Div 9Appointment of supervisors and managers

Division 9—Appointment of supervisors and managers 43A—Interpretation In this Division— legal practitioner means— (a) a local legal practitioner; or (b) an interstate legal practitioner who has established an office in this State; or (ba) an Australian-registered foreign lawyer who has established an office in this State; or (c) an incorporated legal practice. 44—Control over trust accounts of legal practitioners (1) If the Society knows, or suspects on reasonable grounds, that— (a) a legal practitioner has died (or in the case of a company, has been dissolved or is being wound up); or (b) a legal practitioner is for any reason not attending properly, or unable to attend properly, to the affairs of his or her practice; or (c) a legal practitioner has committed a serious irregularity in the course of practice, or a serious irregularity has occurred in the course of practice; or (d) a person has ceased to be a legal practitioner without making proper provision for winding up the affairs of his or her practice; or (e) any other proper cause exists for the appointment of a supervisor under this section, the Society may, by resolution of the Council, appoint a supervisor to exercise the powers conferred by this section. (2) A person appointed under subsection (1) has power to— (a) ascertain and verify entitlements to trust money; and (b) dispose of trust money to persons entitled to the money or in accordance with the Unclaimed Moneys Act 1891; and (c) execute cheques or other instruments for the purpose. (3) As soon as practicable after any such resolution has been passed, the Society must cause a written copy of the resolution to be served on— (a) the legal practitioner or former legal practitioner or his or her personal representative; and (b) any other person authorised to operate the trust account of the legal practitioner; and (c) the auditor (if any) of the trust account maintained by the legal practitioner or former legal practitioner; and (d) the manager or other principal officer of the office or branch of the ADI at which the legal practitioner or former legal practitioner maintained the trust account. (4) After service of the notice on the ADI, and until the resolution ceases to be effective— (a) no payment may be made by the ADI of any cheque or other instrument drawn on the trust account to which the resolution relates unless it bears the signature of the person appointed pursuant to this section; and (b) if it bears the signature of the person so appointed (whether or not it bears the signature of any other person) it is lawful for the ADI to make a payment in accordance with the cheque or other instrument. (5) A person on whom a copy of the resolution has been served must not sign any cheque or other instrument drawn on the trust account to which the resolution relates unless that cheque or instrument is signed by the person appointed pursuant to this section. (6) A person who contravenes this section is guilty of an offence. Maximum penalty: $1 250. (7) A resolution under this section is effective for a term of 12 months or such lesser term as may be fixed by the Society but the Society may, from time to time, renew the resolution for a term not exceeding 12 months. (8) The Society may, at any time, revoke an appointment under this section. 45—Appointment of manager (1) If the Society knows or suspects on reasonable grounds that— (a) a legal practitioner has died (or in the case of a company, has been dissolved or is being wound up); or (b) a legal practitioner is for any reason not attending properly, or unable to attend properly, to the affairs of his or her practice; or (c) a legal practitioner has committed a serious irregularity in the course of practice, or a serious irregularity has occurred in the course of practice; or (d) a person has ceased to be a legal practitioner without making proper provision for winding up the affairs of his or her practice; or (e) any other proper cause exists for the appointment of a manager under this section, the Society may, by resolution of the Council, appoint a legal practitioner as a manager in respect of the practice of the practitioner or former practitioner. (2) As soon as practicable after any such resolution has been passed, the Society must cause notice of the resolution to be served on— (a) the legal practitioner or former legal practitioner or his or her personal representative; and (b) any partner of the legal practitioner or former legal practitioner; and (ba) any other person authorised to operate the trust account of the legal practitioner; and (c) the auditor (if any) of the trust account maintained by the legal practitioner or former legal practitioner; and (d) the manager or other principal officer of the office or branch of the ADI at which the legal practitioner or former legal practitioner maintained the trust account. (3) A manager appointed under this section has full power— (a) to transact any urgent business of the legal practitioner or former legal practitioner; and (ab) to dispose of trust money to persons entitled to the money, or in accordance with the Unclaimed Moneys Act 1891, and to execute cheques or other instruments for the purpose; and (ac) to pay to the Society any amounts that the Society is entitled to recover from the legal practitioner or former legal practitioner under section 48; and (b) with the approval of clients of the legal practitioner, or former legal practitioner, to transact any other business on their behalf; and (c) to perform any other act relating to the practice of the legal practitioner or former legal practitioner that the manager may be authorised to perform by the Society. (4) A manager may take possession of any documents relating to the practice and for that purpose may enter any place or premises where the manager reasonably suspects any such documents to be, using such force as may be necessary to enter that place or those premises. (5) The Society may, at any time, revoke an appointment under this section. 46—Appeal against appointment of supervisor or manager (1) A legal practitioner or former legal practitioner may, within 28 days after the appointment of a supervisor or manager, appeal to the Supreme Court against the appointment. (2) On an appeal under this section the Supreme Court may confirm or annul the appointment. 47—Application for directions (1) A supervisor or manager appointed under this Division may apply to the Supreme Court for directions in relation to any matter affecting his or her duties or functions under this Division. (2) The costs of any application under subsection (1) are payable out of the Fidelity Fund. 48—Remuneration etc of persons appointed to exercise powers conferred by this Division (1) A supervisor or manager appointed under this Division is, subject to subsection (3), entitled to such remuneration, allowances and expenses as may be determined by the Society. (2) Any such remuneration, allowances and expenses will be paid out of the Fidelity Fund. (3) The account of a supervisor or manager for remuneration, allowances and expenses may, on the application of the Attorney-General or the Society, be adjudicated and settled by the Supreme Court. (4) The Society may recover, as a debt due to it, the costs, charges and disbursements appropriate to legal work performed by a manager appointed under this Division. (5) The Society may recover as a debt from a legal practitioner or former legal practitioner any expenditure (other than expenditure recouped under subsection (4)) from the Fidelity Fund in consequence of the appointment of a supervisor or manager for the practice of that practitioner or former practitioner. (5a) A manager must, in dealing with money in the course of the management of the practice of a legal practitioner or former legal practitioner, give priority to payment of amounts recoverable by the Society under subsections (4) or (5). (6) Any amount recovered by the Society under subsection (4) or (5) must be paid into the Fidelity Fund. (7) A supervisor or manager incurs no liability by reason of an act or omission in good faith and in the exercise of powers or functions under this Division.