1. By a Notice of Charges dated 21 May 2010, two charges of misconduct pursuant to section 137 of the Legal Practice Act 1996 were brought against each of Dimitrios Diakou, Kerrili Pty Ltd trading as Diakou Faigen and Daniel Faigen. Charge 1 is a charge of statutory misconduct. Charge 2 is a further or alternative charge of misconduct at common law as preserved by the opening words of section 137.
2. The charges are set out as follows:

The conduct ... constitutes misconduct within the meaning of paragraph (a)(i) of section 137 of the Legal Practice Act 1996 in that, in the course of engaging in legal practice, between 17 March 2005 and 24 June 2005, Diakou, Faigen and/or the firm engaged in a course of conduct being:

1. a wilful or reckless breach of rule 8.2 of the Professional Conduct and Practice Rules 2003 ('the Rules') by failing to avoid a conflict of interest between the firm's clients, being the homeowners as vendors and MFL as purchaser, in the sale of the homeowners' properties; and/or
2. a wilful or reckless breach of rule 8.5.1 of the Rules by failing to obtain the written acknowledgement and agreement of each party, being the homeowners as vendors and MFL as purchaser, in what ought to have been a written acknowledgement and agreement in or to the effect of Form 1 in the Schedule to the Rules, after first informing the parties in writing of the potential disadvantages to that party of the form so acting; and/or

1. a wilful or reckless breach of rule 2.1 of the Rules by failing to exercise all due skill and diligence in acting for the homeowners in failing to advise them (or any of them) of the risks of entering into the agreements for the sale of their home to MFL, including failing to advise them (or any of them) of the need to obtain independent financial advice; and/or

1. a wilful or reckless breach of rule 2.1 of the Rules by failing to act in the best interests of the homeowners by:
   1. acting in a position of conflict of interest by acting for both the homeowners and MFL in the sale of the homeowners' properties by way of preparation of Contracts for the Sale of Land, Deeds of Agreement and Residential Tenancy Agreements (breach of rule 8.5.1 of the Rules); and/or
   2. acting in a position of conflict of interest by acting for both the lessor/s, being MFL, and the lessees being the homeowners who were intending to sell their property to MFL, in connection with an agreement for the lease of land (breach of rule 8.5.3 of the Rules); and/or
   3. acting in a position of conflict of interest by acting for both a financier, being MKM, and a borrower, being MFL, in relation to an agreement to lend money or provide finance for the purposes of financing the purchase by MFL of the homeowners' properties (breach of rule 8.5.4 of the Rules); and/or
   4. acting in a position of conflict of interest by acting for both the purchaser, being MFL, in the purchase of land from the homeowners and for the lender of money or provider of finance, being MKM, intended to be secured by a mortgage/s of that land (breach of rule 8.5.5 of the Rules); and/or
   5. failing to obtain the written acknowledgement and agreement of each party, being the homeowners and MFL in or to the effect of Form 1 in the Schedule to the Rules, after first fully informing each party in writing of the potential disadvantages to that party of the firm so acting (breach of rule 8.5.1 of the Rules); and/or
   6. acting for a guarantor/s, being Stephen O'Neill and/or MFL, in connection with the loan of money or the provision of finance by MKM, in circumstances where the firm was also acting in the same transaction for the borrower, being MFL and the financier, being MKM (breach of rule 8.6 of the Rules); and/or
   7. acting for a borrower, being MFL, and the financier, being MKM, in connection with a loan of money or provision of finance or an agreement to lend money or provide finance in circumstances where the financier, MKM, was in the business of lending or providing finance and the financier did not fall within the exclusions of rule 8.8 of the Rules (breach of rule 8.8 of the Rules); and/or
   8. acting for more than two clients as described above in relation to the sale of the homeowners' properties to MFL in circumstances where Diakou, Faigen and the firm had an obligation to avoid a conflict of interest between two or more clients (breach of rule 8.2 of the Rules); and/or
   9. failing to exercise all due skill and diligence in the course of engaging in legal practice in relation to transactions associated with MFL in failing to advise the homeowners (or any of them) of the risks of entering into the agreements for the sale of their home to MFL; and/or
   10. acting for MFL in the preparation of Powers of Attorney by which employees of MFL were appointed as Attorneys for MFL whilst acting for other parties whose interests were in conflict with those of other concurrent clients, namely the homeowners who sold their property to MFL (breach of rule 8.2 of the Rules)

In acting for the parties as described above, the firm received payment of legal costs and disbursements and, in doing so, Diakou, Faigen and the firm placed their own interests ahead of the homeowners' interests.

