AH v OO [2020] NZLCRO 71 (19 May 2020)

Last Updated: 24 June 2020

LCRO 37/2018

CONCERNING an application for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006

_AND

CONCERNING a determination of [Area] Standards Committee [X]

BETWEEN AH

_Applicant

AND OO

_Respondent

The names and identifying details of the parties in this decision have been changed.

Introduction

[1] Ms MH (Ms MH complained on behalf of her mother (Mrs AH) about the advice provided by Mr OO to Mrs AH in relation to the administration of her mother’s (Mrs RI) will of which she and Mr OO were executors.

[2] The Standards Committee determined to take no further action on Mrs AH’s

complaints.

Background

[3] Mrs RI inherited a farm homestead and run-off land owned by her late father in [Town]. The legal description of the homestead property was [Lot X DPXXXX] whilst the legal description of the run-off was [Lot X DPXBXB]. The two properties were subject to an amalgamation condition imposed in [19XX] and could not be sold or devised independently of the other. Both lots were comprised in a single certificate of title, XX/XX Wellington Land Registry.

[4] Mrs RI’s will initially bequeathed the homestead property to her daughter, Mrs AH, and the run-off to her son, JI. JI and his wife (AI) owned the farm (described by Ms AH as “the [I Farm]”) which adjoined the run-off.

[5] After JI died, Mrs RI amended her will to provide that the run-off property passed to AI. The homestead property remained bequeathed to Mrs AH.

[6] One half of the residue of Mrs RI’s estate passed to Mrs AH whilst the remaining half was to be divided between JI’s four children.

[7] Mr OO acted in the administration of the estate of Mrs AH’s father and

prepared a will for her in 2002 after he passed away. He prepared another will in April

2008 when her son JI passed away.

[8] It is apparent then, that Mr OO had at least two opportunities to consider whether the two properties could be separately devised and seemingly determined each time that they could, notwithstanding they were comprised in a single title.

[9] Mrs RI died in August 2014 and the title was transmitted to Mrs AH and Mr OO as executors of her will. For some reason (unknown) transfers of the two properties to effect the bequests in Mrs RI’s will were not presented for registration.

[10] Mrs AH lived in Australia and decided to investigate selling the homestead property. In the complaint, Ms MH says that Mr OO had advised Mrs AH that was an option. However, Ms MH and her partner were somewhat sceptical that this was correct and they did not want to market the property for sale if it could not be sold simply and separately from the run-off.

[11] The amalgamation condition referred to in [3] was not memorialised on the title to the properties as required by s 36 of the Counties Amendment Act 1961. There was however a handwritten copy of the Council resolution requiring the two lots to remain amalgamated, endorsed on DP XXXX.

[12] When Mr OO lodged “fictitious transfers” of the two lots separately for registration in late 2014 they were rejected because of the amalgamation condition.1

As a result, Mr OO says that before Mrs AH signed an agreement for the sale of the

property he “made the contract subject to [XX Council] agreeing to revoke the amalgamation condition by 27 April 2015”.2

1 It is not apparent what prompted Mr OO to take this action.

2 Mr OO, response to complaint (13 October 2016). Ms MH’s chronology notes that the original settlement date was [DATE] 2015. Mr OO has repeatedly said that the conditional date was [DATE] 2015 and I proceed on that basis, although a settlement date does not precede a

[13] It became clear that a subdivision consent was going to be required to enable the amalgamation condition to be cancelled and consequently delays were occasioned, resulting in settlement not being effected until [DATE] 2016.

Ms MH’s complaints

[14] Ms MH says that Mr OO had been the family lawyer for many years and he had prepared Mrs RI’s will in 2002 and updated it in 2008.3 Each version of the will (until the death of Mrs AH’s brother) provided that the homestead lot would pass to Mrs AH and the run-off property to her brother.

[15] Ms MH says “Nan, [Mrs AH] and [AI] were all on the understanding that the

land gifted was divisible, and therefore that the will would be simply executed”.4

[16] She goes on to say:

We didn’t want to have the homestead property marketed for sale if in fact what we were trying to sell could not be sold because it was part of a larger piece of property, and a title for the lot we were selling was not possible or easily obtainable.

