Council of the Law Society of NSW v Dzitars [2017] NSWCATOD 45

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of NSW v Dzitars [2017] NSWCATOD 45 Hearing dates: 16 January 2017 Date of orders: 28 March 2017 Decision date: 28 March 2017 Jurisdiction: Occupational Division Before: S Westgarth, Deputy President N Matkovich, Senior Member M Bolt, General Member Decision: The Tribunal having found the practitioner is guilty of professional misconduct orders that : (1) The respondent's name be removed from the roll of legal practitioners; and (2) The respondent pay the Council of the Law Society's costs as agreed or as assessed Catchwords: Professional misconduct under the Legal Profession Act and at common law Legislation Cited: Legal Profession Act 2004 Legal Profession Uniform Law Legal Profession Uniform Law Application Act 2014 Civil and Administrative Tribunal Act 2013 Cases Cited: Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 Council of the Law Society of NSW v Nicholls [2012] NSWADT 222 Council of the Law Society of New South Wales v Truong (No 2) [2015] NSWCATOD 79 Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) Tereze Vilhelmina Dzitars (Respondent) Representation: C Groenewegen, (Applicant) R Dzitars (Respondent) File Number(s): 1620222

reasons for decision 1. The Law Society of New South Wales (the applicant) has brought this application by which it seeks the following orders affecting the respondent: 1. The name of Tereze Vilhelmina Dzitars (the respondent) be removed from the Supreme Court roll; 2. Tereze Vilhelmina Dzitars pay the costs of the applicant; and 3. Tereze Vilhelmina Dzitars be subject to any other order as the Tribunal deems fit. 1. The application was filed on 16 September 2016. The grounds for the application state that the respondent is guilty of professional misconduct because: 1. She breached s 255 of the Legal Profession Act 2004 (LP Act) (Ground 1); and 2. She misappropriated entrusted funds (Ground 2). 1. A summary of the particulars providing the basis for Ground 1 is as follows: 1. Some time prior to 14 September 2009 Mr J Ozols retained the respondent and the respondent acted to prepare his will and power of attorney. The will made provision for gifts to named individuals and for the residuary estate to pass to a relative in Latvia. Mr Ozols died and probate of his will was granted by the Supreme Court appointing the respondent the sole executrix and trustee; 2. On or about 26 June 2013 the respondent deposited into the trust account maintained by the respondent a cheque for $964,764.23 and credited that sum to the estate of Mr Ozols trust ledger; 3. Some time prior to 17 December 2010 a Ms Bukavs retained the respondent to prepare her will. The will provided for gifts to named individuals and for the respondent to be her sole executrix and trustee; 4. After Ms Bukavs died, probate of her will was granted and the respondent became the sole executrix and trustee; 5. On or about 17 December 2013 the respondent caused the sum of $45,000.00 to be deposited into the trust account, being the deposit paid by purchasers of land owned by the estate of Ms Bukavs; 6. On or about 18 February 2014 the respondent caused the sum of $450,000.00 to be deposited into her trust account, being the proceeds of the settlement of the sale of Ms Bukavs' land; and 7. In breach of s 255 of the LP Act, the respondent, without authority, on dates shown in a schedule attached to the application drew trust account cheques or otherwise made withdrawals in the stated sums in favour of the persons detailed in the table attached to the application and identified as Schedule 1. 1. A summary of the particulars supporting Ground 2 is set out as follows: 1. The sum of unauthorised payments from the Ozols' estate is $202,279.34 less an amount for scale costs of the application for probate and reasonable costs for the administration of the estate; 2. The total of the unauthorised payments from the Bukavs' estate is $73,010.00; 3. In the circumstances described above, the respondent misappropriated $275,289.34 less an amount for scale costs of the application for probate and reasonable costs for the administration of the Ozols' estate; and 4. The sum misappropriated by the respondent for her personal expenses and use was $162,807.15. 1. Schedule 1 (being the attachment to the application referred to above) lists a number of trust account cheques drawn by the respondent during the period 29 June 2013 to 24 April 2014.