Further or alternatively, the conduct ... constitutes misconduct at common law within the meaning of paragraph (a) of section 137 of the Legal Practice Act 1996 in that, in the course of engaging in legal practice, between 17 March 2005 and 24 June 2005, Diakou, Faigen and/or the firm engaged in a course of conduct being:

1. a wilful or reckless failure to avoid a conflict of interest between the firm's clients, being the homeowners as vendors and MFL as purchaser, in the sale of the homeowners' properties; and/or
2. a wilful or reckless failure to obtain the written acknowledgement and agreement of each party, being the homeowners as vendors and MFL as purchaser, in what ought to have been a written acknowledgement and agreement, after first fully informing the parties in writing of the potential disadvantages to that party of the firm so acting; and/or

1. a wilful or reckless failure to exercise all due skill and diligence in acting for the homeowners in failing to advise them (or any of them) of the risks of entering into the agreements for the sale of their home to MFL, including failing to advise them (or any of them) of the need to obtain independent financial advise; and/or

1. a wilful or reckless failure to act in the best interests of the homeowners in:
   1. acting in a position of conflict of interest by acting for both the homeowners and MFL in the sale of the homeowners' properties by way of preparation of Contracts of Sale of Land, Deed of Agreement and Residential Tenancy Agreements; and/or
   2. acting in a position of conflict of interest by acting for both the lessor, being MFL, and the lessees, being the homeowners who were intending to sell their property to MFL in connection with an agreement for the lease of land; and/or
   3. acting in a position of conflict of interest by acting for both a financier, being MKM, and a borrower, being MFL, in relation to an agreement to lend money or provide finance for the purposes of financing the purchase by MFL of the homeowners' properties; and/or
   4. acting in a position of conflict of interest by acting for both the purchaser, being MFL, in the purchase of land from the homeowners and for the lender of money or provider of finance, being MKM, intended to be secured by a mortgage/s of that land; and/or
   5. failing to obtain the written acknowledgement and agreement of each party, being the homeowners and MFL, after first fully informing each party in writing concerning the potential disadvantages to that party of the firm so acting; and/or
   6. acting for a guarantor/s, being Stephen O'Neill and/or MFL, in connection with the loan of money or the provision of finance by MKM, in circumstances where the firm was also acting in the same transaction for the borrower, being MFL and the financier, being MKM; and/or
   7. acting for a borrower/s, being MFL, and the financier, being MKM, in connection with a loan of money or provision of finance or an agreement to lend money or provide finance in circumstances where the financier, MKM, was in the business of lending or providing finance; and/or
   8. acting for more than two clients as referred to above in relation to the sale of the homeowners' properties to MFL in circumstances where you had an obligation to avoid a conflict of interest between two or more clients; and/or
   9. failing to exercise all due skill and diligence in the course of engaging in legal practice in relation to transactions associated with MFL in failing to advise the homeowners (or any of them) of the risks of entering into the agreements for the sale of their home to MFL; and/or
   10. acting for MFL in the preparation of Powers of Attorney by which employees of MFL were appointed as Attorneys for MFL whilst acting for other parties whose interests were in conflict with those of other concurrent clients, namely the homeowners who sold their property to MFL

1. Hearing initially took place before Vice President His Honour Judge Misso on 13 August 2010. Prior to the hearing, Daniel Faigen had departed from the practice of Diakou Faigen and was no longer a director or shareholder of Kerrili Pty Ltd, leaving Dimitrios Diakou in control of the company.
2. At the hearing before Judge Misso, Kerrili Pty Ltd pleaded guilty to the charges and was fined $15,000 in aggregate. An order for costs was made against Kerrili Pty Ltd. The charges brought against Dimitrios Diakou were dismissed as no evidence was produced against him.
3. It is of value to set out His Honour's reasons in full:

1. By a Notice of Charge filed against all of the respondents dated 21 May 2010 the applicant charged the respondents with a number of contraventions of the Legal Practice Act 1996 ('the Act').
2. The manner in which the proceeding was prosecuted before me requires some explanation.
3. Mr Diakou and Mr Faigen are both solicitors who carried on practice in partnership under the name and style of Diakou Faigen ('the firm')
4. Kerilli Pty Ltd (Kerilli) is a company registered with the Legal Practice Board as the incorporated practitioner of the practice pursuant to s 291 of the Act. Both Mr Diakou and Mr Faigen were directors of Kerilli.
5. Kerilli employed Mr Diakou and Mr Faigen as legal practitioners. Each were the holders of practising certificates as principals in the firm.
6. Charges were brought against Mr Diakou and Mr Faigen that they were each guilty of misconduct within the meaning of s 137(a)(i) of the Act and also at common law pursuant to s 137(a) of the Act.
7. Kerilli pleaded guilty to both charges. By consent, both charges against Mr Diakou are to be dismissed with no order as to costs. Mr Faigen pleaded not guilty. The charges against him will be heard at another time.
8. Mr N Green SC appeared with Mr J Snow of counsel for the applicant. Mr S O'Bryan QC appeared for the respondent Dimitrios Diakou.
9. Prior to the commencement of the proceeding the applicant and Mr Diakou had arrived at an agreement regarding the facts, and Mr Diakou's contraventions of the Act. Therefore, no evidence was adduced by either party.
10. Mr Green provided me with a very helpful written outline of the applicant's submissions which he supplemented by an oral outline during which he took me to a number of other documents said to demonstrate the facts relevant to each of the contraventions. Mr O'Bryan informed me that Mr Diakou agreed with the matters put to me by Mr Green as constituting a fair summary of the contraventions.

1. Money for Living (Aust) Pty Ltd was a company which traded under the name and style of Money for Living ('MFL'). MFL was controlled by Mr Stephen O'Neill.
2. MFL hatched a scheme which preyed upon elderly, defenceless and vulnerable members of the community. Essentially, the scheme involved the following:
   • An offer would be made to the elderly owners to purchase their land.
   • The offer was often constituted by the payment of a sum of money less than the value of the land, together with an annuity fixed at a weekly amount to be paid over an agreed period of time.
   • The elderly owners would sell their land to MFL. MFL would then become the registered proprietor of the land.
   • Mr O'Neill's girlfriend, Jolanta Olszewski, was used as the guarantor for MFL in its performance of the contract of sale. She was financially a person of straw.
   • MFL executed a residential tenancy agreement in favour of former owners of the land, essentially giving them a life interest at a rental of $1 per week.
3. The foregoing is a summary derived from a transaction involving Mr William Albert Scott upon whom MFL successfully preyed. Whilst the transaction was more complex than the summary I have given, the summary is sufficient for present purposes.[1]

1. Mr O'Neill operated from Suite 1415 at 1 Queens Road, Melbourne. The office of the firm was on the floor immediately below. Mr O'Neill approached the firm to act on behalf of the vendors in the scheme. The firm was receptive to the approach and subsequently undertook work for a large number of persons who became victims of the scheme.
2. At the heart of the allegations made by the applicant is that Mr Diakou was involved in a serious conflict of interest.
3. Mr Green sought to demonstrate the depth of that conflict of interest by reference to a schedule of documents.[2] Essentially, the way in which victims of the scheme became clients of the firm is demonstrated by what occurred between MFL and Mr Scott:
   • By letter dated 20 May 2005, MFL wrote to Mr Scott referring him to the firm.
   • By letter dated 24 May 2005, the firm wrote to Mr Scott noting that it had been instructed by him to act on his behalf, and that MFL had recommended the firm's services to act on behalf of MFL's clients.
   • The deed of agreement evidencing the arrangement between MFL and Mr Scott; the contract of sale of real estate; the vendor statement; the guarantee and indemnity, and the residential tenancy agreement were all prepared by the firm to conform with the scheme planned and executed by MFL.
4. Mr Green submitted that whilst Mr Diakou at no time believed he was retained by MFL, it is clear on any view that the firm had become enmeshed in the scheme, and that in the circumstances, it was unrealistic for Mr Diakou to argue that he was not also acting on behalf of MFL and under its direction. This was said to demonstrate the nature of the conflict and the magnitude of it.
5. In the case of Mr Scott, it is clear that the firm did not inform him of the extent to which the firm had become enmeshed in the scheme which placed Mr Scott in the position where the firm could not safeguard his interests by providing him with realistic and independent legal advice.
6. MFL mortgaged land which it purchased from such people as Mr Scott. The financier was MKM Capital Pty Ltd ('MKM'). MFL retained the firm to draw up the loan agreements between MFL and MKM.
7. The nature of the transactions demonstrated a very clear conflict of interest. The firm was engaged in nearly every level of legal work required by MFL to successfully complete each step of the scheme.
8. It was as a result of the nature and the depth of the relationship which the firm had developed with MFL which led to Mr Green submitting that the firm did not safeguard the interests of people like Mr Scott by ensuring that he received realistic and independent legal advice before considering becoming a participant in the scheme, or alternatively, the firm should not have acted for Mr Scott while at the same time taking instructions from MFL and undertaking legal work for MKM.

