The Council of the Law Society of New South Wales v McCarron [2025] NSWCATOD 154;

(2) An order that the Respondent pay the costs of the Applicant of these proceedings.

(3) Such further or other orders as the Tribunal deems fit.

1. As the parties later entered into an Instrument of Consent, which contains the factual background, there is no purpose in reciting the grounds set out in the Application.
2. However, in brief the facts as asserted in the Application may be summarised as follows: from about 2016 onwards, the Respondent engaged in a conflict-of-interest by his conduct in connection with the sale of the properties "Homeward Bound" and "Sunnyside" in circumstances where the Respondent and his wife, were:

(i) the creditors and second mortgagees at the time of the sale of "Homeward Bound"; and/or

(ii) the mortgagees in possession exercising a power of sale with respect to the sale of Sunnyside; and/or

(iii) the mortgagees for the purchaser, D&C Partners Unit Trust in the sale of Sunnyside.

1. On 1 August 2025, the parties lodged with the Tribunal an instrument of consent signed by a representative of the Applicant and by the Respondent personally.
2. It is helpful to set out the Instrument of Consent in full, which is as follows:

Council of the Law Society of NSW v Christopher McCarron

Consent orders pursuant to section 144 of the Legal Profession Uniform Law Application Act 2014

The NSW Civil and Administrative Tribunal, having found that the conduct of the Respondent particularised in the Agreed Statement of Facts below amounts to professional misconduct, makes by consent, the following orders:

pursuant to s 299(1)(b) of the Legal Profession Uniform Law (NSVV) 2014 (Uniform Law), the Tribunal orders that the Respondent be reprimanded.

pursuant to s 302(1)(l) of the Uniform Law, the Tribunal orders that the Respondent pay a fine; and

the Respondent to pay the Applicant's costs as agreed between the parties.

1. The Respondent was admitted to the Supreme Court of NSW on 29 November 1970.

2. From 28 February 1999 to 30 June 2006, the Respondent was a Principal solicitor at Priest McCarron.

3. Between 1 July 2006 and 31 December 2011, the Respondent practised at Priest McCarron as an employed solicitor.

4. From 3 January 2012 to 29 July 2016, the Respondent was employed as a solicitor at Searson Shannon.

5. From 1 August 2016, the Respondent commenced employment at HB Legal Pty Ltd.

6. On 31 August 2021, Andrew Gartrell (Complainant) made a complaint concerning the Respondent to the Office of the Legal Services Commissioner (OLSC) (Complaint).

7. On 20 September 2021, the Complaint was referred by the OLSC to the Applicant.

8. On 12 September 2024, following its investigation, the Professional Conduct Committee of the Applicant resolved that proceedings be commenced against the Respondent in the Tribunal pursuant to s 300(1) of the Uniform Law in respect of Allegation I (as set out therein).

9. On 4 November 2024, the Respondent surrendered his practising certificate before the commencement of these proceedings on 11 March 2025.

10. The Respondent and his wife are the trustees/beneficiaries of a self-managed superannuation fund known as J & C McCarron (McCarron Fund).

11. The Complainant was at all relevant times a director of various companies in Australia, including Homeward Bound Holdings Pty Ltd (Homeward), Very Cherry Pty Ltd (Very Cherry) and Great Southern Fresh Produce (Australia) Pty Ltd (Great Southern).

12. The Complainant's wife, Mrs Angela Gartrell and Mr Elias Azzam, were both formerly directors of Homeward.

13. Homeward owned a homestead property in Nashdale NSW consisting of a parcel of land with a cherry orchard property known as "Homeward Bound" (Homeward Bound). The Complainant owned a house on or near Homeward Bound known as 'Sunnyside" (Sunnyside).

(stated here for the purpose of context only. Cannot be agreed or denied by the Respondent given they pertain to matters not within his direct knowledge)

14. Mark Smith (Mr Smith) owned several companies including DC Partners (Nominees) Pty Ltd (DC Partners) and DC Partners (Solutions) Pty Ltd (DC Solutions) and DCP Litigation Holdings Pty Ltd (DCP Litigation) which offers litigation funding and other loans.

