Prothonotary V Holt

Case [2008] NSWCA 136

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Prothonotary v Holt [2008] NSWCA 136

FILE NUMBER(S):
40682/07

HEARING DATE(S):
4 June 2008

JUDGMENT DATE:
13 June 2008

PARTIES:
Prothonotary of the Supreme Court of New South Wales  (Appellant)
John Colin Holt  (Respondent)

JUDGMENT OF:
Tobias JA McColl JA Gzell J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 04/11/1253

LOWER COURT JUDICIAL OFFICER:
Hock J

LOWER COURT DATE OF DECISION:
30 June 2006

COUNSEL:
Mr R Wilson (Appellant)

SOLICITORS:
Crown Solicitor (Appellant)
Graham Chegwidden, Solicitor & Barrister (Respondent)

CATCHWORDS:
LEGAL PRACTITIONERS - Application to remove from Local Roll - Convicted of criminal offences - As solicitor for deceased, appointed as sole executor and trustee of estate - Appropriating trust property - Practising without holding a practising certificate - Whether guilty of professional misconduct - Whether not a person of good fame and character - Whether not a fit and proper person to remain on Local Roll - Whether name should be removed from Local Roll

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470
Myers v Elman [1940] AC 282
New South Wales Bar Association v Cummins [2001] NSWCA 284, (2001) 52 NSWLR 279
Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320

TEXTS CITED:

DECISION:

  1. Declare that the opponent is guilty of professional misconduct in that:

  1. on 2 July 1993 the opponent engaged in conduct of a dishonest nature for which, on 30 June 2006 at the Sydney District Court, he was convicted of the offence of:
    being the trustee of property wholly for the benefit of the beneficiaries of the Estate of the late James McEwan King, appropriating that property (a unit at 13/281 Sussex St Sydney) for his own use in violation of good faith and with intent to defraud, contrary to s 172 of the Crimes Act 1900. (“King Count 1”);

  2. between 5 August 1993 and 21 February 1997 the opponent engaged in conduct of a dishonest nature for which, on 30 June 2006 at the Sydney District Court, he was convicted of the offence of:
    being the trustee of property wholly for the benefit of the beneficiaries of the Estate of the late James McEwan King, appropriating that property (money in the sum of $29,310.00) for his own use in violation of good faith and with intent to defraud, contrary to s 172 of the Crimes Act 1900. (“King Count 2”);

  3. on 21 August 1997 the opponent engaged in conduct of a dishonest nature for which he was convicted on 30 June 2006 at the Sydney District Court of the offence of:
    obtaining property (money in the sum of $1,000.00) by a false pretence (to Margaret Fisher that he held a current Practising Certificate authorising him to practise as a solicitor in the State of New South Wales) with intent to defraud, contrary to s 179 of the Crimes Act 1900.…

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AGLC
Prothonotary v Holt [2008] NSWCA 136
Case
[2008] NSWCA 136
Decision Date

CaseChat Overview and Summary

The proceedings concerned an application by the Prothonotary to remove the opponent, a solicitor, from the Local Roll of lawyers of the Supreme Court of New South Wales. The dispute arose from the opponent's convictions for criminal offences, including the appropriation of trust property as executor and trustee of an estate, and practising as a solicitor without holding a current practising certificate. The court was required to determine whether the opponent was guilty of professional misconduct, whether he was a person of good fame and character, and whether he was a fit and proper person to remain on the Local Roll.

The court found the opponent guilty of professional misconduct based on a series of dishonest acts. These included appropriating property from the Estate of the late James McEwan King, for which he was convicted under s 172 of the Crimes Act 1900. Furthermore, he was convicted of obtaining property by false pretences, specifically by representing to Margaret Fisher that he held a current practising certificate when he did not, contrary to s 179 of the Crimes Act 1900. The court also considered conduct where the opponent failed to disclose a mortgage over trust property and deliberately omitted information about this mortgage from solicitors for the estate beneficiaries. His practice as a solicitor without a valid practising certificate between 1997 and 1998 was also found to be misconduct. Finally, the court noted his dishonest assertions to police regarding a loan secured by trust property.

