The Council of the Law Society of NSW v Grubisa [2025] NSWCATOD 127 | Case summary

The Council of the Law Society of NSW v Grubisa [2025] NSWCATOD 127 | Case summary | Zoe

[36]

The Council of the Law Society of NSW ("the Council") by two Applications seeks disciplinary findings against Dominique Grubisa ("the Respondent") in respect of complaints arising from her conduct as a solicitor pursuant to the Legal Profession Uniform Law (NSW), (the "Uniform Law").
The two Applications, 2022/387737 and 2023/140578 were heard together and the evidence in one became the evidence in the other. They concern a number of aspects of the Respondent's practise as a lawyer.
The two Applications set out the findings sought in the proceedings, namely that the Tribunal makes a finding that the Respondent is guilty of professional misconduct. Each Application sets out the basis on which this order is sought expressed as "Grounds". We propose to refer to the document in which the Grounds appear as the "Complaint".
The Respondent did not appear, did not rely on any documents that she had previously filed in the proceedings and did not oppose the order sought by the Council which is that it be recommended that her name be removed from the roll of solicitors in NSW. She did however earlier in the proceedings file replies to the two Applications which we will take into account in determining the issues relevant to each complaint and their individual grounds.
The Council provided detailed and meticulously prepared submissions which, by way of footnotes, gave the sources of information from which the statements in the submissions were derived. As we have said, the bulk of facts and circumstances on which the Council relies in support of the Applications and their Grounds is not challenged and we have, by reference to the submissions and the associated documents, set out those unchallenged facts as part of the Tribunal's findings.
While the Respondent has put in issue some alleged facts, the thrust of her response to the Council's case goes to the complexion to be put on those facts or the conclusions to be drawn from those admitted facts. The resolution of the challenges raised by the Respondent is not entirely easy because she relied on no evidence nor gave evidence and sometimes the dispute is reflected in a bare denial of the particular supporting the ground. Nonetheless, the Tribunal has done its best to resolve those disputes on the material before it.

[50]

The Respondent was at all material times, the director of MWC which was itself wholly owned by DGI Holdings Pty Ltd. In March 2017 the Respondent's husband became the sole director of DGI Holdings, which was wholly owned by RER Properties Pty Ltd of which the Respondent's husband was the sole director and shareholder. The Respondent was also a director of RER Properties between 15 April 2014 until 21 August 2019.
MWC trading as DG Institute sold a number of products called "Master Wealth Control" which, for convenience and adopting the reference used by the Council, we will refer to as the" MWC Package". In the MWC Package and relevant to these proceedings was an "Asset Protection Plan" as well as access monthly webinars delivered by the Respondent, access to DGI Lawyers and to the Respondent, a document entitled "On-Market distressed properties" and two booklets written by the Respondent entitled "Your guide to asset protection" and "Forbidden Knowledge".
The Asset Protection Plan was described in the materials as "personalised legal advice for your current wealth situation and future goals". The Plan comprised a number of documents which included a trust deed, an equitable mortgage, a promissory note, a deed of gift, a notice of assignment, a testamentary trust and caveats. The stated aim of these legal documents was to provide a "watertight" protection of the customer's assets and the information provided referred to a "Vestey Trust", a reference to a celebrated and apparently impenetrable trust established by the Vestey family in the UK to protect its assets.
There was no dispute that the scheme was to operate by the customer mortgaging all of their equity in property to a trust which would then register a caveat over the title of the property (or properties) in support of the mortgage. The documents promised that the caveat would "... sit there compounding and will soak up all remaining equity so that there is nothing else for others to take".
The Council obtained the opinion of an expert, Scott Atkins in relation to a number of matters to which we will later return, however in his report he extracts from the Respondent's promotional material the intended operation of the Asset Protection Plan:

[54]

MWC was not a law practice and the legal work in relation to the MWC Package was undertaken by DGI Lawyers or the Respondent.
The documents provided to a purchaser of the Asset Protection Plan were prepared by and associated legal work was done by DGI Lawyers or the Respondent.
Customers who purchased the Asset Protection Plan were asked to complete an on-line questionnaire and they would then be contacted by a member of the "Master Wealth Team" if further information was required. The responses to the questionnaire were then fed into a platform "the MWC System" designed by the Respondent to generate what the Respondent described as "personalised documents based on the input provided by the customer." The Respondent said that no "specific person" prepared the Asset Protection Plan.
Another program offered by the DG Institute was called "Real Estate Rescue" was said to be involve a "takeover deal". The idea behind the scheme was that the purchaser of the program, who was referred to as a "student" of DG Institute would identify a third party who was "in financial distress", that is, in default of their mortgage or struggling to pay their mortgage. The "student" approaches that person and offers to enter into an agreement in which the home owner assigns their equity in the property and gives a power of attorney to the student to sell the property in return for a cash payment and an agreement that the "student" would make the mortgage payments. The idea being that at some point, the student can sell the property, discharge the mortgage and retain the residue.
The operation of this scheme was not itself the subject of complaint by the Council but, as a result of a complaint about the Respondent's conduct by Mr Andrew Drysdale who had entered the program and unsuccessfully tried to purchase a property from a defaulting mortgagee using the "takeover strategy". That complaint ultimately devolved to a complaint about the Respondent's use of lay associates in the legal practice Dominique Grubisa Solicitors in breach of sections 35 and 121(1) of the Uniform Law. When the Professional Conduct Committee of the Law Council determined to commence proceedings in relation to this complaint, the Respondent was invited to make submissions but declined.

[75]

Not all emails sent by Mr and Ms Fitzsimmons were sent from an email associated with the Respondent's legal practice (support@dominiquegrubisa.com.au) however as demonstrated by the email correspondence, the Respondent was copied into much of it and in several emails, Ms Fitzsimmons observed that she had "spoken to Dom" about an issue or copied her in to the emails and, in at least one instance, the Respondent directly responded in relation the issue raised.
The Council relied on parts of the Respondent's affidavit filed in the proceedings, and in relation to this aspect, the Respondent said that she asked her parents to attend the face to face meeting with Mr Drysdale and the others engaged in the takeover deed process because, she said she thought the clients would not be "placated by staff members" and so asked her parents for help. She further said that she knew her father had some familiarity with the Drysdale matter because she has sought his views from time to time and he has some past expertise in property and conveyancing law.
In the Tribunal's view, the Respondent's characterisation of Mr and Ms Fitzsimmons' role does not accord with the documents nor her own demonstrated involvement in the unfolding problem with the take-over deed.
There is no doubt, that at least on one occasion, the Respondent sought Mr Fitzsimmons' views about the issue. On 14 November 2016, Mr Drydale sent the Respondent an email about the matter seeking the Respondent's advice. Shortly afterwards, the Respondent sent an email to Mr Fitzsimmons seeking his input in relation to the questions asked. Mr Fitzsimmons replied with responses he had "...drafted for your consideration. Edit as you think fit and send". The suggested responses were extensive and contain advice about applying to the State Revenue Office for a refund of duty paid on the contract etc.
On 17 November 2016, Mr Fitzsimmons wrote to the Respondent saying that he would write to the Department of Natural Resources and Mining about the transfer of the property, the subject of the take-over deed and "...explain the power of attorney to them, that the mortgage has been discharged, that the instrument has not been revoked....I will fix up the transfer ..."
Having received this email there appears to have been no response from the Respondent to the effect that Mr and Ms Fitzsimmons were not to take the actions proposed.
The overwhelming effect of the evidence was that Mr and Ms Fitzsimmons were acting as consultants to and agents of DGS law practice with the Respondent's knowledge and consent and she knew at the relevant time that neither had been approved to act as lay associates of her firm in contravention of s35 of the Uniform Law.
This Ground is made out.
The Council submitted that the Respondent's conduct amounts to professional misconduct because of both the gravity and extent of the breach. It was argued, and the Tribunal accepts that the Respondent knew that her parents were both disqualified and if they were to be lay associates, needed relevant consent. She knew that they were conducting complex negotiations and drafting documents. She was copied into their email correspondence with the clients and authorised and endorsed their work.
The Council referred to the decision of Victorian Legal Services v Wong [2022] VCAT 432 in which a solicitor employed as a volunteer paralegal, a person who had surrendered his practising certificate and who while acting in that role executed a fraud. The Court was concerned to stress the need for practitioners to have "risk management" strategies in place to guard against such "errant" conduct to protect their clients and the public. While it is not the Council's case that the Respondent's parents engaged in fraud, that they were permitted to act as agents and consultants and carry out important and complex functions in relation to clients, was said to demonstrate a failure to appreciate the risks against which the necessary permissions were said to operate.
It was argued that the Respondent breached the relevant section which, of itself shows she did not appreciate the risks. In those circumstances it was argued that the Tribunal could not be confident that this conduct would not occur again.
The Tribunal concludes that the conduct to which this Ground relates amounts to professional misconduct both because of the seriousness of the conduct, that it was in breach of the Uniform Law and that, as the Council submitted, that the Respondent did not see it as a problem does not engender confidence that it will not happen again.