15. Mr Smith and his wife, Lisa Smith are also Trustees of DC Partners Unit Trust (DC Trust),

16. In or around October 2016, the Complainant entered into an assignment deed assigning his rights in a variety of choses in action arising out of disputes between Homeward and various parties to DC Partners and DC Solutions (Assignment Deed). The Assignment Deed was amended on 27 March 2017, 3 October 2018 and 21 November 201 to assign the rights to DCP Litigation.

17. On or about 29 February 2016, the Complainant appointed Mr Smith as Homeward's Attorney. The document appointing Mr Smith was prepared by the Respondent and his firm at the time, Searson Shannon.

18. In 2005, the McCarron Fund loaned the Complainant/Homeward $30,000. At this time, the Complainant was not a client of the Respondent.

19. The Respondent contends that on or around this time, he assisted the Complainant, including by informing him of the existence of Stacks Managed Investments Limited (Stacks Finance) as a potential lender.

20. In 2008, the Complainant obtained an additional loan from the McCarron Fund with the Respondent and his wife as the lenders to the amount of approximately $13,000.

21. During 2008 the Complainant made no repayment on any principal or interest amount owing to the McCarron Fund.

22. On or about 11 March 2009, the Respondent wrote to the Complainant under the letterhead of Priest McCarron, confirming that the principal amount due on 11 August 2009 totalled $83,345.92.

23. On or about 12 May 2010, Homeward executed a mortgage document (AF513875) in favour of the McCarron Fund confirming a debt of $84,000 secured against Homeward Bound. The Complainant, Mrs Gartrell and Mr Azzam were all personal guarantors to the new loan.

24. On or about 19 May 2010, Homeward also executed a mortgage document (AF513874) in favour of Stacks Finance for the total loan of $930,000. The Complainant, Mrs Gartrell and Mr Azzam were all personal guarantors for $20,000 of that loan. The mortgage was secured against Homeward Bound and Sunnyside (Stacks First Mortgage).

25. Homeward also executed two other loan agreements and mortgage documents with Mr Robert Ware, Ms Janice Ware and Mr John Cole (Ware & Cole) for $150,000 and with the NSW Rural Assistance Authority (RAA) for $130,000. Both of these loans were secured by mortgages against both Homeward Bound and Sunnyside.

26. On 11 August 2011, a priority agreement was executed confirming Stacks Finance, the McCarron Fund, Cole & Ware and RAA as the first, second, third and fourth mortgagees respectively on Homeward Bound (First Priority Agreement).

27. On the same day, a second priority agreement was executed with respect to the Sunnyside property confirming that Stacks Finance, Ware & Cole and RAA were the first, second and third mortgagees respectively on the Sunnyside property (Second Priority Agreement).

28. The McCarron Fund was not a mortgagee on the Sunnyside property.

Sale of Homeward Bound, Sunnyside and other properties

29. The Respondent contends that he first commenced acting for the Complainant in November 2013 with respect to the sale of a property known as "Lot 400" or "Nancarrow Lane".

30. On or about 17 January 2014, a report was commissioned by Stacks Finance which valued Sunnyside at a market price of $500,000 and with a forced sale price of around $375,000 to $425,000.

31. The Respondent contends that from about 2015, he liaised between Stacks Finance and the Complainant to negotiate "the best possible pay out for the Complainant".

32. In or around 2015, the Complainant was in the process of selling Homeward Bound to meet his outstanding debts. At the relevant time, the Respondent and Ms Gow (a licensed conveyancer) from Searson Shannon acted for the Complainant with respect to the sale.

33. Mr Smith was acting as the Complainant's Attorney and also provided instructions to the Respondent.

34. As at 2015, Homeward Bound was mortgaged to Stacks Finance for around $900,000, to the McCarron Fund for a claimed debt of $250,000, to Ware & Cole to partially secure a debt of originally $130,000 and to the RAA for around $120,000.

35. From in or around March 2016, the Respondent (using both personal and professional email accounts) contacted Mr Cole and Mr Paul Stack (a director of Stacks Finance) about an agreement in which:

(a) Stacks Finance would execute a Contract of Sale as the mortgagee in possession for the sale of Homeward Bound;

(b) Stacks Finance would accept a payment of $650,000 from the settlement of Homeward Bound and assign its rights on the mortgages of Homeward Bound and Sunnyside on payment of the residual sum of $128,336.31 following refinance of Sunnyside;

(c) the residual of about $187,000 to the McCarron Fund (as second mortgagee) would be reloaned on the security of Sunnyside which would be achieved by Stacks Finance assigning the mortgage to the McCarron Fund (such that it would become the first mortgagee on the Sunnyside mortgage);

(d) RAA would not be part of the negotiations such that they would not receive any funds from the sale.

