REASONS FOR DECISION
1By a letter dated 6 September 2011 the Respondent notified the Applicant that he proposed pursuant to s.540 of the Legal Profession Act (the Act) to caution him and make a compensation order in favour of Ms Rasma Gulbis as a consequence of the Applicant purporting to exercise a lien over a Certificate of Title when he was not entitled to do so. The compensation order was in the following terms:
"I Steve Mark, Legal Services Commissioner, hereby order that Mikelis Strikis of "Willow Springs", 282 Powells Road Lue NSW:
1.cannot recover the whole of $1,772.50 charged to Rasma Gulbis in respect of the services specified in his email dated 8 August 2010.
2.pay the sum of $892.00 to Rasma Gulbis within 28 days of the date of this order.
Signed
Dated 5 September 2011"
2The Respondent provided detailed reasons for his decision, which followed a lengthy exchange of correspondence. It will be necessary for us to refer to this correspondence in due course. For present purposes we record that the Applicant exercised his right to seek a review of the Respondent's decision to make a compensation order. The right of review was not available in respect of the caution.
3Section 540 of the Legal Profession Act 2004 provides:
"Summary conclusion of complaint procedure by caution, reprimand, compensation order or imposition of conditions
540 Summary conclusion of complaint procedure by caution, reprimand, compensation order or imposition of conditions
(1) This section applies if:
(a) either:
(i) the Commissioner or a Council completes an investigation of a complaint against an Australian legal practitioner, or
(ii) the report of an independent investigator is given to the Commissioner, and
(b) the Commissioner or Council (as the case requires):
(i) is satisfied that there is a reasonable likelihood that the practitioner would be found by the Tribunal to have engaged in unsatisfactory professional conduct (but not professional misconduct), and
(ii) is satisfied that the practitioner is generally competent and diligent, and
(iii) is satisfied that the taking of action under this section is justified having regard to all the circumstances of the case (including the seriousness of the conduct concerned) and to whether any other substantiated complaints have been made against the practitioner.
(2) The Commissioner or Council may do any or all of the following:
(a) caution the practitioner,
(b) reprimand the practitioner,
(c) make a compensation order under Part 4.9 if the complainant requested a compensation order in respect of the complaint,
(d) determine that a specified condition be imposed on the practitioner's practising certificate.
(3) Failure to attend as required by the Commissioner or Council to receive a caution or reprimand is capable of being professional misconduct.
(4) If action is taken under subsection (2), no further action is to be taken under this Chapter with respect to the complaint.
(5) If the Commissioner or Council decides to reprimand or make a compensation order against an Australian legal practitioner under this section, or that a condition be imposed on an Australian legal practitioner's practising certificate under this section, the practitioner may apply to the Tribunal for a review of the decision.
Note: Reviews are carried out under Chapter 5 of the Administrative Decisions Tribunal Act 1997 . Section 729A modifies the operation of that Act. An appeal lies to the Supreme Court under section 729A against a decision of the Administrative Decisions Tribunal.
(6) If the Commissioner determines that a specified condition be imposed on a practising certificate, the appropriate Council is required to impose and maintain the condition. The condition may be amended, suspended, reinstated or revoked with the concurrence of the Commissioner.
4Before coming to the disputed issues, it is appropriate that we make brief reference to the background of the case.
5In July 2001 the Applicant prepared a will for Vilis Gulbis, then of Bankstown. The will appointed the Applicant as executor describing him "My solicitor, Mikelis Strikis of Level 114 Castlereagh Street Sydney". The will contained no provision entitling the Applicant to make a charge for legal or executorial services performed. In the absence of such a provision, the principle that fiduciaries may not derive any profit or advantage from their office unless expressly authorised by the trust instrument would prevent the Applicant from receiving any remuneration other than as provided by s.86 of the Probate and Administration Act 1898. (See the discussion by Holland J upon the subject of executorial remuneration in In The Will of Shannon [1977] 1 NSWLR 210).
6On 19 July 2009, Mr Gulbis died. Prior thereto the Applicant had relocated his practice to the Mudgee area of New South Wales, more that 3 hours drive from Sydney. Sometime thereafter Mrs Gulbis, speaking of her late husband's estate, asked the Applicant to "fix it" or to "fix everything up" (Applicant's letter to the Respondent, 6 March 2011). The Applicant, in his letter of 16 January 2011 to the Respondent, said: "Mrs Gulbis asked me to do whatever still had to be done to transfer the house and other assets into her name". His subsequent investigation revealed that, in truth, the estate contained no assets of any significant value. The matrimonial home bank accounts etc. were all jointly owned and passed to Mrs Gulbis by survivorship.
7The Applicant did, however, prepare and arrange registration of a Notice of Death in respect of the home of Mr and Mrs Gulbis and advised her to contact the bank regarding the joint bank account. Following registration of the Notice of Death, a new Certificate of Title issued in the name of Mrs Gulbis and this Certificate of Title was retained by the Applicant.
8On 9 July 2010, Mr J P O'Neil, solicitor, wrote to the Applicant:
"Re Documents Held On Behalf of Rasma & Vilis Gulbis
We advise that we have been instructed to act on behalf of Rasma Gulbis.
Please find enclosed an authority from our client, for your attention in relation to the release of documents held by your firm.
We look forward to receipt of the documents held by you at your earliest convenience."