[81]

As to these Grounds, the Respondent denied that she gave any instruction or direction to Lyonswood Investigation requiring them to deliberately or otherwise deceive Mr Baker and obtain information from Mr Baker about claims and claimants who might be considering legal action against DGI Lawyers. The Respondent also asserted that she knew of no basis on which Mr Baker would allege that Lyonswood had acted unlawfully or in a way that might reflect adversely on her and if they had acted in that way, she was not responsible for that conduct.
These Grounds arise from a complaint by a solicitor, Mr Christopher Baker, who was, at the relevant times, acting for Mr Drysdale. Mr Baker complained that the Respondent had retained a private investigator going by the name of "Andre Ronvegas" to contact him and obtain a list of clients and potential litigants in a proposed class action against the DG Institute.
The circumstances in which the complaint arose are set out in Mr Baker's affidavit and that of Nadia Haddad Deputy Director, Investigations, Professional Standards of the Law Society attaching relevant documents and succinctly set out in the reasons for determination of the Professional Conduct Committee of the Law Society in considering Mr Baker's complaint from which we have taken the following summary.
In 2018, Mr Drysdale registered a private Facebook Group called DG Institute Graduates Independent which discussed the DGI products and "...the impact that their failure has had and could have on you personally." The page continued and said the group could help people get a refund where the product they had bought is defective.
Mr Baker's complaint arose when in April 2019 he was asked to call Mr Andre Ronvegas about DGI and Mr Baker was told that Mr Ronvegas had been referred to him by Mr Drysdale. Mr Baker spoke to Mr Ronvegas and they discussed the DGI issues and Mr Ronvegas represented that he had purchased a product from DGI and he wanted to know whether he could recover the money he had paid for it.
Mr Baker was a member of the Facebook group and had acted for purchasers of DGI products with which they were dissatisfied. Mr Baker said he had received calls from other clients of DGI. He asked Mr Ronvegas to give him a copy of the receipt for the DGI Wealth Creation product he had purchased and also said that he would send Mr Ronvegas a template document to complete with details about the product purchased, how much he paid and any transactions he entered into using the product.
On 9 May 2019 Mr Baker was contacted by a Mr Brenchley who said he was a friend of Mr Ronvegas and he too discussed recovering money paid by Mr Brenchley's wife for a DGI Wealth Creation product. Mr Brenchley enquired about the possibility of a class action against DGI.
On 29 May 2019 Mr Baker was told by another solicitor, Ms Nakhl who had previously worked for the Respondent, that DGI had retained a private investigator called Mr Ronvegas to gather information about any potential action that Mr Baker might bring against DGI including the names of potential litigants. Mr Baker discovered from Mr Brenchley's email address that he too was an investigator.
Mr Baker complained that the engagement of the investigators had seriously concerned him after noting cars parked outside his house and he complained about the conduct of the Respondent as a solicitor using deceit to obtain information about potential claims and clients.
Mr Baker expressed his concerns to solicitors then acting for the Respondent who responded that they acted for MWC and the Respondent and denied that their clients had engaged anyone to undertake surveillance of or conduct any investigations about him.
When the matter came to the attention of the Law Society, the lawyers for the Respondent responded to the correspondence from the Law Society alleging a campaign waged by Mr Baker against the Respondent and said that an opinion had been sought from senior counsel concerning the infringement of the DGI trademark in the title of the Facebook group and that MWC engaged Lyonswood Investigations to investigate the infringement of the DGI trademark. The letter continued and noted the Respondent's denials that she had instructed the investigators to conduct surveillance of Mr Baker or his family, to deliberately or otherwise deceive Mr Baker, to obtain information about claims and claimants who may be considering legal action against her and to pretend that Lyonswood had not been engaged by her.
After the Law Society issued a Notice pursuant to s371 of the Uniform Law to them, Lyonswood provided a statutory declaration which said that in April 2019 Lyonswood was engaged by DGI lawyers on behalf of Master Wealth Control Pty Ltd trading as DGI Institute to provide investigation services in relation to Mr Baker to approach him and to ascertain:

[83]

Documents provided to the Law Society by Lyonswood confirmed the engagement and instructions to Lyonswood including that Lyonswood would create false identities, namely Mr Ronvegas (also known as Anthony Romeo) and Mr Brenchley to infiltrate the Facebook group. In particular, the documents produced by Lyonswood reflected that the contents of the conversation between "Mr Ronvegas" and Mr Baker were conveyed to the Respondent and that DGI Lawyers were to prepare a false invoices for DGI products for Mr Ronvegas and Mr Brenchley to give to Mr Baker. The documents were sent either to DGI Legal and some were also sent directly to the Respondent at her email address "Dominique Grubisa".
The information provided to the Law Society by Lyonswood was sent to the lawyer for the Respondent, now Automic Lawyers who responded saying that their instructions had been "expanded" and what the Respondent had sought to ascertain through the use of the investigators was Mr Baker's level of involvement in the potential claims, whether he was using the trademark in attracting potential clients and promoting the potential law suit, whether Mr Baker was acting in his own right or as an employee of another firm, whether he was using any of the Respondent's or DGI Lawyer's trademarks to obtain legal costs as part of the proposed action and what personal benefit Mr Baker had in the conduct.
The Respondent denied that she had retained Lyonswood to conduct surveillance on Mr Baker and we note that this assertion does not form part of the grounds alleged against the Respondent in these proceedings.
The Law Society required the Respondent to provide information about the asserted false receipt for purchase of MWC products. The Respondent denied any false receipt was provided for Mr Ronvegas although she produced a receipt for purchase of Master Wealth Control products by Mr Brenchley.
The Respondent denied she engaged the investigator to obtain information about Mr Baker's clients and said that Vanessa Nakhl, a solicitor employed by her had instructed the investigators. As the Council submissions note, Ms Nakhl was not employed by DGI Lawyers during the period that the investigation extended to Mr Baker. Ms Nakhl provided an affidavit in which she said that the client for the purposes of the investigation was MWC and that she acted on the Respondent's instructions during the initial engagement of Lyonswood.
Ms Nakhl also said that she was closely supervised by the Respondent and that she was required to keep the Respondent informed of the work she was doing.
In proof of the purpose for which the investigators were engaged, the Council relies on the letters from the Respondent's lawyers to the effect that the Respondent, as sole director of DGI Lawyers, advised the retaining of the private investigator and on the letter from Automic Group of 16 July 2019 in which it was said the initial investigation was in relation to a potential trademark infringement,