36. By email dated 5 April 2016 at 4:07pm, Mr Stack wrote to the Respondent with reference to his telephone conversation in which the Respondent confirmed he acted for Homeward. Furthermore, Mr Stack stated (in part):

/ refer to the writer's telephone conversation with you of today's date and note you act for Homeward Bound Holdings Pty Limited (the Company),

Your client has entered into a Contract for the sale of Land with Top fruit Australia Ply Limited on 22 February 2016 (the Contract) with settlement expected this week.

The Company has requested Stacks Managed Investments Limited (the Lender) sign a Transfer by Mortgagee under Power of Sale (the Transfer). The Company and the Lender entered into a Deed on 22 February 2016 (the Deed).

As discussed the Lender will authorise the settlement of the Contract to proceed on the basis of the following agreed terms:

The Company acknowledges that this non-monetary default has not been subsequently rectified by the Company (or the Deed) and the loan remains in default;

At the request of the Company the Lender has agreed to execute the Transfer in accordance with section 58 of the Real Property Act 1900 (the Act);

7. The Company accepts receipt of the Notice and waives all rights to complain about the nonservice or any defectiveness of the Notice;

11 On settlement, in addition to the amount owing to the Lender on I May2016 ($650,000), the Company [Homeward] has agreed to repay the residual debt of $128, 336.31 (the Residual Debt);

12. In accordance with the Deed, on receipt of payment of the Residual Debt, the Lender will assign its mortgage to the Company or as the Company directs, We would be grateful if you could confirm your client's instructions in relation to the above and advise to whom the Company would like the Lender's mortgage assigned to."

37. The Stacks Transfer Agreement was agreed by the Respondent acting as Homeward's legal representative on the same day (5 Apr11 2016).

38. The sale of Homeward Bound proceeded and it was sold under mortgagee in possession by Stacks Finance exercising a power of sale. The Respondent prepared the settlement figures as follows;

39. The Respondent acted for Homeward with respect to the sale of Homeward Bound and also acted as a representative of the McCarron Fund in its negotiations with the other creditors/mortgagees, namely, Mr Cole and Mr Stack with respect to the sale of Homeward Bound.

40. At the time of the sale of Homeward Bound, the Respondent and his wife, as trustees of the McCarron Fund, were the creditors and the second mortgagees of Homeward Bound.

41. However, as a result of negotiations, the McCarron Fund was assigned the mortgages of Homeward Bound and Sunnyside such that it became the first mortgagee to the Sunnyside property.

42. At the time of the sale of Sunnyside, Mr Smith was assisting the Complainant with litigation funding on several litigation matters involving Homeward. Mr Smith agreed to purchase Sunnyside from the McCarron Fund and then obtain refinancing in order to obtain further funding for these litigation matters.

43. Between 20 and 26 October 2016, the Respondent and Mr Smith corresponded about the terms and conditions of the sale of Sunnyside.

44. On or about 3 November 2016, the McCarron Fund, as mortgagee under possession sold Sunnyside to DC Partners for the sum of $250,000 and the McCarron Fund also became the registered mortgagee of Sunnyside as it executed a mortgage loan document with DC Trust.

GROUND ONE - the Respondent engaged in professional misconduct by acting in a conflict of interest

45. From about 2016 onwards, the Respondent engaged in a conflict of interest by his conduct in connection with the sale of the properties 'Homeward Bound' and 'Sunnyside' in circumstances where the Respondent and his wife, were:

(a) the creditors and second mortgagees at the time of the sale of 'Homeward Bound'; and/or

(b) he mortgagees in possession exercising a power of sale with respect to the sale of Sunnyside; and/or

(c) the mortgagees for the purchaser, DC Partners Unit Trust, in the sale of " Sunnyside".

the mortgagees for the purchaser, DC Partners Unit Trust, in the sale of 'Sunnyside.'

