Queensland Law Soc Inc & Anor v PA Sande
[1997] QSC 57
•1 April 1997
IN THE SUPREME COURT
OF QUEENSLAND
No. 713 of 1995
[Queensland Law Soc Inc & Anor v. P.A. Sande]
BETWEEN:
THE QUEENSLAND LAW SOCIETY INCORPORATED and
THE COUNCIL OF THE QUEENSLAND LAW SOCIETY INCORPORATED
Applicant/Prosecutors
AND:
PAUL ALEXANDER SANDE
RespondentREASONS FOR JUDGMENT - THOMAS J
Delivered:1 April 1997
CATCHWORDS: CONTEMPT, ATTACHMENT AND SEQUESTRATION - contempt of court - breach of injunction - acting or practising as a solicitor or conveyancer - directly or indirectly - drawing or preparing an instrument relating to real estate for reward without certificate.
SOLICITORS - acts amounting to practice as a solicitor - acts amounting to practice as conveyancer - whether delegation to agents or subcontractors - whether engagement of third persons alters nature of act of principal who undertakes for reward provision of overall conveyancing service - acts in Queensland by uncertificated person allegedly as agent for SA land-broker acting as "principal" on behalf of Queensland clients - acts of "agent" in Queensland still prohibited - Law Society NSW v. Ramalca (1988) 12 NSWLR 34 discussed - stamping - lodgment - searches - requisitions on title - settlement statements - giving of legal advice - whether documents relating to real estate drawn or prepared in Queensland.
INJUNCTION - restraint against individual from acting or practising in Queensland as solicitor or conveyancer - conveyancing practice conducted by company of which individual was major shareholder, director and manager, who personally devised system and caused and procured acts of company - whether injunction breached.
STATUTES - interpretation - whether definition in rules governs meaning of words in Act.
Queensland Law Society Act 1952 ss. 5, 38, 39, 46; Legal Practitioners Act 1995 s. 19.
Counsel:Mr R. Perry for the Plaintiffs
Mr S. English for the Defendant
Solicitors:McCullough Robertson for the Plaintiffs
Mr Richard Keller for the Defendant
Hearing date: 10-17 March 1997
IN THE SUPREME COURT
OF QUEENSLAND No. 713 of 1995
[Queensland Law Soc Inc & Anor v. P.A. Sande]
BETWEEN:
THE QUEENSLAND LAW SOCIETY INCORPORATED and
THE COUNCIL OF THE QUEENSLAND LAW SOCIETY INCORPORATED
Applicant/Prosecutors
AND:
PAUL ALEXANDER SANDE
Respondent
REASONS FOR JUDGMENT - THOMAS J
Judgment delivered 1 April 1997I n d e x
Facts............................................................................................................................................. 2
Engagement of Duncan Sande & Associates....................................................................... 6
Services offered and provided by RCS............................................................................... 9
The standard retainer (post injunction)................................................................................ 11
Absence of certification...................................................................................................... 13
A typical conveyancing transaction..................................................................................... 14
Further activity of RCS...................................................................................................... 20
Advice and negotiation........................................................................................... 20
Other parts of the service (requisitions, searches, stamping, lodging, settlement statements) 21
General................................................................................................................. 23
Issues and Findings.................................................................................................................... 24
Knowledge of order.......................................................................................................... 24
Standard of proof.............................................................................................................. 24
"Practising as a conveyancer"............................................................................................. 24
Activity of RCS................................................................................................................. 28
Conveyancing practice........................................................................................... 28
Attempted delegation of drafting............................................................................. 29
Stamping, lodging, etc. - whether done as agent for Duncan Sande & Associates.... 33
Personal acts of Mr Sande................................................................................................. 36
Practising as a solicitor or conveyancer................................................................... 36
Drawing or preparing instruments in Queensland..................................................... 40
Conclusions................................................................................................................................. 46
This is a motion to commit Mr Sande to prison for contempt by reason of breach of an order of this Court made on 5 June 1995.
It is common ground that the order took effect no later than 28 June 1995. Shortly stated, the order restrained Mr Sande
"from directly or indirectly acting or practising in Queensland as a solicitor or conveyancer . . . without . . . [a] certificate [under s.38 of the Queensland Law Society Act]" and
"from directly or indirectly, for expectation of fee gain or reward, drawing or preparing a conveyance or other deed or instrument in writing relating to real estate, in the State of Queensland."
The notice of motion cites fourteen particular instances of breaches of each part of the order, referring to certain services and activity performed for fourteen named persons.
Facts
Mr Sande has a certificate in land-broking from the South Australian Department of Further Education and is qualified to practise as a land-broker in South Australia. For some years he has asserted the right to practise by one means or another as a conveyancer in Queensland. His activities have been largely centred around those of his company, which changed its name to Property Pack Australia Pty Ltd ("Property Pack") on 15 June 1992. At material times he has been the manager, director and secretary of the company. His wife is the only other director. The profit entitlements from the activities of the company are complex. Mr Sande disclaimed knowledge of the actual position, saying that "those affairs are left to my accountants". However he and his wife each have an expectation of receiving approximately fifty percent of any company profits.
Property Pack is a company registered in South Australia and its principal activity is stated as "property conveyancing". Its principal place of business is given as Suite 2, 31 Crombie Avenue, Bundall, Queensland.
Property Pack has registered a business name in Queensland, namely Realty Conveyancing Services ("RCS"). The name was registered on 12 January 1994, and a business names search contains the entry that business commenced on 1 January 1994. The nature of business is described as "conveyancing services".
Issues will need to be determined concerning the extent to which Property Pack (trading RCS) was a relevant actor for whose actions Mr Sande cannot be held accountable, and also the extent to which Mr Sande's personal actions render him liable. For convenience of discussion at this stage, I shall describe the relevant dealings as those of RCS, as that is the business name under which they were conducted. References to RCS are of course to Property Pack trading as RCS Generally speaking, in dealings with clients, RCS was held out as the entity which would look after the client and Mr Sande was held out as its expert who would provide the necessary guidance.
Mr Sande has at all material times been employed by Property Pack as its manager. Mr Sande thinks that his weekly wage is $100. He also says that he has received a salary payable weekly from which PAYE taxation deductions have been made. I infer that that must have happened before the wage was fixed at $100 per week. Mr Sande also has his motor-vehicle expenses paid by Property Pack, and receives directors' drawings.
Some time after the coming into effect of the Mutual Recognition legislation (Mutual Recognition Act 1992 (Cwth) and Mutual Recognition (Qld) Act 1992), Property Pack set up business in Queensland, offering conveyancing services under its business name "Realty Conveyancing Services". However, in 1994 both Property Pack and Mr Sande were prosecuted by the Queensland Law Society. Mr Sande pleaded guilty under s.39(1) of the Queensland Law Society Act to acting directly or indirectly as a conveyancer and practising directly or indirectly as a conveyancer without having at the time a certificate under s.38. The admissions that were then formally made by Mr Sande to the Magistrate's Court included admissions that he directly or indirectly practised as a conveyancer, that Property Pack directly or indirectly practised as a conveyancer, and that he, Mr Sande, as a shareholder in, director of and having management and control of Property Pack was knowingly a party to Property Pack practising or acting as a conveyancer.
In this context it is relevant to note s.39(3) of the Queensland Law Society Act which provides -"(3) Where a person, being a body corporate, is guilty of an offence against this section, any director, manager, secretary or other officer of the body corporate who was knowingly a party to the offence shall also be guilty of that offence."