[89]

In reply Mr Jarvis pressed for the "receipt" for Andre Ronvegas.
Shortly afterwards, Mr Baker received communication from Mr Brenchley and Mr Baker sent him a form to complete about his purchase of DG Institute products. The information given to "Mr Brenchley" by Mr Baker was sent to Mr Jarvis, as was the form to complete.
On 23 May 2019 Mr Jarvis sent an update to Ms Jain and noted that Mr Brenchley had a form to complete from Mr Baker. Ms Jain replied that they would be in touch once they had the information necessary to complete the form. On 30 May 2019 Ms Jain sent Mr Javis the completed form and an invoice in the name of Brenchley. Mr Jarvis wrote to Mr Klopper and asked him to confirm that providing the invoice as proof of sale would not constitute fraud or some other crime. Mr Klopper replied that the invoice was a "mock up" to "test their internal procedures" and would not amount to fraud or another crime.
By this time, Mr Baker had been warned of the involvement of the investigators by Ms Nakhl and Mr Baker wrote to Lyonswood on 30 May 2019 saying that an investigator had posed as a student of the Respondent's business. This email was passed on to DGI Lawyers and Mr Jarvis was advised not to engage with Mr Baker further.
The documents make it abundantly clear that Mr Baker was the subject of investigation by Lyonswood at the instigation of DGI Lawyers and that the purpose of the investigation was to obtain information about the potential class action and the identity of Mr Baker's clients.
The documents also establish that the Respondent was providing the instructions for the course of the investigation and knew what was going on. The correspondence between Mr Jarvis and Ms Jain was copied to the Respondent and it is not reasonable to assume that a paralegal was acting independently of the Respondent and without instructions from her. Council also relied on Ms Jain's use of the words "we" and "our" when passing on information to Mr Jarvis. The information in emails from Mr Jarvis and in particular in which he details the answer to the questions wanting answers was passed on to the Respondent by Ms Jain.
Council also relies on an email from Ms Jain in which she refers to a conversation with the Respondent earlier on about the investigation into Mr Baker. Further, although relied on in proof of another ground relating to the investigation of Mr Baker, Ms Jain refers to the need to create a false invoice for Mr Ronvegas to which the Respondent replies asking whether she needs help.
Finally, the Council relies on the evidence of Ms Nakhl to the effect that she, as an employed solicitor in the Respondent's firm was closely supervised to argue that it is not reasonable to accept that Ms Jain was acting alone without supervision. We agree.
The Tribunal is satisfied that the Respondent as Principal of DGI Lawyers orchestrated the investigation into Mr Baker in the period to which this ground refers to obtain information about a proposed class action against her and the details of the potential participants.
Rule 4.1.2 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (the Rules) provides that a solicitor must be "honest and courteous in all dealings" in the course of legal practice. Rule 5 provides that a solicitor must not engage in conduct in the course of legal practice or otherwise that:

[100]

54. The Submissions stated that, in the initial engagement of Lyonswood to investigate Christopher Baker's alleged infringement of the DGI trademark (Lyonswood Investigation) and during the course of the Lyonswood Investigation, the Respondent did not issue any instruction or direction (nor did the engagement of Lyonswood contain any term or condition) requiring Lyonswood to:

a. deliberately or otherwise deceive Christopher Baker; and

b. obtain information about claims and claimants who may be considering legal action against DGI Lawyers (First Statement).

55. In addition, the Submissions stated:

a. the Respondent knew of no basis on which Christopher Baker could contend that Lyonswood has "acted in any way unlawfully or in any way that might adversely reflect on her"; and

b."[e]ven if Lyonswood had engaged in any conduct in which it ought not have engaged and even if such conduct involved a contravention of the law, it is...difficult to see how [the Respondent] could be in any way responsible for it".

56. In the context of subparagraph 54(a) above, and by reason of the matters set out in paragraph 55 above, the Respondent instructed Russells to convey to the Council of the Law Society of New South Wales that she had no awareness or involvement in any attempt by Lyonswood to deceive Christopher Baker, or that Lyonswood may have intended to attempt to deceive Christopher Baker (Second Statement)

57. The First Statement was false and misleading because:

a. the Respondent had given instructions to Lyonswood to identify the number of claimants involved in the proposed class actions against DGI entities; and

b. the Respondent caused Lyonswood to obtain information about claims and claimants who may be considering legal action against DGI entities.

58. The Second Statement was misleading because:

a. the Respondent was, through email correspondence, aware that Lyonswood used two assumed identities (called "Andre Ronvegas" and "Richard Brenchley") to conceal from Christopher Baker the investigators' true identity and purpose of corresponding with Christopher Baker; and

b. the Respondent was aware of, and offered to assist in, the preparation of a false receipt in the name of Andre Ronvegas so that Lyonswood could provide it to Christopher Baker in order to cause Christopher Baker to believe that the investigators' assumed identity, Andre Ronvegas, had bought a product from MWC (False Receipt); and

c. by reason of the matters set out in sub-paragraphs 58(a) and 58(b) above, the Respondent was aware that during the course of the Lyonswood Investigation, Lyonswood deliberately attempted to deceive Christopher Baker by using assumed identities and Lyonswood may have intended to deceive Christopher Baker by the assumed identity providing the False Receipt to Christopher Baker so that Christopher Baker believed that the assumed identity, Andre Ronvegas, was a customer of MWC.

[103]

The Respondent further denied the assertion that she had instructed her lawyers to convey the fact that she had no awareness of or involvement in any attempt by Lyonswood to deceive Mr Baker or that Lyonswood may have intended to deceive Mr Baker.
The Council relied on the correspondence and other documents to which we have already referred in relation to the earlier grounds relating to the Baker complaint and submitted that those documents show that the Respondent knew that Mr Baker was the target of an investigation by DGI Lawyers and that she knew of the purpose, scope and the methods to be deployed in obtaining the information and also that the Respondent knew of the creation of false documents and offered to assist in creating the false invoice. (this is the subject of Ground 8).
The Tribunal concludes that the correspondence and other material clearly demonstrates that the Respondent well knew of the methods to be deployed by the investigators and that they were attempting to obtain information from Mr Baker about a potential class action and details of his clients. We are satisfied that the assertions in the submissions to the Law Society were wholly false and misleading.
Secondly, the submission that the Respondent knew of "no basis on which Christopher Baker could contend that Lyonswood has "acted in any way unlawfully or in any way that might adversely reflect on her"; and that there was no way in which the Respondent could be responsible for that conduct, clearly contains the implication that she knew of no basis on which it could be asserted that Lyonswood had acted unlawfully or that she could be responsible for their actions. Taking into account the same evidence, it is clear that this implication was false and palpably so.
The Council alleges that in instructing her solicitors to make those misleading and false submissions, the Respondent was in breach of Rules 4 and 5 of the Conduct Rules and in breach of rule 43 of the Conduct Code that says:

[127]

The Asset Protection Plan Legal Documents were created for each customer of MWC based on the customer's instructions and adjusted for each client's personal information. In order to create the Asset Protection Plan, each client was provided with a questionnaire which was accompanied by a video series in which the Respondent provides instructions on how to complete the questionnaire. The Respondent also agreed that there was also a written guide accompanying the videos; that some clients would have the questionnaire and the written guide emailed to them, and that some clients would answer the questions over the phone.
The answers to the questionnaire and other personal details were used to create an individualised plan.
The Respondent or a solicitor of DGI Lawyers under her supervision was then responsible for settling and approving the Asset Protection Plan Legal Documents.
The Council's submissions note that while the Respondent admits she was the sole principal of DGS in the period between 26 November 2017 and 31 January 2018, she denies she was the sole principal of DGI Lawyers. However, a Certificate provided pursuant to s 446 of the Uniform Law (Vic) of 6 November 2024 provides that in the period between 1 April 2018 to 21 August 2020, the Respondent was the sole legal director of DGI Lawyers and no other person was a principal of DGI Lawyers in the period in which she was a principal.
The Tribunal accepts that at the times relevant to Ground 1 (and in relation to Grounds 2 and 3) the Respondent was the sole principal of DGS and between 1 April 2018 and 21 August 2020 she was the sole principal of DGI Lawyers.
As to the preparation of the Asset Protection Plan Documents, although the Respondent denied that if a customer made enquiries or requested information in relation to the documents, people employed by MWC referred to as the MWC Support Team, provided the answers and that the MWC Support Team was supervised by the Respondent, the Council relied on the Respondent's admissions contained in a Statutory Declaration she swore on 28 July 2022 that the matters alleged were correct and it was she, in her role of practising solicitor who supervised the MWC Support Team who were employed by Master Wealth Control.
The Tribunal accepts the Respondent's admissions provided in the Statutory Declaration as to these matters.
Turning then to the individuals referred to in the Ground who purchased the MWC Package:

[129]

Client C purchased the MWC Package on 17 April 2018 and, according to her affidavit, she received an email from the Respondent, at the same email address as for Client B. Client C said she was interested in the MWC Package as she had a franchise business and was concerned about the success of the business and to protect her assets. Client C completed the questionnaire and listed her assets. The questionnaire did not seek information about debts nor whether she was in financial difficulties.
However, emails between Client C and the MWC Support team show that she told the team of her financial circumstances. On 8 May 2018 Client C emailed MWC Support referring to an earlier call in which she was apparently wanting to put the protection scheme in place as soon as possible and in this email said "...under financial pressure ... and was wanting some protection to move forward with negotiations on rents/franchise fees etc". Her email was answered on 9 May 2018 and in relation to the name she wished to ascribe to the Trust, the email said "... Dominique recommends that you choose a name without "family" word." In that email, it was observed that while Client C had listed amongst her assets a property she had not included any liabilities on it, the email said that their searches show two registered mortgages over her property and sought details. In an email of 11 May 2018, the MWC Team member sought further information and noting the dealings on the title of her residential property said that "..this will not impact your assets protection documents in any way".
Client C received her personalised Asset Protection Plan Legal Documents on 5 June 2018 which included the equitable mortgage over her residential property which noted that the property was subject to a mortgage to the Commonwealth Bank of Australia as security for a loan and a line of credit.
On 12 June 2019 Client C emailed mwc@dginsitute.com.au and said that it was likely that she would be "forced into bankruptcy and will lose the house when I had purchased the package from you to stop this happening." She said she wanted to know "... if the Vestey Trust I purchased is water tight and the caveat is strong so the trust receives any equity."

[130]

Client D purchased the MWC Package on 31 October 2019 and before he did, he revealed that he was under financial stress which was the reason why he purchased the package and said that he was worried that if he went ahead with the Package and the bank decided to pursue him in court, it might look as if they had acted on the Package to avoid paying his debt. Client D received a reply which said "...the Master Wealth Control service will protect you in financial distress. It is when you're actively been (sic) pursued by creditors in the form of caveats being lodged on your assets that it becomes too late to protect your assets".
Client D completed the questionnaire to enable the preparation of his personalised Asset Protection Plan Legal documents and he received the package on 4 December 2019.
The Council submitted that given that the Respondent admitted that DGI Lawyers through its employed solicitors acted both for MWC and for clients of MWC, it created a conflict of duties as between MWC on the one hand and the purchasers of the MWC Package on the other. Further, the Council argued, the Respondent did not make the nominated purchasers aware of that conflict.
The Tribunal finds that there was a potential conflict of duties between the Respondent's duty owed to MWC on the one hand and the purchasers of the package on the other because MWC had an interest in the purchase of the packages and the purchasers had an interest in whether the package would be suitable for their circumstances and capable of providing them with the protection they sought and which MWC said it would. It was submitted and it is apparent from the documents and emails of each of the named purchasers, that had they known that their personal circumstances may not have been protected, they may not have purchased the product or, perhaps sought a refund of the purchase prices when they were not protected as they wished to be. The Respondent had an obligation to consider whether the scheme in which the purchasers were to become involved would in fact be suitable for them and whether the accompanying documents would be effective in their individual cases.
The interests of the purchasers of the MWC Package were not aligned with those of MWC and the Respondent's corresponding duties were in conflict.
The Council submits that the Respondent has breached Rule 11 of the Conduct Rules which says:

[132]

The Council also relies on s35 of the Uniform Law as to the Liability of Principals.
The Respondent was the sole principal of DGS between 26 November 2017 and 31 January 2018 and between 1 February 2018 to 31 March 2018, she was the sole practitioner of DGS. From 1 April 2018 until 21 August 2020 she was the sole legal director of DGI Lawyers at the time that the conflict or potential conflict arose and as principal, she either knew of, authorised or permitted the contravention of the Rule or ought reasonably to have been in a position to influence the conduct of the law practice in relation to the contravention and failed to prevent it from occurring. She did not ensure that the purchasers knew that MWC was also a client of DGI Lawyers.
The Tribunal is comfortably satisfied that the breach alleged in Ground 1 has been made out.
In assessing the gravity of the breach, Council submitted that the conflict between her duty to MWC and the purchasers was obvious given the purchasers had revealed their financial distress and the circumstances of those financial pressures may well have made the purchase of and giving effect to the Asset Protection Plan ineffective and unsuitable for the purposes for which they wanted. The conduct was not limited to one purchaser but, here, there were three and because the Respondent insisted that no conflict of duties arose, the Council argued that the failure to appreciate the conflict brings with it the need to act to protect the public from its recurrence.
The Tribunal agrees. The conflict of duties between those owed to the purchasers of MWC Package and to MWC were or should have been obvious to the Respondent and her denial that such a conflict existed reflects, in the Tribunal's view a failure to understand her legal obligations and also does not offer any comfort that similar conduct might occur in the future.
A solicitor's duty is to avoid a real or substantially possible conflict between their duty to serve the interests of one client and another client. It is not necessary that there be an actual conflict but the obligation of the solicitor is to be astute to the possibility. The Tribunal adopts the reasoning of Wotton J in Thompson v Mikkelsen (3 October 1964 unrep) where he said:

[135]

Here, the ground is concerned with the conflict or potential conflict between the interests of the purchasers of the MWC Package and the Respondent's own interests.
Before 5 September 2019 the Respondent and her husband were the shareholders of MWC, after that date, MWC was wholly owned by DGI Holdings which itself was wholly owned by RER properties and the Respondent was the sole shareholder of RER Properties.
In the financial year ending 30 June 2019, the Respondent was paid $91,701 in directors fees from MWC, in the following financial year, ending 30 June 2020 she received $42,648 in director's fees from MWC and received fully franked dividends from DGI Holdings of $58,000. Thus, the Council submitted that the Respondent had a financial interest in the sale of the MWC products.
In her reply to the Application, the Respondent denied that she had an interest in customers purchasing MWC products. In a submission to the Law Society by the Respondent's lawyer in November 2021, the Respondent described her interests and those of the nominated customers as "entirely aligned".
The Tribunal accepts that the evidence of the Respondent's receipt of financial benefits from MWC through her associated shareholding, created an interest in the continued sale of MWC products.
The Council argued that this then created a conflict or potential conflict between the interests of the named purchasers of MWC Package and the Respondent's personal interests. The Respondent denied that there was a conflict or potential conflict of interest between her duty to serve the interests of the people who purchased the MWC product and her personal, financial interest in the continued use of that product.
The Tribunal is unable to determine how it is that the Respondent disputes the existence of a conflict or potential conflict of interest nor how her interests and those of the purchasers could be considered "aligned", given the unchallenged evidence of that financial interest, the Tribunal is comfortably satisfied that it created a conflict or potential conflict between the Respondent's and her clients' interests.
Here the Council alleges a breach of Rule 12 of the Conduct Rules namely:

[141]

Based on the Respondent's admissions, the Council argues that at the material time, MWC was run concurrently with but not directly in association with DGI Lawyers. As to the likelihood of that the Respondent's involvement with MWC would impair or conflict with her duties to the clients of DGI Lawyers, the purchasers of MWC products, the Council relies on the evidence that the three nominated persons had purchased the product and there was an inherent conflict between the business of MWC and the Respondent's duty to her clients.
The Council also submitted that the conflict was manifest in the circumstances of the purchasers when each disclosed they were in a degree of financial distress. Client C wrote to MWC and said she was likely to become bankrupt and was anxious to know whether the trust was "watertight" and she continued to receive legal advice (admitted by the Respondent to have come from DGI Lawyers) about the effectiveness of the caveat.
The Council submitted that at this point, the Respondent owed Client C a duty to give her frank legal advice about the questionable ability of the Asset Protection Plan to protect her assets and argued that in not doing so, the conflict between her duties to MWC and to the clients became real.
Client D too revealed himself to be under financial pressure and concerned that any step he took might give rise to the bank arguing that he was trying to avoid his obligations to them. Council pointed to the date stamp on the invoice for the purchase of the package to submit that after Client D revealed his financial circumstances and asked the question about what might concern the bank, and invited the Tribunal to conclude that he purchased it having been assured that the package would protect his assets. It is a reasonable inference in the circumstances.
Client B wanted to protect assets in the United Kingdom and in completing the questionnaire. Client B requested information on how the "international scope of MWC will work to protect that". She was advised that her assets in the UK can be placed under the assets in her plan. Later, Client B was advised that she would require the assistance of a lawyer in the UK to assist with registering a caveat supported by the Trust and Equitable Mortgage to be executed by her.
Client B obtained a private ruling from the Australian Taxation Office which was to the effect that when she executed the legal documents and implemented the Master Wealth Control Asset Protection Package, capital gains tax will be incurred and it will when the equitable interest in assets were transferred to the trust under a deed of gift. On receiving this advice, Client B wrote to MWC noting that she was told that no tax burden would arise if she implemented the processes in the MWC Package. She asked for a refund of the purchase price.
The Council argued and the Tribunal agrees that in each of the three purchasers to which this Ground relates, a specific conflict arose in addition to the conflict inherent in the circumstances of the Respondent running MWC and acting for clients of MWC.
The Tribunal is comfortably satisfied that the Ground is established and that the Respondent breached Rule 8 of the Conduct Rules.
The Tribunal finds that the Respondent's breach is substantial because of its gravity and consistent with a "pattern" of behaviour at least in relation to the three persons named in the Ground and represents a consistent departure from the standard. Because the Respondent does not concede that she acted contrary to the standard and the Rule, the Council argued that this raises the risk that she will repeat this conduct.
The Respondent's conduct in relation to these three complaints, each alleging the existence of and a failure by the Respondent to appreciate relevant conflicts of duties, is extremely serious and operates to undermine the confidence of the public in the legal profession where it is expected that the solicitor will understand and act on real or reasonably possible conflicts.
In relation to conduct in relation to these three grounds, the Tribunal is of the view that the Respondent's conduct is sufficiently serious so as to amount to professional misconduct.

[143]

The particulars of this complaint allege that MWC was not a "qualified entity" pursuant to s6 of the Uniform Law the definition of which includes an Australian legal practitioner or a law practice; that the Respondent was the sole director of MWC and she knew that MWC was not a qualified entity and she sold the MWC Package which included the Asset Protection Plan Legal documents.
The Respondent admitted that MWC was not a qualified entity and she knew that to be the case, that she was the sole director of MWC and that MWC sold the MWC Package which included the Asset Protection Plan Legal Documents.
The ground further asserts that preparing, reviewing and providing the Asset Protection Plan Legal Documents to customers, involved the provision of legal services and at the relevant time, the Respondent engaged in conduct in relation to the three nominated purchasers of the MWC Package, that represented that MWC was entitled to provide legal services and in so doing she contravened s11(2) of the Uniform Law.
The Respondent denied that MWC was providing legal services, that she conducted herself so as to represent that MWC was entitled to provide legal services and that the Asset Protection Booklet represented that the MWC Package protects assets and gave advice as to the legal effect of the documents forming part of the Asset Protection Plan Legal Documents.
As to whether MWC provided legal services through the Asset Protection Plan, the Council relied on:
The way in which the documents were sent to purchasers which was from MWC and DG Institute with an invitation to contact "support@masterwealthcontrol.com.au. for explanation or if amendments were required. In particular, the Council pointed to the communication with Client D under the Respondent's name but from an email address, mcw@dginstitute, telling Client D that the Respondent would guide him through the process of completing the documents and if he needed assistance to put the Plan in place, he could call "my team on mwc@dginstitute.com.au.
The invoices sent to the three nominated customers were sent from "dginstitute".
The wording of the correspondence from MWC and the purchasers which refer to "our legal strategists" or their "legal team".
In several instances, the communications from MWC provided legal advice, for example, Client D received correspondence from a "product specialist" who provided him with a copy of a decision in a Bankruptcy case and advised Client D: "we need to have the structure and securities of Master Wealth Control in place before we poke a stick at Westpac".
Again, in relation to Client D who was concerned about whether the Asset Protection Plan would help him since he was in "financial stress" and said he was worried that his actions could be seen as being an attempt to avoid paying the bank, he was told by a "consultant manager":

