cowen telephoned the Solicitor. The Solicitor was unavailable and a message was left for the Solicitor to return the call. The Solicitor did not do so. 26. By letter dated 27 March 2012 to the Solicitor, sent by email, Tucker & Cowen advised that should the funds not be paid into their trust account by close of business on 28 March 2012 or should they not be given a full explanation of what had happened to the funds by that time a complaint would be made. No response was received. 27. By letter dated 23 October 2013 DC Legal wrote to Tucker & Cowen forwarding to them a trust cheque in the sum of $30,000 payable to "Equity Trust Ltd (sic)" and said to be "...refunded to your client without admissions." H. Complaint by Law Society (Equititrust) i Breaching an order of the Supreme Court made on 27 February 2012. See G. 1-27 I. Complaint by Law Society (Equititrust) i. Obtaining a personal benefit from the deposit of trust funds into the general account. See G. 1-27 J. Complaint by Law Society In relation to his client Linda Grossman: i. Breach of Section 255 of the Legal Profession Act, 2004. ii. Delay in paying Counsels' fees. iii. Obtaining a personal benefit from the deposit of trust funds into the general account of DC Legal Pty Limited. 1. In about November 2010 DC Legal was retained by Linda Grossman ("Grossman") to act for her on her defamation claim against Fairfax Media Publications Pty Ltd and Ors. The Solicitor had the day to day conduct of the matter. The proceedings were commenced in the District Court ("the proceedings"). 2. The solicitor briefed Mr R Rasmussen and Mr CA Evatt of counsel to appear and advise. Mr TDF Hughes and Mr CJ Dibb of Counsel were also briefed in the matter. 3. On 13 October 2011 the proceedings settled at mediation. 4. On 11 November 2011 a sum of $65,000 was deposited to the credit of ledger account no 100804 in the trust account of DC Legal in the name of "Linda Grossman" ("the account"). 5. On 17 November 2011 DC Legal rendered to Grossman a Memorandum of Costs and Disbursements as follows: Professional fees (including GST) $19,800.00 Disbursements (including the fees $19,800.00 of Messrs Evatt, Rasmussen, Hughes and Dibb totalling $19,104.54 (excluding GST)). $20,659.99 GST $2,010.51 $42,470.50 6. On 17 November 2011 the sum of $42,470.50 was transferred to the office account described as "DC Legal Pty Ltd Payment of Costs and Disbursements per Bill # 24357". On this date the office account had a prior overdraft balance of $75,687.97. 7. By email dated 6 December 2011 to the Solicitor's clerk Mr Hughes wrote, relevantly, as follows: "Dear Bruce, I note that the matter of Linda Grossman v Fairfax Media Publications Pty Ltd & anor settled some weeks ago. There remains an amount outstanding on my original Memorandum of Fees dated 1.4.11 of $2,085.00. Here below is my address for payment." 8. By email dated 15 December 2011 to the Solicitor and his Secretary, Maria Papanicolaou, Mr Rasmussen wrote relevantly as follows: "The attached invoice has been outstanding since 17 October 2011. Can it be paid please?" 9. Mr Napper, Trust Account Investigator ("Mr Napper") made an appointment to attend on DC Legal on 23 January 2012 for a routine inspection. 10. On 20 January 2012 office account cheque no. 2357 was drawn in the sum of $6,600.00 in favour of Roger Rasmussen for Counsel's fees. The cheque was forwarded to Mr Rasmussen under cover of a letter dated 25 May2012. 11. On 20 January 2012 office account cheque no. 2358 was drawn in the sum of $12,000.00 in favour of Clive Evatt for Counsel's fees. The cheque was forwarded to Mr Evatt under cover of a letter dated 25 May 2012. 12. On 20 January 2012 office account cheque no. 2360 was drawn in the sum of $2,085.50 in favour of Tom Hughes for Counsel's fees. The cheque was forwarded to Mr Hughes under cover of a letter dated 25 May 2012. 13. On 20 January 2012 office account cheque no. 2361 was drawn in the sum of $330.00 in favour of Christopher Dibb for Counsel's fees. The cheque was forwarded to Mr Dibb under cover of a letter dated 25 May 2012. 14. On 23 January 2012 Mr Napper attended on DC Legal as per his prior appointment to conduct a routine inspection. 15. On 1 March 2012 the Solicitor commenced to be a principal of DC Legal. 16. On 15 May 2012 Mr Napper commenced to make arrangements for his second visit to DC Legal. 17. The office account of DC Legal was overdrawn for the entire period the barristers' fees were unpaid, other than for the period 6-8 December 2011. 18. In his letter to the Society dated 25 September 2012 the Solicitor advised how the transfer from trust to office was made relevantly as follows: "The transfer of monies was made by account staff by internet upon receipt of the account without a specific instruction. The transfer was subsequently noted by the cheque signatory Bruce Hocking only at the time these issues were raised. In relation to the cheques for Messrs Rasmussen, Evatt, Hughes & Dib these were withdrawn from the amounts on the invoices which corresponded to the amounts on the account by our account staff. As previously indicated, we have now changed our office procedure to ensure clear instructions from the solicitor handling the matter are given to account staff." K. Complaint by Law Society (Linda Grossman) i. Attempting to mislead the Law Society. See J. 1-18 L. K Avery for Avery Superannuation Fund i. Breaching section 254 of the Legal Profession Act, 2004. ii. Gross overcharging in that the costs charged bore no relationship to the work carried out. iii. Breaching section 255 of the Legal Profession Act, 2004. i. Failing to account 1. On or about 30 August 2004 Sons of Gwalia was placed into administration. Messrs Love, Trevor and Weaver of Ferrier Hodgson ("FH") were appointed as administrators of Sons of Gwalia, 2. By circular dated 17 September 2004 Messrs Dennis and Co, Solicitors, wrote to shareholders of Sons of Gwalia, relevantly, as follows: "In your capacity as a shareholder you are hereby invited to instruct us to collect the documentation necessary to prove your claims, collate the information required to classify your claims, quantify your claims and, of course, note and maintain your interest. We ask for a one time only payment of $550 inclusive of GST being our fees for managing your claim. If the claim is successful we will charge such legal costs as the court may allow. We will not ask for any further funds unless the claim is successful." 3. In March 2005 the Avery Superannuation Fund ("Avery") retained Dennis & Co. to act on its behalf in the administration of Sons of Gwalia. 4. On 31 March 2005 Dennis & Co. raised a tax invoice to Avery in the sum of $550.00. The invoice recorded receipt of the sum of $550.00 and that the balance of the account was nil. 5. In March 2005, the sum of $550.00 referred to in paragraph Avery 4 was deposited to the office account of Dennis & Co. The Society contends that the deposit occurred prior to Dennis & Co undertaking the work described on the invoice referred to in the preceding paragraph. 6. On 31 March 2008 the First Dividend-First Pool and Convenience Class Trust Fund Dividends were declared. 7. Between 31 July 2008 and 14 April 2009 Dennis & Co. deposited into its trust account ledger numbered 80104, in the name of Sons of Gwalia Master file ("the Master file trust ledger"), cheques totalling $1,215,826.3078. These funds were received from FH and were part of the dividends set out in paragraph Avery 6 above namely, being in respect of the First Dividend-First Pool. 8. Between 31 July 2008 and 30 October 2008 Dennis & Co. deposited into the Master file trust ledger cheques totalling $941,049.52 and which sum was received from FH, being the Convenience Class Trust Fund Dividend payment. 9. On 15 August 2008 the sum of $402.76 was transferred by Journal transfer from the Master file trust ledger to the trust account ledger numbered 50474 in the name of Mr K and Mrs L Avery ("the Averys") ("the Avery trust ledger"). 10. On 8 August 2008 Dennis & Co. raised a tax invoice charging $125.00 for professional costs and $12.50 for GST. The sum of $137.50 was transferred by Journal transfer from the Avery trust ledger to the Dennis & Co. office account. 11. On 20 August 2008 a cheque in the sum of $265.26 was drawn payable to the Averys from the Avery trust ledger. 