Law Society of New South Wales v Hussain [2005] NSWADT 28 (18 February 2005)

Last Updated: 18 February 2005

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL LEGAL SERVICES DIVISION

CITATION: Law Society of New South Wales v Hussain [2005] NSWADT 28


PARTIES: APPLICANT
Council of the Law Society of New South Wales
RESPONDENT
Fahmi Mustafa Hussain



FILE NUMBERS: 042008

HEARING DATES: 17/11/2004

SUBMISSIONS CLOSED: 17/11/2004



DECISION DATE: 18/02/2005

BEFORE: Nader J QC - ADCJ (Deputy President)Greenwood J - Judicial MemberCostigan M - Non Judicial Member





LEGISLATION CITED: Legal Profession Act 1987

CASES CITED:

APPLICATION: Professional Misconduct - breach of s. 61 of the Legal Profession Act
Professional Misconduct - breach of s. 62 of the Legal Profession Act
Professional Misconduct - lying to client
Professional Misconduct - lying to Legal Services Commissioner/Bar Association/Law Society
Professional Misconduct - misappropriate trust moneys/moneys

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
D Barton, solicitor

RESPONDENT REPRESENTATIVE: RESPONDENT
J Maspero, solicitor

ORDERS: 1. That the legal practitioner's name be removed from the Roll of Legal Practitioners
2. That the legal practitioner pay the Law Society's costs of and incidental to the proceedings, as agreed or as assessed under Division 6 Part 11 of the Legal Profession Act 1987.


Reasons for Decision:

REASONS FOR DECISION

1 By Information dated 27 February 2004 and filed on 1 March 2004, the Council of Law Society of New South Wales (the Council) seeks findings against Fahmi Mustafa Hussain (the Respondent) of professional misconduct and unsatisfactory professional conduct on grounds stated in the Information.

2 The grounds are numbered I to VII and these reasons will deal with them in the same order.

3 In addition to the findings referred to, the Council seeks orders -

(i) that the Respondent's name be removed from the role of legal practitioners, and

(ii) that the respondent pay the Law Society's costs of and incidental to the proceedings, as agreed or as assessed under Division 6, Part 11 of the Legal Profession Act 1987 (the Act) or on such other basis as the Tribunal may determine.

4 Our task was eased by the fact that the Respondent, upon the advice of his solicitor, Mr Maspero, who appeared for him at the hearing, made admissions of fact that enable us to find established the material allegations of the Council without our having to consider at length the probative value of the evidence (apart from the Respondent's admissions) supporting them. We do not suggest that the affidavit evidence in support of the allegations of fact lacked weight, indeed, we can see that it did not. The preparation of that affidavit evidence by the Receiver of the Respondent's practice, Ms Jean Sayer, was, as usual, complete and thorough. Although it cannot affect the outcome of these proceedings, the making of the admissions made our task considerably less burdensome and it is appropriate that we commend the Respondent's solicitor for having advised that they be made and the Respondent for having made them.

5 The admitted facts and the admitted legal consequences are set for hereunder.

Particular 2. IQRA Youth Welfare Centre Inc.

6 The Respondent acted for IQRA Youth Centre Inc. (the Centre) on the purchase of a property at Lakemba for $221,500.00. After paying a 10% deposit, the Centre provided a bank cheque for $100,000.00 which was deposited into the Respondent's trust account on 22 December 2000 and credited to the trust ledger account, "Rouhullah S Khwaja re. Sale".

7 The money was wholly misappropriated by seven separate withdrawals, made between 22 December 2000 and 26 February 2001, none of which related to the Centre.

8 The Respondent admitted the facts alleged by the Council and that they constituted professional misconduct. In each instance dealt with in these Reasons, the facts having been admitted, the inescapable conclusion was that they constituted professional misconduct and the admission to that effect was quite properly made.

Particular 3. Australian Islamic Education Board

9 The Respondent acted on a purchase by the Australian Islamic Education Board (the Board) of 35 Hampden Road, Artarmon from the Scouts Association of Australia for $230,000.00. A deposit of $23,000.00 was paid on exchange of contracts on 30 March 2001. The sum of $208,000.00 to complete the purchase was deposited by the Board to the Trust Account of Barclay Benson on 27 April 2001 and credited to the trust ledger account styled "Rouhallah S. Khwaja re Sale". This is the same account from which moneys were deposited on 22 December 2000 and later misapplied in relation to the purchase by the Centre from the Scouts Association dealt with above. This money was wholly misappropriated by sixteen separate withdrawals, made between 30 April 2001 and 30 July 2001, none of which related to the affairs of the Board.

Particular 4. Ebrahim Ismail Varachia - Immigration

10 Ebrahim Ismail Varachia (Mr Varachia) was an immigration client of Barclay Benson. Mr Varachia placed moneys in a US$ account with Citibank. A Power of Attorney was given to the Respondent by Mr Varachia to enable the Respondent to withdraw the funds. In a letter to Mr Varachia the Respondent stated that the moneys were deposited in his firm's Trust Account.

11 On 27 January 2000, Mr Varachia enquired of Barclay Benson as to the position concerning the moneys. The Respondent said that Barclay Benson were holding the moneys in their trust account in the sum of $38,000.00. In fact, no moneys were held in the trust account of Barclay Benson on that date.

12 Proceeds of the Citibank account, $A34,859.90, were received into the trust account on 4 July 1997. The whole amount was disbursed to various persons by nine cheques. Although four of them were shown in the trust statement of 30 June 1998 to be drawn to be in favour of Varachia, none of the nine amounts withdrawn was used in connection with the affairs of Mr Varachia.

13 On 27 August 2000 the Respondent confirmed to Mr Varachia that $38,000.00 was held in the trust account. He subsequently stated that the amount held was $34,859.90.

14 Mr Varachia instructed the Respondent to transfer the sum of $35,000 to Atkinson Cooper Securities Ltd. On 29 November 2000 the Respondent did as requested. The amount of the $35,000 was debited to the trust ledger account of Hartford Lane Pty Limited in the trust account maintained by Barclay Benson covered by a deposit received into that account on 3 November 2000. The transaction was a misappropriation of that amount.

Particular 5. Anwar Mohamad Ali Dib

15 Barclay Benson acted for Mr Dib on the purchase of real estate at 21 Union St, Auburn, for $265,000. The Respondent had the carriage of the matter. Mr Dib is not able to speak English.

16 A holding deposit of $670 was paid to the agent and the balance of the 10% deposit payable on exchange was $25,830 (a total of $26,500). A cheque in the sum of $22,830 is shown as having been received from the Mr Dib and deposited to the trust account on 12 April 2001. It is described in the trust ledger account of Mr Dib as "deposit moneys plus c./d." That sum of $22,830.00 was entirely misappropriated by the drawing of five cheques for purposes unrelated to Mr Dib's business.

17 On 10 April 2001 Mr Dib had given to the Respondent the sum of $26,830 and not $22,830 as recorded in the trust account records as having been received on 12 April 2001. Mr Dib holds a receipt from the Respondent for a cheque for $22,830 and for $4000 paid in cash. The cash was not deposited to the trust account and was misapplied by the Respondent.

18 A cheque for the deposit on Mr Dib's purchase in the sum of $26,500 was sent to Jenman Real Estate on 9 May 2001. That cheque was debited to the trust ledger account of Mr Annas Ahmed Rajah and was a misappropriation of Mr Rajah's trust funds.

19 Because Mr Dib had paid a holding deposit of $670 when the Respondent had paid $26,500.00, the total deposit paid was actually $27,170.00. The settlement figures did not give credit for the additional sum paid. Mr Dib paid $3,000.00 to the Respondent having been told by the Respondent that that the vendor was desperately in need of money.

20 Mr Dib later purchased a bank cheque for $26,616.55, being the amount required to settle the purchase, less the $3,000.00 paid in cash and also paid $650 for the balance of costs due.

Particular 6. Jangsoo Park and Rodney & Denise Macaulay

21 The Respondent acted for Jangsoo Park (Mr Park) in a District Court claim against I and M H Koh. By consent, the sum of $115,000.00 was to be paid to Mr Park in satisfactions of the judgment debt of $125,580.00 as follows:

$40,000.00 by 9 January 2001

$40,000.00 by 9 July 2001

$35,000.00 by 9 July 2002.