1. Mr O'Bryan submitted that Mr Diakou did not believe that there was a conflict of interest in the firm taking instructions from MFL and acting for Mr Scott.
2. Mr O'Bryan submitted that I could be satisfied that was the case because the firm took steps on behalf of Mr Scott against MFL to claw back the position occupied by Mr Scott before he fell into the scheme and became a victim of it.
3. Mr O'Bryan referred to a letter written by Mr S Wilson QC and Mr W Lye of counsel, dated 11 August 2010[3] which provides an insight into the astonishing naiveté of Mr Diakou.
4. The firm engaged Mr Wilson and Mr Lye to act on behalf of the victims of the scheme. The relevant parts of the letter are as follows:

Whilst we were acting on the instructions of Diakou Faigen, it became apparent to us, as counsel, that our clients have a clear cause of action against their solicitors Diakou Faigen for breach of retainer and negligence, in respect of the way in which Diakou Faigen had failed to protect those parties interests in circumstances where there had been no proper check on the scheme or those founding the same.

On the advice of Counsel, Diakou Faigen withdrew solicitors and the matter was taken over by Russell Kennedy and the proceeding was amended to join Diakou Faigen as a defendant...

1. Mr O'Bryan referred to the financial cost incurred by Mr Diakou as a result of the firm falling into such a serious conflict of interest:
   • $73,000 on counsel's fees expended in acting on behalf of victims of the scheme.
   • He has been required to pay a deductible relevant to each of the professional negligence claims brought against him.[4]
   • $186,000 must be repaid comprising the disgorgement of all professional fees earned by the firm. Mr Diakou's personal liability stands at $108,000 of which $60,000 has been paid.
   • Mr Diakou is now the holder of a practicing certificate not Kerrili. His premium is assessed at the highest level of risk requiring him to pay an extra $5,500 annually over and above the usual premium.
2. Mr Diakou and Mr Faigen no longer practice in partnership. Mr Faigen has left the firm. The firm is now conducted by Mr Diakou.

1. Mr O'Bryan submitted that there were a number of factors which I should take into account in determining what penalty should be imposed upon Kerrili. In summary they were as follows:
   • He was an inexperienced young solicitor. He was in his late twenties when he assumed control of the firm with Mr Faigen. He had little experience beyond doing his articles through Leo Cussen and working for two firms of solicitors for a short while.
   • The lure of a client bringing in a lot of work with the capacity to establish a fee base blinded Mr Diakou's assessment of whether a conflict of interest existed and whether he was acting in the best interests of the victims of the scheme.
   • He co-operated with the applicant providing client files and other information as requested, which enabled the applicant to make a full assessment of the degree of his contravention pleaded in the charges brought against him.
   • In addition to the investigation by the applicant into his degree of involvement in the scheme, Professional Standards of the Law Institute of Victoria conducted a wide-ranging and lengthy investigation into all of the firm's affairs finding nothing amiss.
   • He has an impressive clientele evidenced by testimonials from Mr Rouse[5] and Mr Kirkwood-Scott[6] both of whom have retained and continue to retain the firm in legal work of significance.
2. Mr Green submitted that I should accept the matters put to me by Mr O'Bryan in mitigation, and indeed, in the course of his opening Mr Green referred to many of the matters raised by Mr O'Bryan giving the applicant's endorsement to a positive appraisal of Mr Diakou's character, referring to his cooperation with the applicant and the Law Institute of Victoria, and the results of the wide-ranging a lengthy investigation into the firm's affairs.
3. I accept the matters put to me by Mr O'Bryan. In particular, I accept that it was Mr Diakou's youth and lack of experience, the lure of a client bringing in work which blinded his judgment.
4. I also accept that the depth of his naiveté was such that he believed, in all the circumstances, he was acting for the victims of the scheme evidenced by his engagement of Mr Wilson and Mr Lye. It seems extraordinary, but nonetheless it is the case, that Mr Diakou was blissfully unaware that there was a conflict of interest until his attention was drawn to that fact by Mr Wilson and Mr Lye.
5. Mr Green submitted that I should impose a monetary penalty of between $20-25,000 on Kerrili. Mr O'Bryan submitted that that was a crushing financial penalty and that it should be significantly lower and around $10,000.
6. It occurs to me that there are a number of factors which I must have regard to in determining what financial penalty should be imposed.
7. Firstly, the failure by Mr Diakou to recognise that there was a conflict of interest had the most grave consequences for the victims of the scheme. They were all left at sea, and had to resort to lengthy and no doubt expensive litigation with all of its uncertainties in order to be returned to as close as was possible to the position which they occupied before they fell prey to the scheme.[7]
8. Secondly, his conduct resulted in the insurer for solicitors in the State having to foot the bill arising out of the legal proceedings by the victims of the scheme. Although I was not informed of what that involved, I suspect it was considerable.
9. Thirdly, and to be weighed against the foregoing, each of the matters which Mr O'Bryan submitted which I have summarised in paragraph 28 above.
10. The conclusions I have reached is that I should impose a monetary penalty on Kerrili of $15,000. The maximum monetary penalty I can impose under the Act is $50,000.
11. Whilst it may be considered that $15,000 is a modest monetary penalty, when looked at in a vacuum, given the magnitude of Mr Diakou's conduct, I consider that it is relevant to take into account the financial cost to the firm and Mr Diakou which I have summarised in paragraph 26 above, as well as the costs he will bear of this proceeding.
12. All in all, I consider that it is a sum, together with all the other financial cost to Mr Diakou, which demonstrates the magnitude of his contravention of the Act.
13. The charges against Daniel Faigen were not heard by His Honour as Mr Faigen had not pleaded guilty and had requested further and better particulars of the charges.
14. On 9 August 2011, the matter came before me with Mr Faigen pleading guilty to the two charges of misconduct on the basis of the following Statement of Agreed Facts.

