LEGAL PROFESSION COMPLAINTS COMMITTEE and OUD - [2018] WASAT 119

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION:   LEGAL PROFESSION COMPLAINTS COMMITTEE and OUD [2018] WASAT 119
MEMBER:   PRESIDENT, JUSTICE J C CURTHOYS
MR M ANDERSON (SENIOR SESSIONAL MEMBER)
MS K LANG (SENIOR SESSIONAL MEMBER)

HEARD:   19, 20 and 21 SEPTEMBER 2018
DELIVERED          :   5 NOVEMBER 2018
FILE NO/S:   VR 110 of 2017
BETWEEN:   LEGAL PROFESSION COMPLAINTS COMMITTEE
Applicant
AND
NICHOLAS NEIL PETER OUD
Respondent

Catchwords:

Disciplinary proceedings - Legal practitioner - Professional misconduct - Unsatisfactory professional conduct

Legislation:

Legal Profession Act 2008 (WA), s 228(1), s 228(3), s 228(3)(b), s 403, s 438
Legal Profession Regulations (2009) WA, reg 41(2), re 41(6), reg 45

Result:

Practitioner guilty of professional misconduct
Practitioner guilty of unsatisfactory professional conduct

Category: B

Representation:

Counsel:

Applicant	:	Mr P Yovich
Respondent	:	Mr RI Viner and Mr DJ Garnsworthy

Solicitors:

Applicant	:	Francis Burt Chambers
Respondent	:	Francis Burt Chambers

Case(s) referred to in decision(s):

Briginshaw v Briginshaw (1938) 60 CLR 336
Giudice v Legal Profession Complaints Committee [2014] WASCA 115
Legal Profession Complaints Committee and Wells [2014] WASAT 112
Legal Profession Complaints Committee v Brickhill [2013] WASC 369
Legal Professional Complaints Committee and Park [2017] WASAT 89
NOM v Director of Public Prosecutions (2012) 38 VR
Rayney and Legal Practice Board of Western Australia [2016] WASAT 7
Rejfek v McElroy (1965) 112 CLR 517

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 8 June 2017 the Legal Complaints Committee (the Committee) filed an application against Nicholas Neil Peter Oud, a legal practitioner.
The application alleged six Grounds Five Grounds in Annexure A and one Ground in Annexure B as follows:
ANNEXURE A
GROUND 1
That the practitioner, NICHOLAS NEIL PETER OUD (practitioner) between 23 March 2016 and 30 March 2016, in connection with acting for Mr Colin Oxlade and/or Dr Peter Fiore, or alternatively Irongrow Corporation Pty Ltd (Irongrow), in respect of a proposed purchase of platinum, engaged in professional misconduct within the meaning of sections 403 and 438 of the Legal Profession Act 2008 WA (Act) in that his conduct fell short, consistently or by a substantial degree, or both, of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner, by disbursing from the firm's trust account $300,000 (CSG loan funds) which had been received into trust on behalf of Credit Solutions Group Pty Ltd (CSG) for use in connection with the purchase of the platinum, in circumstances where:
1.the practitioner undertook to CSG not to deal with, transfer, move or use the CSG loan funds without the expressed written consent of Mr David Cacciola on behalf of CSG, and Mr Oxlade (the undertaking);
2.the practitioner disbursed the CSG loan funds without the expressed written consent of Mr Cacciola, and contrary to purported written consents he had received;
3.in releasing the CSG loan funds:
(a)the practitioner acted in reckless disregard or with reckless indifference as to whether he was in breach of his undertaking by doing so;
(b)alternatively, the practitioner was grossly careless in failing to ensure that the release of the CSG loan funds was not in breach of the undertaking.
GROUND 2
That the practitioner in March and April 2016 engaged in unsatisfactory professional conduct within the meaning of sections 402 and 438 of the Act in that his conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent practitioner by failing to keep his firm's trust records in a way that disclosed the true position in relation to withdrawals from trust of the CSG loan funds, in that the trust records did not accurately record the names of the persons who received the funds and the names or BSB numbers of the bank accounts into which the funds were paid as required by Regulation 45 of the Legal Profession Regulations 2009 (Regulations) and section 228(3)(b) of the Act.
GROUND 3
That the practitioner in March and April 2016 engaged in unsatisfactory professional conduct within the meaning of sections 402 and 438 of the Act in that his conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent practitioner by failing to deliver to CSG's solicitor Mr Paul Reese the original receipt made out by the practitioner for the receipt of the CSG loan funds into his trust account when requested to do so by Mr Reese by emails sent to the practitioner on 22 March 2016 and 28 April 2016, in breach of Regulations 41(2) and 41(6) of the Regulations.
GROUND 4
That the practitioner in or about April 2016 engaged in professional misconduct within the meaning of sections 403 and 438 of the Act in that his conduct would be reasonably regarded as disgraceful and dishonourable by practitioners of good repute and competence and, to a substantial degree, fell short of the standard of professional conduct observed by members of the profession of good repute and competence in responding to an email from Mr Reese requiring the CSG loan funds to be returned from the practitioner's firm's trust account to Mr Reese's trust account, when the practitioner sent a series of emails to Mr Reese on 28 and 29 April 2016 which:
1.did not disclose the fact that he no longer retained the CSG loan funds in his firm's trust account;
2.implied that the practitioner did retain the CSG loan funds and was in a position to return the CSG loan funds to Mr Reese's trust account,
and which conveyed the impression that the CSG loan funds were retained in his firm's trust account and were available to be returned to Mr Reese's trust account when, in truth, the practitioner had disbursed the CSG loan funds and was not in a position to effect the return of the CSG loan funds to Mr Reese's trust account, and which impression the practitioner permitted to remain uncorrected in circumstances where:
(a)the practitioner knew the emails were misleading in a material respect;
(b)alternatively, the practitioner was recklessly indifferent as to whether the emails were misleading in a material respect;
(c)further alternatively, the practitioner was grossly careless as to whether the emails were misleading in a material respect.
GROUND 5
That the practitioner on 9 May 2016 engaged in professional misconduct within the meaning of sections 403 and 438 of the Act in that his conduct would be reasonably regarded as disgraceful and dishonourable by practitioners of good repute and competence and, to a substantial degree, fell short of the standard of professional conduct observed by members of the profession of good repute and competence by conveying an offer from Mr Oxlade to Mr Reese to repay the CSG loan funds that was contingent upon Mr Reese withdrawing a complaint he had made to the Applicant against the practitioner in relation to the practitioner's breach of his undertaking with respect to the CSG loan funds.

Onus and standard

The Committee bears the onus of proof. In Legal Profession Complaints Committee and Wells [2014] WASAT 112 at [8] and [9] the Tribunal stated:
The Committee bears the onus of proof. It is to the civil, not criminal standard that the principles of Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) apply. That is, while needing to be proved only on the balance of probabilities, the nature and seriousness of the allegations are relevant to the question whether the issues are proved to the reasonable satisfaction of the Tribunal and the process by which reasonable satisfaction is attained.
By reason of the nature of the allegations, the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts in determining whether or not the case against the practitioner is made out: Medical Board of Western Australia and Wright [2010] WASAT 48 at [31]; and see Medical Board of Western Australia and Bham [2006] WASAT 190 at [144].
(See also Rejfek v McElroy (1965) 112 CLR 517 (Rejfek))
In Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) at 362, Dixon J, as he then was, observed '[i]n such matters ''reasonable satisfaction'' should not be produced by inexact proofs, indefinite testimony or indirect inferences'.
The standard of proof required in a civil case where serious allegations are made was stated in Rejfek where Barwick CJ, Kitto, Taylor, Menzies and Windyer JJ observed at 521 that:
The 'clarity' of the proof required, where so serious a matter as fraud is to be found, is an acknowledgment that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved. …
But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused.
In NOM v Director of Public Prosecutions (2012) 38 VR 618 at [124], the Victorian Court of Appeal stated:
… mere mechanical comparison and probabilities independent of a reasonable satisfaction will not justify a finding of fact. The fact finder must feel an actual persuasion of the occurrence or existence of the fact in issue before it can be found. Where, as in the present case, the standard of proof is to be applied to circumstantial evidence, satisfaction as to a reasonable and definite inference is required.
All findings made by the Tribunal are on the balance of probabilities applying the Briginshaw approach.
In making its findings in relation to Mr Oud's conduct the Tribunal is particularly conscious of the seriousness of such allegations.

Purposes of Part 13 of the Legal Profession Act 2008 (WA)

Section 401 of the Legal Profession Act 2008 (WA) (LP Act) provides that the purposes of Part 13 'Complaints and discipline' are:
(a)to provide for the discipline of the legal profession in this jurisdiction, in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally;
(b)to promote and enforce the professional standards, competence and honesty of the legal profession;
(c)to provide a means of redress for complaints about lawyers.

Professional misconduct

'Professional misconduct' is defined by s 403 of the LP Act inclusively as follows:
(1)For the purposes of this Act
'professional misconduct' includes -
(a)unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b)conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
(2)For the purpose of finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission or for the grant or renewal of a local practising certificate.

Unsatisfactory professional conduct

Section 402 of the LP Act provides:
For the purposes of this Act -
unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

