De Freitas v EL-BAB
[2008] WASC 118
•23 JUNE 2008
DE FREITAS -v- EL-BAB [2008] WASC 118
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 118 | |
| Case No: | CIV:2400/2005 | 11 DECEMBER 2007, 22 APRIL 2008 | |
| Coram: | SIMMONDS J | 23/06/08 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | ANNA MARIE DE FREITAS SHERIF FATH EL-BAB |
Catchwords: | Mortgage- Statutory or inherent jurisdiction to expunge a registered mortgage from a certificate of title under the Transfer of Land Act 1893 (WA) in ex parte proceedings Deceased's estate Appointment of representative of estate where deceased died abroad |
Legislation: | Property Law Act 1969 (WA), s 55 Transfer of Land Act 1893 (WA), s 200 |
Case References: | Conlan v Registrar of Titles [2001] WASC 201 Sandgate Corporation Pty Ltd (in liq) v Ionnou Nominees Pty Ltd [2000] WASC 91 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
SHERIF FATH EL-BAB
Plaintiff
Catchwords:
Mortgage- Statutory or inherent jurisdiction to expunge a registered mortgage from a certificate of title under the Transfer of Land Act 1893 (WA) in ex parte proceedings
Deceased's estate - Appointment of representative of estate where deceased died abroad
Legislation:
Property Law Act 1969 (WA), s 55
Transfer of Land Act 1893 (WA), s 200
Result:
Application dismissed
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Mr E Carlose
Plaintiff : No appearance
Solicitors:
Plaintiff : E Carlose
Plaintiff : No appearance
Case(s) referred to in judgment(s):
Conlan v Registrar of Titles [2001] WASC 201
Sandgate Corporation Pty Ltd (in liq) v Ionnou Nominees Pty Ltd [2000] WASC 91
(Page 3)
- SIMMONDS J:
Introduction
1 This is an application for an order (in the original form of the proceedings) that the Registrar of Titles be directed to cancel the entry or memorandum in the register relating to a mortgage lodged by or on behalf of the defendant. The hearing was ex parte.
2 This application was filed on 1 December 2005 and has been adjourned off on a number of occasions.
3 As will become apparent, this application as framed encounters a considerable number of difficulties that ultimately call for it to be dismissed.
4 I begin these reasons by providing the background to the application. I then consider the law in relation to this case indicating why in my view this application is misconceived. I turn then to the history of the proceedings which have involved a number of adjournments of the hearing of the application. The final sections are my conclusions and my orders.
Background
5 The matter below is taken from two affidavits of the plaintiff in support of the present application, one sworn 18 January 2006 and the other sworn 11 September 2007, as well as affidavits of her solicitor, Mr Eapon Carlose.
6 From those affidavits and their annexures the following emerges. As this was an ex parte proceeding there has been no testing of the material thus set out. These are not findings for which any question of the application of res judicata or issue estoppel arises.
7 In 1977 the plaintiff first met the defendant. This was soon after the plaintiff's marriage had irretrievably broken down. In about that year the plaintiff purchased a share in a property in Fremantle (the First Property) that had previously been owned by her parents.
8 The plaintiff and the defendant became intimate, and they had a daughter, now aged 16. It appears the plaintiff also has had other children.
(Page 4)
9 At one point the defendant purchased the share of the plaintiff's father in the First Property, which was subsequently sold, at the defendant's insistence. The defendant told the plaintiff her share of the proceeds of sale, which the defendant held, would remain hers, and he would invest them for her.
10 In 1987 the plaintiff bought a vacant lot in North Lake (the Second Property), at the defendant's insistence. The two subsequently engaged builders to construct a small residence on a corner of the Second Property.
11 Later, in 1989 or thereabouts, the defendant had the Second Property subdivided. He told the plaintiff to sell him half of the Second Property, being a portion other than that on which the small residence had been built, for about $8,000 (that half being the Third Property). Subsequently he engaged builders to construct a residence on the Third Property.
12 The defendant then told the plaintiff to sell the half of the Second Property which she had retained, and to acquire from him the land being Lot 1 on Plan 14956 and being the whole of the land comprised in Certificate of Title Volume 1695 Folio 632 (the Fourth Property). The defendant arranged for the plaintiff to obtain a bank loan, for this purpose it would appear.
