BETWEEN : LEGAL PRACTITIONERS COMPLAINTS COMMITTEE

Profession ­ Legal practitioner ­ Alleged failure to advise ­ Whether "neglect in course of the practice of the law" ­ Turns on own facts ­ Words and phrases ­ "neglect" ­ "neglect in the practice of the law"

Legal Practice Act 2003 (WA)

Legal Practitioners Act 1893 (WA), s 28A, s 29A

Applicant : Ms PE Cahill and Ms KP Sommerville­Brown

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Legal Practitioners Complaints Committee and Gandini [2006] WASAT 163

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449

1 The Legal Practitioner Complaints Committee alleged that between July and December 2001 Mr Giuseppe Antonio Lacerenza, a legal practitioner, had been guilty of neglect in the practice of the law. It alleged that he failed to advise a client, either properly or at all, in relation to resolution of property settlement proceedings in the Family Court, and failed to give effect to consent orders made following a conciliation conference. The Committee identified a number of matters in respect of which it contended Mr Lacerenza should have advised his client, but did not.

2 There were conflicts in the evidence of the client as against the practitioner's version of events. The Tribunal considered that the client's evidence was unreliable because of inconsistencies in what she said, her vagueness in her oral evidence and her dismissive and uncooperative attitude when giving evidence. In important respects, the Tribunal preferred the evidence of Mr Lacerenza.

3 Although the Tribunal was critical of Mr Lacerenza's failure to properly communicate with his client in relation to what was to happen after consent orders were made, it concluded that his conduct did not amount to neglect, and dismissed the complaint.

4 The Legal Practitioners Complaints Committee has referred to the Tribunal an allegation that the respondent, Giuseppe Antonio Lacerenza, was guilty of neglect in the course of his practice in July 2001. The neglect was said to arise from failing to advise, either properly or at all, and failing to carry out his instructions, in relation to obtaining and giving effect to Family Court consent orders for his client, whom we will refer to in these reasons as Ms A.

5 The complaint is particularised as follows:

2. In or around July 2001 [Ms A] instructed the practitioner to act for her in relation to her property dispute with her estranged husband, [Mr S] which instructions included, by implication, seeking and giving effect to any consent orders made by the Family Court in respect of the property dispute.

3. On 4 December 2001 the practitioner attended a conciliation conference with [Ms A] at the Family Court, at which time consent orders were agreed as follows:

'1. The husband to transfer to the wife his right title and interest in the property at (an address in Helena Valley), being ... (the Helena Valley property.)

2. The wife to transfer to the husband her right title and interest in the property at (an address in Bullsbrook), being ... (the Bullsbrook property).

3. The wife is to indemnify the husband with respect to mortgage over the Helena Valley property in favour of Aussie Home Loans.

4. The husband is to indemnify the wife with respect to the mortgage over the Bullsbrook property in favour of Aussie Home Loans.

5. All assets, chattels, motor vehicle, bank accounts, superannuation and any other property in current possession of the wife is to vest in the wife.

6. All assets, chattels, motor vehicle, bank accounts, superannuation and any other property in current possession of the husband is to vest in the husband.

7. The wife is to pay to the husband within 72 hours from the making of these orders the sum of $1,000.

8. Each party shall indemnify the other in relation to any rates, mortgage, taxes and other debts that may relate to the properties that are transferred into each parties [sic] said name.

9. Each party undertakes not to contact or speak to each other once all property settlement issues have been attended to.

10. All applications are otherwise dismissed and the matter is removed from the active case pending list.'

4. The Helena Valley property and the Bullsbrook property mentioned in the consent orders ('the properties') were at all material times prior to the making of the consent orders held jointly by [Ms A] and [Mr S] and encumbered by a single mortgage to secure the repayment of two loan accounts also held jointly by [Ms A] and [Mr S].