Despite the convictions of Mr Sande and of Property Pack, the conveyancing practice was continued. Mr Sande then sought to justify this on the basis of "deemed registration" as a solicitor (with conditions), or as a conveyancer, through making repeated applications to the Registrar for registration despite repeated refusals of the applications by the Registrar. The mechanism by which deemed registration was for a time maintained is discussed in Queensland Law Society Inc v. Sande [1996] 1 Qd.R. 622. In that case it was held that the repeated applications amounted to an abuse of process, and Mr Sande's making of further such applications was restrained. This was part of the order of 5 June 1995 which went on to grant injunctions restraining Mr Sande, after a short period of grace, from directly or indirectly acting or practising in Queensland as a solicitor or conveyancer without a certificate. The relevant parts of that order on which the present proceedings are based is more fully stated on p.2 of these reasons.
Mr Sande's appeal against the Registrar's refusal of his application for registration under the Mutual Recognition legislation came before the Administrative Appeals Tribunal and was rejected on 11 August 1995. His appeal from that decision, to the Full Court of the Federal Court, was dismissed on 13 February 1996 (Sande v. Registrar Supreme Court of Queensland (1996) 40 ALD 1). It was dismissed in recognition of the fact that Queensland legislation in 1938 and 1954 had effectively brought to an end the entitlement of conveyancers to practise in Queensland unless they were properly qualified solicitors who had been admitted to practise as solicitors. There was no "equivalent occupation" in Queensland to that of land-broker in South Australia.
In the meantime the Society had brought the present motion for contempt which eventually came on for hearing before me commencing 10 March 1997. In correspondence between the Society and Mr Sande in June 1995, as the time for commencement of operation of the injunction approached, Mr Sande stated his position in the following terms"I have made substantial changes to my practice in this regard including making arrangements for a legally qualified practitioner to draw and prepare all documentation pertaining to my files. I will be acting as their lodging and/or stamping agent in Queensland if required. I will also attend to settlement, searches etc., none of which constitute a breach of sec. 38 of the Queensland Law Society Act, sec. 41 of the Supreme Court Act or rule 117(4) of the Queensland Law Society Rules."
On 22 June 1995 he wrote
"I fail to see that my proposed practice of preparing correspondence, settlement statements and calculating adjustments, searching and attending settlements breaches the injunction. All documentation will be prepared by a person entitled to do so."
In short, he claims to have subdivided his practice into compartments so that he only performs activities that are not prohibited.
In the present proceedings Mr Sande has drawn attention to the fact that the injunction was granted only against him, and not against Property Pack.
During the period of grace, Mr Sande considered his position, obtained advice from various sources, and decided to continue the business in much the same way as previously, but with an adjustment or variation which will now be mentioned.
It may be noted that in some states, corporations may conduct legal or conveyancing practices, but in such cases there are requirements that their directors be qualified practitioners. In Queensland practising certificates can only be held by individuals.
Engagement of Duncan Sande & Associates
Mr Sande had in 1993 sold a conveyancing practice in Adelaide known as Duncan Sande & Associates to a Mr Larkin, who is a land-broker. This was achieved by the sale to Mr Larkin of the company (Morack Pty Ltd) that conducted the practice.
In mid-June 1995 Mr Sande contacted Mr Larkin. His object in the exercise was to avoid the actual drawing of "conveyancing" documents in Queensland, and to have this task done by Duncan Sande & Associates in South Australia. No precise description of the documents that Duncan Sande & Associates would draft at the request of RCS was spelled out, but Mr Larkin understood them to be documents relating to the purchase of property by a purchaser. He agreed to a fixed fee of $20 per transaction. Mr Larkin had no similar arrangement with any other party anywhere in Australia, and agreed that the fee was less than market rate. His stated reason for agreeing to such a fee was that he had known Mr Sande for many years. Mr Sande told him that the provision of this service by Mr Larkin would enable him to avoid breaching relevant requirements in Queensland.
Mr Larkin described his task as preparing the documents associated with the purchase of a property by a purchaser, ensuring that the information provided to him was transposed correctly and located correctly within the forms with which he was supplied. The main letter evidencing the arrangement was from RCS (signed by Mr Sande) to Duncan Sande & Associates dated 19 June 1995.
"Dear Ray
RE:PREPARATION OF QUEENSLAND DOCUMENTATION
Further to our telephone discussion, the following is an outline of the procedures to be adopted for preparation of our documentation:
1.We will fax a copy of the contract, request to prepare (see 'PAS 1'), and drafts of the required documentation.
2.Documents will be required to be prepared exactly the same as the drafts and returned to this office on the same day by Express Post. I suggest that you purchase a number of the Express Post packets (A4 size) in readiness. Must be addressed to our PO Box.
3.When returning documentation, please enclose your account and letter as per enclosed draft marked 'PAS 2'. This should be on your letterhead.
4.We will forward payment to you upon receipt of documents.
We have enclosed some blank forms of various documents that we will be requiring. If you run short, you can photocopy the originals.
We will be starting the procedures for new files received from 27th June and, should you have any queries or problems with the forms, do not hesitate to contact me.
Regards,
[signature]
Paul"
At that stage it would seem that Mr Sande contemplated himself or some member of his staff doing the "drafts of the required documentation" in Queensland, and that Duncan Sande & Associates's obligation would be little more than transcription. In the event, the evidence suggests that blank forms were supplied to Duncan Sande & Associates and that, in each particular instance, RCS sent the necessary details to enable the required forms to be filled out, usually by supplying a copy of the contract and a title search. Duncan Sande & Associates thereupon filled out the necessary blanks in the forms and sent them back to RCS. Mr Larkin agreed that on every occasion the sole basis of preparation of documents was the information supplied by RCS.
That, on Mr Larkin's recollection, was the sole function and service to be supplied by his company. There is some conflict of evidence between him and Mr Sande in relation to a further aspect of their dealings, namely whether Duncan Sande & Associates, having performed this drafting task for the sum of $20, thereupon became the client's principal rather than Duncan Sande & Associates's agent, and in effect engaged RCS to proceed to lodge and stamp the documentation in Queensland "as our agents and on behalf of the purchasers".
Mr Sande's evidence on this question went well beyond any challenge that had been made to Mr Larkin's evidence in cross-examination. In the end I have accepted Mr Larkin's evidence. I conclude that although the subject may have been raised, the original arrangement made between Mr Sande and Mr Larkin did not include any agreement that Duncan Sande & Associates would act for the client as distinct from RCS, or that Duncan Sande & Associates would engage RCS to act as its agent in any respect. In the event, either as the result of a subsequent conversation between Mr Sande and some other employee at Duncan Sande & Associates, or simply through the sending of a draft document to Duncan Sande & Associates with a request that it return relevant documents under cover of a letter in that form, the practice was accepted by Duncan Sande & Associates of sending the drafted documents back to RCS under cover of a letter which contained the words "you are hereby authorised to lodge and stamp the documentation, if required, as our agents and on behalf of the purchasers".
The legal consequences of this, if any, will be considered in due course.
Services offered and provided by RCS
The nature of the services which were offered by RCS are described in a brochure which includes the following statements -
"Don't settle for anything less than your own property settlement specialist . . ."
"Realty Conveyancing Services will help you understand all the fine print involved in contracts, take care of all the paperwork, check every detail and follow the transaction through to completion with only your interests in mind . . ."
". . . Realty Conveyancing Services are true specialists in the documentation and procedures of property settlements. All transactions are completed with total professionalism by a fully qualified and licensed conveyancer backed up by the knowledge that all transactions are covered by professional indemnity insurance."
