Auckland Standards Committee 1 v Mary Frances Hackshaw

• Jurisdiction: New Zealand
• Judge: Judge BJ Kendall,Ms F Freeman,Mr C Lucas,Ms S Sage,Mr W Smith
• Judgment Date: 08 July 2016
• Neutral Citation: [2016] NZLCDT 18
• Docket Number: LCDT 011/16
• Court: Lawyers and Conveyancers’ Disciplinary Tribunal
• Date: 08 July 2016

BETWEEN

Auckland Standards Committee 1

Applicant

and

Mary Frances Hackshaw

Respondent

[2016] NZLCDT 18

CHAIR

Judge BJ Kendall (retired)

MEMBERS OF TRIBUNAL

Ms F Freeman

Mr C Lucas

Ms S Sage

Mr W Smith

LCDT 011/16

NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL

Decision on liability and penalty for a charge of misconduct within the meaning of s7(1)(a)(1) Lawyers and Conveyancers Act 2006 (LCA) (conduct of the lawyer‖ when‖ providing regulated services‖ that would reasonably be regarded by lawyers of good standing as disgraceful or dishonourable) — charge arose out of the respondent's administration of a legacy — it was alleged that she misappropriated $10,000 of funds held on trust — hearing proceeded by way of formal proof — whether the charge had been proved — whether the respondent should be struck off.

COUNSEL

Ms C Paterson for the Applicant

No appearance of the Respondent

REASONS FOR THE DECISION OF THE NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL CONCERNING CHARGE AND PENALTY

1 The respondent former practitioner is charged with misconduct within the meaning of s 7(1)(a)(1) of the Lawyers and Conveyancers Act 2006 (ACT).

2 The charge arises out of the respondent's administration of a legacy left by the late JFMcC where it is alleged that she misappropriated $10,000.00 and accumulated funds held on trust for the benefit of a son of the deceased and or failed to account for those funds, and dealt with them contrary to the terms of the will of JFMcC.

3 The respondent is charged in the alternative with negligence or incompetence and with a further alternative of unsatisfactory conduct.

4 The respondent has not engaged with the Lawyers Complaints Service during its investigation. She has not filed a response to the charge. She is understood to be in living in Australia and has not responded to correspondence sent to her at the Australian addresses she had given.

5 The hearing before the Tribunal has proceeded by way of formal proof. The Tribunal has been mindful of its duty to ensure a fair hearing in the absence of the respondent. 1

6 The respondent was engaged to administer the estate of JFMcC in 2002. The will of the deceased included a provision that the sum of $10,000.00 was to be held on trust and that the net annual income from that fund was to be paid to a named son. After the death of that son, the fund and any accrued interest was to be divided equally between the children of that named son.

7 The respondent received the funds on 14 November 2002 which were held in an interest bearing account. She maintained a trust account ledger to record the administration of the funds. The respondent paid the accrued interest to the son each year from June 2004 to June 2009.

8 Between March 2010 and August 2013 the respondent withdrew funds totalling $12,001.89. The respondent closed her trust account with the ASB bank on 9 October 2013.

9 The son of JFMcC has provided evidence primarily by reference to his personal bank statements that he did not receive any of the funds so withdrawn. He confirmed to the Committee that he had no knowledge of nor involvement with any of the...