Council of the Law Society of NSW v Stuart [2019] NSWCATOD 108

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of NSW v Stuart [2019] NSWCATOD 108 Hearing dates: 31 May 2019 Date of orders: 05 July 2019 Decision date: 05 July 2019 Jurisdiction: Occupational Division Before: The Hon F Marks, Principal Member M Riordan, Senior Member B Thomson, General Member Decision: (1) Consequent upon the finding of professional misconduct which we have made we order that the name of the respondent be removed from the roll of lawyers maintained by the Supreme Court of NSW (2) The respondent is to pay the costs of the applicant assessed in default of agreement. Catchwords: Legal practitioner – breaches of trust account regulations – unauthorised withdrawal of client monies – breach of order of Supreme Court of NSW – admissions by respondent – finding of professional misconduct – name of respondent removed from the roll of lawyers – costs order made. Legislation Cited: Legal Profession Act 2004 Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Council of the Law Society of NSW (Applicant) Andrew Graham Stuart (Respondent) Representation: Council of the Law Society of NSW (Applicant) Williams the Law Firm (Respondent) File Number(s): 2019/0009805 Publication restriction: Nil

REASONS FOR DECISION

Background 1. In these proceedings the applicant Council of the Law Society of NSW seeks the making of disciplinary findings against the respondent legal practitioner, Andrew Graham Stuart, based on allegations of unsatisfactory professional conduct and professional misconduct. The applicant also seeks the making of certain protective orders against the respondent. 2. The proceedings are constituted by an Application. In conformity with the protocols adopted by this Tribunal we have anonymized parts of the application. As will be seen, the respondent admitted all of the allegations of misconduct made against him, although he did dispute the quantum of some of the amounts sought to be claimed by way of refund as set out in the Application. We reproduce relevant portions of the Application so anonymized hereunder; The Applicant seeks the following orders: 1. The Respondent's name be removed from the Roll. 2. The Respondent refund to the following Estates the following amounts, which the Respondent caused, without authority, to be paid to the Law Practice on account of commission: Estate Amount Estate of MJC $38,500 Estate of MCR $88,000 Estate of GAH $22,000 Estate of MLR $44,000 3. The Respondent refund to the following Estates the amounts that he caused, without authority, to be paid to the Law Practice on account of legal costs and disbursements: a. Estate of MW; b. Estate of MJC; c. Estate of MCR; d. Estate of CEW; e. Estate of BLC; f. Estate of WBR; g. Estate of GAH; and h. Estate of GGR. 4. The Respondent refund the sum of $60,000 to the Estate of MLR 5. The Respondent pays the costs of the Applicant as agreed or assessed. 6. Such further or other orders as the Tribunal deems fit. 2. GROUNDS FOR APPLICATION (INCLUDING PARTICULARS) The Respondent is guilty of professional misconduct because he: 1. misappropriated trust monies; 2. breached section 255 of the Legal Profession Act 2004; 3. breached section 263 of the Legal Profession Act 2004; 4. breached Rule 11 of the Revised Professional Conduct & Practice Rules 1995; 5. contrary to the terms of MLR's Will, without authority, made payments, in the sum of $30,000 from monies held on trust for (the Estate) to each of ABG and PM; and 6. breached an order made by the Supreme Court of New South Wales on 31 July 2013 in proceedings No. 2013/232141. PARTICULARS RELEVANT LEGISLATION Legal Profession Act 2004 Section 250 - Liability of principals of law practice (1) A provision of this Part or the regulations made for the purposes of this Part expressed as imposing an obligation on a law practice imposes the same obligation on the principals of the law practice jointly and severally, but discharge of the practice's obligation also discharges the corresponding obligation imposed on the principals. (2) References in this Part and the regulations made for the purposes of this Part to a law practice include references to the principals of the law practice. Section 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. Section 263 - Reporting certain irregularities and suspected irregularities (1) As soon as practicable after a legal practitioner associate of a law practice becomes aware that there is an irregularity in any of the practice's trust accounts or trust ledger accounts, the associate must give written notice of