"Appoint your own Australian Institute of Conveyancers member, Realty Conveyancing Services, before you buy or sell property."
"Simply inform the selling agent that you wish to nominate Realty Conveyancing Services to handle the transaction on your behalf and inform this office of the details."
It was issued under the name
"Realty Conveyancing Services
Member Australian Institute of Conveyancers
Paul Sande AAIC"
The evidence, including that of the various clients such as Mr Mahoney, Mr Venn, Mr Wright, Mrs Wright, Ms Evans and Mr Flitcroft satisfy me that RCS and Mr Sande endeavoured to live up to those claims. In each instance the clients placed the completion of their contracts and of the conveyance contemplated thereby in the hands of RCS. They were kept informed of progress, had the benefit of patient explanations when these were requested, had all problems along the way attended to and ultimately saw their conveyance completed. Fees were deducted in terms of a settlement statement presented to them upon completion. The evidence of a number of solicitors who acted for the other parties in various relevant transactions helps to complete a picture of Mr Sande endeavouring to have RCS accepted as the representative or "attorney" of his client, and as far as possible seeking that RCS be dealt with on an equal footing with the solicitors for the other party. In saying this I do not suggest that Mr Sande ever pretended actually to be a solicitor or to present himself as other than he now claims to be, namely a qualified South Australian land-broker who claims to be legally entitled to do what he was doing in Queensland.
Neither Mr Sande nor RCS at any time operated a trust account and he did not receive moneys from clients in the capacity of a trustee. Fees were obtained only upon the settlement of transactions.
Apart from those circumstances, and the engagement of Duncan Sande & Associates in South Australia to do certain drafting of documents, the work that was done by RCS was that which is usually done in this State by a solicitor. The evidence of the solicitors for other parties to these transactions, including Mr Gustafson (in the Kemp matter), Mr Peter Mahoney (in the Wright matter), Mr Tierney (in the Mahoney matter) and Mr Denning (in the Kerrigan matter) reinforce the conclusion that RCS was acting in much the same way as solicitors would act if they had been retained by those clients.
Any interested client was informed of a "fixed fee structure" which, at relevant times, was a basic fee of $375 plus certain outlays.
In each instance the client was asked to sign a document of instruction which may be described as a retainer or authority. Inter alia the client appointed RCS "my attorney for all or any of the purposes aforesaid". Mr Sande's explanation of the purpose and nature of that power is at best confusing
"The attorney is doing things where somebody can appoint somebody else to attend to matters and the personal representative situation was more along the lines of attending to collect things, etc., as their personal representative at the time."
He used the style and status of attorney in corresponding with solicitors for other parties. When challenged in correspondence, he fell short of suggesting that it gave him any effective power of attorney under the Property Law Act, but insisted that it clothed him with some additional rights. In the end, the impression I have is that it was included in the retainer for the purpose of the status that the title might imply to those who heard it, perhaps to assist in his being taken seriously by solicitors for other parties. Like J.D. Phillips J in Cornall v. Nagle [1995] 2 VR 188, 195-196, I find it unnecessary to decide whether the use of the word added anything to the authorisation to act for the client. But the use of the word was apt to give an impression at least to some people that he had some of the rights and authorities traditionally held by lawyers. I do not place particular store by the use of this particular representation. It is one circumstance among many.
A supplementary letter mentioned some of the standard services that would be undertaken and provided by RCS. That letter further indicated that additional charges would be made for any "further searches" requested over and above the standard searches at the local council for rates and services, a land-tax search, and, where applicable, a body corporate search. The additional available searches which the client might request, and their respective costs, were set out in the authority which the client was asked to sign, with provision for the client to tick any searches that he or she desired. The letter went on to mention the possibility of further fees if it were found that there was no duplicate title in existence. It was further stated that the fees quoted to the client were fixed on the assumption that there would be no disputes between the client and the other party to the transaction. In the event of a dispute or problem arising, RCS stated that it would advise the client of the appropriate action required and also whether there would be any additional costs or fees.
The standard retainer (post injunction)
The following, taken from the Wright file, is an example of the standard retainer used by RCS since the time when the injunction became operative -
(I have underlined the alterations that were made to the former retainer after the injunction became operative.)
"Re: Purchase of 6 Heidi Court, Ormeau
File Reference: P2910:BAS
You are hereby instructed to act for me/us in connection with the purchase of the above property and to arrange for Duncan, Sande & Associates to prepare, engross, stamp and register (if necessary) all such documents as may be necessary and requisite or otherwise in relation thereto and to act as agents of Duncan, Sande & Associates as required and if thought fit to complete amend or vary the same AND to attend as and when necessary on any bankers, lending institution, solicitor and/or agents in relation thereto and to make the usual enquiries and to prepare settlements statements and attend at settlement and to do all such things on my/our behalf as may be necessary and requisite, relating thereto and I/We appoint you my/our attorney for all or any of the purposes aforesaid and such representation shall be binding on me/us as if I/we made such representation myself/ourselves.
In addition to the normal searches undertaken by Realty Conveyancing Services as outlined to me/us, I/we request that the following searches be undertaken:
GOLD COAST CITY COUNCIL
[] Building Extracts (copy of plans) $ 158-00
[] Building Extracts (without plans) $ 95-00
[] Swimming pool fencing check $ 74-00
[_]Flood level search $ 25-00
[] Certificate of classification $ 26-00
[_]Sewer/house drainage plan $ 12-00
SEQEB
[_]This indicates if underground cables are present and/or
proposals effect (sic) the land $ 25-00
RAILWAYS
[] $ 15-00
QUEENSLAND TRANSPORT
[] $ 15-00
CONTAMINATED LAND
[_]$ 12-00
Tick appropriate box [ ] Charges will be added to statement
I/We also wish to advise that:
*1.I/We will be paying cash and not obtaining finance.
*2.I/We will require a duplicate title to issue
*3.I/We will be obtaining finance from
CREDIT UNION AUSTRALIA
and I/we authorise you to conduct any further searches
to satisfy their requirements
* Delete whichever is not applicable
DATED this25 day of OCTOBER 1995
(signed) (signed)
..................................................... ...........................................................
LEE ANTHONY WRIGHT NOELEEN PATRICIA WRIGHT"
In a later version of the retainer, e.g. in the Mahoney file, the words "send and receive correspondence" were added after the words "make the usual enquiries", but it is not suggested that that particular addition has any relevance in the issues that require to be considered.
Neither the retainer nor the initial letter in any instance informed the client that any work which RCS would "arrange" for Duncan Sande & Associates to do would be additionally charged for as a separate outlay. The only indications of prospective additional charges are those already mentioned, principally additional searches, and the prospect of some unforeseen complication. It is therefore surprising to find that when costs were deducted as per final settlement statements, the $20 fee to Duncan Sande & Associates was added to other outlays. In the event none of the clients seems to have challenged the charge, which may be explicable upon the basis that a $20 outlay, simply described in a bill as "D.S.A. document fee" along with a list of other outlays, was unlikely to excite attention, and it would appear in context to be a negligible item. Even so, as I interpret the basic documents and arrangements with clients, RCS was not entitled to charge this as a separate outlay. It was for an essential and standard part of the work which RCS was engaged to perform. The fact that RCS was given an instruction to arrange for Duncan Sande & Associates to do certain things "as may be necessary and requisite or otherwise" does not without more entitle RCS to charge more than the quoted fee for such services.
