Abboud v Council of the Law Society of New South Wales [2025] NSWCATOD 34

Council of the Law Society of the ACT v Bandarage [2019] ACTSCFC 1

Council of the New South Wales Bar Association v Dwyer [2015] NSWCA 302

Gautam v Health Care Complaints Commission [2021] NSWCA 85

Khosa v Legal Profession Complaints Committee [2017] WASCA 192

Law Society of New South Wales v Seymour [2004] NSWSC 493

Legal Practice Board v Giraudo [2010] WASC 4 (14 January 2010)

Legal Practice Board v Mullally [2003] WASC 225

Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 44 FLR 41

Legal Services Commissioner v Raghoobar [2023] QSC 41

New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177

Overdean Developments Pty Ltd v Garslev Holdings Pty Ltd (No 3) [2021] NSWSC 1482

Sullivan v Civil Aviation Authority (2014) 226 FCR 555; [2014] FCAFC 93

Victorian Legal Services Board v Mericka (2024) VSC 1

Dal Pont, "Unauthorised Practice of Law" (2018) 45 Aust Bar Rev 224

Council of the Law Society of New South Wales (Respondent)

Council of the Law Society of New South Wales (Respondent)

Council of the Law Society cancels Mr Abboud's practising certificate and he applies for administrative review

1. Mr Leslie Abboud was admitted to practise as a solicitor on 9 July 1982. From March 2011 to November 2023 he has held a practising certificate entitling him to practise as an "employee of a law practice", not as a "principal". He was employed by Gerard Malouf & Partners Pty Limited (GMP) during that period. For two months, from 16 July 2023 to 14 September 2023, Mr Abboud was representing a corporation that successfully purchased a $70 million commercial property in North Sydney. The Council of the Law Society of NSW alleges that Mr Abboud was "engaged in legal practice" outside the terms of his practicing certificate and without professional indemnity insurance during the course of that transaction (the Transaction) and a subsequent legal dispute (the Dispute).
2. The corporation that purchased the property was Austin Ta De Investment Pty Ltd as Trustee for Ruby Miller Pty Ltd (the Purchaser). Mr Abboud says he was not acting as the legal representative of the Purchaser. Ruby Miller Pty Ltd was wholly owned by Mr Dong Xiao Yu (Mr Yu). Mr Yu is a friend and neighbour of Mr Abboud and Mr Abboud says he was merely communicating Mr Yu's instructions to others. All the legal work, such as the conveyancing and the "due diligence" was done by others.
3. The Council also alleges that Mr Abboud made false or misleading representations to other legal practitioners and to parties to the Transaction. Mr Abboud denies that the representations were false or misleading.
4. Based on these allegations and Mr Abboud's response, the Council decided that Mr Abboud is not a "fit and proper person" to hold a practising certificate: Legal Profession Uniform Law (NSW) (Uniform Law), s 76(b) and s 92(2)(b). The Council cancelled Mr Abboud's practising certificate for the year ending 30 June 2024 and prohibited him from applying for a practising certificate for three years: Uniform Law, s 94.
5. Mr Abboud applied to the Tribunal for administrative review of the Council's decision: Uniform Law, s 100. The Council submits that we should affirm the decision. Mr Abboud submits that we should direct the Council to reinstate his practising certificate.

1. The Council's Reasons for Decision set out the background facts to the Transaction at [61]. Mr Abboud also gave evidence about the nature and scope of the Transaction. In summary, the Transaction related to the acquisition of a large commercial building in North Sydney, approximately 19 commercial leases and a data room containing documents (the Property). The acquisition was to be by way of purchase of units in a trust. The selling agent was Kenny Duncanson of CBRE Pty Ltd (Selling Agent). The vendor was VIA III Miller Head Pty Ltd as trustee for the Miller Holding Head Trust (Vendor). Matti Bechler, Special Counsel at Gilbert & Tobin, acted for the Vendor (Solicitor for the Vendor). Huichen (Vivian) Yang was Mr Yu's assistant. Zihao Wang is a director of Ta De Investment, Austin Ta De Investment and Ruby Miller.
2. In late May 2023, when Mr Yu was not in Australia, Mr Abboud received an email from the Selling Agent advertising the Property and seeking expressions of interest. Mr Abboud emailed the details to Mr Yu who asked him to negotiate the purchase and speak to Jason Gao (Mr Gao), a property developer who was also a friend of Mr Yu.
3. Mr Abboud and Mr Gao consulted expert valuers and inspected the Property. Mr Yu then instructed Mr Abboud to make an offer of $70,000,000 to purchase the Property. After three "letters of intent" (LOI) were exchanged, the Purchaser was the successful purchaser.
4. On 3 July 2023 Mr Abboud emailed the Selling Agent attaching Mr Yu's introduction. Mr Abboud sent the email from his work email address. The address block describes him as "special counsel" and contains the email address, phone number and website of GMP.
5. Mr Abboud arranged for the conveyancing aspects of the Transaction to be done by his son, Michael Abboud who is a licensed conveyancer. The Purchaser paid him for that work. Michael Abboud first conducted property searches on 12 July 2023 and kept his father informed of the work he was doing.
6. Mr Abboud arranged for a solicitor, Mr McCaffrey, employed by a Sydney law firm (Bartier Perry) to provide specialised advice about the trust aspects of the Transaction. Those aspects arose in relation to the transfer of unit trusts and analysis of the Deed of Retirement and Appointment (DORA) and the Unit Sales Agreement (USA).
7. We have not referred to the name of the solicitor or Bartier Perry in this version of the Reasons for Decision because the Council has applied for a non-disclosure order in respect of those names. For the reasons we give at the end of this decision we have refused that application. Unless the Council indicates that they intend to appeal from that order, we will publish amended Reasons for Decision which includes those names and the name of another employee of Bartier Perry, Ms Shaw, 28 days from the date of this decision.
8. We will summarise the remaining material facts relating to the Transaction when considering each of the allegations.

1. The Council's Reasons for Decision set out the background facts to the Dispute at [62]-[96]. Mr Abboud also gave evidence about the nature and scope of the Dispute. In summary, on 6 September 2023, after the purchase had been negotiated, Mr Abboud telephoned Mr McCaffrey asking if he would receive the purchase money into Bartier Perry's trust account, draw cheques for settlement and attend the settlement. Mr McCaffrey agreed to do so provided he received satisfactory answers to queries he would put to Mr Abboud in an email.
2. In an email of the same date Mr McCaffrey gave Mr Abboud details of the trust account and asked why the funds were being routed through Bartier Perry's trust account rather than GMP's trust account and whether the funds were coming from overseas.
3. Mr McCaffrey then wrote to Mr Gao, copying in Mr Abboud:

"As to the authority of the person giving us those details/directions: I would expect that these should come from an officer of our client Ta De Investment Pty Ltd. That person's identity could perhaps be verified by Leslie, as your principal solicitor in the matter." (Emphasis added.)

1. On 7 September 2023, $67,994,748.63 was received into Bartier Perry's trust account. When asked why he was not using GMP's trust account, Mr Abboud told Mr McCaffrey that he was acting personally in the matter, not as an employee of GMP. Later that day, before Mr McCaffrey realised that the funds had been deposited, he advised Mr Abboud that Bartier Perry had decided that it could not accept instructions to receive and disburse the trust funds as he had requested. Bartier Perry reported the matter as a suspected trust account irregularity to the Council: Uniform Law, s 154. The police were involved but Mr Abboud was not charged with any offence.
2. Mr Abboud promptly telephoned Mr McCaffrey to say that he had known "these people" (presumably Mr Yu) for 40 years and did not understand what all the trouble was about. Mr Abboud threatened Bartier Perry with legal action on behalf of himself and the Purchaser. The Dispute was resolved by a decision of the Supreme Court which we will not identify as it will reveal the names that the Council is seeking to keep confidential. Mr Abboud was not a party to those proceedings and no adverse findings were made against him.

Tribunal's task when reviewing the Council's decision

1. As these proceedings do not involve disciplinary proceedings taken against a legal practitioner, the rules of evidence do not apply. Nevertheless, the Tribunal is required to base its findings of fact on "logically probative material": Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 38(2); Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 44 FLR 41 at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 226 FCR 555; [2014] FCAFC 93 at [5]- [8], [15]-[17] (Logan J). Facts must be proved on the balance of probabilities to our comfortable satisfaction, having regard to the seriousness and importance of the matters alleged: Gautam v Health Care Complaints Commission [2021] NSWCA 85 per Payne JA at [85]-[87].
2. It is to be presumed, in the absence of evidence to the contrary, that any statement of facts in the Council's Reasons for Decision is a correct statement of the facts: Uniform Law, s 100(7)(b). Fresh evidence, or evidence in addition to or in substitution for matters considered by the Council, may be given: Uniform Law, s 100(6). The "background facts" are set out in the Council's Reasons for Decision at [12] - [104]. (The Council does not rely on the facts alleged at [31]-[32].) With minor exceptions which we will highlight, those facts are not in dispute. Mr Abboud gave evidence as to other factual matters and submitted that all the facts, when considered together, do not support a finding that he was engaged in legal practice, that he made false or misleading statements or that he is not a fit and proper person to hold a practising certificate.