[17] Ms MH complains about the lack of apparent investigation by Mr OO to confirm the advice given was correct, “as that one single piece of information (the amalgamation condition on the title) was absolutely critical to everything that has happened since”.

[18] Ms MH then refers to Mr OO’s advice that the executors were “contract bound to lodge a formal application for consent for subdivision and that the purchasers of the homestead were holding [them] to contract – so we had to go through the very lengthy and expensive subdivision process”.

[19] She complains that Mr OO “had to be chased up constantly, neglected to inform [them] about various aspects – even when specifically asked, disregarded [their] instructions and left questions unanswered”.

[20] She says that Mr OO has:

...blatantly disregarded instructions we have given him and overrides us even though my mother is a joint trustee and executor of nan’s will.

_{– failed to give clear information and advice.}

conditional date, and it is usual for settlement to take place following satisfaction of all conditions.

3 Complaint (22 September 2016).

4 Above n 2.

– frequently changed his advice to the opposite of what he initially gave.

– generally exhibiting conduct that has been unprofessional, incompetent and certainly unsatisfactory.

[21] She assesses the cost incurred as a result of Mr OO’s incorrect advice, and to

effect the subdivision, as being in excess of $105,634.18.

[22] Issues arose between Mrs AH and AI over the costs of the subdivision which at the time of the complaint had not been resolved.

[23] In concluding her complaint, Ms MH makes the final general statement:

We would like to point out that this complaint is not about what would of [sic]/or could have been using hindsight, as we clearly raised the issue and sought legal advice in the very beginning before the property was put on the market. For all this to come about as a result of OO’s lack of due diligence is unacceptable to us, especially considering his long-term involvement with the H family. We would also like to emphasise the huge costs to us both personal and financial, as a consequence.

The Standards Committee determination

[24] The Committee identified the following issues to be addressed:5

a. whether Mr OO provided Mrs AH, and the estate of RI, with adequate and competent advice in [month] 2014 regarding the sale of the homestead property, and whether Mr OO satisfied his duty to take reasonable care;

b. whether Mr OO’s conduct caused or contributed to the delays and cost

escalation experienced in the subdivision process;

c. whether the fees charged by Mr OO in respect of the subdivision were fair and reasonable as required by Rule 9 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (“the Rules”); and

d. did Mr OO breach any of his professional obligations in relation to the remaining aspects of Mr AH’s complaint?

[25] The Committee declined to impute knowledge of the amalgamation condition to Mr OO because of the length of time he had acted for the family, noting that Land Information New Zealand (LINZ) had failed in its obligation to record the amalgamation condition on the title.

[26] It said:6

The Standards Committee was satisfied that Mr OO’s advice to Mrs MH in December 2014 that the homestead property could be sold reflected information available to Mr OO at the time. Mr OO was entitled to rely upon the accuracy of

5 Standards Committee determination at [23].

6 Above n 5, at [28].

the certificate of title to the properties. The law required that such a condition be memorialised on the certificate of title and the failure to do so was a responsibility that lay with LINZ or its predecessor.

Delays/cost escalation

[27] Having reviewed Mr OO’s files “the Standards Committee concluded that the key reasons for the time and cost escalation lay primarily with the [[Local]Council] and the conditions it imposed upon the resource consent”.7

[28] The Committee also noted that delays and cost increases arose from the work of surveyors and contractors. In general terms, the Committee concluded that the cause of delays and consequent cost increases arose for reasons beyond Mr OO’s control.

Fees

[29] The Standards Committee agreed “that the costs to the estate associated with the subdivision process escalated beyond what was originally anticipated. Mr OO’s fees, however, represented a small portion of the total of the subdivision costs – only

$4,197.50 out of $56,946.86”.8

[30] Having reviewed Mr OO’s files the Committee agreed that his fees were “very

reasonable given the amount of time Mr OO spent on the matter”.9

Other matters

[31] The Committee “was satisfied that there was insufficient evidence on the material provided to uphold Mrs AH’s other allegations”.10

Application for review

[32] Ms MH applied for a review of the Standards Committee determination on behalf of her mother. She included 13 pages of supporting reasons and documentation.