Absence of certification
It is common ground that Mr Sande is not qualified as a solicitor and has never held a certificate authorising him to practise in Queensland either as a solicitor or a conveyancer. Property Pack has no relevant certificate, and indeed a corporation cannot be issued with a certificate in Queensland. Apart from Mr Sande, no person employed by or associated with Property Pack or RCS has any relevant qualification or expertise to be able to operate personally as a conveyancer or as a solicitor. Mr Sande is the person who has conceived the scheme of operation and has caused the company to act in this way. He is also the manager and principal employee who decides when to act and when not to act and who gives advice to clients when it seems expedient or necessary to do so. On some occasions however Mr Sande has identified legal problems beyond the capacity of the limited services he considers it appropriate to render, and has on such occasions referred matters to solicitors to deal with.
A typical conveyancing transaction
There is little purpose to be served in my reciting the evidence in relation to each client. It will suffice if to give a short picture of the activity of RCS and Mr Sande by reference to any one of the files, and I shall take the relatively uncomplicated file of Venn.
Mr Venn was referred to Paul Sande by a work friend when he and his wife contracted to purchase property at Forest Hills. The contract identified "Vendor's solicitors" as "Collas Moro," solicitors, and "Purchaser's solicitors" as "Realty Conveyancing Services (Paul Sande)." A picture emerges from RCS's file (34 pages), from supplementary documents produced by Mr Venn, and from the evidence of Mr Venn. Initially in Mr Sande's office there was a discussion of the steps that would have to be taken, including notifying the bank that Mr Sande would be acting on his behalf. Mr Venn asked what he would be getting for his money from Mr Sande, and what he would be doing as conveyancer. Mr Sande explained that his services would ensure basically that the property was going to be unencumbered when the Venns purchased it, and for the transfer to go through smoothly so that at the end there would not be any undue stress on Mr or Mrs Venn. There does not appear to have been any particular explanation about Duncan Sande & Associates. A conversation ensued about searches and whether a special quarry search should be undertaken and Mr Venn was informed that extra searches would involve extra charges.
On 31 October Mr Sande for RCS wrote a two-page letter to Mr and Mrs Venn enclosing the authority to act form, informing them that RCS's standard procedures included its obtaining a copy of the title and registered plan, a search at the local council for rates and services, a land tax search, and, where applicable, a body corporate search. The Venns were advised that if they wanted further searches to please indicate on the form. They were advised that should searches reveal that there was currently no duplicate title in existence, RCS would arrange for a settlement notice to be lodged at the Titles Office, which was described as a "usual requirement" of an incoming mortgagee. They were advised that any fees associated with that would be shown on the settlement statement. The fact that the contract made provision for the Venns to arrange finance was noted and the Venns were requested to advise RCS as soon as the loan was approved, with a copy of the letter of approval from the bank, so that RCS could contact the bank in reference to the drawing up of the necessary mortgage documents and the arrangement of settlement with the bank.
The letter went on to note that the contract was subject to the Venns obtaining a satisfactory soil report by 3 November 1995 and the Venn's confirmation of the results was requested. The fact that the fees so far quoted had been fixed on the assumption that there would be no disputes between the client and the other party to the transaction was noted, together with an intention to advise the Venns of appropriate action required if there were a dispute, and whether there would then be any additional costs or fees.
On the same day, Mr Sande wrote to Messrs Collas Moro, the solicitors for the vendor, confirming that "we have been appointed as attorney and personal representatives to act on behalf of Mr J.R. and Mrs S. Venn". The letter indicated that in due course RCS would forward the memorandum of transfer, Form 24 and all other required documentation to complete the transaction. Advice was requested whether any documents were to be signed under power of attorney and in that event a registered copy of the power of attorney was requested. The letter reserved "our client's rights to settle at any time between the hours of 9.00am and 5.00pm on the date appointed ... without regard to the fact that a specific time and/or place for settlement may have been arranged and any such arrangement shall be deemed to be tentative and without prejudice to our client's rights to offer to settle at any other time or place on the date appointed for settlement". Reference was made to the anticipated receipt of an adjustment statement and details of cheques required.
Mr Venn telephoned Mr Sande to obtain guidance as to which items (particularly in relation to search) would be necessary. The advice was that as the Venns were only purchasing a block of land and there had only been one owner prior to them, items such as swimming-pool fencing and certain other items were not necessary. All dealings were directly between the Venns and Mr Sande, except for one contact on a minor matter with "Bernadette" whose functions were secretarial.
Correspondence was then received by RCS from the Venn's real estate agent enclosing the original contract and containing details of the deposit held in the agent's trust account. The authority/retainer was in due course returned by Mr and Mrs Venn duly signed. On 7 November Mr and Mrs Venn advised that the soil and contour tests were acceptable and therefore no longer a condition of contract. On 10 November the National Australia Bank advised that finance had been approved. Mr Sande thereupon advised Messrs Collas Moro, pursuant to cl.32.4 of the contract, that RCS's clients had now received approval for finance and that the terms and conditions were "satisfactory to clients". A current title search was made in the Titles Office, which indicated inter alia that no certificate of title had issued. A memorandum was then faxed to Duncan Sande & Associates requesting "the required documentation" and giving details concerning title, finance, whether a foreign person, and address for notices. On 13 November Duncan Sande & Associates returned to RCS a draft settlement notice, property transfer, information and transfer, under cover of its standard letter which "authorised" Duncan Sande & Associates to lodge and stamp the documentation, if required, as their agents "and on behalf of the purchasers". There was also a request for the $20 fee by return mail.
On 14 November 1995 a further detailed letter was sent by RCS to Mr and Mrs Venn. The letter enclosed the memorandum of transfer. There was a request to check the spelling of names. It also enclosed a form explaining the difference between holding property as joint tenants and tenants in common, requesting the clients to read this carefully and return it to the office with the appropriate selection. It also enclosed a Form 24, explaining that that was the form required by various authorities for notification of change of ownership. There was a request to complete the client's date of birth and other relevant information where indicated. It was stated the if they considered they fell into the category of a foreign person, they should advise the office and RCS would send them a Form 25 for completion.
Also enclosed was a registered plan and a reduced photocopy. This was to enable the clients to check that this was the property that they believed they had purchased.
The letter went on to indicate that there was currently no duplicate title in existence and that to protect the client's interest, Duncan Sande & Associates had arranged for a settlement notice to be lodged at the Titles Office. This it was said was usually a requirement of any incoming mortgagee. The fees associated with this would be shown on the settlement statement.
There was a request to have all documentation signed where indicated and witnessed by a justice of the peace or solicitor or alternatively they could be witnessed by Mr Sande. The clients were further advised that as the contract must be stamped within 30 days of becoming unconditional, and prior to settlement, it was necessary that a bank cheque be supplied for $1,360 in favour of the Commissioner of Stamp Duty to reach the office by 22 November 1995 to avoid additional duty.
The clients were advised that time was of the essence and that accordingly all documentation should be returned urgently. The clients were advised that if they did not understand or were uncertain about any of the documents or procedures "please contact us and we shall be happy to clarify". On the same day RCS advised Collas Moro of their client's satisfaction with the soil test.
Mr and Mrs Venn again visited Mr Sande's office to sign documents. The question whether they should do so as joint tenants or tenants in common was raised, and a further oral explanation was given of the difference in legal effect of each. They then opted to take a transfer as joint tenants.