The authorities

In Legal Professional Complaints Committee and Park [2017] WASAT 89 (Park) the Tribunal stated at [27][33]:
27Courts and tribunals rely heavily on practitioners in reaching their decisions.
28Practitioners must be scrupulously honest and accurate.
29Misleading conduct may be dishonest, reckless or careless. The end result of misleading conduct is that a court may not reach a proper decision. Dishonest conduct is obviously the most serious.
30Deliberately misleading a court or tribunal has a potentially corrosive effect on the administration of justice because the court or tribunal may proceed on an incorrect basis. Carelessly misleading a court or tribunal has the same potentially corrosive effect on the administration of justice because the court or tribunal may proceed on an incorrect basis. It is therefore imperative that practitioners ensure that evidence presented to the court is accurate. This is particularly so where it is their own evidence. The fact that a court or tribunal may not actually be misled does not reduce the seriousness of misleading conduct.
31In Legal Profession Complaints Committee and Bower [2017] WASAT 47, in relation to dishonest conduct, the Tribunal stated at [15]:
In Legal Profession Complaints Committee and Barber [2015] WASAT 99 at [26][27], the Tribunal accepted the Committee's submissions as to the principles in relation to a practitioner's duty of disclosure. These are set out below:
Nevertheless, it is a basic precept of the legal profession that lawyers owe a duty of honesty and candor to the court. It is the general duty of lawyers not to mislead the court by stating facts which are untrue, or mislead the judge as to the true facts, or conceal from the court facts which ought to be drawn to the judge's attention, or knowingly permit a client to deceive the court: Unioil International Pty Ltd v Deloitte Touche Tohmatsu (No 2) (1997) 18 WAR 190 at 193; Kyle v Legal Practitioners Complaints Committee (1999) 21 WAR 56 at [6], [12], [13], [23], [66] [67]; Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 at [61]; Giudice v Legal Profession Complaints Committee [2014] WASCA 115 at [100].
The duty not to mislead the court is of fundamental importance in the due administration of justice, and is paramount and overrides any duty to the client: Kyle v Legal Practitioners Complaints Committee (supra) at [19], [23], [66].
It is a breach of that duty for a lawyer to produce a witness statement that the lawyer knows to be false or if the lawyer knows that the witness does not believe the statement to be true in all respects. The duty to correct a false witness statement continues after it is filed. Kyle v Legal Practitioners Complaints Committee (supra) at [13], [23].
Although expressed in terms of a duty to the 'court', there is no question that duty applies with equal force to proceedings in the Tribunal: see eg Clyne v The New South Wales Bar Association (1960) 104 CLR 186 at 200 (see also definition of 'court' in the Professional Conduct Rules in force at the relevant time).
The duty not to 'mislead' the court or tribunal is not limited to positive lies or misstatements. Halftruths, implying a false state of affairs, the creating of a misleading impression, or allowing the client to mislead the court will also be a breach of the duty: Kyle v Legal Practitioners Complaints Committee (supra) at [12], [23]; Vogt v Legal Practitioners Complaints Committee (supra) at [48]; Forster v Legal Services Board [2013] VSCA 73 at [161].
A practitioner's duty is not merely to not deceive the court or tribunal. He or she must be fully frank in what he or she does before it. This obligation takes precedence over the practitioner's duty to the client, to other practitioners and to himself or herself: Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 447.
Similarly, In Re Thom (1918) 18 SR (NSW) 70, Cullen CJ (with whom the other two members of the Full Court agreed) said (at 74 75):
'It is of the greatest importance than any mere casuistry in the presentation of evidence should be strictly avoided by those entrusted with the responsible duties of a legal practitioner. It is perhaps easy by casuistical reasoning to reconcile one's mind to a statement that is in fact misleading by considering that the deponent is not under any obligation to make a complete disclosure. By this means a practitioner may be led into presenting a statement of fact which, although it may not be capable of being pronounced directly untrue in one particular or another, still presents a body of information that is misleading, and conceals from the mind of the tribunal the true state of facts which the deponent is professing to place before it. For that reason it is proper on such an occasion as this to express condemnation of any such casuistical paltering with the exact truth of the case.'
32In Jemielita v The Medical Board of Western Australia (unreported, WASC, Library No 920584, 13 November 1992), Justice Owen stated:
[T]he concept of gross carelessness involves unacceptable conduct without any intentional wrong doing on the part of the practitioner. It also suggests that the practitioner is unable to give the care required or is indifferent to the need for such care notwithstanding that he may have the intellectual and technical ability to supply the care that is required.
…
[T]he concept of 'carelessness' may not be endemic to the practitioner's affairs generally. It may be limited to individual, perhaps sporadic,incidents[.]
33In A Practitioner v The Medical Board of Western Australia [2005] WASC 198 at [88], Justice Kenneth Martin, then siting as a Commissioner, stated:
[I] reiterate that where appropriate, a finding of improper conduct of a serious enough kind, or indeed even gross carelessness of a serious enough kind, may well justify the most severe disciplinary sanction[.]
In Khosa v Legal Profession Complaints Committee [2017] WASCA 192 at [43], Buss P stated:
In Legal Profession Complaints Committee v Detata [2012] WASCA 214, Martin CJ (Pullin & Murphy JJA agreeing) expounded at length on the importance of legal practitioners performing their undertakings. It is convenient to reproduce what his Honour wrote on that occasion:
The importance of legal practitioners performing their undertakings cannot be overstated. The practice of giving, and relying upon, undertakings given by legal practitioners is widespread and serves an important public purpose. The circumstances in which undertakings are given and relied upon are many and varied. In some cases an undertaking will be proffered and received as a substitute for strict or timely performance of an obligation, perhaps arising under a contract or under a statutory provision. In other cases, the undertaking might be given in order to provide a form of security to the person to whom it is proffered - for example, an undertaking that an executed document will be held in escrow until certain conditions are met, or that legal proceedings will not be instituted if certain conditions are met, or that funds or other property will be retained by the practitioner until certain conditions are met. In all of these circumstances, the usual effect of the proffer and acceptance of the undertaking will be to obviate the need to commence or to continue legal proceedings. This serves the public interest by preserving the limited resources of the parties and the courts.
Undertakings will often be proffered and received in the course of legal proceedings - for example, in relation to interlocutory procedures. The provision of undertakings in those circumstances serves the public interest by reducing or averting interlocutory disputes.
Undertakings by legal practitioners are a common feature of commercial and property transactions in which legal practitioners are engaged. In some cases, a party might complete a transaction before all relevant conditions are satisfied in reliance upon an undertaking by a practitioner to the effect that he or she will cause a particular condition to be satisfied. In this context, the proffer and acceptance of undertakings by legal practitioners improves the efficiency and expedition of commercial and property transactions and thereby serves to lubricate the wheels of commerce, trade and finance: see Rubik Financial Ltd v Herskope [2010] WASC 343; In the Matter of a Solicitor 'L' (Unreported, VSC, LPA 3 of 1989, 17 ‑ 21 June 1989).
Undertakings can only serve these purposes and thereby further the public interest if they are accepted and relied upon. In some circumstances, a practitioner may proffer an undertaking in terms which makes it clear that the undertaking is only that of the client and not the practitioner. In such a case, the obligation of performance will fall upon the client, not the practitioner. However, this is not such a case. In this case, the undertaking was expressly and unequivocally given in terms which bound both Mr Detata's client, Mr Detata and the firm by which he was employed.
The proffer of an undertaking binding upon a legal practitioner and his or her firm can be expected to enhance the reliability of the undertaking, and thereby the prospect that it will be accepted and relied upon by the party to whom it is proffered. In this way, the proffer of an undertaking binding upon a legal practitioner enhances the achievement of the various purposes to which I have referred, and thereby enhances the public interest. It is therefore vital that legal practitioners perform their undertakings, regardless of whether the undertaking was proffered in error or oversight, irrespective of any change in circumstances, no matter how radical, and irrespective of any hardship to the legal practitioner concerned (see Bhanabhai v Auckland District Law Society [2009] NZHC 415 [59] ‑ [64] (Priestley, Heath and Winkelmann JJ).
Further, it is vital for the maintenance of public confidence in the integrity of the legal profession and its practitioners, and for the maintenance of the confidence which practitioners have in dealing with each other, that performance of their undertakings be enforced: see (Rubik Financial Ltd).
For these reasons, the obligation of a legal practitioner to perform his or her undertaking is a solemn obligation of the utmost importance [48] ‑ [54].

In Rayney and Legal Practice Board of Western Australia [2016] WASAT 7 (Rayney), the Tribunal stated at [17][20]:
Fitness to practise law requires that the practitioner must command the personal confidence of clients, fellow practitioners and judges see: In re Davis (1947) 75 CLR 409 (In re Davis) at 420; Legal Profession Complaints Committee v Bachmann [2011] WASC 309 at [46]; Dixon v Legal Practice Board of Western Australia [2012] WASC 79 (Dixon) at [19].
Unprofessional conduct includes conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, which includes, but is not confined to, conduct which occurs in the course of legal practice (Kyle v Legal Practitioners Complaints Committee (1999) 21 WAR 56 at [61]).
The assessment of fitness and propriety in legal practitioners involves a range of broad public interest considerations. The relevant interests are the interests of the public, the interests of the Court and the maintenance of the high reputation and standards in the legal profession (Dixon at [27]).
In Prothonotary of the Supreme Court of New South Wales v Da Rocha [2013] NSWCA 151 (Prothonotary) the Court stated at [29]:
In Foreman, the Court of Appeal indicated that in determining whether someone is a fit and proper person to be a solicitor the relevant considerations may include: the protection of the public against similar conduct, the character of the solicitor, and the effect which an order will have on the understanding (within the profession and amongst the public), of the standard of behaviour required of solicitors, the effect upon relationships which must exist between solicitors and the circumstances surrounding the impugned conduct.
In Legal Profession Complaints Committee v Brickhill [2013] WASC 369, the Full Court stated at [21]:
Integrity and honesty are essential characteristics expected of a practitioner, and therefore, the court has generally taken a very serious approach when dealing with dishonesty by a practitioner: Brennan [15]; Legal Profession Complaints Committee v Bachmann [2011] WASC 309 [47] (Martin CJ, EM Heenan and Jenkins JJ); Legal Practitioners Complaints Committee v Palumbo [2005] WASCA 129 [22] - [23] (Steytler P, Wheeler and McLure JJA agreeing); Kyle v Legal Practitioners Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 [69] (Parker J); Re Maraj (25) (Malcolm CJ, Kennedy and Franklyn JJ agreeing). In Barristers' Board v Darveniza, Thomas JA observed that:
[T]he quality most likely to result in striking off is conduct which undermines the trustworthiness of the practitioner, or which suggests a lack of integrity or that the practitioner cannot be trusted to deal fairly within the system which he or she practices [33].

The requisite intent

In Giudice v Legal Profession Complaints Committee [2014] WASCA 115 (Giudice), Martin CJ stated at [8]:
As this court has pointed out [Fidock v Legal Profession Complaints Committee [2013] WASCA 108] when a practitioner provides information or makes a statement to a court which is false or misleading, there are (at least) three categories of case in which that conduct will constitute either professional misconduct or unsatisfactory professional conduct. First, the practitioner might know that the statement or information is false or misleading. Second, the practitioner might have a reckless disregard to the question of whether the statement or information is false or misleading, and third, the practitioner might be negligent or careless. Because the first two categories will only apply if, assessed subjectively, the practitioner is either aware that the statement or information is false or misleading, or wilfully indifferent to its truth, in the absence of special circumstances one would ordinarily expect a finding of either category of conduct to be characterised as a substantial departure from the standards of conduct reasonably expected of a practitioner such as to constitute professional misconduct, within the taxonomy of the Act[.]

Mr Oud as a witness

Before turning to consider the specific evidence, a number of general comments can usefully be made about this matter. Firstly, the documentation largely speaks for itself. For example, in relation to the allegations in the Committee's Annexure B, Mr Oud wrote a letter to the Federal Magistrates Court in Adelaide asserting he had cleared funds in his trust account when he did not. The documentation is clear. Secondly, Mr Oud was a totally unsatisfactory and evasive witness. His explanations for his actions when asked to explain his actions and various documents were simply implausible. It is difficult to understand why this application went to a hearing other than that Mr Oud totally lacks insight.
It is useful to start with an example of Mr Oud's evasiveness.
At page 90 of Exhibit A, there is an email from Mr Oxlade to Mr Oud sent at 9.02 am on 29 March 2016 which reads in part 'This is the one relating to John's bankruptcy'.
Mr Yovich for the Committee asked a simple question as to that part of the email. The following exchange took place:
YOVICH, MR: Okay. Now, Mr Oud, I want to take you to page 90 of the book of documents and that is the second page of an email chain, is it not? You can see the 2 at the bottom? --- Mmm.
And on that page 90 there are two emails, aren't there? --- Yes.
The earlier of the two is dated 29 March 2016 at 9.02 am. If you go to page 90 for now, we will do an exhibit at a time. Do you see email from Mr Oxlade to you? --- I do, yes.
And it says:
This is the one relating to John's bankruptcy.
Correct. Those are the first words of the email, aren't they? --- I'm sorry. I'm just trying to read the email. Just give me a second, please.
I don't need you to read the email. I'm just asking you to read the words I've spoken:
This is the one relating to John's bankruptcy
are the first words of Mr Oxlade's email to you, correct? --- No, I don't I don't I'm not necessarily agree that to be the case.
All right. So let's explore that then:
On 29 March 2016 at 9.02 am, Colin Oxlade wrote
Do you see those words? --- Yes.
Immediately below that are the words:
This is the one relating to John's bankruptcy.
Correct? --- Yes.
That is how his message to you starts, isn't it? --- No.
Are there invisible words that are part of his message that we don't see on the page, Mr Oud? --- I had no knowledge of what it says there, but but it is what it is.
Well, Mr Oud, come on.
HIS HONOUR: Mr Oud, look at the email. What does it say? --- Okay. Sure.
When you can't answer the simplest of questions as to what it says on the page you're a lawyer. You ought to be aware what inferences this tribunal will draw from that? --- Okay.
YOVICH, MR: So let's back to the beginning of this line of questioning, Mr Oud. The first words of the message from Colin Oxlade to you at 9.02 am on 29 March '16 are:
This is the one relating to John's bankruptcy –
aren't they? --- Yes.
(ts 99-100, 20 September 2018)
What should have been a simple 'Yes' to Mr Yovich's question turned into a protracted exchange. That exchange is illustrative of Mr Oud's general evasiveness when giving evidence.

Persons and entities

The Table below sets out the relevant particulars of the persons and various entities who are referred to in the evidence and their involvement in the circumstances of this case:

Nicholas Neil Peter Oud	Standpoint Legal	Legal practitioner and sole practitioner; $20,000 loan from Mr Oud to Dr Fiore paid to Mr Oxlade through his company Ox Corp Pty Ltd. $20,000 paid to Mr Oud from Kathryn McKelt
Ms Guthrie	Standpoint Legal employee	Mr Oud's external bookkeeper
Mr Belden Namah	Siniwok Limited (Siniwok) (name of Mr Namah's bank account)	Seller of the platinum bars from New Guinea
Irongrow Corporation Pty Ltd	Irongrow	Purchaser of the platinum bars/the borrower and guarantor of the loan from CSG (principal loan amount of loan being $632,316.55)
Mr John Buckby	Irongrow	A director of Irongrow
Avro Gold Pty Ltd	Avro	Not a registered company or business Mr Fiore 'acting' on behalf of Avro. $300,000 deposited from Avro to Siniwok
Dr Peter Fiore	Avro	'Acting' on behalf of Avro Gold Pty Ltd' – a nonregistered company/business Business partner of Mr Oxlade 'retained' Mr Oud to assist with purchase of platinum bars
Kathryn McKelt	Dr Fiore's partner/girlfriend Received $100,000 of loan funds into her bank account from Mr Oud's trust account; Deposited $20,000 into Mr Oud's business account
Mr Colin Oxlade	Irongrow	Business partner of Dr Fiore Negotiator of the loan from CSG on behalf of Irongrow Retained Mr Oud to facilitate the funding from CSG Release of $75,000 of loan funds from Mr Oud's trust account into Mr Oxlade's bank account Owner of Ox Corp Pty Ltd to which Mr Oud paid $20,000 as a loan to Dr Fiore Received $10,000 of the remaining loan funds from Mr Oud's trust account
Mr Rishi Levi	Levi loan	A further $300,000 loan supposedly raised by Mr Oxlade (a backup loan to the CSG loan to pay for contingencies that might arise in connection with the purchase of platinum)
Credit Solutions Group Pty Ltd	CSG	Financier
Mr David Cacciola	CSG	Managing Director and representative of CSG
Mr Nick Tan	CSG	An associate of Mr Cacciola
Mr Paul Reese	CSG's solicitor	Solicitor – Director of Summers Partners
Ox Corp Pty Ltd	Mr Oxlade's company	The third party through which Mr Oud stated he paid a loan of $20,000 to Dr Fiore
Mr Orlando Maiolo	Received $115,000 into his account from Mr Oud's trust account from the remaining loan funds
Mr Jaydeep Biswas	Associate to Dr Fiore and Mr Oxlade involved in negotiations with CSG to negotiate an agreement in relation to repayment of the loan
John and Jennifer Warming	Parties in a bankruptcy proceeding filed by a creditor in the Federal Circuit Court in Adelaide
ICBC Capital Pty Ltd	ICBC – a Liquidated company owned by Mr and Mrs Warming.	The company Mr Oud purported to act for in letter addressed to Federal Magistrates Court in Adelaide

Mr Oud's legal practice

Mr Oud was admitted to legal practice in Western Australia on 2 March 1995 (Committee's statement of facts and contentions (SFC) para 1).
At all material times, Mr Oud was an Australian legal practitioner within the meaning of s 5(a) of the LP Act (SFC para 2)
At all material times Mr Oud carried on business as a sole practitioner under the registered business name 'Standpoint Legal' (Mr Oud's further amended statement of facts and contentions in relation to Annexure A (Oud ASFC) para 2).

