LEGAL PROFESSION ACT 1987 - SECT 98 Recovery of compensation for disposal of receivable property

This legislation has been repealed.

LEGAL PROFESSION ACT 1987 - SECT 98

98 Recovery of compensation for disposal of receivable property

(1) If receivable property has been taken by, or paid or transferred to, a person unlawfully or in breach of trust and:

(a) the person knew or believed at the time of the taking, payment or transfer that it was unlawful or in breach of trust--the receiver may recover from the person as a debt the amount of the payment or the value of the property,

(b) there was no consideration for the taking, payment or transfer--the receiver may recover from the person as a debt the amount of the payment or the value of the property,

(c) there was inadequate consideration for the taking, payment or transfer--the receiver may recover from the person as a debt the amount of the inadequacy, or

(d) because of the taking, payment or transfer, the person became indebted or otherwise liable to the relevant solicitor or relevant associate or a client of the solicitor--the receiver may recover from the person as a debt the amount of the debt or liability of the person to the solicitor, associate or client.

(2) A person from whom an amount is recovered under subsection (1) is not liable to any other person in respect of the amount.

(3) If receivable property has been paid or transferred unlawfully or in breach of trust to, or for the benefit of, a person in respect of a cause of action the person claims to have against another, the receiver:

(a) may recover from the person as a debt the amount of the payment or the value of the property, or

(b) to the extent that the full amount or value is not recovered from the person under paragraph (a)--may, in the name of the receiver and as if the receiver were beneficially entitled, or in the name of the person, take such proceedings in relation to the claimed cause of action as the person could have taken.

(4) If a receiver takes proceedings under subsection (3) (b) in relation to a cause of action claimed by a person, the receiver may not later take proceedings under subsection (3) (a) to recover property paid or transferred to the person in respect of the cause of action.

(5) If receivable property is used unlawfully or in breach of trust to discharge a debt or liability of a person, the receiver may recover from the person as a debt the amount that was required for the discharge of the debt or liability, reduced by the value of any consideration provided by the person for the discharge.

(6) If, under Part 7, a claimant is paid from the Fidelity Fund compensation for a pecuniary loss relating to receivable property and is later paid another amount in respect of the pecuniary loss, the receiver may recover from the claimant as a debt:

(a) if the amount paid from the Fidelity Fund is compensation for the whole pecuniary loss--the amount of the later payment, or

(b) if the amount paid from the Fidelity Fund is compensation for part only of the pecuniary loss--any amount by which the amount of the pecuniary loss is exceeded by the sum of:

(i) the amount paid from the Fidelity Fund, and

(ii) the amount of the later payment received.

(7) Recovery proceedings under this section may be taken in the name of the receiver as if the receiver were beneficially entitled or in the name of any person who, if the receiver had not been appointed, would have been entitled to take the proceedings.

(8) A receiver, or a person authorised by the Law Society, may give a certificate as to all or any of the following:

(a) the receipt of property by a solicitor or an associate of a solicitor, the nature and value of the property, the date of its receipt by the solicitor or an associate of a solicitor and the identity of the person from whom it was received,

(b) the taking of property by a person or the transfer of property to a person, the nature and value of the property, the date of its taking or transfer and the identity of the person,

(c) the payment of money to a person, the amount of money paid, the date of the payment and the identity of the person who received the payment,

(d) the entries made in the records of a solicitor or an associate of a solicitor and the truth or falsity of the entries,

(e) the use of property unlawfully or in breach of trust.

(9) A certificate given under subsection (8) is, in any proceedings taken by a receiver under subsection (1), (3) or (5), evidence of the matters specified in the certificate.

(10) Proceedings taken under this section in the name of a receiver in relation to any money or other property may be so taken as if the receiver were beneficially entitled to the money or property.

(11) In addition to any other proceedings that may be taken under this section, a receiver may, if receivable property has been taken by, or paid or transferred to, a person, or otherwise used unlawfully or in breach of trust, take proceedings in the name of the receiver as if the receiver were beneficially entitled to the property at the time the property was so taken, paid, transferred or used.

(12) In this section:

"receivable property" includes property that, but for its having being taken, paid or transferred unlawfully or in breach of trust, would be receivable property.