On 16 November 1995 RCS forwarded the necessary documents (form of undertaking, memorandum of transfer and Form 24) to Collas Moro "subject to all conditions under the contract being complied with". An accepted form of professional escrow procedure was then suggested, "As we will require a stamped memorandum of the transfer for settlement to be effected, would you please return the executed transfer and Form 24 to this office as soon as possible. These will be used for stamping purposes only and will be held on your behalf pending settlement of this transaction". A settlement statement was requested along with advice at least five days before settlement of cheque details and time and place of settlement.
Following contact between RCS's secretary and Collas Moro, a message was sent to Collas Moro that stamping would not be required prior to settlement. RCS's own calculation of settlement figures, including adjustments, was then sent to Collas Moro. On 24 November Collas Moro enclosed a settlement statement requesting three bank cheques in stated amounts. RCS then forwarded to the National Bank a copy of the settlement statement requesting appropriate cheques. Settlement was effected on 27 November 1995. Thereupon RCS wrote to the real estate agent asking it to account to the vendors for the deposit money after deduction of commission and disbursements. He also forwarded "settlement statement as at 23 November 1995" to Mr and Mrs Venn, as follows
"Re: Purchase of Property - LOT 596 POTTINGER CRESCENT, FOREST HILLS
SETTLEMENT STATEMENT as at 23rd November, 1995
DR.CR.
Purchase Price 64,000.00
Deposit paid 3,000.00
Our fees for taking instructions, attending to
requisitions on title, undertaking of relevant
searches, preparation of settlement statements,
all correspondence, stamping of documentation,
all attendances and in general acting as your
attorney thereto 375.00
Registration of Transfer 87.00
Disbursements for searches etc.
Title Search $ 10.00
Plan Search $ 10.00
Council Search $ 35.00
Land Tax Search $ 20.00
Check Search $ 10.00
DSA Document Fee $ 20.00
Stamping Fee $ 20.00
Office Disbursement $ 20.00
TOTAL145.00
Fees associated with Settlement Notice
including lodgement 50.00
Registration fee for Settlement Notice 20.00
Annual Rates and Taxes adjustment
Adjustment as at 27th November, 1995
Paid to 31st December, 1995
Council$952.10
Separate water rates EXEMPT
Total $952.10
Purchaser to pay 34 days $ 87.96
Total amount to adjust 87.96
BALANCE DUE BY YOU AT SETTLEMENT 61,764.96
$64,764.96 $64,764.96"
Mr and Mrs Venn were advised that they would receive confirmation that the transaction had been registered in due course. Representations were then made to the Commissioner of Stamp Duties by letter explaining that the contract had not become unconditional until 10 November 1995, submitting that accordingly the contract was being stamped within 30 days and that accordingly no additional penalty should be applicable.
The Venn matter was apparently a standard transaction without any particular complication. It serves to indicate the multiple public offices involved, and the issues and potential pitfalls that are inherent in any so-called standard conveyance. The evidence suggests that Mr Sande on behalf of RCS acted for the clients in much the same way as solicitor, retained by a client to effect a conveyance, would be expected to act.
Further activity of RCS
Advice and negotiation
Not all matters proceeded as smoothly as the Venn matter. There are instances where Mr Sande or RCS found it expedient to purport to use legal knowledge and steer or negotiate his clients out of difficulties. In the matter in which RCS acted for Mr and Mrs Wright, there was a delay in obtaining the return of mortgage documents and a short extension became necessary. The solicitor for the other party demanded not only some additional expenses on behalf of his client but also an extra $300 legal costs. Mr Sande advised Mrs Wright that if she did not pay these demands she might be open to breach of contract proceedings. She gave instructions that she was willing to pay reasonable charges for the extension but not the $300. Mr Sande continued to act for her in endeavouring to persuade the solicitor to withdraw the $300 fee, but he informed her that if the matter went any further she would need a solicitor. He asserted, "My clients are entitled to terminate the contract" and informed that solicitor that his client was willing to face legal proceedings if the charge was not withdrawn. In short, he negotiated a settlement of the dispute and the matter proceeded to a conclusion.
Similarly, in the Dyer file, one can see negotiations for extension of a settlement date, and the taking of appropriate steps to expedite a transmission application. Also in the Dyer matter, the mortgagee's solicitors sent to RCS various documents pertaining to the mortgage, including a request for a "certificate of independent legal advice for borrower". On behalf of the Dyers, Mr Sande was negotiating with MacGillivrays for extensions of the settlement date, whilst at the same time pressing the solicitors for the vendor for delivery of the transmission application so that the settlement could be effected. Mrs Dyer asked Mr Sande to expedite the matter if possible. Mr Sande gave advice to the Dyers about the mortgage and signed the necessary certificate. The purport of that document was that the mortgagor had been given independent advice about their duties, rights and obligations under the mortgage. On Mr Sande's description of it, his advice was superficial, and he signed the certificate of independent advice as "conveyancer" for Mr and Mrs Dyer. Mr Sande conceded that he had signed similar certificates on other occasions.
One can also find many instances of basic legal advice being tendered, including in particular in the Mahoney, Pay, Reedy and Baczyk matters. Advice for example, explaining clients' options to be registered as joint tenants or tenants in common, so that the clients could give instructions for the appropriate form of transfer, was legal advice.
The above examples simply instance some of the incidental activity that from time to time was seen to be necessary in the service that was provided.
Other parts of the service (requisitions, searches, stamping, lodging, settlement statements)
Different degrees of direct performance by RCS of these functions (as distinct from their performance through the engagement of other persons) may be seen from transaction to transaction.
During the post-injunction period requisitions on title were sometimes drawn by RCS on behalf of clients when the contract in question happened to be an "edition 1" REIQ contract. Apparently requisitions became irrelevant when clients used the "edition 2" contract. In a number of instances, RCS's settlement statement included requisitions on title in the statement of matters for which the $375 fee was charged. In the matter of Kerrigan, for example, the file shows a statement in RCS's letter to the client (dated 26 October 1995) that "on your behalf, we will deliver to the vendors requisitions on title. This is a series of questions to the vendor ensuring that there are no covenants or restrictions covering the property that have not been declared in the contract or that may not be known to you and cannot be discovered by the searches we will undertake on your behalf . . . ". The file reveals that answers to requisitions on title were returned by the solicitors for the other party on 5 December 1995. In due course the settlement statement includes "attending to requisitions on title" as one of the various matters justifying the $375 fee.
In other matters, including Evans and Dyer, it is evident that RCS drew the answers to requisitions on title presented by the mortgagee. In Evans, there is also a letter from the solicitor for the vendor expressing the expectation of receipt of requisitions on title, but in that instance it would seem that RCS decided not to administer them. The inclusion of "attending to requisitions on title" in the statement of charges in Dyer and Evans would seem to be in respect of RCS' preparation of the answers to the mortgagee's requisitions. It seems likely that series 2 contracts became increasingly prevalent, and that requisitions on title were either drawn or answered only on a limited number of occasions, as and when this was seen to be necessary. However such activity was done by RCS in its office in Queensland.
Stamping, both before and after the operation of the injunction, was done by RCS by the engagement of stamping agents. Correspondence from RCS (including correspondence with the Stamps Office) makes frequent reference to "stamping by our agents". Stamping fees were usually invoiced as an outlay. Sometimes stamping was done through the solicitors for the other party. When this occurred it was done by arrangement and on behalf of RCS.
The lodging of documents for registration was commonly done directly by RCS. In Mr Sande's words, "where the settlement is effected by our agent in Brisbane and there is no incoming mortgagee, the Brisbane agent quite often would lodge the documents, or may return them to us for lodging on the Gold Coast."
