A Gold Coast lawyer has been fined $1000 after the Queensland Civil and Administrative Tribunal (QCAT) found his behaviour in a real estate transaction amounted to unsatisfactory professional conduct.
Murray Lester Cass, principal of Cass Legal at Mudgeeraba, was charged by the Legal Services Commissioner over his conduct when acting for a married couple in the 2020 property title transfer.
In a decision delivered on Friday, Member Lyons described how a dispute arose between the couple as to whether they should hold the title as joint tenants (which the wife preferred) or tenants in common (which the husband preferred).
An agreement was struck that the property title would be registered in the names of the husband and wife as joint tenants, on the understanding the wife’s granddaughter no longer lived with them at the new property. If the wife could not arrange this by the end of six weeks, then the title would be changed to tenants in common.
After the six weeks, Mr Cass received verbal instructions from the husband to change the joint tenancy to a tenancy in common. The solicitor advised the husband to put the instructions in writing and advise his wife. Without obtaining instructions from the wife, Mr Cass amended the Form 1 Transfer document, which was submitted to the-then Department of Natural Resources, Mines and Energy (DNRME) for registration.
The wife received notification from the Land Registry Office that the transfer of title had been altered from joint tenants to tenants in common, and contacted Mr Cass to dispute the action.
QCAT was asked to consider whether Mr Cass’s failure to follow instructions, failure to recognise the wife’s ability to change instructions, or the conflict of duty, should be characterised as professional misconduct or unsatisfactory professional conduct.
The LSC sought a $5000 fine and reprimand, referring to a need for personal and general deterrence; and the need to protect the profession’s standing.
It contended Mr Cass failed to maintain reasonable standards of competence and diligence in that he:
- failed to obtain instructions from the wife prior to amending the transfer;
- acted contrary to her instructions by registering the transfer as recording the title to be held as tenants in common;
- preferred the instructions of one client over those of the other; and
- continued to act for two clients in the same matter where their interests were adverse.
It argued that when Mr Cass became aware of conflicting instructions, he should have ceased acting for both, realising he could not act in the best interests of both parties simultaneously. It added he had multiple opportunities to correct the transfer document via requisition notices from the DNRME, but repeatedly acted contrary to the wife’s instructions, and without informing her.
Member Lyons said Mr Cass accepted that lodgment of the amended transfer was contrary to the wife’s instructions.
“He also accepted that he should have realised that the existence of continuing conflict between the clients overrode and took priority over previous instructions, and that he should not have submitted the amended transfer to the DNRME, and should have withdrawn from acting for both clients,” Member Lyons said
Mr Cass submitted that LSC’s proposed orders were “inappropriately severe”, referring to factors such as co-operation in the proceedings and admission of charges, including a “full, frank and comprehensive explanation of his conduct”; his 28 years of practice without blemish; and that there was no personal or material loss suffered.
In deciding on a sanction, Member Lyons said the conduct did not comprise substantive or consistent failures required for it to be characterised as professional misconduct, rather it was a single failure.
“In the present case, given the respondent’s previously unblemished career, and his regret, there does not seem to be any need to take personal deterrence into account,” he said.
“While it is necessary to take into account the need for general deterrence, the weight to be given to this consideration must vary with the seriousness of the misconduct.
“In the present case, the Tribunal considers that the misconduct is towards the lower end of the scale. Nor is this a case where the respondent’s conduct is likely to have any real effect on the standing of the legal profession.
“The Tribunal does not consider that a reprimand of any kind is warranted.”
Member Lyons also ordered Mr Cass pay the LSC’s court costs.