9The Applicant replied by email on 28 July 2010:
"I have received your letter dated 9 July 2010. I claim a possessory lien over the documents which you seek. I will release to you the documents which I hold (including the current Certificate of Title in respect of F. I. C/393023) once I receive payment of the following (GST inclusive) sums:
Costs $1,650.00
Registration fee on TA$ 95.00
Espreon fee for attending to registration:$ 27.50
$1,772.50"
10Mr O'Neill replied by email on 6 August 2010:
"Re Documents Held On Behalf of Rasma & Vilis Gulbis
We refer to your email of 28th July 2010 and are instructed that no costs disclosure was made to our client nor has a tax invoice been sent to her.
If this is the case, it would appear that you will need to prepare an itemized bill for assessment.
Alternatively, you may provide us with details of the actual work done to enable our client to assess the reasonableness of your charges.
Would you please let us know within the next 7 days what you propose to do?"
11The Applicant replied on 8 August 2010:
"*From what you have said (in your e-mail quoted below) it would appear that you have misunderstood the situation. I am not claiming costs/remuneration as if I was a lawyer acting for Mrs Rasma Gulbis, but in my capacity as the executor of the estate Mr Vilis Gulbis. I - in my capacity as the executor - have not instructed any solicitor to act for me, so no costs disclosure has been made to me. Similarly, I - in my capacity as a solicitor - have not been retained by any client in connection with the estate and, accordingly, I have no client to whom I owe a duty of costs disclosure.
The process of costs assessment is not appropriate to a claim for an executor's commission or other remuneration.
It is true that I have not issued any tax invoice. But why would I issue a tax invoice to Mrs Gulbis (as you have suggested)? It is the estate which is liable to pay the executor's commission/remuneration and, accordingly, the tax invoice, if any, would therefore properly be issued to the executor of the estate, not to Mrs Gulbis.
Vilis Gulbis died on Sunday 19 July 2009. I learned of his death in the afternoon of Monday 20 July and, at the same time, learned that his funeral was to be held at Homebush in Sydney at 11 a.m. on Friday 24 July. Although I took no part in organising the funeral, consistently with the executor's obligation to dispose of the body, I travelled from my residence (the address of which is shown below) to Homebush and attended the funeral (church service at Homebush, burial at Rookwood, meal at Homebush).
On 5 August 2009 I received some correspondence from Mrs Gulbis. Subsequently, at her request, I travelled (again by car) to Mrs Gulbis' home in Bankstown and obtained from her documents and information relating to the estate. The driving time from here to Sydney is more than 3.5 hours each way, to say nothing of the related petrol, tolls and other expenses, wear and tear, etc.
Applying my expertise and experience, I determined that the estate could be administered without necessarily obtaining a formal grant of probate.
I prepared and caused to be registered a Notice of Death, thus effecting transfer of the ownership of the matrimonial home into Mrs Gulbis' sole name. That did, of course, involve the preparation and submission not only of the Notice of Death itself, but also of ancillary documents (including a certified copy of the death certificate, a Notice of Sale or Transfer of Land, instructions to Sydney agents, etc). I informed Mrs Gulbis, in a telephone conversation in April 2010, that the change of ownership had been completed.
From my various telephone conversations with Mrs Gulbis, I understand that she and her daughter (consistently with the advice which I gave when I visited Mrs Gulbis at her home) attended on St George Bank and arranged for new signatories on the relevant bank account. I understand that Mrs Gulbis wished, and has arranged for, the signatories to be either one (i.e. not both to sign) of Mrs Gulbis and her daughter. Mrs Gulbis informed me that she and Vilis had only one bank account.
The chattels which Vilis and Rasma owned jointly remain in the matrimonial home, which is occupied exclusively by Rasma. Vilis disposed of his motor vehicle before his death. All superannuation entitlements had been claimed and received before Vilis' death. So far as I am aware, there are no further assets which need to be dealt with in order to pass ownership and control thereof to Rasma.
Vilis had an interest in a funeral fund. Although Mrs Gulbis initially wanted me to query the amount of the payment which had been received from that fund, she subsequently changed her mind and told me not to do that.
Mrs Gulbis informed me, when I attended at her home, that Vilis had no debts at the time of his death. I have not subsequently become aware of any creditor to whom/which any payment needs to be made.
I have not previously sought or received any funds from Mrs Gulbis, but have hitherto met all expenses out of my own pocket.
In essence, the estate has been fully administered and all that remains to be done is for the executor to be appropriately remunerated. If I need to apply to the Supreme Court of NSW for such an order, the court filing fee alone will be $779.00 to say nothing of the significant legal costs which would be incurred in the making and the defending of an application - which is certain to succeed, for I have yet to learn of any case where the executor, having done everything necessary to administer the estate, receives nothing at all for his pains and troubles."
12There were further emails between Mr O'Neill and the Applicant as follows:
Mr O'Neill to Applicant 11 August 2010:
"Re Documents Held On Behalf of Rasma & Vilis Gulbis
It would seem from your email that there was no grant of probate in this matter and that in fact the estate of the late Mr Gulbis had no assets.
However, your email indicates that you acted for Mrs Gulbis as surviving joint tenant in relation to the preparation and lodgement of a notice of death relating to the property at Dutton Street, Bankstown. We understand that no costs disclosure was made to our client nor has a tax invoice been sent to her for this work in accordance with the requirements of the Legal Profession Act.
In order to avoid the need for you to have your costs assessed, we are instructed that our client is prepared to offer you $400.00 in full satisfaction for your entitlement to costs and disbursement in relation to acting for her.
