David Bruce Peart [1995] NSWLST 4

David Bruce Peart [1995] NSWLST 4

The solicitor's conduct in permitting an unqualified person to access trust moneys, failing to ensure the Heap/Ilepaten funds were held and disbursed according to instructions, and paying out Gaderu Holdings' trust money contrary to express conditions was serious, grave and weighty and amounted to professional misconduct; the Gaderu transaction also involved a wilful contravention of Section 61(1) of the Legal Profession Act 1987. The false certification in the practising certificate renewal was proved but, in the circumstances, amounted to unsatisfactory professional conduct rather than professional misconduct. The Dalton allegations were not proved to the Tribunal's comfortable...

Jurisdiction
Australia
Judgment Date
08 February 1995
Procedural Posture
Disciplinary Proceedings for Professional Misconduct and Unsatisfactory Professional Conduct / Judgment and Orders After Hearing
Outcome
Findings of professional misconduct and unsatisfactory professional conduct made; some allegations dismissed; restricted practising certificate regime and costs ordered.
Legal Topics
['trust Money' 'professional Misconduct' 'unsatisfactory Professional Conduct' 'practising Certificate' 'solicitor/client Costs']
['legal Profession Regulation' 'professional Discipline'] ['trust Money' 'professional Misconduct' 'unsatisfactory Professional Conduct' 'practising Certificate' 'solicitor/client Costs']

Case Brief

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Procedural Posture

Disciplinary Proceedings for Professional Misconduct and Unsatisfactory Professional Conduct / Judgment and Orders After Hearing

Legal Issues

  1. 1 ['Whether the solicitor improperly allowed Mr McKay to handle trust funds and failed to ensure money was paid into and controlled through his trust account.' 'Whether funds received from or for Ilepaten Pty Limited and Gaderu Holdings Pty. Limited were paid out contrary to the terms on which they were held.' 'Whether the solicitor wilfully contravened Section 61(1) of the Legal Profession Act 1987.' 'Whether the solicitor falsely certified in his 1991/1992 Practising Certificate renewal that he had not held or disbursed trust money or controlled money within the meaning of Section 61(8).' 'Whether allegations concerning Mr and Mrs Dalton, including taking security and instituting criminal proceedings, amounted to professional misconduct under the general law.']

Ratio Decidendi

The solicitor's conduct in permitting an unqualified person to access trust moneys, failing to ensure the Heap/Ilepaten funds were held and disbursed according to instructions, and paying out Gaderu Holdings' trust money contrary to express conditions was serious, grave and weighty and amounted to professional misconduct; the Gaderu transaction also involved a wilful contravention of Section 61(1) of the Legal Profession Act 1987. The false certification in the practising certificate renewal was proved but, in the circumstances, amounted to unsatisfactory professional conduct rather than professional misconduct. The Dalton allegations were not proved to the Tribunal's comfortable...

Court Disposition

Findings of professional misconduct and unsatisfactory professional conduct made; some allegations dismissed; restricted practising certificate regime and costs ordered.

Orders

  • ['A Practicing Certificate be not issued to the solicitor until 1 July 1995.' 'The solicitor, prior to the issue to him of a Practicing Certificate pursuant to Order 1, undertake and complete to a standard approved by the Council of the Law Society such course of further legal education pertaining to office...