1. On 22 May 2010 the applicant brought two charges against each respondent. The first charge was of statutory misconduct within the meaning of s 137(a)(i) of the Legal Practice Act 1996 (Vic). The second charge was of misconduct at common law.
2. The alleged misconduct occurred at a time when Mr Diakou and Mr Faigen were in partnership, trading as Diakou Faigen. Mr Faigen has since left the firm, Mr Diakou continues to operate as Diakou Faigen.
3. The first respondent pleaded guilty to the charges. On 13 August 2010 a plea hearing took place before Vice president Judge Misso. His Honour found the charges proven against the firm, and fined the firm an aggregate penalty of $15,000, and made an order for costs against the firm. The charges brought against Mr Diakou were dismissed with no order as to costs, as had previously been agreed between the parties to that hearing.
4. In this hearing Mr Faigen now pleads guilty to the charges brought against him.
5. The basis of the two charges is the involvement of the firm, at a time when Mr Faigen was a partner, with a company called Money For Living.
6. The directing mind of Money For Living was Stephen O'Neill. O'Neill began operating the company soon after his release from a three year prison term for offences of dishonesty. When passing sentence on O'Neill for those offences, the learned judge addressed O'Neill: 'Your criminality was high and sustained over a number of years'.[8]
7. The business of Money For Living has been summarised by their administrators as follows: 'Money For Living operated a widely marketed scheme, whereby properties were bought from elderly retirees at a discounted price for a lump sum and/or regular monthly payments plus a lifetime tenancy. Some properties were then on sold to various investors'.[9]
8. By way of example, William Albert Scott responded to a Money For Living advertisement in the month of May 2005. Mr Scott's property in Healesville was valued at $165,000. On the basis of this valuation, Money For Living paid Mr Scott $55,000 up front and contracted to pay him $228.92 pcm for 15 years, as well as allowing him a life tenancy at his property for a peppercorn rental.
9. There was nothing illegal about Money for Living's scheme; it simply offered a poor deal to an elderly homeowner such as Mr Scott, especially if his monthly payments were insecure.
10. Money For Living operated from Suite 1415 at No. 1 Queens Road, across the road from Albert Park Lake. The respondents' offices were directly below in Suite 1215 (there being no 13th floor). Relevantly, in the same letter in which Money For Living advised Mr Scott of the valuation of his home, they referred him to Diakou Faigen by way of an appointment four days later.
11. On the day of his appointment with Diakou Faigen, Mr Scott executed a Deed of Arrangement formalising the Money For Living scheme, as well as the Contract of Sale of his property to Money For Living, and the Residential Tenancy Agreement between him and Money For Living. All these documents were drawn up by Diakou Faigen. A month later, Mr Scott was paid the up front amount; he no longer owned his own home, and relied on a Guarantee and Indemnity executed by Michael O'Neill's girlfriend, Jolanta Olszweski, as security for the continued receipt of his monthly payments. This Guarantee and Indemnity had also been drawn up by Diakou Faigen.
12. Diakou Faigen received a steady stream of referrals of homeowners such as Mr Scott from Money For Living through 2005, processed them speedily, and invoiced them for their services. Additionally, Diakou Faigen encouraged the homeowners to also engage them to draw up a (new) will and enduring Power of Attorney.
13. In all, Money For Living attracted 117 clients who sold their homes to Money For Living through Daikou Faigen. Material which the Legal Services Commissioner sought and obtained from Diakou Faigen shows that the firm billed these clients a total of $139,021.88 for conveyancing and $77,485 for the work related to preparing wills and powers of attorney.
14. MFL also raised money by mortgaging some of the properties that it did not sell to third-party investors. Diakou Faigen also acted for MKM, on a commission basis, and drew up loan agreements between Money For Living and MKM.