5. Following the conference the practitioner told [Ms A] to attend his office with a cheque for $1000 made out to [Mr S], at which time she was to sign the Transfer of Land documents. He told her that thereafter he would have [Mr S] sign the documents, before he released the cheque for $1000.

6. In or around December 2001, the practitioner sent a final invoice to [Ms A], and closed his file, and either retained both of the signed transfers of land documents on his closed file or retained only the signed transfer of land document in respect of the Helena Valley property.

(a) Ascertain the nature and extent of the encumbrances on the properties the subject of the proposed consent orders;

(b) Advise [Ms A] that, if either or both of the properties were to be retained by her and/or [Mr S], the property or properties retained should, as a condition or in advance of obtaining the consent orders, be refinanced so that [Ms A] did not have any future liability under the existing loan accounts or mortgage;

(c) Advise [Ms A] of the risks of obtaining from [Mr S] a transfer of the Helena Valley property without refinancing that property, those risks including that the Helena Valley property would remain as security for repayment of the loan account for which [Mr S] was to assume sole responsibility;

(d) Advise [Ms A] of the risks of transferring to [Mr S] the Bullsbrook property without refinancing that property, those risks including that [Ms A] could be liable for any further drawings [Mr S] made upon the loan account for which [Mr S] was to assume sole responsibility or for defaults of [Mr S] in repayment of existing drawings in respect of that loan account;

(e) Advise [Ms A] that, if the parties or one of them did not wish to or could not refinance the properties, consent orders should be obtained to sell the properties;

(f) Advise [Ms A] that, if she or [Mr S] could not or did not wish to immediately refinance or sell the properties, [Ms A] should seek as part of the consent orders, orders restraining [Mr S] from making further drawings upon the existing loan accounts;

(g) Take any, or any reasonable, steps to effect the transfer of the properties or alternatively the Helena Valley property;

(h) Advise [Ms A] that he was not going to cause the transfer of the properties or alternatively the Helena Valley property;

(i) Advise [Ms A] that there may be a potential difficulty in effecting the transfer of the properties or alternatively the Helena Valley property;

(j) Advise [Ms A] that effecting the transfer would require the mortgagee to agree to the transfer; or

(k) Advise [Ms A] that if either or both of the transfers were not to be effected, that [Ms A] should take action to protect her interests, for example by lodging a caveat over either property."

6 The practitioner admits that he was instructed by Ms A in July 2001 to act for her in relation to her property dispute but does not admit that the instructions included the implication referred to in par 2 of the particulars. He admits the terms of the consent orders made in December 2001 but says that Ms A instructed him that there were separate mortgages in respect of each of the Helena Valley property and the Bullsbrook property. In his response, the practitioner says that:

"(a) on the execution of the transfers between Ms A and her husband, Ms A's copy would be retained on file at the client's wish pending the client applying for refinancing;

(b) the client, [Ms A], advised the practitioner to retain the transfer on file;

(c) the practitioner explained to the client prior to making of the consent orders ... and subsequent thereto that [Ms A] would need to refinance that loan pertaining to the ... Helena Valley property;

(d) [Ms A] understood the said advice and was to apply to Aussie Home Loans for a loan to refinance the Helena Valley property so as to enable the transfer of the Helena Valley property into her sole name at a later date;

(e) the method described in the answer above is the usual practice in the family court jurisdiction for such matters;

(f) the lodging of a caveat was discussed with the client, but the client did not wish to have a caveat lodged."

7 The practitioner contends that his instructions ceased on the preparation of the transfer of land document. In his answer he then asserts that in and after February 2002, Ms A applied to refinance the loan in relation to the Helena Valley property. He also asserts that without reference to him, she co-signed a sale contract with Mr S in relation to the Bullsbrook property and that both the settlement agent and the mortgagee failed to act on Ms A's instructions in relation to disbursement of the proceeds of sale, all those matters occurring without Mr Lacerenza's knowledge or involvement. He denies that he is guilty of any unsatisfactory conduct.