7 Above n 5, at [35].

8 At [40].

9 At [41].

10 At [43].

The amalgamation condition

[33] Ms MH does not accept the Committee’s dismissal of the complaint on the grounds that the amalgamation condition was not memorialised on the title. She states that the condition is recorded on the title.

[34] It is not. However, the resolution requiring the two properties to be amalgamated was recorded in handwriting on DPXXXX being the Deposited Plan of one of the lots.

[35] Ms MH argues that Mr OO should have been alert to the possibility (likelihood) that the property could not be sold separately but was somewhat blasé in advising the family that it could be.

The contract

[36] Ms MH takes issue with the statement by the Committee that the family declined to meet with Mr OO to discuss how to move forward. In a 16 March 2015 letter to Mrs AH, Mr OO advised that he had been required to terminate the sale agreement and that it was then necessary for her and AI to reach an agreement as to how the property was to be marketed.

[37] The parties met themselves for this purpose and agreement was reached. Ms MH then advised Mr OO that they had reached agreement and it was not necessary to meet, thereby incurring Mr OO’s costs in doing so.

[38] Ms MH also disagrees that her mother misinterpreted the advice provided by Mr OO in his email of 16 April 2015 in which he advised that the estate was required to proceed with a subdivision application.

Ongoing issues

[39] At [20] of its determination the Committee refers to ongoing issues with regard to the subdivision and in particular, the cost of complying with Council’s requirement for a separate electricity supply to be provided to the run-off.

[40] Ms MH says the Committee has not dealt with reasons for the “ongoing

complications” despite them being clearly articulated in the complaint.

[41] She says that Mrs AH’s instructions to Mr OO were clear and that her attorney (EN) had instructed Mr OO that “all additional costs involved with this power connection being accounted for with full cost reimbursed to the estate, before final settlement”.11

[42] Ms MH has listed six occasions when these instructions were reinforced and repeated.

[43] She says that nevertheless, Mr OO continued to request instructions to authorise laying of electricity on the basis that the issue with regard to the cost of doing so be resolved subsequently. His responses give no indication that he took note of Ms EN’s instructions and the cost was initially borne by the estate.

Other matters

[44] Ms MH raises other matters in her application for review which include the delay and cost increases in Mr OO’s fees.

Hearing

[45] A review hearing took place in Nelson on 4 September 2019 attended by both parties. Ms MH was accompanied by her partner.

Review

The wills

[46] Mr OO first acted for the RI family when he acted in the administration of

Mr RI’s estate in 2003. Prior to that, his former partner had acted for the family.

[47] There is no copy of Mrs RI’s will which Mrs AH says was prepared by Mr OO in 2002, presumably following the death of her husband. There is some inconsistency between the dates referred to but that is of no relevance. There is no question that Mr OO prepared the will executed by Mrs RI in April 2008, and which was the will in force when she died.

[48] Mr OO said he did not obtain a search of the title to the property when preparing Mrs RI’s wills as they followed the format of all wills prepared for Mr and Mrs RI over the years – namely, the homestead property to Mrs AH (their daughter) and the run-off to their son. However, he acknowledged at the review

11 Ms EN, email to Mr OO(15 December 2015).

hearing that he would have needed to obtain a search of the title to prepare the transmission of the property to Mrs RI after her husband’s death.

[49] It would have been apparent at that time that the properties were comprised in a single certificate of title, and Mr OO had a duty (even at that stage) to ensure the will could be implemented.

[50] In this regard, the judgment of Kos J in Woods v Legal Complaints Review Officer is particularly relevant.12 In that case, Ms Woods had prepared a will on the assumption that the family home was jointly owned by Mrs Pearce and her husband, when in fact it was owned by them as tenants-in-common. The consequence of this was that one half of the property passed to the residuary beneficiary of Mrs Pearce’s will (her son), rather than to her husband by survivorship.

