Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Law Society of New South Wales v Manolakos [2018] NSWCATOD 54 Hearing dates: 14 March 2018 Date of orders: 14 March 2018 Decision date: 14 March 2018 Jurisdiction: Occupational Division Before: J O'Meally ADCJ (Principal Member) P Moran (Senior Member]) J Schwager (General Member) Decision: The Tribunal having found the Respondent guilty of professional misconduct orders that: 1. The Respondent be reprimanded 2. The Respondent be fined the sum of $500 3. The Respondent pay the costs of the Applicant of $4,500 Catchwords: PROFESSIONS AND TRADES - Solicitor - professional disciplinary proceedings - findings of professional misconduct - lodgement of caveat on title to client's property - no caveatable interest - orders for reprimand, fined and payment of costs Legislation Cited: Legal Profession Uniform Law Application Act 2014 Real Property Act 1900 Cases Cited: Rose v Nikolaidis [2004] NSWSC 1011 Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) Christine Manolakos (Respondent) Representation: Counsel: N Pierotti (Applicant) M Stevens (Respondent) Solicitors: Law Society of NSW (Applicant) Rigby & Klaus (Respondent) File Number(s): 2017/00169942 REASONS FOR DECISION 1. What these reasons for decision deal with 2. The proceedings were commenced by Application for Disciplinary Findings and Orders filed 6 June 2017. That Application was the subject of a Reply filed 31 July 2017 and the Tribunal has received - subsequent to the filing of the Reply - an Instrument of Consent under section 144 of the Legal Profession Uniform Law Application Act 2014 that Instrument having been signed by the solicitor for the Applicant and by the Respondent. 3. The Application and the Solicitor's response 4. The Application was brought under the Legal Profession Uniform Law (NSW); it being alleged by the Applicant ("the Law Society") that the Respondent ("the Solicitor") was guilty of professional misconduct in the lodgement by her of a caveat on the title of her client's property without there being a basis to do so. 5. Particulars of the grounds of the complaint set out in the Application were subsequently repeated in the Instrument of Consent which we deal with below. 6. The Solicitor, by her Reply, admitted the conduct particularised in the Application but denied that such conduct amounted to professional misconduct. In the subsequently filed Instrument of Consent however the Solicitor concedes professional misconduct. In further answer to the Application, the Solicitor details in her Reply communications between herself and her former client (being the person whose property was the subject of the lodgement of the caveat) as to the payment of legal fees for Family Court proceedings, the issuing of a costs agreement, the delivery of a judgment in the Family Court proceedings in which the claimant was a party, the client instructing other solicitors in the sale of properties, the lodgement by the Solicitor of a caveat on the title to one of those properties in Annandale, the subsequent withdrawal of the caveat, and the suffering by the Solicitor of ill health at the time in question. 7. The Solicitor consented to orders 2 and 3 sought in the Application, namely, that she be fined and that her practising certificate be suspended until she provided evidence to the Director of Professional Standards of the Law Society that she had withdrawn the Caveat. 8. Evidence relied upon and the Instrument of Consent 9. The Law Society relies upon an affidavit of Anne-Marie Foord sworn 5 June 2017. That was admitted without objection and marked Exhibit A1. The Solicitor tendered an affidavit of herself sworn 30 August 2017. That was admitted without objection and marked Exhibit R1. 10. Prior to the hearing the parties had entered into an Instrument of Consent under section 144 of the Legal Professional Uniform Law Application Act 2014. That Instrument, filed 23 February 2018 was tendered. 11. Consideration and Findings 12. The Tribunal has read and considered the affidavits of Ms Foord and of the Respondent. The Tribunal finds as proven the matters recorded as Statement of Facts annexed to the Instrument, namely: 1. The Solicitor acted for the client [defined in the Instrument to mean Letty Marie Grande Cayavan Macasieb] in Family Law proceedings ("the Proceedings"); 2. Under cover of a letter dated 24 February 2012 the Solicitor wrote to the client, in part, forwarding her Costs Agreement; 3. The costs agreement was not executed by the client; 4. The Family Law Proceedings concluded on 10 December 2013 with the making of Orders; 5. The Solicitor issued to the client six (6) Invoices for costs and disbursements. Those Invoices were issued between 5 June 2012 and 29 November 2013; 6. The client did not pay the Solicitor's Invoices; 7. On or about 24 August 2015 the Solicitor lodged a caveat on the client's property at Young Street Annandale in the State of New South Wales (the Land). The caveatable interest was said to arise from the client's failure to pay the Solicitor's unpaid Invoices; 8. The Solicitor had no caveatable interest in the land and should not have lodged the caveat on the land. 1. Agreed Fact 6, namely that the client did not pay the Solicitor's Invoices, requires further comment. The Tribunal was informed by Counsel for the Solicitor on the morning of the hearing that those costs have now been paid. 2. Section 74B(1) of the Real Property Act 1900 permits a person to lodge a caveat but only if that person claims a legal or equitable interest or estate in the land concerned. The mere owing of fees to a legal practitioner provides no valid legal or equitable interest to ground a caveat. [Rose v Nikolaidis [2004] NSW SC 1011] 3. The Tribunal is comfortably satisfied that a solicitor who lodges a caveat on land when he or she has no caveatable interest engages in professional misconduct. 4. Disciplinary Orders 5. The Tribunal makes orders 1 and 3 of the Instrumental of Consent. 6. The Tribunal has considered the further material produced at the hearing, namely the letter from Dr David Carpenter dated 8 August 2017, the reference from Dr Iboyan dated 29 August 2017, the reference of Geoffrey McDonald barrister dated 30 August 2017, the letter of apology of the Solicitor dated 8 September 2017, and the reference of Mark Lawson barrister dated 1 November 2017. 7. Having read those reports and references and the Solicitor's letter of apology the Tribunal makes order no 2 in the Instrument of Consent but reduces the fine to a sum of $500. 8. Orders 9. The Tribunal, having found the Respondent guilty of professional misconduct, orders that: 1. The Respondent be reprimanded 2. The Respondent be fined the sum of $500 3. The Respondent pay the costs of the Applicant agreed at $4,500 ******** 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 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: 20 April 2018