Upside to resting barristers' cheques

Solicitors are unlikely to be entirely jinxed if caught "resting" payments to barristers ... Famous Victorian cheque rester Gary Singer has gone from strength to strength in the art world, along with the rise of the withdrawal fee ... Barry Lane explores some intricate artistic-legal connections 

Singer: birched for cheque restingIt's uplifting to know, although we may sometimes need reminding, that there is personal and professional life after a slap from the stipes.

Take, for instance, the experience of Victorian solly, Gary Allen Victor Singer.

In 2005, Gary and his partner-in-law, Simon Harry Parsons, got a birching from the Bureau de Spank after they each pleaded guilty to an act of misconduct in relation to the handling of trust monies.

Their shenanigans, involving cheques payable to barristers and others, was reported here on November 16 2005.

They were each fined $10,000 and ordered to pay costs of $8,062.50. Copies of the Legal Professional Tribunal's orders are available here.  

A more formal description of their misconduct is set out in Legal Services Commissioner v McCristal (Legal Practice) [2011] VCAT 231 (February 10, 2011):

"Parsons and Singer conducted a legal practice in Morwell. During the period June 8, 2000 to November 3, 2001 sums totalling $126,161.50 were received from clients on account of mainly unpaid barristers' fees and also expert witness fees. These sums were either paid directly into the office account or paid into the trust account and then transferred to the office account from where office cheques were drawn but then retained in a manila folder. By August 2004 all outstanding disbursements had been paid and no complaint had been received. The deliberate practice of retaining cheques and delaying payment ceased in November 2001. The breaches were first detected during a routine audit in May 2004." 

The financial benefit to Parsons and Singer of "resting" those cheques was not revealed, nor was the opportunity cost to clients who pre-paid fees or payees who paid the fees late.

At the time, Singer was Deputy Lord Mayor of Melbourne and in a personal relationship with National Gallery of Victoria senior curator, Geoffrey Smith.

As reported in The Age, 2006 was a big year for Singer and Smith. 

After splitting with his former personal and business partner, Robert Gould of Gould Galleries, in 2004 Smith took up with Singer. 

In January 2006, Smith sued Gould in the Victorian Supreme Court over what he alleged was his share of a multi-million dollar art portfolio he and Gould built up over their 14 year relationship.

In an affidavit filed in that proceeding, Smith made various assertions which indicated that he had taken an active part in developing Gould's business while employed full-time as a curator at the National Gallery of Victoria.

Not surprisingly, worthies at the NGV were a tad miffed on hearing this news - they thought that because Smith was on the payroll the gallery was entitled to his undivided attention and loyalty. 

After an internal investigation Smith was stood down.

In the Federal Court, Smith sued the gallery for reinstatement. A week before the trial was due to commence in October 2006 the case was settled on terms that included Smith's resignation from the NGV.

It is apparent from Nolan v Nolan [2003] VSC 121 (April 28, 2003), that Smith and Singer had a close working relationship going back to at least 2001 when they came together as expert witness for, and solicitor acting on behalf of, Ms Jinx Nolan, the late Sir Sidney Nolan's adopted daughter.

Ms Nolan had commenced proceedings in the Supreme Court in September 2001 asserting title to some of Sir Sidney's paintings.

Alas, Ms Nolan was unsuccessful at trial and on appeal, Nolan v Nolan & Ors [2004] VSCA 109 (June 10, 2004). 

Since that defeat in 2003 and 2004 and the nastiness surrounding Mr Smith's separation from Mr Gould, culminating in his resignation from the NGV in October 2006, Messrs Smith and Singer have gone on to bigger and better things. 

Smith: looking up

Very soon after leaving the NGV, Smith was employed by the Sydney auctioneers and dealers Bonhams & Goodman as its national head of art. 

It was reported in The Sydney Morning Herald on July 12, 2007 that as well as a wealth of knowledge of Australian art, Smith brought other things to Bonhams:

"He is best friends with Sidney Nolan's adopted daughter, Jinx Nolan; and his new partner Gary Singer, Melbourne's deputy lord mayor, is Jinx's lawyer and the lawyer of the Tucker Estate." 

In Blackman & Ors v Gant & Anor [2010] VSC 229 (June 1, 2010) Mr Smith was accepted as an expert witness when he opined, at the behest of the artist Charles Blackman, that a number of paintings attributed to Mr Blackman were fakes.

In the course of his judgment Justice Vickery said of Mr Smith:

"Geoffrey Smith is the vice chairman and national head of art at Sotheby's Australia. His curriculum vitae included curatorship of the exhibition 'Charles Blackman Alice in Wonderland' held at the National Gallery of Victoria between August 11 and October 15, 2006. Mr Smith described this exhibition as a 'culmination or many years research on Charles Blackman'. He also co-authored a publication on Blackman about the exhibition. I am satisfied that Mr Smith is well qualified to express opinions about the work of Blackman throughout his career, including his work from the 1950's." 

In September 2009 Tim Goodman from Bonhams & Goodman purchased the Australian arm of Sotherbys through his company First East Auction Holdings Ltd. 

On January 19, 2011 it was announced that Goodman was out and that Smith was part of a new ownership consortium and had been elected chairman of Sotherby's. 

And who should turn up as a director and CEO of the company but Gary Singer. 

One constant in the world of commerce, and the art world is no exception, is collecting one's fees.  It is not apparent what arrangements Mr Singer has made with Ms Nolan regarding her legal fees but it is clear that if Bonhams/Sotheby's was engaged to sell, and the consigned works were withdrawn before a scheduled auction, an account for a withdrawal fee would be forthcoming.

So much can be gained from the proceeding in the Victorian Supreme Court First East Auction Holdings Pty Ltd v Ange [2010] VSC 72 (March 16, 2010) where Simon Parsons & Co was retained to recover $700,000 odd from Ms Mimi Ange, former wife of colourful Sydney business identity Con Ange.

Bonhams was successful.

Following judgment, it was reported in The Age of March 17, 2010 that Gary Singer, Bonhams' lawyer and CEO, said "he was pleased with the judgment".  

"It was a difficult and embarrassing time for the company. It's fair and just compensation. This has been a test case, we have been the first auction house to enforce a withdrawal fee in a court of law. It confirms that the conditions of sale are enforceable." 

This could be the lesson for John Hugh McCristal who, like Messrs Singer and Parsons pleaded guilty to misconduct occasioned by, you guessed it, "resting" cheques payable to barristers while awaiting divine intervention that would render them capable of being paid on presentation.

Obviously, the message about "resting" cheques is not getting through. Perhaps there should be an adjustment to the law course, or something.

In any event, to try and reduce the occurrence of this type of misconduct the Bureau has doubled the tariff for the offence to $25,000 and ordered the offender to undertake a trust account and office administration course approved by the Legal Services Commissioner.

Nevertheless, Mr McCristal can take comfort from the experience of his professional brethren in the Latrobe Valley that after a birching by the Bureau there is hope of redemption and prosperity.