Conducting a merits review of the Council's decision

1. Mr Abboud has applied for an administrative review of the Council's decision to cancel his practising certificate and prohibit him from re-applying for three years. The Tribunal's task is to review the merits of the Council's decision and decide whether the decision is the "correct and preferable" decision: Uniform Law, s 100(2); Legal Profession Uniform Law Application Act 2014 (NSW), s 125; Administrative Decisions Review Act 1997 (NSW) (ADR Act), s 63(1). When conducting a merits review the Tribunal effectively remakes the decision.
2. The Council has a duty under s 58(1)(c) of the ADR Act to lodge with the Tribunal "a copy of every document . . . that (it) considers to be relevant to the determination of the application by the Tribunal". In making findings of fact, the Tribunal is to have regard to "any relevant factual material" including material lodged by Mr Abboud. The Tribunal makes findings on "material questions of fact": NCAT Act, s 62(3).
3. The Tribunal is not limited to the grounds of review articulated by Mr Abboud, nor is the Tribunal required to address grounds which are not relevant to the merits of the Council's decision. Only questions of fact arising from the allegations in the Council's Reasons for Decision are material. When the Tribunal's role is understood, many of Mr Abboud's grounds for review and submissions fall away.

1. In his grounds of review and other submissions, Mr Abboud challenges the integrity and fairness of the Council's investigation. He submits that the Council supressed a significant amount of evidence, particularly by redacting portions of Mr McCaffrey's affidavit and police statements. Mr Abboud says the evidence about police involvement should be disclosed as it will show that the Council was biased against him and made wrong assumptions which coloured their judgement. In addition, Mr Abboud submits that the Council has a conflict of interest because they should not be involved in disciplinary proceedings when their trust account inspectors drew conclusions and provided statements to others which were not true.
2. Mr Abboud also submits that the Council should have disclosed the evidence about the police's involvement. That evidence is said to be relevant because it goes to the state of mind and credit of Mr McCaffrey and Ms Shaw. Mr Abboud asserts that their evidence is "tainted" because it is not correct that he misled them as to his true role in the Transaction.
3. When reviewing the Council's decision, the Tribunal is to assess the correctness of the decision itself, not the process by which the Council conducted the investigation or reached the decision. Our decision will be based on the material facts including the Council's allegations as to what Mr Abboud said and did, what he failed to say or do, and what can reasonably be inferred from that conduct.
4. Mr Abboud submits Mr McCaffrey and Ms Shaw did not return the funds deposited into their firm's trust account because they suspected that Mr Yu and Mr Abboud participated in money laundering. We make no finding as to whether Mr McCaffrey or Ms Shaw suspected criminal activity. The Council has not alleged that Mr Abboud participated in any activity of that kind so the issue as to what Mr McCaffrey or Ms Shaw thought about that matter is irrelevant.
5. Mr Abboud also challenged the credibility of Mr McCaffrey's evidence. One basis for that challenge is that an aspect of his advice to the Purchaser was wrong. Mr Abboud put to Mr McCaffrey in cross-examination that he gave incorrect advice but Mr McCaffrey made no comment in response to that proposition. Whether or not any aspect of Mr McCaffrey's advice was incorrect is not an issue that is relevant to Mr McCaffrey's credibility or any other issue in the proceedings.

1. The Law Society issued a notice to Mr Abboud under s 90 of the Uniform Law alleging:

"A. The Solicitor engaged in legal practice outside the terms of a condition restricting his practising entitlements contrary to s 90(a)(i) of the Uniform Law

B. The solicitor engaged in legal practice without holding professional indemnity insurance that complies with the Uniform Law, contrary to s 90(a)(iii); and

C. The Solicitor made a number of representations that were false or misleading to other legal practitioners and parties to the transaction."

1. The first two allegations are said to be "designated show cause events" as defined in s 90 of the Uniform Law:

90 Nature of designated show cause events

A designated show cause event is the service of a notice on a holder of a certificate -

(a) alleging -

(i) in the case of a holder of an Australian practising certificate - that the holder has engaged in legal practice outside the terms of a condition restricting his or her practising entitlements; or

. . .

(iii) in the case of a holder of an Australian practising certificate who is required to have professional indemnity insurance - that the holder does not have, or no longer has, professional indemnity insurance that complies with this Law in relation to the certificate;

1. As to the first "designated show cause event", a practising certificate is subject to a condition that the holder is authorised to "engage in legal practice" in one or more categories: Uniform Law, s 47. Those categories include "as a principal of a law practice" and "as an employee of a law practice":

47 Conditions - categories of practice and trust money

(1) An Australian practising certificate granted in this jurisdiction is subject to the condition, as determined by the designated local regulatory authority, that the holder is authorised to engage in legal practice -

(a) in one or more of the following categories -

(i) as a principal of a law practice;

(ii) as an employee of a law practice; (Emphasis added.)

. . .

1. Mr Abboud's practising certificate contained a condition that he is authorised to "engage in legal practice" "as an employee of a law practice": Uniform Law, s 47(1)(a)(ii). The Council alleges that Mr Abboud has "engaged in legal practice" for the Purchaser without the knowledge of his employer, GMP. By doing so Mr Abboud is said to have contravened the condition on his practising certificate that restricted him to practise only as an employee of a law practice.
2. After the Dispute arose, Mr Malouf of GMP, wrote to Mr Abboud giving him a formal warning and notification in the following terms:

"You have never been authorised to use the letterhead of this firm or represent that this firm is acting in relation to any aspect of the above commercial matter."

1. Mr Abboud's acknowledged that he did not discuss the Transaction with Mr Malouf but says Mr Malouf "knows they are my friends and he has never objected before". He added that Mr Malouf "was aware that I assist these people". -
2. Mr Abboud did not submit that, during the course of the Transaction or the Dispute, he was engaged in legal practice as an employee of GMP. Rather, he says that he was not acting as an employed solicitor or as a principal. Consequently, if we find that he did engage in legal practice when representing the Purchaser, he must have done so outside the terms of the condition that he do so "as an employee of a law practice".
3. The second designated show cause event is that Mr Abboud engaged in legal practice without holding professional indemnity insurance that complies with the Uniform Law, contrary to s 90(a)(iii). That sub-paragraph applies to "a holder of an Australian practising certificate who is required to have professional indemnity insurance". As an "employee of a law practice" Mr Abboud was not required to have professional indemnity insurance. Consequently s 90(a)(iii) does not apply to Mr Abboud's circumstances.
4. As the second designated show cause event is not an event of the kind listed in s 90(a)(iii), it is not a designated show cause event. The Council cannot rely on that allegation in these proceedings. We appreciate that it is an offence under s 211 of the Uniform Law to "engage in legal practice . . . unless the practitioner holds or is covered by an approved insurance policy for this jurisdiction and the policy covers that legal practice." However, Mr Abboud has not been charged with that offence.
5. The third allegation is that Mr Abboud made false or misleading representations about his and GMP's role in the Transaction to other legal practitioners and parties to the Transaction. In particular, he led them to believe that GMP was acting for the Purchaser when it was not. He then continued to make false or misleading statements after Mr Malouf told him he was not authorised to provide legal services in respect of the Transaction.
6. The Council is "not limited to making its determination . . . on the basis of just the designated show cause event concerned". The Council "may have regard to the facts and circumstances that surround, arise in connection with, relate to or give rise to the designated show cause event concerned": Uniform Law s 92 (5).

(5) In determining a matter under this section, the designated local regulatory authority -

(a) may, but need not, conduct an investigation into the matter; and

(b) is not limited to making its determination, or conducting any such investigation, on the basis of just the designated show cause event concerned; and

(c) may have regard to the facts and circumstances that surround, arise in connection with, relate to or give rise to the designated show cause event concerned.

1. This provision gives the Council, and the Tribunal on review, power to have regard to the facts and circumstances set out in the third allegation.

(1) In relation to the first show cause event, was Mr Abboud "engaged in legal practice" within the meaning of that term in s 47 of the Uniform Law?

(2) In relation to the third allegation, did Mr Abboud make those representations and were they false or misleading?

(3) Despite the first show cause event and the other related matters in the third allegation, is Mr Abboud a fit and proper person to hold a practising certificate?

