Council of the Law Society of New South Wales v Aslan

The Applicant's Evidence

1. On 23 May 2019, the Applicant's solicitor tendered affidavits from Mr Sundar, the principal of Sun Legal, Ms Foord, the Applicant's then Director, Professional Standards, Ms N Haddad, the current Acting Director and from Mr Sofiak, the Applicant's Chief Trust Account Inspector. Attached to Mr Sofiak's affidavit was a signed statement from a Ms Suzanne Manzala, dated 20 June 2016 which commenced: This statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give to a tribunal/court as a witness. The statement is to the best of my knowledge and belief. In December 2018, after the Respondent had filed his primary affidavit, the Applicant then filed affidavits from Ms Manzala, her cousin, Ms Y Haddad, and a further affidavit from Mr Sundar, and later from two of Mr Sundar's employees, and these were also tendered on 23 May 2019.
2. The evidence of Ms Foord and Mr Sofiak, save for a formal objection to Ms Manzala's statement, was not contested. There was, however, considerable divergence between the affidavit evidence of Ms Manzala, Ms Y Haddad and Mr Sundar on the one hand, and the evidence of the Respondent to which we will refer below. The differences related to the allegations in paragraphs 2a), 2c), 3b), 6b) and 11 of the Application.

Ms Manzala

1. Although her affidavit was not sworn until after the Respondent had filed his first affidavit, it is convenient that we deal with Ms Manzala's evidence first. In relation to paragraphs 2a) and 2c) of the Application, she said that when she first met with the Respondent to discuss her family law matter in or around early July 2015, the Respondent said words to the following effect to her: I can help you with your matter…. I have worked overseas as a solicitor and have a doctorate. I am a solicitor and partner in Sun Legal, being one of the four partners. I have been working as a solicitor for 25 years. Every solicitor specialises in a different field. One of the other partners is Catherine Lin who is a barrister. She will be assisting me in the matter
2. In relation to paragraph 3b), she said that at a subsequent meeting with the Respondent on or about 5 July 2015, he gave her a document entitled Disclosure and Conditions of Engagement and she signed it. She identified the document as that annexed to the Respondent's first affidavit, being a document dated 3 July 2015 not on letterhead but with the words "Sun Legal" in the top right hand corner of each page.
3. In relation to paragraph 6b) of the Application, her evidence was that at that same meeting, the Respondent said to her: Your legal costs probably won't be more than $8,000 but I will need $20,000 to put into our trust account. to which she said: I don't have the money. I will need to re-draw the funds from my home loan.
4. Then on 6 July 2015, she met the Respondent again at her house when she said: Should I make the cheque out to Sun Legal? to which the Respondent replied: No, make it out to me, Doctor Bassem Aslan, and I will put it into my trust account. Like all partners of Sun Legal, I am a signatory to Sun Legal's bank account. I will pay everyone accordingly so they don't overcharge you. Ms Manzala then provided her cheque for $20,000 made out to the Respondent.
5. She said that by September 2015, she had come to the view that she no longer wanted the Respondent to represent her in her family law matter. This was partly because she and her husband had agreed to resolve their differences, but also because she did not believe that the Respondent was providing any useful assistance to her.
6. She repeatedly asked the Respondent to return her money, both verbally and in writing. These requests continued without success until May 2016, when she consulted another solicitor, Mr Maatouk. Mr Maatouk made demand on Sun Legal for repayment. The letter was addressed to the Respondent at Sun Legal. On 1 June 2016, $10,000 was deposited into Ms Manzala's bank account, and on 2 June, the further amounts of $9,000, $999 and $1 were deposited. The funds came from the Respondent.

Ms Y Haddad

1. Ms Haddad was present at each of the meetings between Ms Manzala and the Respondent. Her evidence generally corroborated that of Ms Manzala. In relation to the first meeting, her recollection is that the Respondent said that: I am a lawyer and I can help you with your legal matters. In relation to the payment of the $20,000 for legal fees, she heard the Respondent say to Ms Manzala: You will get a refund at the end of the family law matter as my fees are only likely to be $8,000. The $20,000 will be held in a trust account.

