Legal Services Commissioner v Yakenian  NSWCATOD  is about a solicitor of Fairfield in western Sydney, neighbour of Cabramatta and Villawood. He was referred to the NSW Legal Services Commissioner by District Court Judge, her Honour Wass DCJ.
The defendants’ solicitor requested particulars of Mr Yakenian’s builder client’s statement of claim and said the defendants would provide defences within a reasonable time after the particulars were given. They invited the solicitor to advise them if he had any difficulty with this course. He did not do so. There was also talk of a security for costs application.
The same day as the particulars were given, the solicitor snapped on default judgment for more than $750,000, filing a formal affidavit required by NSW’s procedural rules which did not mention the correspondence referred to, and then issued a bankruptcy notice against one of the defendants 3 days later, all while the defendants remained unaware they were judgment debtors and were presumably leisurely scraping together their defences. The day after the bankruptcy notice, the defendants’ solicitors wrote expressing their understanding ‘that the plaintiff would not file for default judgment until the defendants’ solicitors had served the defences, and requesting that the Solicitor let them know if that was not the case.’ He did not do so. The defendant’s solicitors said they anticipated being able to file the defence by 8 August 2016.
Even though he explained that he and counsel both advised his client not to snap on judgment and he only reluctantly followed his client’s informed instructions to do so (the solicitor said he felt pressured to comply with the instructions because the client was a significant part of the solicitor’s then fledgling practice) the Legal Services Commissioner charged him with professional misconduct constituted by snapping on judgment; by misleading the defendants’ solicitors by silence; by misleading the court by silence in his affidavit in support of default judgment; and (most puzzlingly to my mind) by issuing a bankruptcy notice without notice to the defendants.
The decision is the result of a guilty plea in a case where the solicitor represented himself, but the NCAT waved it through without much apparent anxiety about the implications of their findings and whacked him with a fine of $7,500, plus costs.READ MORE