New Zealand Law Society - Reprimanded over property transfer issues

Reprimanded over property transfer issues

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Names used in this article are fictitious

A lawyer, Radfoot, has been reprimanded, fined and ordered to pay compensation following a complaint that he had failed to transfer ownership of a home as agreed.

Radfoot acted for Ms Tapley in a protracted relationship property dispute between Ms Tapley and Mr Plornish. For much of the time Mr Plornish was self-represented, but then instructed a law firm, firm A, to act for him.

It was agreed that the home the couple owned would be transferred to Mr Plornish subject to the existing mortgage, from which Ms Tapley was to be released.

Settlement was completed by Mr Plornish attending Radfoot’s offices in person, tendering a cash payment of $8,000, and with Radfoot handing him a Client Authority and Instruction for e-dealing the transfer of the home, signed by Ms Tapley and witnessed by Radfoot.

The Client Authority and Instruction for e-dealing was addressed to firm A.

The lawyers standards committee considering Mr Plornish’s complaint determined that Radfoot’s conduct fell short of the standard of competence and diligence that the public is entitled to expect of a reasonably competent lawyer.

The committee noted that Ms Tapley, in instructing Radfoot to act on her behalf, was entitled to rely on Radfoot to “competently and diligently assist her with the legal requirements to complete settlement with Mr [Plornish]”.

It was implicit that, in tendering the agreed settlement sum in exchange for the transfer of the property, Mr Plornish would receive a transfer that could be registered without any further action being required of Ms Tapley.

The committee said that Radfoot would have known Mr [Plornish] was incapable of completing the e-dealing himself and would need to instruct a lawyer or conveyancer capable of e-dealing to do so.

“It would appear from the fact that Mr [Plornish] did not provide the Client Authority and Instruction to [firm A] until some 11 months after settlement that he did not understand its importance, and/or any explanation given by [Radfoot] was inadequate or not effectively communicated to him.”

Radfoot should have dealt with firm A to make “satisfactory arrangements for completion of the transfer by e-dealing” in advance of any settlement, the committee said.

There were also a series of issues with the Client Authority and Instruction.

These included two spellings of Ms Tapley’s real name, use of an expired passport to identify Ms Tapley and the fact that Radfoot provided certificates that the “name(s) and signature(s) match the client(s) name(s) and identification provided” when they did not.

The Client Authority and Instruction was “defective in material respects and was not a proper instrument upon which [firm A] could rely for signing and certifying the transfer instrument online,” the committee said.

The committee also found that Radfoot was not authorised under the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 to communicate and deal directly with Mr Plornish about settlement.

The committee determined there had been unsatisfactory conduct by Radfoot.

As well as the reprimand and a $2,500 fine, the committee ordered Radfoot to pay Mr Plornish $5,000 compensation “for the further costs that Mr [Plornish] will likely incur to complete registration of the transfer of the property to himself.” It also ordered Radfoot to pay $1,000 costs.

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