Please advise if you accept this offer or propose to prepare a bill and have it assessed.
We await your advice."
13Applicant to Mr O'Neill 11 August 2010:
"I did not act for Mrs Gulbis. I acted in my capacity as the executor named by Mr Vilis Gulbis in his last valid will. Nothing stated in my earlier email is inconsistent with that position.
The fact that the deceased's assets were mainly jointly owned, which I discovered only after travelling to Sydney and interviewing Mrs Rasma Gulbis, does not mean that I as executor had no tasks to perform.
As I said in my earlier email, the assessment of costs process is not appropriate for determining an executor's remuneration.
The sum which you have mentioned is barely sufficient to cover my expenses (petrol, tolls, registration fee, agency fee), let alone compensate me for the time which I spent on the matter."
14Mr O'Neill to Applicant 12 August 2012:
"Re Documents Held On Behalf of Rasma & Vilis Gulbis
We refer to your fax of 11 August 2010 and note you assert that you did not act for Mrs Gulbis and that you acted in your capacity as the executor of Mr Vilis Gulbis' estate.
On the basis that you adopt this position, we note:
a.that the property at Dutton Street Bankstown is not part of Mr Gulbis' estate and accordingly, you are not entitled to a lien over the certificate of title to it for costs relating to the estate; and
b.Mrs Gulbis is not liable for any expenses that you say you are entitled to from the estate. Only the estate, which we understand you established has no assets, could possibly be liable, no one else.
Accordingly, would you please forward Mrs Gulbis' Certificate of Title without further delay."
15Applicant to Mr O'Neill 13 August 2010:
"I did not send you any fax on 11 August 2010.
I acted (in my capacity as the executor named in Vilis' last will) at the express request of Rasma.
In determining the nature and extent of the estate's assets I have relied entirely on what Rasma has told me and upon the documents which she gave me but have not otherwise investigated the situation.
Why did Rasma ask me to act? Why did Rasma ask me to travel to her home?
Why does Rasma now think that I, having acted to my detriment at her express request, should receive nothing at all for my efforts - not even reimbursement of my expenses? That does not appear to be a Christian attitude!"
16Further emails between the Applicant and Mr O'Neill failed to resolve the dispute with the consequence that by letter of 20 October 2010 Mr O'Neill sought the Respondent's assistance. The Respondent wrote to the Applicant on 15 November 2010 seeking clarification of a number of issues.
17As indicated above, the Applicant had no entitlement to claim costs or expenses from the estate except in pursuance of s86 of the Probate and Administration Act. That would entail the obtaining of a grant of probate and the passing of accounts.
18As the Applicant seems ultimately to have recognised at least some of the work he performed, notably the preparation, execution and registration of a Notice of Death, were performed on the instructions of Mrs Gulbis. However, as is common ground he did not as required by ss 309 and 311 of the Act make a costs disclosure to her. None of the exceptions provided for by s 312 seem to apply although s 312(i)(a), (where the legal costs excluding disbursements are not likely to exceed $750), may have been applicable if the Applicant had limited his claim to work done on the instructions of Mrs Gulbis as opposed to work done as the executor named in the will.
19Failure to comply with sections 309 and 311 of the Act is capable of constituting unsatisfactory professional conduct or professional misconduct. Moreover, in the absence of compliance with ss 309 and 311, a client need not pay legal costs claimed until they are assessed, nor may the solicitor maintain legal proceedings for the recovery of such costs.
20The Respondent wrote to the Applicant on 15 November 2010. The letter focussed on the Applicant's claim to be entitled to a lien over the Certificate of Title in the name of Ms Gulbis and to be entitled to payment of his costs and expenses totalling $1772.50. It also called upon the Applicant to provide certain information and deliver up a number of documents.
21The Applicant replied to the Respondent's letter on 20 November. The letter again refused to recognise that the Applicant acted as solicitor for Ms Gulbis and contained these passages:
"At her home Mrs Gulbis gave me various documents, including an original of Vilis' death certificate, the account for Vilis' funeral and a statement from a funeral fund which had made a payment on account of the cost of the funeral. It was appropriate for me, in my capacity as the executor of Vilis' will, to receive those particular documents, but why on earth would they have been given to me by Mrs Gulbis if I was acting as her solicitor (and not as the executor of the estate)? If I was at the time allegedly acting as her solicitor, in respect of what matter was she giving me instructions? Since she was not the executrix of her late husband's estate, she certainly was in no position to give me instructions (as opposed to information) about the estate, because the management and administration of an estate rests solely with the legal personal representative of the deceased.
I made no costs disclosure to Mrs Gulbis because, as she was not my client and the costs of obtaining a grant of probate are prescribed by law, it was not necessary so to do.
I did not seek any advance from Mrs Rasma Gulbis on account of disbursements or otherwise, nor have I received any funds at all from her.
........
The documentation which I prepared was (sic):
- my diary note of my attendance on Mrs Rasma Gulbis at Bankstown;
- the Notice of Death;
- the certified copy of the death certificate;
- three additional certified copies of the death certificate, which I prepared at the same time as the first certified copy in case they became necessary (all of which I enclose and draw to your attention that they require only my signature and the date of such signature, which would have been added as and when a certified copy was required);
- the Notice of Sale or Transfer of Land;
- the instructions to Lawpoint/Espreon to attend with the documents at LPI, NSW to register the Notice of Death and, in due course, to uplift the replacement Certificate of Title; and
- my correspondence with J P O'Neill, solicitors.