Chloe Ellis, Solicitor for the Applicant, On behalf of the Applicant

1. The Application came before us for hearing on 23 October 2025 when the following evidence, in addition to the Instrument of Consent, was tendered:

(1) Affidavit of Valerie Anne Griswold affirmed on 16th April 2025 together with the exhibits referred to in that affidavit (marked Exhibit A) - tendered by the Applicant.

(2) Affidavit of the Respondent affirmed on 28 August 2025 together with annexures referred to in that affidavit (marked Exhibit 1) tendered by the Respondent.

(3) Letter dated 21 November 2023, from HB Legal to the Respondent (marked Exhibit B) - tendered by the Applicant.

The affidavits were received without objection and the deponents were not required for cross-examination.

1. During the course of the hearing Counsel for the Respondent made an application that the Respondent's name and other identifying facts remain confidential. We will revert to that matter subsequently in these reasons. At the conclusion of the hearing when we stated that our decision would be reserved, we indicated to the parties that our tentative view was that that Application for confidentiality should be dismissed.

1. There is no need to refer to the evidence contained in the affidavit of Ms Griswold (Exhibit A) having regard to the Agreed Statement of Facts contained within the Instrument of Consent other than to say that we are comfortably satisfied that the Agreed Statement of Facts accurately records the salient facts relevant to these proceedings.
2. However, it is of relevance (particularly in relation to the proposed protective orders) to make reference to some of the facts contained in the affidavit of the Respondent (Exhibit 1). The facts to which we refer are the following:

(1) The Respondent was admitted as a solicitor in 1970 and has been in practice for over 50 years.

(2) The Respondent acknowledges that by acting for the complainant in 2016 he had a conflict of interest and that he "stupidly believed that by following instructions" he could wear "two hats". He deeply regrets that decision.

(3) The affidavit states that he has no intention of ever seeking to reapply for admission. As we state elsewhere in these reasons, he has now given an undertaking not to reapply.

(4) The Respondent is currently 82 years of age and on the full age pension. The affidavit states that he jointly owns his home with his wife and that his other assets are insubstantial. He earns a salary of $180 per week (a matter to which we will return later). We were informed that his Senior Counsel and solicitor were acting on a pro bono basis.

(5) The affidavit describes how the error of acting in a conflict-of-interest situation has caused detriment to his family, friends and others. These proceedings have also affected him financially, as well as having an effect on his physical and mental health.

(6) The affidavit sets out a summary of services he has provided to his community over many years. These include to churches, charities and other institutions involved in public service.

(7) The affidavit attaches five references. Three are from solicitors, one from a retired member of Parliament, one from a real estate agent and one from a client. The former member of Parliament was also a client. All referees speak very highly of the Respondent referring to his professionalism and compassion, honesty and integrity, and willingness to assist others.

1. It is also relevant to refer to Exhibit B which is a letter from HB Legal dated 21 November 2023 recording that the Respondent is employed by that firm of lawyers as a consultant. By the letter, the Respondent is required to work part-time (five hours per week) for an annual salary of $15,600. The nature of the Respondent's work is described in a schedule to the letter. The schedule states that the Respondent's duties are to encourage clients to give or continue to give instructions to the firm and to encourage "referrers" to give or continue to refer potential clients to the firm. The duties, include being available to discuss legal issues and strategies.
2. We do not express a view as to whether the activities described in the letter can coexist with the fact that the Respondent no longer has a practising certificate and has undertaken not to apply for one. Whether the Respondent may continue to perform the duties described in the letter consistently with the fact that he no longer has a practising certificate is a matter for the Respondent and for HB Legal to consider.
3. We will now turn to the submissions of each of the parties.