13 The defendant then told the plaintiff to sign a document. This was a mortgage, dated 21 February 1991, over the Fourth Property, to secure the principal sum of $120,000 repayable on demand after one year from the date of the loan, with interest at 10% per annum 'simple interest reducible monthly' (the Mortgage).
14 The plaintiff said, in an affidavit in District Court proceedings I return to shortly, that the defendant acknowledged 'he was providing the difference'. The plaintiff also said that she was induced to sign the mortgage by the defendant's assurance there was nothing for her to worry about, and that the Fourth Property was and would always be hers and that of her children in any event. She was further led to believe that the Fourth Property was being given to her: at no time did the defendant say that the monies if any he provided for the acquisition were a loan to her.
15 The mortgage was registered on the title to the Fourth Property as E573376 and appears to be a second mortgage. The first mortgage was to a bank, in the principal amount of $16,000.
16 In 2003 an action was commenced in the District Court by the defendant against the plaintiff, CIV 2867 of 2003 (the District Court
(Page 5)
- action). The solicitors for the plaintiff (the defendant in these proceedings) for at least part of the District Court action were Millsteed Grasso.
17 A copy of a statement of claim dated 17 February 2004 in the District Court action is an annexure to the affidavit of the solicitor for the plaintiff in these proceedings, Mr Eapon Carlose, sworn 1 December 2005. That statement of claim, after referring to among other things a demand on 4 November 2003 by the defendant for payment by the plaintiff, claims the principal sum of $120,000 due under the mortgage plus interest at 10% per annum from 21 February 1991 to judgment.
18 A copy of an amended defence in the District Court action dated 2 August 2004 is also an annexure to Mr Carlose's affidavit of 1 December 2005. The defence denies all of the allegations in the statement of claim and goes on to plead, among other matters, that if the defendant did sign the 'Deed of Mortgage referred to in the Statement of Claim', that at all material times
i) she was in a vulnerable position and in a position of special disadvantage,
ii) she acted under the undue influence of the Plaintiff,
iii) her signature was procured by the Plaintiff through false and/or misleading representations and promises and/or unconscionable conduct,
iv) the Plaintiff and her were in a de facto relationship with her, for a considerable period, performing household chores for the benefit of the Plaintiff and caring for and looking after him,
v) when she first met the Plaintiff, she had been lonely and depressed having gone through a recent marriage breakdown,
vi) the Plaintiff took unconscionable and undue advantage of her with promises he would care for and look after her and her children and handle and manage her finances for her benefit,
vii) she had limited knowledge of written and spoken English,
viii) she was not given an opportunity to, and did not, read the contents of the Deed, and neither was she aware, or made aware of the nature, extent and effects and implications of the Deed,
ix) the Plaintiff was and is a Muslim and imposed his religious beliefs and values, which required wives to be subservient to, and reliant and dependent on, their husbands,
(Page 6)
- x) she was subservient to, and reliant and dependent, on the Plaintiff,
xi) the Plaintiff had grossly inflated the true value of the property and/or the relevant amounts relating to the transaction,
xii) in respect of the Deed, she was told, or led to believe, by the Plaintiff that
a) there would be no adverse consequences or implications on her and no obligations, financial or otherwise, to the Plaintiff on her part and
b) the property in question was being gifted to her and would always be hers and her children's.
20 On 8 November 2005 on the application of the plaintiff the District Court action was dismissed. The solicitor for the plaintiff in these proceedings, Mr Carlose, had the conduct of her defence in those proceedings, and in his affidavit of 1 December 2005 in these proceedings he deposes that the grounds of dismissal were that ([3])
a) the Defendant died on 8 Oct 2004 …,
b) prior to 8 October 2004, there had been undue delay on the part of the Defendant in proceeding with the District Court action,
c) as of 8 Nov 2005, there had been no intervention in the District Court action by the relatives or next of kin or any Executor or Administrator of the Defendant's estate and
d) having regard to the legal and factual issues raised in the Defence, any attempt by the Executor(s) or Administrator(s) of the Defendant's estate to obtain judgment in the District Court action at a trial without the oral evidence of the Defendant will be doomed to failure.