12. On 20 August 2008 the Averys received from Dennis & Co. a letter enclosing a cheque in the sum of $265.26. The letter purported to enclose a Statement of Account and a Trust Statement. Neither the Statement of Account nor the Trust Statement was enclosed. 13. On 21 July 2009 DC Legal came into existence. 14. On 30 October 2009 the First Dividend-Second Pool and the Second Dividend-First Pool were declared. 15. On 11 December 2009 DC Legal deposited into the Master file trust ledger three cheques, respectively in the sums of $2,007,089.85, $2,152,430.89 and $989.08 which had been received from FH, being the First Dividend-Second Pool and Second Dividend-First Pool payments. 16. On 31 December 2009 the sum of $225.56 was transferred by Journal transfer from the Master file trust ledger to the Avery trust ledger. 17. On 31 December 2009 a cheque in the sum of $225.56 was drawn payable to the Averys from the Avery trust ledger. 17A. On 29 November 2010 the Second Dividend-Second Pool was declared. 17B. On 21 December 2010 DC Legal deposited into the Master file trust ledger two cheques in the sum of $1,229.45 and $473,861.51 which had been received from FH, being the Second Dividend-Second Pool payment. 18. On 16 December 2010 the Third Dividend-First Pool was declared. 19. On 21 December 2010 DC Legal deposited into the Master file trust ledger three cheques, respectively in the sums of $414.70, $714.98 and $205,569.68 which had been received from FH, being the Third Dividend-First Pool payment. 20. On 27 January 2011 the sum of $23.56 was transferred by Journal transfer from the Master file trust ledger to the Avery trust ledger. 21. On 28 January 2011 a cheque in the sum of $23.56 was drawn payable to the Averys from the Avery trust ledger. 22. On 29 March 2012 the Final Dividend-First Pool and Final Dividend-Second Pool were declared. 23. On 2 April 2012 DC Legal deposited to the Master file trust ledger two cheques in the sum of $166,322.07 and $144,303.55 were received from FH, being the Final Dividend-First Pool and Final Dividend-Second Pool payments. 24. On 1 May 2012 the sum of $19.07 was transferred by Journal transfer from the Master file trust ledger to the Avery trust ledger. 25. On 11 April 2012 DC Legal raised a tax invoice charging $17.34 for professional costs and $1.73 for GST and on 1 May 2012 the sum of $19.07 was transferred by Journal transfer from the Avery trust ledger to the DC Legal office account. The Averys did not receive a tax invoice in respect of this payment. The Averys did not authorise this payment. 26. Kerry John Avery deposes that the Avery's did not receive from Dennis & Co. or DC Legal any notification of the actual amounts of the dividends they received on the Averys' behalf (as distinct from dividend balances after the legal costs were deducted). The Solicitor says that he has no recollection or knowledge as to this. 27. Kerry John Avery deposes The Avery's did not receive from Dennis & Company or from DC Legal trust account statements. The Solicitor says that he has no recollection or knowledge as to this. M. Warren Graham i. Delay in accounting to the complainant for the dividend received on his behalf in respect of Sons of Gwalia. ii. Failing to account to the complainant for the dividends received on the complainant's behalf in respect of Sons of Gwalia. iii. Gross overcharging in that the costs charged bore no relationship to the work carried out. iv. Breaching section 254 of the Legal Profession Act, 2004. v. Breaching section 255 of the Legal Profession Act, 2004. vi. Misleading by circular dated 10 November 2005. 1. Paragraph Avery 1 is repeated. 2. Warren Graham ("Graham") retained Dennis & Co. to act on his behalf in the administration of Sons of Gwalia. He did not authorise Dennis & Co. to deduct its legal costs from any dividends received. 3. On 29 November 2004 Dennis & Co. raised a tax invoice to Graham in the sum of $550.00. The invoice recorded receipt of the sum of $550.00 and that the balance of the account was nil. 4. On 29 November 2004, the sum of $550.00 referred to in the preceding paragraph was deposited to the Dennis & Co. office account. The Society contends that the deposit occurred prior to Dennis & Co undertaking the work described on the invoice referred to in the preceding paragraph. 5. By circular dated 10 November 2005 Dennis and Co. disclosed to Graham the firm's professional charges rates and advised as follows: "As previously advised we will not be asking for any further funds from you unless the claim is successful and you need not send any further monies to us." 6. Paragraphs Avery 6-8 inclusive are repeated. 7. On or about 15 August 2008 the sum of $3,308.74 was transferred by Journal transfer from the Master file trust ledger to the trust account ledger numbered 41163 in the name of Graham ("the Graham trust ledger"). 8. In August 2008 a cheque in the sum of $1,923.74 was drawn payable to Graham from the Graham trust ledger. 9. On 8 August 2008 a tax invoice was raised charging $1,100.00 for professional costs, $175.00 for disbursements including GST and $110.00 for GST and the sum of $1,385.00 was transferred by Journal transfer from the Graham trust ledger to the Dennis & Co. office account. Graham did not receive a tax invoice in respect of this payment nor did he authorise it. 10. Paragraph Avery 13 is repeated. 11. On 7 September 2009 Graham authorised Dennis & Co. to transfer his file to DC Legal. He did not authorise DC Legal to deduct its legal costs from the dividends received. 12. Paragraphs Avery 14 and 15 are repeated. 13. On or about 31 December 2009 the sum of $1,853.05 was transferred by Journal transfer from the Master file trust ledger to the Graham trust ledger. 14. On or about 31 December 2009 a cheque in the sum of $1,286.05 was drawn payable to Graham from the Graham trust ledger. 15. In February 2010 the sum of $567.00 was transferred by Journal transfer to the DC Legal office account. Graham did not authorise this transfer. 16. Paragraphs Avery 17A, 18 and 19 are repeated. 17. On 17 January 2011 the sum of $193.51 was transferred by Journal transfer from the Master file trust ledger to the Graham trust ledger. 18. On 17 January 2011 the sum of $75.00 was transferred by Journal transfer from the Graham trust ledger to the DC Legal office account. On the same date DC Legal rendered a bill to Graham and forwarded it to him. Graham did not authorise this transfer. 19. On 17 January 2011 a cheque in the sum of $118.51 was drawn payable to Graham from the Graham trust ledger. 20. Paragraphs Avery 22 and 23 are repeated. 21. On 11 April 2012 DC Legal raised a tax invoice charging $142.41 for professional costs and $14.24 for GST. 22. On 17 April 2012 the sum of $156.65 was transferred by Journal transfer from the Master file trust ledger to the Graham trust ledger. 23. On 17 April 2012 the sum of $156.65 was transferred by Journal transfer from the Graham trust ledger to the DC Legal office account. Graham did not receive a tax invoice in respect of this payment. Graham did not authorise this payment. 24. Graham deposes that he did not receive from Dennis & Co. or DC Legal any notification of the actual amounts of the dividends they received on his behalf (as distinct from dividend balances after the legal costs were deducted). The Solicitor says that he has no recollection or knowledge as to this. 25. Graham deposes that he did not receive any trust account statements from Dennis & Company or from DC Legal. The Solicitor says that he has no recollection or knowledge as to this. N. Warren Graham obo Quizete Pty Ltd ATF Sanwa Superannuation Fund i. Failing to account to Quizete Pty Ltd for the dividend received on its behalf in respect of Sons of Gwalia. ii. Gross overcharging in that the costs charged bore no relationship to the work carried out. iii. Breaching section 255 of the Legal Profession Act, 2004. iv. Misleading by circular dated 10 November 2005 1. Paragraph Avery 1 is repeated. 2. Warren Graham on behalf of Quizete Pty Ltd ATF Sanwa Superannuation Fund ("Quizete") retained Dennis & Co. to act on its behalf in the administration of Sons of Gwalia. 3. By circular dated 10 November 2005 Dennis and Co. disclosed to Quizete the firm's professional charges rates and advised as follows: As previously advised we will not be asking for any further funds from you unless the claim is successful and you need not send any further monies to us. 4. Paragraphs Avery 6-8 inclusive are repeated. 