Carlyle v Queensland Law Society [2023] QCAT 161

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Carlyle v Queensland Law Society [2023] QCAT 161 PARTIES: ALEXANDRA CARLYLE (applicant) v QUEENSLAND LAW SOCIETY (respondent) APPLICATION NO/S: GAR606-21 MATTER TYPE: General administrative review matters DELIVERED ON: 18 January 2023 HEARING DATE: 2 December 2022 HEARD AT: Brisbane DECISION OF: Hon. Duncan McMeekin KC, Judicial Member ORDERS: The application is dismissed. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where a solicitor acting as agent for a company selling a business misappropriated monies paid by the purchaser – whether the purchaser can claim against the fidelity fund – whether the purchaser suffered pecuniary loss – whether default was shown to have caused loss Legal Profession Act 2007 (Qld), s 359, s 375, s 392 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 Black v S Freedman & Co (1910) 12 CLR 105 Legal Services Board v Gillespie-Jones (2013) 249 CLR 493; [2013] HCA 35 APPEARANCES & REPRESENTATION: Applicant: P J Woods and E J Jensen ib Linda Phelps & Company Respondent: P Somers ib Queensland Law Society -- 1 of 10 -- 2 REASONS FOR DECISION [1] This review concerns the right of the applicant to make a claim on the Legal Practitioners Fidelity Fund Guarantee Fund established under s 359 of the Legal Profession Act 2007 (Qld) (“LPA”). The Background [2] A solicitor, Juliette Wright, principal of Phoenix Lawyers Pty Ltd, misappropriated certain monies that were paid to her by the applicant. The applicant intended that the monies be paid by Ms Wright to Ms Wright’s client, Brabus PA Franchising Pty Ltd (“Brabus”). The monies were owed, or at least believed by the applicant to be owed, pursuant to a series of contracts entered into by the applicant with Brabus for the acquisition of a franchise business and its stock in trade. The purchase price was arrived at by striking an agreement on the value of the business and then setting a notional sum for the value of stock in trade which was adjusted after a stock take. The business and stock were duly transferred to the applicant or related entities upon payment to Ms Wright of the agreed amounts. The contracts were settled on 1 August 2016. Ms Wright paid part of the monies received to Brabus but misappropriated the balance – a sum of $115,450.00. [3] It is uncontroversial that Ms Wright was at all times acting as agent for Brabus. She was in fact employed by Brabus. She had applied for a practising certificate to run her own practise, Phoenix Lawyers, and her certificate issued on 1 July 2016. She received the monies in question here a few weeks later. [4] The peculiar twist in the facts here is that neither Brabus nor the applicant were aware of any misappropriation for some years. [5] In 2019 the applicant sold the business back to Brabus. In 2020 the misappropriation came to light. Thus, for some years the applicant, and for that matter Brabus, were unaware that monies had been taken by Ms Wright. Unbeknown to the applicant, Ms Wright listed the business for sale at a sum more than the amount that Brabus had instructed and expected to receive. While it is not clear how this came about, Brabus was unaware that the business was marketed by Ms Wright at the greater sum and then sold for that greater sum. After receiving the sale proceeds from the applicant Ms Wright pocketed the difference between the price her client expected and the price the applicant paid –the sum of $115,450,00. [6] After this misappropriation, along with others, came to light, the solicitor was charged with numerous offences of dishonesty but for present purposes the relevant charge she faced was as follows: “That on diverse dates between the 30th day of May 2016 and the 30th day of July 2016 ... [the solicitor] dishonestly induced [the applicant] to deliver $396,504.09 banking credits to [the solicitor] ...” [7] Ms Wright pleaded guilty to the charges and was eventually sentenced to imprisonment in relation to these charges. [8] The applicants made a claim for the sum of $115,450.00 on the fidelity fund. The relevant statutory committee of the Queensland Law Society disallowed the applicant’s claim. The applicant seeks a review of that decision under s 392 LPA. -- 2 of 10 -- 3 Principles governing review [9] My task under the statute is to “produce the correct and preferable decision”: s 20(1) Queensland Civil and Administrative Act 2009 (“QCAA”). The applicants are entitled to a fresh hearing on the merits: s 20(2) QCAA. There is thus no need for the applicant to show any legal, factual or discretionary error in the reasoning of the statutory committee. Conversely, asserting that there were such errors – as the applicant does – does not really assist the applicant, save to the extent that it assists me in avoiding the same alleged errors. The legislation [10] The right to claim against the fidelity fund is governed by Part 3.6 of the LPA. Merely establishing that a solicitor has been dishonest and taken moneys is not sufficient. [11] The crucial provision is at s 374 which, relevantly, provides: “Claims about defaults (1) A person who suffers pecuniary loss because of a default to which this part applies may make a claim against the fidelity fund to the law society