1. The Applicant submits (and we agree) that, notwithstanding the Respondent's consent to the proposed orders, the Tribunal must be independently satisfied that the conduct described in the Agreed Statement of Facts occurred, that it amounted to professional misconduct and that it is appropriate to make the orders sought: Council of the Law Society of New South Wales v Clarke [2022] NSWCA 57 at [8].
2. The Application arises from a complaint dated 31 August 2021 made by Andrew Gartrell to the Office the New South Wales Legal Services Commissioner (OLSC) in relation to the Respondent's conduct in connection with the sale of particular properties from 2016 onwards (the Complaint). The complaint was referred by the OLSC to the Applicant.
3. On 4 November 2024, the Respondent surrendered his practising certificate before the commencement of these proceedings on 11 March 2025.
4. We interpose here to record that during the hearing the Respondent through his counsel gave an undertaking to the Tribunal not to make an application for a practising certificate.
5. The Applicant's submissions record that it is not in dispute that the Respondent acted for Homeward Bound Holdings Pty Ltd (Homeward) and the complainant in circumstances where he was also the second mortgagee and creditor. We add that the creditor was the Respondent and his wife as trustees and beneficiaries of a self-managed superannuation fund (termed the McCarron Fund).
6. The factual matters are set out in detail in the Instrument of Consent. However, in summary, the Homeward Bound sale proceeded in circumstances where the Respondent, acting as the legal representative for Homeward Bound negotiated the sale of that property with the first mortgagee on terms which included the McCarron Fund becoming the first mortgagee (by assignment from the outgoing first mortgagee) of the Sunnyside property.
7. In November 2016, the McCarron Fund as mortgagee in possession sold Sunnyside to DC Trust, and the McCarron Fund also became the registered mortgagee of Sunnyside executing a mortgage loan with DC Trust.
8. The Applicant's submissions state that it is a well-established principle that a solicitor must not act for a client when there is a conflict between serving the client's best interests and the solicitor's own interest: rule 12 of the Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015. As stated by the High Court in Maguire v Makaronis [1997] HCA 23; (1997) 188 CLR 449 there is an inherent conflict of interest between a mortgagor and mortgagee considering that the interest of a mortgagor is to obtain the lowest interest rate on the loan and the interest of a mortgagee is to obtain the highest return on the loan. Similar conflicts exist between a debtor/creditor. The Applicant submits that such conflicts mean that a legal practitioner's loyalty had not remained undivided, with the result that it could not discharge its duties to the clients unless informed consent had been obtained by way of independent legal advice.
9. As the Instrument of Consent records, the complainant was in default of the McCarron Fund loan, and interest had accrued to the sum of about $250,000 over the period of 10 years (2005-2015). When it became clear that the complainant was experiencing financial distress requiring him to sell the mortgaged security, the Respondent acted for the complainant in the sale of Homeward Bound in disregard of his competing interest in the property as second mortgagee and creditor.
10. The submissions go on to state that the Respondent denied that he had received any benefit from his involvement with the sale of the two properties but it is clear that he used his dual position as the complainant's legal representative and as the creditor to negotiate with other creditors an alternative arrangement resulting in the benefit of an assignment of the Sunnyside mortgage, a property that he would not otherwise have had security over.
11. The submissions go on to state that a further benefit obtained by the Respondent as a result of the agreement reached with the first mortgagee of Sunnyside was that the Respondent and his wife were able to exercise the power of sale selling Sunnyside and to execute and register a new mortgage with the purchaser of that property (Mr Smith).
12. The Applicant submits that, contrary to the Respondent's submission that he did not receive a benefit, the Tribunal may properly form the view that the conduct of the Respondent stemming from the sale of Homeward amounted to a serious conflict of interests.
13. The Applicant's submissions refer to the well-known and unarguable proposition that the relationship between client and solicitor is one of the most important fiduciary relationships known to the law. Conduct involving conflicts of interest may amount to professional misconduct: see Law Society of New South Wales v Harvey [1976] 2 NSWLR 154. In Harvey the solicitor had interests in companies where the client had provided loans, the Court of Appeal held that the solicitor had "deliberately and for his own benefit, caused the affairs of his clients to be intermingled with his affairs and that, while supposedly acting for them, he grossly preferred his own interests to those of his clients". The court held that the conduct amounted to gross abuse of trust by the solicitor which justified a finding of professional misconduct.
14. The Applicant's submissions deal with the standard of proof and with the definition of professional misconduct. So far as the standard of proof is concerned, the Applicant submits that it is necessary for the Tribunal to be satisfied to the standard described in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 that the Respondent engaged in the alleged conduct, and that the alleged conduct amounts to professional misconduct.
15. The expression "professional misconduct" is defined in s 297 of the Uniform Law to include "unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence" and "conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice".
16. The submissions of the Applicant refer to s 297(2) of the Uniform Law which provides that the Tribunal may have regard, when determining whether conduct constitutes professional misconduct pursuant to s 297(1)(b) to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate. These matters are set out in r 13 of the Legal Profession Uniform General Rules 2015.
17. Rule 13(1)(a) provides that the Tribunal may consider whether the Respondent is currently of good fame and character. That consideration has a twofold aspect, fame referring to a person's reputation in the relevant community, and character as to the person's actual nature (see Prothonotary v Gregory [2017] NSWCA 101 at [25]).
18. Section 298 of the Uniform Law identifies certain conduct that, of itself, may constitute professional misconduct (or unsatisfactory professional conduct). Section 298(b) provides that conduct contravening the Uniform Rules is conduct that is capable of constituting professional misconduct (or unsatisfactory professional conduct) for the purposes of ss 296 or 297 of the Uniform Law.
19. The Applicant submits that when an assessment is made of the Respondent's conduct, the Tribunal would be comfortably satisfied that it is of such seriousness as to justify a finding of professional misconduct.
20. The Applicant's submissions go on to deal with the statutory power of the Tribunal to make orders having made a finding of professional misconduct. That power is conferred by s 302(1) of the Uniform Law. The matters for consideration which apply to the formulation of appropriate protective orders are summarised in Law Society of New South Wales v Maharaj [2017] NSWCATOD 79 at [24] which may be summarised as follows:

(1) The gravity of the misconduct.

(2) The deterrent effect of any protective order on the further conduct of the practitioner.

(3) The deterrent effect of any protective order on the conduct of other practitioners.

(4) The enhancement of confidence in the public in the integrity of the profession.

1. However, it is uncontroversial that the jurisdiction of the Tribunal is protective, not punitive: Law Society of New South Wales v Bannister [1993] NSWCA 157.
2. The Applicant submits that it is appropriate for the Tribunal to make an order issuing the Respondent with a reprimand and an order requiring him to pay a fine. The submissions state that it would be appropriate for the Respondent to be issued with a reprimand as such order would protect the public by:

(1) Publicly marking the seriousness and appropriately reflecting the Tribunal's disapprobation of the Respondent's conduct.

(2) Identifying professional standards, the establishment and maintenance. of which protect the public.

(3) Deterring other practitioners from behaving in a similar manner.

(4) Maintaining and promoting public confidence in the integrity of the legal profession in New South Wales.

1. The Applicant also submits that it would be appropriate for the Tribunal to impose a fine on the Respondent. The element of deterrence (both of the Respondent and the professional generally) constitutes an assurance to the public that serious lapses in the conduct of legal practitioners will not be passed over or likely put aside but will be dealt with appropriately. The fine to be imposed must convey to the legal profession and to the community in general that the Respondent's conduct identified in the instrument of consent is unacceptable.
2. The maximum fine that the Tribunal may require a person found guilty of professional misconduct to pay is $100,000: s 302(12)(l) of the Uniform Law. However, noting the Respondent's financial circumstances as set out in his affidavit affirmed on 28 August 2025, the Applicant submits that it would still be appropriate for the Tribunal to make an order requiring the Respondent to pay a fine, as the imposition of a fine would appropriately reflect the seriousness of the conduct while having a deterrent effect and is appropriate when viewed in the context of also reprimanding the Respondent. The Applicant submits that a fine of $3,000 is appropriate in the current circumstances, given the seriousness of the conduct and taking into account the Respondent's financial circumstances.
3. The Applicant's submissions go on to deal with the subject of costs, relevantly, cl 23 of sch 5 to the NCAT Act which provides that the Tribunal must make orders requiring a Respondent lawyer whom it has found to have engaged in professional misconduct (or unsatisfactory professional conduct) to pay costs unless the Tribunal is satisfied that exceptional circumstances exist. The Applicant submits that there are no exceptional circumstances in this case. Therefore, the Tribunal, if it determines that the Respondent is guilty of professional misconduct should make an order for costs against the Respondent. The Applicant advises that, subject to the Tribunal making an order for costs against the Respondent as proposed in the Instrument of Consent, the parties have agreed that the amount the Respondent will pay the Applicant is $27,000.