Mr Sundar

1. In relation to paragraphs 11a) - e) of the Application, Mr Sundar said that: The respondent has never been a partner or employee of Sun Legal or authorised to act in any way on Sun Legal's behalf. In particular, Sun Legal has never authorised the Respondent to do any of the following on its behalf: a) liaise with or assist Sun Legal's clients; b) engage counsel; c) prepare, or enter into, cost agreements or any other documents; d) use Sun Legal's letterhead; or e) accept money or deal with trust money.
2. In relation to the other allegations in the Application, he gave the following evidence: Paragraph 2c): No person named Catherine Lin has ever been a partner or employee of Sun Legal. Paragraph 4: In August 2016, Mr James Sofiak, a trust accounts inspector employed by the Law Society of New South Wales, provided me with a document titled "Disclosure and Conditions of Engagement" dated 3 July 2015. Annexed to this affidavit and marked "C" is a copy of this document. Whilst the document purports to be a Sun Legal document, it did not emanate from Sun Legal and differs from Sun Legal's standard costs disclosure document in a number of ways. Paragraph 7: Annexed to this affidavit and marked "D" is a copy of a letter purporting to be on Sun Legal's letterhead dated 3 July 2015. The letter did not emanate from Sun Legal. The Respondent was not authorised to draft the letter on Sun Legal's behalf or use Sun Legal's letterhead. I do not know how the Respondent accessed Sun Legal's letterhead.
3. Mr Sundar said that in July 2015, he and the Respondent had a telephone conversation to the following effect: Respondent: Can you help in preparing a lapsing notice for Ms Manzala? Me: Yes, I can.
4. He also said that when he had received Mr Maatouk's demand in June 2016, he had urged the Respondent to repay the $20,000 to Ms Manzala immediately. He attached to his affidavit an email forwarded to the Applicant on 10 June 2016 (after he had received Mr Maatouk's demand), which said in part: We note that our firm has never acted for the Client (Ms Manzala), nor have we allegedly received $20,000 from her.

Other Sun Legal Employees

1. Two Sun Legal employees, both of whom had worked for Mr Sundar in 2015, initially as interns, and then as solicitors, gave evidence to the effect that neither had ever seen the Respondent at Sun Legal's offices or met him.

Ms N Haddad

1. Ms N Haddad's affidavit annexed the Respondent's bank statements between May 2015 and June 2016. These had been produced in answer to a subpoena. From these records the Applicant tendered a summary entitled Total Funds in Mr Aslan's bank accounts between 7 July 2015 and 14 August 2015, which it submitted, showed that following the deposit of the $20,000 received from Ms Manzala on 7 July, a series of withdrawals had been made, so that by 14 August 2015, the total amount in all of the Respondent's accounts was only $774.02. The Respondent did not challenge this evidence.