the irregularity to: (a) the Law Society Council, and (b) if a corresponding authority is responsible for the regulation of the accounts concerned—the corresponding authority. Maximum penalty: 50 penalty units. (2) If an Australian legal practitioner believes on reasonable grounds that there is an irregularity in connection with the receipt, recording or disbursement of any trust money received by a law practice of which the practitioner is not a legal practitioner associate, the practitioner must, as soon as practicable after forming the belief, give written notice of it to: (a) the Law Society Council, and (b) if a corresponding authority is responsible for the regulation of the accounts relating to the trust money concerned—the corresponding authority. Maximum penalty: 50 penalty units. (3) An Australian legal practitioner is not liable for any loss or damage suffered by another person as a result of the practitioner's compliance with subsection (1) or (2). Revised Professional Conduct & Practice Rules 1995 Rule 11 - A Practitioner Receiving a Benefit under a Will or other Instrument 11.1 A practitioner who receives instructions from a person to draw a Will appointing the practitioner an Executor must inform that person in writing before the client signs the Will: 11.1.1 of any entitlement of the practitioner to claim commission; 11.1.2 of the inclusion in the Will of any provision entitling the practitioner, or the practitioner's firm, to charge professional fees in relation to the administration of the Estate, and; 11.1.3 if the practitioner has an entitlement to claim commission, that the person could appoint as Executor a person who might make no claim for commission. 11.2. A practitioner who receives instructions from a person to: 11.2.1 draw a will under which the practitioner or an associate will, or may, receive a substantial benefit other than any proper entitlement to commission (if the practitioner is also to be appointed executor) and the reasonable professional fees of the practitioner or the practitioner's firm; or 11.2.2 draw any other instrument under which the practitioner or an associate will, or may, receive a substantial benefit in addition to the practitioner's reasonable remuneration, including that payable under a conditional costs agreement, must decline to act on those instructions and offer to refer the person, for advice, to another practitioner who is not an associate of the practitioner, unless the person instructing the practitioner is either: 11.2.3 a member of the practitioner's immediate family; or 11.2.4 a practitioner, or a member of the immediate family of a practitioner, who is a partner, employer, or employee, of the practitioner. 11.3 For the purposes of this rule: "substantial benefit" means a benefit which has a substantial value relative to the financial resources and assets of the person intending to bestow the benefit. Section 719 – Liability of principals (1) If a law practice contravenes, whether by act or omission, any provision of this Act or the regulations imposing an obligation on the practice, each principal of the practice is taken to have contravened the same provision, unless the principal establishes that: (a) the practice contravened the provision without the knowledge actual, imputed or constructive of the principal, or (b) the principal was not in a position to influence the conduct of the law practice in relation to its contravention of the provision, or (c) the principal, if in that position, used all due diligence to prevent the contravention by the practice. (2) Subsection (1) does not affect the liability of the law practice for the contravention. (3) A contravention of a requirement imposed on a law practice by this Act is capable of being unsatisfactory professional conduct or professional misconduct by a principal of the practice. DEFINITIONS Act means the Legal Profession Act 2004. Law Practice means the law practice known as Stuart & Mills. Office Account means the Law Practice's National Australia Bank bank account styled "AG Stuart T/A Stuart & Mills" with BSB 082 067 and account no. 51 873 5909, which was operated by the Law Practice at all material times. Respondent means Mr Andrew Graham Stuart. RPCP Rules means the Revised Professional Conduct & Practice Rules 1995. Trust Account means the Law Practice's National Australia Bank bank account styled "AG Stuart T/A Stuart & Mills" with BSB 082 067 and account no. 68 989 1180, which was operated by the Law Practice at all material times. BACKGROUND 1. The Respondent: (a) was admitted as a lawyer in New South Wales on 28 July 1972; (b) during the periods 1972 to 30 June 1988 and 9 January 1989 to 29 July 2013 held a New South Wales practising certificate; and (c) during the period 1 July 2006 to 29 July 2013 was the sole principal of the Law Practice. 