Law Society of NSW v Kim
[2012] NSWSC 1613
•06 December 2012
Supreme Court
New South Wales
Medium Neutral Citation: Law Society of NSW v Kim [2012] NSWSC 1613 Hearing dates: 06/12/12 Decision date: 06 December 2012 Jurisdiction: Common Law Before: Garling J Decision: (1) An order pursuant to s 630(2) of the Legal Profession Act 2004 appointing John Ernest Mitchell, Chief Trust Account Inspector, Receiver for the law practice known as STK Legal at Suite 2F, level 2, 913 Redmyre Road, Strathfield.
(2) An order that the receiver within one month of this appointment, and thereafter from time to time, furnish to the Law Society of New South Wales, such reports of his receivership as the Society may require and that no further or other reports need be furnished by the receiver.
(3) An order that all transactions involving the receipts or disposal of trust monies of clients of the law practice STK Legal be effected and transacted through the trust account of which John Ernest Mitchell has been appointed receiver.
(4) Note that the Law Society gives an undertaking as to damages in the usual form.
(5) An order that, until further order, the defendant and his servants or agents be restrained 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 provided that this order shall not prevent the defendant from paying his ordinary living expenses up to the sum of $1,000 per week.
(6) An order that the defendant, within 21 days after being served with a copy of this order, is to deliver or cause to be delivered to the plaintiff, an affidavit sworn by him setting out the name and address of any bank, building society or other financial institution at which there is an account in any name upon which the defendant is entitled to operate in any capacity, together with all the particulars of such account known to the defendant, including the name of the account, the account number and the balance therein at the date of service of this order upon him.
(7) Note the undertaking of the Law Society of New South Wales to pay any proper filing fees.
(8) Grant leave for the summons dated 6 December 2012, as amended, to be filed in court.
(9) Order that the balance of the orders sought in the summons stand over for directions to 9am on 7 February 2013 before the Registrar.
(10) Grant both parties liberty to apply to the court on 72 hours notice.
Catchwords: LEGAL PROFESSION - Appointment of Receiver - No point of principle Legislation Cited: Legal Professional Act 2004 Category: Principal judgment Parties: Law Society of New South Wales (P)
Sung-Tae Kim (D)Representation: A Foord (P)
Ex parte (D)
File Number(s): 2012/379771
EX TEMPORE Judgment
The Law Society of New South Wales applies ex parte for orders (1) through to (5(a)) of a Summons which it seeks leave to file. In support of the Summons, the Law Society relies upon the affidavit of its solicitor Anne-Marie Foord.
The solicitor appearing for the Law Society informs the court that in paragraph 5 of that affidavit an error has been made in describing a meeting of the Council of the Law Society as having taken place on 1 November 2012 in circumstances where the meeting, in fact, took place on 3 December 2012. I note that error has been drawn to the Court's attention.
On 3 December 2012, in light of the material that had been put before it, the Council of the Law Society resolved that a complaint pursuant to the provisions of the Legal Professional Act 2004 be made against the defendant in these proceedings, Mr Sung-Tae Kim, to whom I shall refer as "the solicitor", with respect to an allegation that he misappropriated trust funds and had been in breach of s 255 of the Legal Profession Act.
The Council of the Law Society on 3 December 2012 suspended the practising certificate of the solicitor on the ground of the seriousness of the conduct in respect of which the complaints had been made. On that day, the Council appointed Mr Richard Steven Savage as Manager of the law practice conducted by the solicitor, which is known as STK Legal, for a period of 12 months. The Council also resolved to seek the appointment of a receiver and to approach the Supreme Court of NSW and to seek various orders of the court.
The affidavit of Ms Foord includes, as an annexure, a Memorandum to the Council from the Society's Professional Standards Department.
It is apparent from that memorandum that there is prima facie evidence of misappropriation of funds, and prima facie evidence of the conduct of an unauthorised, or else unnotified, trust account by the solicitor. As well, it is apparent from that material, that the solicitor has not been attending to his practice as one would ordinarily expect, and that clients of the practice and solicitors with whom his clients have been dealing, or else he has been dealing on their behalf, have been unable to contact the solicitor.
I am prepared to conclude on a prima facie basis that there has been, or is likely to have been, a misappropriation of funds and that the solicitor has abandoned his practice.
In those circumstances, it is manifestly in the public interest for the Court to exercise its powers under s 630(2) of the Legal Profession Act to appoint a receiver.
Accordingly, I make the following orders:
(1) An order pursuant to s 630(2) of the Legal Profession Act 2004 appointing John Ernest Mitchell, Chief Trust Account Inspector, Receiver for the law practice known as STK Legal at Suite 2F, level 2, 913 Redmyre Road, Strathfield.
(2) An order that the Receiver within one month of this appointment, and thereafter from time to time, furnish to the Law Society of New South Wales such reports of his receivership as the Society may require and that no further or other reports need be furnished by the receiver.
(3) An order that all transactions involving the receipts or disposal of trust monies of clients of the law practice STK Legal be effected, and transacted through, the trust account of which John Ernest Mitchell has been appointed receiver.
(4) Note that the Law Society gives an undertaking as to damages in the usual form.
(5) Order that, until further order, the defendant and his servants or agents be restrained 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 provided that this order shall not prevent the defendant from paying his ordinary living expenses up to the sum of $1,000 per week.
(6) An order that the defendant, within 21 days after being served with a copy of this order, is to deliver or cause to be delivered to the plaintiff, an affidavit sworn by him setting out the name and address of any bank, building society or other financial institution at which there is an account in any name upon which the defendant is entitled to operate in any capacity together with all the particulars of such account known to the defendant, including the name of the account, the account number and the balance therein at the date of service of this order upon him.
(7) Note the undertaking of the Law Society of New South Wales to pay any proper filing fees.
(8) Grant leave for the Summons dated 6 December 2012, as amended, to be filed in court.
(9) Order that the balance of the orders sought in the Summons stand over for directions to 9am on 7 February 2013 before the Registrar.
(10) Grant both parties liberty to apply to the court on 72 hours notice.
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Decision last updated: 22 January 2013
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