The Respondent's Evidence

1. In relation to his dealings with Mr Sundar and Sun Legal, the Respondent said that he had first met him in 2007 and that he: Was engaged by Mr Mohan Sundar as a lay associate for over five (5) years and assisted him in a large number of cases. A review of my email system shows that there were over one thousand (1,000) emails between us in his role as principal of Sun Legal.
2. Attached to his affidavit were documents which he said, evidenced two of these cases. One involved instructions to commence defamation proceedings and the other a debt recovery.
3. He added that: My name appeared on the letter head of Sun LegaI as a Senior Lay Associate and that: I acted as a paralegal and a lay associate and would liaise with clients and barristers with the approval of Mr Mohan Sundar.
4. In relation to his involvement with Ms Manzala, he said that every step that he had taken on her behalf was with the knowledge and authority of Mr Sundar. This included preparing the Disclosure and Conditions of Engagement document and preparing, signing and sending on her behalf, the letter dated 3 July 2015 to the Family Relationship Centre at Campbelltown.
5. His relationship with Ms Manzala commenced, he said: In either late 2012 or early 2013 (when) I came to know Ms Suzanne Manzala (hereafter referred to as ("Suzanne") and Ms Yousra Haddad (hereafter referred to as "Yousra''). The relationship started because I was selling a business known as 'Whispers Hair, Beauty & Spa's Salons' (Whispers), and Suzanne and Yousra wanted to buy the business. and in relation to the receipt by him of the $20,000 from Ms Manzala: On or about 5 February 2013, an agreement for purchase of business was completed between myself and Suzanne and Yousra. The business was to be sold for $65,000 with three small payments and a final payment of $50,000. On or about 6 July 2015 Suzanne arranged for a cheque under her name to be written out to me and for two bank cheques in the amounts of $30,000 and $20,000 to be written out to me. I am aware that it has been asserted in these proceedings that the personal cheque was in payment for legal fees and relates to a Costs Disclosure dated 3 July 2015. The cheques in fact relate to commercial dealings between myself and Suzanne and Yousra. On or about 4 December 2015 it was agreed that Suzanne and Yousra wished to terminate and revoke the agreement to purchase Whispers, Hair and Beauty Salons. Payments were made to Suzanne and Yousra in late January 2016 and in early June 2016 to finalise the commercial arrangement between us.
6. Annexed to the affidavit were copies of the personal cheque for $20,000 made out to him from Ms Manzala, and the two bank cheques for $30,000 and $20,000. Also annexed was a copy of an agreement for the purchase of the business, Whispers at Shop 17, 2 Willison Road, Carlton NSW 2218 dated 5 February 2013. The agreement was executed by the Respondent "in the capacity of authorised seller representative" of Fortis et Fidelis Pty Limited, the vendor, and by Ms Manzala and Ms Y Haddad as purchasers. The payment terms were as described by the Respondent in his affidavit.
7. The Respondent also attached documents showing that in addition to the purchase of Whispers and her family law matter, he had received other instructions from Ms Manzala. He had acted for her in a traffic matter at the Local Court at Grafton in August 2015, and had negotiated the payment of fees to a law firm from whom she had sought advice about her matrimonial affairs before she had consulted the Respondent.
8. He added that: On or about 4 December 2015 it was agreed that Suzanne and Yousra wished to terminate and revoke the agreement to purchase Whispers and that all of the money he had received from Ms Manzala, that is the personal cheque for $20,000, and the two bank cheques for $30,000 and $20,000 were repaid to her "in late January 2016 and early June 2016 to finalise the commercial arrangement between us".

Mr Sundar

1. In a second affidavit, Mr Sundar said that in 2015 the Respondent had told him that he was a lay associate with the law firm "& Legal" and that the firm could assist his clients with litigation matters. He said that the two matters referred to by the Respondent in his affidavit - that is, the defamation matter and the debt collection, had been passed on by him to & Legal "via the Respondent", because he did not have litigation experience and "preferred to refer my clients to a known entity rather than an unknown entity".
2. He said that the Respondent did not attend Sun Legal's offices on a regular basis, but would attend from time to time, usually without giving prior notice. Mr Sundar allowed the Respondent to make and receive telephone calls and to use his laptop.
3. In relation to Ms Manzala, Mr Sundar said: The first time I became aware of any purported business relationship between the Respondent and Ms Suzanne Manzala was on or around 15 June 2016. At no time did I agree that the Respondent could assist Ms Manzala. As the Respondent was not engaged by Sun Legal in any capacity I do not know why agreement was required.
4. In relation to the caveat lapsing notice for Ms Manzala, which he had referred to in his earlier affidavit, he added that on one occasion "around June or July 2015", when the Respondent had attended his office, the Respondent had said to him: One of my acquaintances, Ms Suzanne Manzala needs assistance with preparing an application for Preparation of Lapsing Notice because a caveat has been lodged on her property. Can you please help me with this? to which he replied: Yes. I can prepare the Notice for you. But I will not serve the document on the caveator until I meet Ms Manzala in person, she becomes a client of the firm and provides me with instructions personally. Mr Sundar said that he then signed the Notice and gave it to the Respondent.