22 Because he was not resident in Australia, Mr Park had paid the sum of $15,000.00 into the Barclay Benson trust account as security for costs.

23 On 8 November 1999 a cheque for $4,300.00 was drawn against the trust account and debited to the ledger of Mr Park's account. This was a misappropriation of funds of Mr Park.

24 On 8 November 2000 Mr Park forwarded $5,000.00 by telegraphic transfer (to the Respondent) for the payment of counsel's fees. $6,000.00 was transferred to the general account of Williams Hussain on 23 November 2000 covered by the amount of $5,000.00 referred to and a balance remaining in the trust account from the funds received as security for costs. There has been a failure to account to Mr Park for the $5000,00 paid on 8 November 2000.

25 The first instalment due by Mr Koh was received into the Respondent's trust account on 10 January 2002. All barrister's fees were paid and a further $3,065 drawn for costs due to the Respondent's firm. Mr Park was given credit for the moneys paid by him and, in effect, moneys misapplied were made good.

26 On 16 July 2001, in respect of the payment due to Mr Park on 9 July 2001, the Respondent received from Mr Koh the sum of $19,000.00 in cash. The balance of $21,000.00 was also received in cash by the Respondent on 1 August 2001. On this last day the Solicitor signed a hand written receipt for the total received, namely, $40,000.00. No part of this total sum was deposited into either the trust account or the general account of the Respondent. This is clearly a contravention of subsection 61 (1) of the Act.

27 The final payment of $35,000.00 was due on 9 January 2002. The Receiver has been unable to establish whether this sum was paid by Mr Koh. There is an apparent failure to account to Mr Park for $45,000 made up of $5,000 received from him on 8 November 2000, cash received by the Respondent on 16 July 2001-- $19,000, and cash received by the Solicitor on 1 August 2001 -- $21,000.

Particular 7. Fahmi Mustafa Hussein & Meraj Hussain -- Purchase of Unit 1.08 The Wharf, Woolloomooloo and car space Lot 39.

28 The Respondent and his wife purchased the property at unit at 1.08 The Wharf, Woolloomooloo and a car space Lot 39 for a consideration of $775,000. Contracts were exchanged on 13 July 1999 and a holding deposit of $3,000 was paid by the Respondent. A cheque in the sum of $35,750 was paid to the solicitor for the vendor on or about 13 July 1999. The Respondent and his wife obtained an advance of $620,000 from the Commonwealth Bank.

29 Settlement took place on 7 April 2000. The balance due on settlement was $749,614.97 of which $619,700 was paid by the bank and the following cheques were drawn on the trust account of the Respondent.

Cheque payable Macquarie Bank Limited -- debited to the trust ledger account of V & R John re - Purchase $128,207.97

Cheque payable to Mallesons Stephen Jaques -- debited to the trust ledger account of Y S Song $500.00

Cheque payable to S A Teen -- debited to the trust ledger account of Y S Song $1,207.00

30 Cheque for $128,207.97 debited to V & R John was covered by a deposit to the trust account of $167,000.00 on 14 March 2000 by a cheque drawn by V & R John on their account with Westpac Belmont. Cheques drawn against this amount and an amount of $250.00 received for disbursements were as follows:

14 March 2000 Dimity O'Dea $8,500

16 March 2000 Solicitors Urgent Enquiries $199

7 April 2000 Macquarie Bank Limited $128,270.97

7 April 2000 Balance $30,343

$167,249.97

31 None of the amounts drawn relates to the affairs of V & R John and the drawings constitute a misappropriation by the respondent.

Particular 8. Varughese and Rachel R John purchase of property 28/10-12 Grosvenor Street, Croyden

32 The respondent acted for Mr and Mrs John on the purchase of the property for a consideration of $247,000.00. Mr John provided a cheque for $24,700.00 for the deposit and a cheque for his deputy in the sum of $7,139.00. The duty was paid on 15 March 2000. On 9 March 2000 Mr John paid $500.00 for costs and disbursements and a cheque payable to Barclay Benson for $222,800.00 to cover the balance of purchase money.

33 A trust account statement in the matter file shows deposits of $222,500.00 and a payment to Solicitors' Urgent Enquiries on 19 May 2000 of $222,500.00. However only $500 was deposited to the trust account. The cheque payable to Barclay Benson in the sum of $222,800.00 was not deposited to the trust account but was misapplied by the Respondent (see the matter of Zaid, below).

34 The Respondent advised the Receiver that Mr John was not well, having had, or to have by-pass surgery and his intentions in respect of the purchase were not clear. The Respondent further advised the Receiver that Mr John had said that the Respondent could use the money in the meantime. These statements were untrue.

35 The purchase was to be settled on 2 May 2000. That it did not occur and a Notice to Complete was issued on 10 May 2000. There was an appointment for settlement on 19 May 2000 but settlement did not take place on that day. Settlement finally took place on 31 May 2000 when cheques totalling $224,764.25 were paid. This sum included interest of $1,766.21. Those cheques were made up of $200,000.00 advanced to the Respondent by Dr A G Khan who provided a bank cheque payable to Ferncraft Pty Limited with the balance of $24,443.14 paid by trust account cheque debited to the trust ledger account of the Estate Late Kaye Lorraine Menner as to $22,386.89 payable to Ferncraft Pty Limited, as to $1,100.00 payable to Comino & Pitsakis and $956.25 to the Office of State Revenue.

36 The cheque for $22,386.89 referred to above is shown in the trust account records as payable to K L Menner. The account of Menner relates to the estate of the late G. K. Anderson of which K L Menner is the Executrix.

37 The total sum of $24,443.14 was misappropriated from the funds of the Estate Menner.

38 The Respondent informed Mr John that settlement was delayed for the reason that clarification was required concerning outstanding Land Tax. There was never any problem concerning Land Tax. The only reason why settlement was delayed was that the Respondent had used Mr John's funds for his own purposes.

Particular 9. Estate Late George Kenneth Anderson

39 The Respondent acted for Ms K L Menner in obtaining Probate in the estate of her late father G K Anderson. The only asset of the estate was a property at 39 Lenore Street, Russell Lea ("the property"). The property had already been sold by the executrix, however a settlement could not take place until Probate had been granted and the property transmitted to the executrix. The Respondent delivered to the executrix the original Probate document and advised her that she could now deal with the property and any other accounts that might be located.

40 By way of deposit on the sale of the property, the sum of $30,000.00 was received from J A Aussel on 30 May 2000 and deposited to the trust account and credited to the trust ledger account of the estate. Of that amount $24,443.14 was misapplied in respect of the matter of John as referred to above.

41 On 29 August 2000, $24,330.00 was deposited to the trust account and credited to the account of the estate by way of a cheque received from Resicom Australia. That deposit made good a deficiency in the funds of the estate. The sum of $30,000.00 then held in the trust account was disbursed as to $10,000 to J. M. Anderson, as to $10,000 to J. R. Anderson, as to $9,800.00 to K L Menner and as to $86.86 to K L Menner.

Particular 10. Property 4/11 Russell Street, Strathfield

42 The Respondent acted for Mr and Mrs John on their purchase of a property at 4/11 Russell St, Strathfield for a consideration of $185,000.00. A deposit of $18,500 was paid by Mr John on exchange on 4 March 2000. The sum of $167,000.00 was received from Mr and Mrs John for the settlement of this purchase and deposited to the trust account on 14 March 2000. Pursuant to the contract, the due date for settlement was 17 April 2000.

43 Cheques were drawn against the $167,000 and $250 received for disbursements as follows:

Dimity O'Dea $8,500.00

Solicitor's Urgent Enquiries $199.00

Macquarie Bank Limited $128,207.97

Balance $30,343.03

$167,250.00

44 An authority bearing a signature purporting to be that of Mr John and requesting a cheque to be drawn in favour of Dimity O'Dea $8,500 was not signed by Mr John.

45 The cheque payable to Macquarie Bank was the balance of purchase moneys paid for the purchase by the Respondent and his wife of the of the investment property at Woolloomooloo: see above.