21 I interpolate that I find the last point rather difficult to understand. The burden of proof on the matters raised by the plaintiff (the defendant in the District Court action) was on the plaintiff. Prior to the taking of evidence, and the making of findings on that evidence, it would seem
(Page 7)
- difficult for a conclusion like that attributed to the District Court to be arrived at. No question of res judicata or issue estoppel between the parties in relation to such matters would arise short of findings on them: see LexisNexis Australia, Cross on Evidence (13 June 2008) [5025]. I further note the application by the defendant in the District Court action (the plaintiff in these proceedings) to have the action dismissed was in form a chamber summons to dismiss the action for want of prosecution (dated 26 October 2005, for a hearing 8 November 2005).
22 In the circumstances, I consider the point made in d) above is not entitled to any significant weight in my deliberations.
These proceedings
23 These proceedings were commenced by originating summons dated and filed 1 December 2005. The originating summons indicated no appearance was required, and that it was intended to serve the originating summons on Millsteed Grasso and the Registrar of Titles. It will be remembered that the former were the solicitors of the defendant in at least part of the District Court action.
24 Later in December 2005 it appears that there was correspondence between Mr Carlose and the Registrar of Titles. This correspondence included the provision to the Registrar of a copy of an 'Amended Minute' which is not annexed to any of the affidavits before me. A result of that correspondence appears to be that a 'Minute of Substituted Order' dated 4 January 2006 but not as yet filed was prepared by Mr Carlose to replace the 'Amended Minute'. The minute of substituted order seeks the following orders:
1. the Mortgage E573376 to the abovenamed Defendant registered on 26 March 1991 on [the Fourth Property] be and is hereby discharged and
2. the Registrar of the Supreme Court be and is hereby authorised to execute, on behalf of the abovenamed Defendant, a discharge of the said mortgage in the appropriate registrable form.
25 At the hearing before me Mr Carlose indicated that he wished to have the originating summons treated as if it sought the orders in the minute of substituted order in place of the original orders sought by the originating summons. I gave him leave to so proceed.
(Page 8)
The law in relation to this matter
26 The originating summons as so amended does not indicate whether or not the orders or either of them are sought under the provisions of a statute.
27 Mr Carlose in his submissions to me referred to what he said was the inherent power of the court to order a discharge of a mortgage without the consent of the mortgagee and to authorise a person to execute a discharge of mortgage.
28 I was referred to Conlan v Registrar of Titles [2001] WASC 201 [352] - [353] (Owen J), although I consider the correct reference is to [355] - [356]. At the latter paragraphs his Honour noted the question ([355]) whether or not 'the court, in its inherent jurisdiction, has such a power', namely, ([354])
to order that a registered mortgagee discharge the mortgage other than in accordance with a pre-existing legal right or in circumstances where the interest was liable to be defeated at the instance of another claimant.
29 He did this after noting (at [354]) 'there is no express statutory authority' for the court to make such an order.
30 I was also referred to Sandgate Corporation Pty Ltd (in liq) v Ionnou Nominees Pty Ltd [2000] WASC 91 [48] - [49] (Steytler J), although I consider the correct reference is to [84]. There his Honour considered a related but not equivalent question, whether or not there was inherent jurisdiction to make orders for judicial sale of property under the Transfer of Land Act 1893 (WA) (TL Act) free of a registered mortgage of the sort provided for by Property Law Act 1969 (WA) s 55(2) (PL Act).
31 However, those authorities appear to me to indicate that they did not need to decide those respective questions. I was not referred to any other authority on them.
32 In Conlan [356] Owen J stated that as he could not recall any argument having been addressed to the question he had raised 'it ought to stand over to another day when it can be fully developed'.
33 In Sandgate the court did not need to decide the question because it was able to exercise its discretion under PL Act s 55 to order, at the instance of the registered proprietor, a sale of the mortgaged property, without satisfaction of the mortgage obligation, free of the mortgage. I
(Page 9)
- turn my attention to that provision, as counsel for the plaintiff, Mr Carlose, also relied upon it.
34 PL Act s 55 reads as follows:
Sale of mortgaged property in action for redemption or foreclosure
(1) A person entitled to redeem mortgaged property may have a judgment or order for sale instead of for redemption in an action brought by him either for redemption alone, or for sale alone, or for sale or redemption in the alternative.