[51] Kos J said:13

Mrs Pearce’s unwillingness to pay for a title search did not absolve Ms Woods from obtaining “sufficient information to enable proper and thorough advice to have been given to her client”. It was not an answer for a lawyer to say he or she was following the client’s instructions when those instructions prevented a full consideration of the factors relevant to the retainer. The failure to undertake a “basic inquiry, to form the basis of sound legal advice, meant that Ms Woods was unable to act in Mrs Pearce’s best interests concerning her testamentary wishes”.

[52] Unsatisfactory conduct is defined in s 12(a) of the Lawyers and Conveyancers

Act 2006 as:

... conduct of the lawyer ... that occurs at a time when he or she is providing regulated services and is conduct that falls short of the standards of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer ...

[53] The Act did not however come into force until 1 August 2008. [54] Section 351(1) of the Act provides:

If a lawyer or former lawyer or employee or former employee of a lawyer is alleged to have been guilty, before the commencement of this section, of conduct in respect of which proceedings of a disciplinary nature could have been commenced under the Law Practitioners Act 1982, a complaint about that conduct may be made, after the commencement of this section, to the complaints service established under section 121(1) by the New Zealand Law Society.

12 Woods v Legal Complaints Review Officer [2013] NZHC 674, [2013] NZAR 577.

13 At [29(e)].

[55] Consequently, Mr OO’s conduct when preparing the wills for Mrs RI, would need to have been such as could have resulted in proceedings of a disciplinary nature being commenced under the Law Practitioners Act 1982.

[56] There are many decisions which discuss the implications of that section,14 but in brief, it is necessary for conduct occurring prior to 1 August 2008 to be somewhat more serious in a disciplinary context than conduct envisaged by the concept of “unsatisfactory conduct”.

[57] Whilst it could be argued that Mr OO had been negligent in preparing wills that could not be implemented, that was not a matter to be considered in the context of disciplinary proceedings under the Law Practitioners Act 1982, unless it reflected on a lawyer’s fitness to practice.

[58] I do not consider this issue reaches the threshold required by s 351(1).

The amalgamation condition

[59] The Standards Committee has excused Mr OO for proceeding as if the amalgamation condition did not exist because of the fact that it was not memorialised on the face of the title. However, Ms MH says that the title and the plan were “pored over and discussed at length”15 by those attending a meeting with Mr OO in December

2014 to specifically check that it was in order for the homestead property to be placed on the market.

[60] Mrs AH sought specific advice about this and should have been able to rely upon Mr OO’s advice. This was an important decision and by entering into an agreement to sell the property, Mrs AH would be incurring significant legal obligations.

[61] In addition, the consequences of the advice being incorrect would have exacerbated the problem that already existed in that the terms of the will could not be implemented.

[62] It may not be unusual for a single title to issue for multiple lots on the same plan where a subdivision has been carried out, and as each lot is sold it is transferred out of the head title. However, in this case, there were two separate lots on different Deposited Plans contained within the same title. How, and why this situation existed,

_{needed to be investigated before the property was advertised for sale.}

14 See for example Waikato Bay of Plenty Standards Committee No. 2 v B [2010] NZLCDT 14.

15 Reasons for application for review at 1.

[63] There is no evidence from Mr OO of any investigation undertaken by him before assuring Mrs AH that it was in order to proceed with the sale of the property. The property was in a rural environment and it would be unusual for a single lot of

3.381 hectares to be comprised in a separate title. It is not unreasonable to expect that a lawyer practicing in the area would be alert to this issue.

[64] However, Mr OO seemingly gave “off the cuff” advice that the property could

be sold separately and Mrs AH proceeded accordingly.

The sale agreement

[65] By the time the Agreement for Sale and Purchase was signed, Mr OO was aware of the situation and included the condition referred to in [12] above.