46 On 3 May 2000 a Notice to Complete was issued.

47 On 9 May 2000 cheques totalling $137,800.00 were received and deposited to the trust account and credited to the trust ledger and account of V & R John made up as follows:

Shayne Properties Pty Limited $10,000

Fobupu Pty Limited $54,000

Smif's Pty Limited $53,800

Bank cheque drawn on CBA, Sydney $20,000

Total $137,800

48 The sum of $10,000 was received as an option payment in respect of Hartford Lane Pty Limited and the disbursement of that amount in this account was a misappropriation of trust moneys.

49 The purchase was completed on 10 May 2000.

Particular 11. Dr Gulam Akbar Khan

50 The Respondent approached Dr Khan for an advance of $54,000 for one month which was supplied by cheque drawn on Dr Khan's company Fobupu Pty Limited. The cheque was deposited to the trust account and credited to the trust ledger account of V & R John to cover in part an amount paid on settlement of the purchase by them of a Strathfield property (see above). The Respondent had misappropriated the purchase money provided by Mr and Mrs John.

51 The $54,000 was repaid on 20 December 2000 by a Barclay Benson trust account cheque payable to Pak Tandoori and debited to the trust ledger account "Rouhullah S Khwaja re Sale". The moneys in that account had been received from the Australian Islamic Education Board.

52 A further sum of $200,000 was advanced to the Respondent by Dr Khan on 30 May 2000.

53 The Respondent informed Dr Khan that he had entered into a contract for the purchase of property which expired on 31 May 2000 and he would lose $117,000 if he did not meet his obligation. That comment referred to the purchase of property at Woolloomooloo (see above). The cheque for $200,000 was not used for their purchase. The Respondent had acted for Mr and Mrs John on their purchase from Frencraft Pty Limited of property at Croydon (see above) which settled on 31 May 2000 for which $222,386.89 was required. That amount was covered by the cheque provided by Dr Khan and a bank cheque for $22,386.89 debited to the trust ledger account of Kaye Lorraine Menner (see above).

54 The sum of $200,000 was repaid to Dr Khan as follows:

4 July 2001 From the funds of D H Kim $50,000

25 July 2001 From moneys provided by J Salah $35,000

27 July 2001 From the trust account of Dalton Legal $7,000

15 August 2001 From funds provided by D H Kim for his purchase

$50,000

14 September 2001 From the trust account of Dalton Legal by way of a misappropriation of trust moneys $50,000

11 October 2001 From the trust account of Dalton Legal by way of a misappropriation of trust moneys $11,000

$203,000

55 The cheque for $11,000 was drawn payable to Sarah Khan, the nine year old daughter of Dr Khan. The Respondent advised the Receiver that this was a repayment of part of the $200,000. Dr Khan denies this and has advised that he did not receive $11,000.

56 The repayments totalling $203,000 represent a misappropriation of trust moneys received by the Respondent after he commenced practice as a sole practitioner as Dalton Legal and form part of the deficiency in the trust account of the Respondent at the date of the appointment of the Receiver.

Particular 12. Hartford Lane Pty Limited

57 The Respondent acted for Hartford Lane concerning an option and ultimate sale of property in Wallgrove Road, Eastern Creek.

58 A $10,000.00 option fee was received by the Respondent on 9 May 2000. The cheque was banked with other cheques totalling $127,800.00 to the credit of the ledger account of V & R John. This deposit to the trust account was partly to make good a shortage in that account after the Respondent's misappropriation to fund the purchase the property at Woolloomooloo by him and his wife (see above).

59 Subsequently, Hartford Lane instructed the Respondent to pay the $10,000.00 option fee to Minter Ellison.

60 Cheque number 300099 was drawn on the trust account on 16 November 2000 payable to Minter Ellison and debited to trust ledger account "Hartford Lane Pty Limited -- sale of Lot 105 Stage 1 Wallgrove Road, Eastern Creek". This cheque represented a misappropriation in that the cheque was drawn against the sum of $127,800 received into the trust account on 3 November 2000 from Carbone & Associates representing a deposit paid on behalf of Cavcorp Australia Pty Limited which was to be refunded to that company.

61 The sum of $127,800 was paid out by cheques drawn between 3 November 2000 and 18 December 2000 leaving a balance of $234 transferred as costs to Williams Hussain Lawyers on 31 May 2001. There is no evidence that this amount would represent costs.

62 None of the amounts drawn is related to the matter of Cavcorp, J.D.Property investments New South Wales Proprietary Limited or Hartford Lane. The cheques drawn were as follows:

(a) 6 November 2000 Y Jacobs $20,500

Mr Jacobs was a client and this cheque represented a misappropriation from this account.

(b) 6 November 2000 Australand $34,500

The Receiver is unaware of any connection between Australand and Cavcorp Australia Pty Limited and the nature of this payment is not known to her.

(c) 16 November 2000 H. J. Chen $15,000

The payment to H J Chen was in relation to the indebtedness of the Song family to Chen in respect of mortgage advances.

(d) 16 November 2000 Minter Ellison Trust Accounts $10,000

The payment of $10,000 was the refund of the option fee which had been misapplied from the trust account of V & R John.

(e) 16 November 2000 Sarah Toale "consultancy fee" $5,000

The Receiver has not been able to obtain details of the payment to Sarah Toale.

(f) 29 November 2000 Atkinson Cooper Securities Ltd -- Refund of Investment $34,940

(g) 29 November 2000 Bank Fee re Telegraphic Transfer $26

These cheques represent the refund to Mr Varachia of moneys misapplied which have been dealt with separately (see above)

(h) 18 December 2000 Office of State Revenue - Stamp Duty $7,600

The Receiver is unable to identify the client on whose behalf stamp duty was paid, however it was not in relation to Hartford Lane.

(i) 31 May 2001 Williams Hussain Lawyers -- Balance of Legal Fees $234

There is no evidence of any bill of costs issued to Hartford Lane. $127,800

63 On 4 May 2001 $50,000 was paid by Barclay Benson trust account cheque to Carbone & Associates being a misappropriation of moneys of the Australian Islamic Education Board through an account in the name of Rouhullah Khwaja.

Particular 13. Fahmi Hussain re Sydney Business Finance Pty Limited (SBF)

64 The Respondent borrowed at $45,000 in about November 1998 from SBF secured by an unregistered second mortgage over the Respondent's home at Normanhurst. A caveat was placed on the property.

65 The advance of $45,000 was deposited into the trust account on 23 November 1998 and credited to the trust ledger account of Mr Michael Cooper (see below). The advance was drawn upon by cheque payable to Emery Partners and reimbursed Mr Cooper's moneys to the extent that they had been misappropriated on 12 September 1997 and 11 June 1998.

66 The loan from SBF was repayable on 18 December 1998. The amount to be repaid was $46,000 plus daily interest of $23.94 thereafter together with interest in arrears of $1,050.

67 On 9 February 1999 a cheque was drawn on the trust account payable to SBF for $446,263.34, the balance due by the respondent. The cheque was debited to the trust ledger account of Ya Yang Cheng and Chin-Chen Lin. The cheque was covered by direct deposit to that account on the same day as the proceeds of sale by the clients were deposited.

68 A deposit was made to this account on 10 February 1999 of $30,000 which covered a payment to one of the vendors, of that sum.

69 The Receiver is presently unable to advise as to the nature of this payment. Even if the $30,000 was to reimburse the moneys misused, there is still a shortage of $16,263.34.

70 The Receiver has been unable to establish the whereabouts of the clients and she has not been able to obtain the matter files relating to Cheng and Lin.

Particular 14. Williams Tatlow

71 Mr Tatlow filed a Statement of Liquidated Claim against the Respondent, asserting that he had on 20 July 1999 claimed $57,480.78 for unpaid loans ($21,000) and interest ($35,957.78). The Respondent offered to repay $21,000 and $5,000 interest. This offer was accepted.

72 Payments were made by cheques drawn on the trust account as follows:

31 August 1999 - Debited to the trust ledger account of Kosis Graduates Co-operative - $5,000

5 October 1999 - Debited to the trust ledger account of the Cheesecake Shop, Gladesville - $3,000

2 November 1999 - Debited to the trust ledger account of G S Kim - $3,000

9 December 1999 - Debited to the trust ledger account of the Cheesecake Shop - $3,000

11 February 2000 - Debited to the trust ledger account of G S Kim -$3,000

28 May 2000 - Debited to the trust ledger account of R Sohn - $4,000

73 It appears that a further payment of $5,000 was made between 17 and 27 March 2000, however the Receiver has been unable to trace the payment. The cheques debited to the Cheesecake Shop, Gladesville, and G S Kim represent a misappropriation of trust moneys.