Sale of the platinum bars and the Credit Solutions Group Pty Ltd loan (CSG loan)

The Committee's application in general terms relates to the financing of the purchase of platinum bars from Papua New Guinea.
In or about mid-February 2016, Dr Peter Fiore retained Mr Oud's firm to assist with the purchase of a quantity of platinum bars each weighing 36 troy ounces (approximately 1kg) from Mr Belden Namah in Papua New Guinea. No later than 22 February 2016, M Oud was informed by Dr Fiore that he was acting on behalf of Avro Gold Pty Ltd (Avro). Mr Oud did not investigate the status of Avro. In fact, there was no registered company or business with that name (SFC para 3; Oud ASFC para 3).
Neither Mr Oud personally nor his firm entered into a formal costs agreement with Dr Fiore and created no other document evidencing this retainer (SFC para 4; Oud ASFC para 4; ts 111, 20 September 2018). The significance of this is that it raises an issue as to Mr Oud's motivation in doing the work.
Dr Fiore told Mr Oud that Mr Namah required $300,000 to be paid by Avro as an initial part payment of the purchase price for the platinum bars before delivery of the platinum bars to Dr Fiore in Australia (SFC para 5; Oud ASFC para 5).
On 19 February 2016, $95,000 and $155,000 were deposited into the firm's trust account by two Commonwealth Bank of Australia bank cheques. They were recorded as received from 'Avro Gold'. On 22 February 2016, a further sum of $50,000 was deposited into Mr Oud's firm's trust account and recorded as having been received from 'Avro Gold (SFC para 6; Oud ASFC para 6).
Later on 22 February 2016, on Dr Fiore's instructions, Mr Oud transferred the total of the sums received from Avro, being $300,000, to Mr Namah's nominated bank account in the name of Siniwok Limited (Siniwok) (SFC para 7; Oud ASFC para 7).
The Committee alleged that:
On 3 March 2016, [Mr Oud] met with Dr Fiore and Mr Colin Oxlade. [Mr Oud] understood Mr Oxlade to be a business associate of Dr Fiore, who was negotiating a loan of $300,000 on behalf of Irongrow Corporation Pty Ltd (Irongrow) with Credit Solutions Group Pty Ltd (CSG), in relation to the platinum purchase (CSG loan).
(SFC para 8)
Mr Oud submitted that:
1)[He] understood the purpose of the meeting was for Dr Fiore to introduce [him] to Mr Oxlade, who [he] was told had flown in in from Adelaide;
2)[He] did not know as at 3 March 2016 that Mr Oxlade was negotiating the CSG loan.
(Oud ASFC para 8)
Whether Mr Oud knew that Mr Oxlade was negotiating the loan is largely irrelevant. The important factor is that Mr Oud was made aware of the relationship between Dr Fiore and Mr Oxlade.
The Committee alleged at para 9 of its SFC:
[Mr Oud], Dr Fiore and Mr Oxlade discussed, relevantly, what had to be done to make arrangements to bring Mr Namah and his associates to Australia in order to finalise the purchase of the platinum from Mr Namah. The arrangements discussed included obtaining the CSG loan.
Mr Oud denied para 9 of the SFC, and said that he played no part in any discussions during the meeting on 3 March 2016, and, in particular, played no part in any discussions concerning the CSG loan (Oud ASFC para 9).
Nothing turns on Mr Oud's denials. Whether or not Mr Oud took part in the discussion, he plainly had knowledge of what was discussed at the meeting because he was present.
The Committee alleged at para 10 of its SFC:
Under the terms of the arrangement being negotiated with Mr Namah, Mr Namah or his representatives would bring the 50 platinum bars to Australia for quality testing once he had received proof that $300,000 was being held in a solicitor's trust account for the purposes of purchasing the platinum.
Mr Oud denied having any detailed knowledge of the negotiations with Mr Namah; but otherwise admitted para 10 of the SFC in fac (Oud ASFC para 10).
Once again Mr Oud's denial is largely irrelevant. Although he denies any 'detailed knowledge of the negotiations' in SFC para 10, the paragraph in fact does not allege any detailed knowledge.
The Committee alleged at para 11 of its SFC:
On 4 March 2016, Mr Oxlade sent [Mr Oud] an email suggesting that [Mr Oud] act for him in relation to the platinum purchase. [Mr Oud] agreed to act for Mr Oxlade on his own behalf or alternatively on behalf of Irongrow, to 'facilitate' the funding from CSG for the purchase of the platinum from Mr Namah.
(Exhibit A page 227)
The email was addressed to Dr Fiore and Mr Oud. The email states, amongst other things 'Why can't Nick [Mr Oud] work with the lender's solicitors to get this done? … Tell me how we can make this work for all of us!'.
Mr Oud admitted he received the email from Mr Oxlade on 4 March 2016 but denies each allegation in para 11 of the SFC (Oud ASFC para 11).
The Tribunal accepts that the email is equivocal. However, at some stage, Mr Oud was retained by Mr Oxlade as is evident from Mr Oud's response to SFC 12. Further, on 14 March 2016, Mr Oud sent an email to Mr Reese, the solicitor for CSG stating 'I confirm I act for Colin Oxlade' (Exhibit A page 324).
The Committee alleged at para 12 of its SFC:
[Mr Oud] did not enter into a formal costs agreement with Mr Oxlade, and created no other document evidencing this retainer.
Mr Oud admitted para 12 of the SFC, but said further that his involvement in the matter was limited to his agreeing on 22 March 2016 to hold the sum of $300,000 upon terms (Oud ASFC para 12; see also ts 112, 20 September 2018). Again, the significance of the absence of a retainer raises an issue as to Mr Oud's motivation in doing the work or in this case, holding the $300,000 in his trust account.
The Committee alleged at para 13 of its SFC:
Mr Oxlade sent an email to [Mr Oud] and Dr Fiore on 4 March 2016 at 8.10 am [Australian Western Standard Time], in which Mr Oxlade said that his clients had provided at least $150,000 of the money that he had transferred to Siniwok on 22 February 2016 for the purchase of the platinum from Mr Namah.
(Exhibit A page 227)
The email states, amongst other things '… I have put $150k of my [Oxlade's] client's money into this and he completely f - - - - ed us around at the start'.
Mr Oud admitted receiving the email identified in para 13 of the SFC and said further that is the same email identified in para 11 of the Committee's SFC but did not admit the contents of that email to be true (Oud ASFC para 13).
Paragraph 13 of the SFC does not allege that the contents of the email are true.
The Committee alleged at paras 14-16 of its SFC:
14.On 9 March 2016, Siniwok sent 2 samples of platinum to [Mr Oud's] firm for quality testing, which were received by [Mr Oud's] firm at an unknown date after that time and passed on to Dr Fiore.
15.By email sent on 10 March 2016 at 6:13 am, Mr Oxlade sent [Mr Oud] a copy of a letter of offer from CSG dated 3 March 2016 in which CSG offered to lend to Irongrow $632,316.55 (of which $300,000 was the actual loan sum and the rest was interest and fees to be prepaid) for a term of 3 months (the loan).
[Exhibit A page 449; The letter of offer appears in Exhibit A at page 263]
16.In the above email, Mr Oxlade also told [Mr Oud] that he had raised another $300,000 (Levi loan) from Mr Rishi Levi.
The letter of offer dated 3 March 2016 referred to '$300,000 net to Lawyer Trust Account'.
Mr Oud admitted paras 14, 15 and 16 of the SFC but said that he did not read the letter of offer from CSG at the time, or at any time prior to 9 May 2016 at the earliest (Oud ASFC para 14).
Mr Oud's defence rests largely on his contention that he did not read emails or that he read only selective parts of emails and other documents (see below).
The Committee alleged at para 17 of its SFC:
[Mr Oud] understood that the Levi loan was to be a 'back-up' loan to the CSG loan, to pay for contingencies that might arise in connection with the purchase of the platinum bars from Mr Namah.
Mr Oud denied each allegation in para 17 of the SFC, and said that he understood, based on what he had been told by Mr Oxlade, that the Levi loan was to be used for other expenses (Oud ASFC para 15).
The Committee alleged at para 18 of its SFC:
By a later email sent on 10 March 2016 at 1:35 pm, Mr Oxlade told [Mr Oud] that Mr Levi was instructing his Singapore investor to send the Levi loan funds direct to [Mr Oud's] trust account.
[Exhibit A page 550]
Mr Oud admitted receiving the email identified in para 18 of the SFC, but not the truth of its contents (Oud ASFC para 16). Once again, para 18 of the SFC does not allege the contents of the email to be true.
The significance of the loan from Mr Rishi Levi (Levi loan) is that from at least mid-March 2016, Mr Oxlade had stated that funds would be coming from Mr Levi, funds which never came.
Mr Oud asserts that he relied on the provision of funds from the Levi loan as the basis for the letter to the Federal Magistrates Court referred to in Annexure B.
The Committee alleged at para 19 of its SFC:
On or about 11 March 2016, Irongrow executed documents with CSG to give effect to the loan. The security to be provided for the loan included:
1)a mortgage over land in Queensland owned by Irongrow;
2)a personal property security charge over Irongrow;
3)possession of 20 kg of platinum (platinum bars).
(Exhibit A pages 267-309)

A copy of the documents were attached to an email sent to Mr Oud and Dr Fiore on 13 March 2016 (Exhibit A pages 261-309).
Mr Oud did not admit para 19 of the SFC and denied having any knowledge of the terms of the CSG loan at any material time (Oud ASFC para 17).
Mr Oud's contention relies on an acceptance by the Tribunal that Mr Oud did not read the email on the attachment that was sent to him.
Paragraph 39 of Mr Oud's statement (Exhibit K) states:
After the event, I have read the loan in detail but as mentioned the terms of the loan were not my concern at the time and I did not turn my mind meaningfully to them. I have noted after the event that the loan memorandum provided that security for the loan would include a mortgage over real property; a charge over the assets of the Irongrow and that the CSG would take possession of 20 kg of platinum in lien until the facility was discharged. The memorandum referred to a principal loan amount of $632,316.55 on which interest would be paid at the rate of 30% per month. There was also a fee of $46,000 in Legal fees which were paid to Mr Paul Reese's firm Summers Partners. I did note at the time that these figures were extraordinarily high and probably illegal. (ABOD p. 261).
In the course of crossexamination, Mr Oud admitted that he had read the key terms of the loan 'at the time' (ts 153-155, 20 September 2018). It is clear from the context of the cross-examination that 'at the time' refers to about the time when the documents were sent to him with a covering email, that is, 13 March 2016. Mr Oud's contention that he did not have knowledge of the terms of the CSG loan at any material time is rejected by the Tribunal. The Tribunal finds that Mr Oud did know the terms of the loan at least to the extent of its key terms.
In relation to three emails being sent to Mr Oud, the Committee alleged at paras 20-22 of its SFC:
By email sent on Saturday 12 March 2016 at 12.09 pm to [Mr Oud], Mr Oxlade said that he expected the Levi loan funds to be available 'Monday morning'.
[Exhibit A page 254]
By email sent on Sunday 13 March 2016 at 11.07 am to [Mr Oud], Mr Oxlade said that he was going to Sydney 'in the morning for the "other" $300K from Rishi'.
[Exhibit A page 261]
By email sent on Tuesday 15 March 2016 at 7.06 am to [Mr Oud], Mr Oxlade referred to the Levi loan funds, which he said had 'been confirmed this morning. Money getting sent from Dubai late this afternoon via Swift (MT 103) to [the practitioner's] Trust Account'.
[Exhibit A page 326]
Mr Oud admitted receiving each of the emails identified above by the Committee, but not the truth of their contents (Oud ASFC para 18). The Committee does not allege the truth of the contents of the email.
The Committee alleged at paras 23 and 24 of its SFC:
On 20 March 2016, a bank in the United Arab Emirates issued a Swift MT103 for 202,150 euros (approximately AUD$300,000) to be sent to Mr Oxlade's Commonwealth Bank account (MT103). The MT103 was expressed to be subject to the condition, 'Sender to reconfirm before [beneficiary] to be credited'.
[Exhibit A page 458]
Mr Oxlade forwarded a copy of the MT103 to [Mr Oud] in an email on 25 March 2016 at 6.56 am, as an attachment to an email he had sent to Dr Fiore earlier the same day in which, amongst other things, he asked Dr Fiore to lend him $2-3,000 to 'cover [him] for a few days'.
[Exhibit A pages 456-458]
These emails are an early indication of the reliability of Mr Oxlade's statements about the provision of funds from Mr Levi.
Mr Oud admitted having received a document to the effect stated in para 23 by the email from Mr Oxlade identified in para 24 of the SFC, and:
1)said that he believed the contents of that document to be true at the time; but
2)did not admit the authenticity of that document nor that its contents are true.
(Oud ASFC para 19)
Mr Oud's further response was:
In further answer to paras 15, 18, 20, 21, 22 and 24 of the Committee's SFC, Mr Oud said that he did not read the entirety of the email chains forwarded to him by Mr Oxlade at any relevant time due to their length.
(Oud ASFC para 20)
Mr Oud's response in para 20 of his ASFC is entirely evasive. It enables him to have read what suits him and to have not read a document when it does not suit him. Such evasive responses only harm Mr Oud's case. In any event, for reasons explained below, the Tribunal does not accept that Mr Oud only read selected parts of the email chain.
The series of emails referred to in paras 18 (of 10 March 2016), and 20 to 24 (20 March 2016), establish a long (10 day) gap between Mr Oxlade's initial advice that funds were being sent out and the issue of Swift MT103 (20 March 2016).
The Tribunal notes that none of the email chains are particularly long.

