WA lawyer to be struck off, ordered to pay over $50,000

By Jerome Doraisamy|24 January 2019

A West Australian-based sole practitioner, who was last year found guilty of professional misconduct and unsatisfactory professional conduct, has been recommended for removal from the roll of practitioners and has had his practising certificate suspended in the interim.

Nicholas Neil Peter Oud, who last year was found guilty on four grounds of professional misconduct and two grounds of unsatisfactory professional conduct, is set to be removed from the roll of practitioners in Western Australia, with the State Administrative Tribunal making and transmitting a report to the Full Bench of the Supreme Court of WA recommending that his name be remove from the roll.

Pending the determination of the full bench, Mr Oud’s practising certificate is to be suspended.

In addition, he was ordered to pay the costs of the Legal Profession Complaints Committee, totaling $53,522.70, in light of the fact that the committee had to engage and brief senior counsel for the proceedings in question. The tribunal held that such engagement of senior counsel was appropriate.

The charges brought by the committee against Mr Oud in the initial proceeding were split into two annexures.

In the first annexure, he was alleged to have disbursed from the firm’s trust account $300,000, which had been received on behalf of Credit Solutions Group in circumstances where he had undertaken not to transfer, move or use the funds without express written consent, and did so “in reckless disregard or with reckless indifference to” a breach of his undertaking.

Further, the committee submitted that he had failed to keep his firm’s trust records in a way that disclosed the true position in relation to withdrawals from trust of the CSG loans, failed to deliver to CSG’s solicitor an original receipt for receipt of the loan funds into the trust account when requested. He responded to an email requesting return of funds from the trust account by not disclosing that the funds were no longer retained in that trust account and implying that the loan funds were being retained, and that he had conveyed an offer to repay loan funds on condition that a complaint made about his supposed breach of the aforementioned undertaking be withdrawn.

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In the second annexure, he was alleged to have sent a letter, in connection with a creditor’s petition, addressed to the Federal Circuit Court, that contained statements that were “false and misleading”.

On the six charges spread across two annexures, he was found guilty of professional misconduct and unsatisfactory professional conduct.

In determining the appropriate orders, the tribunal took into consideration 12 factors. Their analysis of those factors led them to surmise that Mr Oud’s conduct showed that he was unable to command the personal confidence of other practitioners and the courts.

“[His] conduct is that that there is a clear need to protect the public against further misconduct by Mr Oud,” it held.

“His conduct was extremely serious and involved serious dishonesty, both misleading the court and other practitioners. The fact that his conduct was not isolated emphasises the need to protect the public.”

His explanations for his conduct were “on occasions, bizarre”, the tribunal added.

Further, it deemed he had “no insight into his conduct whatsoever”, and as a practitioner who was admitted in 1995, he “should have been well aware of his professional obligations”, having worked as a lawyer for over 20 years.

“His conduct is so serious that the practitioner is permanently or indefinitely unfit to practice,” the tribunal said.

WA lawyer to be struck off, ordered to pay over $50,000
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