Tribunal exposes ‘wrong-headed thinking’ behind Qld director’s conflict of interest

While the Queensland Civil and Administrative Tribunal (QCAT) had little difficulty accepting this characterisation, Justice Duncan McMeekin KC – along with members Geoffrey Sinclair and Keith Revell – was unconvinced about the proposed $5,000 fine.

They did accept a public reprimand, noting “it involves a public shaming which most practitioners would wish to avoid, and which does send a message to the profession and the community generally”.

“We are conscious too that, as will be seen, Mifsud will have a costs order imposed against him and so some further monetary discouragement of such conduct. Nonetheless, we hold serious concerns as to the level of the fine proposed,” Justice McMeekin said.

While Mifsud and his firm were engaged by both the buyer and seller, it was the name and details of his two paralegals that appeared on the contract. Neither one was legally qualified, but they were acting under Mifsud’s supervision, according to a letter from the firm.

The contract included a sunset clause that provided the sellers would give the buyers written notice if another offer came in, at which point the buyer would have two business days to “elect to waive reliance on all special conditions”, such as finance approval and “building pest”.

In mid-December 2019, the paralegal acting for the seller informed the paralegal for the buyer via email that this clause was invoked.

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The following day, the paralegal for the buyer said she was “happy to declare” the contract unconditional and advised that a broker “was confident of the bridging finance becoming available”.

It was made clear to the paralegal for the buyer that if the contract was not completed, the seller could sue for damages. Regardless, the buyer’s paralegal confirmed in writing that they could proceed.

On 11 February, about a week before settlement was effective, the buyer advised their paralegal that they did not have sufficient finance.

In addition to being unsuccessful with negotiating another contract, the buyer settled a damages lawsuit brought by the seller by agreeing to pay $8,439, plus legal costs in the sum of $3,344.

In now-abandoned arguments, Mifsud said he made a belated disclosure that he was acting for both parties, the buyer impliedly consented to his acting for both sides because she did not demur, and he was not in a conflict because the conflict was “only potential” up until the buyer failed to secure financing.

Justice McMeekin acknowledged the arguments were no longer pressed but explained: “The fact that an experienced solicitor should make such assertions at all requires that there be a refutation.”

“Each of those points was fundamentally wrong,” he said.

On the disclosure point, Justice McMeekin said there was no reference anywhere in a letter provided to the buyer that Priority One Conveyancing was acting for both parties.

While she may have worked it out by linking the seller’s solicitor to the details listed in the contract, Justice McMeekin said clients needing to draw inferences “from hints here and there does not amount to disclosure in the sense needed here”.

Next, the notion that fully informed consent had been given to the buyer in circumstances where there was “no such communication from her solicitor at all” was labelled “absurd” by QCAT.

“Indeed, Mifsud explained, apparently thinking it to be in some way exonerative, that [the firm] ‘acted administratively, with paralegals handling routine tasks’ (which is not at all accurate as they were not so limited given the advice provided by them) and his ‘direct involvement was minimal’,” the tribunal further said.

As to the final point, Justice McMeekin said there were two conflicting interests at the time of the contract: the buyer wanted an open contract until she obtained finance, and the seller insisted on the sunset clause so as to take advantage of any better offer that comes along “so long as it remained conditional”.

“The need for expert guidance from a solicitor concerned only with the client’s interests would have been helpful at the outset.

“Despite that, Mifsud argued in his response that no actual conflict emerged as ‘the transaction involved standard conveyancing terms’.

“What may be standard to a solicitor with decades of experience may not be so obvious to a client who may have very limited experience with contracts of this type,” Justice McMeekin said.

Once the sunset clause was invoked, Justice McMeekin said Mifsud was in a “serious and obvious position of conflict”.

Further, Justice McMeekin said that given Mifsud’s “wrong-headed thinking”, it should be observed that conveyance of land should not be assumed to be a straightforward exercise. This was noted by one of the paralegals, who wrote that conveyancing is “complex and is affected by at least 20 different pieces of state and federal legislation”.

QCAT also found Mifsud failed to proffer any advice to the buyer as to the risks and consequences under the contract, particularly when it came to waiving all conditions on the contract.

While his secretary informed the buyer’s paralegal that she exposed herself to damages if she waived the conditions and should not obtain finance, the tribunal noted there was no warning of the fact that damages “could well be in the tens of thousands of dollars”.

“Mifsud’s response … demonstrates a lack of any appreciation of his ethical and fiduciary responsibilities in conveyancing transactions.

“As the commissioner stresses – to be fully advised of the obligations and legal consequences of a contract and actions taken under that contract, and to be legally protected in those processes, is the main reason parties to contracts engage solicitors,” Justice McMeekin said.

Mifsud and the commissioner have been given 14 days to make submissions about the suitability of the $5,000 fine.

Mifsud’s practising certificate was cancelled in February 2022, and he has indicated he does not intend to practise again.

Citation: Legal Services Commissioner v Mifsud [2026] QCAT 286.