The undertaking

At para 25 of its SFC the Committee submitted:
On or about 14 March 2016, Mr Oxlade instructed [Mr Oud] to liaise with Mr Paul Reese, the solicitor for CSG, on the terms and conditions for the release of the loan funds.
As to para 25 of the SFC, Mr Oud:
1)admitted that by email dated 14 March 2016 sent at approximately 2.21 pm, Mr Oxlade requested him contact Mr Reese;
(Exhibit A pages 320-321)
2)said further that by email sent at approximately 2.34 pm that day, he requested that Mr Reese contact Mr Oxlade regarding any written assurances Mr Reese required.
(Exhibit A page 323)
(Oud ASFC para 21)
It is apparent from the preceding email in the chain (copied to Mr Oud) that David Cacciola of CSG wanted Paul Reese and Mr Oud to liaise over the terms and conditions of the release of funds. The email from Mr Oxlade to Mr Oud stated ' … Please contact Paul [Reese] and get this done please!' (Exhibit A pages 320-321).
At paras 26-28 of its SFC the Committee submitted:
26.Despite those instructions, Mr Oxlade himself put a proposal to Mr David Cacciola, the representative of CSG, in an email sent on 15 March 2016 at 9.16 am, which was copied to [Mr Oud]. The proposal provided, relevantly, that [Mr Oud] would receive the loan funds into his firm's trust account and agrees not to transfer, move or utilise any of those funds without the expressed written permission of Mr Cacciola on behalf of the lender.
[Exhibit A page 328]
27.In an email sent to Mr Cacciola on the morning of 16 March 2016, Mr Oxlade said, among other things, 'Nicholas will not agree to you giving instructions to him unless you are a client of his firm'.
[Exhibit A pages 332-222]
28.Mr Cacciola responded to Mr Oxlade by email sent on 16 March 2016 at 11.47 am, which he copied to [Mr Oud] among others, saying that apart from the platinum bars the property being offered as security had no value as far as the lender was concerned, and setting out proposed terms for the loan including a requirement that [Mr Oud] to agree to receive the loan funds into his trust account and agree by way of an undertaking not to transfer, move or utilise the loan funds without the expressed written permission of Mr Cacciola on behalf of the lender.
[Exhibit A page 401]
The email sent by Mr Cacciola at 2.47 pm (Eastern Standard Time), 11.47 am (Western Standard Time) stated:
Good Evening, Colin [Oxlade] In response to your email.
We can only take into account 80% of the value of the property, So there is no equity in the property.
Please note the cars have two charges over them, The business has no good will.
The only Value is in the Bars being offered.
As per the letter of offer. I can have approve for the transfer of funds to the lawyers trust account on the following Provisions.
1.Nicholas Oud / Standpoint Lawyers agree to receive the funds into his Trust Account on behalf of Credit Solutions Group. This is to show proof of funds to the platinum providers and to get the platinum flown to Australia from overseas.
2.Nicholas Oud / Standpoint Lawyers agree via the way of a undertaking that they will not to transfer, move or utilise any of the said funds without the expressed written permission of David Cacciola on behalf of the lenders.
3.On arrival of the bars, they will be tested in the presence of CSG by a mutually approved tester.
4.On the supply / provision of the final test results and to the lenders satisfaction, the $300K shall be released from Nicholas Oud / Standpoint Lawyers Trust Account and paid in full to the Platinum suppliers contemporaneously with 20 bars of the tested platinum handed to the lenders / representative (David Cacciola).
5.The 20 bars (or platinum to the final value of the loan payout in full) shall be full and final payment of the loan.
6.The lenders and / or its representative may purchase the balance of the platinum bars (35 bars minimum) at an agreed price and TTfunds to the nominated bank account of the platinum facilitators at exchange.
Best Regards,
David Cacciola
Managing Director
(Exhibit A page 401/336)
Mr Oud admitted receiving the emails as set out in paras 26, 27, and 28 of the Committee's SFC, but not the truth of their contents, and said further that in the email identified in para 26 stated, in effect, that the only thing lacking was agreement between Mr Cacciola and Mr Oud as to the process to release the funds proposed to be deposited to his trust account (Oud ASFC para 22).
At paragraph 48 of Mr Oud's statement (Exhibit K) he stated:
An important distinction needs to be explained in respect to the circumstances in which the undertaking was given and that is that all of the terms as conditions upon which the funds were to be released were negotiated between Mr Reese and Mr Oxlade. I was not privy to these negotiations and was only obliquely aware that there were other conditions certainly not the detail. As afore mentioned the scope of the retainer was specifically limited to the basis upon which the parties agreed that funds were to be accepted and then disbursed from my trust account in which I gave a solicitor's undertaking. I was approached mid negotiation as a potential resolution between the parties. Mr Reese may have thought (wrongly) that I was aware of these other conditions; however, this was not the case. I only concerned myself with the specific basis upon which I gave the undertaking period.
The Committee alleged in para 29 of its SFC:
By email sent to Mr Cacciola on 16 March 2016 at 6:08 pm (copied to Mr Reese among others), [Mr Oud] said that he could not legally comply with those conditions for the reason set out in an earlier email, being Mr Oxlade's email to Mr Cacciola referred to in paragraph 27 [of the SFC].
(Exhibit A pages 346-347)
In paras 30 and 31 of its SFC the Committee alleged:
30.Following a telephone conversation with Mr Reese and further email exchange with him, [Mr Oud] told Mr Reese in an email sent on 16 March 2016 at 6:24 pm that if Mr Reese was insisting that he agree to the proposed term that the matter was 'at an end'. In an email sent at 6.57 pm the same day [Mr Oud] told Mr Reese that he no longer acted for Mr Oxlade in respect of the matter.
[Exhibit A page 351]
31.After what he described as lengthy discussions with Mr Oxlade, [Mr Oud] sent an email to Mr Cacciola on 17 March 2016 at 12:26 pm in which he said that he had agreed to continue to represent Mr Oxlade on behalf of Irongrow, and that he would agree to a term saying that he and the firm 'agreed via the way of an undertaking that they will not transfer, move or utilise any of the loan funds without the expressed written permission of David Cacciola and Colin Oxlade on behalf of the lenders'.
[Exhibit A page 365]
Mr Oud admitted paras 30 and 31 of the SFC, save that he was acting as a sole practitioner (Oud ASFC para 24).
In Mr Oud's statement at paras 67-68 (Exhibit K) he stated:
At 9:17 am on 17 March 2016,1 emailed Mr Cacciola and advised him that after lengthy discussions with Mr Oxlade, I had agreed to continue to act 'for him' on the basis that the undertaking be amended to read (ABOD p.365)
'2. Nicholas Oud/Standpoint Lawyers agree via the way of an undertaking that they will not )transfer, move or utilise any of the said funds without the expressed written permission of David Cacciola and Colin Oxlade on behalf of the CSG.
Procedurally speaking, this would involve any written instruction to be countersigned by Mr Oxlade who then forwards to me to action. I believe that this procedure will maintain my fiduciary duty that I have to my client as I will deal with his instruction directly and not from a third party whom I am not accountable to.'
I was prepared to give an undertaking on the terms of his email, because it required the authority of Mr Oxlade (in addition to Mr Cacciola) to release the funds. The terms upon which I was prepared to agree to hold the money on trust were as per my email only. I was very detailed and specific about this condition, because it was the only condition that concerned me. This is evidenced by the fact that I set out in detail how it work "procedurally. The terms upon which I held the money did not include the 'terms and conditions' cut and pasted to the bottom of the email to Mr Reese. I was purely concerned with the undertaking that I gave. I paid no attention nor was I aware of the other conditions because they were not of concern to me nor were they raised or discussed with me. This was established right at the outset when I contacted Mr. Reese at 2.34pm on 14 March 2016 (ABOD p.323).
The email from Mr Oud stated:
Dear David
For reasons elucidated in an earlier email, legally I cannot comply with these conditions.
Yours sincerely
Nicholas Oud
Solicitor
(Exhibit A pages 400-401)
Mr Oud's email is part of the email chain and comes immediately after Mr Cacciola's email of 16 March 2016 at 2.47 pm (Exhibit A page 401/336).
Mr Oud admitted para 29 of the SFC but said that the condition to which he referred was the condition that he not transfer, move or utilise any of the funds without the expressed written permission of Mr Cacciola, because he was unwilling to accept instructions from Mr Cacciola while he was acting for Mr Oxlade.
In fact, in his email Mr Oud does not refer to a 'condition' but to 'conditions' in the plural, a clear reference to the six conditions set out in the 2.47 pm email.
The following exchange took place in crossexamination:
YOVICH, MR: And you did read this email [Exhibit A page 328] when you got it? --- No.
You didn't? --- No.
336 [401]? --- When I say I didn't read it, I didn't read it with any – like it had any particular effect because, at that point - - -
We will get there, Mr Oud? - - - --- they're suggestions that have been thrown up and they're primarily directed to Dr Fiore. I just happened to be cc'd in on these emails.
Okay. 336 [401]? --- What page are you referring to?
336 [401]. 16 March, Cacciola to Oxlade, copied to you and others. See it? --- Yes.
The six numbered conditions, three of which I had got through in the previous email, are in there again, aren't they? --- Yes.
And the fourth one:
On the supply/provision of the final test results and to the lenders' satisfaction, the 300k shall be released from Nicholas Oud, Standpoint Lawyers, trust account and paid in full to the platinum supplier.
Right? --- I see that, yes.
And you read that at the time you got it? --- No.
Okay? --- Not with any detail. I may have glanced at it, but -
Don't worry, Mr Oud. We will get there. 341. Do you see the bottom of 341? --- Yes.
An email – the email from Cacciola to Oxlade, to which you were copied; correct? --- Yes.
Setting out those conditions? --- Yes.
Three of which referred specifically to things that you were to do? --- Right.
Your email:
Dear David, for reasons elucidated in an earlier email, legally, I cannot comply with these conditions.
Correct? --- That's what I said, yes.
And you couldn't have said that unless you had read the conditions, could you? --- Well, I just read them and they were involving me personally, but I didn't look at them at any specific detail. I just said I'm I got the general gist of it. They wanted me to to give all these assurances of which I couldn't and wasn't prepared to do. So did I - - -
And so - - - ? --- Did I specifically go through and look at each question, analyse it, take it in, think what it was about, interpolate it, all the no, I didn't. No, I didn't. I I I was being copied in essentially in emails of these people having discussions without me being present about a possibility of a range of different scenarios. Now, when I got around to to to putting the question to me about this, I'm saying, 'No, I'm not prepared to do any of this'. It's not not – not my not my premise, not my business. These are the premise and the business of Colin Oxlade, and I can't give any assurances like that. It's not it's not it's not for me to do.
Page 346 [401], Mr Oud. Email from Mr Reese to you and to Mr Cacciola; yes? --- Yes.
Copied to various people, including Colin Oxlade? --- Yes.
Continuing:
Dear Nicholas, this deal seems frustrated and cannot work. No security is being offered in exchange for our client's money. In other words, your clients want an unsecured loan.
He goes on:
I think you will find - - -
? --- But that's a statement. That's not necessarily correct.
Mr Oud, I haven't finished my question:
I think you will find that it is not accurate that you cannot hold funds in your trust account and not release the funds without David's consent. Frequently this happens in conveyancing transactions
etcetera. Did you read this email? --- I I read the email from Reese and trying – because at this stage we had moved on to a discussion about the holding of the trust – it was it was specifically in relation to they were honing in on specifically in relation to the trust funds.
And Mr Reese goes on to say:
My understanding of the loan was that your clients required the money in your trust account to show the PNG people that you had the money for the platinum.
Did you read that - - - ? --- I didn't focus in or didn't pay any attention to that because it wasn't my premise.
Mr Oud, how are you able to get an email and only notice parts of it? --- Because I'm focusing on what my specific role in this is. I wasn't involved in the broader sphere of things. My – my part of the platinum deal was in the first part of the platinum deal, then this whole condition arose in respect of the loans. They were having discussions amongst – and you heard before the evidence given by by Reese that they were having their own discussions over and above all this, of which I was just cc'd on emails with the suggestions that I hadn't agreed to.
Mr Oud, you knew all through this process that unless you gave an undertaking about the funds that the loan would not happen, didn't you? --- I knew that they would that they wanted a undertaking from a solicitor, and I wasn't prepared to give it agree to any of this because they weren't part of my premise.
(ts 159-162, 20 September 2018)
Mr Oud's evidence that he did not read all of a short email of less than a page is simply not credible. His own email refers to 'conditions', not a 'condition'. Mr Oud's evidence is rejected by the Tribunal. Mr Oud read the entire email and knew of each of the conditions 1 to 6.
The undertaking given by Mr Oud appears from the following email exchange:
Tuesday, 22 March 2016 1:25 PM
Paul,
I agree to comply with the undertaking stipulated below.
1 am instructed that it is very important that the funds are in my account today. Please RTGS funds immediately and email me a copy of the receipt of the transfer of the funds forthwith.
If there is any issue with doing this please ring me.
Regards,
Nicholas Oud | Solicitor & Principal | Standpoint Legal
Tuesday, 22 March 2016 1:18 PM
Dear Nick,
Please provide a solicitors undertaking as follows:
Nicholas Oud and Standpoint Lawyers irrevocably agree to hold on trust in the Standpoint Lawyers Trust Account for Credit Solutions Group Pty Ltd the amount of $300,000.00 (funds) and undertake to not deal with, transfer, move or utilise any of the funds without the expressed written consent of David Cacciola and Colin Oxlade jointly.
Kind regards,'
Paul Reese | Director
Summer Lawyers
(Exhibit A page 422)