Particular 15. Andrew Ogborne - Barrister

74 On or about 6 February 1999 the Barrister, through his solicitors, filed a Statement of Liquidated Claim in the Local Court against the Respondent and Mr Williams in respect of fees due to him in the matter of Samir Jammal.

75 Judgment against the Respondent and Mr Williams for $5,553.10 was obtained on 15 May 2001.

76 On 30 June 2000, Mr Jammal personally paid to Mr Ogborne the sum of $2,500 leaving an outstanding balance of $3,900.

77 On 31 May 2001 a trust cheque for $5,525 payable to Mr Ogborne's solicitors, was debited to the trust ledger account of IQRA Youth Welfare Centre Inc. in payment of the balance due (less $28.10 which was not pursued).

Particular 16. Michael Fisher

78 Mr Fisher, a Barrister, issued a Statement of Liquidated Claim on 27 August 1999 against the Respondent and Mr Williams for $12,237.63 in relation to fees due to him in respect of the preparation of a bill of costs in the matter of Chama.

79 The proceedings were discontinued when agreement was reached to a payment of $7,250 to be paid by a first instalment of $2,250 and the second instalment of $5,000.

80 $2,250 was paid on 28 February 2000 by way of a Barclay Benson Trust cheque debited to the trust ledger account of Y Jacobs.

81 A final payment of $5,150 was paid by a Barclay Benson Trust Account cheque debited to the trust ledger account of W S Song covered by $89,052.61, deposited to the trust account to cover the purchase by Ms D Song.

Particular 17. Kieran Smark, Barrister

82 On 27 August 1999, the barrister issued a Statement of Liquidated Claim in relation to outstanding fees in the matter of Korean Communications 58 Pty Limited. On 8 May 2001, a Barclay Benson trust account cheque for #2,530 was drawn, debited to the trust ledger account of Rouhullah S Khwaja. This cheque was covered by moneys for settlement of a purchase in that account received on behalf of the Australian Islamic Education Board.

Particular 18. Mr Guy Sub Kim (Mr Kim)

83 The Respondent acted for Mr Kim in matters mainly relating to Mr Kim's application to obtain permanent residency in Australia and the investment of moneys in Golden. On 28 October 1999, the Respondent wrote to Mr Kim putting a proposal for investment with Golden.

84 The Respondent received a total of $310,000 from Mr Kim for investment in Golden. Of that sum, $250,000 was dealt with in the trust account of Barclay Benson. The other $60,000 was paid into another account by the Respondent.

85 The following amounts were misappropriated from trust moneys. In some instances the amounts were drawn in relation to the indebtedness of the partners of the Respondent or the Respondent himself and for personal expenditure of Ms Song or her family.

2 November 1999 in payment of a personal debt of the Respondent to Mr Tatlow $3,000.00

11 February 2000 in payment of a personal debt of the Respondent to Mr Tatlow $3,000.00

5 July 2000 Resicom Australia - this relates to money advanced to the Song family in respect of their purchase of property at Woolloomooloo $5,000.00

14 July 2000 Payment to Gray Eisdell Timms Pty Limited - their amount was paid in relation to the affairs of another client, F Jacobs $5,856.80

14 July 2000 Payment to Gray Eisdell Timms Pty Limited - their amount was paid in relation to the affairs of another client, F Jacobs - Cash $4,143.20

21 July 2000 Williams Hussain $10,000.00

21 August 2000 Davidson James & Associates - this relates to a mortgage advance arranged by Mr Hussain. No moneys were borrowed by Mr Kim or the Golden Mountain Group through clients of Davidson James & Associates $945.00

21 August 2000 Williams Hussain - this was the balance in the trust ledger account at that date. The Receiver has not sighted any bills of costs rendered to Mr Kim or the Golden Mountain Group $1,005.00

26 November 1999 $160,000.00

86 $130,000, received on 26 November 1999, was deposited to the trust account and credited to the trust ledger account of Y S Song re purchase.

87 $30,000, received from Mr Kim, was deposited to the trust account on 26 November 1999 and credited to a trust ledger account "The Cheesecake Shop, Gladesville". This reimbursed that account in respect of moneys misapplied.

88 The trust ledger card of Y S Song contains entries relating to Mr & Mrs Song, by D Song and the Respondent and Mrs Hussain.

17 May 2000 Paid to F Jacobs $1,500.00

29 October 1999 Receipt $40,000.00

2 November 1999 Receipt $10,000.00

29 November 1999 The sum of $40,000.00 was transferred from Mr Kim's Surfers Paradise account on 29 November 1999 and deposited to the trust ledger account of Y S Song and disbursed as referred to earlier $40,000.00

89 On 9 October 2000, $60,000.00 was transferred to the account of Mr Zaka Hussain, the brother of the Respondent. The $60,000.00 was a partial repayment from a term deposit held at the Commonwealth Bank Surfers Paradise in the name of G S Kim.

Particular 19. Payments to guy Sub Kim (Mr Kim)

90 The following payments were made to Mr Kim from the moneys held in trust:

(a) On 22 December 2000, $10,000.00 was paid to Mr Kim from the trust ledger account of Khwaja in the Barclay Benson Trust Account. The payment of $10,000.00 represents misappropriation of trust money received from IQRA.

(b) See paragraphs 8 to 12, inclusive, above.

(c) On 16 August 2001, $34,000.00 was paid to Mr Kim from the Dalton Legal Trust Account.

(d) The $34,000.00 payment represented misappropriation of moneys held by the Respondent in the Dalton Legal trust account on behalf of other clients and is part of a shortage in the trust funds.

Particular 20. Young Soo Song and Dong Im Song

91 The Respondent acted for Mr and Mrs Song, the parents of Diana Song, who was employed by the Respondent's firm, on their purchase of unit 112 and car space 40 at The Wharf, Woolloomooloo for a consideration of $775,000.00. The deposit of $116,250.00 was paid to $238,750.00, and the balance was covered by a deposit bond in the sum of $77,500.00.

92 It respect of the purchase of Mr and Mrs Song, a notice to complete issued and when settlement had not taken place on 7 April 2000, the contract was terminated.

93 The vendor called upon the deposit bond and received payment in the sum of $77,500. With the imposition of a number of penalties agreed upon and the increase in the purchase price to $795,000, the matter eventually settled on 31 May 2000.

94 The Receiver does not know how the balance of the settlement moneys, after the provision of the mortgage advance, was provided.

95 Mr and Mrs Song were also obliged to repay the $77,500 to the insurer it respect of the deposit bond. In respect of this amount, the sum of $30,000 by cheque drawn on the account of Golden was paid on 7 July 2000. The balance, agreed upon, was to be paid by way of instalments of $5,000 per month.

Particular 21. Mi Kyung (Diana) Song

96 The Respondent acted for Diana Song on her purchase of apartment 125 The Wharf, Woolloomooloo, for $550,000.00. The contract was dated 31 March 1999 and provided for a consideration of $485,000 and a nomination deed to the owner in the sum of $65,000. The deposit of $72,750 was paid.

97 On 15 March 2000, a notice to complete was issued. Completion was to take place on 31 March 2000, however it too settled on 31 May 2000.

98 Colonial State bank advanced $438,128.00 towards the purchase.

99 The sum of $52,065.24, the balance then required for settlement, was paid from the trust account styled "Y. S. Song re. Purchase" together with a cheque for stamp duty of $20,250.00.

100 Those cheques were covered by a deposit of $89,052.61 credited to the trust ledger account of Y. S. Song. The trust ledger account "Y. S. Song re. Purchase" contained a confusion of entries which related to Diana Song, her parents and the Respondent, and other accounts which appear to related to other clients. Moneys deposited to that account are moneys paid by Mr G. S. Kim as an investment in Golden which involves the Song family and the Respondent.

Particular 22. Mohammed and Zahera Aslam

101 The Respondent acted for Mr and Mrs Aslam on the sale of 7 and 9/69 Bathurst Street, Liverpool and a discharge of mortgage thereon.

