Law Society of New South Wales v Andrews
[2001] NSWADT 154
•09/18/2001
CITATION: Law Society of New South Wales -v- Andrews [2001] NSWADT 154 DIVISION: Legal Services Division PARTIES: APPLICANT
Council of the Law Society of New South Wales
RESPONDENT
Yvonne Eva AndrewsFILE NUMBER: 002024 HEARING DATES: 01/08/2001 SUBMISSIONS CLOSED: 08/01/2001 DATE OF DECISION:
09/18/2001BEFORE: Officer D QC - Judicial Member; Cox R - Member; O'Neill A - Member APPLICATION: Professional Misconduct - breach of s. 61 of the Legal Profession Act - Professional Misconduct - fail to keep accounts - Professional Misconduct - misappropriate trust moneys/moneys MATTER FOR DECISION: Principal matter LEGISLATION CITED: Legal Profession Act 1987 CASES CITED: Re Hodgekiss (1962) 79 WN (NSW) 340
Re Mayes and Legal Practitioners Act [1974] 1 NSWLR 19
Allinson v General Counsel of Medical Education and Registration [1894] 1 QB 750REPRESENTATION: APPLICANT
P Boyd, solicitor
RESPONDENT
No appearanceORDERS: 1 That the name of Yvonne Eva Andrews be removed from the roll of Legal Practitioners in NSW; 2 That Yvonne Eva Andrews pay the costs of the informnat of, and incidental to , these proceedings.
Background
1 Yvonne Eva Andrews [the Solicitor] was admitted as a solicitor in NSW on 23 December 1985. In response to various complaints, the Law Society appointed Jean Sayer, Chartered Accountant, on 3 August 1999 as investigator of Yvonne Andrews' practice under section 55 of the Legal Profession Act 1987 and as its Receiver on 3 December 1999. On 9 December 1999 Yvonne Andrews' application for a practising certificate was refused and Mr Andrew Brown was appointed manager of her practice.2 On 27 November 2000 the Council of the Law Society of NSW informed the Tribunal that, as a result of complaints made under part 10 of the Legal Profession Act 1987 , the Council claimed that Yvonne Andrews, while practising as a solicitor, was guilty of professional misconduct on the grounds that she:
· wilfully breached section 61 of the Act;
· willfully breached section 62 of the Act;
· misappropriated trust money.3 Yvonne Andrews neither attended nor was represented at the Tribunal hearing in Sydney on 1 August 2001. Although the practitioner had been represented at preliminary hearings on 12 February, 26 March and 7 May, her solicitors, Ward Maxwell, had advised on 25 July that as they no longer held instructions from Ms Andrews they would not be attending the hearing. The Tribunal was satisfied Yvonne Andrews had notice of the hearing.
Issues
- 4 To decide whether the Solicitor was guilty of professional misconduct the tribunal had to consider whether she 'wilfully contravened' sections 61, 62 of the Legal Profession Act 1987 [the Act].
5 Section 127(1) (c) of the Act refers to professional misconduct as including:
' conduct that is declared to be professional misconduct by any provision of this Act.'
6 The relevant subsections of section 61 and section 62, as at the time, provided that:
61(1) If a solicitor, in the course of practicing as a solicitor, receives money on behalf of another person, the solicitor shall:
- (a) hold the money exclusively for the other person; and
(b) ensure that subsection (2) and the regulations are complied with in relation to the money.
- shall, except where the person on whose behalf the money is received otherwise directs, be paid, within the prescribed time, to the credit of a general trust account at a bank in New South Wales and be held in accordance with such regulations as may be in force in relation to trust money;
.......................
and, in any case, shall be disbursed as directed by the person on whose behalf it is held.
62(1) A solicitor shall keep:
- (a) in the case of trust money (within the meaning of section 61)
- -accounting records; or
(3) Without limiting the generality of subsection (2), the accounting records referred to in subsection (1) shall, if the regulations so require, be kept in such manner as the regulations prescribe.
(4) A wilful contravention of subsection (1), (2) or (3) is professional misconduct.
Evidence
- 7 The Law Society's evidence is contained in the affidavit sworn by Jean Sayer on 11 August, 1997, filed on 30 November 2000; the affidavit sworn by Jean Sayer on 29 June 2001, filed on 5 July 2001; the affidavit sworn by Raymond John Collins on 27 November 2000, filed on 30 November 2000; and the affidavit sworn by Gerard Bent on 3 July 2001, filed on 5 July 2001. Jean Sayer gave evidence at the hearing.