8 The conduct complained of in these proceedings occurred in late 2001 and early 2002, before the enactment of the Legal Practice Act 2003 (WA). The predecessor to that Act, the Legal Practitioners Act 1893 (WA) governed conduct attracting disciplinary sanctions. Section 29A of the Legal Practitioners Act 1893 conferred jurisdiction on the Legal Practitioners Disciplinary Tribunal to find practitioners guilty of

c) neglect, or undue delay, in the course of the practice of the law.

9 It is the last of these, neglect, with which Mr Lacerenza is charged. A threshold question for the Tribunal is the identification of conduct which meets the description of "neglect" for the purposes of the former Act. Neither counsel nor the Tribunal have been able to locate any authority which gives content to the expression "neglect in the course of the practice of law". Decisions concerning allegations of neglect or undue delay in the course of the practice of the law tend to couple together "neglect" and "undue delay" and concern allegations of inordinate delay or a failure to attend at all to the client's instructions. It is submitted by the respondent, and the Tribunal agrees, that "neglect" must necessarily involve a failure to act or an omission of some form on the part of a practitioner, and must be something more than mere negligence.

10 The coupling of "neglect" and "undue delay" in the same subparagraph of s 29A (and s 28A) suggests there will often be an overlap in the two concepts.

11 In this matter, the applicant contends that the "neglect" on the part of the practitioner was constituted by a wholesale failure on his part to exercise any professional judgment or skill in acting for his client in respect of her affairs. It is said that he failed to advise the client or carry out her instructions. We agree that the inquiry in the context of an allegation of neglect in the course of the practice of the law is not concerned with mere negligence, but requires consideration of whether an omission is of sufficient seriousness to warrant professional disciplinary action.

12 It is well settled that where serious allegations of professional misconduct are made, and a reputation of a person or their capacity to engage in the profession is at stake, findings against a practitioner should not be lightly made, and the Tribunal must feel an "actual persuasion" of the occurrence or existence of the relevant facts before making findings against the practitioner - see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 at 450. The application of the principle explained in those decisions to matters of professional or occupational misconduct was recently discussed by this Tribunal constituted with Justice Barker as President in Legal Practitioners Complaints Committee and Gandini [2006] WASAT 163 at [61] - [65]. It is with that approach that consideration must be given to the evidence in these proceedings.

13 The Tribunal heard evidence from four witnesses: Ms Penelope Keeley and Mr Michael Rynne, both experienced family law legal practitioners, Ms A, and Mr Lacerenza. There were significant conflicts in the evidence of Ms A, and that of Mr Lacerenza. There was, however, a certain amount of common ground in their evidence.

14 Ms A was married in 2000, but separated after six months. In June 2001, she commenced proceedings in the Family Court of Western Australia seeking a property settlement from her husband. She was not legally represented when she made the application. The orders proposed in the application proposed that Ms A should transfer her interest in the Bullsbrook property to Mr S, Mr S should transfer his interest in the Helena Valley property to Ms A and an order that "both the applicant and the respondent to refinance mortgage no 120186604 and 120200576 with Aussie Home Loans - and the applicant and respondent to enter into new mortgages in their said names for their respective properties". Orders for various payments and adjustments were also sought.

15 Ms A said that, before lodging that application, she received some "input from the duty lawyer at the Midland office for the Legal Aid Commission". When cross-examined about that statement, her evidence was vague as to whether she received any advice from the Legal Aid Commission solicitor to assist her in framing the orders contained in the application. When pressed on the point, Ms A's evidence was to the effect that all that the Legal Aid solicitor did was direct her to the Family Court to obtain the necessary forms.

16 An exchange in relation to that segment of Ms A's cross-examination illustrates her generally uncooperative attitude in giving her evidence. The transcript reads:

"Mr Lampropoulos: These are orders that you've prepared and attached to your application? --- That's right.