5. On 11 August 2008 the sum of $3,882.78 was transferred by Journal transfer from the Master file trust ledger to the trust account ledger numbered 41233 in the name of Quizete (sic) P/L T/F Sanwa Superannuation Fund ("the Quizete trust ledger"). 6. On 8 August 2008 Dennis & Co. raised a tax invoice charging $1,250.00 for professional costs and $125.00 for disbursements including GST and $125.00 for GST. 7. On 12 August 2008 the sum of $1,550.00 was transferred by Journal transfer from the Quizete trust ledger to the Dennis & Co. office account 'on a/c Costs/Disbs. 8. On 12 August 2008 a cheque in the sum of $2,332.78 was drawn payable to Quizete from the Quizete trust ledger. 9. Paragraph Avery 13 is repeated. 10. Quizete authorised Dennis &Co. to transfer its file to DC Legal and authorised DC Legal to deduct its legal costs from the dividends received. 11. Paragraphs Avery 14 and 15 are repeated. 12. On 15 December 2009 the sum of $18,205.41 was transferred by Journal transfer from the Master file trust ledger to the Quizete trust ledger. 13. On 9 November 2009 DC Legal raised a tax invoice charging $4,560.00 for professional costs and $400.00 for disbursements including GST and $456.00 for GST. 14. On 15 December 2009 the sum of $5,416.00 was transferred by Journal transfer from the Quizete trust ledger to the DC Legal office account. 15. On 15 December 2009 a cheque in the sum of $12,789.41 was drawn payable to Quizete from the Quizete trust account ledger. 16. Paragraphs Avery 17A and 18 are repeated. 17. On 19 December 2010 DC Legal raised a tax invoice charging $272.73 for professional costs and $50.00 for disbursements including GST and $27.27 for GST. 18. Paragraph Avery 19 is repeated. 19. On 21 December 2010 the sum of $3,298.70 was transferred by Journal transfer from the Master file trust ledger to the Quizete trust ledger. 20. On 24 December 2010 the sum of $350.00 was transferred by Journal transfer from the Quizete trust ledger to the DC Legal office account. 21. On 17 January 2011 a cheque in the sum of $2,948.70 was drawn payable to Quizete from the Quizete trust ledger. 22. Paragraphs Avery 22 and 23 are repeated. 23. On 10 April 2012 the sum of $1,357.81 was transferred by Journal, transferred from the Master file trust ledger to the Quizete trust ledger 24. On 10 April 2012 the sum of $500.00 was transferred by Journal transfer from the Quizete trust ledger to the DC Legal office account. Quizete did not receive a tax invoice in respect of this payment nor did it authorise this payment. 25. Graham deposes that Quizete did not receive from Dennis & Company or DC Legal any notification of the actual amounts of the dividends they received on Quizete's behalf (as distinct from dividend balances after the legal costs were deducted). The Solicitor says that he has no recollection or knowledge as to this. 26. Graham deposes that Quizete did not receive any trust account statements from Dennis & Company or from DC Legal. The Solicitor says that he has no recollection or knowledge as to this. O. David Ley Outhred i. Gross overcharging in that the costs charged bore no relationship to the work carried out ii. Breaching section 254 of the Legal Profession Act, 2004 iii. Breaching section 255 of the Legal Profession Act, 2004 1. Paragraph Avery 1 is repeated. 2. In about October 2004 David Ley Outhred ("Outhred") retained Dennis & Co. to act on his behalf in the administration of Sons of Gwalia. 3. On 21 October 2004 Dennis & Co. raised a tax invoice to Outhred in the sum of $550.00. The invoice recorded receipt of the sum of $550.00 and that the balance of the account was nil. 4. In October 2004, the sum of $550.00 referred to in the preceding paragraph was deposited to the Dennis & Co office account. The Society contends that the deposit occurred prior to Dennis & Co undertaking the work described on the invoice referred to in the preceding paragraph. 5. Paragraphs Avery 6-8 inclusive are repeated. 6. On 8 August 2008 Dennis & Co. raised a tax invoice charging $175.00 for professional costs. 7. On 13 August 2008 the sum of $637.72 was transferred by Journal transfer from the Master file trust ledger to the trust account trust ledger numbered 41042 in the name of Outhred ("the Outhred trust ledger"). 8. On 14 August 2008 the sum of $175.00 was transferred by Journal transfer from the Outhred trust ledger to the Dennis & Co. office account on a/c Costs/Disbs. 9. On 14 August 2008 a cheque in the sum of $462.72 was drawn payable to Outhred from the Outhred trust ledger. 10. Paragraph Avery 13 is repeated. Outhred deposes that he did not receive notification of the formation of DC Legal and its intention to provide services to existing clients of Dennis & Co. on the same terms and conditions as Dennis & Co. previously provided. Outhred also deposes that he did not authorise DC Legal to act for him, nor did he authorise DC Legal to deduct its legal costs from the dividends received on his behalf. The Solicitor says that he has no recollection or knowledge as to this. 11. Paragraph Avery 14 is repeated. 12. On 9 November 2009 DC Legal raised a tax invoice charging $750.00 for professional costs $100.00 for disbursements including GST and $75.00 for GST. 13. Paragraph Avery 15 is repeated. 14. On 17 December 2009 the sum of $2,990.10 was transferred by Journal transfer from the Master file trust ledger to the Outhred trust ledger. 15. On 17 December 2009 the sum of $925.00 was transferred by Journal transfer from the Outhred trust ledger to the DC Legal office account. 16. On 18 December 2009 a cheque in the sum of $2,065.10 was drawn payable to Outhred from the Outhred trust ledger 142. Upon receipt of the cheque Outhred requested the Solicitor to refund of the costs charged and the GST. 17. In April 2010 a cheque in the sum of $454.55 was drawn payable to Outhred from the DC Legal office account by way of a partial refund of costs and a refund of GST. 18. Paragraphs Avery 17A, 18 and 19 are repeated. 19. On 21 December 2010 the sum of $541.79 was transferred by Journal transfer from the Master file trust ledger to the Outhred trust ledger. 20. On 24 December 2010 the sum of $200.00 was transferred by Journal transfer from the Outhred trust ledger to the DC Legal office account. 21. 17 January 2011 DC Legal raised a tax invoice charging $163.64 for professional costs, $20.00 for disbursements including GST and $16.36 for GST. 22. On 17 January 2011 a cheque in the sum of $341.79 was drawn payable to Outhred from the Outhred trust ledger. 23. On 22 February 2011 the costs referred to in paragraph 20 were refunded to the Outhred trust ledger, the cheque referred to in paragraph 22 was cancelled and a fresh cheque in the sum of $541.79 was drawn payable to Outhred from the Outhred trust ledger. 24. Paragraphs Avery 22 and 23 are repeated. 24A On 11 April 2012 DC Legal raised a tax invoice charging $202.74 for professional costs and $20.27 for GST. Outhred did not receive a tax invoice in respect of this payment. Outhred did not authorise this payment. 25. On 26 April 2012 the sum of $223.01 was transferred by Journal transfer from the Master file trust ledger to the Outhred trust ledger. 26. On 26 April 2012 the sum of $223.01 was transferred by Journal transfer from the Outhred trust ledger to the DC Legal office account. 27. On 6 June 2012 Outhred, having become aware from FH of the payment of the dividend referred to in paragraph 24, requested DC Legal to forward the dividend to him. Despite email reminders to DC Legal on 10 and 31 July 2012 and 24 August 2012 and 23 January 2013 and promises from DC Legal on 8 and 24 August 2012 and 23 January 2013, the dividend had not been paid to Outhred at the date of the report of Lucia Molitemo dated 28 August 2013. 28. Outhred deposes that he did not receive from Dennis & Co. or DC Legal any notification of the actual amounts of the dividends they received on Outhred's behalf (as distinct from dividend balances after the legal costs were deducted). The Solicitor says that he has no recollection or knowledge as to this. 29. Outhred deposes that he did not receive any trust account statements from Dennis & Co. or from DC Legal. The Solicitor says that he has no recollection or knowledge as to this. P. Peter and Susan Pavliuk i. Acted without the complainant's instructions. ii. Overcharged the complainant. iii. Failing to disclose costs other than for the fixed fee. iv. Gross overcharging in that the costs charged bore no relationship to the work carried out. v. Breaching section 254 of the Legal Profession Act, 2004. vi. Breaching section 255 of the Legal Profession Act, 2004. vii. Failing to account. 