about the default.” [12] So it is necessary for the claimant to show they have suffered pecuniary loss, that there has been a “default” as defined, and that the “default” caused the loss. Section 356 provides the following definitions of the key concepts: “‘default’, in relation to a law practice, means— (a) a failure of the practice to pay or deliver trust money or trust property that was received by the practice in the course of legal practice by the practice, if the failure arises from an act or omission of an associate that involves dishonesty; or (b) a fraudulent dealing with trust property that was received by the law practice in the course of legal practice by the practice, if the fraudulent dealing arises from or is constituted by an act or omission of an associate that involves dishonesty. ‘pecuniary loss’, in relation to a default, means— (a) the amount of trust money, or the value of trust property, that is not paid or delivered; or (b) the amount of money that a person loses or is deprived of, or the loss of value of trust property, as a result of a fraudulent dealing.” [13] Schedule 2 to the LPA provides: “trust property means property entrusted to a law practice in the course of or in connection with the provision of legal services by the practice, but does not include trust money or money mentioned in section 238.” The Society’s argument [14] The respondent, the Queensland Law Society, contends that the decision of the statutory committee was correct. The Society submits that the claimant fails at the threshold, there being no pecuniary loss shown, and further that no relevant default is shown that has caused any loss to the claimant. -- 3 of 10 -- 4 [15] In my view the Society is correct in its submissions. A confused story [16] Before turning to the arguments, I observe that the evidence is rather vague as to what occurred here. A director, and apparently the guiding mind of Brabus, is Mr Barry Jarred. He has sworn that Ms Wright was not authorised to accept funds into a ‘trust account’ on behalf of Brabus. Her role, he asserts, was to assist with all legal matters but did not include handling monies or preparing invoices. He speaks of the general practice of issuing invoices and the directions such an invoice ought to contain regarding payment of the invoice – direct to Brabus’ account. What he does not speak of is what happened in this case. [17] The schedule to the contract for the sale of the business that the applicant entered into lists Ms Wright as the “contact” for Brabus. The contract provides by cl 14.3 that the email address of Brabus for “all notices, consents and other documents authorised or required to be given” as [email protected]. Given Ms Wright’s role as legal officer for Brabus I infer that is her email address. There is no evidence of any invoice issuing or what it read if one did issue. The monies owing under the contract were paid by the applicant to Ms Wright or more accurately to her firm Phoenix Lawyers and then on to Brabus. Mr Jarred says he believed the amount owing was paid directly into the company account by the purchaser. The basis for this belief is not explained, nor does he say what enquiry he has made into the circumstances of the payment. He knows now of course that he was wrong in that belief, so his statement only goes to show that he seems to have known little of what actually went on. His affidavit asserts that “Ms Carlyle (the applicant) entered into a franchise agreement on 6 June 2016 for a total sum of $281,054.09. The breakdown of this quantum is recorded in our system in ‘Mind Your Own Business’ (MYOB) and I can confirm that this figure is what was owed by Ms Carlyle upon settlement.” It is not clear what basis Mr Jarred had for the assertion that Ms Carlyle entered into an agreement containing that term. No contract is produced showing the total sum owing as he asserts. He does not say that he has ever sighted such a contract. A contract is exhibited bearing the signatures of Mr Jarred and Ms Carlyle showing a purchase price of $365,000 including stock. It is agreed that the amount for stock was later adjusted upwards after a stock take and a separate agreement arranged. Those were the terms that the applicant agreed to. So far as the affidavit shows, Mr Jarred appears to base his assertions as to what the contract terms were from the entry in his MYOB records. How that entry came to be made is unexplained. An accounting entry cannot determine the terms of the contract. Perhaps the accounting entry reflects what Mr Jarred expected the contract to show. It is uncontroversial that the contract exhibited contains the terms that the applicant here understood them to be. [18] Nor is it known how the fraud could have been perpetrated. Mr Jarred seems to have had no knowledge of the details of the contract. The Society’s analysis was that Ms Wright might have hidden the side agreement for stock from Mr Jarred, failed to inform him that the signed agreement did not include an amount for stock, or substituted pages in the signed contract as neither party initialled the pages. All this is speculation. [19] As well, how Ms Wright ended up as the public face of Brabus for the purpose of the contract and controlling where monies were paid is not explored or