Ms Manzala

1. Ms Manzala's evidence in relation to the Whispers transaction was at odds with that of the Respondent. Her account was as follows: The Respondent: You need to show that the money you paid towards your mortgage came from you. Otherwise, your ex-husband will argue that the payment came from him and he will get the house. You need to be able to show a trail of payments. A good way to do this would be to sign these documents which make it look like you own a share in a hair salon called Whispers. I will back date the documents to make it look like you have owned a share in the business since 5 February 2013. You will need to give me $50,000 which I will put into the business since to make it look legitimate. You can get the money back at any time because it is all within the cooling off period. For this reason, she and Ms Haddad signed the business sale agreement.
2. We note that Mr Manzala had not made any mention of the Whispers transaction in her first signed statement attached to Mr Sofiak's affidavit.

Ms Y Haddad

1. Ms Haddad corroborated Ms Manzala's account of the reason that the Respondent had given for their entering into the Whispers transaction. Her evidence was that the Respondent had said to them: You (Suzanne and Yousra) should sign these documents to make it look like you own an interest in a hair salon business called Whispers Salon. Don't worry it is a real business. It is not fake. Once you have signed the document, Suzanne will be able to show a judge that she has an interest in the business and that she has made mortgage repayments from the money she received from the business.
2. Ms Haddad said that on the next occasion that she and Ms Manzala met with the Respondent, she gave him two bank cheques for $30,000 and for $20,000 "in accordance with his Whispers salon idea" and at the same meeting, she observed Ms Manzala give the Respondent her cheque for $20,000. She also said that: On or around 17 January 2016, I received a delivery of hair salon equipment that I understood Ms Manzala and Mr Aslan agreed would be delivered to my house. At no time did I use or intend to use the equipment to carry out any hair salon work.

The Respondent's Further Evidence

1. The Respondent responded to this evidence from Mr Sundar, Ms Manzala and Ms Y Haddad, by filing three additional affidavits.
2. In relation to Ms Manzala becoming a client of Sun Legal, the Respondent said that on Saturday 27 June 2015, he recollected telephoning Mr Sundar to ascertain whether he could make time to meet with him that afternoon "as we usually do when a new matter comes to light". In that telephone conversation, he remembered the following exchange: Mr Sundar: Who do you think would be the best barrister to ask for advice on Ms Manzala's matters? Respondent: I recommend Ms Catherine Lin of Trust Chambers to Ms Manzala. Ms Lin would be the ideal choice, I just hope she's available. Mr Sundar: That's good, go ahead and contact Ms Lin first thing Monday and see if she's interested to advise Ms Manzala and copy me. Respondent: What about the caveat? Ms Manzala is very worried about her house. Mr Sundar: We'll need to make application for lapsing notice as soon as possible. Respondent: How do you want me to get these documents to you? Mr Sundar: It's OK email everything to me to make a file and let's discuss what to do when we meet next week. He attached to his second additional affidavit, his email to Mr Sundar dated 29 June 2015 which enclosed documents relevant to Ms Manzala's matter. The email commenced: Dear Mohan, please note the following new case for Sun Legal.
3. He also attached to one of his three further affidavits, an invoice from Land & Property Information NSW to Sun Legal, dated 16 July 2015 which appeared to show that the caveat Lapsing Notice for Ms Manzala had been lodged by Sun Legal just prior to that date.
4. In relation to the Whispers transaction, the Respondent said that Ms Manzala had said to him: I want to buy or invest the money that I got from my mother in a business so if anyone asks, I can tell them that my mother gave me that money to get a business to live from. But I want to be able to access this money and get it back if and when I ask for them.
5. Finally, in relation to Ms Manzala telling him that she no longer wished him to represent her in her legal affairs or to proceed with the Whispers transaction, he said: I suspect that Ms Manzala had a change of attitude towards the measure of my loyalty to her when in November 2015 she asked me to help her obtain a power of attorney for her mother's affairs. which he said he could not do because of her mother's state of health.

The Applicant's Further Evidence in Reply

1. The further affidavits from the Respondent generated a final round of affidavits from Ms Manzala, Ms Y Haddad and Mr Sundar in which they denied that the conversations between them as set out in the Respondent's affidavits had occurred.