2. On 29 July 2013, the Applicant suspended the Respondent's practising certificate and appointed Mr Richard Gerard Flynn, Solicitor, as Manager of the Law Practice pursuant to section 616 of the Act. 3. On 31 July 2013, the Supreme Court of New South Wales made an order appointing Mr John Ernest Mitchell as Receiver to the Law Practice. 4. Pursuant to sections 250 and 719 of the Act, as sole principal of the Law Practice, the Respondent was subject to the same obligations as the Law Practice, including but not limited to obligations under Part 3.1 of the Act. A. MW's Estate i. Grounds: a) The Respondent misappropriated trust money. b) The Respondent breached section 255 of the Act. 5. On 18 November 2010, MW died. 6. On 30 November 2010, the Respondent caused $11,000, on account of the Law Practice's professional costs and charges for acting on behalf of MW during her lifetime, to be withdrawn from the Trust Account from monies held on trust for (her) Estate and deposited into the Office Account. 7. Immediately subsequent to the deposit of the monies referred to in paragraph 6 above, the Office Account was overdrawn by $7,396.39. 8. On 10 February 2011, the Respondent caused $11,000, on account of the Law Practice's professional costs and charges for acting in relation to the administration of MW's Estate, to be withdrawn from the Trust Account from monies held on trust for (the estate) and deposited, with other monies, into the Office Account. 9. Immediately subsequent to the deposit of the monies referred to in paragraph 8 above, the Office Account was in credit by $3,086.38. 10. During the period 10 February 2011 to 15 February 2011, the Respondent caused monies to be withdrawn from the Office Account so that, as at 15 February 2011, the Office Account was overdrawn by $8,205.07. 11. On 17 March 2011, the Supreme Court of New South Wales granted probate in relation to MW's Will. 12. On 4 May 2011, the Respondent caused $11,000, on account of the Law Practice's costs for providing legal services in relation to the administration of MW's Estate, to be withdrawn from the Trust Account from monies held on trust for (the estate) and deposited, with other monies, into the Office Account. 13. Immediately subsequent to the deposit of the monies referred to in paragraph 12 above, the Office Account was in credit by $20,349.68. 14. During the period 4 May 2011 to 5 May 2011, the Respondent caused monies to be withdrawn from the Office Account so that, as at 5 May 2011, the Office Account was overdrawn by $7,602.19. 15. On 2 September 2011, the Respondent caused $2,200, on account of the Law Practice's costs for providing legal services in relation to the administration of MW's Estate, to be withdrawn from the Trust Account from monies held on trust for (the estate) and deposited, with other monies, into the Office Account. 16. Immediately subsequent to the deposit of the monies referred to in paragraph 15 above, the Office Account was overdrawn by $849.22. 17. On 14 September 2011, the Respondent caused $5,500, on account of the Law Practice's costs for providing legal services in relation to the administration of MW's Estate, to be withdrawn from the Trust Account from monies held on trust for (the estate) and deposited into the Office Account. 18. Immediately subsequent to the deposit of the monies referred to in paragraph 17 above, the Office Account was overdrawn by $21,134.46. 19. On 10 August 2012, the Respondent caused $8,800, on account of the Law Practice's costs for providing legal services in relation to the administration of MW's Estate, to be withdrawn from the Trust Account from monies held on trust for (the estate) and deposited into the Office Account. 20. Immediately subsequent to the deposit of the monies referred to in paragraph 19 above, the Office Account was overdrawn by $21,595.99. 21. On 12 July 2013: (a) settlement in relation to the sale of a property, which formed part of MW's Estate (Estate Property) took place; (b) the proceeds of the sale of the Estate Property were deposited into the Trust Account; and (c) the Respondent caused $20,600.58, on account of the Law Practice's professional costs and charges for acting on behalf of MW's Estate in relation to the sale of the Estate Property, to be withdrawn from the Trust Account from monies held on trust for (the estate) and deposited into the Office Account. 