At para 32 of its SFC the Committee alleged:
Following further communications, final terms and conditions agreed to by Mr Oxlade, Mr Cacciola and [Mr Oud] on 22 March 2016 were as follows:
'1.Nicholas Oud/Standpoint Lawyers agree to receive the funds into his Trust Account on behalf of Credit Solutions Group. This is to show proof of funds to the platinum providers and to get the platinum flown to Australia from overseas.
2.Nicholas Oud and Standpoint Lawyers irrevocably agree to hold on trust in the Standpoint Lawyers Trust Account for Credit Solutions Group Pty Ltd the amount of $300,000.00 (funds) and undertake to not deal with, transfer, move or utilise any of the funds without the expressed written consent of David Cacciola and Colin Oxlade jointly.
3.On arrival of the bars, they will be tested in the presence of CSG by a mutually approved tester.
4.On supply/provision of the final test results and to the lenders satisfaction, the $300K shall be released from Nicholas Oud/Standpoint Lawyers Trust Account and paid in full to the Platinum suppliers contemporaneously with 20 bars of the tested platinum handed to the lenders/representative (David Cacciola).
5.The 20 bars (or platinum to the final value of the loan payout in full) shall be full and final payment of the loan.'
Save that Mr Oud agreed to the condition stated in para 2 of the terms and conditions set out in the SFC at para 32, Mr Oud denied each allegation in para 32 and said that he had no knowledge at any material time of or involvement in the negotiation of the other terms there set out (Oud ASFC para 25).
Mr Oud was aware of all of the conditions for the reasons stated above. Mr Oud was aware of the importance of the platinum bars being tested before the $300,000 would be authorised for release from Mr Oud's trust account.

Receipt and transfer of the CSG loan funds

In paras 33-36 of its SFC the Committee alleged:
33.By email sent on 22 March 2016 at 1:25 pm to Mr Reese, [Mr Oud] agreed to comply with the undertaking as set out in paragraph 2 of the above terms and conditions and told Mr Reese that he was instructed that it was very important that the funds were in his account that day.
[Exhibit A page 422]
34.By email sent on 22 March 2016 at 1:38 pm to Mr Reese, [Mr Oud] provided details of his firm's trust account to enable the loan funds to be electronically transferred into that account.
[Exhibit A page 428]
35.On 22 March 2016, [Mr Oud] received $300,000 into his firm's trust account from Mr Reese's firm on behalf of CSG (CSG loan funds).
[Exhibit A page 431]
36.Later on 22 March 2016, Mr Oxlade telephoned [Mr Oud] and told him that Mr Cacciola had agreed to the CSG loan funds being used. Mr Oxlade instructed [Mr Oud] to transfer $75,000 to him and $100,000 to a bank account in the name of Dr Fiore's partner, Kathryn McKelt. Mr Oxlade described these transactions to [Mr Oud] as a partial reimbursement for funds already sent to Mr Namah. Mr Oxlade said he would send to [Mr Oud] an authorisation signed by Mr Cacciola and him the next day.
Mr Oud admitted paras 33, 34, 35, and 36 of the SFC, and said further that he told Mr Oxlade on 22 March 2016 that he could not release the funds until he had received a written authority signed by both Messrs Oxlade and Cacciola (Oud ASFC para 26).
The Committee alleged at para 37, 38 and 39 of its SFC:
37.By email sent on 23 March 2016 at 9:19 am to [Mr Oud], Mr Oxlade said, relevantly:
'Per attached. Of the $175K please TT $75K to;
Colin G Oxlade – Commbank
BSB: [details given]
…
Balance of funds ($100K) as per previously agreed.'
[Exhibit A page 451]
38.Attached to that email was a letter addressed to [Mr Oud] and dated 23 March 2016, which was purportedly signed by Mr Oxlade and Mr Cacciola and which said:
RE: AUTHORITY TO PAY IRONGROW $300K LOAN
Per the agreed terms and conditions of the above mentioned loan, which settled into your Trust Account yesterday, please take this formal letter as instructions for the following payments(s)
$AUD 175 000.00 for previous expenses/advances to Belden Namah directly relating to the PNG Platinum deal.
[Exhibit A page 450]
39.On 23 March 2016 [The First 23 March Authority]:
39.1at 2:05 pm, [Mr Oud] transferred $75,000 from his firm's trust account to Mr Oxlade's Commonwealth Bank of Australia account;
39.2at 2:09 pm, [Mr Oud] transferred $100,000 from his firm's trust account to Kathryn McKelt's Commonwealth Bank of Australia account.
There is little or no evidence that payments to Colin Oxlade and Kathryn McKelt were a reimbursement for previous expenses/advances to Belden Namah. At best Mr Oxlade stated in an email that he had advanced his client's funds for the original purchase (see para 13 of the Committee's SFC).
Mr Oud admitted paras 37, 38, 39 of the SFC set out above and said further that he made the transfers set out in para 39 of the SFC on the basis of Mr Oxlade's instructions of 22 March 2016 (Oud's ASFC para 27). Any transfers by Mr Oud should have been on the basis of a written authority not on the basis of Mr Oxlade's instructions alone.
The following exchange took place in crossexamination:
YOVICH MR: All right. And the next morning you were given this authority by Mr Oxlade, weren't you? --- That's right.
And it said:
Per the agreed terms and conditions of the abovementioned loan, which settled into your trust account yesterday, please take this formal letter as instructions for the following payment: A$175,000 for previous expenses/advances to Belden Namah directly related to the PNG platinum deal.
? --- Yes.
Right? So if this authority was true, it authorised the payment of $175,000 to Belden Namah? --- No. No, that's where you're wrong.
Okay. It authorised the payment of $175,000 for expenses directly relating to the platinum deal? --- No. It was expenses that I've – that's what my initial – my initial retainer was, was to send up this $300,000.
So - - - ? --- That $300,000 had to be repaid. So these were funds that were paid back to those people who that sent that $300,000 up. So they were reimbursements to those people who sent the money up there.
So did this authority require the $175,000 to be paid to any particular person? --- Well, I was directed, verbally - - -
No, no. Listen carefully to my question, Mr Oud? --- No.
Okay? --- Well, wait – wait on.
No, no? --- Sorry. Wait up.
I will repeat it? --- No. Sorry. Sorry.
I will repeat the question so we're entirely clear. This is important. Listen carefully to my question, Mr Oud. Did this document authorise the payment of $175,000 to any particular person? --- This document of itself doesn't say to particular people. No.
Does this document authorise the payment of $175,000 to anyone at all? --- No, it doesn't.
Does this document authorise the payment of $175,000 for anything other than expenses/advances directly relating to the PNG platinum deal? --- They were expenses and advances that were pre-advanced. They were pre-advanced. They were a repayment. What the - - -
The question - - - ? --- Whoever - - -
My question is this: does this document authorise the payment of $175,000 for anything other than previous expenses/advances directly relating to the PNG - - - ? --- I – the - - -
- - - platinum deal? --- I don't agree with the premise of that question.
Right. I'm just asking you - - - ? --- But your question - - -
- - - whether - - -? --- doesn't make sense.
So is your answer, 'No, it does not'? --- No. I don't understand your question, because it doesn't make sense.
Does this document say, in your mind, anything at all about what should happen to the $175,000? ---Yes, it does.
Mr Oud admitted that the purported authorities did not authorise payment to anyone. The exchange continued:
Does it say that it should be paid to Belden Namah? --- No.
Does it say that it should be paid to Colin Oxlade? --- No.
Does it say that it should be paid to Kathryn McKelt? --- By implication it – it says - - -
Does it say - - - ? --- By implication it says 'payment to Colin Oxlade and Kathryn McKelt'.
By implication? --- Yes.
And you know that because you knew, independently of the document, that that's what Mr Cacciola wanted? --- No, it didn't – it didn't matter what Mr – the – the undertaking didn't – was silent as to who the moneys had to be paid to.
The undertaking expressly said that the funds would only be paid with the express written submission of Mr Cacciola? --- No. That – I totally disagree with your interpretation of that. It's not expressed. 'Expressed' means the action of sending, and that's the way that I understood it to be. Expressed as in I expressed - - -
What does 'written' mean? --- Pardon?
What does 'written' mean? --- Written and send is a letter in the form of a letter or an email.
And so if I say – if I send you an email – if I were David Cacciola and I sent you a letter saying, 'You must pay $175,000 to Colin Oxlade', were – did that letter permit you - - - ? I was --
Mr Oud again demonstrates his evasiveness:
Listen to my question. Did that email – that letter permit you to pay $175,000 to Paul Yovich;'Yes' or 'No'? --- I disagree with your question.
HIS HONOUR: Well, don't worry about disagreeing with the question, just answer it.
YOVICH, MR: Answer it? --- Okay. Repeat the question then.
If Mr Cacciola sent a letter, and Colin Oxlade co-signed it, saying, 'Pay $175,000 to Peter Fiore' and instead you paid it to Paul Yovich, would you have been complying with the terms of the letter? --- If I paid it to you, no.
If you paid it to yourself? --- No.
How could you know, from the letter – so the letter - - - Because I knew - - -
The letter provided - - - ? --- I knew.
- - - who you were allowed to pay the money to? --- I knew that the payments were made by Fiore and whoever he – funded him. So those - - -
You knew that because Oxlade told you? --- No. Because I was a participant in that pay. I – I was – that was the whole purpose of the initial retainer was that I would assist in the facilitation of the initial $300,000 to – to go to Belden Namah. That was my first retainer.
And so when - - - ? --- So that money didn't come from nowhere. That money had to be repaid.
When - - - ? --- Right? So that money was being repaid. So when they say the $175,000 had to be repaid it was for people that had – that had incurred that expense or expenses relevant to sending that money up to – to Oxlade – to – to Namah.
So it's not true to say that this letter permitted Mr Oxlade to do what he wanted with the funds? --- Sorry. Can you repeat that question?
So it's not true to say that this letter permitted Colin Oxlade to do what he wanted with the $175,000? --- I don't understand your question.
All right. Mr Oud, what I'm going to suggest to you is that, even if this letter represented what David Cacciola actually permitted, you didn't do what the letter said? --- As I explained to you, Mr Yovich - - - -
Is your answer to my question 'no'? --- No. I'm answering your question.
I'm just asking you whether you agree or disagree. You disagree? --- I'm – please, Mr Yovich. I mean – don't put words into my mouth. I'm answering your question.
No, Mr Oud. You're answering a different question? --- No. I'm not. I'm answering your question.
I want - - - ? --- Now I've forgotten your question, so you can repeat it, please.
I will ask a different question. Mr Oud, did the letter on the – that letter – page 82 – permit you to do anything other than pay $175,000 to Belden Namah? --- That's incorrect.
Other than by checking orally with Mr Cacciola - - - ? --- This has got nothing to do with Belden Namah. This is to do with the people that paid the expenses to Belden Namah.
Other than – and it didn't matter what Cacciola's letter said, you could figure out who the money was to be paid to? --- There was – I was told who to pay the money to.
By Oxlade? --- That's right.
But not by Cacciola? --- But it wasn't required by both. That was the whole point of getting a letter.
And the same is true of the second letter? --- Absolutely.
Mr Oud relied only on Mr Oxlade. His explanation that a payment to an unidentified party could constitute compliance with the terms of the undertaking is fanciful. The exchanged continued:
So you were aware – you were not aware, you say, when you released the funds, that there was any possibility that you were doing it without Mr Cacciola's actual written permission? --- No. I believe that he had signed and agreed to the recent funds expressed as he had sent written consent. I got that. I was directed where to send those funds. That's the basis upon which I did that. I relied on that.
And you didn't check with Cacciola to see that it was correct? - There was no need to check. That would defeat the whole purpose of getting written consent. That would defeat the whole purpose of me not being accountable to two masters. I would not have agreed to the undertaking in the first place if I had to do that.
Mr Oud's statement amounts to a contention that he was authorised to act contrary to the express terms of his undertaking. That is fanciful. Again Mr Oud is driven to such statements because he was aware that he had acted contrary to the terms of the undertaking.
The exchange continued:
All right? --- I was very specific about the - - -
Can I - - - ? --- No. I haven't finished yet. I was very specific about the undertaking, Mr Yovich.
Yes? --- Very specific. Because I didn't want to be in a position where I was accountable to two people.
All right? --- I was going to agree to this, and if it had said Mr Oud had to then check with Mr Cacciola about who the funds went to, then I wouldn't have agreed to the undertaking.
The only way Mr Oud could have avoided being accountable to two people was to avoid giving the undertaking. The exchange continued:
All right. I understand your position on that. In what way would a letter saying 'pay $75,000 to Colin Oxlade and pay $100,000 to Kathryn McKelt' have been problematic for you? If the letter had said that, that would have been all right, wouldn't it? --- I don't know where you're going with that, Mr – I don't understand. What are you putting to me? A hypothetical?
Yes. The question is this: if - - -
VINER, MR: Well, if it's a hypothetical, it's not a proper question.
HIS HONOUR: It is a proper question. It's an entirely proper question. It's cross-examination.
YOVICH, MR: Thank you, your Honour. If the letter had said 'pay $75,000 to Colin Oxlade for expenses relating to the platinum deal; pay $100,000 to Kathryn McKelt for expenses relating to the platinum deal', that wouldn't have been a problem for you, would it? That wouldn't have caused you to be serving two masters, would it? --- I'm not – sorry. I'm not - - -
HIS HONOUR: The question - - - ? --- Yes.
- - is very simple – very self-evident? --- And I'm not understanding it, so - - -
Well - - -
YOVICH, MR: So is it your proposition that, if the letter contained specific instructions as to who to pay the money to, you would be in a conflict of interest situation? --- I would have relied on that and done it.
And it didn't? --- It didn't but – it didn't say that but it wasn't specified as part of the undertaking that it did. If it was – and I'm not going to repeat myself.
Okay? --- But if it did, then I would have acted – I wouldn't have accepted his undertaking because I just – well, no. I wouldn't have accepted that undertaking but it would have met that. But it was – it didn't say who the money had to be – it just said 'as long as I had the express written consent of both parties'.
And the express written consent of both parties was capable of specifying who it was to be paid to, wasn't it? --- Well, what do you mean 'capable'?
Well, it could have. The express consent could have said 'pay this money to this person and that money to that person'? --- Well, it just didn't.
No? --- But it didn't - - -
And so you had no awareness of the possibility that you were doing what Mr Oxlade had permitted but not what Mr Cacciola had permitted? --- I had no reason to doubt the veracity of this letter. I had no – as far as I would know, I got a letter, it met the terms of the undertaking, and I acted upon that letter in good faith.
(ts 181-187, 20 September 2018)
The 23 March Authorisation did not authorise payment to Mr Oxlade or to Kathryn McKelt. It authorised payment to Belden Namah. Despite this Mr Oud released the funds.
The Tribunal finds that the funds were released by Mr Oud to Mr Oxlade and Ms McKelt in breach of the terms of the undertaking.
Mr Oud also submitted that unbeknownst to him:
a)the signature purporting to be the signature of Mr Cacciola on the document referred to in para 38 of the SFC: 'Authority to pay Irongrow $300K Loan' was not signed by Mr Cacciola; and
b)Mr Oxlade had fraudulently forged Mr Cacciola's signature.
(Oud ASFC para 27A)
In para 41 of its SFC the Committee alleged:
[Mr Oud] did not check with either Mr Reese or Mr Cacciola whether he was authorised to transfer the money to persons other than Mr Namah. Mr Cacciola had not in fact signed the authority purportedly signed by him, and had not in any other way consented to the transfer of the funds to Mr Oxlade or to Ms McKelt.
Mr Oud admitted para 41 of the SFC but stated further that:
1)he did not know at the time that Mr Cacciola had not in fact signed the authority purportedly signed by him nor consented to the transfer of funds to Mr Oxlade and Ms McKelt.
2)he accepted the authority identified in para 38 of the SFC, believing, based on:
i)what he was told by Mr Oxlade on 22 March 2016 set out in para 36 of the SFC; and
ii)the email sent on 23 March 2016 set out in para 37 of the SFC, that Mr Cacciaola had signed that authority; and that
3)he had no reason to think otherwise.
(Oud ASFC para 29)
Mr Oud had never seen Mr Cacciaola's signature. Mr Oud knew that the payment was inconsistent with the agreed terms. The purported letter was on Mr Oxlade's letterhead. The 'authorised' payments were not consistent with the terms of his undertaking.
Further, the platinum had not been tested and Mr Oud knew as a result of reading the conditions, that $300,000 would be released on supply/provision of the final test results. (Exhibit E pages 12-35 para 35). Although the provision of the test results was not a condition of the undertaking, the absence of the test results alerted Mr Oud to a problem.
Mr Oud had every reason to question the First 23 March Authority (see also SFC para 50 below).
On 24 March 2016, $20,000 was paid into Mr Oud's business account by way of a bank cheque. The funds were deposited by Kathryn McKelt (Exhibit G).
Mr Reese's evidence was:
44.Somewhere around this time I telephoned Nicholas. I recall asking him where the CSG loan funds had gone and on what authority he had released them given David did not provide any authority.
45.Nicholas told me that he did not know David had not in fact signed the documentation authorising the release of the CSG loan funds from his trust account. He said Mr Oxlade had duped him.
46.I asked him why did he not contact me as David's solicitor to check before he took any steps. I also asked him what had been his role in the release of the CSG loan funds. He said he had nothing to do with it. I asked him directly if he had received any benefit from the release of those funds and he initially said he did not. However, later in the telephone discussion he told me that he had got $20,000 out of the $300,000 held in his trust account. He told me he had dealt with Mr Oxlade before and that Mr Oxlade owed him this amount of money and he was 'taking money he was owed'.
47.I recall saying to him that he was conflicted, that he got a personal gain out of the funds that he released, and the call got heated. I recall he said he was making attempts to get the money paid back and the call ended when I questioned whether attempts were really being made.
(Exhibit F pages 16-17 paras 44-47)