[147]

The Council argued and the Tribunal accepts that the emails demonstrate both that there is no differentiation between DG Lawyers and MWC and that they represent that it is MWC that is providing the legal services.
On the Master Wealth Control website is a link to promotional videos in which the Respondent promotes the product and in which she represents that legal services are available to purchasers of the MWC Package. The promotional material refers to "Dominique and her legal team". Further, in one of the videos that accompanies the purchase of the MWC Package, in relation to the completion of the questionnaire the Respondent appears and says that if the purchaser has any difficulties completing the document "my team is here to help you" and gives the email address MWC@dginstitute. The Respondent refers to herself as having worked as a solicitor in debt collection and then continues to describe how MWC can keep the purchaser's assets away from creditors. The Council submits that in this material, the Respondent does not indicate that the legal services are being provided by DGI Lawyers rather than by MWC itself.
The Council relies on the Booklet published by the DG Institute "Your Guide to Asset Protection" and which explains how a trust works to protect the purchaser's assets and the operation of an equitable or unregistered mortgage.
While the Respondent did not do more that deny the particulars of the ground, Council drew the Tribunal's attention to the Respondent's submissions dated 8 November 2021 to the Law Society in response to their investigation. Under the heading "Allegation 4- advertisements of representations by or about unqualified entities" the submission contends that "every effort is taken by MWC to ensure that there is a clear demarcation between the legal services provided by DGI Lawyers and other professional services provided as part of the MWC Package. The submission referred to the Terms and Conditions which appeared in the "Conditions of Purchase" of the MWC Packages in two iterations, one applied up to about 4 August 2019 and a later iteration from 5 August 2019 until July 2021, the latter of which contained the following:

[156]

The particulars of the Ground allege that in relation to each named purchaser, the Respondent or those under her supervision at DGI Lawyers prepared and reviewed the Asset Protection Legal Documents and between the relevant dates, MWC sold the MWC Package to the named purchasers and in the same period provided the Asset Protection Plan documents to Client B, Client C and Client D.
The Respondent admits these particulars, however she denied that the preparation and review of the Asset Protection Plan documents were legal services.
For the purposes of this Ground, Legal Services is defined in Section 6 of the Uniform Law as "work done, or business transacted, in the ordinary course of legal practice".
The Particulars further assert that as part of the MWC Package, Client E received a documents entitled "Master Wealth Control" authored by the Respondent and in which the Respondent made assertions about the legal effect of the documents forming part of the MWC Package that Client E had purchased, that she provided assurances about and instructions in relation to the steps Client E needed to take to prepare the Asset Protection Plan Legal Documents and made representations about Client E's legal rights once the Asset Protection Plan Documents were completed and finalised. The Particulars further assert that it was claimed by MWC that the Asset Protection Plan documentation provided to the named purchasers would be effective, once completed, in preventing or deterring creditors from obtaining access to the person's assets. These claims were referred to in the particulars and in Council's written submissions as "the Effectiveness Claims".
It was also alleged that in these steps, the Respondent provided legal services to Client E.
The Respondent denied that she provided legal services to Client E.
The Particulars allege that in relation to all named purchasers, the Respondent did not provide legal services competently in that she failed to advise:
As to the correctness or otherwise of the Effectiveness Claims having regard to each individual's circumstances;
That in order to sustain an equitable mortgage, established by a deed, there needed to be an actual debt
That the execution of the documents in the Asset Protection Plan Legal Documents is not all that is necessary to sustain an equitable mortgage without the need for any valuable consideration;
As to the circumstances in which a caveat might lapse or be removed, the bases on which the interest asserted in the caveat might be challenged and the costs that might be incurred to protect the structure put in place if challenged by creditors and
As to the risks which might impact on the accuracy or achievability of the Effectiveness Claims including risks associated with s 37A of the Conveyancing Act 1919 (NSW), s172 of the Property Law Act 1958 (Vic) and s89 of the Property Law Act (WA) and s 121 of the Bankruptcy Act 1966 (Cth).
The Respondent denied these particulars.
In proof of the Particulars, the Council relied on the documents provided to the purchasers and which accompanied the Asset Protection Plans which asserted that the documents "will be effective in protecting your wealth" and "A separate bank account in the name of your Trust in which you store all your cash and savings will render them untouchable by your creditors" and "by creating a trust and having all your finances in a separate bank account in the name of your Trust it will render them untouchable by your creditors" being representations made in the documents to Client C, Client B and Client D.
Client E, while she purchased the MWC Package did not complete the questionnaire and thus did not receive the Asset Protection Plan Legal Documents. However, Client E received a letter from the Respondent in which she asserted: "with my support you'll have a time tested, proven, airtight system that will protect any assets that are important to you" and "once you have my Master Wealth Control system in place, any asset you value will be protected against any threats or action from anyone seeking to attack you or your wealth, without affecting any structures you already have in place, or having any adverse tax or borrowing ramifications for you" and "Your assets will only be protected - once we have put your protection in Place (emphasis in the original)
Council relied on other assertions contained in document authored by the Respondent and sent to Client E along similar lines referring to "an invisible forcefield around those assets".
Further, the Council relies on a document sent to Client E being part of the information she received in the MWC Package which is entitled "Bulletproof your Wealth". The document has information under a number of headings including "
Why should you listen to me? I am a practicing (sic) barrister with over 20 years legal experience in commercial and debt related matters.
"How to protect your equity and property quickly and easily without having to pay stamp duty or excessive transfer cost and still retain the ultimate control" - "What we need to do then to protect ourselves is to create a trust whereby we essentially control that entity and that entity then registers an interest on the title to our property. This protects our equity. We are still the owners of the property however our trust holds an unregistered second mortgage and registers this interest on the title and that sucks up all the equity in the property".
"Registering a Caveat" - "If we grant an equitable or unregistered mortgage to our trust and the trust then registers a caveat on the title, we can prevent anyone else registering or claiming an interest in our equity".
"Putting it all together: What This Means for us and Our Asset Protection Strategy" - "The caveat (noting an 'equitable' or unregistered mortgage) will sit there compounding and will soak up all remaining equity so that there is nothing else for others to take."

[162]

Client D purchased the MWC Package in October 2019 and a little later purchased another DGI product to do with debt management. However, Client D had, before buying the product approached DGI to get advice about debt management saying he was in financial stress. He was advised by a "product consultant" that it was important to complete the MWC to "protect all of the unencumbered assets". It was in an email to Client D from a person from DGI that he was told "...the Master Wealth Control service will protect you in financial distress. It is when you're being actively pursued by creditors in the form of caveats being lodged on your assets that it becomes too late to protect your assets.
Client D purchased the package and completed the questionnaire and revealed he had assets in Western Australia. Caveats on all the titles were lodged in accordance with the Asset Protection Plan.
Mr Atkins notes that at the time Client D purchased the package, DGI was aware that he had debt issues with Westpac which held a first mortgage over one of his properties at that time and before the Asset Protection Plan documents had been sent to him. Nevertheless, the documents sent to him made no reference to his financial position nor any information about the s37A of the Conveyancing Act or ss120 and 121 of the Bankruptcy Act and their potential application to his circumstances including the potential that the transactions may be set aside. Mr Atkins further said that given Client D had informed DGI that he was in dispute over debt with Westpac, his attention should have been drawn to the limited operation of the recommended equitable mortgage and caveat regime contemplated by the Asset Protection Plan, Nor was Client D apparently advised that the trust he established might be challenged nor of the vulnerability of the equitable mortgage that did not secure an actual debt. As with Client D, there is no reference to the costs that might be incurred in trying to defend the regime or the procedures and costs of maintaining a caveat.
Mr Atkins noted that however the documents and other materials made available to Client D assured him that by adopting the Plan his assets would be fully protected.
Mr Atkins concluded that the Respondent failed to provide competent legal services to Client D in the documents and other materials which represented their effectiveness against the actions of creditors and in failing to consider and act on the information that he provided to personalise the documents and to advise him that the plan would not achieve his desired outcome with his creditor.