(2) In an action, whether for foreclosure, or for redemption, or for sale, or for the raising and payment in any manner of mortgage money, the Court, on the request of the mortgagee, or of any person interested either in the mortgage money or in the right of redemption, and, notwithstanding that -
(a) any other person dissents; or
(b) the mortgagee or any person so interested does not appear in the action,
and without allowing any time for redemption or for payment of any mortgage money, may, if it thinks fit, direct a sale of the mortgaged property, on such terms, subject to subsection (3), as it thinks fit, including the deposit in Court of a reasonable sum fixed by the Court to meet the expenses of sale and to secure performance of the terms.
(3) In an action brought by a person interested in the right of redemption and seeking a sale, the Court may, on the application of any defendant, direct the plaintiff to give such security for costs as the Court thinks fit, and may give the conduct of the sale to any defendant, and may give such directions as it thinks fit respecting the costs of the defendants or any of them.
(4) In any case within this section the Court may, if it thinks fit, direct a sale without previously determining the priorities of encumbrances.
(5) This section applies to actions brought either before or after the coming into operation of this Act.
(6) In this section "mortgaged property" includes the estate or interest that a mortgagee would have had power to convey if the statutory power of sale were applicable.
(7) For the purpose of this section the Court may, in favour of a purchaser, make a vesting order conveying the mortgaged property,
- or appoint a person to do so, subject or not to any encumbrance, as the Court thinks fit; or, in the case of an equitable mortgage, may create and vest in the mortgagee a legal estate to enable him to carry out the sale in like manner as if the mortgage had been made by deed by way of legal mortgage.
35 From Sandgate,I note that the provision is applicable where a mortgagor of land under the TL Act before default seeks a sale of the mortgaged property without tender of the mortgage debt, at least where on such a sale the interest of the mortgagee (if any) in the property is to become an interest in the proceeds of sale: see Sandgate [1], [90]. However, the provision is applicable in such a case only where it would not defeat any right to foreclosure the mortgagee might have, as where the proceeds of sale would exceed the amount due under the mortgage and the mortgagee has indicated no interest in exercising any right of foreclosure: see Sandgate [83].
36 However, there is a discretion whether or not to order a sale, and as to the terms of the sale, even where the conditions in the previous paragraph are met: Sandgate [85].
37 It seems to me, however, that reliance on PL Act s 55 in this case is misconceived. It is evident the orders sought are not for sale of the Fourth Property. The minute of substituted order seeks the 'discharge' of the mortgage by extinguishing the mortgagee's interest. Further, by 'discharge' the plaintiff appears to mean the setting aside of the mortgage. That appearance is given by the grounds upon which Mr Carlose relied in his submissions before me, grounds which appear to be those set out in the amended defence in the District Court action above.
38 It seems to me that PL Act s 55 does not apply to a case where it is sought simply to expunge a registered mortgage from a title under the TL Act. The provision is for orders for sale. Discretionary considerations under that provision in relation to whether or not to order such a sale, or to impose conditions on the application of the proceeds, would not seem to enter into the making of the orders sought. I was not referred to any authority which would indicate that the provision might be utilised to extinguish the mortgagee's interest as opposed to having the interest attach to the proceeds of sale.
39 Mr Carlose at the hearing stressed that his reliance on Sandgate and PL Act s 55 was only for the analogy they offered. He appeared to submit that that analogy was one that should inform the exercise of the court's inherent jurisdiction to make the orders he sought. I consider that
(Page 11)
- argument after considering another statutory provision referred to in argument before me.
40 It appears that there is statutory authority to make orders to the effect if not in the terms of those the plaintiff seeks in TL Act s 200 which reads as follows:
Upon the recovery of any land estate or interest by any proceeding at law or in equity from the person registered as proprietor thereof it shall be lawful for the court or a judge in any case in which such proceeding is not herein expressly barred to direct the Registrar to cancel any certificate of title or instrument or any entry or memorandum in the Register relating to such land estate or interest and to substitute such certificate of title or entry as the circumstances of the case may require; and the Registrar shall give effect to such order.
41 However, apart from any other matters to do with the operation of this section, it will be noted that that provision contemplates 'recovery' by other proceedings of the interest to which the entry in the register relates - here registration of the mortgage. Mr Carlose explained at the hearing before me that that provision was a source of the original order in his originating summons. However, Mr Carlose said he had obtained advice from the office of the Registrar of Titles that no such orders could be made, at least unless the Registrar were joined in the proceedings. Mr Carlose before me relied heavily on that advice. Whether or not s 200 would have been authority for the orders Mr Carlose first sought, subject to the joinder of the Registrar in the proceedings, the provision offers no support for proceedings being brought simply to obtain the orders, without other proceedings being brought of the sorts referred to.