And once again, how did you know how to frame these various orders? --- I did go to school.

I see. And were you taught at school how to frame orders in the Family Court, were you? --- Me and my sister prepared that and I think we did a rather good job, don't you?"

17 Those answers, and many other answers during the course of cross-examination, were delivered in a dismissive, and sometimes contemptuous, tone. At one point during the course of her cross-examination, Ms A became distressed and left the witness box and the hearing room stating that she had "had enough of these stupid questions". While the Tribunal appreciates that the events surrounding the Family Court proceedings were undoubtedly traumatic and distressing for Ms A, her attitude to giving evidence and a tendency to make facetious responses to questions (which were appropriate in both content and tone) raised serious concerns as to her credibility when weighing her evidence against that of Mr Lacerenza.

18 Sometime after instituting the Family Court proceedings, Ms A engaged the services of a family law practitioner, Corinne Griffin. Ms Griffin amended the applicant's application but made no change to the proposed orders in relation to the transfer of the two properties and refinancing of the mortgage which are referred to above. Both the original and the amended applications contained the details of the certificate of title in respect of each of the two properties.

19 Not long afterwards in July 2001, Ms A instructed Mr Lacerenza to act in the Family Court proceedings. Ms A's evidence, which was not challenged, in relation to her initial instructions to Mr Lacerenza was as follows:

"I said words to the effect that I was having a dispute with my husband about our property split, I had started Family Court proceedings and I wanted him to act for me in the Family Court proceedings if I wasn't able to resolve the dispute myself. I had one meeting with him and a couple of telephone calls. However, at that time I had some hope that I would able to work the property settlement out with [Mr S] amicably and without the intervention of lawyers. So I asked the practitioner to hold off on the matter for the time being."

20 Ms A was unable to resolve matters with her husband, and contacted him again in September 2001. On 25 September 2001, Mr Lacerenza attended a programming hearing in the Family Court where various orders were made programming the matter to a conciliation conference on 4 December 2001. Pursuant to those orders, Mr Lacerenza prepared a document entitled "conciliation conference particulars" on behalf of Ms A. That document set out the assets of the parties to the marriage including the two real estate properties, and identified borrowings secured by mortgages in relation to each of the two properties and the outstanding amounts of each borrowing. It is apparent that the document was prepared from information provided to Mr Lacerenza by his client, either orally, or by way of the documents already prepared and filed in the proceedings.

21 Ms A was cross-examined about her discussions with Mr Lacerenza at various times between July and December 2001. She was unable to recall whether there was any discussion about refinancing the properties, or about whether she particularly wished to keep the Helena Valley property. Although in her witness statement, filed some seven months before the hearing, Ms A said that Mr Lacerenza prepared the conciliation conference particulars, and identified the document by reference to the bundle filed in the Tribunal, she denied in cross-examination that she had ever seen the document before it was shown to her at the hearing. The stark contrast between her written statement of evidence, and her oral evidence at the hearing on this point, is further reason to be concerned as to the reliability of her evidence generally.

22 In relation to the mortgages over the property, Ms A said that she mistakenly believed there were two separate mortgages, and that is what she told Mr Lacerenza.

23 Ms A said that her intention in reaching the property settlement was to have the Helena Valley property transferred solely into her name, and the Bullsbrook property transferred into Mr S' name. She intended to have the respective mortgages transferred solely into the name of the party taking the property so that each would be responsible for the mortgage over the property that had been transferred. She said that, in late 2001, she was unemployed, and she was concerned that the mortgagee, Aussie Home Loans, may not be prepared to transfer the mortgage solely into her name. She intended to wait a couple of months until she had obtained full-time work and then make the application to Aussie Home Loans. She recalled discussing that with Mr Lacerenza. That is consistent with Mr Lacerenza's recollection of events.