1. Paragraph Avery 1 is repeated. 2. By letter dated 27 September 2004 to Peter Nicholas Pavliuk and Susan Roma Pavliuk ("the Pavliuks") Dennis and Co. wrote as follows: "In your capacity as a shareholder you are hereby invited to instruct us to collect the documentation necessary to prove your claims, collate the information required to classify your claims, quantify your claims and, of course, note and maintain your interest. We ask for a one time only payment of $550 inclusive of GST being our fees for managing your claim. If the claim is successful we will charge such legal costs as the court may allow. We will not ask for any further funds unless the claim is successful." 3. The Pavliuks retained Dennis & Co. to act on their behalf in the administration of Sons of Gwalia. 4. On 7 February 2005 Dennis & Co. issued a tax invoice to the Pavliuks in the sum of $550.00. The invoice recorded receipt of the sum of $550.00 and that the balance of the account was nil. 5. On 7 February 2005, the sum of $550.00 referred to in the preceding paragraph was deposited to the Dennis & Co. office account. The Society contends that the deposit occurred prior to Dennis & Co undertaking the work described on the invoice referred to in the preceding paragraph. 6. Paragraphs Avery 6 - 8 inclusive are repeated. 7. On 8 August 2008 Dennis & Co. raised a tax invoice charging $1,750.00 for professional costs and $275.00 for disbursements including GST and $175.00 for GST. 8. On 11 August 2008 the sum of $5,803.47 was transferred by Journal transfer from the Master file trust ledger to the trust account ledger numbered 50223 in the name of the Pavliuks ("the Pavliuks' trust ledger") 9. On 11 August 2008 a cheque in the sum of $3,603.47 was drawn payable to the Pavliuks from the Pavliuk's trust ledger. 10. On 12 August 2008 the sum of $2,200.00 was transferred by Journal transfer from the Pavliuks' trust ledger to the Dennis & Co. office account. 11. Paragraph Avery 13 is repeated. The Pavliuks did not authorise DC Legal to act on their behalf. 12. Paragraph Avery 14 is repeated. 13. On 9 November 2009 DC Legal raised a tax invoice charging $6,810.00 for professional costs and $775.00 for disbursements including GST and $681.00 for GST. 14. Paragraph Avery 15 is repeated. 15. On 14 December 2009 the sum of $27,211.04 was transferred by Journal transfer from the Master file trust ledger to the Pavliuks' trust ledger. 16. On 15 December 2009 a cheque in the sum of $18,945.04 was drawn payable to the Pavliuks from the Pavliuks' trust ledger. 17. On 15 December 2009 the sum of $8,266.00 was transferred by Journal transfer from the Pavliuks' trust ledger to the DC Legal office account. The Pavliuks did not authorise this payment. 18. By letter dated 14 April 2010 the Pavliuks wrote to DC Legal as follows: "I am writing to you regarding the last payment from the administrators of SOG. You charged a fee for receiving this money of $8,266-for doing nothing I note that you have never been authorised by Peter & Susan Pavliuk to act on our behalf & request you remit that amount to us. I have been in touch with the Law Society of NSW regarding your conduct & they have suggested I first contact you regarding your fees. I hope this matter can be settled without taking legal action." 19. On 4 June 2010 DC Legal forwarded a circular to clients which contained the following statements: "If you do not return the Authority or do not advise us that you do not agree we will assume that you intend us to act on your behalf in this matter and we will continue to do so unless you advise us otherwise". and "our charges to you to collect and distribute this final dividend if any, will be, minimal with a maximum of $200". 20. On 14 June 2010 the Pavliuks emailed DC Legal as follows: "Sons of Gwalia, DC Legal, we do not want you to act for us in this matter, Regards Peter and Susan Pavliuk". 21. Paragraphs Avery 17A and18 are repeated. 22. On 19 December 2010 DC Legal raised a tax invoice charging $318.18 for professional costs and $50.00 for disbursements including GST and $31.82 for GST. 23. Paragraph Avery 19 is repeated. 24. On 21 December 2010 the sum of $4,930.47 was transferred by Journal transfer from the Master file trust ledger to the Pavliuks' trust ledger. 25. On 24 December 2010 the sum of $400.00 was transferred by Journal transfer from the Pavliuks trust ledger to the DC Legal office account on a/c Costs/Disbs. The Pavliuks did not authorise this payment. 26. On 17 January 2011 a cheque in the sum of $4,530.47 was drawn payable to the Pavliuks from the Pavliuks' trust ledger. 27. Paragraphs Avery 22 and 23 are repeated. 28. On 10 April 2012 the sum of $2,029.48 was transferred by Journal transfer from the Master file trust ledger to the Pavliuks' trust ledger. 29. On 10 April 2012 the sum of $500.00 was transferred by Journal transfer from the Pavliuks' trust ledger to the DC Legal office account on a/c Costs/Disbs. The Pavliuks did not receive a tax invoice in respect of this amount. The Pavliuks did not authorise this payment. 30. By email dated 13 April 2012 FH confirmed to DC Legal that the Pavliuks had requested FH to remit their funds directly to them and requested the return to FH of their funds. 30A On 31 May 2012 the costs referred to in paragraph 27 were refunded to the Pavliuks trust ledger, and a cheque in the sum of $2,029.48 was drawn payable to FH from the Pavliuks' trust ledger. 30BPeter Pavliuk deposes that the Pavliuks did not receive from Dennis & Co. or DC Legal any notification of the actual amounts of the dividends they received on their behalf (as distinct from dividend balances after the legal costs were deducted). The Solicitor says that he has no recollection or knowledge as to this. 31. Peter Pavliuk deposes that the Pavliuks did not receive from Dennis & Co. or from DC Legal trust account statements. The Solicitor says that he has no recollection or knowledge as to this. Q. William Adam Robertson i Gross overcharging in that the costs charged bore no relationship to the work carried out. ii Failing to account. 1. Paragraph Avery 1 is repeated. 2. By circular dated 17 September 2004 the Solicitor wrote to William Adam Robertson ("Robertson") inviting his instructions to act in relation to the administration of Sons of Gwalia. The circular included the following178: "We ask for a one time only payment of $550 inclusive of GST being our fees for managing your claim. If the claim is successful we will charge such legal costs as the court may allow. We will not ask for any further funds unless the claim is successful". 3. In about September Robertson retained Dennis & Co. to act on his behalf in the administration of Sons of Gwalia. 4. On or about 8 February 2005 Robertson paid Dennis & Co. the sum of $550.00 to prepare his claim in the administration. 5. Paragraphs Avery 6-8 inclusive are repeated. 6. On 8 August 2008 Dennis & Co. raised a tax invoice charging $575.00 for professional costs. 7. Robertson's entitlement following the declaration of the First Dividend-First Pool and Convenience Class Trust Fund Dividends was $1,402.58. 8. Paragraph Avery 13 is repeated. Robertson did not authorise DC Legal to act for him. 9. Paragraph Avery 14 is repeated. 10. On 9 November 2009 DC Legal raised a tax invoice charging $1,650.00 for professional costs and $200.00 for disbursements including GST and $165.00 for GST. 11. Paragraph Avery 15 is repeated. 12. On 15 December 2009 the sum of $6, 576.34 was transferred by journal transfer from the Master file trust ledger to the Robertson trust ledger. 13. On 17 December 2009 the sum of $2,015.00 was transferred by journal transfer from the Robertson trust ledger to the DC Legal office account. 14. On 17 December 2009 a cheque in the sum of $4,561.34 was drawn payable to Robertson from the Robertson trust ledger. The cheque was rejected by Robertson and returned to DC Legal. 