[66] Advice received from the surveyor seemed to be that a subdivision could be relatively simply achieved, but again, most conveyancing solicitors would be aware that separate lots must be separately serviced and in this case the run-off lot did not have its own electricity supply. There was a cost associated with that and clearly that would have affected the price accepted by Mrs AH if she was going to incur the cost of providing the electricity supply.

[67] In accordance with the terms of the condition in the Agreement as inserted by Mr OO, he applied to the [local] Council on [date] 2015 for the amalgamation condition to be revoked but was told that a subdivision consent was required.

[68] Mr OO’s advice to the H’s16 was that he “tended to agree” with the surveyors when they “reminded” him that the vendors were “obliged” to lodge a formal application for subdivision consent.

[69] It is unusual for a lawyer to take legal advice from a surveyor, and although a party to a contract is obliged to take every reasonable step to ensure conditions are fulfilled, the condition which Mr OO says he arranged to be inserted in the Agreement was that it was subject to Council revoking the amalgamation condition. It was not conditional on the Council approving a subdivision consent.

[70] Mr OO says he was aware there was “no prospect of a decision being made by the contract conditional date of [day month]”,17 but he nevertheless asked the purchaser’s solicitor to confirm the contract was at an end, when, in these circumstances, a lawyer must make a decision as to whether or not a condition has

16 Mr OO, email to Ms MH (16 April 2015).

17 Above n 2.

been fulfilled, and act accordingly. It was Mr OO’s responsibility to make that decision

and stand by it.

[71] Instead, Mr OO’s advice to Mrs AH was:18

The contract with TP is subject to the RI estate being able to obtain separate titles by 27 April. In view of this positive response from [Local Council] believe the RI estate is contract bound to lodge a formal application for consent to this subdivision. TP has told us that he expects this application to be made and will hold the estate to the contract. I need instructions from Mrs AH to authorise the surveyors to lodge this application.

[72] In his response to Ms MH’s complaint to him (of 10 August 2016), Mr OO disagrees with Ms MH’s statement that the family was bound by contract to proceed with the subdivision. He seemingly overlooks the statements made by him in this email.

[73] The family took Mr OO’s advice and authorised him to lodge the subdivision application. The die was cast. Once a property owner embarks on an application to subdivide, it makes no economic sense to withdraw part way through the process, having expended $x to reach a particular stage.

[74] Rule 3 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 requires a lawyer to “act competently and in a timely manner consistent with the terms of the retainer and the duty to take reasonable care”.

[75] I do not consider that Mr OO met this standard when advising Mrs AH that she could sell the homestead property, and then advising her that she was obliged to proceed to lodge an application for subdivision when the Council declined to revoke the amalgamation condition.

Cost increases / delay

[76] The cost increases referred to in Mrs AH’s complaint relate to the cost of carrying out the subdivision. It was only if Mrs AH and AI agreed to sell the properties together that this cost would not have been incurred. Whether or not Mrs AH and AI would have agreed to this, and what price would have been achieved, are imponderables that cannot be addressed in the context of this review.

[77] At [35] and [36] of its determination, the Standards Committee has noted that the delays which occurred, happened because the Council imposed conditions on the subdivision late in the process and delays by contractors.

18 Mr OO, email to Mrs AH (16 April 2015).

[78] Ms MH says that delays in completing the subdivision added to the costs claimed by the purchasers by way of compensation.

[79] Any delays on Mr OO’s part in giving relevant instructions can be addressed by discussion between the parties following the orders made in this decision. However, it must be borne in mind that instructions to contractors would usually come from the client, and Mr OO seemed to have assumed a greater role in this regard than would normally be the case.

Fees

[80] Ms MH’s complaints about fees are not about the quantum of Mr OO’s fees per se. Instead, they relate to the costs incurred in dealing with the subdivision and sale of the property which Ms MH says could have been avoided if matters had been dealt with differently.

[81] When Mr OO realised he had not noted the existence of the amalgamation condition, Mr OO said:19

“It goes without saying MH that I am deeply embarrassed and apologetic and assure you we will do all we can to achieve a successful outcome. We agree that once this matter has been resolved our legal fees will be subject to agreement with your family”.