The Tribunal rejects Mr Oud's evidence that he believed the funds would be there overnight. There was a history of Mr Oxlade promising funds that did not arrive on time or at all.
The exchange continued:
And when it wasn't overnight, you still believed it would be there? --- Until told otherwise, I believed it was coming, yes.
And we will get to you being told otherwise in a moment, but on the 30th it didn't arrive; correct?---No, it wasn't there. No.
So your letter to the Federal Magistrates Court was still untrue? --- Yes.
And you didn't correct it?---No, I didn't correct it.
And on the 31st, the money hadn't arrived?---Can I just vector in. When was Easter around that point? Is – is that Easter? I'm just curious.
30 March was a Wednesday?---Right. And is that prior to Easter or after Easter?
After? --- After Easter.
And the 31st was a Thursday – of March – and the money still wasn't there; correct? -- -Correct.
And your letter was still untrue? --- That's right.
And you took no steps to correct it? --- No, I didn't.
And the same was true on 1 April, the Friday; correct? --- Yes.
And then on 3 April you changed part of what that letter had said after calls from – it was Oxlade and Warming; correct? ---Yes.
And that's when you sent the letter to Cowell Clarke? --- That's right.
Because it had been pointed out to you that ICBC was in liquidation? --- Yes. Well - - -
And so you had to change that lie? --- I reject – it – it's not a lie.
So it was the truth? --- Well, it wasn't a lie.
(ts 117-134, 20 September 2018)
When you were working for ICBC Capital? --- It wasn't a lie.
At para 16 of its SFC-B the Committee alleged and Mr Oud admitted (Oud ASFC-B para 16A) that:
In an email sent to Mr Oxlade on 29 March 2016 at 5:25 pm and copied to Mr Warming and Dr Fiore, [Mr Oud] confirmed that he had sent the 29 March 2016 letter.
[Exhibit A pages 567-568]
At para 17 of its SFC-B the Committee alleged:
The 29 March 2016 letter contained statements that were false and misleading in that:
1[Mr Oud] did not act for, and had never acted for, ICBC, which was in liquidation as at 29 March 2016;
2as at 29 March 2016, the firm did not hold $300,000 in cleared funds in its trust account;
3as at 29 March 2016, the firm did not have instructions from ICBC to release a minimum of $200,000 (once the platinum deal was settled) to satisfy the amount owing under the creditor's petition.
Mr Oud admitted para 17 of the SFC-B above but denied intentionally deliberately making false and misleading statements when he faxed the letter (Oud ASFC-B para 17).
At paras 18-20 of its SFC-B the Committee alleged:
18.On 30 March 2016, [Mr Oud] transferred the remaining CSG loan funds ($125,000) out of the firm's trust account, leaving an overall total of $13,662.80 in the firm's trust account.
19.By email sent to Mr Oxlade on 30 March 2016 at 10.58 pm, [Mr Oud] enquired as to the position with the MT103, and saying 'give me the black & white please'.
20.On 31 March 2016, [Mr Oud] spoke to Mr Oxlade who told him that he had decided to cancel the Levi loan because it was too expensive, and that he intended to use the CSG loan funds to assist Mr Warming once the platinum deal had settled.
Mr Oud admitted para 1820 above except to say the loan was not with 'Levi' but 'Rishi' and says further that the fact that that he was actively following up the transfer of the funds into his trust account to ensure that Mr Oxlade could meet his commitment to assist Mr. Warming as was Mr Oud's understanding that it was always Mr Oxlade's intention (Oud ASFC-B para 18).
At para 21 of its SFC-B the Committee alleged:
[Mr Oud] took no steps to inform the Federal Circuit Court of the true position with respect to the matters referred to in paragraph 17 [of the SFC-B] above.
Mr Oud admitted para 21 but said that the period after the letter was sent over the Easter holiday period provided limited opportunity to take steps to inform the Federal Circuit Court (Oud ASFC para 19).
The letter was not sent over the Easter holiday period.
At para 22 of its SFC-B the Committee alleged:
Mr Warming sent an email to [Mr Oud] (copied to Mr Oxlade) on Friday 1 April 2016 at 11.24 am, in which he told [Mr Oud] that his bankruptcy hearing was on the following Monday, that 'it seems' ICBC had been wound up and that there may have been a mix up, and saying that this had caused major problems. In the email Mr Warming asked [Mr Oud] to 'clarify and if necessary send a corrective email'. He asked for an urgent response and said that [Mr Oud] could call Mr Oxlade if need be.
[Exhibit A page 570]
Mr Oud admitted receiving the email referred to in the SFC-B para 22 on Friday, 1 April 2016 but said that he did not recall reading the email at the time and did not act on it nor did he know of any problems caused by ICBC. Mr Oud said further that on the weekend of 2 and 3 April 2016 that he was holidaying in the South West of Western Australia it being part of the Easter/School holidays. He says that he was not contactable on either day. Mr Oud says that over that period he had a number of missed calls from Mr Oxlade and a message to send a corrective letter to rectify incorrect statements that were contained in the letter dated 29 March 2016. Mr Oud said that he did not receive the messages to call Mr Oxlade until Sunday evening 3 April 2016 and due to the urgency of the request he went straight to the office to deal with this request after travelling five and a half hours from the Bridgetown, South Western Australia. Upon reaching the office (on the way to another private function that he was late for), Mr Oud said he telephoned Mr Oxlade and informed him that he was in a rush, because he had another commitment to get to (Oud ASFC-B paras 20-22). The fact that Mr Oud may have been in a rush is irrelevant.
At para 23 of its SFC-B the Committee alleged:
On 3 April 2016, [Mr Oud] spoke to Mr Oxlade regarding the reference to ICBC in the 29 March 2016 letter, and Mr Oxlade dictated a letter to him for him to send to Cowell Clarke.
Mr Oud admitted para 22 and 23 of the SFC-B and said that Mr Oxlade did not dictate a prepared letter to him but believing Mr Oxlade and relying upon what he told him, he typed the letter to Mr Warming's solicitors while Mr Oxlade was on the phone.
At para 24 of its SFC-B the Committee submitted and Mr Oud admitted in relation to the Cowell Clark letter (Oud ASFC-B para 24) that:
On 3 April 2016, [Mr Oud] prepared and sent a letter to Cowell Clarke in the terms as dictated by Mr Oxlade (3 April 2016 letter), which said:
'Dear Sirs
Creditors Petition: John and Jennifer Warming ADG453/2015
I refer to my correspondence to the Court dated 29 March 2016 ('my Letter').
It has been drawn to my attention that in my Letter I referred to the company ICBC Capital Pty Ltd. This was an administrative error caused by cutting and pasting from earlier correspondence.
The trust funds are in fact held on behalf (sic) Irongrow Corporation Pty Ltd/Mr John Buckby an unrelated company.
The substance of my Letter is otherwise correct.
I apologise for the confusion this error has caused.
Yours sincerely'
[Exhibit A pages 576-577]
At para 25 of its SFC-B the Committee alleged:
The 3 April 2016 letter contained statements that were false and misleading in that [Mr Oud] was not holding any trust funds on behalf of Irongrow/Mr John Buckby in his firm's trust account, and in that it said that the substance of the 29 March 2016 letter was otherwise correct, when it was not.
Mr Oud denied that the statements contained in the Cowell Clarke letter were deliberately false and misleading as alleged in para 25 of the SFCB. Mr Oud relied upon the honesty and truth of Mr Oxlade's instructions (Oud ASFC-B para 25).