1. In the following paragraphs we summarise the submissions of the Respondent.
2. The Respondent's submissions make it clear that the Respondent does not resile from the consent orders or the Agreed Statement of Facts. However, the Respondent is entitled to and makes submissions concerning the seriousness of the conduct of the Respondent and extenuating circumstances.
3. The Respondent submits that he was not guilty of any "intermingling" of funds or of the affairs of the parties as submitted by the Applicant. The conduct of the Respondent is different from the conduct described in Harvey where client monies were not only mixed with the monies of the solicitor but the clients were investing in companies owned by the solicitor. Here, the debtor/creditor relationship was established well before the solicitor/client relationship took place and at no stage were either the monies or the affairs of the parties mixed or intermingled.
4. We interpose here to say that in our view, it was not part of the Applicant's case that the Respondent mixed funds of the Respondent with those of the Respondent's clients.
5. The Respondent's submissions state that intermingling of "affairs" contains the connotation of the mixing of an entity or enterprise of the solicitor with the funds, entity or enterprise of the client. This submission emphasises that there was no such mingling or mixing of affairs in this case. The relationship of debtor/creditor predated the impugned sales by many years. The Respondent's submissions state that the impugned sales themselves reflected the Respondent endeavouring to act in the best interests of the complainant who was insolvent and in the hands of his creditors, (particularly the first mortgagee).
6. The Respondent's submissions also state that it is important for the Tribunal to consider the context of the Respondent's relationship with the client. The relationship of the lender/borrower commenced in 2005 preceding the relationship of solicitor/client between the parties by seven years, until the Respondent first commenced acting for the complainant in November 2013 and thereafter.
7. The Respondent submits that in 2013 Stacks Finance, as first mortgagee of both relevant properties, was in complete control of the situation and, as such, able to dictate the manner in which both sales proceeded. Thus, the impugned sales were outside the control of both the complainant and the Respondent.
8. The submissions of the Respondent state that between 2005 and 2016 no payments had been made by the complainant on all the mortgages over both properties. It is submitted that the Respondent had the intention to get the best outcome for all involved (including the complainant). The impugned sales occurred in 2016 and it was not until 31 August 2021 that the complaint was made.
9. The Respondent submits that the impugned sales and the events of 2016 should not be looked at in isolation, but in the context of a series of complex ongoing relationships dating back to 2005, which were designed to achieve the best possible outcome for the complainant who, at all relevant times, was insolvent.
10. The submissions go on to deal with what is submitted to be extenuating circumstances in mitigation of the seriousness of the allegation.
11. The Respondent submits that in this case:

(1) There was no personal dishonesty alleged - unlike Harvey.

(2) There is no present or continuing threat to the public because the Respondent resigned as a solicitor at least four months before these proceedings were commenced (and has since given an undertaking not to apply for a fresh practising certificate).

(3) The insight and contrition of the Respondent are demonstrated by his letter of apology dated 30 October 2024 and the unconditional surrender of his practising certificate in November 2024.

(4) More serious complaints involving allegations of dishonesty were closed by the Applicant in September 2024.

(5) The Respondent has at all times cooperated with the Applicant at considerable time and cost and at the expense of his physical and mental health and well-being.

(6) The complaint was not lodged until five years after the impugned sales and since then it has taken four years to reach the Tribunal, through no fault of the Respondent.

1. The submissions go onto make application that the identity of the Respondent be suppressed. The basis for that application is that there is no continuing threat posed by the Respondent to the public. The public interest in publishing the identity of the Respondent is outweighed by other factors. The Respondent was in practice for over 50 years with an extensive record of service to the profession, his clients and the community. The purpose of educating the profession to avoid this type of conduct can be achieved without identifying him. The Respondent submits that the Tribunal should make an order suppressing the name of the Respondent and any information that may result in his identification as not being necessary in the public interest and more punitive than educational or protective.
2. The submissions make specific reference to the Respondent's affidavit, including the references attached to the affidavit. We have already summarised that evidence.