[167]

a. the objective of the asset protection plan is stated to be "to prepare you for what might happen if some unknown event takes you by surprise. You want to block off any avenue of recourse a potential future creditor may have against you, leaving the equity in your assets fully protected. We want to separate you as an individual from your wealth (so there is nothing for creditors to get!)";

b. the objective of the asset protection plan is to "reverse engineer things to look at where you are open to attack from creditors";

c. by implementing the asset protection plan the client will "seal off that exposure";

d. "the result [of implementing the asset protection plan] is that anyone looking at your equity as an avenue of claiming a debt from you will find it impossible to recover";

e. in subscribing to the service, client/subscribers identify their assets that require protection (both real and personal property) and are in turn provided with an "Individualised Asset Protection Plan" that outlines the steps that should be taken to "protect all your equity in your present and future property wealth quickly and easily through a trust, equitable mortgage and caveats".

f. "Your Primary Exposure: Your Property Holdings

The fact is, the real wealth which is exposed at present is the equity in your property, which is the current market value less debt. This equity is open to an attack from creditors. Anyone preying upon you can easily run Land Titles searches and will know that you own real estate. Obviously we don't want this to be a "sitting duck" for creditors. We therefore need to protect that equity.

Your Secondary Exposure - Your Personal Goods and Chattels

Other assets that are exposed to claims by creditors are your personal goods, chattels and effects - anything that is owned in your name! This includes electrical and computer items, shares, cash, cars and your interest in your person earnings income. All of this can be protected easily and quickly through the asset protection trust mechanism."

[169]

a. "What we want to do with our asset protection is, in effect, mortgage all of your equity to a trust and that trust will then register a caveat on the title to each of your properties to represent that mortgaged interest. The caveat (noting an 'equitable' or unregistered mortgage) will sit there compounding and will soak up all remaining equity so that there is nothing else for others to take. In addition any of your personal property of value would be assigned and transferred to the trust. You will not have any bank accounts in your name as all of your banking will be done through the trust."

b. "we are trying to set up hurdles and barriers between yourselves and your assets and potential future creditors by creating an asset protection trust. We want to divorce you as an individual from your wealth (so there is nothing for creditors to get!). In order to protect our wealth we are putting it in a safe place and removing ourselves from the picture whilst we control everything from behind the scenes."

c. Once the MWC package is implemented "[t]hat's it! Once you have completed all the steps there is nothing more to do unless you add further property or assets to your portfolio", and states, "Congratulations! You have invested your time and resources into safeguarding your future and your assets are now fully protected. You can now get on with living your life and building your wealth with the peace of mind that comes with being bullet proof."

d. "this documentation will afford you protection in your equity in your assets. It will not extinguish a debt. What it will do is make it very difficult for creditors to enforce payment against you and protect your future acquisitions"

e. "if a creditor is looking at you as a target for acquisition of wealth they will firstly run a land title search - your kryptonite will be your property. Beyond that they can legally intercept your income, earnings, personal goods and chattels and other wealth but there is no public register for such information so they will have to work hard to attack this wealth."

f. "Okay, so how does this help you if you are holding property in your own name or under a company name where you or the company may be a target to creditors or others who wish to attack your wealth? As I said you don't want to have to sell and hide the money under your pillow, nor do you want to have to incur stamp duty just to change ownership over to a safe entity like a trust. Don't worry, there is a little known secret that those in the know use to transfer their exposed equity in real estate over to a trust an give themselves the ultimate vehicle for control of that asset."

g. "Any other creditor who comes along and tries to attack your wealth or your equity will be in the same position as Westpac was in our example - they can take whatever is left after our trust (who registered earlier and has an indefeasible interest) has been paid out in full to its satisfaction."

h. "Similarly with your furniture, clothing and jewellery - whether under finance or not - you have some equity in it all and by mortgaging those items to the Trust, creditors cannot seize them";

i. "This is what the very rich aim to do: have layers and layers of protection; companies within trusts within other companies. It becomes so convoluted and expensive to examine, analyse, prove and undo. Donald Trump famously once told his creditors "you can sue me but I will hold you up in court for years and cost you more in legal expenses to fight me then what I owe you. I have the best lawyers and have tied everything up so tightly you will never ever unravel it."

j. "This is how the wealthy operate; through "structures", such as companies and trusts. They own nothing themselves and are not exposed to any risk in that sense"

k. "Wherever there are assets protection structures there will always be creditors or others trying to attack them. No asset protection system can spruik itself as being impenetrable. Having said that, what we are trying to do is make it difficult for creditors to get to you. The more they have to prove, the more expensive it becomes and the more difficult the exercise. They effectively give up when it comes to throwing good money after bad.

The onus or burden of proof is on the creditor to show that what you have set up is somehow liable to be set aside by a court and available for them to take as creditors. This becomes very costly and difficult and can be an uphill battle because they have nothing to base their allegations on and you have all the requisite documents. Yes, they can get a court order that you produce documents but they need grounds for this and cannot just go on a fishing expedition hoping to dredge up something.

In reality it is impossible to mount a challenge without ammunition and there is no way to get ammunition without some compelling evidence in the first place. It also becomes very difficult and costly for them to attack a registered interest on a title because of the concept of indefeasibility of title. Any challenge is a very expensive exercise and the legal cost alone to challenge such asset protection structuring would probably outweigh the debt that they are chasing. Put simply, it is a case of commerciality, and the legal system is such that it just becomes un-commercial for creditors to challenge such asset protection structures."

[170]

The Respondent admits that the Individualised Asset Protection Plan booklet contains the words quoted but does not admit the contended effect or words not quoted. She further admits that the Individualised Asset Protection Plan booklet was provided to Client B in the relevant period and she admits that the booklet "Your Guide to Asset Protection" was written by her and was provided to customers who purchased the MWC Package.
As to the contents of the Asset Protection booklet, the Respondent said that there was more than one version of that booklet and it contains more than the words quoted, but otherwise admits the words quoted. She did not point to what other words were in the booklet and whether or in what way they should be considered.
The Council relies on the representations in both booklets. Both booklets were sent to Client B in February 2018 and Client C on 5 June 2018 as a letter and each was signed by the Respondent with the signature: "Dominique E Grubisa BA(Hons) LLB. LLM"
The thrust of the Council's argument lies both in what the words in the booklets say and what they don't say.
The Council contends that the words do not say:
That simply executing an equitable mortgage and lodging a caveat would not, as a matter of law achieve an indefeasible interest in the customer's assets in favour of the trust
For an equitable trust to be effective, it must secure a genuine debt
In the absence of a genuine debt, an equitable mortgage is liable to be set aside
A caveat may be challenged and
Does not provide information about the circumstances in which transactions may be set aside or avoided.
The Council contends that the words in the booklets conveyed
that the MWC Package once put in place was effective in preventing creditors from obtaining access to the customer's assets
the clear import of all of the language in the documents was that the scheme would work to "soak up all the remaining equity" leaving nothing for creditors to take and further that by mortgaging the customer's chattels, creditors cannot have access to them. This was said to be notwithstanding the caveat expressed in paragraph (i). in the Guide to Asset Protection that "...No asset protection system can spruik itself as being impenetrable" and in (c) that beyond the customer's property, creditors can "legally intercept your income, earnings, personal goods and chattels and other wealth ..."