15. On 14 May 2010, following negotiations between DC Legal and Robertson, a cheque in the sum of $6, 576.34 [that amount having been returned to the Robertson trust ledger] was drawn payable to Robertson from the Robertson trust ledger. This cheque was not received by Robertson. 16. Under cover of letter dated 23 February 2012 from DC Legal to Robertson, a replacement cheque in the sum of $6,576.34 was paid to Robertson. 17. Robertson deposes that he did not receive from Dennis & Co. or DC Legal any notification of the actual amounts of the dividends they received on Robertson's behalf (as distinct from dividend balances after the legal costs were deducted). The Solicitor says that he has no recollection or knowledge as to this. 18. Robertson deposes that he did not receive from Dennis & Co. or from DC Legal trust account statements187. The Solicitor says that he has no recollection or knowledge as to this. R. Acropolis Developments Pty Ltd (Poulios) i. Gross overcharging in that the costs charged bore no relationship to the work carried out. ii. Breaching section 254 of the Legal Profession Act, 2004. 1. Paragraph Avery 1 is repeated. 2. In about December 2004 Mr Poulios, a Director of Acropolis Developments Pty Ltd ("Acropolis") retained Dennis & Co. to act on behalf of Acropolis in the administration of Sons of Gwalia. 3. On 7 December 2004 Dennis & Co. issued a tax invoice to Acropolis in the sum of $550.00. The invoice recorded receipt of the sum of $550.00 and that the balance of the account was nil. 4. In December 2004, the sum of $550.00 referred to in the preceding paragraph was deposited to the Dennis & Co. office account. The Society contends that the deposit occurred prior to Dennis & Co undertaking the work described on the invoice referred to in the preceding paragraph. 5. Paragraphs Avery 6-8 inclusive are repeated. 6. In August 2008 the sum of $9,311.23 was transferred by Journal transfer from the Master file trust ledger to the trust account ledger numbered 41180 in the name of Acropolis ("the Acropolis trust ledger"). 7. On 8 August 2008 Dennis & Co. raised a tax invoice charging $3,250.00 for professional costs and $375.00 for disbursements including GST and $325.00 for GST and the sum of $3,950.00 was transferred by Journal transfer from the Acropolis trust ledger to the Dennis & Co. office account. 8. In 20 August 2008 a cheque in the sum of $5,361.23 was drawn payable to Acropolis from the Acropolis trust ledger 192. 9. Paragraph Avery 13 is repeated. 10. Paragraphs Avery 14 and 15 are repeated. 11. In December 2009 the sum of $43,658.04 was transferred by Journal transfer from the Master file trust ledger to the Acropolis trust ledger. 12. In December 2009 a cheque in the sum of $30,871.04 was drawn payable to Acropolis from the Acropolis trust ledger. 13. On 9 November 2009 DC Legal raised a tax invoice charging $10,920.00 for professional costs and $775.00 for disbursements including GST and $1,092.00 for GST. 14. In December 2009 the sum of $12,787.00 was transferred by Journal transfer from the Acropolis trust ledger to the DC Legal office account 'on a/c Costs/Disbs. 15. Paragraphs Avery 17A and 18 are repeated. 16. On 19 December 2010 DC Legal raised a tax invoice charging $386.36 for professional costs and $75.00 for disbursements including GST and $38.64 for GST and the sum of $500.00 was transferred by Journal transfer from the Acropolis trust ledger to the DC Legal office account'on a/c Costs/Disbs. 17. Paragraph Avery 19 is repeated. 18. In December 2010 the sum of $7,910.56 was transferred by Journal transfer from the Master file trust ledger to the Acropolis trust ledger. 19. In January 2011 a cheque in the sum of $7,410.56 was drawn payable to Acropolis from the Acropolis trust ledger. 20. Paragraphs Avery 22 and 23 are repeated. 21. In April 2012 the sum of $3,256.15 was transferred by Journal transfer from the Master file trust ledger to the Acropolis trust ledger. 22. On 11 April 2012 DC Legal raised a tax invoice charging $454.55 for professional costs and $45.45 for GST and the sum of $500.00 was transferred by Journal transfer from the Acropolis trust ledger to the DC Legal office account 'on a/c Costs/Disbs. 23. In May 2012 a cheque in the sum of $2,756.15 was drawn payable to Acropolis from the Acropolis trust ledger. S. Daman Pty Ltd (Peter and Leonie Grieve) i. Gross overcharging in that the costs charged bore no relationship to the work carried out. ii. Breaching section 254 of the Legal Profession Act, 2004. iii. Failing to account. 1. Paragraph Avery 1 is repeated. 2. In about January 2005 Peter Grieve on behalf of Daman Pty Ltd ("Daman") retained Dennis & Co. to act on behalf of Daman in the administration of Sons of Gwalia. 3. On 11 January 2005 Dennis & Co. issued a tax invoice to Daman in the sum of $550.00. The invoice recorded receipt of the sum of $550.00 and that the balance of the account was nil. 4. In 2005, the sum of $550.00 referred to in the preceding paragraph was deposited to the Dennis & Co. office account. The Society contends that the deposit occurred prior to Dennis & Co undertaking the work described on the invoice referred to in the preceding paragraph. 5. Paragraphs Avery 6-8 inclusive are repeated. 6. In August 2008 the sum of $846.75 was transferred by Journal transfer from the Master file trust ledger to the trust account ledger numbered 50087 in the name of Daman ("the Daman trust ledger"). 7. On 8 August 2008 Dennis & Co. raised a tax invoice charging $175.00 for professional costs and $17.50 for GST and the sum of $192.50 was transferred by Journal transfer from the Daman trust ledger to the Dennis & Co. office account. 8. In August 2008 a cheque in the sum of $654.25 was drawn payable to Daman from the Daman trust ledger. 9. Paragraph Avery 13 is repeated. 10. By email dated 4 September 2009 DC Legal set an email to Daman advising, among other things, that DC Legal had been incorporated; purporting to enclose "an authority and a separate letter" and inviting Daman to complete and return the authority or email to DC Legal Daman's acceptance that DC Legal may continue to act. Daman did not receive the attachments referred to in the email and did not authorise DC Legal to act. 11. On 30 October 2009 Daman wrote to FH advising that Dennis & Co no longer acted for the company and further distribution moneys should be forwarded direct to Daman. 12. Paragraphs Avery 14 and 15 are repeated. 13. On 22 December 2009 Daman advised Michelle at DC Legal that Daman had not signed an authority for DC Legal to act and requested the return of the dividend received in December 2009. 14. On 31 December 2009 the sum of $474.22 was transferred by Journal transfer from the Master file trust ledger to the Daman trust ledger. 15. On 31 December 2009 a cheque in the sum of $474.22 was drawn on the Daman trust ledger and forwarded to FH. 16. By email dated 6 January 2010 to DC Legal Peter Grieve confirmed his telephone conversation referred to in paragraph 13. 17. In correspondence to Lucia Molitemo dated 5 August 2013 located at page 368 to Attachment CC of the report of Lucia Molitemo dated 28 August 2013, Peter Grieve on behalf of Daman alleged that Daman did not receive from Dennis & Company or DC Legal any notification of the actual amounts of the dividends they received on Daman's behalf (as distinct from dividend balances after the legal costs were deducted). The Solicitor says that he has no recollection or knowledge as to this. 18. In correspondence to Lucia Molitemo dated 5 August 2013 located at page 368 to Attachment CC of the report of Lucia Molitemo dated 28 August 2013, Peter Grieve on behalf of Daman alleged that Daman did not receive from Dennis & Co. or from DC Legal trust account statements. The Solicitor says that he has no recollection or knowledge as to this. T. George Georgiou i. Gross overcharging in that the costs charged bore no relationship to the work carried out. ii. Breaching section 254 of the Legal Profession Act, 2004. 1. Paragraph Avery 1 is repeated. 2. In about February 2005 George Georgiou ("Georgiou") retained Dennis & Co. to act on behalf of Georgiou in the administration of Sons of Gwalia. 3. On 1 February 2005 Dennis & Co. issued a tax invoice to Georgiou in the sum of $550.00. The invoice recorded receipt of the sum of $550.00 and that the balance of the account was nil. 4. In February 2005, the sum of $550.00 referred to in the preceding paragraph was deposited to the Dennis & Co. office account. The Society contends that the deposit occurred prior to Dennis & Co undertaking the work described on the invoice referred to in the preceding paragraph. 