explained. Mr Jarred asserts that in receiving monies she exceeded her authority. How he permitted this to occur is unexplained. What is plain is that Ms Wright was at all -- 4 of 10 -- 5 times employed by Brabus and Brabus permitted her to be clothed with apparent or ostensible authority to conduct the sale. [20] I turn then to the arguments here. Default [21] It is first necessary to identify the “default” relied on. Mr Woods, who appeared for the applicant, submitted that the relevant default here was that described in paragraph (b) of the definition of “default”: “a fraudulent dealing with trust property ... if the fraudulent dealing arises from or is constituted by an act or omission of an associate that involves dishonesty.” The fraudulent dealing relied on is the dishonest act of misappropriating the money. [22] An immediate problem with that submission is that the claim here taken at its highest relates to a fraudulent dealing with trust money. Paragraph (b) refers only to “trust property” and that term, as defined in Schedule 2 of the LPA (see above), expressly excludes “trust money”. As well, the submission ignores the distinction drawn by the legislature between the two definitions of “default” set out in s 356 and that come within Part 3.6 – in paragraph (a), the definition includes both “trust money or trust property” but paragraph (b), the provision relied on, refers only to “trust property”. The conclusion is inescapable that “trust money” was expressly excluded from the operation of paragraph (b) of the concept of “default”. [23] Mr Woods submitted that the concept of “trust property” includes “money” which of course is perfectly accurate, but by reason of the definitions just mentioned, the concept cannot include money properly described as “trust money” and that is plainly the proper characterisation of the funds held by Ms Wright. I understood that to be common ground but so much follows from the ordinary meaning of “trust money”. Both sides referred me to the discussion of the concept of “trust money” in the minority judgement in Legal Services Board v Gillespie-Jones (2013) 249 CLR 493; [2013] HCA 35 where the High Court dealt with the Victorian analogue of these provisions. There is no material difference between the Victorian and Queensland provisions save that paragraph (b) of the “default” definition in the Victorian legislation includes a reference to “trust money” as well as “trust property”. In the minority judgement (Bell, Gageler and Keane JJ) their Honours firstly observed that the concept of “trust money” is not defined in Part 3.6 of the LPA but is defined at s 237 for the purposes of Part 3.3 (I have adopted the Queensland numbering here) as follows: “trust money means money entrusted to a law practice in the course of or in connection with the provision of legal services by the practice, and includes— (a) money received by the practice on account of legal costs in advance of providing the services; and (b) controlled money received by the practice; and (c) transit money received by the practice; and (d) money received by the practice, that is the subject of a power, exercisable by the practice or an associate of the practice, to deal with the money for another person.” [24] I interpose here that Part 3.3 deals with the regulation of how a legal practise is to deal with trust money that it receives. By restricting the definition to being for the -- 5 of 10 -- 6 purposes of Part 3.3 the legislature plainly did not intend that the definition apply in Part 3.6. Arguably the definition in s 237 extends the ordinary meaning of “trust money” to encompass monies received in circumstances where there may be some doubt. [25] The minority went on in Gillespie-Jones at [96]: “That definition of "trust money" within Pt 3.3 is structured in a way that "indicates an exhaustive explanation of the content of the term" and that "also ... make[s] it plain that otherwise doubtful cases do fall within its scope". The general explanation that the term "means" money "entrusted" to a law practice in the course of or in connection with the provision of legal services by the practice cannot be read narrowly or technically so as to cover only circumstances which would give rise to a relationship of trust independently of the operation of the Act. The word "entrusted" is rather to be read according to its ordinary meaning in such a context. The general explanation is therefore to be read as covering any money confided to the care or disposal of the law practice in circumstances which indicate that the money has been earmarked for purposes not being purposes of the practice itself. The further explanation that the term "includes" money received by the law practice within four specified categories indicates that money within those categories is always trust money, whether or not it would otherwise fall within the general conception of money entrusted to the law practice.” (emphasis added, footnotes omitted) [26] Here Ms Wright received the monies from the applicant not for the purposes of the practice but to pass on to her principal, Brabus. It is therefore “trust money” and, as discussed above, s 356(b) of the definition of “default” cannot apply to it. [27] To the extent that the applicant’s claim is restricted to