22. At no time was the Respondent authorised to cause any of the monies referred to in paragraphs 6, 8, 12, 15, 17, 19 or 21(c) above to be withdrawn from the Trust Account or paid to the Law Practice. 23. The probate application in relation to MW's Will does not disclose as a liability of the Estate any monies payable to the Law Practice on account of its acting on behalf of MW during her lifetime. 24. In the circumstances referred to in paragraphs 5 to 23 above, the Respondent misappropriated trust monies and breached section 255 of the Act. B. WBR's Estate i. Grounds: a) The Respondent misappropriated trust money. b) The Respondent breached section 255 of the Act. 25. On 22 January 2007, WBR died. 26. On the following dates, the Respondent caused the following amounts, on account of the Law Practice's costs for providing legal services in relation to the administration of (the estate), to be withdrawn from the Trust Account from monies held on trust for (the estate) and deposited into the Office Account: Date Amount 20 May 2009 $4,400 (deposited into the Office Account with other monies) 3 September 2009 $3,300 (deposited into the Office Account with other monies) 15 July 2010 $6,553.03 27. Each of the dates referred to in paragraph 26 above post-dated the date on which WBR's Estate had been fully administered. 28. Immediately subsequent to the following deposits referred to in paragraph 26 above, the Office Account was overdrawn by the following amounts: Deposit date Amount by which Office Account was overdrawn 20 May 2009 $24,163.32 3 September 2009 $17,036.09 15 July 2010 $12,822.97 29. At no time was the Respondent authorised to cause any of the monies referred to in paragraph 26 above to be withdrawn from the Trust Account or paid to the Law Practice. 30. In the circumstances referred to in paragraphs 25 to 29 above, the Respondent misappropriated trust monies and breached section 255 of the Act. C. MCR's Estate i. Grounds: a) The Respondent misappropriated trust money. b) The Respondent breached section 255 of the Act. 31. On 9 April 2012, MCR died. 32. On 13 April 2012, the Respondent caused $33,000, on account of the Law Practice's professional costs in relation to the legal services it provided MCR during her lifetime, to be withdrawn from the Trust Account from monies held on trust for (the estate) and deposited into the Office Account. 33. Immediately subsequent to the deposit of the monies referred to in paragraph 32 above, the Office Account was in credit by $11,674.29. 34. During the period 13 April 2012 to 16 April 2012, the Respondent caused monies to be withdrawn from the Office Account so that, as at 16 April 2012, the Office Account was overdrawn by $1,886.53. 35. On 17 July 2012, the Respondent caused $8,250, on account of the Law Practice's costs and disbursements for its providing legal services in relation to the administration of MCR's Estate, to be withdrawn from the Trust Account from monies held on trust for (the estate) and deposited into the Office Account. 36. Immediately subsequent to the deposit referred to in paragraph 35 above, the Office Account was overdrawn by $4,757.16. 37. On 18 April 2012, the Respondent caused $100,000.00 to be withdrawn from the Trust Account, from monies held on trust for (the estate), and paid to A Pty Ltd in part repayment of a debt that the Respondent owed to A Pty Ltd. 38. On 12 June 2012, the Respondent caused $44,000.00, on account of commission in relation to MCR's Estate, to be withdrawn from the Trust Account from monies held on trust for (the estate) and deposited into the Office Account. 39. Immediately subsequent to the deposit referred to in paragraph 38 above, the Office Account was in credit by $36,460.83. 40. During the period 12 June 2012 to 22 June 2012, the Respondent caused monies to be withdrawn from the Office Account so that, as at 22 June 2012, the Office Account was overdrawn by $3,997.55. 41. On 27 July 2012, the Supreme Court of New South Wales granted probate in relation to MCR's Will. 42. On 24 August 2012, the Respondent caused $11,000, on account of the Law Practice's costs and disbursements for its providing legal services in relation to the administration of MCR's Estate, to be withdrawn from the Trust Account from monies held on trust for (the estate) and deposited, with other monies, into the Office Account. 43. Immediately subsequent to the deposit referred to in paragraph 42 above, the Office Account was in credit by $23,786.26. 44. During the period 24 August 2012 to 14 September 2012, the Respondent caused monies to be withdrawn from the Office Account so that, as at 14 September 2012, the Office Account was overdrawn by $2,178.10. 