I enclose a copy of the Notice of Death and have just noticed that when I signed it I stated my capacity as "Surviving joint tenant's solicitor".
.......
Mrs Gulbis could have mailed to me all of the documents which she handed to me in her home. Instead, she chose to request (and did so repeatedly) that I travel to her home to collect them. She was well aware at that time of my place of residence and of the significant travelling time involved. I have at all times been willing, and remain willing, to release the Certificate of Title to Mrs Gulbis in exchange for reasonable compensation for the time and effort which I have devoted to ensuring that, consistently with the will, all of the assets are transferred to her. As you are aware, J P O'Neill, solicitors have suggested that I should accept $400.00. My petrol expenses alone would have been approximately $70 (about 50 litres @ about $1.40/litre), to say nothing about wear and tear on my motor vehicle and its tyres and, in addition, I have outlaid $122.50 to Lawpoint/Espreon. That leaves only a fraction more than $200 to compensate me for eight to nine hours of time spent in connection with the estate (most of it in travelling to and from Sydney on the one occasion). That amounts to a rate of less than $30 per hour (inclusive of GST), which, so far as I am aware, is less than is currently paid to legal secretaries and is nowhere near the rate at which the services of legal secretaries are charged to clients. The rate being offered is much less than any solicitor's rate of remuneration and is less than 10% of my normal charge-out rate of $400.00 per hour, inclusive of GST."
22The Respondent replied on 26 November stating inter alia:
"In the meantime, I acknowledge that you executed the Notice of Death form as the "surviving joint tenant's solicitor".
In light of this, I request that you address the following:
1.Is it still your position that all of the work you carried out was done in the capacity of executor for the estate of Mr Gulbis, and not as solicitor for Mrs Gulbis?
2.If it is your position that some of the work was carried out by you in your capacity as a solicitor, please identify this work;
3.If it remains your position that the transfer of the property into the name of Mrs Gulbis was done by you as executor for the estate and not as solicitor, why did you sign the Notice of Death and lodge it with the Land Titles Office identifying yourself as solicitor for Mrs Gulbis.
23In his reply of 15 December the Applicant said that it was still his position that all of the work he performed was carried out in the capacity of executor of the estate of Mr Gulbis and not as solicitor for Mrs Gulbis. He made, however, some rather grudging admissions:
"I do not recall what I was thinking at the time.
I can only guess that, because Mrs Gulbis was telephoning me frequently to enquire what was happening with the administration of the estate, I took a short cut and, rather than spend the time and effort of sending the Notice of Death to her in Bankstown to sign, receiving it back from her and then despatching it to Sydney once again (with the CT and other necessary documents) for registration, simply signed it and sent it off for registration.
Alternatively, perhaps it was the case that for that one moment in time, when I signed the Notice of Death on behalf of Mrs Gulbis, I considered myself to be Mrs Gulbis' solicitor - for the sole purpose of making a signature."
24On 14 December the Respondent directed a number of questions to the Applicant, including:
"1.Do you agree that the property the subject of the Notice of Death did not form part of the estate of Vilis Gulbis as it passed to Mrs Gulbis on Mr Gulbis' death by principles of survivorship?
2.If your answer is "no", on what basis do you disagree with the above submission?
3.If your answer is "yes", on what basis do you say you are entitled to hold the certificate of title?
4.Do you agree that the certificate of title is a document belonging to Mrs Gulbis?"
25The Applicant answered those questions on 20 December 2010:
"1.I agree that the realty passed, in law, to Mrs Gulbis by survivorship. I do not agree that nothing needed to be done to give practical effect to that "inheritance". In my view, what needed to be done (and was in fact done by me) could have been done quite properly by either the executor of the estate or by the surviving joint proprietor.
2.See 1 above.
3.The CT was given to me by Mrs Gulbis. She personally handed it to me personally when I, acting as the executor of her late husband's estate, was at her home in Bankstown after having travelled there, at her repeated request, from my residence some 4 hours drive away. I maintain that I am entitled to exercise a possessory lien over the CT until I have been properly compensated for the efforts and expenses which Mrs Gulbis caused me to undertake and incur.
4.Yes."
5.In respect of the paragraph numbered "3 & 4" in J P O'Neill's letter dated 9 December 2010 I disagree with the following:
a.the allegation that I "needed to" attend on Mrs Gulbis at her home. (As to that, please see the last paragraph of my letter dated 20/11/2010 to your office)
b.the allegation that "To suggest that doing work in relation to the estate was for Mrs Gulbis' benefit is incorrect". (Mrs Gulbis is the sole beneficiary of the estate. Accordingly, all work done in relation to the estate was done solely for Mrs Gulbis' benefit - excepting, of course, any work which was done, but should not have been done. No such work has been identified.)
c.the partially implied allegation that establishing the extent of the estate was solely the obligation of the executor. (Mrs Gulbis herself could have sought legal advice to ascertain the extent, if any, of her late husband's estate. She was never bound to rely solely upon the executor's view - even if she had sought it - on that issue. The fact that she did not seek such legal advice from me in my capacity as a solicitor has been conceded by J P O'Neill at item 1 in their letter dated 9/12/2010 to your Office.)
d.the allegation that "the preparation and lodgement of the notice of death" was done by me as Mrs Gulbis' solicitor. (I did that preparation and that lodgement in my capacity as the executor of the estate.)