8 On 25 November 1999 and on 1 February 2000 Jean Sayer reported to the Law Society the findings of her investigation into complaints about Yvonne Andrews' conduct as a solicitor in the handling of various mortgage advances made to certain clients: Antoun; Bent; Colbran; Pornsawasdee, Pornsawia and Talalak; Suljanovic; Walsh; Enkababyan and Alam.
9 Schedule One of the Information gives particulars of the ways in which it is alleged the Solicitor wilfully breached sections 61 and 62 of the Act and misappropriated trust monies in the cases of David John Antoun; Gerard Edward Bent and Christine Bent; Leslie and Alejandra Colbran; Pornsawasdee, Pornsawia and Talalak; Elvis and Ariana Suljanovic.
10 Mr Boyd, who appeared for the applicant, drew attention to the evidence indicating the Solicitor's modus operandi in these matters. In effect the Solicitor acted for clients in the purchase of property; she facilitated mortgage advances from the Colonial State Bank to be secured over such property; she overstated the purchase price and thereby obtained an amount in excess of that required to effect settlement. She directed that part or all of this excess be paid into accounts in which she had a personal interest and she failed to account to the clients for the money received on their behalf.
11 The relevant details of the transactions in these cases are as follows:
David John Antoun
a) Mr Antoun purchased a property at Bass Hill, which settled on 18 December 1998 for $230,000. He obtained an advance from Colonial State Bank of $270,000. The net amount not required for settlement was $37,749.
b) The excess was provided by the bank in the form of three cheques. One was drawn in favour of the St George Bank for $16,000 and later paid to an account in the name of: 'Y E Andrews and S Tulacz' - the names of the Solicitor and the Solicitor's mother Stella Tulacz. A second cheque, for the sum of $19,259, was drawn in favour of the Commonwealth Bank, Burwood, and later paid to an account in the name of 'Geoff Atkinson', a name used by the Solicitor's husband.
c) Mr Antoun did not authorise the deposit of these monies into the said accounts.
d) Mr Antoun purchased the property from Mrs Adeline Bateman who had granted Power of Attorney to her son, Geoffrey Reginald Bateman. There are copies of two different Transfer documents. On the one given to Mrs Bateman's solicitors Parker & Kissane, signed by Geoffrey Bateman, witnessed by" MJ Harper" and stamped "Solicitor-Casino" the consideration is in the amount of $230,000. The second Transfer document, given to the bank, indicated a purchase price of $338,000 and bore signatures "A Bateman" as transferor, " M.J. Harper" Solicitor Casino as witness and was signed on the transferee's behalf by "E.Willis". The signatures "M J Harper" on the two documents are clearly different. Mr Harper of Parker & Kissane wrote to Jean Sayer on 17 November 1999 to draw her attention to the incorrect amount of consideration on the bank's transfer document and the fact that the signatures on that document were neither that of Mr Harper nor that of Adelina Bateman, who, because of disability, was unable to sign documents.
e) The Colonial State Bank has not received the title documents to the property.
Gerard Edward Bent and Christine Bent
a) Mr and Mrs Bent purchased house at 5 Junee Close, Bossley Park, which settled on 24 December 1998 for $234,000
b) Mr and Mrs Bent obtained a mortgage advance of $271,000 from the Colonial State Bank. The finance was arranged one Marie de Roza of The Wealth Creation Business Centre of 130 Forest Rd Hurstville, who recommended the loan be arranged through 'a manager I know in the State bank'. In a letter of 19 November 1998, sent by Marie de Roza to Mr and Mrs Bent, there is reference to a "Mortgage Dispenser Program " designed to save them $200 000 in "interest off a standard 25 year mortgage".
c) In Mr Bent's statement to the police of 24 June 1999,which forms part of Annexure "B" to the report of Jean Sayers of 25 November 1999, he explained his understanding of the process of the purchase of his property. On page 3, para. 7, of the statement he quoted Marie de Roza as having told him that he "must use Yvonne Andrews [as his solicitor] otherwise the loan will not get through". Mr Bent said that on 20 November 1988 he had received a facsimile listing the breakdown of the loan and he observed that there would be an excess of $15,480 after all fees had been paid. This had been explained to him as being "to help with expenses" as part of the financial package.
d) The net amount not required for settlement was actually $22,519. The Colonial State Bank provided this amount in two cheques. One cheque, drawn in favour of the St George Bank for $10,519 was later paid into an account in the name of: 'Y E Andrews and S Tulacz' -the Solicitor and the Solicitor's mother. It was so deposited without the clients' authority. The second cheque for the sum of $12,000 was drawn in favour of St George Bank and later paid into an account in the name of Louise Rodriquez - the former name of Marie de Roza, also known as Maria de/da Roza of The Wealth Creation Business Centre. This amount was in excess of any amount owed by Mr and Mrs Bent to this business and was deposited without their consent.