[82] There is no indication on the material before me that there was any discussion and agreement between Mr OO and the family in this regard, and I am giving Mr OO the opportunity to meet his assurance to the family in this regard.

Other matters

[83] Ms MH has raised a number of other matters relating to Mr OO’s performance but I consider that all the necessary issues have been addressed above. In the circumstances, I do not intend to specifically address what could be referred to as the “minutiae” of the complaints. There is authority to be found in R v Nakhla (No 2) for adopting this approach, where the Court said:20

The Court is not obliged in giving its reasons for judgment to traverse every argument submitted to it.

[84] I adopt that approach with regard to the matters raised in Ms MH’s application for review, which have not been specifically dealt with.

19 Mr OO, email to Ms MH (19 March 2015).

20 R v Nakhla (No 2) [1974] 1 NZLR 453 (CA) at 456.

Conclusion

[85] Pursuant to s 211(1)(a) of the Lawyers and Conveyancers Act 2006, the determination of the Standards Committee is modified by making a finding of unsatisfactory conduct against Mr OO pursuant to ss 12(a) and (c) of the Act. The finding pursuant to s 12(c) is by reason of the breach of r 3 of the Conduct and Client Care Rules.

Orders

[86] In [82] above I have observed that Mr OO does not appear to have followed through on his commitment to take account of his oversight giving rise to his embarrassment, by reaching agreement with the AH family with regard to the fees to be charged in the administration of the estate and sale of the property.

[87] I do not propose therefore in the first instance to make any orders consequent on the finding of unsatisfactory conduct. I appreciate it may now be difficult for the parties to address the matter in a disinterested manner, but wish to give them the opportunity to do so.

[88] I expect this process should commence by Mr OO putting a proposal to Mrs AH for consideration and I urge both parties to endeavour to approach this matter as dispassionately as possible.

[89] If the parties reach agreement, the terms of such are to be reported to me and they will be incorporated into this decision pursuant to s 156(1) of the Lawyers and Conveyancers Act 2006.

[90] If the parties are unable to reach agreement by 31 January 2020, they may either request further time for negotiations to continue or request that I determine the issue.

[91] If either party makes such a request then both parties will have the opportunity to make submissions as to the orders to be made and a timetable will be established for that to occur.

[92] No other orders are appropriate as, other than the modification referred to above, the determination of the Standards Committee is confirmed and this includes all matters and costs relating to the sale and subdivision.

_{DATED this 12}TH _{day of November 2019}

O Vaughan

Legal Complaints Review Officer

In accordance with s 213 of the Lawyers and Conveyancers Act 2006 copies of this decision are to be provided to:

Mrs AH as the Applicant Mr OO as the Respondent Mr NT as a Related Person

[Area] Standards Committee [X] New Zealand Law Society

LEGAL COMPLAINTS REVIEW OFFICER

_{ĀPIHA AROTAKE AMUAMU Ā-TURE}

[2020] NZLCRO 71

Ref: LCRO 37/2018

CONCERNING an application for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006

_AND

CONCERNING a determination of [Area] Standards Committee [X]

BETWEEN AH

_Applicant

AND OO

_Respondent

_{DECISION AS TO ORDERS}

The names and identifying details of the parties in this decision have been changed.

Introduction

[1] On 12 November 2019, I issued a determination in which I modified the determination of [Area] Standards Committee [X] (to take no further action in respect of Mrs AH’s complaints) by making a finding of unsatisfactory conduct against Mr OO pursuant to ss 12(a) and (c) of the Lawyers and Conveyancers Act 2006 (the Act).

[2] I requested the parties to endeavour to reach agreement as to the outcome of the complaint but unfortunately, they have not been able to do so.

[3] Both parties have provided information/submissions as to the orders to be made.

[4] This decision is supplementary to the (findings) decision of 12 November 2019 and contains a consideration of the submissions made by the parties with respect to the orders to be made following the finding of unsatisfactory conduct.