42 However, it may be that there is inherent jurisdiction to make the orders sought, although I note the uncertainty on the point on the authorities cited above.
43 But it is not evident to me that, if any such jurisdiction existed, it should be exercised in this case. There has been at best an attempt to serve the former solicitors of the defendant. While the defendant was alive, there was an action to enforce the mortgage, albeit one that appears not to have been prosecuted sufficiently to avoid its dismissal. While that lack of prosecution may go to qualify the weight I should place on the taking of that action, I do not consider that it goes to drain that conduct of any force in my deliberations. Nor is there a representative of the defendant's estate to take a position with respect to any of the matters before me.
(Page 12)
44 True it is that there is the following statement in the affidavit of the plaintiff sworn on 11 September 2007 in these proceedings ([3]):
Since the death of the Defendant to date, I have not received any notification whatsoever
(a) of any application for letters of administration or probate of his estate or
(b) of any interest on the part of his relatives in this action or the subject property.
45 At the hearing on 11 December 2007 I was referred to an affidavit of the plaintiff sworn 11 December 2007, handed up at the hearing with the usual undertaking by Mr Carlose as an officer of the court to have it filed. However, I note it had not been filed as at the date of the finalisation of these reasons.
46 The plaintiff's affidavit of 11 December 2007 is very short, and in material part ([2] and [3]) is as follows:
2. I have previously, soon after the death of the Defendant, made an exhaustive search of my home and appropriate enquiries of his relatives. To the best of my knowledge and belief, the Defendant died intestate.
3. Further, apart from his personal belongings, the Defendant had no assets or property in Perth. During his period of cohabitation with me, the Defendant frequently travelled overseas. He never considered Australia as his home.
47 The second sentence of [2] is difficult to square with the presence on the file in this matter of what appears to be a will of the defendant, to which I return below. Indeed at the hearing before me of 22 April 2008 Mr Carlose began to address me on a document he said was another testamentary instrument, being a will dated 18 April 1989 he had obtained he said from a family friend. However, this document, whatever its other features might have been, was unsigned, and I do not go further into it.
48 At the hearing on 11 December 2007, I was told that the defendant had only had intermittent contact with this jurisdiction, although I note that he had at least the contact in the transactions with or concerning various properties in this jurisdiction I have described. I was also told the defendant had no relatives in this jurisdiction, although it was not made clear to me whether or not this included his daughter by the plaintiff previously referred to. Some but not all of these matters emerge from the
(Page 13)
- affidavit of 11 December 2007 [3]; there appears to be no other evidence before me as to them.
49 However, in any event the matters referred to appear to me to be insufficient to address the concern that an asset of the estate of some possible value has not been and is not being addressed for the benefit of all of those interested in that estate, including its creditors.
The adjournments of this matter by me
50 In those circumstances, at the hearing on 11 December 2007, it seemed to me that on one view the present action was misconceived and should be dismissed. Such dismissal, it seemed to me then, would however be regrettable as it had taken almost two years to reach this point. It was evident from the file, however, that at a number of hearings difficulties with these proceedings of at least some of the sorts I have referred to had been drawn to Mr Carlose's attention by other officers of the court. I refer in particular to the hearing before Miller J (as he then was) of this court on 11 April 2006 (see especially ts 3 - 4). At that hearing, an order was made for a judge's special appointment to be held on a date to be fixed that might address the difficulties then identified. For reasons having to do with the collection of information from the defendant's relatives by the plaintiff, personal difficulties affecting Mr Carlose and difficulties for the plaintiff in securing other legal representation, no such hearing was held until the present ones before me.
51 At the same time, it appeared to me that an action for the setting aside of the mortgage, such as on one or more of the grounds set out in the amended defence in the District Court action above, might be commenced, at least after either probate of any will of the defendant or letters of administration of his estate were granted. Furthermore, it was possible the present proceedings might be continued with that representative as a defendant, although I was yet to be convinced on that account.