The Federal Court Registry letter

In regards to the Federal Court Registry letter of 29 March 2016, the Committee submitted the following contentions at paras 26-38 of its SFC-B that:
26.[Mr Oud] knew when he sent the 29 March 2016 letter that he did not act for ICBC in any capacity, and that he never had.
27.[Mr Oud] knew when he sent the 29 March 2016 letter that he was not holding $300,000.00 cleared funds in his trust account on behalf of ICBC or at all.
28.[Mr Oud] knew when he sent the 29 March 2016 letter that he did not have instructions or authority from ICBC or any other person or entity to release any money then in his trust account to permit satisfaction of any of the debts of either Mr or Mrs Warming.
29.[Mr Oud] knew or believed when he sent the 29 March 2016 letter that it would be read by all or some of the following people:
29.1a judicial officer of the Federal Circuit Court;
29.2creditors of Mr and Mrs Warming who had brought bankruptcy proceedings against them;
29.3solicitors acting for those creditors;
29.4solicitors acting for Mr and Mrs Warming.
30.[Mr Oud] knew or believed when he sent the 29 March 2016 letter that its contents, which he knew were false, were material to the bankruptcy proceedings against Mr and Mrs Warming.
31.[Mr Oud] also knew or believed when he sent the 29 March 2016 letter that some or all of the people who read the letter would or might rely on its contents as being true.
32.[Mr Oud], in the 29 March 2016 letter, sought to mislead anyone who read the letter, and particularly the Federal Circuit Court in Adelaide, Mr and Mrs Warming's creditors and any solicitors acting for the creditors, in order to help Mr and Mrs Warming avoid or delay the legal consequences of the bankruptcy petition against them, by representing that he had cleared funds in his trust account that were available to Mr and Mrs Warming to satisfy their creditors' claims.
33.Alternatively, [Mr Oud] was at least recklessly indifferent as to the truthfulness of the contents of the 29 March 2016 letter and as to the consequences of sending it to the Federal Circuit Court in Adelaide under his signature and on his firm's letterhead.
34.[Mr Oud's] conduct in so doing, whether knowingly or recklessly:
34.1constituted a substantial departure from the standards of conduct reasonably expected of a practitioner;
34.2fell short, by a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence;
34.3would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence;
so as to constitute professional misconduct.
35.On 3 April 2016, when he sent the 3 April 2016 letter, [Mr Oud] knew that his reference in the 29 March 2016 letter to ICBC had caused 'major problems' in relation to Mr and Mrs Warming's bankruptcy.
36.[Mr Oud] also knew that he was not holding any trust funds on behalf of Irongrow/Mr John Buckby in his firm's trust account, that the total amount of funds in his trust account was nowhere near $300,000, and that he was not authorised to release any money in his trust fund in satisfaction of debts owed by Mr and Mrs Warming.
37.The contentions set out at paragraphs 29 to 34 [of the Committee's SFC-B] apply equally to the 3 April 2016 letter, and [Mr Oud] engaged in professional misconduct when he sent the 3 April 2016 letter to Cowell Clarke.
38.[Mr Oud's] conduct in sending the 29 March 2016 letter and the 3 April 2016 individually and cumulatively constitute professional misconduct.
In relation to the Federal Court Registry letter of 29 March 2016, Mr Oud contended that:
1)He was duped by the fraudulent and deceitful conduct of Mr Oxlade in writing and sending the Federal Court Registry letter;
2)He continued to be duped by Mr Oxlade into believing he was transmitting or causing to be transmitted into his trust account funds which would satisfy the representation Mr Oxlade caused Mr Oud to make in the Federal Registry letter;
3)Notwithstanding that he was duped by Mr Oxlade as aforesaid, Mr Oud admitted in hindsight he should have better turned his mind to the content of the Federal Court Registry letter and considered it in a meaningful way. If he had done so, the inaccurate statements contained therein would have been corrected or at the very least clarified thus ameliorating the discrepancies contained therein; and
4)Notwithstanding that he was duped by Mr Oxlade, Mr Oud admitted he negligently failed to give due care and attention to the content of the letter.
(Oud ASFC-B paras 26-28 and 28A)
Mr Oud was not duped by Mr Oxlade. It was Mr Oud who knew that he did not have cleared funds in his trust account. It was Mr Oud who knew of the history of Mr Oxlade's promises. It was Mr Oud who took no steps to advise the Court that the funds had not arrived.
Mr Oud further contended that at the time he faxed the letter to the Federal Court Registry, he was of the belief that the Rishi Loan funds were on the way, as Mr Oxlade had forwarded to him a copy of a document showing a MT103 international bank transfer showing this to be the case and that these funds would be in his trust account prior to the letter being received by the Federal Court Registry. In sending the letter to Federal Court Registry, Mr Oud contended that he did so in the belief that:
1)ICBC Capital Pty Ltd was one of Mr. Oxlade's solvent companies;
2)at least $300,000 of funds were going to be deposited in his trust account overnight before the letter would have been read by the Federal Court Registry it being faxed to the Registry in Adelaide after it had closed;
3)that the release of the funds was dependent upon the settlement of the platinum transaction; and
4)that Mr. Oxlade had a genuine intention to make funds available to assist Mr. Warming.
(Oud ASFC-B paras 29 and 30)
Mr Oud contended that he did not seek to mislead anyone who read his letter to the Federal Court as alleged in para 32 of the SFC-B or send it recklessly and indifferently to its truthfulness as alleged in paras 33 and 34 of the SFC-B (Oud ASFC-B para 31).
The Tribunal finds that Mr Oud knew the contents of his letter to the Federal Magistrates Court was false and misleading. Mr Oud was subjectively aware that the contents of the letter were false and misleading. Mr Oud's subjective intent was to make false and misleading statements when he faxed the letter.

The Cowell Clarke letter

In relation to the Cowell Clarke letter of the 3 April 2016, Mr Oud contended that:
1)he was further duped by the fraudulent conduct of Mr Oxlade into writing and sending the Cowell Clarke letter;
2)having been duped by Mr Oxlade, Mr Oud nevertheless accepted that his actions in typing the Cowell Clarke letter while it was being dictated over the phone were similarly careless and negligent; and
3).being duped by Mr Oxlade's fraudulent conduct, he was led to believe and he understood at the time that it was Mr Oxlade's intention to assist Mr Warming with his bankruptcy from funds that were imminently to be deposited in Mr Oud's trust account, initially from the Rishi Loan, and then the settlement funds from the Irongrow / Platinum deal (but not the $300,000 which had been borrowed from Credit Solutions Group Pty Ltd.
(Oud ASFC-B paras 32-34)
In conclusion, Mr Oud contended that there were other mitigating circumstances occurring, at the time of sending the Federal Court Registry letter and the Cowell Clarke letter which when considered together with Mr Oxlade's fraudulent conduct should be regarded as extenuating, namely, that he was tired, stressed, time pressured; it was the Easter holiday period; he was dealing with serious personal family issues in respect to his eldest daughter and was not in a proper state of mind to have made considered judgments about Mr Oxlade's conduct and his urgent requests that he write the letters that Mr Oud did to the Federal Magistrates Court and Cowell Clarke. (Oud ASFC-B para 35)
In cross-examination the following exchange took place:
YOVICH MR: And when it wasn't overnight, you still believed it would be there? --- Until told otherwise, I believed it was coming, yes.
And we will get to you being told otherwise in a moment, but on the 30th it didn't arrive; correct? --- No, it wasn't there. No.
So your letter to the Federal Magistrates Court was still untrue? --- Yes.
And you didn't correct it? --- No, I didn't correct it.
And on the 31st, the money hadn't arrived? --- Can I just vector in. When was Easter around that point? Is – is that Easter? I'm just curious.
30 March was a Wednesday? --- Right. And is that prior to Easter or after Easter?
After? --- After Easter.
And the 31st was a Thursday – of March – and the money still wasn't there; correct? --- Correct.
And your letter was still untrue? --- That's right.
And you took no steps to correct it? --- No, I didn't.
And the same was true on 1 April, the Friday; correct? --- Yes.
And then on 3 April you changed part of what that letter had said after calls from – it was Oxlade and Warming; correct? --- Yes.
And that's when you sent the letter to Cowell Clarke? --- That's right.
Because it had been pointed out to you that ICBC was in liquidation? ---Yes. Well - - -
And so you had to change that lie? --- I reject – it – it's not a lie.
So it was the truth? --- Well, it wasn't a lie.
When you were working for ICBC Capital? --- It wasn't a lie.
That falsehood? --- I admitted that that – that was incorrect, I think, yes.
But you didn't find out that you had been caught in it until the Sunday? --- I was relying on what Colin Oxlade - - -
Right? --- - - - told me.
And when you were told something different you changed it? --- I – I did. Well, I did, because I was told by Warming. Yes.
But you didn't change the lie about the $300,000.
VINER, MR:   Well, I object to my learned friend using the word 'lie'.
YOVICH, MR: You did not change - - -
VINER, MR:   It's not professional to do that.
HIS HONOUR:   Well - - -
YOVICH, MR:   You did not change the statement about the $300,000.
HIS HONOUR:   Just a minute, Mr Yovich. He's entitled to put that it's a lie.
YOVICH, MR:   I will rephrase, your Honour. I think the tribunal gets it.
HIS HONOUR:   I mean, the untruth – because it is being put in this case is, without question, that this was a deliberate untruth, which constitutes a lie.
VINER, MR:   Well, with respect, I would have to check the application that “lie” does carry the connotation that it's an intentional untruth, as distinct from the fact that something is not true.
HIS HONOUR:   Yes. You're quite right.
VINER, MR:   That's the point of my objection.
YOVICH, MR:   And that, indeed, is our case. And on 3 April you sent the Cowell Clarke letter? --- I did send the letter, yes.
And in that letter you said that the balance of the letter you sent to the Federal Magistrates Court was true, didn't you? --- That's correct. Yes.
And by then Mr Oxlade had told you that he wasn't even pursing the Rishi loan any more because it was too expensive, hadn't he? --- He told me that. Yes.
He told you that before you sent the Cowell Clarke letter; correct? ---I would have to check the sequence of events, but I believe so.
And he told you that the platinum deal would be settling soon and there would be ample money from that; correct? --- That's right.
And you knew that the Federal Court – the letter to the Federal Court said there was $300,000 cleared funds in your account; correct?---When I say I knew, I - - -
You sent the letter? --- - - - I don't necessarily agree with that statement.
You hadn't forgotten, had you, what you said? --- Forgotten in what sense?
Forgotten the letter that you had sent on 29 March? --- I wasn't – I – I wasn't focusing on that. That's the point I was trying to make.
You were not focusing on the contents of the letter that you were reaffirming was true when you sent the Cowell Clarke letter. Is that your evidence? --- I was – I was still of the belief that – that the – the funds were going to be there.
That's not what the letter said, was it?
HIS HONOUR:   So what page is that again, the Cowell Clarke letter, Mr Yovich?
YOVICH, MR:   576 - - -
HIS HONOUR:   Thank you.
YOVICH, MR:   - - - in one of the places, your Honour.
HIS HONOUR:   Yes.
YOVICH, MR:   So let's go to that then.
HIS HONOUR:   It's all right. Well, I (indistinct)
YOVICH, MR:   I will make sure Mr Oud has got it. I don't want to be unfair to him.
HIS HONOUR:   (indistinct)
YOVICH, MR:   Do you see that letter at 576? ---Yes, I do.
Written by you? --- It was – it was dictated to me, yes.
You wrote it; correct? --- I did write it. Yes.
You signed it? --- That's correct.
Sent it Cowell Clarke Solicitors? --- I did.
You refer to your previous letter of 29 March 2016; correct? --- I do.
You correct the error about ICBC Capital? --- Yes.
You say the trust funds are in fact held on behalf of Irongrow and Mr Buckby? --- I said that, yes.
And the trust funds - - -? --- Well – yes.
That's what the letter says that you wrote and signed? --- Well, it was dictated to me, yes. And I – I wasn't – yes. That's - - -
Yes? --- That's correct. Yes.
But you wrote down the words that were dictated to you, didn't you?     ---I did.
Knowing that there were no trust funds in your account for Irongrow; correct? --- At that point in time, no, there were no trust funds.
And you then say – or the letter then says, which you wrote and did not change, 'The substance of my letter is otherwise correct', didn't you? --- That's what I've just – if that's what it says there. Yes.
And you said it there, because you typed it? --- Yes, as dictated to me.
And when you typed it you knew the words you were typing? --- Well, I typed it. Yes.
And when you typed it you knew the words you were typing, didn't you? --- Well, that's a loaded question. Did I know the – I knew I was typing those words, yes.
Thank you. And you knew those words were untrue? --- Well, I was aware that – that there was no funds in my trust account at that point. Yes.
And therefore the words were untrue? --- Well, by definition of that they're untrue. Yes.
You said that you did not intend to mislead or deceive anyone? --- No.
But you expected the letter to be read; correct? --- I expected the letter to be read. Yes.
You've said in correspondence with the committee that you felt the reason for sending it was that you felt for someone in Mr Warming's position; correct? --- That's why I agreed to send this – the letter, because of the mistakes that were in the first one.
And therefore that, in sending the letter, your motivation was to help Mr Warming; correct? --- My – my motivation was to express the fact that Colin Oxlade was going to help Mr Warming.
And that you were helping Mr Oxlade help Mr Warming by sending this letter as a solicitor? --- I was just correcting – well, I – I was correcting a letter that – that had mistakes in it. I didn't refer back to the other letter. I should have. It's a debacle. I should have done that.
You wanted people who read your letter to believe it was true, didn't you? --- Well, did I want people to believe that it was true? My intention was to correct it – to correct the mistakes in the other letter.
And therefore that people reading the letter would say, 'There are mistakes in the earlier letter. If we put those aside, this letter is true'? --- There were funds going to be made available. Yes.
Uh-uh? --- That's what I believed at the time.
Answer to a different question, Mr Oud. Your letter says the trust funds are in fact held by you; correct? --- Yes.
And the substance of your previous letter, which says the trust funds are in your account, is otherwise correct. That's what the letter says? --- It says that. Yes.
And you knew it said that? --- Well, I knew that – that there were funds coming into my trust account. I believed that to be the case.
Different question. You knew that the letter had said they were there, didn't you? --- I believed that they were going to be there, yes.
(ts 134-139, 20 September 2018)