paragraph (b) of the definition of default it is worth noting that the majority (French CJ, Hayne, Crennan and Kiefel JJ) in Gillespie-Jones held at [54] that a claimant would need to show a proprietorial interest in the trust property: “The second circumstance of default is a fraudulent dealing with trust money or property which results in the loss or deprivation of money or the loss of value of trust property. It identifies a person who has a proprietorial interest in trust money or property. That person's loss is the diminution of that interest as a result of the fraudulent dealing.” (my emphasis) [28] To adapt that to the Queensland legislation which excludes “trust money”, it follows that it is necessary for the applicant to show that she is a person who has a proprietorial interest in trust property that is not trust money. She has not done that. [29] That leaves paragraph (a) of the definition of “default”. Here the applicant confronts a different problem. It will be recalled that the definition reads; “a failure of the practice to pay or deliver trust money ... if the failure arises from an act or omission of an associate that involves dishonesty.” The problem is that the failure to pay or deliver requires that there be some obligation to pay or deliver to the claimant. That follows from the requirement that there be pecuniary loss caused by the default. That issue was at the heart of the dispute in Gillespie-Jones. [30] In Gillespie-Jones, Grey, a solicitor, was paid money by his client for the purpose of meeting the client’s legal costs and disbursements. Grey misappropriated the money. At the time, substantial sums were owing to Mr Gillespie-Jones, a barrister retained by Grey in the client’s matter. Mr Gillespie-Jones made a claim on the -- 6 of 10 -- 7 fidelity fund. It was not in issue that the monies were held by the solicitor on trust, the question being for whom? See [114]. [31] The majority held that in order to make a successful claim on the fund neither a proprietorial interest nor any entitlement to the trust money or property is required, beyond the fact that, but for the default, the trust money or property would have been paid or delivered to the person claiming – [55]. That proposition was qualified however by this – there can be no failure to pay or deliver trust money unless there was an extant instruction to the practise to pay the money and it was not complied with – [56], The instruction must be to pay the money to an identifiable person – [56]. Such a person is the third party who is the intended recipient of the trust money which is the subject of the instruction – [57]. The client had given no such instruction to Grey to pay the monies owing to Mr Gillespie-Jones and hence he could not claim against the fund. [32] Mr Woods concedes that there was no such extant instruction here to pay monies to the applicant. [33] As I follow the argument, Mr Woods seeks to get around that qualification (while admittedly not relying on paragraph (a) of the definition at all) by pointing out that Brabus makes no claim on the monies, and it cannot be that they simply sit unclaimed in the ether, and hence the person who paid them has the logical right to them. [34] The fallacy in the applicant’s argument is that the mental state or attitude of the guiding minds of Brabus do not determine the legal effect of the parties’ actions or alter what would otherwise be the proprietorial interests of the parties. The applicant and her related entities entered into contracts to purchase the business and stock in trade owned by Brabus. The purchase price, as they understood it to be, was paid over to Ms Wright, Ms Wright at all times acting for Brabus and clothed with at least ostensible authority to receive the funds. The money, once paid over in discharge of the obligations under the contract to purchase the business, ceased to be the property of the applicant. The money became the property of the vendor. In exchange the applicant received the franchise business and its associated stock in trade. In other words, Ms Wright held the monies on trust for Brabus, not the applicant. [35] That analysis can be tested by a hypothetical proposition. If Ms Wright had absconded with the entire funds and paid none to Brabus would the applicant be required to again pay the funds to Brabus to secure the business? Not at all. She would be entitled to say: your agent has the purchase price, you have put her in a position to steal it from you, that is your problem, not mine. [36] The minority judgement in Gillespie-Jones makes the point clearly. According to that view there is default within the meaning of the Act where a law practise by reason of the dishonesty of an associate fails to pay or deliver trust money according to the mandate on which the trust money was received and held by the law practise – [133] (my emphasis). The class of persons capable of answering the description of those suffering pecuniary loss because of a default cannot be divorced from the purpose of Part 3.6 (the fidelity fund provisions) – [137]. The purpose is to be discerned in the relationship between Part 3.6 and Part 3.3. The statutory expression of the purpose of Part 3.3 is to ensure that trust money is held by law practises “in a way that protects