Searches were commonly done directly by RCS. Apparently RCS has a CITEC computerised facility installed in its office, which gives access to computer databases of government records, including the Titles Office. Searches done by this means included Titles Office searches, plan ordering, and occasionally contaminated land or land-tax searches. More commonly those searches were conducted by post.
Settlement statements were commonly prepared directly by RCS and if initially drawn by some other party, invariably closely checked by RCS. Such statements are of course the ultimate reconciliation of the entire process.
Mr Sande's assertion that RCS was merely a coordinator of the services of others is far from the truth. So is the claim that RCS merely acted as "attorney" for private persons exercising the right to do their own conveyancing.
General
In most of the fourteen instances particularised in the motion, RCS acted for a purchaser. However in the matter of Pay, RCS acted both for the purchasers (Mr and Mrs Pay) and the vendors (Mr and Mrs La Cassie). In that instance the fee (apart from outlays) was $375 for the purchaser and $350 for the vendor. RCS also acted for the vendor in Kent. In Flitcroft, RCS acted for both husband and wife in a transfer of Mrs Flitcroft's interest to Mr Flitcroft.
Some idea of the scale of activity can be gleaned from the opening of new files by RCS. Between the time of the commencement of the injunction and the present, approximately one thousand new files have been commenced. That suggests about six hundred new matters per year or twelve per week. It is however to the particularised instances that attention must be drawn in understanding the nature of the activity that was being pursued, and in particular in characterising Mr Sande's actions.
Issues and Findings
There is little doubt that Mr Sande is intent upon breaking what is sometimes described as the monopoly of the legal profession over conveyancing in this State. There is nothing objectionable in this provided that he obeys the law. The question will be whether he has done so, and in particular whether he has breached the terms of the court order of 5 June 1995.
Knowledge of order
Mr Sande appeared personally in the proceedings upon which the order was made, and it is common ground that he has at all material times been aware of the contents of the order.
I do not understand any procedural objections to have been taken in relation to the present proceedings.
Standard of proof
It is common ground that the allegations of contempt must be proved beyond reasonable doubt (Witham v. Holloway (1995) 183 CLR 525).
"Practising as a conveyancer"
The question "what work comes within the scope of a conveyancer acting as such?" was answered by Jordan CJ (for the Court) In the Will of Kerrigan (1935) 35 SR NSW 242, 250
"I am of opinion that the work of a conveyancer as such includes preparing any document or doing any act for the purpose of creating, transferring or extinguishing any interest in any form of property, and anything incidental or ancillary to any such act, where the document or act is of a kind calling for something more than ordinary business knowledge, skill or ability."
His Honour additionally observed that attendances at and communications with the Stamp Duties Office for the purpose of obtaining certificates to enable an executor to deal with the assets should also be regarded as falling within the work of a conveyancer as such. The fact that such work might also be regarded as appropriate for a solicitor of course did not prevent it from being regarded as conveyancing work.
Further assistance in identifying the types of service ordinarily regarded as part of the service of a conveyancer appears in de Jersey J's judgment in Queensland Law Society Inc v. Hoy (No. 340 of 1995, 6 June 1995, unreported)
" It is clear from that material that Mrs Hoy has, since that time, been doing things with relation to the conveyance of land which require the application of intellect and special knowledge, such as characterises the work done by solicitors or conveyancers, and that her work should not be characterised as simply secretarial, or to use the words from Barristers' Board v. KWA an unreported decision of the Supreme Court of Western Australia given on 23 April 1992 by Anderson J in action number 1195 of 1992,
'purely mechanical or clerical work not requiring technical or professional skill or the exercise of judgment.'
One need only refer to her drafting answers to requisitions on title, arranging necessary searches, including bankruptcy searches, calculating settlement figures and arranging settlement."
An informative history of conveyancing is presented In the Will of Kerrigan, above, at pp.246 to 249, revealing an eventual recognition by the courts that such work involves a degree of expertise and justifies a measure of public control over those who should be permitted to perform such activity (cf. Sande v. Registrar, Supreme Court of Queensland above, at pp. 11-14, per Lockhart J; and Law Society of NSW v. Ramalca Pty Ltd (1988) 12 NSWLR 34, 35).
Rule 117(4) of the Rules of the Queensland Law Society Incorporated (1987) ("The Law Society Rules") provides:"(4) Acting as a practitioner includes:-
(a)the drawing, preparing or filing of any proceeding in any court on behalf of any other person;
(b)the drawing, preparing, filing, or lodging (whether for registration or otherwise), on behalf of any other person of:-
(i)any deed; or
(ii)any instrument in writing relating to real or personal estate; or
(iii)any Memorandum or Articles of Association; or
(iv)any instrument or document having effect as a deed."
It was submitted that this rule provides a definition of "acting as a practitioner" that can be relied on by the court in the present proceedings. Mr Perry for the society submitted that the rule was made under s.46 of the Queensland Law Society Act 1952, and that that section provided that such rules had the same force and effect as if they formed part of the Act. There is however no such provision in s.46 or anywhere else in the Act. In fact the "rules of the Queensland Law Society Incorporated" 1987, were made by the Society under s.5(9)(i) of the Act, and approved by the Governor in Council under s.5(9)(ii) of the Act. At that time there was a Henry VIII type provision within s.5(9)(ii) giving the rules the same force and effect as if they were in the Act, and declaring that they were not to be questioned in any proceedings. That provision was removed by the Statute Law (Miscellaneous Provisions) Act 1993. The amended section is now s.5A of the Act. A further amendment of 28 November 1995 (inserted as s.5A(2)) expressly declared that such a rule is "subordinate legislation", and there is a further provision to the effect that rules made under s.5A may be amended by regulation. A similar provision exists in s.46(2). The result is that the ordinary rules concerning subordinate legislation apply, including the requirement that such rules must fall within some head of power conferred by an Act (cf. The Great Fingall Consolidated Ltd v. Sheehan (1905) 3 CLR 177, 181-183). In that case it was held that regulations might not be used for the purpose of interpreting an Act. Whilst that is not invariably the case, in general regulations cannot be used for that purpose. The only relevant head of power here seems to be the "convenient for the administration of this act", "necessary and convenient to carry out the objects and purposes of this act" under s.5A(1)k, and possibly to provide requirements for the issue of certificates under s.5A(1)(hc).
I do not think that rule 117(4) of the Rules of the Queensland Law Society Incorporated provides a general definition for all purposes of "acting as a practitioner". Sub-rule (1) permits the secretary of the Society to provide a certificate in relation to certain facts, and provides that such a certificate
may be tendered to . . . the Statutory Committee, the Solicitors Disciplinary Tribunal and all Courts . . . as prima facie evidence of the facts . . . set out therein . . ."
On its proper construction the inclusionary definition of "acting as a practitioner" in rule 117(4) may define the meaning that is to be given to that term by a tribunal or court when a certificate asserting such a fact is placed before it. (No certificate was placed before me.) It may also arguably have general application in disciplinary proceedings where an issue arises as to whether someone has acted as a practitioner. However I think it would be quite beyond the power of the Society and the Governor in Council to legislate for the meaning of words in a penal provision of the Act in proceedings such as the present.
Section 21 of the Statutory Instruments Act 1992 provides that a statutory instrument which exceeds power is to be read down so as not to exceed power.
In their submissions, both counsel in the present matter accepted the validity of rule 117(4) and of the application of that definition to the present proceedings. However I am unable to construe it as a definition that, considered along with the definition of "practitioner" in s.3 of the Act, applies to s.39 of the Act. It is to the common law that I should look in deciding whether anyone has breached that section, and in deciding whether the terms of the injunction have been breached.
