Dr Noone Director of Consumer Affairs Victoria v Kevin

[2011] VSC 479

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 01644 of 2011

DR CLAIRE NOONE, DIRECTOR OF CONSUMER AFFAIRS VICTORIA	Plaintiff
v
HELEN KEVIN (also known as Helen Nguyen)	Defendant

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 September 2011
DATE OF RULING:	23 September 2011
CASE MAY BE CITED AS:	Dr Noone Director of Consumer Affairs Victoria v Kevin
MEDIUM NEUTRAL CITATION:	[2011] VSC 479

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CONSUMER PROTECTION – Licensed conveyancer – Appointment of receiver – Multiple breaches of Conveyancers Act 2006 (Vic) – Failure by conveyancer to account to clients.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms. C Button	Solicitor to the Director of Consumer Affairs Victoria
For the Defendant	No appearance

HIS HONOUR:

1. I am satisfied on the very thorough material that has been provided on behalf of the plaintiff, and presented by Ms Button, that there have been multiple and repeated breaches by the defendant of the provisions of the Conveyancers Act 2006, particularly those which relate to the maintenance and conduct of a trust account and to the proper accounting for moneys received from on behalf of the clients.  I agree with Ms Button that almost every provision, which relates to those matters, both in the Act and in the Regulations, has been contravened flagrantly by the defendant on multiple occasions.

1. They include:  receiving trust money without maintaining a general trust account as required by s 66(1); failing to maintain a general trust account in accordance with the Regulations, contrary to s 66(2); failing to notify the Director of the establishment of a trust account, s 67(1); failing to hold trust money in a general trust account exclusively for the person for whose benefit is received, contrary to s 69(1)(a); disbursing money from a trust account not in accordance with the directions of a client, s 69(1)(b); withdrawing the trust money otherwise and by cheque or electronic funds, contrary to s 70(1); withdrawing cash from a general trust account, contrary to s 70(1)(a); failing to pay or deliver transit money in accordance with the directions of the client, s 73(1); failing to account for transit moneys required by the Regulations, s 73(2); causing a deficiency in a trust account without reasonable excuse, s 78(1)(a); failing to deliver trust moneys, s 78(1)(b); and failing to keep permanent trust records, s.80.

1. The evidence discloses a number of disturbing dealings in relation to clients who trusted the defendant with their affairs and more importantly with their money.  On one occasion, in the case of Mr Low, she produced what appears to be a fake bank statement to satisfy the client that over $1.2 million was retained in a trust account on his behalf when that was not in fact the case.  On occasions she misled clients quite dishonestly as to what was happening in relation to the conveyancing transactions, it would seem in order to buy her time, so that she could obtain money from other clients to cover the funds which she had already misappropriated on behalf of those clients.

1. As a conveyancer she was derelict in a number of respects.  She failed to have transfers properly lodged.  She failed to pay stamp duty, that was entrusted to her, to the State Revenue Office.  She was asked on multiple occasions by clients for receipts.  She did not provide them.  She failed to deliver up the files to the manager after the manager was appointed.  She continued to conduct business as a conveyancer after her licence was suspended and the manager was appointed.  Those matters are an incomplete resume of the various derelictions by the defendant. 

1. As I remarked in the course of submissions by Ms Button, I am concerned about this matter, particularly as it would appear that clients, nine of them, have lost in excess of $2.2 million which was entrusted to the defendant.  The defendant was in a position of trust.  Each of the clients' affairs concerned the purchase or sale by them of their home which is the largest and most important transaction they will probably undertake.  I would be concerned if the matters relating to this case are not properly investigated by the police, as I am sure they will be.

1. But, for the present purposes, I am well satisfied that the Director was justified under s 110 of the Conveyancers Act in bringing this application for the appointment of a receiver. It is most certainly necessary for the protection of the interests of consumers, particularly because of the failures to account by the defendant under s 110(2)(c) and also because the defendant's licence has been cancelled or suspended under s 110(2)(b).

1. I am also satisfied it is necessary to grant the injunctions sought in the originating motion in order to prevent ongoing breaches by the defendant and to protect the public.