6.I, as executor, made a return trip between my residence and Mrs Gulbis' residence after she had made repeated requests that I do so and after she had declined to mail to me the CT and other documents relating to the estate. If that 8-hour trip and its associated expenses have been wasted, the waste has occurred only because of the attitude which Mrs Gulbis adopted. Does Mrs Gulbis assert that she is entitled to waste other people's valuable time with disdain?
7.I am not aware of any authority which supports such an assertion and, accordingly, do not agree with the assertion. Are you suggesting that an executor is entitled to reimbursement of expenses (in this case registration fees, etc paid in respect of the Notice of Death) incurred before a grant of probate, but not to compensation for time/effort spent before a grant of probate, or are you in fact suggesting that an executor is not even entitled to reimbursement of expenses if probate has not been granted? Why should one be allowed, but not the other?"
26The Applicant concluded his letter of 20 December with this paragraph:
"If, for the sake of argument, one were to accept (which I do not) that I acted as Mrs Gulbis' solicitor for the purpose of preparing and lodging with LPI, NSW a Notice of Death and its ancillary documents then in my view it would be a part of that same argument that, in order to give effect to that purpose, it was necessary for me to travel to and attend upon Mrs Gulbis at Bankstown to collect the CT (which she had declined to mail to me and without which the relevant purpose could not be effected). Thence, on the one hand, if a costs disclosure was necessary but not been made, the solicitor would not thereby be disentitled from recovering his costs, but would merely have to undergo an assessment of those costs [s. 317(1)], would have to bear the costs of that assessment [s. 369(3)(a)] and might, but need not necessarily, have those costs reduced [s. 317(4)]. In such a case a solicitor, when preparing an itemized bill for the assessment, would not be bound by any lump sum or "say" bill, but could claim for all of his work at his usual rates (e.g. 8 hours x $400/hour = $3,200). However, on the other hand, if costs disclosure was not necessary (e.g. under s. 312(l)(a)), the solicitor would be entitled to recover, without undergoing any assessment, as much as $750.00 plus GST thereon (a total of &825.00) plus all proper disbursements. I submit that the amount which I have been seeking is, in effect, a very reasonable amount somewhere between the two extremes which might result if I had in fact been acting as Mrs Gulbis' solicitor "to arrange for registration of a Notice of Death"."
27There followed further correspondence between the Applicant and the Respondent and between the Respondent and Mr O'Neill.
28On 11 February 2011, the Respondent wrote to the Applicant again and under the heading "Status of the Investigation of this complaint" said:
"The complainant, Ms Gulbis, lodged a complaint through her solicitors J. P. O'Neill solicitors, on 20 October 2010, seeking the assistance of this office "in obtaining our client's certificate of title to the property from her former solicitor Mr Strikis".
There has been significant correspondence between this office and the parties on, among, other matters, whether you were acting as a solicitor and not simply as an executor, and if so, what was the work you carried out as a solicitor.
By letter dated 6 January 2011, this office invited you to forward the certificate of title if your view was still that you were exercising a possessory lien over the document in your capacity as an executor, in circumstances where it did not appear that an executor had a right to claim a lien over documents.
In particular, I note that the certificate of title most likely is owned by Mrs Gulbis, rather than forming part of the estate, by virtue of survivorship principles.
By letter dated 16 January you declined do so.
It has become apparent during the course of this investigation that the allegations made by the complainant about your conduct include, on the assumption that you were acting as a solicitor, an allegation that you failed to make a costs disclosure, that you overcharged the complainant for the preparation and lodgement of the notice of death, and that you were negligent by delaying the preparation and lodgement of the notice of death.
The Commissioner proposes pursuant to section 534(1 )(a) of the Act to expand the investigation by also considering these allegations.
Further allegations
The further allegations that this office will investigate are as follows:
1.Second allegation: That you failed to make costs disclosure of your costs in preparing and lodging the notice of death as required by the Legal Profession Act 2004.
2.Third allegation: That you grossly overcharged Mrs Gulbis for the preparation and lodgement of the notice of death.
3.Fourth allegation: That you were negligent by delaying the preparation and lodgement of the notice of death
For completeness, I confirm that the allegation this office has been investigating to date is whether you are entitled to claim a lien over the certificate of title.
In relation to the second allegation, I note that there is no dispute that you failed to make costs disclosure to Mrs Gulbis.
I note your position that you were not obliged to make costs disclosure as you were acting as an executor when you prepared and lodged the notice of death.
As the parties have already made submissions on this issue, I invite you to provide (sic, me) with any further submissions you wish to make on this allegation.
In relation to the third allegation, I note that Mrs Gulbis requested an itemized account of the $1,772.50, but you had declined to provide a break down.
In your email dated 28 July 2010 to Mr O'Neill, you identified $1,650 as the costs component of your claim. Please identify for me the component of $1,650 that covers the preparation and lodgement of the notice of death."
29The Applicant provided a lengthy reply on 6 March. The letter was largely polemical and added little if anything to what he had previously said. The Respondent's subsequent letter of 14 March 2011 stated the law in relation to executors liens and referred to a number of cases summarising the position thus:
"In summary, you would not be able to exercise a lien as an executor for your work in preparing and lodging the notice of death on behalf of Mrs Gulbis because:
1.There is no amount due and payable, regardless of the applicability (sic) in the requirements of the Probate and Administration Act 1898.