45. On 10 October 2012, the Respondent caused $44,000.00, on account of commission in relation to MCR's Estate, to be withdrawn from the Trust Account from monies held on trust for (the estate) and deposited, with other monies, into the Office Account. 46. Immediately subsequent to the deposit referred to in paragraph 45 above, the Office Account was in credit by $21,236.44. 47. During the period 10 October 2012 to 17 October 2012, the Respondent caused monies to be withdrawn from the Office Account so that, as at 17 October 2012, the Office Account was overdrawn by $19,300.51. 48. At no time was the Respondent authorised to cause any of the monies referred to in: (a) paragraphs 32, 35, 38, 42 or 45 above to be withdrawn from the Trust Account or paid to the Law Practice; or (b) paragraph 37 above to be withdrawn from the Trust Account or paid to A Pty Ltd. 49. In the circumstances referred to in paragraphs 31 to 48 above, the Respondent misappropriated trust monies and breached section 255 of the Act. ii. Ground: The Respondent breached Rule 11 of the RPCP Rules 50. Around July 2009, the Respondent drafted MCR's Will. 51. Under clause 2 of MCR's Will, the Respondent was appointed as an Executor of the Will. 52. Clause 4 of MCR's Will stated: "IF ANY executor and/or trustee of this my Will shall be a Solicitor or engaged in any other professional or business capacity he may make all usual professional charges for work done by him or any partner of his or by any firm of which he is a member or to whom he is a consultant in relation to the administration of my estate or the trusts of this my Will or any conduct hereto in the same manner in all respects as if he were not an executor and/or trustee hereof but had been employed by the Trustees hereof to do such work and in addition nothing in this Will shall preclude any such Solicitor who is an Executor and/or Trustee from making application to the Court for commission in respect of my estate." 53. At no time did the Respondent inform MCR in writing: (a) of his entitlement, under MCR's Will, to claim commission; (b) of his or the Law Practice's entitlement, under the Will, to charge professional fees in relation to the administration of the Estate; or (c) that MCR could appoint as Executor a person who might make no claim for commission. 54. In the circumstances referred to in paragraphs 50 to 53 above, the Respondent breached Rule 11 of the RPCP Rules. D. MJC's Estate i. Grounds: a) The Respondent misappropriated trust money. b) The Respondent breached section 255 of the Act. 55. On 9 September 2010, MJC died. 56. On 10 February 2011, the Respondent caused $974.35, on account of the Law Practice's costs for providing legal services in relation to the administration of MJC's Estate, to be withdrawn from the Trust Account from monies held on trust for (the estate) and deposited, with other monies, into the Office Account. 57. Immediately subsequent to the deposit of the monies referred to in paragraph 56 above, the Office Account was in credit by $3,086.38. 58. During the period 10 February 2011 to 15 February 2011, the Respondent caused monies to be withdrawn from the Office Account so that, as at 15 February 2011, the Office Account was overdrawn by $8,205.07. 59. On 22 March 2011, the Supreme Court of New South Wales granted probate in relation to MJC's Will. 60. On the following dates, the Respondent caused the following amounts, on account of commission in relation to MJC's Estate, to be withdrawn from the Trust Account from monies held on trust for (her estate) and deposited, with other monies, into the Office Account: Date Amount 11 May 2011 $22,000 2 September 2011 $16,500 61. Immediately subsequent to the deposits referred to in paragraph 60 above, the Office Account was overdrawn by the following amounts: Date of deposit Amount by which Office Account overdrawn 11 May 2011 $2,258.70 2 September 2011 $849.22 62. At no time was the Respondent authorised to cause any of the monies referred to in paragraphs 56 or 60 above to be withdrawn from the Trust Account or paid to the Law Practice. 