Mrs AH

[5] Ms MH21 has supplied the correspondence between herself and Mr OO following the findings decision. She considers that this, together with all other material to hand, is sufficient to enable a decision as to the orders to be made.

Mr OO

[6] Mr OO states that legal fees for administration of the estate was $6,900 (presumably exclusive GST) and that he had offered to reduce his fee by $2,000 (again, presumably exclusive GST).

[7] I am assuming that Mrs RI’s will followed the usual format,22 and provided that legal fees were to be deducted from the residue of the estate. The balance of the estate was then to be distributed equally between Mrs AH and Mrs RI.

[8] Mr OO notes that Mrs AH has “actually received”23 close to her share of the estate and in addition the RI children had agreed that $6,044.40 of the fees invoiced by Mrs AH’s lawyers could be paid from estate funds.

[9] He submits that any fee reduction should only be in respect of the firm’s administration costs as all other fees in relation to the subdivision and sale would have been incurred in any event.

[10] I have decided to approach the orders to be made following the findings decision, on the basis of a direct payment from Mr OO to Mrs AH.

Orders

_{[11] The orders that can be made are set out in s 156(1) of the Act.}

21 The complaint was made by Ms MH on behalf of her mother (Mrs AH).

22 I can not find a copy of the will on the Standards Committee file and have not requested a copy myself. The administration statement provided by Mr OO supports this assumption.

23 Mr OO, letter to LCRO (12 March 2020).

3

[12] As noted, over the period of the complaint and this review, and in person at the review hearing, Mr OO has proffered his apologies on a number of occasions to Mrs AH, both personally and in writing. No further apology is needed.

[13] It was understandable that Mr OO did not recognise that there was an amalgamation requirement, because LINZ had not recorded it on the title.24

[14] The degree of unsatisfactory conduct does not merit ‘censure’ as provided for

in s 156(1)(b) of the Act.

[15] All beneficiaries of this estate have suffered some degree of loss due to the fees incurred in rectifying the matter. Accordingly, I approach the decision as to what orders should be made, from the perspective that they are to compensate Mrs AH for the consequences flowing from Mr OO’s initial wrong advice, and then all of the consequences flowing from the advice and conduct relating to the subdivision.

[16] Any compensation ordered, can only be general in nature as there are too many strands involved (pluses and minuses) to endeavour to reach a definitive calculation.

[17] The maximum compensation that can be ordered is $25,000.25 It is not proposed to make an order anywhere near approaching the maximum.

[18] In the circumstances Mr OO is ordered to pay Mrs AH the sum of $2,000 by way of compensation pursuant to ss 156(1)(d) and 211(1)(b) of the Act by no later than

3 June 2020.

[19] Pursuant to s 211(1) of the Lawyers and Conveyancers Act 2006 the determination of the Standards Committee is modified accordingly.

[20] This payment is to be made direct to Mrs AH at the address provided by her in the application for review. If Mrs AH requires otherwise, she is to advise Mr OO

_{forthwith upon receipt of this decision.}

24 As required by the Counties Amendment Act 1961.

25 Regulation 32 (Lawyers: Complaints Service and Standards Committees) Regulations 2008.

Review costs

[21] Pursuant to s 210 of the Lawyers and Conveyancers Act 2006, Mr OO is ordered to pay the sum of $900 to the New Zealand Law Society on account of the costs and expenses of this review. Payment is to be made within one month of the date of this decision.

Enforcement

[22] Pursuant to s 215(2) of the Lawyers and Conveyancers Act 2006, the orders made in this decision may be enforced in the civil jurisdiction of the District Court.

_{DATED this 19}TH _{day of MAY 2020}

O Vaughan

Legal Complaints Review Officer

In accordance with s 213 of the Lawyers and Conveyancers Act 2006 copies of this decision are to be provided to:

Mrs AH as the Applicant Mr OO as the Respondent Mr NT as a Related Person

[Area] Standards Committee [X] New Zealand Law Society