102 Settlement in respect of both properties took place on 9 April 2001, when the Respondent received the sum of $102,557.55 the surplus after discharge of mortgage. The sum was credited to the trust ledger account of Mr and Mrs Aslam on 12 April 2001.

103 On 12 April 2001, $20,000 was paid to Williams Hussain Lawyers said to be for legal fees -- there is a bill of costs in the instruction file in relation to Unit 7 in the sum of $845. No bill of costs in relation to Unit 9 was able to be located by the Receiver.

104 On the 19 April 2001 the sum of $82,557.55 was paid to Mr and Mrs Aslam's bank account.

105 A note on the ledger card indicates that stamp duty of $2442.98 was paid for the clients. Mr and Mrs Aslam have confirmed that Mr Hussein did not account to them for the sum of $20,000. In addition, the Respondent had not repaid to Mr Aslam $19,000 which he had given the Respondent upon his request to "help him out".

Particular 23. Dr Alsayed Ibrahim

106 The Respondent acted for Dr and Mrs Ibrahim on the sale of 77 Simmat St, Condell Park.

107 The deposit of $27,500 paid on exchange was deposited into the Respondent's trust account on 12 February 2001 and credited to the trust ledger account of Dr and Mrs Ibrahim. Cheques were drawn against the sum as follows:-

16 February 2001 G. Chami $15,000.00

16 February 2001 Citibank - repayment of debt $3,375.00

7 March 2001 D Aquilina - Barrister's fees $3,100.00

16 March 2001 Barclay Benson - legal fees $943.00

3 April 2001 Dr and Mrs Ibrahim - balance of sale proceeds

$4,006.50

3 April 2001 Williams Hussain Lawyers - balance of legal fees

$1,075.50

$27,500.00

108 Mr Chami informed the Receiver that the sum of $15,000.00 was repayment of a personal loan that he had made to the Respondent.

109 There were no barrister’s fees due to D Aquilina by Dr and Mrs Ibrahim.

110 The sum of $1,075.50 paid to Williams Hussain Lawers was a misappropriation. There were no further fees due by Dr and Mrs Ibrahim after the payment of $943 on 16 March 2001.

111 The sale was settled on 13 March 2001.

112 On settlement, a trust account cheque, 300314, was drawn for $26,557.00, given to the clients and presented on 27 March 2001 but it was reversed on 28 March 2001, described on the bank statement as "dishonoured".

113 On 3 April 2001, a letter was written by the Respondent to Dr Ibrahim to the effect that the Colonial State Bank had advised that the sum of $22,577.00 was available. The Respondent enclosed a further bank cheque for $4000.00. The source of the $22,577 is not known to the Receiver.

114 All of the cheques drawn from the deposit of $27,500.00, except costs of $943 and part payment of $4006.50, were misappropriation of funds of Dr and Mrs Ibrahim.

Particular 24. Dalton Legal

115 The Respondent commenced practice as a sole practitioner under the firm name of Dalton Legal in June 2001. He opened a trust account in that name with the Commonwealth Bank at Strathfield on 3 July 2001.

116 Trust moneys totalling $41,641.55 would have been deposited to that account until 14 August 2001 when the account was closed. The following sums were misappropriated:

6 July 2001 T Duller -- consulting fee $496.00

17 July 2001 M Murphy, barrister $9,858.75

18 July 2001 Roxburgh & Co $2,702.16

19 July 2001 Corporate Finance Resources $2200.00

27 July 2001 Dr G A Khan $7,000.00

31 July 2001A Ling re Song $6,000.00

3 August 2001 Office of State Revenue re Song $500.00

$28,756.91

117 No trust moneys were received relating to the matters in respect of which the above cheques were drawn. There were in effect, no accounting records relating to the trust account.

118 The balance of $6,228.88 was transferred to a trust account styled "Dalton Legal Trust Account" kept with the National Australia Bank on 16 August 2001.

119 A total of $1,464,358.20 of trust moneys was deposited to this trust account from 15 August 2001 until 16 December 2001. At least $565,233.25 was misappropriated.

Particular 25. Ramlee Bin Nordin -- Multirich Investments Pty Limited

120 Mr Bin Nordin, through his company Multirich, purchased eight vacant lots, Lot 6 and 7 and Lots of 21 to 26, inclusive, Rebellion Close, Macquarie Links for a consideration of $1,714,900.

121 The Respondent acted for Mr Bin Nordin on both the purchase and the financing thereof through a first and second mortgage. The total deposit playable on exchange was $85,745. Mr Bin Nordin paid a holding deposit of $3000 in May 2001. The sum of $5,000 was paid on 1 June 2001 by way of a cheque drawn by YS & CH Song, and Mr Bin Nordin paid a further sum of $72,125 on 14 June 2001.

122 Lot 21 was settled on 29 August 2001 and Lot 22 on 17 September 2001 by use of bank cheques purchased with cheques drawn on the trust account. The purchases of the remaining lots were settled on 6 December 2001 from the proceeds of the first mortgage and a second mortgage back from the vendor.

123 Mr Bin Nordin transferred $382,255.00 into the bank account of Multirich to cover the purchase moneys for Lots 21 and 22. Of that sum only $228,963.44 drawn on 22 August 2001 was deposited to the trust account on 24 August 2001 and applied to the purchases.

124 When Lot 21 was settled on 29 August 2001, cheques drawn on the trust ledger were drawn totalling $191,305.16. There should then have been a balance in the trust ledger of Multirich of $44,115.10.

125 The total sum paid to settle the purchase of Lot 22 on 17 September 2001 was $192,230.45 covered by cheques drawn on the trust account as follows:

Strata Associates $77.00

Neighbourhood Association $491.02

ANZ Bank $125.00

ANZ Bank $160,678.12

Blessington Judd $1,522.28

Monarch Investments Pty Limited $29,337.03

$192,230.45

126 The shortfall of funds held of $148,115.35 on behalf of Multirich to cover the settlement cheques was drawn against the proceeds of sale of the Ocean Front Motel by Ocean Front Australia Pty Limited (see below).

127 The payment of $148,115.35 was a misappropriation of trust moneys held on behalf of Ocean Front Australia Pty Limited, a company controlled by Mr Jung Sook Byun to advance the moneys held on behalf of his company.

128 Mr Bin Nordin and the Respondent were unable to arrange finance to complete the purchase of the remaining lots and eventually the vendor agreed to take a mortgage back.

129 On 6 December 2001, the purchase of Lots 23, 24, 6, 7, 25 and 26 was completed.

130 Two additional cheques were drawn from the bank account of Multirich on 22 August 2001 constituting a misappropriation by the Respondent of $87,000.00 paid to Resicom Australia and $65,906.00 to Client Comp. The $87,000.00 payment relates to the personal borrowings of the Respondent. The $65,906.00 payment was a repayment of an advance to the Respondent by his brother. The total misapplied from the funds in Multirich's HSBC Bank Australia Limited was $152,906.00.

131 The misappropriation of the $152,906 from Multirich was made good as follows:

1 June 2001 Part deposit paid from cheque provided by Song $5,000.00

2 July 2001 Balance of deposit moneys paid - source unknown $5,620.00

17 September 2001 Settlement moneys paid ex trust account covered by the funds of other trust clients $148,115.35

Add: Costs and disbursements as per Bill of Costs prepared by the Respondent $10,280.00

$169,015.35

Particular 26. Ocean Front Australia Pty Limited (Ocean Front)

132 Ocean Front was owned by Mr Jung Sook Byun, a resident of Korea.

133 The Respondent acted on the sale of the Ocean Front Motel for $3,450,000.00 from 7 September 2001. Initially, Mr Byun had instructed other solicitors to act for him. Exchange had taken place on 9 August 2001 when a deposit of $345,000 was paid to the agent. Settlement took place on 12 September2001.

134 The following amounts were paid to the Respondent out of settlement moneys to be retained in his trust account:

$33,500.00 For the payment of outstanding creditors

$5,500.00 To be retained in trust in respect of a dispute relating to the hot water system

$1,028,508.77 Net proceeds of sale -- cheque drawn payable to Byun

The net deposit was, at the direction of the vendor, paid to a third party.

135 The $5,500.00 to be held in trust was in fact deposited to the office account on Dalton Legal on 12 September 2001.

136 The $33,500.00 was deposited to the Respondent's trust account staled "Dalton Legal" on 12 September 2001 and the $1,028,508.77 on the following day.