Meaning of to "engage in legal practice" in s 47(1) of the Uniform Law

1. A practising certificate authorises the holder to "engage in legal practice" either as a principal or as an employee: Uniform Law, s 47(1). Section 6 of the Uniform Law defines the terms to "engage in legal practice" and "legal services" as follows:

engage in legal practice includes practise law or provide legal services, but does not include engage in policy work (which, without limitation, includes developing and commenting on legal policy);

legal services means work done, or business transacted, in the ordinary course of legal practice;

1. The term "engage in legal practice" also appears in s 10 of the Uniform Law. Under s 10:

Prohibition on engaging in legal practice by unqualified entities

(1) An entity must not engage in legal practice in this jurisdiction, unless it is a qualified entity.

1. As well as the statutory definitions, the meaning of these terms has been the subject of judicial consideration and academic articles. Certain principles are uncontroversial. What constitutes engaging in legal practice is a question of fact to be determined objectively in each case: Council of the New South Wales Bar Association v Dwyer [2015] NSWCA 302 at [13] (Dwyer). The inquiry is "not informed by subjective considerations" such as what the person actually intended to do: Dal Pont_,_ "Unauthorised Practice of Law_"_ (2018) 45 Aust Bar Rev 224, 229. The Supreme Court of Queensland agreed with that observation in Legal Services Commissioner v Raghoobar [2023] QSC 41 at [24]. The Court found that the fact that the person expressly told his clients that he was not a legal practitioner had no effect on whether or not his conduct amounted to engaging in legal practice.
2. In Cornall v Nagle [1995] VicRp 50; [1995] 2 VR 188, 210 JD Phillips J discussed the concept of engaging in legal practice by reference to three factors including:

"(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."

1. That characterisation has been repeated in several cases including in Overdean Developments Pty Ltd v Garslev Holdings Pty Ltd (No 3) [2021] NSWSC 1482 at [785] (Overdean). Williams J quotes the following passage from Dwyer [12]:

"Under s 4 of the Legal Profession Act, the term 'engage in legal practice' is defined to include 'practise law'. The expression means to engage in legal practice as a legal practitioner. A person does something as a legal practitioner if the person does something that is usually done by a legal practitioner and does it in such a way as to lead to the reasonable inference that the person is a legal practitioner." (Emphasis in original.)

1. In Overdean at [786] Williams J noted that at the time the Court of Appeal decided Dwyer, the definition of "engage in legal practice" in s 6 of the Uniform Law did not include the words "or provide legal services". Her Honour observed that:

"The word 'or' in the definition 'practise law or provide legal services' indicates that an activity may constitute the provision of legal services (and therefore engaging in legal practice within the meaning of s 10) even if it does not constitute practising law."

1. Williams J went on to give the following opinion:

"In that context, it is my opinion that the definition of 'legal services' as 'work done, or business transacted, in the ordinary course of legal practice' means work or business of a kind that is done or transacted in the ordinary course of legal practice, irrespective of whether it is in fact done in such a manner as might lead third parties to reasonably infer that the person is acting as a legal practitioner and irrespective of whether the third party holds themselves out as an Australian legal practitioner. The addition of the 'provide legal services' element to the definition of 'engage in legal practice' would otherwise add nothing to the 'practise law' element of that definition." (Emphasis in original)

1. Courts and tribunals have recognised that while there are some things that are exclusively within the province of those trained in the law, there are tasks which can be performed by people who are not legal practitioners, such as town real estate agents, planners, police, nurses and financial advisers. The following extracts provide examples of the way courts and Tribunals have attempted to explain what is and is not exclusively the province of lawyers:

(1) "Generally speaking, the giving of professional legal advice, and the conduct of litigation (including court appearances, preparation of evidence, advising about and participating in alternative dispute resolution procedures, engaging in correspondence with opposing parties representing the legal rights or contentions of the person on whose behalf the author is writing, advising on the prospects of success of proceedings or in relation to settlement of proceedings) are exclusively within the province of those trained in the law and having the necessary expertise." Overdean Developments Pty Ltd v Garslev Holdings Pty Ltd (No 3) [2021] NSWSC 1482 at [793].

(2) "In general, the responsibility for and conduct of legal proceedings is the preserve of barristers and solicitors. On the other hand, merely doing something that is usually done by a barrister or solicitor, but which may be done by someone else, will not necessarily constitute engaging in legal practice." Council of the New South Wales Bar Association v Dwyer [2015] NSWCA 302 at [13].

(3) The "essence of legal practice" is "the advising of a particular person in a particular situation and the production of a document which affects legal rights and which is tailored to the particular needs of that person": Australian Competition & Consumer Commission v Murray [2002] FCA 1252 at [94].

(4) "Threatening legal action on another person's behalf is almost exclusively the domain of legal practitioners, save a few exceptions (e.g., a tutor for a person under an incapacity)": Council of the Law Society of New South Wales v Sideris [2024] NSWCATOD 3 at [101].

(5) Purely clerical work will not generally amount the "legal services":

"Work of a merely clerical kind such as filling out blanks in a printed form or drawing instruments of a generally recognised type that does not involve the determination of the legal effect of special facts and conditions should not be regarded as legal work. However, that is to be distinguished from the situation where an instrument is shaped from a mass of facts and conditions, the legal effect of which must be carefully determined by a mind trained in the existing laws in order to ensure a specific result and to guard against others. In such a case more than the knowledge of the layman is required and a charge for such services brings it within the practice of the law": Legal Practice Board v Giraudo [2010] WASC 4 (14 January 2010) [13] (Hall J) citing Barristers' Board v Palm Management Pty Ltd [1984] WAR 101 (21 June 1983) [108] (Brinsden J).

1. In the Reasons for Decision, the Council set out the following conduct as constituting engaging in legal practice:

(1) engaging the law firm to provide specialised advice for the Purchaser while representing to third parties that GMP acted on other parts of the Transaction for the Purchaser;

(2) exchanging correspondence with the Solicitor for the Vendor to progress and complete the drafting of documents for the Transaction concerning the Purchaser's rights and liabilities (amending the transaction documents; "Advice" that LOI not legally binding);

(3) preparing for settlement by organising for the law firm to receive funds into their trust account and attend settlement;

(4) providing a solicitor's undertaking to another solicitor; and

(5) asserting the rights of the Purchaser in a dispute over the release of trust monies from the law firm's trust account and briefing senior counsel in potential litigation.

Engaging Bartier Perry to provide specialised advice for the Purchaser while representing to third parties that GMP acted on other parts of the Transaction for the Purchaser