Ms Manzala

1. Ms Manzala was asked about her understanding of the Whispers transaction. She said that when the Respondent first discussed it with her, she did not think that there was an actual hairdressing salon, but she now had come to know that the salon did exist. However she did not resile from her primary evidence that the Respondent had first raised the matter with her and Ms Haddad in early July 2015 and that the Respondent had told her that paying him the $50,000 for the business would improve her prospects in her family law proceedings.
2. In relation to the hairdressing equipment, she said that she had told the Respondent to keep the stock, but he said he had nowhere to store it and it was delivered to Ms Haddad without any forewarning.
3. She said that she had attended a conference with the Respondent and Ms Lin. She had never been asked to pay for Ms Lin's advice, but she believed that Ms Lin was a partner of Sun Legal. We should add that there is nothing in the evidence of any of the parties to suggest that Ms Lin has acted unprofessionally in any way. She accepted the brief from the Respondent in good faith in the belief that he was a lay associate of Sun Legal, and sent to him her cost disclosure statement in the ordinary course. She was not to know how the Respondent had referred to her in his conversations with Ms Manzala, nor the manner in which she had been described in the Respondent's cost agreement.
4. Ms Manzala maintained the position that her payment of $20,000 to the Respondent was for legal fees that she was likely to incur, and was not related to the payments made in connection with the Whispers transaction. When asked why she paid the Respondent $20,000, when he had told her that the work was likely to cost no more than $8,000, she said that was what the Respondent had asked her to pay, and at all times, she understood that the money was held in trust on her behalf. She added that she believed, from what she had been told by the solicitors whom she had consulted previously, that her costs could amount to $20,000 if the matter went to court.
5. Finally, in relation to her discussion with the Respondent about a power of attorney for her mother, she said that it was a passing conversation and that it was not the reason that she decided to terminate her involvement with the Respondent.

Mr Sundar

1. Mr Sundar was cross-examined at length about the nature of his relationship with the Respondent. He conceded that on some occasions he had asked the Respondent to help him draft documents "as a friend and not as a lawyer". When re-examined by the Applicant's solicitor, he conceded that his statement in his first affidavit that the Respondent had contacted him ''a few times between 2009 and 2015", was not accurate, but that he had not been attempting to mislead the Tribunal.
2. It was put to him that when he had received Mr Maatouk's letter in 2016, he had telephoned Mr Maatouk and said that he had never heard of the Respondent. He said that this was because he was shocked by the revelations in Mr Maatouk's letter and had panicked.
3. He was asked about the email that the Respondent had sent to him which commenced: Dear Mohan, please note this new case for Sun Legal. He said that he received many emails from the Respondent and mostly did not read them or at least did not read them carefully, and in this case he did not read this email.
4. In relation to the caveat lapsing notice for Ms Manzala, he conceded that he had signed it "but only on a conditional basis", the condition being that she attend his office and give him instructions personally.

The Respondent

1. The Respondent was asked about his employment by Sun Legal as a lay associate. He was asked whether he could produce any documentation evidencing this engagement. He said that the arrangement was verbal only. He was asked whether he could produce any documentation showing that Mr Sundar had approved any action that he had taken in relation to any of Sun Legal's clients. He said that he was sure that there were some documents of this nature, but none were produced.
2. In relation to the Whispers documentation, he maintained that he had not backdated the agreement, but was unable to explain why it bore the date February 2013 rather that 2015, except to say that the date may have come from a pro forma precedent that he may have used.
3. In relation to the cost agreement, he repeated that he had used Sun Legal's standard form of agreement. He was asked about a number of anomalies in the document, in particular, that it was not on Sun Legal's letterhead, that his telephone number had been transposed in the place of the telephone number for Sun Legal, and that it referred to Ms Lin, and a Mr Howard Hilton, as well as himself, as employees of the firm.
4. He was also asked about the schedule to the cost agreement which stated: Agreed advance payment in trust on client request $20,000 - $21,000. He said that inclusion of the words "in trust'' was an error on his part, and must have occurred because he was using Sun Legal's precedent and these words were "embedded" in the document.