5. Paragraphs Avery 6-8 inclusive are repeated. 6. In August 2008 the sum of $1,882.33 was transferred by Journal transfer from the Master file trust ledger to the trust account ledger numbered 50194 in the name of Georgiou ("the Georgiou trust ledger"). 7. On 8 August 2008 Dennis & Co. raised a tax invoice charging $675.00 for professional costs and $67.50 for GST and the sum of $742.50 was transferred by Journal transfer from the Georgiou trust ledger to the Dennis & Company office account. 8. In August 2008 a cheque in the sum of $1,139.83 was drawn payable to Georgiou from the Georgiou trust ledger. 9. Paragraph Avery 13 is repeated. 10. Paragraphs Avery 14 is repeated. 11. On 9 November 2009 DC Legal raised a tax invoice charging $270.00 for professional costs and $50.00 for disbursements including GST and $27.00 for GST. 12. Paragraphs Avery 15 is repeated. 13. Sometime after 11 December 2009 the sum of $347.00 was transferred by Journal transfer from the Georgiou trust ledger to the DC Legal office account. 14. In 2009 the sum of $1,054.20 was transferred by Journal transfer from the Master file trust ledger to the Georgiou trust ledger. 15. In 2009 a cheque in the sum of $707.20 was drawn payable to Georgiou from the Georgiou trust ledger. 16. Paragraphs Avery 17A, 18 and 19 are repeated. 17. In 2011 the sum of $110.09 was transferred by Journal transfer from the Master file trust ledger to the Georgiou trust ledger. 18. On 17 January 2011 DC Legal raised a tax invoice charging $31.82 for professional costs and $15.00 for disbursements including GST and $3.18 for GST and the sum of $50.00 was transferred by Journal transfer from the Georgiou trust ledger to the DC Legal office account 'on a/c Costs/Disbs. 19. In 2011 a cheque in the sum of $60.09 was drawn payable to Georgiou from the Georgiou trust ledger. 20. Paragraphs Avery 22 and 23 are repeated. 21. In April 2012 the sum of $89.12 was transferred by Journal transfer from the Master file trust ledger to the Georgiou trust ledger. 22. On 11 April 2012 DC Legal raised a tax invoice charging $81.02 for professional costs and $8.10 for GST. 23. On 11 April 2012 the sum of $89.12 was transferred by Journal transfer from the Georgiou trust ledger to the DC Legal office account on a/c Costs/Disbs. U. Christopher Duncan Spencer Good i Failing to disclose costs. ii. Gross overcharging in that the costs charged bore no relationship to the work carried out. iii. Breaching section 254 of the Legal Profession Act, 2004. iv. Failing to account. 1. Paragraph Avery 1 is repeated. 2. In about October 2004 Christopher Duncan Spencer Good ("Good") retained Dennis & Company to act on behalf of Good in the administration of Sons of Gwalia. 3. On 27 October 2004 Dennis & Co. issued a tax invoice to Good in the sum of $550.00. The invoice recorded receipt of the sum of $550.00 and that the balance of the account was nil. 4. In 2004, the sum of $550.00 referred to in the preceding paragraph was deposited to the Dennis & Co. office account. The Society contends that the deposit occurred prior to Dennis & Co undertaking the work described on the invoice referred to in the preceding paragraph. 5. By circular dated 10 November 2005 Dennis and Co. disclosed to me its professional charges rates and advised as follows: "As previously advised we will not be asking for any further funds from you unless the claim is successful and you need not send any further monies to us." 6. Other than the fixed fee referred to in the preceding paragraph, Good was not informed by Dennis & Co. what additional legal costs he would be charged or how the legal costs for which he was billed were calculated. 7. Paragraphs Avery 6-8 inclusive are repeated. 8. In August 2008 the sum of $2,574.35 was transferred by Journal transfer from the Master file trust ledger to the trust account ledger numbered 41069 in the name of Good ("the Good trust ledger"). 9. On 8 August 2008 Dennis & Company raised a tax invoice charging $975.00 for professional costs and $100.00 for disbursements including GST and $97.50 for GST and the sum of $1,172.50 was transferred by Journal transfer from the Good trust ledger to the Dennis & Co. office account. 10. In August 2008 a cheque in the sum of $1,401.85 was drawn payable to Good from the Good trust ledger. 11. Paragraph Avery 13 is repeated. 12. Good claimed that he was not informed by DC Legal as to what additional legal costs he would be charged or how the legal costs for which he was billed were calculated during a telephone conversation with Lucia Molitemo as set out at page 15 of her report dated 28 August 2013. The Solicitor says that he has no recollection or knowledge as to this. 13. Good claimed that he did not authorise Dennis & Co. to transfer its file to DC Legal during a telephone conversation with Lucia Molitemo as set out at page 15 of her report dated 28 August 2013. The Solicitor says that he has no recollection or knowledge as to this. 14. Good claimed that he did not authorise DC Legal to deduct its legal costs from the dividends it received on Good's behalf during a telephone conversation with Lucia Molitemo as set out at page 15 of her report dated 28 August 2013. The Solicitor says that he has no recollection or knowledge as to this. 15. Paragraph Avery 14 is repeated. 16. On 9 November 2009 DC Legal raised a tax invoice charging $3,020.00 for professional costs and $300.00 for disbursements including GST and $302.00 for GST. 17. Paragraph Avery 15 is repeated. 18. On 15 December 2009 the sum of $12,070.47 was transferred by Journal transfer from the Master file trust ledger to the Good trust ledger. 19. On 17 December 2009 the sum of $3,622.00 was transferred by Journal transfer from the Good trust ledger to the DC Legal office account 'on a/c Costs/Disbs. 20. On 17 December 2009 a cheque in the sum of $8,448.47 was drawn payable to Good from the Good trust ledger. 21. Paragraphs Avery 17A and 18 are repeated. 22. On 19 December 2010 DC Legal raised a tax invoice charging $250.00 for professional costs and $25.00 for disbursements including GST and $25.00 for GST. 23. Paragraph Avery 19 is repeated. 24. On 21 December 2010 the sum of $2,187.09 was transferred by Journal transfer from the Master file trust ledger to the Good trust ledger. 25. On 24 December 2010 the sum of $300.00 was transferred by Journal transfer from the Good trust ledger to the DC Legal office account. 26. On 17 January 2011 a cheque in the sum of $1,887.09 was drawn payable to Good from the Good trust ledger. 27. Paragraphs Avery 22 and 23 are repeated. 28. On 13 April 2012 the sum of $900.26 was transferred by Journal transfer from the Master file trust ledger to the Good trust ledger. 29. On 19 April 2012, on Good's instructions, FH requested DC Legal to return to them the sum of $900.26 being the last dividend paid. 30. On 31 May 2012 a cheque in the sum of $900.26 was forwarded to FH. 31. Good claimed that he did not receive from Dennis & Co. or DC Legal any notification of the actual amounts of the dividends they received on Good's behalf (as distinct from dividend balances after the legal costs were deducted) during a telephone conversation with Lucia Molitemo as set out at page 15 of her report dated 28 August 2013. The Solicitor says that he has no recollection or knowledge as to this. 32. Good claimed that he did not receive from Dennis & Co. or from DC Legal trust account statements during a telephone conversation with Lucia Molitemo as set out at page 15 of her report dated 28 August 2013. The Solicitor says that he has no recollection or knowledge as to this. V. Nigel Graham-Smith i. Breaching section 254 of the Legal Profession Act, 2004 ii. Gross overcharging in that the costs charged bore no relationship to the work carried out. 1. Paragraph Avery 1 is repeated. 2. In about October 2004 Nigel Graham-Smith ("Graham-Smith") retained Dennis & Co. to act on his behalf in the administration of Sons of Gwalia. 3. On 8 October 2004 Dennis & Co. issued a tax invoice to Graham-Smith in the sum of $550.00. The invoice recorded receipt of the sum of $550.00 and that the balance of the account was nil. 4. On 8 October 2004, the sum of $550.00 referred to in the preceding paragraph was deposited to the Dennis & Co. office account. The Society contends that the deposit occurred prior to Dennis & Co undertaking the work described on the invoice referred to in the preceding paragraph. 