63. In the circumstances referred to in paragraphs 55 to 62 above, the Respondent misappropriated trust monies and breached section 255 of the Act. ii. Ground: The Respondent breached Rule 11 of the RPCP Rules 64. Around July 2009, the Respondent drafted MJC's Will. 65. Under clause 2 of MJC's Will, the Respondent was appointed as an Executor of the Will. 66. Clause 13 of MJC's Will stated: "IF ANY executor and/or trustee of this my Will shall be a Solicitor or engaged in any other professional or business capacity he may make all usual professional charges for work done by him or any partner of his or by any firm of which he is a member or to whom he is a consultant in relation to the administration of my estate or the trusts of this my Will or any conduct hereto in the same manner in all respects as if he were not an executor and/or trustee hereof but had been employed by the Trustees hereof to do such work and in addition nothing in this Will shall preclude any such Solicitor who is an Executor and/or Trustee from making application to the Court for commission in respect of my estate." 67. At no time did the Respondent inform MJC in writing: (a) of his entitlement, under the Will, to claim commission; (b) of his or the Law Practice's entitlement, under the Will, to charge professional fees in relation to the administration of the Estate; or (c) that MJC could appoint as Executor a person who might make no claim for commission. 68. In the circumstances referred to in paragraphs 64 to 67 above, the Respondent breached Rule 11 of the RPCP Rules. E. CEW's Estate i. Grounds: a) The Respondent misappropriated trust money. b) The Respondent breached section 255 of the Act. 69. On 12 October 2012, CEW died. 70. On 23 November 2012, the Respondent caused $4,981.75, on account of the Law Practice's costs and disbursements, to be withdrawn from the Trust Account, from monies held on trust for MGW's estate, and deposited into the Office Account. 71. Immediately subsequent to the deposit referred to in paragraph 70 above: (a) the monies held in the Trust Account on trust for MGW's Estate were overdrawn by $4,981.75; and (b) the Office Account was overdrawn by $10,532.50. 72. On or around 4 December 2012, the Respondent caused $17,018.25: (a) on account of the Law Practice's disbursements to be withdrawn from the Trust Account from monies held on trust for CEW's Estate and deposited into the Trust Account to be held on trust for MGW's Estate; and (b) withdrawn from the Trust Account from monies held on trust for MGW's Estate and deposited into the Office Account. 73. Immediately subsequent to the deposit referred to in paragraph 72(b) above, the monies held in the Trust Account on trust for MGW's Estate were overdrawn by $4,981.75. 74. On or around 17 December 2012, the Respondent caused $4,981.75, on account of the Law Practice's costs and disbursements, to be withdrawn from the Trust Account from monies held on trust for CEW's Estate and deposited into the Trust Account to be held on trust for MGW's Estate. 75. Immediately subsequent to the deposit referred to in paragraph 74 above, the trust ledger for MGW's Estate showed a nil balance. 76. On 27 February 2013, the Supreme Court of New South Wales granted probate in relation to CEW's Will. 77. At no time was the Respondent authorised to cause the monies referred to in paragraph 72 above to be withdrawn from the Trust Account from monies held on trust for CEW's Estate, deposited into the Trust Account to be held on trust for MGW's Estate or paid to the Law Practice. 78. At no time was the Respondent authorised to cause the monies referred to in paragraph 74 above to be withdrawn from the Trust Account from monies held on trust for CEW's Estate or deposited into the Trust Account to be held on trust for MGW's Estate. 79. In the circumstances referred to in paragraphs 69 to 78 above, the Respondent misappropriated trust monies and breached section 255 of the Act. F. GAH's Estate i. Grounds: a) The Respondent misappropriated trust money. b) The Respondent breached section 255 of the Act. 80. On 9 November 2008, GAH died. 81. On 15 February 2010, the Respondent caused $22,000, on account of commission in relation to GAH's Estate, to be withdrawn from the Trust Account from monies held in trust for GAH's Estate and deposited, with other monies, into the Office Account. 82. Immediately subsequent to the deposit referred to in paragraph 81 above, the Office Account was in credit by $15.67. 83. On 15 February 2010, the Respondent caused monies to be withdrawn from the Office Account so that, as at 15 February 2010, the Office Account was overdrawn by $2,727.03. 84. On 22 January 2009, the Respondent caused $9,626.65, on account of the Law Practice's professional costs and disbursements for providing legal services in relation to the administration of GAH's Estate, to be withdrawn from the Trust Account from monies held on trust for (her estate) and deposited, with other monies, into the Office Account. 