2.You are purporting to exercise a lien over Mrs Gulbis' property, which is property that has never formed part of the estate; and
3.an executor does not have a right to exercise a lien over property for remuneration at law."
30The letter of 14 March formally called upon the Applicant to forward to the Respondent the relevant Certificate of Title and the death certificate of Mr Gulbis.
31In what seems to us to be a rather significant change in his position, the Applicant's next letter dated 20 March 2011 said:
"I disagree with your assertion (on the second page of your letter) that "payment is not due". It has been admitted by the complainant (see item 1.1 on the front page of J P O'Neill's 8 February 2011 letter to your Office) that Mrs Gulbis asked me to "fix everything up". I have done what I was asked. I am entitled to be reimbursed for my expenses and to be paid for my work in doing what I was asked. The fact that no specific sum was agreed between Mrs Gulbis and me before I did the necessary work is neither here nor there. Mrs Gulbis did not expect, and had no reason to expect, that I would do the work, which she was requesting that I do, without me passing on the associated expenses and charging for my time and efforts. Whether or not other bases for payment may be applied, I am entitled to be paid a quantum meruit. A payment is due.
The payment was demanded in my e-mail of 28 July 2010. I do not see that it makes any difference whether it was a demand or a mere request, but I submit that the words which were used (indicating that the C.T. would not be released until the payment was received) clearly do not convey a mere request.
I am not claiming any payment from any beneficiary. I am claiming payment, including reimbursement of expenses, from the person at whose request I performed the work and incurred the expenses.
I deny your assertion that I "did not enter into a contract with ... Mrs Gulbis". Mrs Gulbis requested/offered that I "fix everything up" and I not only accepted that offer/request, but have fully performed my side of the bargain.
In view of your purported reliance upon the decision of the High Court of Australia in Hewitt v Court [1983] HCA 7, I draw your attention to paragraph 7 and the opening sentences of paragraph 15 of the judgment of Chief Justice Gibbs in that case. Those passages are set out below and in them I have bolded the presently relevant argument.
7.Equitable lien does not depend either upon contract or upon possession. It arises by operation of law, under a doctrine of equity "as part of a scheme of equitable adjustment of mutual rights and obligations"; those words of Isaacs J. were used in Davies v. Littlejohn [1923] HCA 64; (1923) 34 CLR 174, atp 185, in relation to the doctrine of vendor's lien, but they have a general application. It would be difficult, if not impossible, to state a general principle which would cover the diversity of cases in which an equitable lien has been held to be created. A vendor's lien for unpaid purchase money has been said to be founded on the principle that "a person, having got the estate of another, shall not, as between them, keep it, and not pay the consideration": Mackreth v. Symmons [1808] EngR 393; (1808) 15 Ves 329, at p 340 [1808] EngR 393; (33 ER 778, at p 782). The lien of a purchaser for the purchase money that he has paid to the vendor on a sale that has gone off through no fault of the purchaser may perhaps rest on the converse principle that he who has agreed to convey property in return for a purchase price will not be allowed to keep the price if he fails to make the conveyance. At all events, the rule has been said to be founded on "solid and substantial justice": Rose v. Watson [1864] EngR 300; (1864) 10 HLC 672, at p 684 [1864] EngR 300; (11 ER 1187, at p 1192). In each of these cases the vendor or the purchaser, as the case may be, is treated as a secured creditor (cf. Combe v. Lord Swaythling (1947) Ch 625, atp 628) - the lien is the security for the money which is justly due. In other circumstances an equitable lien may arise because of the relationship that exists between the parties (e.g., that of partnership, or trustee and beneficiary or solicitor and client) or by reason of subrogation or estoppel. Cases of this kind, which will be found discussed in the textbooks (see Sykes, Law of Securities, 3rd ed. (1978), pp. 164-167; Ashburner on Mortgages, 2nd ed. (1911), pp. 112-125; and Halsbury's Laws of England, 4th ed., vol. 28, pars. 566-573), do not closely resemble the present, but their existence shows that the rules governing the circumstances in which equity has considered that justice requires the recognition of the existence of a lien are not confined to one narrow category. Indeed, as Professor Sykes suggests (op. cit., p. 164), the list may not be a closed one. (at p 646)
15.The fact that there is no authority precisely in point does not mean that in the present circumstances no lien can arise. The rules of equity are not so rigid and inflexible that it is necessary to discover precise authority in favour of the existence of a lien before one can be held to have been created. I do not of course intend to suggest that the courts may proceed on general notions of justice without regard to settled principles.
32The Applicant's letter concluded:
"It simply is not just and equitable that Mrs Gulbis, having required me to spend hours travelling to and from her home and to spend additional time and effort interviewing her at her home, as well as having expressly asked me to "fix everything up", should, now that I have done everything she asked, receive the new certificate of title (a document which came into existence only because of the time and effort which I spent!) without me being compensated for my time and efforts, nor even for the expenses which I incurred in complying with her request.
I remain of the view that I have a valid lien."
33The Respondent wrote to the Applicant on 11 April 2011 stating as a preliminary view that the evidence substantiated two allegations, namely:
1.Allegation 1: You are not entitled to exercise a lien over the current certificate of title relating to property at 10 Dutton Street, Blacktown NSW or the certificate of death for Mr Gulbis.
2.Allegation 2: You failed to make costs disclosure of your costs in preparing and lodging the notice of death as required by the Legal Profession Act 2004."