e) Mr Bent stated that he and his wife had made many enquiries about the excess amount that they believed to be $15,480. They asked for a list of the disbursements for the loan. He said that both the Solicitor and Marie de Roza were quite evasive, each deflecting responsibility for his concerns to the other. The Solicitor told them that the cheques to St George were 'for the vendor'.
f) Mr Bent had also drawn attention to the fact that the title to the property had not been transferred in favour of him and his wife.
g) Mr Bent stated to police that he and his wife had signed a blank form for the bank loan. Marie de Roza then completed it. He noted that the copy of the form included incorrect details about his financial circumstances. It was indicated in the assets column that he had a Community First Credit Union account containing $51,200. Mr Bent claimed that this was false and that he 'never had a Credit Union account'. Further in the assets column it states: 'ANZ $43,000'. Again, Mr Bent stated that this was false - he had never had a Credit Union account and his ANZ saving account was only a 'couple of hundred dollars' not $42,437 as shown on a statement purportedly on ANZ letterhead.
Leslie and Alejandra Colbran
a) Mr and Mrs Colbran purchased a property at 34 Smiths Avenue, Cabramatta, which was settled on 22 December 1998 for $184,950.
b) They received a mortgage advance from the Colonial State Bank for $231 000. The Wealth Creation Business Centre made arrangements for the loan.
c) The net amount not required for settlement was $44,919. This excess sum was provided by the Colonial State Bank in a cheque, drawn in favour of the Westpac Bank, which was later paid into an account in the name of "George Adams" at its Parramatta branch. George Adams was, at one stage, the name of the Solicitor's husband.
d) This deposit was made without the authority of Mr and Mrs Colbran.
e) The Solicitor's Advice and Undertaking as to settlement, dated 22 December 1998 and sent to the Bank's law stationers, Burkhart & Co, indicates that cheques were to be collected by " E Willis" as solicitor for the purchasers. Transmission of this Advice was through the facsimile of Yvonne Andrews [9744 3688]. Details of the cheques to be issued at settlement were provided on 21 December on the letterhead of Willis & Co also via the facsimile of Yvonne Andrews [9744 3688]. No firm of solicitors of the name Willis & Co existed, nor was there any relevant solicitor "E Willis". [see para. 13 below]
f) The Transfer document copied to Burkhart & Co, showing a purchase price of $289,000, has not been signed by the transferor - it has been signed on behalf of the transferee by "E Willis".
Mr Pornsawasdee, Ms Pornsawas and Ms Talalak
a) Mr Pornsawasdee, Ms Pornsawas and Ms Talalak purchased a property at Bardwell Park which settled on 26 February 1999 for $262,000.
b) On the basis of information that the purchase price was $366,000.they obtained a mortgage advance from the Colonial State Bank of $292 000.
c) Although the Solicitor for the purchaser in the copy of the Contract for Sale given to the bank was said to be Vladimir Gadzik of Beecroft, all correspondence about the purchase was directed to Yvonne Andrews by the vendor's solicitor.
d) The transfer executed by the vendor showed a consideration of $262,000. The stamped transfer given to the Colonial State Bank on 9 March 1999 by "G Adams & Assoc." of 7/150 Canterbury Rd Bankstown 2200 and signed by "G Adams" shows the incorrect sale price of $366,000 . Mr Adams is neither a solicitor or a licensed conveyancer as stated on the document. The name is the same as that of the Solicitor's husband.
e) A cheque for the net amount not required for settlement- $26,674 - was, on 24 February 1999, at the request of Mr G Adams of "Adams & Associates", made in favour of the CTB Ltd. Bank and later paid to a Commonwealth Bank account in the name of "Geoff Atkinson" - again a name used by the Solicitor's husband. It was so deposited without the clients' authority.