the interests of persons for whom money is held” [139]. -- 7 of 10 -- 8 [37] The minority view differed from that of the majority in the means of identifying for whom or on whose behalf trust money was held, but the analysis just quoted is I think uncontroversial. [38] It is true that Ms Wright failed to pay or deliver the money she had received, and that failure arose from an act of dishonesty, but the person she failed to pay or deliver to was Brabus, not the applicant. She held no mandate or extant instruction to pay monies to the applicant. [39] Mr Woods placed considerable reliance on Black v S Freedman & Co (1910) 12 CLR 105. That case stands for the proposition that a thief does not secure beneficial ownership of stolen money, and that the beneficial ownership remains in the true owner. The case does not assist. No one suggests that Ms Wright beneficially owns the money in question here. The difficulty here is in identifying the true owner of the monies once paid over. I think it inescapable that the applicant’s intention in paying the monies to Ms Wright was that the beneficial ownership of the funds should pass to the vendor. A resulting trust? [40] While not submitted in terms, effectively the proposition that the applicant seeks to advance is that where a purchaser pays an amount of money to an agent of the principal intending that it be paid to the principal in discharge of contractual obligations, accurately thinking that is what the contract she has signed required, then the only amount impressed with a trust to pay to the principal is that amount that the principal thinks is owed under the contract, the balance being held on an implied or resulting trust for the purchaser, a trust that the purchaser did not in fact intend, and is at all times unaware of. No authority for such a proposition was cited. [41] While I received no submissions on the point, the principle that I think comes closest to that proposition is one that Gummow J (when sitting in the Federal Court of Australia) described as “undoubted” in Re Australian Elizabethan Theatre Trust (1991) 30 FCR 491, 503 at [25] “that a resulting trust in favour of the settlor arises as to that part of the beneficial interest of the property in question which has not been disposed of by the express trust created by the settlement” citing “for this basic proposition” Commissioner for Stamp Duties of New South Wales v Perpetual Trustee Company, Limited (1943) AC 425 at 441, the High Court in the same case, (1941) 64 CLR 492 at 507, 511, 513 and In re Vandervell’s Trusts (No. 2) (1974) Ch 269. [42] Here it is not possible to construe the facts to hold that the property, i.e. the money paid under the contract, was not wholly disposed of by the express trust to pay that money to the principal in exchange for the business. That was the intention of the applicant. The applicant’s objective intention in paying the monies to Ms Wright was to transfer both legal and beneficial title to the monies in discharge of her obligations under the contract. It is that objective intention which it seems to me governs the trust that thereby came into being. What the applicant contends for is an implied condition on that payment along the lines: if it happens that I am somehow mistaken as to the purchase price the vendor seeks, I will retain a beneficial interest in any monies paid over in discharge of that purchase price in excess of the vendor’s true expectations. I know of no basis for such an implication. [43] The applicant might demur from my earlier statement where I describe her state of mind as “accurately thinking that is what the contract she has signed required”. The applicant plainly understood what the contractual terms were that she agreed to. It -- 8 of 10 -- 9 is not known what terms Brabus agreed to. On the face of the contract exhibited to the affidavit here Brabus accepted the same terms. Whether Mr Jarred entertained some other belief at the time of the contract is not able to be determined. To the extent his beliefs differed from the contractual terms agreed is, of course, irrelevant. His expectation of what amount he expected seems to be predicated on the accounting records. Whatever his intent, the applicant’s intent was plain – to pay the amount she (and her related entities) did to Ms Wright with the purpose of paying the monies on to Brabus. Causation [44] It follows from what I have said that there is another difficulty with the applicant’s argument. That is to do with causation. [45] Assuming for the moment that the applicant has suffered a pecuniary loss, the applicant cannot show that that loss come about because of “a fraudulent dealing with trust property that was received by the law practice” as paragraph (b) of the definition of default requires. That fraudulent dealing must arise from, or be constituted by, an act or omission of an associate that involves dishonesty. In my view the applicant fails at this hurdle too. [46] The fraudulent dealing that the applicant relies on is the taking of the money by Ms Wright. But that action, which plainly was an act involving dishonesty, did not cause any loss to the applicant. In truth, the applicant’s complaint is that she has entered into a binding contract to purchase at a price greater than she would