5. Paragraphs Avery 6-8 inclusive are repeated. 6. On 8 August 2008 Dennis & Co raised a tax invoice charging $1,250.00 for professional costs and $175.00 for disbursements including GST and $125.00 for GST. 7. On 11 August 2008 the sum of $4,297.34 was transferred by Journal transfer from the Master file trust ledger to the trust account ledger numbered 40954 in the name of Graham-Smith ("the Graham-Smith trust ledger"). 8. On 12 August 2008 the sum of $1,550.00 was transferred by Journal transfer from the Graham-Smith trust ledger to the Dennis & Co. office account 'on a/c Costs/Disbs. 9. On 12 August 2008 a cheque in the sum of $2,747.34 was drawn payable to Graham-Smith from the Graham-Smith trust ledger. 10. Paragraph Avery 13 is repeated. 11. Paragraph Avery 14 is repeated. 12. On 9 November 2009 DC Legal raised a tax invoice charging $5,040.00 for professional costs and $363.64 for disbursements excluding GST and $540.36 for GST. 13. Paragraphs Avery 15 is repeated. 14. On 15 December 2009 the sum of $20,149.16 was transferred by Journal transfer from the Master file trust ledger to the Graham-Smith trust ledger. 15. On 15 December 2009 the sum of $5,944.00 was transferred by Journal transfer from the Graham-Smith trust ledger to the DC Legal office account. 16. On 15 December 2009 a cheque in the sum of $14,205.16 was drawn payable to Graham-Smith from the Graham-Smith trust ledger. 17. Paragraphs Avery 17A and 18 are repeated. 18. On 19 December 2010 DC Legal raised a tax invoice charging $272.73 for professional costs and $50.00 for disbursements including GST and $27.27 for GST. 19. Paragraph Avery 19 is repeated. 20. On 21 December 2010 the sum of $3,650.90 was transferred by Journal transfer from the Master file trust ledger to the Graham-Smith trust ledger. 21. On 24 December 2010 the sum of $350.00 was transferred by Journal transfer from the Graham-Smith trust ledger to the DC Legal office account. 22. On 17 January 2011 a cheque in the sum of $3,300.90 was drawn payable to Graham-Smith from the Graham-Smith trust ledger. 23. Paragraphs Avery 22 and 23 are repeated. 24. On 10 April 2012 the sum of $1,502.79 was transferred by Journal transfer from the Master file trust ledger to the Graham-Smith trust ledger. 25. On 10 April 2012 DC Legal raised a tax invoice charging $454.55 for professional costs and $45.45 for GST and the sum of $500.00 was transferred from the Graham-Smith trust ledger to the DC Legal office account. 26. On 1 May 2012 a cheque in the sum of $1,002.79 was forwarded to Graham-Smith. W. Malcolm Ross and Margaret Agnes McCullough i. Breaching section 254 of the Legal Profession Act, 2004. ii. Gross overcharging in that the costs charged bore no relationship to the work carried out. iii. Failing to account. 1. Paragraph Avery 1 is repeated. 2. In about January 2005 Malcolm Ross and Margaret Agnes McCullough ("the McCulloughs") retained Dennis & Co. to act on their behalf in the administration of Sons of Gwalia. 3. On 11 January 2005 Dennis & Co. issued a tax invoice to the McCulloughs in the sum of $550.00. The invoice recorded receipt of the sum of $550.00 and that the balance of the account was nil. 4. On 11 January 2005, the sum of $550.00 referred to in the preceding paragraph was deposited to the Dennis & Co. office account. The Society contends that the deposit occurred prior to Dennis & Co undertaking the work described on the invoice referred to in the preceding paragraph. 5. Paragraphs Avery 6-8 inclusive are repeated. 6. On 8 August 2008 Dennis & Co. raised a tax invoice charging $1,100.00 for professional costs and $175.00 for disbursements including GST and $110.00 for GST. 7. In August 2008 the sum of $3,590.00 was transferred by Journal transfer from the Master file trust ledger to the trust account ledger numbered 50085 in the name of the McCulloughs ("the McCulloughs trust ledger"). 8. In August 2008 the sum of $1,385.00 was transferred by Journal transfer from the McCulloughs' trust ledger to the Dennis & Co. office account. 9. In August 2008 a cheque in the sum of $2,205.00 was drawn payable to the McCulloughs from the McCulloughs' trust ledger. 10. Paragraph Avery 13 is repeated. 11. Paragraphs Avery 14 is repeated. 12. On 9 November 2009 DC Legal raised a tax invoice charging $4,210.00 for professional costs and $400.00 for disbursements including GST and $421.00 for GST. 13. Paragraphs Avery 15 is repeated. 14. On 15 December 2009 the sum of $16,832.60 was transferred by Journal transfer from the Master file trust ledger to the McCulloughs trust ledger. 15. On 15 December 2009 a cheque in the sum of $11,801.60 was drawn payable to the McCulloughs from the McCulloughs trust ledger. 16. On 15 December 2009 the sum of $5,031.00 was transferred by Journal transfer from the McCulloughs trust ledger to the DC Legal office account 'on a/c Costs/Disbs. 17. Paragraphs Avery 17A and 18 are repeated. 18. On 20 December 2010 DC Legal raised a tax invoice charging $272.7273 (sic) for professional costs and $50.00 for disbursements including GST and $27.2727 (sic) for GST. 19. Paragraphs Avery 19 is repeated. 20. On 21 December 2010 the sum of $3,049.96 was transferred by Journal transfer from the Master file trust ledger to the McCulloughs trust ledger. 21. On 24 December 2010 the sum of $350.00 was transferred by Journal transfer from the McCulloughs trust ledger to the DC Legal office account 'on a/c Costs/Disbs. 22. On 17 January 2011 a cheque in the sum of $2,699.96 was drawn payable to the McCulloughs from the McCulloughs trust ledger. 23. Paragraphs Avery 22 and 23 are repeated. 24. On 10 April 2012 the sum of $1,255.43 was transferred by Journal transfer from the Master file trust ledger to the McCulloughs trust ledger. 25. On 10 April 2012 DC Legal raised a tax invoice charging $454.55 for professional costs and $45.45 for GST and the sum of $500.00 was transferred by Journal transfer from the McCulloughs trust ledger to the DC Legal office account 'on a/c Costs/Disbs. 26. On 19 April 2012, on the McCulloughs' instructions, FH requested DC Legal to return to them the sum of $1,255.43 being the last dividend paid. 27. In May 2012 DC Legal refunded the sum of $500.00 to the McCulloughs' trust ledger. 28. In May 2012 a cheque in the sum of $1,255.43 was drawn from the McCulloughs' trust ledger payable to FH. The cheque was not received by FH until 18 June 2012. 29. The McCulloughs informed Lucia Molitemo orally as set out at page 16 of her report dated 28 August 2013 that they did not receive from Dennis & Co. or DC Legal any notification of the actual amounts of the dividends they received on The McCulloughs' behalf (as distinct from dividend balances after the legal costs were deducted). The Solicitor says that he has no recollection or knowledge as to this. 30. The McCulloughs informed Lucia Molitemo orally as set out at page 16 of her report dated 28 August 2013 that they did not receive from Dennis & Co. or from DC Legal trust account statements. The Solicitor says that he has no recollection or knowledge as to this. 31. On 19 February 2013 the sum of $500.00 was written off by DC Legal. X. Forest Enterprises Australia Limited and FEA Plantations Limited i. Breaching section 255 of the Legal Profession Act, 2004. 1. In 2013 the FEA administration ("the administration") commenced. 2. By circulars dated 22 March 2013 and 15 May 2013 DC Legal invited parties to instruct the legal practice to act for them in respect of their potential entitlements in the administration and offered to render specified services for a fixed retainer fee. 3. As at 14 June 2013, 63 clients had accepted the offer from DC Legal. 4. Simultaneously with the acceptance, each client paid to DC Legal a retainer fee ranging between $77.00 and $924.00. 5. The procedure adopted by DC Legal in respect of each client is that upon receipt of the fixed retainer fee it was deposited in the client's trust account ledger, an invoice for its equivalent was raised and the amount was immediately appropriated. The Society contends that the fixed retainer fee was appropriated prior to the work being done. 6. The total fees received as at 14 June 2013 was $28,417.00284. 