XR v JD [2019] NZLCRO 47 (9 May 2019)

Last Updated: 22 May 2019

	LCRO 004/2019
CONCERNING	an application for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006
AND
CONCERNING	a determination by [Area] Standards Committee [X]
BETWEEN	XR Applicant
AND	JD Respondent

DECISION

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

Background

[1] On 6 December 2018 [Area] Standards Committee [X]1 (the Committee) issued a determination to take no further action with regard to Ms XR’s complaints about Mr JD. The determination sets out the full facts relating to Ms XR’s complaint.

[2] Mr JD had acted for persons who had entered into an Agreement to purchase a property owned by Ms XR. The Agreement was conditional on the purchasers receiving a satisfactory builder’s report and being approved finance sufficient to complete the purchase.

[3] Mr JD advised Ms XR’s solicitor that the builder’s report was not satisfactory and gave notice terminating the Agreement.

[4] The purchasers did not comply with the provisions of clause 10.3 of the Agreement which require the purchaser to provide a copy of the builder’s report to the vendor if the Agreement is cancelled on the grounds that the report is not satisfactory.

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[5] Ms XR lodged a complaint with the Lawyers Complaints Service about Mr JD. The Committee outlined Ms XR’s complaints:1

... Mr JD’s conduct has been unprofessional and has caused [Ms XR] undue stress and financial loss. In particular, Ms XR says Mr JD authorised the termination of a contract without adequate grounds or explanation, has delayed providing information in a timely manner and did not provide the Builder’s Report as required under clause 10.3 of the ASP.

[6] The Committee determined to take no further action in respect of Ms XR’s complaints for the reason that she was not Mr JD’s client and he had no professional obligations to her.

[7] Ms XR has applied for a review of the determination. She says:

The Standards Committee has simply considered that Mr JD does not have a duty to me as he is not my lawyer, which was not an issue in my complaint. I believe he simply has a duty to uphold the law, and I don’t believe he has done so.

The Lawyers and Conveyancers Act 2006

[8] This decision is made in accordance with the following sections of the Lawyers and Conveyancers Act 2006:

199 Obligation to conduct review

(1) The Legal Complaints Review Officer must, on receiving an application for review that is made in accordance with this Act, conduct that review.

(2) This section is subject to sections 200, 201, and 205.

205. Legal Complaints Review Officer may strike out, determine, or adjourn application for review
     

(1) The Legal Complaints Review Officer may strike out, in whole or in part, an application for review if satisfied that it—

• (a) discloses no reasonable cause of action; or
  

...

No reasonable cause of action

[9] Mr JD did not act for Ms XR. He does not have any professional obligations to her as a client.

[10] He must comply with his client’s instructions.

1 Standards Committee determination, 6 December 2018 at [8].

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[11] He has not breached any of the provisions of the Lawyers and Conveyancers Act 2006 or Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 which impose a duty on lawyers to persons who are not the clients of the lawyer.

[12] Ms XR says that “Mr JD [must be] held accountable for his actions”.

[13] Ms XR’s remedy is to take action against the purchasers to enforce the terms of the Agreement. Mr JD does not have an overarching duty to ensure his clients comply with the terms of the Agreement. This Office does not have any jurisdiction to interpret and/or enforce the terms of the Agreement.

[14] Ms XR has not disclosed any reasonable cause of action for complaint against Mr JD.

Decision

[15] Pursuant to the provisions of s 205(1)(a) of the Act, Ms XR’s application for review is struck out on the grounds that it discloses no reasonable cause of action against Mr JD.

DATED this 9TH day of May 2019

D Thresher

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:

Ms XR as the Applicant Mr JD as the Respondent

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