Ms Manzala

1. We considered carefully Ms Manzala's answers when cross-examined and her demeanour in the witness box. We find her to be a truthful witness. In particular, we accept her evidence that the Respondent told her that he was employed by Sun Legal, whether as a partner or an employed solicitor, as was Ms Lin, and that he asked her to provide him with $20,000 on account of her legal costs, which he would hold in trust.
2. We also find that the $20,000 paid by Ms Manzala was quite separate from the $50,000 which she and Ms Haddad provided to the Respondent for the Whispers transaction.

Mr Sundar

1. Mr Sundar's account, in his first affidavit of his relationship with the Respondent, was so abbreviated as to be misleading. Likewise, his preparedness to allow the Respondent access to his office, including the firm's precedents and his laptop, was casual, bordering on reckless. We also consider that his signing the caveat lapsing notice "on a conditional basis", as he put it, and giving the document to the Respondent, as well as his practice of not reading emails from the Respondent, to be unprofessional.
2. Notwithstanding these comments, we nevertheless accept Mr Sundar's key evidence that the Respondent had never been employed by him as a lay associate or in any other capacity, nor that Ms Manzala was ever a client of Sun Legal.

The Respondent

1. We do not find the Respondent to be a credible witness. Whilst we accept that his relationship with Mr Sundar was closer and broader than Mr Sundar had disclosed, we do not accept the Respondent's account of his involvement with Ms Manzala, or that he was ever engaged as a lay associate by Sun Legal.
2. In relation to the Whispers sale of business contract, the Respondent confirmed, when being cross-examined, that the parties to the document, that is Ms Manzala, Ms Haddad and the Respondent on behalf of the vendor, had only signed it in July 2015, when Ms Manzala consulted him about her matrimonial affairs.
3. When asked why the document was dated 5 February 2013, the Respondent was unable to give a satisfactory explanation. He said the date came from a template that he had used when preparing the agreement. As we have noted, the Respondent denied that he had backdated the document, but that is the only rational explanation for the document bearing the date that it does.
4. The Whispers transaction does not relate directly to the allegations against the Respondent in the Application. For this reason, we will refrain from making a positive finding in relation to the backdating and the reasons for doing so. However the account given by Ms Manzala and Ms Haddad in their affidavits as to why the document was dated 5 February 2013, seems to us to provide a credible explanation.