1. There is no dispute that Mr Abboud engaged Bartier Perry to provide specialised advice to the Purchaser on an aspect of the Transaction. Mr Abboud said he telephoned Mr McCaffrey on 18 July 2023 to request that he provide advice to the Purchaser because he knows nothing about trusts and did not want to be personally responsible for any mistakes.
2. Mr Abboud made it very clear to Mr McCaffrey as to the scope of the work Bartier Perry was to advise on. Mr McCaffrey made an undated, but clearly contemporaneous, file note of his conversations with Mr Abboud. The note lists the areas on which Mr McCaffrey is to advise and the "exceptions" including conveyancing issues, tax issues, due diligence on leases, the rights of the trustee under the Ta De Family Trust and stamp duty on transfer of the units.
3. The second part of this alleged conduct is that, at the same time, Mr Abboud represented to third parties that GMP was acting on other parts of the Transaction for the Purchaser.
4. In a second file note written by Mr McCaffrey on 18 July 2023, the same day as the initial phone call, Mr McCaffrey wrote that, "[w]e would leave to GMP the conveyancing and DD (due diligence)". Mr McCaffrey says his understanding was that the information and instructions were coming from Mr Abboud in his capacity as an employee of GMP. Mr McCaffrey says he cannot recall who was doing the conveyancing on the transaction but perhaps he assumed it was GMP as Mr Abboud was a solicitor employed by that firm and he communicated with Mr McCaffrey using the GMP email block.
5. We find, in accordance with Mr Abboud's evidence, that he had nothing to do with the conveyancing, giving the advice on trust issues or the due diligence. It follows, he says, that he did no legal work on the transaction. Mr Abboud put to Mr McCaffrey that GMP could not have done any legal work because he knew there was no other legal work to be done on the Transaction apart from conveyancing and "due diligence". Mr McCaffrey's response was that he did not expect GMP to do anything in particular, but Mr Abboud did not tell him that he had no role as a solicitor in the Transaction. There is no dispute that neither Mr Abboud nor GMP did the conveyancing or the due diligence and we are not satisfied that Mr Abboud told Mr McCaffrey expressly that GMP was acting on any particular parts of the Transaction for the Purchaser. That was an assumption Mr McCaffrey made because of the way Mr Abboud communicated with him.
6. It follows that the second part of this allegation is not established. However, the issue when determining whether engaging Bartier Perry to provide specialised legal advice amounts to engaging in legal practice (in the sense of practising law) is whether Mr Abboud has done something that is usually done by a legal practitioner and has done it in such a way as to lead to the reasonable inference that the person is a legal practitioner.
7. Whether a "reasonable inference" can be drawn is an objective test which depends on all the circumstances. Those circumstances include the Purchaser's understanding of its relationship with Mr Abboud as well as the understanding of other parties to the Transaction.
8. The Council's Reasons for Decision quote an affidavit of Mr Yu filed in the Supreme Court proceedings stating that he ". . . asked [Mr Abboud] as a friend to assist me in facilitating the purchase of [the Property]. I have known [Mr Abboud] for many years. I did not understand [Mr Abboud] to be acting as my lawyer." Similarly the affidavit of Mr Gao stated that Mr Abboud was "assisting with" the Transaction.
9. Mr Abboud also submitted that in the Supreme Court proceedings resolving the Dispute, the Court accepted the evidence of Mr Yu that Mr Abboud was acting as a friend, and not as his lawyer. While Mr Yu gave that evidence, and the Supreme Court referred to Mr Abboud as someone who was "assisting" with the transaction, the Court was not concerned with Mr Abboud's alleged conduct in those proceedings. The Court's sole consideration was the question of the legitimate owner of the trust monies in Bartier Perrys' trust account. However, we are satisfied that Mr Yu did not engage Mr Abboud as his lawyer or in any other regulated capacity such as a real estate agent.
10. Below we outline further evidence relevant to the issue of whether Mr Abboud has done things in such a way as to lead to the reasonable inference that he was engaged in legal practice.
11. Mr McCaffrey says that Mr Abboud told him in that first phone call that he was "with GMP". The file note identifies the caller as "Aboud" together with his mobile phone number. The contemporaneous records kept by Mr McCaffrey contain no references to Mr Abboud acting in anything other than a legal capacity, for example as a friend or agent. Mr McCaffrey denied that Mr Abboud told him expressly that he was acting in a personal capacity. We find that Mr Abboud told Mr McCaffrey in the first phone call that he was with GMP and referred to the Purchaser as his client. He did not tell Mr McCaffrey that he was acting in a personal capacity or that Mr Yu was his friend.
12. It was not until 7 September 2023 that Mr Abboud told Mr McCaffrey expressly that he was acting in a personal capacity and not as an employee of GMP. Mr McCaffrey's file note of that date recording the details of a phone call with Mr Abboud, states that Mr Abboud "emphasised that he had known these people for 40 years". When Mr McCaffrey asked why Mr Abboud did not use his own trust account to deposit the purchase monies, Mr Abboud told him that he did not have one. The file note goes on to state: "When I said GMP must have a trust account he told me that he was acting personally in the matter not as an employee of GMP but that GMP was aware of what he was doing."
13. On 13 September 2023, Mr McCaffrey made a statement which included the following:

"when [Mr Abboud] told me in our conversation . . . that he was acting in this matter personally and that [GMP] had never been the solicitors for Ta De Investments I was shocked. Mr Malouf (sic) had never before disclosed this to me and in all our interactions he used the email sign off and logo of [GMP] and all my correspondence to Ta De Investment had been addressed to that company care of [GMP] and to [Mr Abboud's] email address at that firm."

1. Contrary to Mr Abboud's submission, the surrounding circumstances do not support an inference that he told Mr McCaffrey that he was acting in a personal capacity or that he should have understood that to be the case.
2. In the initial communications, Mr McCaffrey asked Mr Abboud whether Bartier Perry would be acting for GMP or for his client, the Purchaser. Mr Abboud told Mr McCaffrey that Bartier Perry should enter into a costs agreement directly with the Purchaser. The costs agreement was with the Purchaser and the invoice and advice were addressed to the Purchaser. Mr Abboud was copied into those communications.
3. On 18 July 2023 Mr Abboud forwarded an email from the Solicitor for the Vendor to Mr McCaffrey attaching the draft USA and DORA and requesting that Mr McCaffrey send him a costs agreement with an estimate of costs. The email was forwarded from Mr Abboud's GMP email address.
4. On or about 20 July 2023, Mr McCaffrey had a telephone conversation with Mr Abboud. He told him that he would advise as to the trust aspects of the USA and other matters but not in relation to any conveyancing issues. On 20 July 2023 Bartier Perry sent a costs agreement to the Purchaser, care of GMP, and marked to the attention of Mr Abboud. The email also set out the scope of work to be undertaken by that firm. In that email Mr McCaffrey refers to the Purchaser as "our mutual client". Mr Abboud submitted that the word "client" does not mean that he was acting "legally" even when he has sent an email from his GMP email address. Other professions including real estate agents and accountants also use the word "client". Mr Abboud is not a real estate agent and he did not correct Mr McCaffrey's understanding that the Purchaser was a "client" of both Bartier Perry and GMP.
5. Mr Abboud emailed Mr McCaffrey accepting the Terms of Engagement and asking him to proceed. Mr Abboud's evidence was that he had authority to accept the Terms of Engagement without reference to the Purchaser. Mr McCaffrey replied stating that Bartier Perry would accept the Purchaser's acceptance of the Terms of Engagement provided that it is "given on behalf, and with the authorisation, of" the Purchaser. Mr Abboud confirmed that that was the case.
6. On 25 July 2023, Bartier Perry sent a letter of advice to the Purchaser, care of GMP to the attention of Mr Abboud, in relation to the trust issues. The advice provided recommendations for amendments to the draft USA and DORA. On 31 July 2023 Bartier Perry issued an invoice to the Purchaser care of Mr Abboud at GMP for the work that Mr McCaffrey had completed.
7. On the facts of this case we are satisfied that when Mr Abboud requested specialised advice on behalf of the Purchaser he was providing "legal services". That request is "work done or business transacted, in the ordinary course of legal practice." A lawyer can obtain expert legal advice from another firm of solicitors and request that their "mutual client" be billed directly.
8. Mr Abboud told Mr McCaffrey that Bartier Perry would be acting for the Purchaser on instructions from him. Mr Abboud did not say that there was an agency agreement between him and the Purchaser or by what authority those instructions would be provided. While there is no doubt that the Purchaser itself could request specialised legal advice, and in doing so would not be engaged in legal practice, when another person requests the advice on behalf of the Purchaser, the circumstances are different.
9. Despite the fact that the Purchaser did not engage Mr Abboud as his lawyer, the manner in which Mr Abboud conducted himself as outlined above leads to the reasonable inference that he was acting as a legal representative for the Purchaser.
10. The factual allegations relating to this aspect of Mr Abboud's conduct are proven.

Exchanging correspondence with the Solicitor for the Vendor to progress and complete the drafting of documents for the Transaction concerning the Purchaser's rights and liabilities

1. The Council alleges that Mr Abboud exchanged correspondence with the Solicitor for the Vendor to progress and complete the drafting of documents for the Transaction concerning the Purchaser's rights and liabilities. In particular, the Council alleges that Mr Abboud entered into negotiations with the Solicitor for the Vendor and caused amendments to the Transaction documents affecting the legal rights of the Vendor and the Purchaser. That resulted in the creation of legal documents that were tailored to the particular needs of the Purchaser. Mr Abboud denies that any of these activities constitute engaging in legal practice.
2. First we consider the conduct that is said to be work usually done by a legal practitioner in the ordinary course of legal practice.
3. On 6 July 2023 Mr Abboud sent an email from his GMP email address to Ms Shawang and Mr Gao. Mr Abboud wrote, in part:

"We attach non-binding letter of intent for discussion and signing. Please ring to discuss."

1. On 11 July 2023 Mr Abboud wrote to Ms Shawang and Mr Gao stating that signing the letter of intent (LOI) "is not creating any legal obligation but to allow due diligence". The reference to the LOI not being binding appears in the LOI under the heading, "Legal and Governing Law":

". . . this LOI does not constitute an obligation binding on either party in respect of the transaction contemplated by it . . .

This LOI is not intended to create any legal relations between the parties and does not constitute, nor shall it be deemed to constitute, a formal offer by the Vendor in respect of the transaction. No agreement will be made unless and until the parties formally enter into legal binding documents."