85. Immediately subsequent to the deposit referred to in paragraph 84 above, the Office Account was in credit by $34,262.12. 86. On 22 January 2009, the Respondent caused monies to be withdrawn from the Office Account so that, as at 22 January 2009, the Office Account was overdrawn by $723.86. 87. On 27 January 2009, the Supreme Court of New South Wales granted probate in relation to GAH's Will. 88. At no time was the Respondent authorised to cause any of the monies referred to in paragraphs 81 or 84 above to be withdrawn from the Trust Account or paid to the Law Practice. 89. In the circumstances referred to in paragraphs 80 to 88 above, the Respondent misappropriated trust monies and breached section 255 of the Act. G. BLC's Estate i. Grounds: a) The Respondent misappropriated trust money. b) The Respondent breached section 255 of the Act. 90. On 9 June 2010, BLC died. 91. As at May 2011, BLC's Estate had been fully administered, except for $19,205.00 which was retained in a pension fund known as the A Pension Fund. 92. On the following dates, the Respondent caused the following amounts, on account of the Law Practice's costs and disbursements for providing legal services in relation to the administration of BLC's Estate, to be withdrawn from the Trust Account from monies held for (the estate) and deposited into the Office Account: Date Amount 26 August 2011 $2,200 (deposited into the Office Account with other monies) 24 August 2012 $4,400 (deposited into the Office Account with other monies) 1 November 2012 $3,300 93. Immediately subsequent to the following deposits referred to in paragraph 92 above, the Office Account was overdrawn by the following amounts: Date of deposit Amount by which Office Account was overdrawn 26 August 2011 $9,264.56 1 November 2012 $27,033.78 94. Immediately subsequent to the deposit dated 24 August 2012, referred to in paragraph 92 above, the Office Account was in credit by $23,786.26. 95. During the period 24 August 2012 to 14 September 2012, the Respondent caused monies to be withdrawn from the Office Account so that, as at 14 September 2012, the Office Account was overdrawn by $2,178.10. 96. At no time was the Respondent authorised to cause any of the monies referred to in paragraph 92 above to be withdrawn from the Trust Account or paid to the Law Practice. 97. In the circumstances referred to in paragraphs 90 to 96 above, the Respondent misappropriated trust monies and breached section 255 of the Act. H. MLR's Estate i. Grounds: a) The Respondent misappropriated trust money. b) The Respondent breached section 255 of the Act. 98. On 30 March 2007, MLR died. 99. On 13 July 2007, the Respondent caused $30,000, on account of commission in relation to MLR's Estate to be withdrawn from the Trust Account, from monies held in trust for MLR's Estate, and deposited into the Office Account. 100. Immediately subsequent to the deposit referred to in paragraph 99 above, the Office Account was in credit by $44,960.77. 101. During the period 13 July 2007 to 9 December 2008, the Respondent caused monies to be withdrawn from the Office Account so that, as at 9 December 2008, the Office Account was overdrawn by $21,884.76. 102. On 16 December 2008, the Respondent caused $16,500, on account of commission in relation to MLR's Estate, to be withdrawn from the Trust Account from monies held in trust for MLR's Estate and deposited, with other monies, into the Office Account. 103. Immediately subsequent to the deposit referred to in paragraph 102 above, the Office Account was overdrawn by $14,433.57. 104. At no time was the Respondent authorised to cause the monies referred to in paragraphs 99 or 102 above to be withdrawn from the Trust Account or paid to the Law Practice. 105. In the circumstances referred to in paragraphs 98 to 104 above, the Respondent misappropriated trust monies and breached section 255 of the Act. ii. Ground: Contrary to the terms of MLR's Will, the Respondent made payments without authority, in the sum of $30,000, from monies held on trust for MLR's Estate to each of ABG and PM. 106. MLR's Will specified a bequest made to each of ABG and PM in the sum of $50,000. 