AR v ZG
| Jurisdiction | New Zealand |
| Judgment Date | 15 March 2011 |
| Neutral Citation | [2011] NZLCRO 14 |
| Date | 15 March 2011 |
| Docket Number | LCRO 60/2010 |
| Court | Legal Complaints Review Officer |
[2011] NZLCRO 14
LCRO 60/2010
CONCERNING an application for review pursuant to Section 193 of the Lawyers and Conveyancers Act 2006
and
CONCERNING a determination of the Auckland Standards Committee 2.
of [North Island]
of Auckland
Mr AR as the Applicant
Mr ZQ as the Respondent
The Auckland Standards Committee 2
The New Zealand Law Society
An application was made by Mr AR (the Applicant) for a review of a decision made by the Standards Committee declining to uphold his complaint against Mr ZG (the Practitioner).
The review was sought because the Applicant considered that the Standards Committee had not fully understood the grounds of his complaint.
The complaint essentially involved a bill of costs that the Practitioner had rendered for work he had undertaken for a Trust, in respect of which the Applicant and his wife were Trustees and the Practitioner the independent Trustee. Following the separation of the Applicant and his wife the Trust property was resettled as part of the matrimonial property distribution. The Practitioner rendered an account to the trust, which mostly related to recent services concerning the Trust property, but also included charges for historical attendances that had not previously been paid.
The Applicant had obtained details from the Practitioner, which, according to the Applicant did not provide sufficient detail. He said the Practitioner was unwilling to spend more time on the Applicant's enquiries and had required the account to be paid to conclude the Trust issues.
The Applicant ended up paying the full cost of the Trust's bill, but thereafter his lawyer exchanged correspondence with the Practitioner in relation to these charges. The concern as expressed by his lawyer was that some of the charges related to attendances solely for the benefit of his wife but which were charged to the Trust. The Practitioner had replied with an explanation of the charges which he claimed all concerned trust matters, and included a print out of the attendances. He denied ever having acted for the wife personally.
The Applicant was dissatisfied with the Practitioner's responses and eventually laid a complaint with the New Zealand Law Society. The complaint appeared to focus on the delays by the Practitioner in providing the breakdown of the charges, but later included the complaint that the Practitioner had not obtained his consent for work done for the Trust as the behest of his wife, of which he had no knowledge.
When originally notifying the complaint to the Applicant, the Standards Committee's incomplete understanding of the essence of the complaint is reflected in its letter to the Practitioner who was informed that the complaint concerned allegations that he had failed to act in the best interests of the client and had been unprofessional in the way he handled the transfer of property owned by the Trust. Not surprisingly this was the complaint to which the Practitioner responded. When his reply was sent to the Applicant for comment, the Applicant wrote that he thought the Practitioner had not completely understood the grounds of the complaint.
The Applicant re-defined his complaint to the Standards Committee in the following way:
“The essence of my complaint then is that [the Practitioner & his firm] did not inform me of the fact that they were regularly undertaking for the [Trust] on the instructions of my former wife and then required me to pay an account in respect of that work as a condition of releasing documents without which I could not complete a settlement relating to the Trust.”
The Standards Committee's decision summarised the issues on the basis of the material on the file, and on the basis of accepting the response of the Practitioner, exercised its discretion pursuant to section 138(2) of the Lawyers and Conveyancers Act 2006 to take no further action. I note these matters in the light of the Applicant's review application which was based on the Standards Committee not having properly understood the grounds of his complaint.
My approach to the review has included considering whether the Standards Committee addressed the issues raised by the Applicant's complaints and whether its decision is properly supported by the evidence before the Committee.
The parties have agreed that the Application may be determined without a formal hearing and therefore in accordance with section 206(2) of the Act the matter is being determined on the material made available to this office by the parties.
An essential point raised by the Applicant is that the consent of all three Trustees was required for any decisions made by the Trust. In this light he objected to the Practitioner having undertaken work for the Trust that had been done at the request of his wife, about which he claimed to have no knowledge. This appeared to be the basis of his objection that he, the Applicant, ended up paying for a bill in relation to work in respect of which he was unaware.
In reply the Practitioner rejected the Applicant's assertion that the bill to the Trust ought to have been analysed into a wife-generated quantum and a husband-generated...
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