1. The Council submits that in this correspondence Mr Abboud has "provided legal advice or guidance to the Purchaser that the LOI was 'non-binding'". The Council submits that the precise phrase "non-binding" does not appear in the LOI.
2. Mr Abboud's evidence was that the Selling Agent told him that the agreement was "non-binding". We accept that evidence. He merely conveyed the advice. Mr Abboud submits that negotiations about the price of the property and other matters is not legal work. He says he was acting like a buyer's agent to secure a property for Mr Wu.
3. The passing on of legal advice obtained from another source and negotiating amendments to the Transaction documents is not something that only a legal practitioner can do. Real estate agents, including buyer's agents, may perform tasks of that kind if they are licenced to do so. However, Mr Abboud did not assert that he holds a real estate agent's licence or that he was working under the direction of a licenced real estate agent.
4. Regardless of the source of the information, by conveying advice to the Purchaser, Mr Abboud was doing work usually done by a legal practitioner in the ordinary course of legal practice.
5. On 14 July 2023, Mr Abboud received an email sent to his GMP email address from the Solicitor for the Vendor. In part the email stated: "[w]e attach, subject to instructions, the [USA] and [DORA] for your review." Mr Abboud forwarded those documents to Mr McCaffrey. We accept Mr Abboud's evidence that he did not review the documents before doing so.
6. Mr Abboud highlights the fact that Mr McCaffrey corresponded directly with the Solicitors for the Vendor, and that he was merely copied into that correspondence. For example, on 20 July 2023, Mr McCaffrey wrote to the Solicitor for the Vendor thanking him for the documents he had provided and asking for clarification on a particular issue. According to Mr Abboud, that form of communication establishes that Mr McCaffrey was acting independently to check the documents. Mr Abboud says he did not check anything himself because that was not part of his role. We accept that evidence.
7. On 28 July 2023, after receiving Bartier Perry's advice, Mr Abboud attended a conference with the Solicitor for the Vendor. He relied on Mr McCaffrey's advice to request amendments to clause 7 of the USA. Subsequently, Mr Abboud corresponded directly with the Solicitor for the Vendor about amendments to the Transaction documents. For example, on 4 August 2023, Mr Abboud wrote to the Solicitor for the Vendor raising various queries and requesting amendments to the USA.
8. The majority of these queries were based on recommendations in Mr McCaffrey's advice but there was one query which was not related to the trust issues. Mr Abboud noted that:

'The building has no Building certificate or occupancy (sic) certificate. We require same at completion or be satisfied they are not needed. We have these questions in the data room but no answer to date."

1. We accept Mr Abboud's evidence that the issue as to the existence and/or need for a Building Certificate and an Occupation Certificate had been raised previously and was "in the data room". Highlighting unanswered questions from the data room does not involve the determination of the legal effect of particular facts. However, it is something usually done by a solicitor who is representing a purchaser on a transaction.
2. On 4 August 2023, Mr Gao emailed Mr Abboud with some queries and asked him to check with Mr McCaffrey about those matters. He also asked whether setting up a new trust is "not necessary". The Council characterised this query as Mr Gao asking for Mr Abboud's opinion on a substantive aspect of the Transaction. Mr Abboud denies that Mr Gao was looking to him for legal advice. He says that he forwarded Mr Gao's queries to Mr McCaffrey without offering an opinion.
3. We are not satisfied that Mr Abboud's response to this communication can be characterised as something usually done by a legal practitioner. The mere fact that a person is asked for an opinion, which is not provided, does not amount to engaging in legal practice. This aspect of the allegations is not proven.
4. On 9 August 2023 the Solicitor for the Vendor wrote to Mr Abboud asking whether he could confirm that the documents "are now in agreed form". Mr Abboud says that in agreeing that they were, he was merely relaying advice he had received from others. He had no input into the changes. He accepted the advice that Mr McCaffrey gave and negotiated the amendments on behalf of the Purchaser.
5. While the amendments to the Transaction documents affected the legal rights of the Purchaser, Mr Abboud did not provide the legal advice contained in Bartier Perry's advice. He used the advice to negotiate amendments to the Transaction documents. The passing on of legal advice obtained from another source and negotiating amendments to the Transaction documents is not something that only a legal practitioner can do. A licenced real estate agent acting as a buyer's agent may be able to perform similar tasks. But it is something usually done by a solicitor who has requested another legal practitioner to provide legal advice on a particular subject area.
6. Furthermore, (apart from the Mr Abboud's response to the 4 August 2023 letter) for the reasons we have outlined above and for the following additional reasons those tasks were done in such a way as to lead to the reasonable inference that Mr Abboud is a legal practitioner.
7. Mr Abboud referred to the Purchaser as his "client" in his phone call with Mr McCaffrey, in correspondence with Mr McCaffrey, the Vendor's Solicitor, the Selling Agent, Mr Malouf (the principal of GMP) and the Law Society of NSW. Mr Abboud says he may have referred to the Purchaser as his client and if he did he had used the "wrong words". What he meant was that he was the Purchaser's representative or agent. He used the word "client" to mean "my boss" or "my principal".
8. Regardless of how Mr Abboud interpreted the word "client", in the context of a person emailing from GMP's email address, "client" conveys the meaning of the author being the client's legal representative.
9. From 6 July 2023 to 14 September 2023, the documents exchanged among Mr Abboud, Mr McCaffrey, the Selling Agent and the Solicitor for the Vendor all consistently contained the email block of Mr Abboud, an employee of GMP. At the time of these events, Mr Abboud says he did not have a personal email address and used his GMP email for all his communications.
10. GMP was named as the "purchaser's Legal Contact" on the LOI. Initially the letter of intent did not contain information as to the "Purchaser's Legal Contact" but at some stage that information was completed with the following information: "Leslie Abboud, Gerald Malouf & Partners" together with Mr Abboud's mobile phone number and his email at GMP. Mr Abboud says he does not know who completed that information, him or Vivian Yang, but it just meant he was the first point of contact. He denied that he was giving the false impression that the Purchaser had engaged him as a lawyer.
11. We find that, whether Mr Abboud or someone else inserted that information, Mr Abboud knew that the information outlined above appeared next to the heading "Purchaser's Legal Contact". A reasonable person reading that document would assume that Mr Abboud of GMP was acting as the Purchaser's solicitor.
12. Mr Abboud also used the word "we" in an email of 6 July 2023 to Ms Shawang, Mr Shi and Mr Gao: "We attach non-binding letter of intent for discussions and signing." Mr Abboud denied that the use of the term "we" suggests that he was sending correspondence on behalf of a firm of solicitors. Again, in the context of a person emailing from GMP's email address, "we" conveys the meaning of the author being the client's legal representative
13. Apart from Mr Abboud's response to the 4 August 2023 letter, the allegations outlined above are established.

Preparing for settlement by organising for Bartier Perry to receive funds into their trust account and attend settlement

1. The third category of conduct relates to the preparation for settlement. The Council alleges that Mr Abboud prepared for settlement by organising for Bartier Perry to receive funds into their trust account and attend settlement.
2. Mr Abboud requested that Bartier Perry receive funds into their trust account in order to facilitate the completion of the Transaction. He requested details of the trust account and asked the Purchaser to transfer the settlement sum. Mr Abboud also asked Mr McCaffrey to attend the settlement on behalf of the Purchaser.
3. In preparing for settlement, Mr Abboud: advised the Purchaser of the settlement amount and bank details; corresponded with the Solicitor for the Vendor on the adjustments to the settlement sum; advised the Purchaser as to how PEXA (Property Exchange Australia) transactions work; advised the Purchaser that he would calculate the stamp duty to be paid in the Transaction; and approached Bartier Perry to receive the Purchase Money when Mr Wu instructed that he did not wish to settle by PEXA.
4. Mr Abboud admits that he took instructions from the Purchaser, reorganised settlement from PEXA to Bartier Perry's trust account and corresponded on the adjustments to the settlement sum with the Solicitors for the Vendor.
5. The Council characterises these steps as being "to facilitate the completion of the Transaction by the coordination of the parties to the Transaction and their advisors".
6. The taking of steps to prepare the matter for settlement are things usually done by a legal practitioner (or a licenced conveyancer) on behalf of a client. They cannot be characterised as merely clerical activities. The manner in which this was done leads to the reasonable inference that Mr Abboud is a legal practitioner.
7. The allegations outlined above are established.

Providing a solicitor's undertaking to another solicitor

1. This allegation occurred during the course of the Dispute. Mr Abboud provided a written solicitor's undertaking to Bartier Perry to facilitate the payment of the purchase money from the Purchaser's account to Bartier Perry's trust account.
2. On 8 September 2023 Bartier Perry wrote to Mr Abboud confirming that they had met with a Trust Account Investigator from the Law Society and that Bartier Perry would be in a position to refund the payment of the trust money if Mr Abboud gave, among other things:

"A written solicitor's undertaking signed by [Mr Abboud] addressed to [Bartier Perry] in the following terms: 'I [solicitor] hereby undertake to [Bartier Perry] that the enclosed certified copy of Dong Xiao Yu's passport and enclosed written authority of Dong Xiao Yu are genuine documents and that Dong Xiao Yu has authority to give [Bartier Perry] those instructions.'"

1. On 11 September Mr Abboud provided the following undertaking that the written direction of Mr Yu is genuine and that Mr Yu has authority to give Bartier Perry instructions.