have done had Ms Wright not misrepresented the vendor’s true sale price. In saying this, I observe that I have received no submissions to the effect that the contract is in some way vitiated by mistake. That act of Ms Wright does not involve a fraudulent dealing with trust property. [47] In taking this approach I adopt the view of the majority in Gillespie-Jones at [15] dealing with the Victorian analogue of the LPA, with virtually identical definitions, that the definition of “pecuniary loss” in paragraph (a) aligns with paragraph (a) of the definition of “default” in its reference to “pay or deliver” and its reference to “trust money or trust property”. The definition in paragraph (b) is presumably intended to align with paragraph (b) of the “default” definition. The pecuniary loss that must be shown must satisfy the relevant definition which is in paragraph (b) – “the amount of money that a person loses or is deprived of, or the loss of value of trust property, as a result of a fraudulent dealing” and that dealing is necessarily qualified by the words “with trust property”. [48] It is even questionable whether the misrepresentation complained of involved a dishonest act within the meaning of the definition of “default”. To assert that a vendor will take $x for their business when in fact they will take $x-y does not necessarily involve any dishonesty. The statement will usually be perfectly true. Negotiations of that type take place every day. To illustrate take another hypothetical situation – if Ms Wright had paid over the entire amount received to Brabus and the applicant received the business in return but then, discovering that Brabus had instructed it would take a lesser sum for the business, sought repayment of the surplus and Brabus declined to pay, hypothetically delighted at the higher price achieved, what possible cause of action would the applicant have against Brabus? She had signed a contract for a certain price and was thereby obligated to pay that price. She had received the business in exchange. It would be immaterial that, if pressed, pre-contract Brabus would have accepted a lesser sum, or even that -- 9 of 10 -- 10 Brabus had not realised what the contract provided. That the guiding mind of Brabus says, years after the events occurred, that no claim is made on the excess (and would presumably say that Brabus would repay the monies if they had received them) alters nothing. The client in Gillespie-Jones would have happily paid Mr Gillespie-Jones if he could have accessed the stolen money. “Pecuniary loss” [49] Finally, there is the question of whether any pecuniary loss can be shown. [50] Here the applicant proves no more than that Ms Wright misrepresented to her the amount that the vendor would take for the business. To pay more for a business than the vendor might be prepared to settle for is not to demonstrate a pecuniary loss. The business might be worth precisely what you paid. Or it may be that the vendor underestimates the value of what they sell. It is fundamental that it is for the purchaser to make their own assessment of the value of the thing purchased. [51] I am conscious that I was told from the Bar table that when she sold the business back to Brabus the applicant sold at a loss. Assuming that to be so, it does not show that a loss was suffered at the time of purchase. Apart from the problem of values varying over time, or that a business might appear to have a certain value to one person and another value to a second person, the applicant may have profited sufficiently from the business while she conducted it that no loss would be apparent. [52] The applicant submitted that Brabus had taken no step to recover any sum from Ms Wright and that this went to proof that it was the applicant who had suffered the loss claimed, not Brabus. The Society disagrees that there was no recovery by Brabus and, principally by its supplementary submission, points to several pieces of evidence showing that Ms Wright has made payments to Brabus in recompense. The amounts total in the order of $224,000. I have rounded the figures. The payments do not enlighten me in any way on the loss point. If it be relevant, Ms Wright did not allocate any particular payment to any particular fraud, and I do not know what total amounts were in fact stolen by Ms Wright. She was convicted of a large number of frauds. The respondent submits that this evidence shows that Ms Wright has effectively admitted that it was Brabus that she had defrauded. It probably does but Ms Wright’s opinion of the legal effect of her actions is not determinative any more than Brabus’ views are. Abandoned submissions [53] I did not understand the Society to maintain its submissions re s 392(2) LPA (i.e. that the amount sought to be recovered was reasonably available from some other source) nor did I understand the Society to persist with its submissions that the monies paid to Ms Wright were “investment money” within the meaning of s 373(2) LPA and so beyond the purview of Part 3.6. Conclusion [54] In my opinion the applicant cannot show that she satisfies the requirement of s 374(1) – she is not a person who has suffered pecuniary loss because of a default to which part 3.6 of the LPA applies. [55] The application is dismissed. -- 10 of 10 --