[173]

80. The principles are well established. Determining whether a person has breached s18 of the ACL [Australian Consumer Law] involves four steps: first, identifying with precision the "conduct" said to contravene s18, second, considering whether the identified conduct was conduct "in trade or commerce"; third, considering what meaning that conduct conveyed; and fourth, determining whether that conduct in light of that meaning was "misleading or deceptive or ... likely to mislead or deceive"

81. The first step requires asking: "what is the alleged conduct?" and "does the evidence establish that the person engaged in the conduct?". The third step considers what meaning that conduct conveyed to its intended audience**.** As in this case, where the pleaded conduct is said to amount to a representation, it is necessary to determine whether the alleged representation is established by the evidence. The fourth step is to ask whether the conduct in light of that meaning meets the statutory description of "misleading or deceptive or ... likely to mislead or deceive"; that is, whether it has the tendency to lead into error**.**. Each of those steps involves "quintessential question[s] of fact".

82. The third and fourth steps require the court to characterise, as an objective matter, the conduct viewed as a whole and its notional effects, judged by reference to its context, on the state of mind of the relevant person or class of persons. That context includes the immediate context - relevantly, all the words in the document or other communication and the manner in which those words are conveyed, not just a word or phrase in isolation - and the broader context of the relevant surrounding facts and circumstances. It has been said that "[m]uch more often than not, the simpler the description of the conduct that is said to be misleading or deceptive or likely to be so, the easier it will be to focus upon whether that conduct has the requisite character". That said, the description of the conduct alleged and identified at the first step should be sufficiently comprehensive to expose the complaint, because it is that conduct that will ultimately, as a whole, be determined to be or not to be misleading or deceptive.

84. Where the conduct was directed to the public or part of the public, the third and fourth steps must be undertaken by reference to the effect or likely effect of the conduct on the ordinary and reasonable members of the relevant class of persons. The relevant class of persons may be defined according to the nature of the conduct, by geographical distribution, age or some other common attribute, habit or interest. It is necessary to isolate an ordinary and reasonable "representative member" (or members) of that class, to objectively attribute characteristics and knowledge to that hypothetical person (or persons), and to consider the effect or likely effect of the conduct on their state of mind. This hypothetical construct "avoids using the very ignorant or the very knowledgeable to assess effect or likely effect; it also avoids using those credited with habitual caution or exceptional carelessness; it also avoids considering the assumptions of persons which are extreme or fanciful". The construct allows for a range of reasonable reactions to the conduct by the ordinary and reasonable member (or members) of the class.

endnotes removed

[200]

The Council relies on the provisions of s35 of the Uniform Law which provides that the principal is taken to have breached the provision where the principal knowingly authorised or permitted the contravening conduct or ought reasonably have been in a position to influence the conduct of the law practice but did not do so.
It was not disputed by the Respondent that no bill was provided to Client C, Client D and to Client B but disputes the date on which it was issued, namely says that it was issued on 1 December 2017, not 30 November 2017 as the complaint asserts.
She also admitted that the lawyers at DGI Lawyers were acting under her supervision at the relevant time.
Further the Respondent admitted that the invoices itemise the total price paid and payable for the MWC Package and did not distinguish between costs paid for the MWC Package and the legal services delivered as part of that package. She further admitted that the invoices do not contain any statement complying with s192 of the Uniform Law.
However, the Respondent denied that she was required to comply with the requirements of s192 and contended that the invoice for the purchase of the MWC Package included the provision of legal services which included the preparation and review of the Asset Protection Plan Legal Document. She further denied that she provided legal services to purchasers of the MWC Package.
As to whether the provision of the MWC Package included the provision of legal services, the Council noted that in correspondence between the Respondent's then solicitors and the Law Society on 15 February 2021, she admitted that all legal work and legal services" relation to the MWC Package were undertaken by DGI Lawyers and the Respondent. Relying on that concession, the Council submitted that the words "all" legal work and services must include the provision of the Asset Protection Plan Legal Documents. The Council relied on a number of similar concessions made on the Respondent's behalf to the Law Council to the same effect, namely that all legal work and legal services provided under the Asset Protection Plan was done by DGI Lawyers. The Council further contends that based on those concessions it was reasonable to conclude the price of the purchase of the MWC Package included the provision of legal work and services.
The Tribunal finds that the conclusion is well open on the evidence, and notes that in a letter dated 8 November 2021 from the Respondent's then solicitors to the Law Society it was noted that the costs of the MWC Packages was "all inclusive" and continued to note that the customers were not charged for the time spent by the Respondent or DGI Lawyers "...outside the services comprised in the Master Wealth Control Package."
Thus, the Tribunal is comfortably satisfied that DGI Lawyers under the supervision of the Respondent provided legal services to purchasers of the MWC Package which required compliance with s192 and but did not.
The Tribunal finds this Ground made out.
Ground 11 says:

[212]

The Tribunal's function has also been described as "educative" in that it publicly marks "the seriousness of what the instant solicitor has done" (Mahoney JA in Law Society of New South Wales v Foreman [1994] NSWCA 69 at [441])
In considering whether the Tribunal would recommend the Respondent's name be removed from the Roll of Solicitors, we are mindful that it is a serious step and should only be taken in very serious circumstances, such as when the conduct of the practitioner is inconsistent with the privileges of further legal practice.
Further the Tribunal must consider whether in recommending the removal of a lawyer from the local roll, whether the unfitness to practice law is temporary or of indefinite duration. "That is because, in relation to deficiencies identified as being temporary, the public interest may be able to be protected by lesser measures, such as a temporary suspension from practice": Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93 at [53]
The Tribunal has concluded that in this matter, no order short of a recommendation that the Respondent's name be removed from the roll of solicitors is appropriate.
In coming to that conclusion, we take into account that the grounds establish conduct which represents very serious and persistent departures from a reasonable standard of competence and diligence. That conduct included incompetent legal advice, misleading the Law Society, arranging and approving of investigators attempting to obtain privileged information from another solicitor by deception and failing to appreciate and act on clear potential conflicts of interest, amongst other things. Compounding this conduct is the Respondent's apparent inability to appreciate the seriousness of her conduct which, as the Council submitted gives the Tribunal no confidence that she would, if she were to remain practising, not act in the same way.
Associated with the Respondent's failure to recognise the very serious breaches of the Uniform Law also seem to the Tribunal to demonstrate a lack of insight into her conduct and its effect on her clients and the profession generally. To quote from Council of the Law Society of New South Wales v Sideris [2026] NSWCA 159 at [97]:

The Council of the Law Society of NSW v Grubisa [2025] NSWCATOD 127;

At a glance

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