"I, Leslie Abboud, Solicitor hereby undertake to [Bartier Perry], that the enclosed certified copy of Dong Xiao Yu's passport and the enclosed written authority of Dong Xiao Yu are genuine documents and that Dong Xiao Yu has authority to give [Bartier Perry] those instructions."

1. Rule 6.1 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 provides that a solicitor who has given an undertaking in the course of legal practice must honour that undertaking and ensure the timely and effective performance of that undertaking.
2. The Council alleges that the act of giving the undertaking constitutes engaging in legal practice. As Mr Abboud's practising certificate is subject to the condition that he practise "as an employee of a law practice", he could not, without his employer's sanction, offer a solicitor's undertaking to facilitate settlement.
3. Mr Abboud agrees that he gave the undertaking in his capacity as a solicitor but says that he was merely certifying documents as being genuine. As an employed solicitor he can certify documents and give undertakings without acting in a legal capacity for Mr Yu. Mr Abboud says he was exercising a public duty, not doing legal work.
4. Mr Abboud has given a solicitor's undertaking "in the course of legal practice": Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015, Rule 6.1. There is no other context in which a solicitor can give such an undertaking. Consequently, by definition, when giving a solicitor's undertaking, Mr Abboud is engaged in legal practice. He is doing something only a solicitor can do and he is doing it in such a way as would lead to the reasonable inference that he is a solicitor.
5. The conduct outlined above has been established.

Asserting the rights of the Purchaser in a dispute over the release of trust monies from Bartier Perry's trust account and briefing senior counsel in potential litigation

1. Mr Abboud made the following separate representations to Bartier Perry: "if [Bartier Perry] hinders the settlement, [Bartier Perry] will be liable"; "without prejudice"; "We will seek damages as the settlement was yesterday"; "We put you on notice that if we fail to complete and loose (sic) the deposit of $7,000,000 and other damages we hold you responsible"; and "We also intend to seek damages for reputational damages to myself and Mr Yu as you have no basis for your actions or suspicious (sic)".
2. In telephone conversations and correspondence with Bartier Perry, Mr Abboud made the following further representations: "we are pressing with Supreme Court action for injunctive relief and damages"; "I am briefing senior counsel" and "I am seeing counsel at 2 pm to prepare the necessary application". Mr Abboud signed off correspondence dated 13 September 2023 to Ms Shaw of Bartier Perry as "Leslie Abboud, Solicitor".
3. On 12 September 2023 Mr Abboud forwarded an email to Shane Prince SC in relation to the Dispute from his GMP email address. Mr Abboud admits that he contacted Mr Prince but then took his advice to engage an independent Bartier Perry to act for Mr Yu. That firm then briefed Mr Prince. Mr Abboud did not brief Mr Prince directly.
4. Mr Abboud said he has every right to assert the rights of the Purchasers as he was their agent and representative in Australia. He added that, "of course the purchaser threatened legal action and as his agent I relayed that intention".
5. Mr Abboud explains his actions as being a response to an allegation that Mr McCaffrey said to him in a phone call that, "[y] our client and you are money laundering." Mr Abboud put to Mr McCaffrey in cross examination that in the last phone call they had together Mr Abboud asked why Mr McCaffrey was so suspicious. Mr Abboud says Mr McCaffrey's response was that he and Mr Yu were money laundering. Mr McCaffrey said that he does not recall using those words and does not believe that he said that.
6. We make no finding about that matter as Mr Abboud's motivation or justification for asserting the rights of the Purchaser, if that is what he did, are irrelevant to the issue of whether he was engaging in legal practice at the time.
7. We are not satisfied that Mr Abboud briefed senior counsel in potential litigation. But he did threaten legal action on behalf of himself and the Purchaser. He is not engaging in legal practice by threatening legal action on his own behalf, but threatening legal action on behalf of another person "is almost exclusively the domain of legal practitioners": Council of the Law Society of New South Wales v Sideris [2024] NSWCATOD 3 at [101]. We find that the threats were made in such a way as to lead to the reasonable inference that Mr Abboud is a legal practitioner. Mr Abboud threatened legal action using the GMP email address or by signing off his correspondence with the words "Leslie Abboud, Solicitor".
8. Apart from the allegation that he briefed senior counsel, the allegations outlined above are established.

Did Mr Abboud make false and misleading representations?

1. This is the third of the three matters listed in the s 90 notice. The Council divided the allegations into the following categories:

(1) representation to legal practitioners and the Law Society; and

(2) representations to legal practitioners concerning GMP's role in the Transaction.

1. We do not understand the difference between these two categories. For both categories of allegations are said to have conveyed the impression that Mr Abboud was engaged as a lawyer of GMP to act for the Purchaser and/or Mr Yu and his associated companies. Nevertheless we will address them separately.
2. The representations are set out at (a) to (j) of [202] of the Council's Reasons for Decision. That list contains communications that Mr Abboud made to Mr McCaffrey and to the Solicitor for the Vendor as well as communications to Mr Abboud reflecting the person's understanding that GMP was acting for the Purchaser. The Council submits that Mr Abboud's failure to correct practitioners when they articulated an understanding of his role, which he knew to be incorrect, amounts to positive misrepresentations. The representations are:

(1) On 18 July 2023, in a telephone conversation with Mr McCaffrey, Mr Abboud said he was with GMP. Mr McCaffrey asked whether Bartier Perry would be acting for GMP or for the Purchaser. Mr Abboud said Mr McCaffrey would be acting for the Purchaser on instructions from Mr Abboud. Mr McCaffrey's file note records that Bartier Perry "would leave to GMP the conveyance [due diligence]".

(2) On 20 July 2023, Bartier Perry sent Mr Abboud a service engagement letter to provide "legal services to [the Purchaser]" addressed to [the Purchaser] c/-[GMP]", "Attention: Leslie Abboud Email: [email deleted]. The letter stated, "thank you for your request asking us to provide legal services to [the Purchaser]". Mr McCaffrey referred to "our mutual client" when speaking about the Purchaser in his email attaching the service engagement letter on 20 July 2023.

(3) Mr Abboud sent numerous emails to Mr McCaffrey about legal work for the Purchaser using his GMP email address which identified him as "special counsel" of GMP. The emails also regularly included a line "[w]hen sending correspondence to me, please copy in my secretary Ms Mona Somsanit of our office [email address deleted]."

(4) Bartier Perry sent two invoices for work performed on the Transaction addressed to [the Purchaser] Attn: Leslie Abboud c/- [GMP] [address deleted] and to Mr Abboud's GMP email address.

(5) On 6 September 2023 Mr McCaffrey sent an email to Mr Gao, Ms Shawang and Mr Abboud which stated, "That person's identity could perhaps be verified by your principal solicitor in the matter".

(6) On 7 September 2023 Mr Abboud telephoned Mr McCaffrey and told him that he was acting personally in the matter - not as an employee of GMP - but that GMP was aware of what he was doing.

1. Mr Abboud repeated the assertion, which we have rejected, that Mr McCaffrey was "made aware that he was the agent and representative of Mr Yu and his corporations." He added that he did not really question Mr McCaffrey's understanding about the relationship between himself and Mr Yu. Mr Abboud submits that if it is accepted that he was a friend of Mr Yu and was his agent and representative in Australia, there is no inconsistency. That submission is not correct. Even if Mr Yu understood that Mr Abboud was not representing him as a legal practitioner, any representations Mr Abboud made that he was acting in that capacity are false and misleading.
2. We find that Mr Abboud either made these representations or failed to correct the misunderstandings of others that he was acting as a legal practitioner.
3. The second category also lists allegedly false and misleading representations made to legal practitioners concerning GMP's role in the Transaction. The Council alleges that Mr Abboud's communications to legal practitioners and parties caused them to have the impression that Mr Abboud was acting as an employee of GMP; that the Purchaser was represented by GMP; that GMP was conducting the conveyance for the Purchaser and that GMP was conducting the due diligence in relation to the Transaction. The Council submits that those impressions are false.
4. The Council also relies on the following interactions with the Solicitor for the Vendor and the Selling Agent:

(1) On 1 August 2023 the Solicitor for the Vendor emailed Mr Abboud regarding "our respective clients" and attached a marked up version of the USA showing further changes to that document. The Solicitors for the Vendor also requested the details of the incoming Trustee and Mr Abboud's "proposed form of limitation of liability clause for each of the Purchaser and the Incoming Trustee", so that the Vendor's Solicitor could complete these details in the document.

(2) On 17 August 2023 the Solicitor for the Vendor sent to the Selling Agent a USA which identified the Purchaser as Austin Ta De Investment and with the signature block as: "Agreed by the Purchaser's Solicitors [GMP]" followed by the lines for signatures.