Applying the principles of legal professional discipline, the court concluded that the opponent's conduct demonstrated a severe lack of integrity and trustworthiness. The convictions for dishonesty and the practice of law without a licence were deemed to be fundamentally incompatible with the standards expected of a legal practitioner. Consequently, the court declared that the opponent was not a person of good fame and character and was not a fit and proper person to remain on the Local Roll. The court ordered that the name of the opponent be removed from the Local Roll of lawyers of the Supreme Court of New South Wales.

Orders

Orders of the court

1. Declare that the opponent is guilty of professional misconduct in that: (i) on 2 July 1993 the opponent engaged in conduct of a dishonest nature for which, on 30 June 2006 at the Sydney District Court, he was convicted of the offence of: being the trustee of property wholly for the benefit of the beneficiaries of the Estate of the late James McEwan King, appropriating that property (a unit at 13/281 Sussex St Sydney) for his own use in violation of good faith and with intent to defraud, contrary to s 172 of the Crimes Act 1900. ("King Count 1"); (ii) between 5 August 1993 and 21 February 1997 the opponent engaged in conduct of a dishonest nature for which, on 30 June 2006 at the Sydney District Court, he was convicted of the offence of: being the trustee of property wholly for the benefit of the beneficiaries of the Estate of the late James McEwan King, appropriating that property (money in the sum of $29,310.00) for his own use in violation of good faith and with intent to defraud, contrary to s 172 of the Crimes Act 1900. ("King Count 2"); (iii) on 21 August 1997 the opponent engaged in conduct of a dishonest nature for which he was convicted on 30 June 2006 at the Sydney District Court of the offence of: obtaining property (money in the sum of $1,000.00) by a false pretence (to Margaret Fisher that he held a current Practising Certificate authorising him to practise as a solicitor in the State of New South Wales) with intent to defraud, contrary to s 179 of the Crimes Act 1900. ("Fisher Count 1"); (iv) on 16 July 1998 the opponent engaged in conduct of a dishonest nature for which he was convicted on 30 June 2006 at the Sydney District Court of the offence of: obtaining property (money in the sum of $1,000.00) by a false pretence (to Margaret Fisher that he held a current Practising Certificate authorising him to practise as a solicitor in the State of New South Wales) with intent to defraud, contrary to s 179 of the Crimes Act 1900. ("Fisher Count 2"); (v) on 10 September 1997 the opponent engaged in conduct of a dishonest nature for which, upon his admission and upon being convicted of Fisher Count 1, the following offence was taken into account on a Form 1, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999: obtaining property (money in the sum of $500.00) by a false pretence (to Margaret Fisher that he held a current Practising Certificate authorising him to practise as a solicitor in the State of New South Wales) with intent to defraud, contrary to s 179 of the Crimes Act 1900. ("Fisher Form 1 Offence 1"); (vi) on 3 October 1997 the opponent engaged in conduct of a dishonest nature for which, upon his admission and upon being convicted of Fisher Count 1, the following offence was taken into account on a Form 1, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999: obtaining property (money in the sum of $1,000.00) by a false pretence (to Margaret Fisher that he held a current Practising Certificate authorising him to practise as a solicitor in the State of New South Wales) with intent to defraud, contrary to s 179 of the Crimes Act 1900. ("Fisher Form 1 Offence 2"); (vii) on 7 November 1997 the opponent engaged in conduct of a dishonest nature for which, upon his admission and upon being convicted of Fisher Count 1, the following offence was taken into account on a Form 1, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999: obtaining property (money in the sum of $500.00) by a false pretence (to Margaret Fisher that he held a current Practising Certificate authorising him to practise as a solicitor in the State of New South Wales) with intent to defraud, contrary to s 179 of the Crimes Act 1900. ("Fisher Form 1 Offence 3"); (viii) on 12 December 1997 the opponent engaged in conduct of a dishonest nature for which, upon his admission and upon being convicted of Fisher Count 1, the following offence was taken into account on a Form 1, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999: obtaining property (money in the sum of $1,500.00) by a false pretence (to Margaret Fisher that he held a current Practising Certificate authorising him to practise as a solicitor in the State of New South Wales) with intent to defraud, contrary to s 179 of the Crimes Act 1900. ("Fisher Form 1 Offence 4"); (ix) on 23 January 1998 the opponent engaged in conduct of a dishonest nature for which, upon his admission and upon being convicted of Fisher Count 1, the following offence was taken into account on a Form 1, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999: obtaining property (money in the sum of $500.00) by a false pretence (to Margaret Fisher that he held a current Practising Certificate authorising him to practise as a solicitor in the State of New South Wales) with intent to defraud, contrary to s 179 of the Crimes Act 1900. ("Fisher Form 1 Offence 5"); (x) on 16 March 1998 the opponent engaged in conduct of a dishonest nature for which, upon his admission and upon being convicted of Fisher Count 1, the following offence was taken into account on a Form 1, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999: obtaining property (money in the sum of $1,500.00) by a false pretence (to Margaret Fisher that he held a current Practising Certificate authorising him to practise as a solicitor in the State of New South Wales) with intent to defraud, contrary to s 179 of the Crimes Act 1900. ("Fisher Form 1 Offence 6"); (xi) on 6 April 1998 the opponent engaged in conduct of a dishonest nature for which, upon his admission and upon being convicted of Fisher Count 1, the following offence was taken into account on a Form 1, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999: obtaining property (money in the sum of $1,000.00) by a false pretence (to Margaret Fisher that he held a current Practising Certificate authorising him to practise as a solicitor in the State of New South Wales) with intent to defraud, contrary to s 179 of the Crimes Act 1900. ("Fisher Form 1 Offence 7"); (xii) on 27 April 1998 the opponent engaged in conduct of a dishonest nature for which, upon his admission and upon being convicted of Fisher Count 1, the following offence was taken into account on a Form 1, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999: obtaining property (money in the sum of $500.00) by a false pretence (to Margaret Fisher that he held a current Practising Certificate authorising him to practise as a solicitor in the State of New South Wales) with intent to defraud, contrary to s 179 of the Crimes Act 1900. ("Fisher Form 1 Offence 8"); (xiii) on 28 April 1998 the opponent engaged in conduct of a dishonest nature for which, upon his admission and upon being convicted of Fisher Count 1, the following offence was taken into account on a Form 1, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999: obtaining property (money in the sum of $500.00) by a false pretence (to Margaret Fisher that he held a current Practising Certificate authorising him to practise as a solicitor in the State of New South Wales) with intent to defraud, contrary to s 179 of the Crimes Act 1900. ("Fisher Form 1 Offence 9"); (xiv) on 26 May 1998 the opponent engaged in conduct of a dishonest nature for which, upon his admission and upon being convicted of Fisher Count 1, the following offence was taken into account on a Form 1, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999: obtaining property (money in the sum of $1,000.00) by a false pretence (to Margaret Fisher that he held a current Practising Certificate authorising him to practise as a solicitor in the State of New South Wales) with intent to defraud, contrary to s 179 of the Crimes Act 1900. ("Fisher Form 1 Offence 10"); (xv) between about 15 April and 3 July 1993 the opponent engaged in conduct of a dishonest nature, when applying for a loan to be secured by a mortgage over unit 13/281 Sussex St Sydney ("the Vintage"), by failing to advise the Advance Bank that he held that unit in trust for the Estate of the late James McEwan King ("the King Estate") and holding himself out as the true owner; (xvi) on or about 11 November 1993 the opponent engaged in conduct of a dishonest nature, in breach of his duty of candour to his professional colleagues and in breach of his fiduciary duty to the beneficiaries of the King Estate by, when sending a letter to the solicitors for the beneficiaries of the estate setting out the assets, income and liabilities of the estate, deliberately omitting to mention that the Vintage had been mortgaged to the Advance Bank as security for a loan of $250,000.00; (xvii) between 21 August 1997 and 16 July 1998 the opponent held himself out to be a solicitor without being the holder of a current practising certificate, contrary to s 25(3) of the Legal Profession Act 1987 (as it then was); (xviii) between 9 April 2001 and 21 May 2001 the opponent engaged in conduct of a dishonest nature by falsely and repeatedly asserting to police, who were investigating the conduct the subject of King Counts 1 and 2, that the advancing of funds by the Advance Bank to the opponent and associated companies, pursuant to a loan secured by the Vintage, had been the result of an error on the part of himself and the bank. 2. Declare that the opponent is not a person of good fame and character. 3. Declare that the opponent is not a fit and proper person to remain on the Local Roll of lawyers of the Supreme Court of New South Wales. 4. Order that the name of the opponent be removed from the Local Roll of lawyers of the Supreme Court of New South Wales. (per Gzell J, remainder of the Court agreeing)

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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