WA lawyer Paul Andrew Hardie has been reprimanded on two counts of professional misconduct, after he created an enduring power of appointment (EPA) without verifying whether it was within the donor’s knowledge or wishes.WA lawyer Paul Andrew Hardie has been reprimanded on two counts of professional misconduct, after he created an enduring power of appointment (EPA) without verifying whether it was within the donor’s knowledge or wishes.
The power of attorney was then forged, and used to defraud the donor by means of a mortgage worth $400,000 – a mortgage on which Hardie also gave advice.
Hardie has been in practice since 1999 and working on his own ticket when he received instructions in an email from Michael King, a long-time client, to create the EPA.
The proposed donor under the EPA was Ms Marai, with her brother appointed as her enduring attorney.
The purpose of the EPA was to provide the brother with the ability to claim in survivorship and for lost title actions in respect of their mother’s estate, of which Ms Marai was the executrix.
Ms Marai’s signature was forged on the EPA document and it is not known who did the forging.
Hardie claimed that, because he considered drafting the EPA a “favour” for Mr King, and did not create a file or a bill for the matter, he did not owe any solicitor-client duties, and did not owe any duties to Ms Marai.
However, the Tribunal, referring to the “powerful” and “lasting” nature of an EPA, held that a practitioner who drafts the document will always owe duties to a donor, irrespective of who asks the practitioner to create it.
Further, because the EPA instructions were given to Hardie, a third party, he had a duty to take appropriate steps to verify that those instructions were within the consent of the donor.
His failures to meet Ms Marai, or to communicate with her about the EPA, amounted to professional misconduct.
The Tribunal also found that the mere presence of a settlement agent in the EPA drafting process did not absolve him of his duties – because he had no communication with the settlement agent and he could form no reasonable belief as to whether the agent had undertaken to verify the consent and capacity of Mr Marai to the making of the EPA.
Four days after Hardie finalised the EPA, he received a request from Mr King to create a $400,000 loan, which was to be granted to an unrelated third party and secured by a mortgage over a property owned by Ms Marai.
This guarantee was made by Mr Marai, purporting to act as his sister’s attorney, without her knowledge. The Tribunal held that, because Ms Marai was deemed to be Mr Hardie’s client by reason of the EPA, he was in a conflicted position while advising on the loan and mortgage.
Because the mortgage was of no commercial benefit to Ms Marai, he should have been on notice of the suspicious surrounding circumstances.
The Tribunal made a second finding of professional misconduct by acting in the presence of a conflict. However, the Tribunal did not conclude that both grounds of misconduct would justify a finding that Hardie was not fit and proper.
The parties were asked by the Tribunal to create a draft minute of agreed proposed orders.
Legal Services and Complaints Committee v Hardie [2025] WASAT 50
The Victorian Supreme Court dismissed an appeal from a VCAT decision which found that a law firm provided negligent advice and breached its retainer.
VCAT held that by advising its client to challenge a strong application for asset freezing orders, and to not offer a settlement, the firm exposed its client to unnecessary costs assessed at $37,500.
The judgment is the most recent in the Pless family’s extensive history of litigation.
In a 2023 VCAT decision, Senior Member Reynah Tang stated that “much like the fictional Oblonsky family, the Pless family has been an unhappy family”.
Keogh & Co was retained by the late Roland Pless, after his son Peter Pless accused him of dealing with the family riches in breach of trust.
During the litigation, Pless Snr transferred ownership of his family home to a company trust. Pless Jnr brought a claim to prevent further dealings with the house, as he alleged that his father was attempting to shield the property from any judgments.
While Keogh & Co drafted a proposed undertaking for Pless Snr not to deal with the house any further, this was not offered to Pless Jnr during the litigation.
The court stated that Pless Jnr had an “obvious case” for the freezing orders, and that there were limited prospects of successfully opposing his application, and that it was open for VCAT to decide that a reasonably competent solicitor would have identified the risks of a challenge, and ought to have offered the proposed undertaking.
The firm attempted to argue that it was protected by advocate’s immunity, however the court referred to the recent decision of Kendirjian v Lepore (2017) 259 CLR 275, in which Their Highnesses conclusively stated that negligent advice not to settle falls outside of the immunity.
The firm also argued that an instruction by Pless Snr to “employ a QC … costs irrelevant” authorised unlimited expenditure (including the excess costs of a challenge to the freezing order application).
VCAT also dismissed this argument. An argument that the Tribunal failed to consider several letters from Pless Snr to his lawyers was also dismissed.
Finally, it was argued that the senior member who presided over the VCAT hearings should have recused himself due to a reasonable apprehension of bias. After hearings first commenced, the firm sought leave to amend their defence to claim that Pless Snr paid their fees out of trust funds (and therefore suffered no personal loss).
The senior member queried whether Barnes v Addy (1874) LR 9 Ch App 244 issues arose, in respect of knowing receipt of trust money in breach of trust.
The firm alleged that this involved an inappropriate allegation that Mr Pless Snr and the firm had engaged in serious dishonesty.
The Supreme Court dismissed this bias argument, as the member was merely identifying material issues, and not expressing personal opinions on the parties’ conduct.
No apprehension of bias was reasonably open on the facts, and it was reasonable for the member to have not recused himself, which would have led to further costs and delay. The Court upheld the VCAT’s $37,500 compensation order.
Keogh & Co v Pless [2025] VSC 341
The VCAT has published what looks to the final chapter of former barrister Alan Sandbach’s working biography of rule skirting and disciplinary proceedings (which this masthead has dutifully covered over the years).
The Tribunal reprimanded Sandbach and prohibited him from applying for a practising certificate for a year for failing to draw proposed appeal papers as he was briefed to do, and for making false or misleading claims to his clients about the status of his work (while he was no longer allowed to undertake legal work, due to professional conduct breaches).
Sandbach was called to the bar in 1984, but has not held a practising certificate since April 2019. After disciplinary proceedings in respect of rogue fraud allegations in the Costs Court, and an investigation into Sandbach’s taxes, the Victorian Bar Council ruled that he was not fit and proper to hold a practising certificate, and ordered that he be disqualified for four years. This ban commenced in April 2019.
Though Sandbach applied to the VCAT for an appeal of the Bar Council’s decision, more potential wrongdoing came to light during the proceedings – and he withdrew his appeal before the unfortunate details could be fully ventilated.
Before his ban commenced, Sandbach was briefed in February 2019 to draw appeal papers for a client of Lennon Lawyers. The client owned and operated a restaurant, but was engaged in a dispute with the sublessor of the premises.
Between February and May of 2019, the firm sought routine updates from Sandbach on the progress of the preparation of the appeal.
For various reasons elaborated by Sandbach in emails to the firm, including being “tied up in court”, he did not complete the papers (despite also being offered a dictaphone and a typist by the firm).
Sandbach did not advise the firm that, once his ban commenced, he did not have the capacity to conduct legal work. His delay caused the solicitors and their client considerable distress, with the client terminated its retainer.
Sandbach admitted to unsatisfactory professional conduct by not completing the appeal papers when he was briefed to do so, and also to professional misconduct in making false or misleading representations which created a reasonable expectation that he was continuing to draw the documents for the proposed appeal.
He then signed an undertaking with the VLSC that he would at no point in the future apply for a practising certificate in any Australian State or Territory (in return for his name not being permanently struck from the Supreme Court’s jam roll).
He was formally spanked by the Tribunal and, despite undertaking to permanently cease legal work, also handed the one year ban.
Victorian Legal Services Commissioner v Sandbach [2025] VCAT 465