Elvis and Ariana Suljanovic
a) The Solicitor acted for Mr and Mrs Suljanovic in the purchase of a property from Robert and Jennifer Gibbs at 1/1 Pitt St Parramatta, which was settled on 22 December 1998 for $121,000.
b) Yvonne Andrews obtained from the Colonial State Bank a mortgage advance of $161,000 on behalf of Mr and Mrs Suljanovic. This loan amount clearly exceeded the purchase price of the property.
c) The statement supplied to the Colonial State Bank in support of the loan, purportedly on the letterhead of the St George Bank, indicated that Mr Suljanovic had a balance of $31,840.79 in an account at the Liverpool branch. The Colonial State Bank was also provided with a copy of a statement relating to an account of Adriana Suljanovic kept with the Parramatta branch of the ANZ Bank with a credit balance of $25,265.33. Mr Suljanovic denied that he or his wife ever had such accounts at St George or at the ANZ Bank. On 3 December 1999 St George Bank advised that the number on the statement was not a true account number for the Bank.
d) The unstamped Contract for Sale obtained from the Solicitors for the vendor, Coleman & Greig indicates the correct sale price as $121,000 and the purchaser's solicitor as Yvonne Andrews.
e) A different copy of the Contract for Sale was submitted to the bank through the facsimile of Yvonne Andrews [9744 3088] on 22 December 1998. It identifies the Solicitor for the purchaser as Vladimir Gadzik of Beecroft and the sale price incorrectly as $208,000. Mr Gadzik later told Jean Sayer that he did not receive any instructions, had no contact with the purchasers and had no knowledge of the conveyance.
f) The stamped Transfer obtained by Jean Sayer shows a purchase price of $210,000, and is signed by 'E Willis' for the transferee and 'Bruce Kuyvar' as witness for the transferors. This appears to be the same 'E Willis' as in the Colbran transaction. The correct name and signature of Mr Keyvar and the vendors Mr and Mrs Gibbs are on an unstamped transfer. Jean Sayer noted little similarity of the signatures on the two documents.
g) A cheque for the net amount not required for settlement- $43,655 - was made payable to the Commonwealth Bank and later paid to "Geoff Atkinson" at the Burwood Branch. Mr Suljanovic advised Jean Sayer that he did not authorise that payment and he did not know a person of that name. Again, that is a name used by the Solicitor's husband.
h) Mr Suljanovic made several requests to the Solicitor to provide a statement of his accounts. In January 1999 he was told that the balance - $14,387 - had been deposited into his account at Liverpool.
i) Information from the Land Titles Office shows that the property is still registered in the name of the vendors.
Generally
- 12 'George Adams', 'G Adams' and 'Geoff Atkinson' are names that were used by the Solicitor's husband. Jean Sayer found that 'George Adrian Andrews', the husband of the Solicitor, changed his name by deed poll on 15 November 1999 to 'George Adrian Adams'. His wife Yvonne Andrews witnessed his signature on the document, completed and lodged the forms. George Adams later reverted to his original name, 'George Kalutczyk'. Withdrawal forms for accounts in these names were frequently written in the hand of Yvonne Andrews. Her handwriting is on the application for a MasterCard for 'Geoff Atkinson' at PO Box 154 Parramatta. The bank accounts of 'Geoff Atkinson' and 'George Adams' both give their address as PO Box 577 Rockdale 2216. This is also the address of Southern Star Mail Order whose owner is registered as 'Geoff Atkinson'.
13 Jean Sayer reported and provided copies of documents on the letterhead of Willis & Co Conveyancers of Suite 3, 130 Hudson St Hurstville sent from the offices of Yvonne Andrews - facsimile number [9744 3688 ] in relation to the purchases of Antoun, Walsh, Colbran and Suljanovic. A facsimile from Willis & Co was sent to the State Bank setting out the details of cheques to be drawn on settlement in the cases of Colbran, Walsh and Alam. Several of these items were signed 'E Willis'. Jean Sayer's investigation found no firm of solicitors nor any licensed conveyancer practising under the name of Willis & Co and no registration of a business in that name. She identified a solicitor by the name of Elizabeth Willis who provided a specimen of her signature and a statutory declaration that she had no knowledge of the matters concerned or of the firm Willis & Co.
Findings
- 14 The tribunal accepts the above unchallenged evidence as set out in detailed reports of Jean Sayer.
15 Yvonne Andrews repeatedly gave false information to lending institutions by overstating the price of properties to be purchased on behalf of her clients, in particular: David John Antoun, Gerard Edward Bent, Pornsawasdee et al, Lesley and Alejandro Colbran, Elvis and Ariana Suljanovic.
16 The method used by the Solicitor to achieve this subterfuge involved duplicating Contracts for Sale and Transfer documentation; altering details including the amount of consideration and the names of the Solicitors for the purchasers and signatures of witnesses. The solicitor repeatedly signed the documents containing the correct details while providing on the duplicate documents incorrect information and the signatures of solicitors who did not participate in the transactions (for example: Vladimir Gadzik who denied being involved) or who were bogus (E. Willis, Willis & Co).