137 After payment to creditors totalling $24,401.03, there remained $9,098.97 from the sum of $33,500.00.

138 The Receiver located payments, totalling $515,000.00, from the trust account to or on behalf of Mr Byun covered by the net proceeds of sale and from the general account from moneys borrowed by the Respondent.

139 The Receiver has calculated, making a number of allowances for costs etc., that the amount to be accounted for to Mr Byun by the Respondent is $502,279.25.

140 The Respondent had provided to Mr Gary Napper, Trust Account Inspector, a trust account statement dated 3 December 2001 as follows:

Credit

To funds for the above sale 1,028,508.77

Debit

20.09.01 payment Byun Sook Jung (bank cheque) 400,000.00

21.09.01 payment Byun Sook Jung (bank cheque) 30,000.00

21.09.01 telegraphic transfer to New Zealand 10,000.00

28.09.01 Lidcombe Property Group 270,000.00

28.09.01 Multirich Pty Limited 220,000.00

22.10.01 telegraphic transfer to Jupiters Casino (Byun Sook Jung)

75,000.00

02.10.01 cost of 3 telegraphic transfer fee (3 x $40.00 each)

120.00

05.11.01 Byun Sook Jung 23,148.77

Bank cheque fees 240.00

Total: $1,028,508.77

141 The entries relating to $270,000.00, $220,000.00 and $23,148.77 are false. They absorb and conceal the deficiency of $513,148.77.

142 On 29 October 2001, the Respondent gave to Mr Byun a general account cheque dated 2 November 2001 in the sum of $513,148.77 which Mr Byun believed was a trust account cheque. The cheque was to be retained by Mr Byun to be replaced by cash or bank cheque, but this did not occur. As at 2 November 2001, the general account which did not have an overdraft facility was overdrawn to the extent of $2,241.45.

143 On 7 November 2001, the Respondent signed an undertaking to pay Mr Byun the sum of $400,000.00 on 7 November 2001. A second undertaking by the Respondent dated 8 November 2001 confirms that he was given a further extension to pay $100,000.00 by way of bank cheque and $20,000.00 by way of cash on 9 November 2001 and a further amount of $180,000.00 before 4.30pm on 9 November 2001.

144 On 9 November 2001, the Respondent gave Mr Kim, Mr Byun's representative, three trust account cheques. No. 59 in favour of Kim Tae Bong for $120,000.00; cheque No. 60 also in favour of Mr Bong for $120,000.00 and cheque No. 61 in favour of Byun Jung Sook for $213,000.00.

145 As at 9 November 2001 the balance of the trust account was $4.92.

146 On 14 November 2001 the Respondent gave to Mr Kim a trust account cheque (No. 65) for $100,000.00 in part payment of moneys outstanding. This cheque was banked by Mr Kim on the same day but was dishonoured. The balance in the trust account at the time of presentation was $604.92.

147 On 20 November 2001 the Respondent requested and was given a further extension of time in which to pay the moneys due. A further letter promising to pay the moneys due was supplied by the Respondent.

148 Mr Byun had, prior to his departure on 22 September 2001, executed a power of attorney appointing the Respondent as attorney.

149 In the last paragraph of his letter to the Law Society dated 5 December 2001, the Respondent said that Mr Byun was aware that the moneys were to be utilised for investment purposes and in this respect he had consented to the moneys being released provided they were available if and when he needed them. The disbursement of moneys held on behalf of Mr Byun could not in any circumstances be described as "an investment".

Particular 28. Francesco Cavasini

150 Mr Cavasini, a director of Cavcorp Australia Pty Limited, informed the Receiver that on 15 June 2001 he gave the Respondent the sum of $43,000.00 as an advance for costs to be incurred. The cheque was presented that day and was applied in direct payment of settlement moneys in respect of the purchase by the Australian Islamic Board from the Australian Scouts Association of a property at Artarmon (see above).

151 On or about 16 July 2001, the Respondent gave to Mr Cavasini a cheque in the sum of $41,000 drawn on the office account of Dalton Legal. This cheque was dishonoured.

152 By cheque dated 17 September 2001 and drawn on the trust account of Dalton Legal, the sum of $41,000 was paid to Mr Cavasini's company, Cavcorp Australia Pty Limited. This payment was a misappropriation of other trust moneys in the trust account.

153 Mr Cavasini did not pursue the shortfall of $2,000.

Particular 29. Mahmood Barolia and Muntaj Bagam Barolia

154 The Respondent acted for Mr and Mrs Barolia on their purchase of a property known as 81 Old Ferry Road, Illawong. The conveyance settled on 15 August 2001.

155 Mr and Mrs Barolia paid $12,954.00 to the Respondent for stamp duty, and the cheque was deposited to the trust account of Dalton Legal on 13 July 2001.

156 Of the moneys provided by Mr and Mrs Barolia, the sum of $9,858.75 was misappropriated on 19 July 2001 when payment was made to Mr Murphy, barrister in this amount but in respect of another matter. Mr Murphy had previously been paid this sum on 4 July 2001 by office account cheque and on 12 July 2001 by trust account cheque, but both cheques had been dishonoured.

157 By 30 July 2001, the funds of Mr and Mrs Barolia had been totally dissipated and by 14 August 2001 the trust account had been closed.

158 By cheque dated 15 August 2001 drawn on the office account, the Respondent paid to the Office of State Revenue (OSR) the sum of $12,954. That cheque was dishonoured.

159 On 22 November 2001 the OSR wrote to Dalton Legal advising that the sum of $12,954 was payable by 1 December 2001.

Particular 30. Jalal Salah

160 On 25 July 2001, Mr Salah gave the Respondent the sum of $50,000.00 comprising a bank cheque for $35,000.00 drawn at the Respondent's request payable to G A Khan and $15,000 in cash.

161 The $50,000.00 was to be repaid within 21 days and if not repaid within that time a further $1,000 penalty would be paid for a period not exceeding 7 days.

162 By trust account cheque drawn on the trust account of Dalton Legal, the sum of $51,000.00 was paid to Mr Salah. This was a misappropriation of trust moneys held on behalf of Ocean Front.

163 Mr Salah and the Respondent entered into a deed dated 12 November 2001 which states [whether by way of recital or otherwise is not clear from the evidence] that the Solicitor had secured a licence to establish Popeyes Chicken and Buscuits Fast Food Stores in Australia and was granted a 7 1/2% shareholding in the Australian operation together with one fully fitted fast food restaurant in consideration of the Respondent providing services and advice over a period of three years.

164 Although the Information does not say so, we infer that it is alleged by the Council that the deed was false in the respects stated. Otherwise it would appear to have been of no purpose to have mentioned the deed at all. If that is not the case, the matter is of little or no moment in any event when the other matters found against the Respondent in these proceedings are taken into account.

Particular 31. Varughese, Rachel and Gregory John (the purchasers)

165 While with Barclay Benson, the Respondent acted for the purchasers on the purchase of a property at 7/30 The Crescent, Homebush from Sathiyendra. Contracts were exchanged on 15 March 1999.

166 The purchasers paid the deposit and provided to the Respondent a cheque payable to the Office of State Revenue for stamp duty.

167 On 27 April 1999, Mr Varughese John gave to the Respondent a cheque for $162,000.00 for part of the purchase money and $300 for disbursements, which amounts were credited to the trust account. The balance of the purchase moneys was to be made available from the proceeds of sale of a property at Enfield.

168 The Conveyance settled on 29 April 1999.

169 Purchase moneys totalling $31,650.53 were drawn from the trust account.

170 A further balance of costs of $632 was drawn on 6 May 1999 leaving a balance of $130,321.47 to be accounted for. Of this amount $13,000.00 was paid to Williams Hussain Lawyers and $30,000.00 was paid to E C Lin. Both of these payments were misappropriations.

171 $130,768.47 was paid to the purchasers by debit from their trust ledger account of $87,321.47 and the payment of $43,447.00 by way of misappropriation of the funds of the estate of the late Jamil Elmowy.

172 The facts relating to the purchasers, and the conclusions alleged to flow therefrom (pars 204 and 205) were admitted in the terms used in the information, therefore we have retained the precise terms of the Information to state the facts and conclusions. However, the facts are so compendiously stated as to make a full understanding of them very difficult.