24 Mr Lacerenza confirmed that he did not, prior to the conciliation conference, carry out any title searches of the two real estate properties the subject of Ms A's application. He said that he was supplied with copies of statements from Aussie Home Loans showing the amount due in relation to each loan. In fact, contrary to the instructions provided by Ms A, the two separate loans from Aussie Home Loans were secured by a single mortgage over both properties.

25 A conciliation conference was conducted on 4 December 2001, and consent orders were made as a result of that conference. After agreement had been reached, it was Mr Lacerenza who drafted the consent orders for execution by the parties. The consent orders provided that Mr S would transfer to Ms A the Helena Valley property, and Ms A would transfer to Mr S the Bullsbrook property. There was an order that the husband indemnify the wife in respect of the mortgage over the Bullsbrook property, and that the wife indemnify the husband in respect of the mortgage over the Helena Valley property. The orders also required a payment of $1000 by Ms A to Mr S within 72 hours of making of the orders.

26 Following the conference, Mr Lacerenza prepared transfer of land forms to effect the transfers the subject of the consent orders. The transfers were in each case said to be subject to the existing mortgage as an encumbrance.

27 Mr Lacerenza said that he did give advice to Ms A about her ongoing liability under the mortgage over the Bullsbrook property until it was refinanced or discharged notwithstanding the indemnity obtained from Mr S. He accepted that he did not advise Ms A that the Helena Valley property would remain as security for the Bullsbrook loan, because he believed the loans to be secured by separate mortgages. He maintained that Ms A was acutely aware of her liability for the loan in respect of the Bullsbrook property because her husband's failure to meet that liability, following separation, had been the subject of an interim application which had been pursued by Ms A between July and September 2001.

28 Having prepared the transfers, Mr Lacerenza arranged for Ms A to provide him with a cheque for $1000 payable to Mr S. He gave that cheque to Mr S in exchange for Mr S' signature on the transfer of the Helena Valley property to Ms A. Mr Lacerenza then retained the transfer on file. He did that on that basis that Ms A's plan was to refinance the property which would have involved a discharge of the existing mortgage to Aussie Home Loans. He was aware that she would not do that immediately, but proposed to await obtaining full-time employment so as to be in a position to arrange a new loan.

29 Ms A's evidence was that she expected the practitioner to lodge the transfer immediately and that the subject of difficulties in registering the transfer (which would require the production of the duplicate certificate of title by the mortgagee) had never been raised with her. Her clear statement to that effect in her written witness statement was in contrast with her vague oral evidence as to discussions with Mr Lacerenza about refinancing the mortgage. She acknowledged in cross-examination that she did have a discussion with Mr Lacerenza about refinancing, and that, given her circumstances, her intention was to wait a couple of months until she obtained full-time work to make an application for refinancing.

30 Ms A did obtain full-time work in early 2002, and approached Aussie Home Loans for the purposes of "refinancing so that the mortgages were put into separate names in respect of each property". According to Ms A, it was only at that time, through enquiries of the Department of Land Administration, that she learnt that the transfer into her sole name had not been registered. She contacted Mr Lacerenza's office and was told that the transfer document was still on file. She collected the transfer from Mr Lacerenza's office shortly afterwards.

31 It is against that background that the individual allegations against the practitioner need to be considered.

32 Allegation (a) against Mr Lacerenza is that he failed to ascertain the nature and extent of encumbrances on the properties the subject of the proposed consent orders. The unprofessional conduct by the practitioner, of which allegation (a) is one particular, is said to have occurred "from July 2001". The precise time at which the specified particular failures by the practitioner are said to have occurred is not identified in any particular case. With respect to allegation (a), however, it is clear that the alleged failure must be said to have occurred some time prior to 4 December 2001, because of the reference to "proposed consent orders".

33 The evidence is that Mr Lacerenza did not obtain title searches prior to 4 December 2001. He relied upon information contained in the original Family Court application, which had been prepared by the client but amended by another practitioner, Ms Griffin, and instructions from his client concerning the title particulars of the properties and the nature and extent of the encumbrances.