(3) Section 24 of the USA titled "Notices and other communications" lists the contact as "Attention: Mr Yu" and Mr Abboud's GMP email address. A copy of any notices and communications are to be sent to: "Gerard Malouf and Partners, Attention: Leslie Abboud" and Mr Abboud's GMP email address.

(4) On 11 September 2023 Mr Abboud emailed Ms Shaw, Mr McCaffrey and the Solicitor for the Vendor from his GMP email address and with his GMP signature stating "We attach documents required. Please transfer the funds today."

1. Again, the Council relies on Mr Abboud's representation to multiple parties to the Transaction and other practitioners using his GMP email address and signature block and the listing of GMP on key transaction documents. Council also relies on Mr Abboud's failure to correct practitioners when they expressed an understanding of his role which he knew to be incorrect. The failure to do so is said to amount to a positive representation that Mr Abboud was acting in a legal capacity.
2. Each of the representations Mr Abboud made was false or misleading because his employer, GMP, had not authorised him to act for the Purchaser in any capacity or in relation to any aspect of the Transaction or the Dispute. Mr Abboud represented that he was acting in his capacity as a solicitor and failed to correct others' understanding that that was the case.
3. At the hearing, the Council put to Mr Abboud further examples of his conduct which it says demonstrates that he is not a fit and proper person to hold a practising certificate because of the manner in which he communicated after the Dispute arose and the fact that he continued to hold himself out as a solicitor.
4. Mr Abboud texted Ms Shaw, an employee of Bartier Perry, on her personal mobile phone number asking her to "stop sending emails to Gerard Malouf and David Cossalter as they have no interest in this and neither GMP." "I am assisting a friend on the contract". On 13 September 2023, Mr Abboud emailed Ms Shaw from a new personal Hotmail email address. The letter was headed "without prejudice" and requested that further emails be sent to that address. The email stated that Mr Abboud "represented Mr You (sic) and his corporations". The email was "signed" "Leslie Abboud, Solicitor".
5. Mr Abboud denies that he was acting in a legal capacity in sending this correspondence. He likens calling himself "solicitor" to a person calling themselves "doctor". He asks, rhetorically, what else he should call himself?
6. On 18 September 2023 Mr Abboud wrote to the Law Society stating that: "I represent the owners of the trust monies held by [Bartier Perry] in their trust account to complete the purchase of" the Property. He again refers to Mr Yu as "my client". Mr Abboud accepts that he should not have referred to Mr Yu as his client and that he did not make it clear to the Law Society that he was not acting in a legal capacity as the solicitor for the Purchaser.
7. On 15 September 2023 Mr Abboud replied to correspondence from the Law Society. The email ended with the following statements:

"I am not aware of any laws that prevent relaying instructions from a friend."

"You made an error and you should rectify it not persecute the messenger."

1. Mr Abboud further submits that after realising that he had made a mistake, Mr McCaffrey sought to blame him for his own "bigotry and racism, aided and abetted by the Law Society Trust account inspectors". Mr Abboud submits that Mr McCaffrey knew that Mr Yu is an Australian citizen of some 30 years, owned substantial properties in Australia and China. He wrote that, "Without a shred of evidence", they "attacked me and Mr Yu accusing us of criminal activity. Because I raised that with them, they decided to cancel my practising certificate."
2. Council submits that these representations raise concerns about Mr Abboud's ability to perform day-to-day tasks associated with the provision of legal services including his ability to communicate in a professional manner with other legal practitioners.

Despite the first show cause event and the other related matters, is Mr Abboud a fit and proper person to hold a practising certificate?

1. Recently, in Victorian Legal Services Board v Mericka (2024) VSC 1 Harris J summarised the scope of the term "fit and proper" at [12]-[13] (footnotes deleted):

"12 In Victorian Legal Services Board v Gobbo, Forbes J elaborated on the meaning of 'fit and proper':

The phrase 'fit and proper' is a familiar one giving the widest scope for matters of judgment. It is not solely related to questions of conduct or character but is a holistic inquiry in light of the particular facts and circumstances. In Hughes & Vale Pty Ltd v NSW (No 2), the Court considered the meaning of the phrase, in the context of fitness to hold a particular type of licence, noting:

Fit (or "idoneus") with respect to an office is said to involve three things, honesty, knowledge and ability: "honesty to execute it truly, without malice, affection or partiality; knowledge to know what he ought duly to do; and the ability ... that he may intend and execute his office, when need is, diligently, and not for impotency or poverty, neglect it".

13 The inherent requirements for fitness and propriety of a lawyer were described by Davies J in MN Legal and Management Consultants Pty Ltd v The Council of the Law Society of New South Wales, as including the following:

(a) the ability to perform the day-to-day tasks associated with providing legal services, including the ability to communicate in a professional manner with the courts, law-enforcement agencies and other legal practitioners;

(b) the ability to discharge the legal practitioner's duties to the Court, including:

(i) the duty to be honest and courteous in all dealings in the course of legal practice;

(ii) the duty not to engage in conduct, in the course of practice or otherwise, which is likely to a material degree to be prejudicial to, or diminish the public confidence in, the administration of justice, or bring the profession into disrepute;

(iii) the duty not to knowingly or recklessly mislead the court; and

(iv) an obligation to obey the law and to comply with court orders."

Can the Tribunal take into account Mr Abboud's disciplinary history when determining fitness and propriety?

1. The Council filed a "supplementary bundle" of material which included evidence relating to Mr Abboud's disciplinary history. The issue which arises is whether, when assessing fitness and propriety, the Tribunal can take into account conduct outside the so called "designated show cause events" and "the facts and circumstances that surround, arise in connection with, relate to or give rise to the designated show cause event": Uniform Law, s 92.
2. Division 4 of the Uniform Law is headed "Show cause procedure for variation, suspension or cancellation of, or refusal to renew, certificates". Sub-division 3 defines "designated show cause events" and provides that a person who receives a notice must provide "a written statement explaining why, despite the show cause event, the holder considers himself or herself to be a fit and proper person to hold a certificate": s 91(1). If the person provides such a statement, the Council must "determine whether the person concerned is a fit and proper person to hold a certificate".
3. Section 92(5) expressly provides that the Council " . . may have regard to the facts and circumstances that surround, arise in connection with, relate to or give rise to the designated show cause event concerned."

(5) In determining a matter under this section, the designated local regulatory authority -

(a) may, but need not, conduct an investigation into the matter; and

(b) is not limited to making its determination, or conducting any such investigation, on the basis of just the designated show cause event concerned; and

(c) may have regard to the facts and circumstances that surround, arise in connection with, relate to or give rise to the designated show cause event concerned.

1. Under s 92(6) the Council cannot deal with a matter that has previously been the subject of investigation or determination unless there are exceptional circumstances:

(6) The designated local regulatory authority is not to deal with a matter under this section if the matter has previously been the subject of investigation or determination under this Law unless the designated local regulatory authority is satisfied there are exceptional circumstances for doing so.

1. Mr Abboud's disciplinary history is not a designated show cause event nor does it relate to a designated show cause event. The Council submits that the Tribunal can take it into account because the Tribunal makes its decision on the basis of "any relevant factual material" that is before the Tribunal as at the date of the hearing: ADR Act, s 63(1)(a). The Council did not submit that there were exceptional circumstances justifying it dealing with those matters.
2. The Council relied on the case of Council of the Law Society of the ACT v Bandarage [2019] ACTSCFC 1 at [126] in support of the proposition that when determining fitness and propriety the Court "must consider all relevant prior conduct". However, the legislative context in that case was different. The question was whether the practitioner's name should be removed from the roll under s 431(3) of the Legal Profession Act 2006 (ACT). The Court found at [16] that the ultimate question is "whether the practitioner is a fit and proper person to be a legal practitioner of the Court". In this case the question is whether, "despite the show cause event" and the surrounding circumstances, Mr Abboud is a fit and proper person to hold a certificate.
3. The phrase "despite the show cause event" in s 91(1) of the Uniform Law supports the conclusion that a person's fitness or propriety is confined to the matters set out in the show cause events (or facts and circumstances that relate to the show cause event). Matters that have previously been the subject of investigation or determination cannot be dealt with unless there are exceptional circumstances. The fact that that history is before the Tribunal does not make it relevant if the statutory scheme does not support the conclusion that it is relevant.