17 In the case of Antoun the signatures of Mr Harper and Mrs Bateman are forgeries. In Suljanovic there are inconsistent signatures of vendors and witnesses between the original and duplicate Contract for Sale and Transfer documents.
18 The Solicitor provided false information to the Colonial State Bank to secure mortgage advances.
19 The Solicitor failed to keep appropriate records of the transactions and was unable to provide any account to Jean Sayer. Jean Sayer could not locate any record of the transactions. All her information and copies of documents were obtained from third parties. The Solicitor failed to give proper account to clients Antoun and Bent of the funds held in trust for them.
20 The Solicitor failed to account to her clients for the money in excess of that required to settle the transactions. Without her clients' authority these moneys were deposited into various accounts in which the clients had no interest.
21 The Solicitor's husband, George Andrews, used a number of similar names: George Adrian Andrews, George Adams, Geoff Atkinson, G. Atkinson, Adams and Associates and George Kalutczyk, his birth name.
22 The Solicitor's husband was the principal beneficiary of excess funds from Pornsawasdee et al., Colbran, Suljanovic and Antoun, receiving cheques in the name of "Adams" and "Atkinson" during the period December 1998 to February 1999 to the value of more than $170,000.
23 The Solicitor had an association with The Wealth Creation Business Centre run by Marie/Maria de/da Roza, also known as Louise Rodriguez, a beneficiary of a cheque for $12,000 from the trust money of Mr and Mrs Bent. De Roza recommended the Solicitor and suggested she was essential to obtaining a mortgage from the Colonial State Bank for Mr and Mrs Bent.
24 The Solicitor received, jointly with her mother, cheques of $16,000 from funds held in trust for Mr Antoun, and $10,519 from that held for Mr and Mrs Bent.
Professional Misconduct
- 25 The Tribunal finds that in each of the particularised cases Yvonne Andrews breached section 61 of the Act in that she failed to deposit money received on behalf of clients into the a trust account and did not disburse these funds according to the clients' directions. The funds were deposited into accounts in which she had an interest. She did not hold these funds for those clients exclusively or at all.
26 In each case the Solicitor failed to advise her clients of the true circumstances and she failed to account for the funds. There is no evidence of the Solicitor's accounting records. The Solicitor misappropriated funds as follows:
David John Antoun 3 cheques $37,759.51
Gerald and Christine Bent 2 cheques $22,519.14
Mr Pornsawasdee, Ms Pornsawas and Ms Talalak 1 cheque $26,674.75
Leslie and Alejandro Colbran 1 cheque $42,919.00
Elvis and Ariana Suljanovic 1 cheque $43,655.35
27 In the tribunal's opinion the Solicitor's breaches of both section 61 and 62 of the Act were wilful.
28 Hardie J in Re Hodgekiss (1962) 79 WN (NSW) 340 considered the concept of 'wilful neglect or default' . He concluded:
"It is thus essential in an inquiry as to whether or not there have been wilful breaches by a solicitor of the provisions of Sections 41 to examine the facts and circumstances relevant to his state of mind, knowledge and intention at the material dates."
29 All the circumstances of the transactions, the pattern of the Solicitor's contrived, pre-meditated behaviour and her attempts to deflect scrutiny show that her contravention of section 61 and section 62 was conscious and thus wilful.
30 In Re Mayes and Legal Practitioners Act [1974] 1 NSWLR 19 Hardie J said:
" It is well settled law that there can be wilful failure within the meaning of the section without any positive intention to breach the law; breaches committed over a period of time can, in the light of the relevant circumstances, be so substantial and reckless and show such complete indifference on the part of the solicitor to his important obligations to his clients and to the public, as to amount to wilful failure."
31 The Tribunal finds also that the Solicitor's actions satisfy the common law test of professional misconduct, as articulated by Lopes LJ, in Allinson v General Counsel of Medical Education and Registration [1894] 1 QB 750 as that:
"which would be reasonably regarded as disgraceful or dishonourable by [the person's professional brethren of good repute and competencyÉ."
32 There was no evidence in mitigation of the Solicitor' behaviour. She showed a most reprehensible and callous disregard for her professional responsibilities such as would undermine public confidence in the standards of the profession.
33 The Tribunal finds that the overall particularised behaviour of the Solicitor shows that she is not a person of good fame and character, has failed to adhere to the standards required of a legal practitioner and is guilty of professional misconduct. Therefore, in accordance with its powers under section 171 of the Act the Tribunal orders that the name of Yvonne Eva Andrews be removed from the roll of legal practitioners. It also orders that Yvonne Eva Andrews pay the costs of the Council of the Law Society of New South Wales of and incidental to these proceedings.
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