34 Ms Keeley expressed the opinion that a legal practitioner acting for a party to a marriage in respect to a property settlement involving real property should obtain a DOLA search of the property and details of any mortgage or other encumbrance to ascertain the precise nature of the encumbrance. That requirement applies, she said, "unless the practitioner is confident the client knows exactly what the property and mortgage or other encumbrance details are". She elaborated on that statement in her oral evidence when she agreed that practitioners make a value judgment as to whether a search is required based on their assessment of the client, any documentation that they have and anything done by a previous solicitor on the record.

35 Mr Rynne was of the view that the steps taken by a practitioner should be proportionate to the subject matter and nature of the instructions. He illustrated the point by reference to Ms Keeley's qualification of the need to obtain a title search, saying that the decision whether to incur the expense of a search would be informed by considerations of that nature.

36 In this case, Mr Lacerenza received instructions on a matter that was already before the Court and in which the client had been represented by another practitioner. He was initially instructed to do nothing while the client endeavoured to represent herself and reach an agreed outcome. There was no apparent reason for Mr Lacerenza to question the accuracy of the information he was given concerning the property and the encumbrances. The desire of the client to limit her representation was undoubtedly motivated by a desire to keep costs to a minimum.

37 Whilst best practice may be to obtain a title search of relevant properties upon receipt of instructions, we are of the view that it cannot be said that, in the circumstances of this case, Mr Lacerenza's reliance on other sources of information for the relevant information was unreasonable, let alone capable of being categorised as neglect.

38 Allegations (b), (c) and (d) all concern allegations of failure by Mr Lacerenza to advise Ms A of the need to refinance the existing loan accounts and mortgage and of the risks of transferring either property without first refinancing the loans. In relation to these allegations, there is a conflict in the evidence of Mr Lacerenza and Ms A. Mr Lazarenza says that he explained to Ms A that a transfer of the properties subject to the existing mortgages would leave each of the parties liable in respect to the loans on each property, but that each would have the benefit of an indemnity from the other. He says that he gave Ms A advice as to the risks of leaving the loans as they were pending refinancing.

39 Ms A says that no such advice was given. She does acknowledge that she discussed with Mr Lacerenza the desirability of refinancing.

40 In light of our conclusions as to the reliability of Ms A's evidence, we accept Mr Lacerenza's evidence that he did discuss refinancing of the properties, and the risk in general terms, associated with delaying refinancing. The need for cross indemnities only exists if there is a liability under the loan to which the indemnity relates. Ms A's acknowledgement that refinancing was discussed, provides a context in which it would have been likely that Mr Lacerenza gave the advice that he said he gave. It follows that these allegations are not made out.

41 Allegation (e) is that Mr Lacerenza failed to advise Ms A that if the parties, or one of them, did not wish to, or could not, refinance the properties, consent orders should be obtained to sell the properties. It was clear from the evidence both of Mr Lacerenza and Ms A that both parties wished to retain the properties with Ms A taking the Helena Valley property and Mr S taking the Bullsbrook property. That is the result that Ms A had been seeking from the outset. Mr Lacerenza said that the alternative of sale of both of the properties was discussed with Ms A at some point, but she chose not to sell them. We accept Mr Lacerenza's evidence on that point having explained the risk of retaining the property, and given a context where the client had clear goals in the proceedings, it cannot be said that Mr Lacerenza was bound to advise his client, contrary to her desire, to obtain consent orders for sale of the properties, and a failure to do so does not amount to neglect. There is, of course, no basis to suggest that Mr S would have consented to orders for the sale of the properties, had Mr Lacerenza given the advice that the applicant contends he should have.