1. The onus is on Mr Abboud to establish that he is a fit and proper person to hold an Australian practising certificate: Uniform Law, s 100(7)(a).
2. Mr Abboud has been practicing for over 40 years and has specialised in medical negligence. It is correct that Mr Yu did not engage Mr Abboud to represent him as a legal practitioner.
3. Mr Abboud says he did nothing wrong. He does not believe that he contributed at all to the Dispute. His only mistake was using GMP's email. In doing so, he says he did not deliberately deceive anyone.
4. Mr Abboud goes on to submit that Mr McCaffrey is making allegations against him because of his own wrong assumptions. Mr Abboud added that the behaviour of Bartier Perry and the Law Society's trust account inspectors was driven by bigotry and racism and they wished to distract from their own wrongdoing.
5. Mr Abboud says he is highly regarded by his peers. He purports to rely on character references filed in separate proceedings before the Tribunal which have not been heard. Those references were not tendered in these proceedings and we have not had regard to them. We make no finding either way as to whether Mr Abboud is highly regarded by his peers.
6. Similarly, Mr Abboud says he has always been honest and ethical. We have not taken into account his disciplinary history and nor do we take into account Mr Abboud's assertion as to his honesty.
7. The Council submitted that Mr Abboud has engaged in the alleged conduct but rather than take responsibility for it, he has attempted to shift the blame to others and make scandalous allegations without evidence.

1. With one minor exception, we have found the first designated show cause event to be proven. Mr Abboud has contravened the condition on his practising certificate that restricted him to practise only as an employee of a practice. In doing so he has not complied with the regulatory scheme to which legal practitioners are subject. That reflects adversely on his integrity.
2. Mr Abboud has made the false representations we have outlined above and failed to correct misunderstandings about his role in the Transaction and the Dispute. It was not until the Dispute arose that Mr Abboud corrected the misunderstanding he had created by advising Mr McCaffrey that GMP was not acting for the Purchaser. This conduct is dishonest because Mr Abboud was not the Purchaser's legal representative.
3. Mr Abboud submits that he had no motivation to deceive anyone into thinking that he was acting in a legal capacity. Whether he did so merely because he did not have a personal email address, as he asserts, or for other reasons, the effect was that others involved in the Transaction made the reasonable assumption that he was acting in that capacity.
4. When the Dispute arose Mr Abboud reacted by challenging the credibility and motivation of Mr McCaffrey and the Law Society inspectors. Those communications demonstrate that Mr Abboud is unable to communicate in a professional manner with other legal practitioners.
5. Mr Abboud's conduct falls short of the honesty and integrity that the public are entitled to expect from a legal practitioner.

1. Under s 100(3) of the Uniform Law, the Tribunal may make any orders it considers appropriate including:

(a) an order directing the designated local regulatory authority to grant, or to refuse to grant, an application for an Australian practising certificate;

(b) an order directing the designated local regulatory authority to suspend for a specified period or cancel an Australian practising certificate, or to reinstate an Australian practising certificate that has been suspended or cancelled;

(c) an order that an applicant or holder is not entitled to apply for the grant of an Australian practising certificate for a specified period not exceeding 5 years;

(d) an order directing the designated local regulatory authority to vary an Australian practising certificate in the manner specified by the designated tribunal.

1. The Council does not seek an order for costs.
2. Two objectives of Part 2.1 of the Uniform Law headed "Unqualified Legal Practice" are:

9 Objectives

The objectives of this Part are -

(a) to ensure, in the interests of the administration of justice, that legal work is carried out only by those who are properly qualified to do so; and

(b) to protect clients of law practices by ensuring that persons carrying out legal work are entitled to do so.

1. In Legal Practice Board v Mullally [2003] WASC 225 at [3] the Supreme Court of Western Australia (Johnson J) held that provisions relating to engaging in legal practice without a practising certificate ". . . exist for the protection of the public and not for the protection of legal practitioners". Her Honour went on:

"They are designed to ensure that the public receives legal advice and representation only from those who are properly qualified, are fit and proper and in every respect a person of good fame and character ... The public are entitled to be assured that those who undertake the important task of advising and representing them in relation to their legal affairs not only have sufficient knowledge to do so, but are also bound by ethical restraints and standards of responsible conduct."

1. In Law Society of New South Wales v Seymour [2004] NSWSC 493 at [6], Buddin J explained that "[i]t is axiomatic that the public at large must be protected from the activities of persons who are not qualified, or not otherwise entitled, to act as solicitors, but who nonetheless seek to conduct themselves as if they are." In an article by G E Dal Pont published in 2018, the author concludes that "[t]he principal rational for the unauthorised practice proscription is ... to protect the public by prescribing the fulfilment of competence thresholds".

1. The provisions relating to engaging in legal practice without being eligible to do so, exist for the protection of the public and not for the protection of legal practitioners. This is not a case where the public was put at risk by an unqualified or otherwise incompetent person from engaging in legal practice. Mr Abboud is admitted to practice and holds a practising certificate. He is, in a narrow sense, "qualified" to practice law in that he has a law degree and is admitted to practice. While Mr Abboud is not "entitled" to engage in legal practice on his own account, it was not alleged that in doing so he has exposed the Purchaser to a high level of risk.
2. The Council submits that a suspension of Mr Abboud's practising certificate would not be appropriate as the matters we have found to be established demonstrate that he lacks any insight into his conduct. Lack of insight is a factor that supports cancellation rather than suspension: Khosa v Legal Profession Complaints Committee [2017] WASCA 192 at [192] and New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 18.
3. Mr Abboud lacks insight. He still fails to appreciate that it is dishonest of him to refer to himself as a solicitor when he is not intending to act in that capacity. He likens calling himself "solicitor" to a person calling themselves "doctor". Mr Abboud appears to have no appreciation of the wrongfulness of his conduct. Similarly, the unprofessional communications with others are highly inappropriate and there is no evidence that Mr Abboud appreciates that or has apologised for them.
4. Given the nature and seriousness of Mr Abboud's conduct and the fact that he continues to lack insight, a suspension is not appropriate. Cancellation is the correct decision. But we are not persuaded that prohibiting Mr Abboud from reapplying for a practising certificate for a period of three year is justified. The evidence does not suggest that Mr Abboud will be unable to prove his fitness to practice within a period of one year from the publication of this decision.

1. On the final day of hearing the Council has applied for a non-publication order pursuant to s 64(1)(a) of the NCAT Act to prohibit disclosure of the name of a firm of solicitors and two employees of that firm, who we have called Mr McCaffrey and Ms Shaw. Ms Shaw, a solicitor employed by Bartier Perry, provided an affidavit in support of that application. Mr Abboud opposed the application during the hearing but in submissions dated 4 December 2024 said that if they wish to protect their names he will not object.
2. We made directions for Mr Abboud to file submissions as to the paragraphs of Ms Shaw's affidavit that he wished to cross-examine her about. He did not do so. Instead, Mr Abboud submitted that the evidence is "not admissible" as it is "only allegations at this stage" and the Tribunal "should not decide these facts as another Court has been established to do so".
3. We have given Mr Abboud a reasonable opportunity to respond to Ms Shaw's evidence. We intend to take that evidence into account to the extent that it is relevant to the application for non-publication.
4. Section 64(1)(a) of the NCAT Act provides that:

(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders -

(a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

1. The first factual basis for the non-publication application is that Mr Abboud has alleged, in an application for a summons to be issued to Bartier Perry, that Mr McCaffrey engaged in what we will call "wrongful conduct". The second factual basis is that when cross-examining Mr McCaffrey, Mr Abboud put to him that the advice he provided to the Purchaser was negligent.
2. We accept that anonymising the name of the firm, Mr McCaffrey and Ms Shaw will not affect a reader's understanding of the issues, but that does not make it desirable to make the order sought.
3. Mr McCaffrey gave evidence and had an opportunity to respond to the allegation that his advice was negligent. In any case, none of Mr Abboud's "wrongful conduct" allegations or the "negligence allegations" is relevant to the issues in these proceedings. There is no need to make findings about them. In those circumstances, disclosure of the name of Bartier Perry is not unfair nor would it impeach the professional reputations of the solicitors involved . The evidence Mr McCaffrey and Ms Shaw gave is not confidential nor are there any other reasons for prohibiting disclosure of their names.
4. We note that a judgment in the Supreme Court mentions the name of Bartier Perry and the involvement of that firm in the Dispute. In those circumstances the making of a non-disclosure order in respect of Bartier Perry would have little utility.

(1) The decision of the Respondent to cancel the Applicant's Australian practising certificate for the year ending 30 June 2024 is affirmed.

(2) The decision of the Respondent to restrict the Applicant from being entitled to apply for the grant of an Australian practising certificate for three years is varied so that the Applicant is restricted from being entitled to apply for the grant of an Australian practising certificate for one year.

(3) The Respondent's application for non-publication and non-disclosure orders under s 64(1)(a) and s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) is refused.

Note: If the Respondent does not notify the Tribunal within 28 days that it intends to appeal from Order 3, Reasons for Decision containing the name of Mr X, Ms Y and the law firm which employed them will be published.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

28 April 2025 - Paragraph 29 substitute s 90(1)(iii) with substituting s90(a)(iii)