I may say that there is nothing particularly onerous or objectionable in the definition stated in rule 117(4); it is simply in my view not a source to which I should have regard in deciding the questions in issue.
The test adopted by Cussen J in Re Sanderson ex parte The Law Institute of Victoria [1927] VLR 394, 397, is a practical one.
" I do not think it is advisable that I should endeavour to lay down any precise rule as to when a person acts as a solicitor, nor do I say that, merely because a person does a thing usually done by a solicitor, but which may be done by someone else, he will be guilty of an offence under sec. 87; . . .
What I do decide is that if a person does a thing usually done by a solicitor and does it in such a way as to lead to the reasonable inference that he is a solicitor - if he combines professing to be a solicitor with actions usually taken by a solicitor - I think he then does act as a solicitor."
The term "acting or practising as a solicitor" was considered by J.D. Phillips J in Cornall v. Nagle [1995] 2 VR 188, 196-210. That discussion led to the following conclusions.
"I conclude that a person who is neither admitted to practise nor enrolled as a barrister and solicitor may 'act or practise as a solicitor' in any of the following ways:
(1)by doing something which, though not required to be done exclusively by a solicitor, is usually done by a solicitor and by doing it in such a way as to justify the reasonable inference that the person doing it is a solicitor. This is the test in Sanderson.
(2)by doing something that is positively proscribed by the Act or by Rules of Court unless done by a duly qualified legal practitioner. Examples of such prohibitions in a statute are ss. 93 and 111 of the L.P.P.A.
(3)by doing something which, in order that the public may be adequately protected, is required to be done only by those who have the necessary training and expertise in the law. For present purposes, it is unnecessary to go beyond the example of the giving of legal advice as part of a course of conduct and for reward."
Activity of RCS
Conveyancing practice
I have no doubt that RCS at all material times has been acting and practising in Queensland as a conveyancer and has been providing conveyancing services to clients for fees. In each instance it made itself responsible for the provision of an overall service for a specified fee and outlays. By acting as a conveyancer it also engaged in all three of the types of activity mentioned in Cornall v. Nagle as amounting to acting or practising as a solicitor. The fact that it chose to engage someone else to do a part of the overall service does not in the circumstances of the present case alter the overall position. The reasons for this conclusion are stated in discussion under the next sub-heading.
Attempted delegation of drafting
In Law Society of New South Wales v. Ramalca Pty Ltd (1988) 12 NSWLR 34 an attempt to deflect responsibility for the preparation of conveyancing documents through engagement of the services of another person failed. The primary conclusion was that a company which paid money to someone else to do things as part of a flat fee conveyancing service provided and charged for by that company, was itself directly doing those things. The company's system, like that in the present case, was to have all the various steps in conveyancing transactions which did not involve the preparation of conveyancing documents, done by legally unqualified employees, but ensuring that all conveyancing documents such as transfers, requisitions, answers to requisitions and the like were prepared by a non-practising barrister. It was held that none-the-less the company was itself directly or indirectly drawing instruments relating to real property, in breach of the Legal Practitioners Act. It was also held that it was thereby also acting or practising as a solicitor without a certificate.
The statement of facts shows that on a number of occasions legal advice was given at least as part of a course of conduct and as an incidental part of the transaction that was being effected for the client. In Cornall v. Nagle (above) J.D. Phillips J said
"The giving of legal advice, at least as part of a course of conduct and for reward, can properly be said to lie at or near the very centre of the practice of the law, and hence of the notion of acting or practising as a solicitor . . ."
A wide view of the term "legal advice" and of its identification with the practice of a solicitor was also taken in Attorney-General v. Quill Wills (above). It seems to me that incidental legal advice of the kind that was given from time to time (e.g. explanation to clients of the difference between joint tenancy and tenancy in common so that the client can decide what to do, advising and representing the client in negotiations for extension of time, and explaining to a client the effect of a mortgage) is a very common if not inevitable consequence of the provision of a conveyancing service. That was undoubtedly what Mr Sande and RCS were doing, and in the instances mentioned, legal advice was given.
I have not found it necessary to determine whether the provision on some occasions, and the coordination on others, of particular services such as stamping and lodging would separately amount to the practice of conveyancing. However numerous instances have been given of additional direct activities which amount to the practice of conveyancing and which refute the claim of "mere coordination" of lawful activities by other persons. It seems to have been assumed that "mere coordination" of such activities would always be a defence, but I seriously doubt this in a case where an overall service which amounts to a conveyancing service is offered for a fee. In the present case, as I have indicated, RCS and Mr Sande did far more than provide mere coordination of the services of others. Mr Sande engineered the provision of the overall conveyancing service and the attempt to separate it into component parts fails.
The relevant practice was conducted in Queensland, involving the acceptance and discharge of retainers in Queensland for Queensland clients with respect to Queensland property. The fact that a third party was engaged to perform a selected part of the overall service does not affect the nature or quality of Mr Sande's and RCS's acting or practising in Queensland in those capacities.
Drawing or preparing instruments in Queensland
I turn to the second part of the order that is said to have been infringed. The restraint is against "directly or indirectly, for expectation of fee gain or reward, drawing or preparing a conveyance or other deed or instrument in writing relating to real estate, in the State of Queensland" without a certificate. More difficulty is involved in this question. I have no doubt that what Mr Sande did was at least indirectly done for expectation of fee gain or reward. It may be noted in passing that there is a conflict between Re Crowley (1899) 20 NSWR 150 (per Owen J and Cohen J, the Chief Justice dissenting) on the one hand, and Reynolds v. Hoyle [1976] 1 WLR 207 and the Barristers' Board v. Marbellup Nominees Pty Ltd (1984) WLR 335 on the other, as to whether an unqualified servant of a company, who draws an instrument but does not himself receive the fee, commits an offence. In Re Crowley, a salaried employee drew a discharge for a mortgage on behalf of a mutual society and charged the mortgagor two guineas for it, the money being paid to the funds of the society. Assuming without deciding that that case was correctly decided by the majority, the present circumstances are distinguishable in that Mr Sande benefits not only from salary, but also as a person entitled to the profits of the company, and as a person who caused the company to act as it did. It would in my view be unrealistic to hold that he did not at least indirectly cause the relevant services to be provided for some gain or reward to himself.
But did he directly or indirectly draw or prepare instruments relating to real estate? And did he do so in Queensland? On this latter issue, Mr Sande is, I think, saved by a comma. It seems likely that the intention of the court in framing the injunction was to prevent the repetition of conduct amounting to a breach of s.19 of the Legal Practitioners Act 1995 (now s.41 of the Supreme Court Act 1867), and that, bearing in mind Mr Sande's apparent entitlement to practise in South Australia and in some other states, the prohibition was intended to be limited to conveyances, deeds or instruments relating to real estate in Queensland. However, in the formal order, a comma appears after the word "estate", and before the words "in the State of Queensland". The result is in my view that the territorial limitation applies not to the situation of the real estate, but to the drawing or preparing of particular instruments.
The error in the order could probably have been corrected under the slip rule, but no such application has been made, and in criminal proceedings such as these Mr Sande could not be bound by any amended order until such time as the amendment had been formally made. Accordingly he is fully entitled to the literal interpretation of the injunction in its present form.
