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LINZ certification - censure

02 May 2017

Richard Geoffrey Warren Austin has been censured and fined $3,000 by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal.

In [2016] NZLCDT 33, Mr Austin admitted a charge of unsatisfactory conduct.

The charges arose in relation to a complex administration of an estate. This required transmissions of land to new trustees and preparation of Statutory Declarations for Transmission by Survivorship.

Mr Austin certified with Land Information New Zealand (LINZ) that any statutory provisions for this class of instrument had been complied with or did not apply; and he held evidence showing the truth of the certifications he had given and would retain that evidence for the prescribed period.

When a routine audit by LINZ disclosed missing declarations, Mr Austin relied on the assurance of an experienced legal executive that the declaration had definitely been executed but must have been lost from the file.

He instructed a duplicate or replica to be produced, which was sent to the client for signature and subsequently (not in their presence) witnessed and the declaration taken on its return.

As Mr Austin acknowledged, this was “quite the wrong way” to handle the situation, the Tribunal said. “The second mis-step was that the practitioner then certified this document as correct to LINZ.”

After dispatching the “replacement” declaration to LINZ, Mr Austin began to worry that perhaps his legal executive had been mistaken and that the document might not have been previously executed and witnessed. He made a file note to that effect.

“It is significant that the error involved was not one which could have affected the integrity of the land registration process,” the Tribunal said. “This is because it was a declaration of death. The practitioner had known the deceased, was personally aware of his death, he had a death certificate.”

Another “significant feature” was that when Mr Austin began to doubt the correctness of the advice provided by his legal executive, he notified his partners rather than attempting to conceal the matter. 

The Tribunal also acknowledged that Mr Austin had done “everything necessary” to set matters right.

Mitigating features included lack of disciplinary history, that Mr Austin produced a number of glowing references, that he had made a considerable pro bono community contribution and his remorse and co-operation.

As well as the censure and fine, Mr Austin was ordered to pay $11,086 standards committee costs and $2,694 Tribunal costs.

Last updated on the 2nd June 2017