Particular 32. Dong Han Kim

173 The Respondent acted for Mr Kim in respect of the purchase of property at lot 12 Norman May Drive, Lidcombe, from Burwood Press Sales Pty Limited (Burwood) for a consideration of $517,000.00, and also in respect of a mortgage advance of $200,000.00 from Wizard Mortgage Corporation (Wizard).

174 Contracts were exchanged on 1 August 2001. Mr Kim provided a cheque for stamp duty in the sum of $18,799 which was deposited to the trust account of Dalton Legal on 21 August 2001. Stamp duty was paid from the account on 29 August 2001. Settlement took place on 14 September 2001.

175 The purchase moneys were covered by the net proceeds of the loan from Wizard of $199,055.30 and the balance of $269,414.36 from Mr Kim.

176 At the request of the Solicitor, on 16 August 2001 Mr Kim provided bank cheques for settlement as follows:

15 August 2001 G Chami $40,000.00

15 August 2001 G A Khan $50,000.00

15 August 2001 Dalton Legal $60,000.00

16 August 2001 A Elahmed $10,000.00

16 August 2001 G Chami $65,000.00

$225,000.00

177 The proceeds of all of these cheques were misapplied by the Respondent.

178 A settlement cheque for $225,000.00 payable to Burwood represented a misappropriation of a residue of moneys received from Multirich on 24 August 2001 and the proceeds of sale of Ocean Front which had been deposited into the trust account on 12 and 13 September 2001.

179 The source of the balance required for settlement - the sum of $44,414.36 - is not known.

Particular 33. Ghiad Chami

180 The Respondent acted for Mr & Mrs Chami on the sale of a property known as 1/20 Gordon Road, Auburn. Settlement took place on 12 June 2001.

181 On settlement the Respondent received cheques totalling $201,563.71 payable to Mr Chami.

182 The Respondent asked Mr Chami to lend him $160,000.00 for a short period. Mr Chami gave the Respondent a cheque for $160,000.00 from the proceeds of settlement and payable to the Scout Association of Australia. This cheque replaced money misappropriated from the Australian Islamic Education Board intended to be used on the Board's purchase of the property at Artarmon (see above).

183 In part repayment Mr Chami received two cheques for $40,000.00 and $65,000.00 respectively. These sums were misappropriated by the Respondent from the trust funds of Mr D H Kim. The shortfall in the funds of Mr Kim was then made good by a further misappropriation of trust moneys.

Particular 34. Anis Ahmed Raja

184 The Respondent acted for Mr Raja on the sale of a property at 2/56 Helena Street, Auburn.

185 The deposit of $28,500.00 was deposited to the trust account of Barcaly Benson on 17 April 2001 and disbursed as to $26,500.00 to Jenman Real Estate and as to $2,000.00 to Williams Hussain Lawyers for legal fees on 9 May 2001 and 21 June 2001 respectively.

186 The $26,500.00 was paid as a deposit on the purchase by Mr Dib which had been misappropriated by the Respondent (see above).

187 The conveyance settled on 30 May 2001.

188 The withdrawal of $2,000.00 was a misappropriation of the funds of Mr Raja in that all costs had been paid on settlement.

189 On or about 20 June 2001 the Respondent obtained an advance of $28,500.00 from Mr Ashrafali Said. That amount was paid to Mr Raja, making good the earlier misappropriation. The Receiver has not been able to determine whether Mr Said was repaid.

190 The Respondent also acted for Mr Raja on the purchase by his company, Rajas Enterprises Pty Limited, of a service station from Timaway Pty Limited.

191 On 25 July 2001 the sum of $10,500.00, being part purchase money, was paid by Rajas Enterprises Pty Limited to the Respondent. It was deposited into the trust account of Dalton Legal and by 14 August 2001, when that account had been closed, it had been misappropriated.

192 On 21 August 2001, $10,500.00 was paid to the vendor of the service station, Timaway Pty Limited, from another trust account of Dalton Legal, using funds of other trust clients.

Particular 35. Dr H A Zaid

193 The Respondent acted for Dr Zaid on the purchase of a property known as 4/64 Sproule Street, Lakemba, from Dwight for a consideration of $130,000. The property was purchased in the name of Dr Zaid's sister, Hind Abdulla Zaid.

194 At the time of exchange, Dr Zaid was to leave Australia to take up an overseas position. It was arranged that he would pay sufficient funds into the trust account of Barclay Benson to cover the purchase moneys required for settlement. The funds were duly deposited into the trust account: on 16 December 1999, two cheques totalling $25,300.00 were credited to the Respondent's trust account.

195 On 21 December 1999, a further sum of $96,219.00 by way of bank cheque was received and deposited into the Respondent's trust account. The total moneys held on behalf of Dr Zaid as at 21 December 1999 was $121,519.00.

196 On 21 December 1999 the sum of $121,006.00 was withdrawn for the purchase of a bank cheque for $121,000.00 and for bank fees of $6. The cheque was not paid to Dr Zaid or on his behalf and represented, together with the bank fees, a misappropriation from the trust account.

197 On 17 February 2000, the Respondent advised the solicitor for the purchaser that Mr Zaid's financier would be unable to settle for at least 7 days. There was in fact no financier.

198 On 21 February 2000, a notice to complete was issued requiring settlement on 8 March 2000.

199 By letter dated 7 March 2000, the Respondent informed the vendor's solicitor that a (fictitious) incoming financier would have funds available on 14 March 2000 and sought to delay settlement till 15 March 2000.

200 On 14 March 2000, the Respondent again wrote to the solicitors for the vendor advising that cheques from the fictitious financier had that morning been received and requested that settlement be on the following day.

201 The purchase was ultimately settled on 21 March 2000 when the sum of $118,541.49 was paid. This included interest of $997.38.

202 On settlement the vendor directed that cheques be drawn as follows:

$81.20 in favour of Sydney Water.

$678.90 in favour of owner's corporation SP6648.

$27,737.45 in favour of Colonial State Bank.

$1,225.00 in favour of James Soulos.

$88,818.94 in favour of Beverley Edna Dwight.

203 Mr Varughese John had given the Respondent a cheque for $222,800.00 for the settlement of Mr John's purchase (see above). Of that sum, the Respondent had cheques drawn in favour of the following:

1. Beverley Edna Dwight for $88,818.94

2. Colonial State Bank for $27,737.45

3. James Soulos for $1,225.00

4. Office of State Revenue $3,044.00

204 The first three cheques were handed over on settlement of the purchase of Dr Zaid and the cheque of $3,044.00 was used for the payment of stamp duty on Dr Zaid's contract. None of those payments was directed by Mr John.

205 Of the balance of Mr John's moneys ($101,974.61), $89,052.61 was deposited into the Respondent's trust account and utilised for the settlement of the purchase by Diana Song. (See above)

206 Although the solicitor for the vendor had requested a cheque for $678.90 for levies (see 240 above), the Receiver does not know whether it was drawn and produced at settlement. It was, however, not forwarded in payment of the levies.

207 In a Collection Notice dated 27 July 2000, the total amount then outstanding was said to be $1,307.58.

Particular 36. Syed Tariq and Saleha Hameed

208 The Respondent acted for Mr and Mrs Hameed on the sale of properties at units 1 and 2, 157 Harrow Road, Auburn.

209 Contracts were exchanged in respect of both properties on 15 December 1998 and both were settled on 9 February 1999.

210 After repayments of a mortgage to the St George Bank, secured over both properties, the sum of $24,706.39 was credited to the Barclay Benson trust account with respect to unit 1 and $25,957.68 in relation to unit 2.

211 On 9 February 1999, the Respondent sent letters to Mr & Mrs Hameed advising them that the conveyances had been completed and of the moneys received into the trust account.

212 The Respondent took the sum of $500 from the moneys in trust in respect of each of the conveyances without having rendered any accounting to his clients.

213 From the moneys in the trust account only two cheques were drawn payable to Mr Hameed on 4 March 1999, one described as funds from trust account $2,500.00 and the other as transfer of funds $2,500.00.