15. Money For Living collapsed in the second half of 2005; administrators were appointed on 26 September 2005. About this time the homeowners' monthly payments ceased.
16. The collapse of Money For Living has caused extensive financial difficulties for the homeowners, many of whom have suffered considerable emotional distress as a consequence of their involvement with Money For Living. While they remain living in their homes, they no longer own their property.
17. Mr Faigen was at all relevant times involved in and aware of the relationship between Money For Living and Diakou Faigen. This is demonstrated by the extensive email correspondence between the parties; the first such email is dated 11 August 2004, the last 13 July 2005.[10]
18. Daniel Faigen having pleaded guilty to the two charges of misconduct, the charges are proved and he is found guilty.
19. The difficulty with this matter is the disposition. At the time of events giving rise to the charges Mr Diakou and Mr Faigen were, by way of being director/shareholders in Kerrili Pty Ltd, effectively 'partners' in the law practice Diakou Faigen. When Mr Faigen subsequently departed, control of the company and the practice fell to Mr Diakou. When the hearing took place before Judge Misso, Mr Diakou was able to direct Kerilli Pty Ltd to plead guilty. The 'black mark' of findings of misconduct fell upon the company, not Mr Diakou. I accept that the imposition of the fine and costs against the company ultimately cost Mr Diakou.
20. The situation with which I am faced is that one of the two natural persons charged has no finding of misconduct against him due to his ability to have a company plead guilty to the charges, whilst the other now has two findings of misconduct against him.
21. Counsel for the Legal Services Commissioner urged met o impose a fine similar to that imposed on Kerilli Pty Ltd. Counsel for Mr Diakou urged me not fine Mr Diakou as he now had the 'black marks' against his name, thereby constituting parity.
22. Clearly, the finding of two charges of misconduct against Mr Faigen constitutes a burden which he will carry for the rest of his professional life. Equally clearly, this is a burden which Mr Diakou has avoided. As for Kerrili Pty Ltd; it could be deregistered, taking the findings of misconduct against it into oblivion. I therefore place considerable weight upon the findings of misconduct against Mr Faigen.
23. On the other side of the balance is the fact that Kerrali Pty Ltd was fined $15,000.00 and ordered to pay half of the Legal Services Commissioner's costs to date (13 August 2010) save for the costs incurred relevant to Daniel Faigen's request for further and better particulars. Effectively the fine and costs represent an expense to Mr Diakou.
24. I am also mindful that Mr Faigen has been put to great expense as a consequence of the events giving rise to the charges and the events which followed. I am satisfied that the nett result was a substantial financial loss. I am also mindful that the costs which Mr Faigen will pay in relation to these proceedings will exceed those payable by Kerrali Pty Ltd. However, I note that he chose to protract matters.
25. Mr Faigen's guilty plea did not come at an early stage in the proceedings.
26. No other findings of guilt were alleged to have been made against Mr Faigen in the past.
27. References produced to the Tribunal attest to Mr Faigen having otherwise been of good character.
28. Having regard to the need to demonstrate disapproval of Mr Faigen's actions balanced with the need to seek parity with the disposition of His Honour Judge Misso I find that a fine is appropriate, such fine to be substantially less than the fine imposed upon Kerrali Pty Ltd.

[1] Mr Green gave a very helpful summary of Mr Scott's predicament as an example and a demonstration of the predicament of all of the complainants.

[7] I was informed by Mr Green and Mr O'Bryan that the three class actions were settled on confidential terms. Precisely what financial or other deficit was suffered by the victims of the scheme was not put to me as a result.

[8] R v O'Neill [2003] VSCA 26 at [5] (11 April 2003)

[10] See folder put together by LSC dated 10 June 2010, provided to Mr Faigen's legal representatives.