While a breach would ordinarily amount to professional misconduct, Justice Peter Davis – assisted by QCAT members Richard Barnes and Patrice McKay – said Healy did not engage in the conduct “knowing and understanding that to do so would breach the undertaking”.

“As undertakings are a fundamental feature of practice, it is imperative the solemnity of solicitors’ undertaking is preserved,” Justice Davis said.

“It is for this reason that a breach of an undertaking will usually amount to professional misconduct, although, ultimately, that judgement must be made upon consideration of all the relevant circumstances.”

In early September 2021, Healy sent transfer documents to the opposing solicitors and requested the return of completed forms, “upon our undertaking, hereby given, to use same for stamping purposes only, pending settlement”. The forms were necessary to transfer the opposing party’s interest in two properties to Healy’s client.

At the end of that month, and the day before the settlement date, the opposing solicitors suggested that Healy’s client request an extension.

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About a fortnight later, the solicitors advised Healy that they considered his client was in breach of the binding financial agreement (BFA) because they had not received releases of mortgages for the real property.

In response, Healy said the refinance of one of the mortgages was expected to be completed in one week, and the other in three weeks, because the banks “are currently experiencing delays”.

However, by that stage, one of the banks had contacted Healy about him not meeting outstanding requirements to the discharge authority.

In November, after the opposing party swapped solicitors, Healy received a request that he not deal with or register the transfer documents pending further communication from him.

Healy repeated the claim that the banks were experiencing “delays” and said he would not undertake not to deal with the transfers. Later, he advised that the settlement had been effected.

Justice Davis said Healy was attempting to fulfil his obligations and retainer to his client to the best of his ability and had acted as honestly as he thought he should, “but was badly mistaken”.

“He understood his authority to deal with the transfer documents as being non-revocable. That was wrong. He thought he was authorised to deal with the transfer documents provided [the opposing party] had, in his opinion, no option but to complete her obligations … That was wrong,” Justice Davis said.

Had Healy realised he had no authority to deal with the transfer and proceeding to settle the transaction would result in a breach of his undertaking, Justice Davis said he would not have proceeded.

“Having misunderstood the true construction of the BFA, Healy became sidetracked on the wrong issue. He believed that the real issue was whether [the opposing party] had a right to rescind the BFA.

“He thought as she had no right of rescission and no right to pursue the alternative path … he was entitled to use the transfer documents for settlement. He was wrong about that, but I find his belief was genuinely held,” Justice Davis said.

The case: Legal Services Commissioner v Healy [2025] QCAT 171 (7 May 2025)