Generally

1. We will now deal with the allegations in the Application not admitted by the Respondent, and when doing so, we will set out our further findings in relation to the Respondent's evidence, and where relevant, the evidence of Ms Manzala, Ms Haddad and Mr Sundar.
2. First, we accept Ms Manzala's and Ms Y Haddad's evidence that on the first occasion that they met the Respondent, he said to them that he was a partner or at least a solicitor employed by Sun Legal, as was Ms Lin. Allegations 2a) and 2c) are therefore established.
3. We find that at no time was the Respondent employed as a lay associate or paralegal by Sun Legal. The Respondent held himself out as such, but, neither in relation to Ms Manzala's matter or any other transaction, was he able to provide any engagement letter from Sun Legal or other documents from Mr Sundar (apart from documents which the Respondent had himself created), which supported his contention that he was employed by the firm.
4. In his first affidavit, he had also claimed that his name appeared on the letter head of Sun Legal as Senior Lay Associate, but again no letter head or other document was produced which supported that claim.
5. The Respondent visited the Sun Legal offices from time to time (more frequently than Mr Sundar indicated, but probably less frequently than the 2 or 3 times a week claimed by the Respondent), and he appears to have referred people to Sun Legal as clients. Mr Sundar also referred to & Legal "via the Respondent", at least the debt collection and the defamation matter which the Respondent referred to in his evidence.
6. However, none of these contacts support the claim that the Respondent was actually engaged by Sun Legal as a lay associate in relation to Ms Manzala's affairs or any client of the firm. It follows that he had no authority to act on Sun Legal's behalf in relation to any of the activities particularised in paragraph 11 of the Application. We therefore find the allegations in paragraph 11 to have been established.
7. In relation to the payment of the $20,000 by Ms Manzala, we find that this money was paid to the Respondent at least in part on account of the legal fees of $8,000 that he had told her that she was likely to incur. We also accept her evidence that the Respondent had said to her that he would transfer these funds to be held on trust by Sun Legal and that she paid the money to him with this expectation.
8. We reject the Respondent's evidence that Mr Sundar was aware of and approved the Respondent holding this money in his own bank account. We also note Ms N Haddad's evidence that in any event, the Respondent did not retain the money in his own bank account.
9. We also reject the Respondent's alternative and contradictory proposition that this payment was not on account of Ms Manzala's legal expenses, but part of the "commercial arrangement" between the parties for the possible acquisition of Whispers, and was in the same category as the payment of the bank cheques of $30,000 and $20,000 received from Ms Y Haddad. It follows that allegations 3b) and 6b) in the Application are also established.
10. In relation to the cost agreement which the Respondent had prepared and asked Ms Manzala to sign, we find the Respondent's evidence not believable. He had said that he had prepared the document using Sun Legal's cost agreement precedent, which Mr Sundar had allowed him to access, and that Mr Sundar had then approved the form of the document before the Respondent gave it to Ms Manzala.
11. We do not accept either proposition. The version that Ms Manzala signed was not on Sun Legal's letter head, and contained the statement that Sun Legal was an incorporated legal practice, which was not the case. The Respondent's version had also included his telephone number and deleted Sun Legal's telephone number.
12. We also reject the Respondent's claim that Mr Sundar had approved the document before he gave it to Ms Manzala. There are three compelling reasons why Mr Sundar would not have approved this document. First, it described his firm as an incorporated practice and included an incorrect telephone number. Secondly, a schedule to the agreement setting out hourly rates for Sun Legal employees, named not only the Respondent as a Senior Lay Associate, but also Ms Lin and a Mr Howard Hilton. Mr Hilton had no connection with Sun Legal, but according to the Respondent, was an employee of Sun Legal.
13. Thirdly, as noted above, a further schedule to the cost agreement contained the following statement: Agreed advance payment in trust on client request: $20,000 - $21,000. It is inconceivable that Mr Sundar would have approved a cost agreement which referred to him holding money in trust on behalf of Ms Manzala when he had not received any money from her.
14. Paragraphs 4a) and 5 of the Application refer to the cost agreement. Paragraph 5 asserted that: The document titled "Disclosure and Conditions of Engagement" purported to be a Sun Legal costs disclosure agreement and represented that the Respondent was a Sun Legal employee. The Respondent had admitted this paragraph and paragraph 4a), but with the qualification that the document had been prepared "with the approval of and authority of" Mr Sundar. This admission must be construed in the light of our finding that Mr Sundar did not approve the document, nor even know of its existence.
15. In relation to the letter dated 3 July 2015 to the Family Relationship Centre in Campbelltown, we accept Mr Sundar's evidence that he had no part in its drafting, and did not approve its contents before it was sent to the Relationship Centre. The Respondent had admitted paragraph 7 of the Application, but again this admission must be construed in the light of our finding that Mr Sundar was not aware that the letter had been sent.
16. Finally there is paragraph 8 of the Application, which asserted that the only work that the Respondent had carried out for Ms Manzala was drafting this letter to the Family Relationship Centre. The Respondent denied this paragraph, and his evidence, not challenged by Ms Manzala, relating to the traffic matter in Grafton and his negotiating settlement of prior legal fees on her behalf, leads us to accept this denial. However this paragraph is not central to the Applicant's case and does not detract from our overall findings.

Grounds to make a disqualification order under section 119 of the Uniform Law

1. Having found the allegations in the Application to have been established, s 119 of the Uniform Law requires us to consider whether these matters amount to grounds for disqualification under s 119(2). We accept the Applicant's contention that they support grounds (b) and (d) of s 119(2). The Respondent's conduct involved multiple instances of untruthful statements made to Ms Manzala and to Mr Sundar, many of which were repeated in his evidence to the Tribunal. Even if we were to have believed that he had an arrangement with Mr Sundar to hold Ms Manzala's money himself, and not in Sun Legal's trust account, Ms N Haddad's evidence is that he withdrew this money from his account immediately after he had received it in July 2015.
2. We are comfortably satisfied that the Respondent is not a fit and proper person to be employed or paid in the practice of law or to be involved in the management of a law practice, and that, if he were an Australian legal practitioner, we would find him guilty of conduct that would have constituted professional misconduct. Thus both s 119(2)(b) and (d) are satisfied. We believe that the grounds for making a disqualification order have been established and pursuant to s 119(1)(b), the disqualification is justified.