I am satisfied to the necessary standard that having counselled, procured and caused Property Pack (trading as RCS) to do what it has done, he has indirectly drawn or prepared instruments to the same extent as RCS has drawn or prepared such instruments. I also consider, consistently with the reasoning in Ramalca, that RCS remained responsible for the provision of that service and it is to be taken to have itself directly done those things notwithstanding its engagement of Duncan Sande & Associates But the fact remains that, apart from a few exceptional instances, those documents were drawn or prepared in South Australia, not in Queensland. The evidence in relation to most instruments that have been drawn therefore fails to show that either RCS or Mr Sande drew or prepared such documents, either directly or indirectly, in Queensland.
I do not think that s.12 of the Criminal Code could assist the prosecutors in the present matter. The issue is simply whether the injunction has in its terms been breached. It may be noted that no similar point arises in relation to the first part of the injunction.
The comma may be something of a windfall, and the point was not raised by counsel. I am however unable to see how any proper construction of the injunction can lead to any different conclusion on this particular issue.
There remain for consideration however some particular instances where Mr Sande altered the documents that had been prepared by Duncan Sande & Associates, or prepared other documents as a need for them arose. The question is whether in these instances Mr Sande is responsible under s.19 of the Legal Practitioners Act 1995 for, "directly or indirectly for expectation of fee gain or reward, drawing or preparing a conveyance or other deed or instrument in writing relating to real estate, in the State of Queensland." The narrow question is whether documents which I infer were prepared by or under the instructions of Mr Sande in the Queensland office of RCS amount to an "other . . . instrument in writing relating to real estate." In my view, in the context of s.38, in order to qualify as such an instrument, the document must be of a formal nature; and it must have been prepared in a conveyancing context, that is to say, as part of a transaction where the ultimate object is to effect assignment or transfer land or an interest in land.
(a)Transfer La Cassie to Pay.
The transfer prepared by Duncan Sande & Associates contained an error in that it described the name of the lodger as "Reality Conveyancing Services". The error was noticed in Mr Sande's office. Instead of sending it back to Duncan Sande & Associates, a fresh transfer was prepared in RCS's office in the same terms as that drawn by Duncan Sande & Associates, save that the lodger was shown as Realty Conveyancing Services. The locally prepared transfer was then sent to the prospective parties duly executed and eventually lodged in the Titles Office.
In substance I would regard the "drawing" of that instrument to have been done by Duncan Sande & Associates, and RCS's correction of the misspelt name as a purely clerical exercise. I do not consider that this minor correction of someone else's work should be regarded as a separate drafting exercise on the part of RCS.
(b)Flitcroft to Flitcroft
Once again errors were detected in the draft sent by Duncan Sande & Associates to RCS, and a fresh transfer form was prepared in RCS's office. This time the errors were once again "Reality" instead of "Realty", and the correction of "Notural love and affection" to "natural love and affection".
Once again I would characterise RCS's activity as clerical correction rather than actual drafting.
(c)La Cassie to Pay
The only documents drawn by Duncan Sande & Associates in this matter were a transfer and a notification of change of ownership form (Form 100). However as the property was a building unit certain other requirements were necessary, including compliance with s.53(2) and 53(2A) of the Building Units and Group Titles Act 1980. If the transferor does not give to the body corporate specified information concerning the transfer, the transferee has the duty to give to the body corporate certain notice. Such requirements are further dealt with in s.32 of the Building Units and Group Titles Regulation 1980 and Form 22 thereunder. In this instance RCS seems to have drawn and sent to the body corporate no less than three separate Form 22 advices, the first two having apparently been lost or mislaid. There is evidence that the last two of these were not only prepared by RCS but also signed "for transferee - P Sande". Such documents were in my view prepared for the purpose of assisting to effect the transfer of property and were certainly incidental and ancillary to that purpose. The process of understanding the need for such a document, the legislation and the form might not be particularly difficult once one understands the act or the procedure, but its preparation was an act of a kind calling for something more than ordinary business knowledge or skill.
In my view on this occasion the relevant activity amounted not only to practice as a conveyancer, but also to the drawing or preparing of an instrument in writing relating to real estate, and it was done in Queensland.
(d)Kent
The relevant document was called a "Release of mortgage authority." It was specially prepared by Mr Sande and was addressed to the mortgagee. Its substance is:
"You are hereby authorised and requested to quote to Realty Conveyancing Services the amount required by you to release memorandum of mortgage number 700808727 etc . . ."
The document further authorised the mortgagee to hand to RCS the mortgage and a release thereof.
It seems to me that that is essentially a letter to enable RCS to act as an agent. It is simply an agency document which would enable RCS to achieve what the client could have achieved by attending personally. I would not regard that as an instrument of the kind contemplated by s.38. I would accordingly find Mr Sande not guilty of breaching s.38 in that instance.
(e)Kerrigan
I infer beyond reasonable doubt that requisitions on title were actually drawn by Mr Sande or under his supervision and direction. Requisitions on title are more than mere questions for they require the vendor to remove the defect or the doubt revealed by the abstract or by the document which will prove title, hence, the name requisitions on title. Matters on which requisitions are in practice raised are legion. They may concern flaws or defects in title or inconsistencies between contract description and property that is later described. The drawing and delivery of requisitions on title is a traditional step in the conveyancing process. It is true that Mr Sande did not keep a copy on file of the requisitions that were sent. It seems to me to be immaterial whether they were skilfully or unskilfully drawn. The fact that they were drawn is inevitably to be inferred from the file which contains at the outset a statement in a letter written by Mr Sande of intention to send such requisitions. It contains the letter which enclosed them and it contains the answers that came back. It also contains an account at the end of the transaction which charges for the sending of such requisitions.
It is also to be noted that a Form 22 notice was also prepared and sent on behalf of Mr Kerrigan. Consistently with what I have said in the La Cassie to Pay matter, I consider that to be a further drawing of an instrument under the section. In this instance I hold that instruments in writing relating to real estate, for which Mr Sande is responsible, were drawn in Queensland.
(f)Dyer
The file shows that a section 22 notice was drawn and sent. It is described as a section 53 BUGT (i.e. Building Unit Group Titles) notice and plainly is a document of the same kind. In my view it is an instrument which needs to be prepared and sent if the client is to receive the fruits of the transaction and amounts to an instrument in writing relating to real estate.
Dyer also contains evidence that mortgagees requisitions on title were answered and once again RCS charged for the service. On both particulars I would regard a breach as established.
(g)Evans
I infer that Mr Sande or a person under his supervision drew answers to the mortgagee's requisitions. That, in my view, is a sufficiently formal act in a conveyancing context to satisfy the definition. Accordingly, I find that particular to be satisfied.
Conclusions
I am satisfied to the necessary standard that on the fourteen instances contained in subparagraphs (a) to (n) of the notice of motion Mr Sande did directly or indirectly act and practise both as a solicitor and a conveyancer without having at the time a certificate referred to in s.38 of the Queensland Law Society Act 1952. I am also satisfied to the necessary standard with respect to subparagraphs (q), (v), (w) and (aa) of the notice of motion that Mr Sande did directly or indirectly draw or prepare an instrument in writing relating to real estate in the State of Queensland on behalf of the various persons named in those particulars when he was not at the time lawfully issued with a certificate by the secretary of the Queensland Law Society Incorporated.
There will be a finding that Mr Sande has been guilty of contempt of Court with respect to the particulars mentioned.
I hold that the balance of the particulars, namely (o), (p), (r), (s), (t), (u), (x), (y), (z) and (ab) have not been established to the required standard.
Evidence and submissions on penalty will now be heard.
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