42 In relation to allegation (f) it is said that Mr Lacerenza was guilty of neglect in failing to advise Ms A to obtain a consent order restraining Mr S from making further drawings upon the existing loan accounts. Mr Lacerenza accepts that he did not give that advice. Ms Keeley opined that it is important to raise with clients the potential to "draw down" on a mortgage given that many mortgages now have a draw down capacity. Mr Rynne was of the view that, in the absence of any evidence of mischief (by which he presumably means some likelihood or threat of draw down) he would not accept that a practitioner should necessarily embark on advising as to the risk of draw down. He noted that that advice would require analysis of the loan documents with consequent costs to the client.

43 On the basis of the information available to Mr Lacerenza at the time of the conciliation conference, there would appear to have been little scope for Mr S to draw down the loan on the Bullsbrook property. It was known that he was, at that stage, in arrears on the repayments of that loan and the value of the property was not greatly in excess of the amount of the loan. The scope for a draw down, if one was permissible under the loan agreement, (a matter which was not examined in evidence), would appear to have been quite minimal.

44 The orders obtained at the conciliation conference were obtained by consent. Whether Mr S would have agreed to an order restraining him from making further drawings is not known. He presumably would have required Ms A to consent to a similar injunction in respect to the loan on the Helena Valley property. Protection in relation to further drawings was provided by the cross indemnities. We were told, and we accept, that despite the relative insecurity of an order for cross indemnities, such orders were a mechanism commonly employed in the resolution of disputes in the family court where refinancing, or releases of one party by a lender, may not have been practical. In this case, Mr Lacerenza's specific instructions were that his client proposed to refinance when she obtained employment. It is likely that, given her unemployment in December 2001, the prospects at that time for refinancing of the loans or obtaining releases in relation to the loans would have been quite poor.

45 There is no way of knowing whether Mr S would have agreed to an order restraining him from further draw downs, but in any event, in all the circumstances of the case, we do not think that Mr Lacerenza's failure to advise Ms A to seek Mr S's consent to such an order can be said to amount to neglect.

46 Allegations (g) and (h) concern the practitioner's failure to register the transfer of the Helena Valley property, and to advise his client that he had not registered the transfer.

47 Mr Lacerenza's evidence was that he held the transfer documents on file pending refinancing by Ms A. Ms Keeley's evidence was to the effect that it is common to retain a file on transfer until "settlement" occurs, a period usually in a range of one to two months. In this case, Mr Lacerenza was first contacted by Ms A in late February 2002 concerning the transfers, after she had applied to Aussie Home Loans to refinance the Helena Valley loan. That was a period slightly in excess of two and a half months. Ms A eventually collected the transfer in mid March 2002. The transfer was in registrable form upon its execution by Mr S in December when he received the cheque for $1000 from Mr Lacerenza. However, registration of the transfer required the co-operation of the mortgagee. Ms Keeley considered that a bank is unlikely to allow the transfer of the property into the client's sole name, leaving a mortgage in joint names on the property, and we accept that evidence. That problem seems to have been assumed by Mr Lacerenza, whose evidence was that he held onto the transfer pending refinancing of the loan by his client.

48 In view of the fact that Mr Lacerenza knew that Ms A was proposing to apply for refinancing when her employment position was improved, we do not think that the retention of the transfer on files, for longer than what Ms Keeley described as a normal period awaiting settlement, was inappropriate.

49 There is room for criticism of Mr Lacerenza in relation to his communication, or lack of it, to his client concerning retention of the transfer on file. There is no evidence that he expressly explained to Ms A that he would retain the transfer pending refinancing. We accept Ms A's evidence that she did not understand that to be the position. We also accept that Mr Lacerenza probably thought that the discussions about refinancing implied that registration of the transfer would occur when refinancing occurred. He should have made the position abundantly clear. He should not have simply put the file away with the transfer in it, as he did. At the least he should have confirmed his instructions to retain the transfer in writing, or should have delivered it to Ms A.

50 What occurred demonstrates a misunderstanding between Mr Lacerenza and his client. The misunderstanding was Mr Lacerenza's fault, but it does not, in our view however, amount to neglect for the purposes of the Legal Practitioners Act 1893.