34The letter provided detailed reasoning for the Respondent's preliminary view including, that on the evidence there was an implied retainer between the Applicant and Mrs Gulbis in respect of the preparation, execution and registration of the Notice of Death, but that the Applicant had no entitlement to a lien over the Certificate of Title as against Mrs Gulbis as no amount was due by her to him. The reasoning points out, in effect, that the Applicant's email of 28 July 2010 could not have created and, indeed, did not purport to create any obligation on the part of Mrs Gulbis.
35Seeming to shift his position once more, the Applicant wrote to the Respondent on 15 April stating inter alia:
"It now seems, upon closer consideration, that the capacity in which I did for Mrs Gulbis what she had expressly requested should properly be characterized as neither solicitor nor executor. Nevertheless, my consistent position that I did not do the work as a solicitor has not changed.
In my view the decision in Hewitt v. Court still supports my claim to a lien, whatever may have been the true capacity in which I did for Mrs Gulbis what she requested of me. The idea that Mrs Gulbis should get from me, without remunerating my efforts and without reimbursing my expenses, the benefit of that which I did at her express request is completely inconsistent with "solid and substantial justice."
36More correspondence between the parties ensued but, in our opinion, so far as the Applicant was concerned he did little more than re-state his previous contentions.
37On 22 July 2011, the Respondent in a lengthy letter conveyed to the Applicant his decision on the complaints made on behalf of Mrs Gulbis. He found, for reasons given, that the Applicant was not entitled to exercise a lien over the Certificate of Title, either in his capacity as executor or as solicitor for Mrs Gulbis and that he had failed to make a costs disclosure to Mrs Gulbis. He concluded that these matters created a reasonable likelihood that the Tribunal would find the Applicant guilty of unsatisfactory professional conduct. He invited the Applicant to make submissions as to whether he should be dealt with under s 540 of the Act, which, as we have earlier indicated is what eventually occurred.
38At the hearing before us, the Applicant appeared in person. The Respondent was represented by Ms C Webster of counsel. As all the relevant law had, as it seems to us, been canvassed in the voluminous correspondence between the parties, much of which we have referred to, it is unnecessary for us to make reference to the oral argument. It clarified but added nothing new to the material already before us.
39In our opinion, it is clear that the Applicant had, and presently has, no entitlement to recover anything for work done in his capacity as executor named in the will of Mr Gulbis. This is so because such an entitlement depends upon either a provision in the will or an order of the Court pursuant to s.86 of the Probate and Administration Act.
40We agree with the Respondent that a proper conclusion from the evidence is that the Applicant was retained by Mrs Gulbis "to fix it", meaning to do or assist her in doing what needed to be done in order to transfer into her name the jointly held assets, which apparently (apart from clothing and personal effects) were the only assets owned by Mr Gulbis. In other words, he was to act as her solicitor in these matters.
41In accepting the retainer, the Applicant had an obligation to comply with the disclosure provisions of ss 309 and 311 of the Act which, as is common ground, he failed to do. In the absence of such compliance no sum is recoverable by the Applicant from Mrs Gulbis even if, contrary to its form and the Applicant's own assertions, the email of 28 July 2010 is regarded as an account or tax invoice rendered by the Applicant to Mrs Gulbis.
42We now turn to consider whether the Applicant is, or was, entitled to a lien over the Certificate of Title. The property referred to in the Certificate of Title was not an asset in Mr Gulbis' estate, his interest had passed by survivorship to Mrs Gulbis immediately upon his death. Accordingly, he did not at any time hold the Certificate of Title in his capacity as an executor. That being so there is no basis upon which he could assert entitlement to a lien in respect of monies due to him for the performance of his executorial duties. In our view, the cases quoted by the Applicant in relation to the creation of equitable liens simply have no relevance to this case.
43Upon the basis that a solicitor and client relationship existed between the Applicant and Mrs Gulbis, we come to consider whether the Applicant was entitled to a lien over the Certificate of Title in her name. A solicitor is entitled to a retaining or general lien over documents belonging to his client that have lawfully come into his possession in his capacity as the client's solicitor until all his costs and charges have been paid (Leeper v Primary Producers Bank of Australia [1935] 53 CLR 250 and Johns v Law Society of NSW [1982] 2 NSWLR 1 at 18-19 per Hope JA)
44The Respondent in rejecting the Applicant's claim to be entitled to a lien did so on two grounds, namely that Mrs Gulbis did not know and had no means of ascertaining the amount required to satisfy the lien and, secondly, that the lien was claimed for the wrong reason. These propositions may be derived from Automobile and General Finance v Cowley- Cooper 49 (1948) SR 31 per Street J at 37 where his Honour, with approval, quoted from the judgment of Scrutton LJ in Albermarle Supply Company v Hind and Co (1928) 1 KB 307 at 318:
"A person claiming a lien must either claim it for a definite amount, or give the owner particulars from which he himself can calculate the amount for which a lien is due. The owner must then in the absence of express agreement tender an amount covering the lien really existing. If he does not, unless excused, he has no answer to a claim of lien. He may be excused from tendering (1) if he has no knowledge or means of knowledge of the right amount; (2) if the person claiming-the lien for a wrong cause or amount makes it clear that he will not release the goods unless his full claim is satisfied, and that claim is wrongful. The fact that the claim is made for more than the right amount does not matter unless the claimant gives no particulars from which the right amount can be calculated, or makes it clear that he insists on the full amount of the right claimed."