52 It further appeared to me that the plaintiff herself might be in a position to apply for such grant. I note again that there is on the file in these proceedings what purports to be a will of the defendant which appears to be in proper form and which names the plaintiff as one of the two executors. However, it was not clear how the will had made its way to the file, and Mr Carlose was unaware of it, even although he had previously inspected the file. I indicated I had no objection to him inspecting the file again, in accordance with the court's normal processes.
(Page 14)
- However, I was not making any order to that effect, although he might wish to return to me for that purpose.
53 At the hearing I further noted that the plaintiff might herself be in a position to apply for the grant of letters of administration on an intestacy: see Administration Act 1903 (WA) s 25 read with s 14.
54 In the circumstances, I concluded, after rehearsing with Mr Carlose at the hearing on 11 December 2007 the matters I have just referred to, that the present application should be adjourned to come back before me early in 2008. This would permit Mr Carlose to inquire into the possibilities for securing a representative for the estate and to consider whether or not the present action might be suitably adapted to proceedings to which the representative was a party, or instead the proceedings discontinued and fresh ones instituted. I stressed that if it was sought to continue the present proceedings, I might still determine to dismiss them.
55 I also indicated the transcript of that day should be available for that hearing to enable the presiding judicial officer (whom I expected to be myself) to move the matter forward.
56 I adjourned the proceedings accordingly.
57 Subsequently, by arrangement with Mr Carlose, the matter was listed for hearing on 29 January 2008. However, later Mr Carlose made my chambers aware that he was not in a position to appear and make submissions at that hearing, and it was vacated administratively.
58 On 22 February 2008 Mr Carlose in communications with my chambers indicated (according to a file note of that date):
• he had obtained a copy of 'the will',
• his client was trying to get hold of the executor of the will,
• there were two beneficiaries of the will, a brother in Queensland and a sister overseas,
• Mr Carlose's difficulties with the health of his daughter meant he had not been able adequately to serve his client,
• he had suggested to his client she obtain alternative representation, but she could not afford the greater fees involved, and
• two weeks should suffice to resolve some at least of these issues.
59 Subsequently the matter was listed for the hearing on 22 April 2008.
(Page 15)
60 In my view Mr Carlose had ample opportunity to pursue inquiries to address the issues here. In the event at the hearing on 22 April 2008 he repeated the arguments he had advanced at the hearing on 11 December 2007. He did not advance any other arguments.
My conclusions
61 In my view these proceedings ought to be dismissed. I have already indicated the reasons for my view that none of the suggested statutory bases support the maintenance of those proceedings, and why resort to the inherent jurisdiction of the court should be considered unavailing.
Orders
62 Accordingly, I would order these proceedings be dismissed.
63 However, I should not conclude these reasons without referring to two matters.
64 One is my preliminary view of how the difficulty underlying these proceedings might be addressed. That difficulty is the lack of a means to provide all of the interested parties in respect of mortgage E573376 on the Fourth Property with an opportunity to be before this court to be heard with respect to that security interest.
65 My preliminary view is that the matter is one of arranging for the appointment of a personal representative for the estate of the defendant. I have already referred briefly to one way of addressing this matter, which might involve the plaintiff applying for probate of the will or letters of administration on an intestacy.
66 Another way might be to have the daughter of the plaintiff, who as I understand it might, apart from the plaintiff herself, be the only person resident in this state entitled in distribution to the estate of the defendant if he died intestate, to apply for administration of his estate: see Administration Act 1903 (WA) s 25 read with s 14.
67 In any application for the grant of letters of administration on an intestacy, whether by the plaintiff or the daughter, the court's attention would of course need be drawn to the will or any other testamentary instrument known to the applicant, the effectiveness of which would of course need to be considered.
68 The other matter to which I should refer is the position in which Mr Carlose, with commendable frankness, indicated he found himself in
(Page 16)
- these proceedings, at least in recent times. That position was one of not being able to discharge the responsibilities of his practice as he would wish by reason of his personal circumstances. To the extent that those circumstances placed him, and continue to have him, in a position in which he is unable to discharge those responsibilities properly (a position which the recent history of these proceedings as I have described it may indeed indicate he is in), he is under a duty as a legal practitioner to make arrangements to cease his practice and to pass on his client service responsibilities to other legal practitioners who are not in such a position. I would strongly commend consideration of the latter course of action to Mr Carlose.
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