1. As appears from the document reproduced above the Solicitor did not hold a practising certificate between 20 August 2009 and 10 May 2010. The Council does not rely on any conduct which occurred during that period. He was however at other relevant times a principal of the law firm Dennis and Co and a 90% owner of the shares in Legal fund Pty Ltd which in turn held all the shares in DC Legal which acquired the practice of Dennis and Co from 1 July 2009. 2. It is unnecessary for us to provide greater detail of the facts than are set out in the agreed statement. Many involve breaches of Sections 254 and 255 of the Legal Profession Act. Those Sections Provide: 254 Certain trust money to be deposited in general trust account (1) Subject to section 258A, as soon as practicable after receiving trust money, a law practice must deposit the money in a general trust account of the practice unless: (a) the practice has a written direction by an appropriate person to deal with it otherwise than by depositing it in the account, or (b) the money is controlled money, or (c) the money is transit money, or (d) the money is the subject of a power given to the practice or an associate of the practice to deal with the money for or on behalf of another person. Maximum penalty: 100 penalty units. (2) Subject to section 258A, a law practice that has received money that is the subject of a written direction mentioned in subsection (1)(a) must deal with the money in accordance with the direction: (a) within the period (if any) specified in the direction, or (b) subject to paragraph (a), as soon as practicable after it is received. Maximum penalty: 100 penalty units. (3) The law practice must keep a written direction mentioned in subsection (1)(a) for the period prescribed by the regulations. Maximum penalty: 50 penalty units. (4) (Repealed) (5) A person is an appropriate person for the purposes of this section if the person is legally entitled to give the law practice directions in respect of dealings with the trust money. 255 Holding, disbursing and accounting for trust money (1) A law practice must: (a) hold trust money deposited in a general trust account of the practice exclusively for the person on whose behalf it is received, and (b) disburse the trust money only in accordance with a direction given by the person. Maximum penalty: 50 penalty units. (2) Subsection (1) applies subject to an order of a court of competent jurisdiction or as authorised by law. (3) The law practice must account for the trust money as required by the regulations. Maximum penalty: 50 penalty units. 1. Another admitted breach was of S660 of the Act: 660 Requirements in relation to complaint investigations (1) For the purpose of carrying out a complaint investigation in relation to an Australian lawyer, an investigator may, by notice served on the lawyer, require the lawyer to do any one or more of the following: (a) to produce, at a specified time and place, any specified document (or a copy of the document), (b) to provide written information on or before a specified date (verified by statutory declaration if the requirement so states), (c) to otherwise assist in, or co-operate with, the investigation of the complaint in a specified manner. (2) For the purpose of carrying out a complaint investigation in relation to an Australian lawyer, the investigator may, on production of evidence of his or her appointment, require any associate or former associate of a law practice of which the lawyer is or was an associate or any other person (including, for example, an ADI, auditor or liquidator but not including the lawyer) who has or has had control of documents relating to the affairs of the lawyer to give the investigator either or both of the following: (a) access to the documents relating to the affairs of the lawyer the investigator reasonably requires, (b) information relating to the affairs of the lawyer the investigator reasonably requires (verified by statutory declaration if the requirement so states). (3) A person who is subject to a requirement under subsection (1) or (2) must comply with the requirement. Maximum penalty: 50 penalty units. (4) A requirement imposed on a person under this section is to be notified in writing to the person and is to specify a reasonable time for compliance. (5) A person who is subject to a requirement under subsection (1) or (2) is not entitled to charge the investigator for doing anything in compliance with the requirement. 1. In addition to the Statement of Facts Ms Webster SC (who appeared with Mr Madigan for the Council) read the affidavits of Ms A-M Foord Sworn 3 March 2014 and 21 May 2015, and Ms L Moliterno 10 February 2014 and 21 May 2015. None of the deponents was required for cross examination, although it was agreed in effect that matters stated in documents annexed or exhibited to the affidavits were not to be treated as evidence of underlying facts except to the extent that they were consistent with the Statement of Agreed Facts. 2. Mr Johnson Counsel for the Solicitor relied on his reply filed 4 June 2014 and his affidavit of 21 May 2015. The Solicitor also gave oral evidence upon which he was cross examined by Ms Webster. 3. The unverified reply which addresses in turn each of the allegations in the Application is not particularly helpful in the sense that it is to a large extent inconsistent with the Statement of Agreed Facts. 4. In his affidavit however the solicitor gives some detail of his professional career. He states that he has not sought to renew his practising certificate in the current year. He also said that he is no longer a director of DC Legal Pty Ltd anor a shareholder although he acknowledged that this was a matter of dispute with the person recorded as holding the shares. Otherwise the affidavit as we read it provided no explanation for the wrong doing admitted in the Statement of Facts. 5. The Solicitor supplemented his affidavit with oral evidence and as we have said was cross examined. Although the Solicitor gave his evidence in a frank manner which we assess as that of an honest witness doing his best to assist the Tribunal nothing he said constituted an exculpatory explanation for his behaviour. 6. In his closing submissions Mr Johnson conceding that the Solicitor was in breach of his obligations regarding costs pointed out that no client had exercised the right to require an assessment and that the quantum of costs was in every case disclosed in advance. He submitted that what occurred did not amount to gross over charging and referred in that context to Brook v Reed [2011] EWCA CIV 331 where there is detailed analysis of the factors involving in determining the amount of professional costs properly payable. In that case the costs were payable to a trustee in bankruptcy and his solicitor but the principles discussed have wider application. 7. Mr Johnson accepted that persistent unsatisfactory professional conduct may amount to professional misconduct but contended that in this case the fact the Solicitor relied on others and the fact that there is no suggestion of ongoing breaches should be taken into account in the solicitors favour. 8. However the Statement of Agreed Facts reveals multiple breaches by the Solicitor of his professional obligations many of which are enshrined in Statute. The community would have particular concern about those breaches which involve a failure to give the utmost care and attention to the handling of trust money. In many of the instances mentioned in the Statement of Agreed Facts the Solicitor seems to have regarded with contempt the quite specific obligations created by Sections 254 and 255 of the Legal Profession Act and the provisions of the Act regards disclosure of costs. 9. We are satisfied that no finding is appropriate other than a finding that the Solicitor has been guilty of professional misconduct. We will however stand the matter over for further hearing as to the consequential orders which should be made and in order that directions can be given in respect of foreshadowed claims for compensation. 10. Finding and order 1. That the Solicitor is guilty of professional misconduct. 2. That this matter be listed for directions on 21 September 2015 at 9.30. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 21 January 2016 - Typographical errors DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 January 2016