Particular 37. Taledi Pty Limited and Eastside Developments Pty Limited (Taledi, Eastside)

214 The Respondent represented to Dr Naz Khan that for an investment where Dr Khan would advance $45,000 to Taledi repaid no later then 25 April 2000, he would receive a premium of $5,000. A similar loan of $50,000 was to be made to Eastside.

215 The receipt of the $50,000.00 in relation to Eastside on 14 July 1999 was confirmed by an undated document to which was affixed the common seal of Eastside Pty Limited, not Eastside Developments Pty Limited, although the ACN number on the common seal is that of Eastside Investments Pty Limited. The amount, together with a premium of $4,200,was repayable by 14 October 1999.

216 $45,000.00 was advanced to Taledi on 25 January 2000. The agreement under which that advance was made called for repayment no later than 25 April 2000, together with a premium of $5,000.00. The common seal of Taledi Pty Limited was affixed and was accompanied by signatures purporting to be those of a director of the company and a witness.

217 Those moneys were not, apparently, paid into the Respondent's trust account. (We assume that the 'moneys' referred to those in pars 255 and 256.)

218 Taledi Pty Limited and Eastside Investments Pty Limited were subsidiaries of Meriton Apartments Pty Limited. The common seal of Taledi and Eastside was found by the Receiver in the office of the Respondent as was the common seal of Tekiko Pty Limited, another subsidiary of Meriton Apartments Pty Limited. The Receiver also located a cash receipt for the purchase of common seals by the Respondent from Swiss Rubber Stamps on 21 June 1999.

219 Mr Richard di Cavarlho, General Counsel for Meriton Apartments Pty Limited, informed the Receiver that the company had no knowledge of the loans and had no contact with the Respondent and that neither he nor his firm ever acted for the company or any of its subsidiaries.

220 The loans were not repaid on the due dates and were rolled over with additional premiums payable.

221 As at 13 September 2000, although a number of letters indicated that moneys were available for the repayment of the advances, no moneys had been repaid. Our queries indicate obscurity in the Information, but they can have no effect on the outcome of these proceedings. The Respondent admitted the facts as they are alleged by the terms of the Information, so we express the facts as nearly as possible in those terms except where we think they can be more happily expressed.

Particular 38. Michael Cooper

222 Williams Hussain acted for Mr Michael Cooper on a claim for personal injuries which was settled on 19 December 1996 when verdict moneys on $462,128.36 were deposited to the firm's trust account.

223 Mr Brian Davidson had the carriage of the matter until about 20 January 1997 when conduct thereof was assumed by Mr Noushad Hussaini. Mr Davidson retired from the partnership as from 31 March 1997.

224 Mrs Fay Cooper was appointed tutor for her son in respect of the proceedings as her son had sustained brain damage in the accident giving rise to the proceedings.

225 The solicitors were instructed to obtain the appointment of the Protective Commissioner to manage Mr Cooper's financial affairs after the purchase of a property for Mr Cooper.

226 The purchase of the property for Mr Cooper was completed on 21 February 1997.

227 Other than for some preliminary steps, no documents were filed for the appointment of the Protective Commissioner.

228 The Respondent acted for Mr Cooper in respect of the purchase of the aforesaid property and, after settlement, $320,959.54 remained in the trust account.

229 On 3 June 1997, a further amount of $35,000.00 was received, seemingly upon recovery of the party and party costs, and deposited into the trust account. Williams Hussain had previously withdrawn from trust account the sum of $42,000 in respect of costs in the proceedings.

230 In November 1998, Mr Cooper instructed Messrs Emery Partners, solicitors, to act on his behalf. The balance held in the trust account on behalf of Mr Cooper, $331,484.39, was paid to Emery Partners on 23 November 1998.

231 Mr Cooper, through his solicitors, Emery Partners, commenced LawCover proceedings against Williams Hussain. The proceedings were for loss of interest on the moneys which had remained in the trust account from December 1996 until 23 November 1998, and a second claim with respect to the failure by the Respondent to obtain a pest report in respect of the purchased property.

232 The Respondent left the partnership on 30 June 2001 and Mullane & Lindsay, the solicitors appointed by LawCover, dealt directly with Mr Mark Williams from June 2001.

233 The LawCover claims were settled for $95,000.00.

234 With respect to the SBF loan to the Respondent of $45,000.00 in about November 1998 (see par.101 above), the loan was repaid by misappropriation of trust moneys held for Cheng & Lin. The trust ledger account of Michael Cooper indicates that the mortgage advance to the Respondent of $45,000.00 was deposited to the trust account on 23 November 1998 for the credit of the account of Michael Cooper and to that extent covered the cheque drawn on the same day payable to Emery Partners. The $45,000.00 credited to the account was to reimburse moneys misappropriated on 12 September 1997 and 11 June 1998.

235 The moneys misappropriated from the trust account - $20,000.00 on 12 September 1997 and $25,000.00 on 11 June 1998 - were omitted from the trust account statement as were the entries made on 23 November 1998 reimbursing the trust moneys misapplied.

236 As from 12 September 1997, Williams Hussain Lawyers were not in a position to account for moneys held on behalf of Mr Cooper by reason of the misappropriation of moneys debited to his trust ledger account. This shortage was not made good until the firm had no alternative but to account for the funds and the Respondent borrowed the sum of $45,000.00 to reimburse the trust account which borrowing was itself repaid by a further misappropriation of trust moneys.

Concluding remarks

237 The Respondent concedes that:

1.Particulars 1 to 38 above (excepting particulars 20 and 21) constitute wilful breach of section 61 of the Act, as alleged by the Council.

2. Particulars 1 to 38, above, constitute wilful breach of section 62 of the Act, as alleged by the Council.

3. Particulars 1 to 38, above, constitute misappropriation of clients' funds, as alleged by the Council.

4. Particulars 1, 4, 8, 11, 23 and 30, constitute lying to clients, as alleged by the Council.

5. Particular 26 constitutes lying to the Law Society, as alleged by the Council.

238 Our findings, as set forth in these reasons, are in the terms of the allegations of fact, and in the terms of the unsatisfactory professional conduct and professional misconduct, specified by the Council, since those are the facts and legal consequences as admitted by the Respondent. We add that it seems to us that no other approach to the proceedings would have been reasonable and that the admissions were properly made and to the benefit of all involved, including the Respondent.

239 Taken collectively, the admitted facts constitute a lengthy litany of acts of serious professional misconduct which, quite manifestly and without need for elaboration, render it necessary to remove the name of the Fahmi Mustafa Hussain from the Roll of Legal Practitioners. It seems that Mr Hussain succumbed to financial pressure to deal dishonestly with moneys entrusted to him by others: moneys which were not his to deal with. Once having set off on that road he remained on it for a long time: his dishonest dealings were repeated and gross. We are not able to say that, for the most part, he intended to steal the money he used dishonestly, but by using it with no legal right to do so he was nevertheless acting with serious dishonesty. By continuing to act in that way, he aggravated the seriousness of his misconduct to a point where it is now out of the question to contemplate any order other than removal from the Roll.

240 Perhaps there was an element in his conduct of trying to get square and set the record straight, like a gambler of trust moneys who plunges deeper and deeper in the hope of getting square, but that does not go in mitigation of the seriousness of his conduct. As a solicitor he was in a special position of trust: someone whose dealings with trust moneys must be impeccable and utterly beyond reproach.

241 The improper and dishonest use of moneys held in trust is so serious and has so often been pronounced upon by the Courts that no sermon about it is needed here. It is one thing to keep trust records carelessly, or to fail to keep them, without dishonest intent - that is bad enough and is regarded seriously - but to use trust moneys dishonestly is serious misconduct and intolerable in a solicitor. No statutory definition such as is contained in section 61 and 62 of the Act is needed to categorise the latter kind of conduct: it is so manifestly serious misconduct that even to say so is to underscore the obvious.

242 Whether he may one day be able to demonstrate that he is no longer a risk to clients may be for others to say in the future, but for now he must be assumed by reason of his conduct to be the kind of person who would be a grave risk to the welfare of his clients if he were permitted to practise, and not a fit and proper person to practise as a solicitor.

Orders

243 Therefore we order:

1. That the legal practitioner's name be removed from the Roll of Legal Practitioners;

2. That the legal practitioner pay the Law Society's costs of and incidental to the proceedings, as agreed or as assessed under Division 6 Part 11 of the Legal Profession Act 1987.