45In White v Bini [2003] FCA 669, Finkelstein J was required to consider whether a solicitor's lien extended to costs incurred by the solicitor in seeking to maintain the lien. His Honour held that it did not, on the basis that the lien extended only to debts owed to him in the character of attorney. To the contrary as Finkelstein J held the solicitor was claiming the benefit of a lien for costs which were for his own benefit as an adverse party to his client. His Honour went on to say:
"There is another basis for rejecting Mr Bini's lien. It is trite law that a lien will be lost if it is claimed for the wrong cause
or the wrong amount: Automobile & General Finance Co Ltd v Cowley-Cooper (1948) 49 SR (NSW) 31. A lien will also
be lost if a person claims it for two debts (one due and one not due) and intimates that he will not part with possession unless
both debts are satisfied: Jones v Tarleton (1842) 152 ER 285; Kerford v Mondel (1859) 28 LJ (Ex) 303."
46Finkelstein J then proceeded to quote the words of Scrutton LJ set forth above before observing:
"The evidence in this case indicates that the trustees were always willing to pay Mr Bini's costs of the conveyancing transaction. Mr Bini insisted, however, that he would only release the file if both his conveyancing costs and the costs incurred by him following the order substituting the trustees were paid. Mr Bini's refusal to release the file by claiming a lien for a wrong cause (the costs incurred following the removal of the trustee) is sufficient to extinguish his lien."
47Although there is authority to the effect that a lien may be upheld despite the fact that a bill of costs has not been rendered, provided the work has been performed (Re Cao [1996] ANZ Com R 321), this is not such a case. Here, in our view, the Applicant was wrongly seeking to extend his lien to costs and expenses payable to him in his capacity as an executor and wrongly seeking to extend the lien to a sum beyond that properly payable to him as solicitor for Mrs Gulbis.
48The dicta of Finkelstein quoted above was written in a factual situation which we regard as indistinguishable from the present case. Moreover, it accords with well-established authority. We believe we are bound to follow it and to hold that any lien which the Applicant possessed in relation to the Certificate of Title was lost when he sought to maintain it improperly, in respect of costs and expenses due to him as executor named in the will.
49Accordingly, we uphold the factual findings of the Respondent adverse to the Applicant although we observe that the Applicant remains entitled to negotiate with Mrs Gulbis for payment of his costs and disbursements for acting on her behalf and, in default of agreement, he remains entitled to have such costs and disbursements assessed for payment. We also uphold the Respondent's conclusion that, on the facts as found by him, there is a reasonable likelihood that the Applicant would be found by the Tribunal to have engaged in unsatisfactory professional conduct, stopping short of professional misconduct. By the terms of the statute itself, failure to comply with the costs disclosure obligations is capable of constituting unsatisfactory professional conduct or professional misconduct. In our opinion, the act of a solicitor in seeking improperly to maintain a lien over his client's property, in circumstances such as the present, is also capable of amounting to unsatisfactory professional conduct.
50The orders for compensation made by the Respondent pursuant to s 540(2) of the Act rely on Part 4.9 of the Act. Section 571 of that part provides:
"Compensation orders
(1) A compensation order is an order, made in respect of a complaint against an Australian legal practitioner, to compensate the aggrieved person for loss suffered because of conduct that is the subject of the complaint.
(2) A compensation order consists of one or more of the following:
(a) an order that the practitioner cannot recover or must repay the whole or a specified part of the amount charged to the aggrieved person by the practitioner in respect of specified legal services,
(b) an order discharging a lien possessed by the practitioner in respect of a specified document or class of documents,
(c) an order that the practitioner pay to the aggrieved person, by way of monetary compensation for the loss, a specified amount.
(3) A compensation order under subsection (2) (a) preventing recovery of an amount is effective even if proceedings to recover the amount (or any part of it) have been commenced by or on behalf of the practitioner.
(4) A compensation order under subsection (2) (a) requiring repayment of an amount is effective even if a court has ordered payment of the amount (or an amount of which it is part) in proceedings brought by or on behalf of the practitioner.
(5) A compensation order under subsection (2) (c) requiring payment of an amount exceeding:
(a) $25,000, except where paragraph (b) applies, or
(b) $10,000, where the order is made by:
(i) the Commissioner or a Council under section 540 (Summary conclusion of complaint procedure by caution, reprimand, compensation order or imposition of conditions) or section 573 (3) (Making of compensation orders), or
(ii) the Commissioner under section 545 (Decision of Commissioner on review),
is not to be made unless the complainant and the practitioner both consent to the order."
51In our opinion, the Respondent's order that the Applicant cannot recover the sum of $1,772.50 charged to Mrs Gulbis falls within s 571(2)(a) and the order that the Applicant pay $892 to Mrs Gulbis falls within s 571(2)(c), representing costs she incurred with her current solicitors in seeking to recover her Certificate of Title.
52 In the result, we would dismiss the application for review and confirm the orders of the Respondent under review. As the Applicant was given every opportunity by the Respondent to take a course, wiser, in our view, than the one he took and because we think his position was untenable in law, we think it fair in accordance with s.88 of the Administrative Decisions Tribunal Act that the Applicant pay the Respondent's costs of these proceedings.
53We make these orders:
1.Application for review dismissed.
2.Orders under review confirmed.
3.Applicant to pay Respondent's costs of proceedings. as agreed or assessed.