Disqualification period

1. The final issue is whether the disqualification should be indefinite or for a specified period. The only decision of this Tribunal that we have found concerning an application for disqualification under s 119 of the Uniform Law, is Council of the Law Society of New South Wales v Braham [2015] NSWCATOD 98, where the Tribunal ordered an indefinite disqualification. Before the Uniform Law came into operation, there had been a number of decisions under s 18 of the Legal Profession Act 2004 (NSW), which entitled the Tribunal to make orders in respect of unqualified persons employed in law practices. The wording in that earlier provision was quite different and did not stipulate whether the order could be indefinite or for a fixed period, and those decisions were of no assistance to us.
2. S 2.2.6 in the Legal Profession Act 2004 (Vic) however, was the equivalent former provision to s 119. In Kyriackou v Law Institute of Victoria Ltd [2014] VSCA 322, the Court of Appeal upheld a decision of VCAT that the appellant, a lay associate, be disqualified indefinitely. The Court said at [145] and [152] that: [145] No error of law was shown in VCAT's imposition of an indefinite disqualification. VCAT was exercising a discretion in determining the appropriate period of disqualification. The power of indefinite disqualification is a specific power available in respect of persons who are not legal practitioners. It is open to Mr Kyriackou to apply to VCAT at any point to have his disqualification lifted. It is true that both a disqualified lay associate and a disqualified legal practitioner have no automatic right to recommence working in a legal practice once their disqualification ends. The lay associate must obtain the approval of VCAT and the legal practitioner must obtain a practising certificate. [152] We do not consider that in all cases where charges are established in respect of lay associates that an indefinite disqualification is an appropriate penalty. But the imposition of such a penalty in this case was open to the Tribunal, particular in circumstances where Mr Kyriackou had not given evidence and had not explained his conduct or his attitude to future conduct to the tribunal … The penalty imposed was entirely warranted having regard to considerations of just punishment and both specific and general deterrence.
3. We believe that the nature of the Respondent's misconduct justifies an indefinite disqualification, noting the Victorian Court of Appeal's comments in Kyriackou that it remains open to him to apply to the Tribunal in the future if he were to seek to have the disqualification lifted.
4. In coming to this view, the Tribunal also noted the Respondent's evidence that he was in business on his own account as the owner of the Whispers salon, that he had his own office in Parramatta and also that he said that he was a private investigator. Even if we were to have accepted that he was employed by Sun Legal as a lay associate, it was only ever on a very part time basis.

Costs

1. The Applicant sought the payment of its costs from the Respondent. It submitted that these proceedings were an instance where the ordinary provision, that each party should pay that party's own costs, set out in s 60(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (CASA), should not apply.
2. The Applicant submitted there were special circumstances warranting an award of costs, as the Respondent had been responsible for prolonging unreasonably the time taken to complete the proceedings. S 60(3)(b) of CASA, prescribes delay of this kind as a "special circumstance".
3. The Applicant has not satisfied us that there were special circumstances. The proceedings were drawn out and there was a very large amount of affidavit material tendered. However, in our view, this was largely due to the inadequacy of Mr Sundar's first affidavit, to which we have referred above, and because Ms Manzala's initial signed statement did not refer at all to the Whispers transaction.
4. These deficiencies allowed, and perhaps even obliged the Respondent to include considerable detail and to annex relevant documents about these matters to his first affidavit, which in turn generated the further round of replies and rebuttals from the other witnesses. We believe that the Applicant should bear its own costs.

Order

1. We make the following order: 1. That pursuant to section 119 of the Legal Profession Uniform Law (NSW), the Respondent is disqualified indefinitely.

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. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 October 2019