51 Allegations (i) and (j) are allegations that Mr Lacerenza should have advised Ms A of potential difficulty in effecting the transfer of the properties, and the requirement for the mortgagee's consent. These allegations are related to the allegations concerning the failure to register the transfer. The transfer documents were drawn subject to the existing mortgage. At the time they were executed, that was an appropriate form in which to draw the documents. The only potential difficulty in effecting the transfer was in having the mortgagee produce the title to enable registration of the transfer. There would be no difficulty if the refinancing of the loan was arranged as anticipated by Ms A. It is apparent that Ms A appreciated the need to refinance the property, and intended to do so. An order that the properties be refinanced was sought in the original application drafted by Ms A and further settled by her original solicitor. Mr Lacerenza no doubt assumed that Ms A understood that registration was linked to refinancing. Had he communicated effectively the fact of, and reason for, his retaining the transfer, he would have avoided the misunderstanding that occurred. However, Mr Lacerenza's conduct based on his assumption as to his client's understanding of the position does not amount to neglect.

52 Allegation (k) is that Mr Lacerenza should have advised that if the transfers were not effected, Ms A should take action to protect her interests by lodging a caveat over either property. It is difficult to see that lodging a caveat over the Bullsbrook property would have served any purpose. The property could not be disposed of without Ms A's concurrence for so long as she remained a joint proprietor. If there was potential for draw down on the loan agreement in relation to the Bullsbrook property, it is probable that no further registration would be required in relation to the security for the draw down, and a caveat would have served no purpose.

53 In relation to the Helena Valley property, a caveat over Mr S's interest in that property, prior to registration of the transfer, would in theory have prevented him disposing of his undivided half share in that property. Disposing of an undivided half interest in property is quite a remote and impractical possibility. Similarly, encumbering that interest is a remote possibility, as any lender is likely to require the concurrence of another joint proprietor for advancing funds against the jointly owned property.

54 Mr Lacerenza said that he did raise the possibility of lodgement of a caveat over Mr S's interest in the Helena Valley property, but was instructed not to proceed with that course by Ms A. His file note of his instruction to his secretary for the preparation of the transfer documents refers to the preparation of a caveat. That supports Mr Lacerenza's version of events. Regrettably, that alleged advice was never put to Ms A in cross-examination. Whether or not Mr Lacerenza did not proceed with registration of a caveat because of instructions not to do so, or whether he determined of his own volition not to proceed, we are satisfied that he turned his mind to the question. In view of the limited practical value of a caveat in these circumstances, we would not categorise a failure to provide advice to lodge a caveat, as amounting to unprofessional conduct by neglect.

Mr Lacerenza's overall conduct of Ms A's matrimonial proceedings

55 The various particulars of Mr Lacerenza's alleged failures need to be looked at in their totality as well as individually. The overall thrust of the applicant's case is that, in effect, Mr Lacerenza simply failed to address potential risks in the course that the client wished to take, and then failed to properly complete his instructions. Having regard to our findings, that conclusion is not open. There are aspects of the conduct of Ms A's proceedings about which criticism of Mr Lacerenza may be justified. The process followed by the complainant in these proceedings has been to seek to reconstruct the course of events, and the course of advice, and identify particular aspects of advice that it contends should have been given but was not. That reconstruction is based largely on Ms A's recollection of events. That recollection is undoubtedly coloured by problems that occurred subsequent to Mr Lacerenza ceasing to act for her. We have found that her vagueness as to what occurred and her uncooperative and dismissive approach to giving her evidence makes her evidence unreliable. Notwithstanding some criticisms of Mr Lacerenza's conduct, we cannot be satisfied that any aspect of his conduct amounts to neglect in the course of his practice.

56 The complaint is dismissed.

I certify that this and the preceding [56] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUDGE J CHANEY, DEPUTY PRESIDENT