107. On or around the following dates, the Respondent caused the following amounts to be withdrawn from the Trust Account, from monies held in trust for MLR's Estate, and paid to the following persons: Date Amount Payee 5 September 2007 $5,000 ABG 27 September 2007 $75,000 $80,000 PM 108. At no time was the Respondent authorised to cause any amount exceeding $50,000, to be withdrawn from the Trust Account and paid to ABG or PM 109. In the circumstances referred to in paragraphs 106 to 108 above, the Respondent, without authority: (a) made a payment in the sum of $30,000 from monies held on trust for MLR's Estate to ABG; and (b) made a payment in the sum of $30,000 from monies held on trust for MLR's Estate to PM. I. AGR's Estate i. Grounds: a) The Respondent misappropriated trust money. b) The Respondent breached section 255 of the Act. 110. On 2 December 2010, AGR died. 111. On 23 February 2011, the Respondent caused $4,595.13, on account of the Law Practice's costs and disbursements for providing legal services in relation to the administration of AGR's Estate, to be withdrawn from the Trust Account from monies held on trust for (the estate) and deposited, with other monies, into the Office Account. 112. Immediately subsequent to the deposit referred to in paragraph 111 above, the Office Account was overdrawn by $7,751.53. 113. On 5 May 2011, the Supreme Court of New South Wales granted probate in relation to AGR's Will. 114. At no time was the Respondent authorised to cause the monies referred to in paragraph 111 above to be withdrawn from the Trust Account or paid to the Law Practice. 115. In the circumstances referred to in paragraphs 110 to 114 above, the Respondent misappropriated trust monies and breached section 255 of the Act. J. SDM i. Ground: The Respondent breached section 263 of the Act. 116. In 2012, the Respondent acted for SDM in relation to: (a) the grant of probate for the Will, and the administration of the Estate, of his: (i) late mother VJM; and (ii) late father WRM; and (b) Family Court proceedings unrelated to the Estates referred to in paragraph 116(a) above (Family Court Matter). 117. As at 25 July 2012, no monies were held in the Trust Account in relation to the Family Court Matter. 118. On 25 July 2012, the Respondent caused $255, on account of a filing fee in the Family Court Matter, to be withdrawn from the Trust Account and paid to the Collector of Public Monies. 119. After the withdrawal referred to in paragraph 118 above, the Respondent caused the Trust Account ledger for the Family Court matter to be amended so that it showed a balance of negative $255. 120. The Respondent was aware of the negative balance referred to in paragraph 119 above. 121. At no time did the Respondent report the negative balance referred to in paragraph 119 above to the Society. 122. In the circumstances referred to in paragraphs 116 to 121 above, the Respondent breached section 263 of the Act. K. JMW Estate i. Ground: The Respondent breached section 263 of the Act. 123. In 2010, the Solicitor acted on behalf of RW in relation to the grant of probate for the Will, and the administration of the Estate, of his: (a) late mother JMW; and (b) late father WEW. 124. On 9 September 2010, the Respondent caused the Trust Account ledger for JMW's Estate to be amended so that it showed a balance of negative $388,824.18. 125. The Respondent was aware of the negative balance referred to in paragraph 124 above. 126. At no time did the Respondent report the negative balance referred to in paragraph 124 above to the Society. 127. In the circumstances referred to in paragraphs 123 to 126 above, the Respondent breached section 263 of the Act. L. Breach of an order made by the Supreme Court of New South Wales on 31 July 2013 in proceedings No. 2013/232141 i. Ground: The Respondent breached Order 4 made by the Supreme Court of New South Wales on 31 July 2013 in proceedings No. 2013/232141. 128. On 31 July 2013, the Supreme Court of New South Wales in Proceedings No. 2013/232141 (Supreme Court Proceedings) made orders, including: "4. Until further Order the Defendant be restrained by himself and his servants or agents from removing, or causing or permitting to be removed, from the State of New South Wales, or selling, charging, mortgaging or otherwise dealing with or disposing of, or causing or permitting to be sold, charged, mortgaged or otherwise dealt with or disposed of, all or any of his assets within the State of New South Wales without first obtaining the leave of the Plaintiff or of the Court do so". 129. The Applicant was the defendant in the Supreme Court Proceedings. 130. On 9 January 2014, the Respondent MMV entered into an agreement (Mortgage Agreement) under which two of the Respondent's properties, located in Kensington, New South Wales were mortgaged. 131. At no time did the Respondent obtain leave from the Supreme Court of New South Wales or the Applicant to enter into the Mortgage Agreement. 132. In the circumstances referred to in paragraphs 128 to 131 above, the Respondent breached the order referred to in paragraph 128 above.