Further, Mr Oud's letter to Cowell Clarke was untrue. The Tribunal finds that Mr Oud knew the contents of his letter to be false and misleading. Mr Oud was subjectively aware that the contents were false and misleading. Mr Oud's subjective intent in writing the letter to Cowell Clarke was to mislead Cowell Clarke to believe that he held $300,000 in his trust account when in fact Mr Oud did not hold $300,000 and he knew he did not.
Mr Oud's conduct was entirely reprehensible. He knowingly misled a court. He continued to mislead the court when the funds had not arrived. He breached a fundamental duty which overrode any duty to his client. He misled his fellow practitioners.
No practitioner could have any confidence in Mr Oud's word.
The Tribunal finds that Mr Oud between 29 March 2016 and 3 April 2016 inclusive, in connection with a creditor's petition in respect of John and Jennifer Warming filed in the Federal Circuit Court in Adelaide ADG453/2015, engaged in professional misconduct within the meaning of s 403 and s438 of the LP Act in that his conduct fell short, consistently and by a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence and would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, by preparing and sending:
1)a letter addressed to the Federal Circuit Court in Adelaide dated 29 March 2016 that contained the following statements:
a)that Mr Ouds acts for ICBC, which statement was false and misleading as, in truth, Mr Oud did not then and never had acted for ICBC, and ICBC at that time was in liquidation;
b)that Mr Oud is currently holding $300,000.00 cleared funds in his trust account, which statement was false and misleading as, in truth, Mr Oud was holding $138,662.80 in his trust account as at 29 March 2016;
c)that his client was aware of current bankruptcy proceedings against Mr and Mrs Warming listed in the Adelaide Registry, and was prepared to assist the Debtors' position, which statement was false and misleading as, in truth, Mr Oud did not and never had acted for ICBC, and he had no instructions to that effect;
d)that Mr Oud had been instructed to release upon settlement of a pending commodity transaction a minimum of $200,000.00 to permit satisfaction of the petition amount, which statement was false and misleading as, in truth, the practitioner did not have any funds in trust at that time which were subject to such instructions;
2)a letter to solicitors Cowell Clarke dated 3 April 2016, which he knew was intended to be used by Mr Warming in connection with the hearing of the creditor's petition scheduled for 4 April 2016, that referred to the 29 March 2016 letter and contained the following statements:
(a)that his reference to ICBC was a 'cut and paste error', and that he was in fact holding the trust funds (being a reference to the $300,000.00 referred to in the 29 March 2016 letter) on behalf of Irongrow Corporation Pty Ltd / Mr John Buckby, a company unrelated to ICBC, which statement was false and misleading as, in truth, Mr Oud was not at that time holding any trust funds on behalf of Irongrow Corporation Pty Ltd/ Mr John Buckby;
(b)that the substance of the 29 March 2016 letter was otherwise correct, which statement was false and misleading as, in truth, the 29 March 2016 statements were all untrue,
in circumstances where, when making the 29 March 2016 statements and the 3 April 2016 statements, Mr Oud well knew each of the 29 March 2016 statements and the 3 April 2016 statements was false and misleading and had the potential to mislead the Federal Circuit Court and/or the party which had presented the creditor's petition and/or Mr and Mrs Warming's solicitors, Cowell Clarke;
It was put to Mr Oud that his evidence was deliberately dishonest by counsel for the Board.
The way in which the proceedings were run means that Mr Oud was on notice that there was a risk of finding of dishonest evidence being made and used by the Board in determining what final order should be made and Mr Oud had an ample opportunity to deal with the prospect of such a finding.
The Tribunal finds that Mr Oud was a deliberately dishonest witness.

Orders

1.The Tribunal finds that Nicholas Neil Peter Oud behaved in a way that constitutes professional misconduct and/or unsatisfactory professional conduct for the purposes of the Legal Profession Act 2008 (WA) in six of the grounds as alleged by the Legal Profession Complaints Committee as follows:
Annexure A
Ground 1
That Nicholas Neil Peter Oud (the practitioner) between 23 March 2016 and 30 March 2016, in connection with acting for Mr Colin Oxlade and/or Dr Peter Fiore, or alternatively Irongrow Corporation Pty Ltd (Irongrow), in respect of a proposed purchase of platinum, engaged in professional misconduct within the meaning of s 403 and s 438 of the Legal Profession Act 2008 (WA) in that his conduct fell short, consistently or by a substantial degree, or both, of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner, by disbursing from the firm's trust account $300,000 (CSG loan funds) which had been received into trust on behalf of Credit Solutions Group Pty Ltd (CSG) for use in connection with the purchase of the platinum, in circumstances where:
(1)the practitioner undertook to CSG not to deal with, transfer, move or use the CSG loan funds without the expressed written consent of Mr David Cacciola on behalf of CSG, and Mr Oxlade (the undertaking);
(2)the practitioner disbursed the CSG loan funds without the expressed written consent of Mr Cacciola, and contrary to purported written consents he had received;
(3)in releasing the CSG loan funds the practitioner acted in reckless disregard or with reckless indifference as to whether he was in breach of his undertaking by doing so.

Ground 2
That Nicholas Neil Peter Oud (the practitioner) in March and April 2016 engaged in unsatisfactory professional conduct within the meaning of s 402 and s 438 of the Legal Profession Act 2008 (WA) in that his conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent practitioner by failing to keep his firm's trust records in a way that disclosed the true position in relation to withdrawals from trust of the CSG loan funds, in that the trust records did not accurately record the names of the persons who received the funds and the names or BSB numbers of the bank accounts into which the funds were paid as required by reg 45 of the Legal Profession Regulations 2009 (WA) and s 228(3)(b) of the Legal Profession Act 2008 (WA).
Ground 3
That Nicholas Neil Peter Oud (the practitioner) in March and April 2016 engaged in unsatisfactory professional conduct within the meaning of s 402 and s 438 of the Legal Profession Act 2008 (WA) in that his conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent practitioner by failing to deliver to CSG's solicitor Mr Paul Reese the original receipt made out by the practitioner for the receipt of the CSG loan funds into his trust account when requested to do so by Mr Reese by emails sent to the practitioner on 22 March 2016 and 28 April 2016, in breach of reg 41(2) and reg 41(6) of the Legal Profession Regulations 2009 (WA).
Ground 4
That Nicholas Neil Peter Oud (the practitioner) in or about April 2016 engaged in professional misconduct within the meaning of s 403 and s 438 of the Legal Profession Act 2008 (WA) in that his conduct would be reasonably regarded as disgraceful and dishonourable by practitioners of good repute and competence and, to a substantial degree, fell short of the standard of professional conduct observed by members of the profession of good repute and competence in responding to an email from Mr Reese requiring the CSG loan funds to be returned from the practitioner's firm's trust account to Mr Reese's trust account, when the practitioner sent a series of emails to Mr Reese on 28 and 29 April 2016 which:
(1)did not disclose the fact that he no longer retained the CSG loan funds in his firm's trust account;
(2)implied that the practitioner did retain the CSG loan funds and was in a position to return the CSG loan funds to Mr Reese's trust account,

and which conveyed the impression that the CSG loan funds were retained in his firm's trust account and were available to be returned to Mr Reese's trust account when, in truth, the practitioner had disbursed the CSG loan funds and was not in a position to effect the return of the CSG loan funds to Mr Reese's trust account, and which impression the practitioner permitted to remain uncorrected in circumstances where the practitioner knew the emails were misleading in a material respect.
Ground 5
That Nicholas Neil Peter Oud (the practitioner) on 9 May 2016 engaged in professional misconduct within the meaning of s 403 and s 438 of the Legal Profession Act 2008 (WA) in that his conduct would be reasonably regarded as disgraceful and dishonourable by practitioners of good repute and competence and, to a substantial degree, fell short of the standard of professional conduct observed by members of the profession of good repute and competence by conveying an offer from Mr Oxlade to Mr Reese to repay the CSG loan funds that was contingent upon Mr Reese withdrawing a complaint he had made to Legal Profession Complaints Committee against the practitioner in relation to the practitioner's breach of his undertaking with respect to the CSG loan funds.
Annexure B
Ground
That Nicholas Neil Peter Oud (the practitioner) between 29 March 2016 and 3 April 2016 inclusive, in connection with a creditor's petition in respect of John and Jennifer Warming (Mr & Mrs Warming) filed in the Federal Circuit Court in Adelaide ADG453/2015 (creditor's petition), engaged in professional misconduct within the meaning of s 403 and s 438 of the Legal Profession Act 2008 (WA) in that his conduct fell short, consistently and by a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence and would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, by preparing and sending:
(1)a letter addressed to the Federal Circuit Court in Adelaide dated 29 March 2016 (the 29 March 2016 letter) that contained the following statements (together, the 29 March 2016 statements):
(a)that the practitioner acts for ICBC Capital Pty Ltd (ICBC), which statement was false and misleading as, in truth, the practitioner did not then and never had acted for ICBC, and ICBC at that time was in liquidation;
(b)that the practitioner is currently holding $300,000.00 cleared funds in his trust account, which statement was false and misleading as, in truth, the practitioner was holding $138,662.80 in his trust account as at 29 March 2016;
(c)that his client was aware of current bankruptcy proceedings against Mr and Mrs Warming listed in the Adelaide Registry, and was prepared to assist the Debtors' position, which statement was false and misleading as, in truth, the practitioner did not and never had acted for ICBC, and he had no instructions to that effect;
(d)that the practitioner had been instructed to release upon settlement of a pending commodity transaction a minimum of $200,000.00 to permit satisfaction of the petition amount, which statement was false and misleading as, in truth, the practitioner did not have any funds in trust at that time which were subject to such instructions;

(2)a letter to solicitors Cowell Clarke dated 3 April 2016, which he knew was intended to be used by Mr Warming in connection with the hearing of the creditor's petition scheduled for 4 April 2016, that referred to the 29 March 2016 letter and contained the following statements (together, the 3 April 2016 statements):
(a)that his reference to ICBC Capital Pty Ltd was a 'cut and paste error', and that he was in fact holding the trust funds (being a reference to the $300,000.00 referred to in the 29 March 2016 letter) on behalf of Irongrow Corporation Pty Ltd /Mr John Buckby, a company unrelated to ICBC, which statement was false and misleading as, in truth, the practitioner was not at that time holding any trust funds on behalf of Irongrow Corporation Pty Ltd / Mr John Buckby;
(b)that the substance of the 29 March 2016 letter was otherwise correct, which statement was false and misleading as, in truth, the 29 March 2016 statements were all untrue,

in circumstances where, when making the 29 March 2016 statements and the 3 April 2016 statements, the practitioner well knew each of the 29 March 2016 statements and the 3 April 2016 statements was false and misleading and had the potential to mislead the Federal Circuit Court and/or the party which had presented the creditor's petition and/or Mr & Mrs Warming's solicitors, Cowell Clarke;

2.The Legal Complaints Committee is to file and serve its written submissions on penalty and costs by 19 November 2018.
3.Mr Nicholas Neil Peter Oud is to file and serve his written submissions on penalty and costs by 3 December 2018.
4.Subject to any further order of the Tribunal, the question of penalty and costs is to be dealt with entirely on the documents.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MDM
ASSOCIATE TO JUSTICE CURTHOYS
5 NOVEMBER 2018