1. We are comfortably satisfied that the Agreed Statement of Facts, as set out in the Instrument of Consent fairly and accurately describe the matters giving rise to the Applicant bringing these proceedings on the basis that the Respondent has been engaged in acting for a client or clients whilst having a conflict of interests.
2. We agree with the submissions of the Applicant that the Respondent breached his obligations as a fiduciary by acting both for a client, whilst at the same time representing his own interests in the same transactions. We agree with the Applicant's characterisation of the conduct of the Respondent, namely that the Respondent's amounted to a serious conflict of interests.
3. Accordingly, we are comfortably satisfied that the Respondent's conduct amounts to professional misconduct.
4. We now turn to the question of what protective orders should be made and, in particular, whether the proposed consensual orders should be made. As the Respondent's submissions state a number of matters should be considering when determining the nature of the appropriate protective orders.
5. The first consideration is the gravity of the misconduct. There is no doubt that the conduct was serious going to the heart of the solicitor client relationship. In the Respondent's favour it may be said that the conduct did not involve the intermingling of money, nor was there evidence that the Respondent actually took steps to prefer his own interests over those of the clients.
6. We agree that the protective orders ought to be sufficiently severe as to create a deterrent effect. However, in this case, there is little point in taking steps to deter the Respondent as he has given up practice and undertakes not to seek a new practising certificate. Nevertheless, the broader deterrent effect on other practitioners remains relevant and our orders must be sufficiently appropriate to reflect that consideration.
7. Similarly, our orders must have regard to the maintenance of confidence of the public in the integrity of the profession. In this case, there is extensive evidence that the Respondent has acquired a reputation over many years of being a person of honesty, integrity and generous in his assistance to the community more generally. Against this is the fact that the Respondent has made a regrettable error and there must be some mark of the Tribunal's disapproval.
8. Our conclusion is that the Instrument of Consent appropriately proposes a finding that the Respondent has been guilty of professional misconduct and that it is appropriate that the Respondent be reprimanded.
9. We now turn to the question of a fine. The fine proposed is $3,000. On its face that is a small amount of money having regard to what we have described as a serious breach of fiduciary duty. However, we have also had regard to the Respondent's age, financial circumstances and the fact that imposing a fine for a higher amount is, in our opinion, unlikely to add to the deterrent effect of the orders.
10. Our conclusion is that the proposed fine of $3,000 is appropriate.
11. So far as costs are concerned, we have already set out the Applicant's submissions and agree that costs must be awarded in this case, as there are no exceptional circumstances. The parties have agreed to an amount of $27,000. This is not an insignificant sum, and we are of the opinion that there is no basis to impose upon the parties an order for costs to be paid in an amount assessed by a costs assessor or to impose a higher specific amount. Accordingly, we think it appropriate to make the order proposed to the effect that costs of $27,000 should be paid by the Respondent to the Applicant.
12. As stated earlier, the Respondent made submissions that his name and other identifying features should be suppressed. The Tribunal has power to make such an order if it is thought desirable to do so. However, the starting principle is that proceedings of this kind ought to be open and not anonymised. This acts as an added deterrent. In this case the Respondent has partly retired (a factor which might support anonymisation), but the evidence contained in Exhibit B shows that the Respondent continues to have a consultancy role with a law firm interacting with the public. Additionally, we are required to have regard to the need to consider the deterrent effect on the profession more generally and also to take steps to ensure that the integrity and confidence of the public in the profession is maintained. Unlike in Council of the Law Society of New South Wales v DDQ [2017] NSWCATOD123 ( case to which we were referred by the Respondent ) there are no special or exceptional circumstances in this matter of the kind described in DDQ such as to warrant an order prohibiting or restricting disclosure of the Respondent's identity.
13. For these reasons, we confirm the tentative view expressed at the hearing that the application for anonymisation is refused.
14. The following declaration and orders are made:

(1) The Tribunal finds that the Respondent has engaged in professional misconduct within the meaning of s 297 of the Legal Profession Uniform Law 2014 (NSW) ("the Uniform Law") with respect to the alleged conduct particularised in the Instrument of Consent.

(2) Pursuant to s 299(1)(b) of the Uniform Law, the Tribunal orders that the Respondent be reprimanded.

(3) Pursuant to s 302(1)(l) of the Uniform Law, the Tribunal orders that the Respondent pay a fine of $3,000.

(4) The Respondent is to pay the Applicant's costs, as agreed, in the sum of $27,000.

(5) The sums referred to in orders (3) and (4) are to be paid by the Respondent within one month of the date of publication of these orders or within such longer period as may be agreed by the Applicant.

(6) The Respondent's application for an order for confidentiality pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act") is dismissed.

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.