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He approached the 1st respondent in these
proceedings , which is a firm of attorneys in which the
2nd Respondent, Ms Zanazo , practices. He asked Ms
Zanazo to obtain the value of his shares and to pursue the
close corporation for what he considered to be its unlawful conduct in using him to front for it. After some time ,
Mr Mabo became concerned that his instructions to
Ms Zanazo had not been carried out. Mr Mabo says that Ms
Zanazo made herself uncontactable and that he was
concerned that he would not get the value of his shares or
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the redress to which he thought himself entitled.
Accordingly , he approached this current attorneys
of record, Raymond Sutton Incorporated . He approached
Raymond Sutton in order to find out what was going on with his case and in order to obtain the value of his shares from
the close corporation , or from Ms. Zanazo, if she held them .
Raymond Sutton Inc had to spend some time
tracing Ms Zanazo , but was ultimately able to contact her.
Once the firm got in touch with Ms Zanazo, it asked her to
account for any monies that she had obtained on Mr Mabo's
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behalf , to render her statement of account for her own time
spent on the matter and to pass over the file pertaining to
the matter in her office .
It emerges from the papers that Ms Zanazo had in
fact man aged to recover the value of Mr Mabo's shares.
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Accordingly , Mr. Mabo brought an application before me for
relief compelling Ms Zanazo and her firm to account for that
money, to provide a copy of the file, to render the statement of account of her fees and to pay any money held in trust by her over to Raymond Sutton Inc .
The application was necessary because Ms Zanazo
on behalf of her firm had flatly refused to do any of that ,
and it i s not immediately clear to me from the papers why
she took that stance . Ms. Zanazo seemed initially to have
misgivings about whether Raymond Sutton was entitled to
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act for Mr. Mabo, but she ultimately elected not to challenge
Raymond Sutton's authority to do so.
When I questioned her in argument, Ms Zanazo ,
who appeared on her own behalf and on behalf of her firm ,
seemed offended by the fact that Mr Mabo had decided to
terminate her mandate and approach Raymond Sutton Inc .
She also appeared to believe herself entitled to withhold
any money that she had gathered on Mr. Mabo’s behalf,
because she regarded Mr. Mabo’s matter as having been
closed. She relied on Rule 3.7 of the Legal Practice Council 20
Rules applicable to legal practitioners, which she argued meant that Mr. Mabo was only entitled to terminate her
mandate before the matter in relation to which the attorney had been instructed was finalised.
I think that that interpretation is wholly untenable,
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but in any event in this case the matter plainly had not been
finalised. Until the value of the shares reaches Mr Mabo,
which everybody accepts has not happened, the matter cannot be regarded as finalised. The whole reason why Mr Mabo approached Raymond Sutton is because he had
been unsuccessful in obtaining the value of the shares through Ms Zanazo.
If that were not enough, and I think it is, then I
would have to point out that the further instruction that Mr Mabo gave to Ms Zanazo was to pursue the close
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corporation and hold it accountable for what Mr Mabo regarded as fronting. There is no evidence on the papers that this was ever done.
It is accordingly not necessary for me to interpret
the r ule or to deal with the interpretation Ms Zanazo argued
for. T he matter with which she was charged by Mr Mabo was
never concluded.
Ms Zanazo otherwise found herself unable to
dispute that Mr Mabo was perfectly entitled to terminate her
mandate at any time and to instruct another attorney .
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For those reasons it seems to me that Mr. Mabo’s
demands to furnish Raymond Sutton with the statement of
account for any monies held by Ms Zanazo's firm on behalf of Mr. Mabo in trust, to furnish it with a complete copy of
Mr. Mabo’s file and to furnish it with a statement of Ms
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Zanazo's firm' s account, were perfectly appropriate and
should have been complied with long ago.
The same goes for the demand that Raymond
Sutton be paid to hold in trust any trust monies Ms Zanazo's
firm holds on Mr. Mabo’s behalf.
There is in other words no defence to this
application. Ms Zanazo and her firm are required by the
rules that apply to legal practitioners and by her underlying contractual obligations to Mr Mabo, to do as I intend to order her to do.
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During argument Ms Zanazo suggested that the
individual present in court who identified himself as Mr Mabo did not “look like ” Mr Mabo. That allegation was of
course inadmissible, but Mr De Koker, who is an advocate
appearing before me for Mr. Mabo, took the reassuring step
of confirming that he had obtained a copy of Mr Mabo's identity document , and that he was satisfied that the person
present in court and the person who had instructed his attorneys was in fact Mr Mabo. I do not strictly need t o rely
on Mr. De Koker’s assurance , but in the circumstances it is
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appropriate that I record it.
Mr. Mabo also asked that I refer Ms Zanazo to the
Legal Practice Council for further investigation. I do not think that it is necessary to make that order, but I find myself constrained to record that I find Ms Zanazo's attitude
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to this application completely baffling. Sometimes an
attorney loses clients. The only ethical thing to do in those
circumstances is send the client on their way with such assistance as the rules require. Ms Zanazo did not do that. Other than a general sense of grievance, which has no ground in any right that she may have, it is a mystery to me why Ms Zanazo did not comply with her obligations.
If that mystery requires investigating by the Legal
Practice Council, it can just as easily be referred by Mr Mabo or his attorneys themselves.
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For all those reasons I intend to make an order in
terms of paragraphs 1.1, 1.2, 1.3, 1.4 and 2 of the
applicant's notice of motion.
I will also order Ms Zanazo and her firm to pay the
costs of this application on the scale as between attorney and client. The simple reason for this is that the application
should never have been opposed . Ms Zanazo ought to have
appreciated from the outset that she had no defence. She ought to have complied with Mr. Mabo’s demands when they
were first made , or otherwise to have challenged Raymond
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Sutton Inc's authority to act for Mr Mab o. She did neither.
For al l those reasons I make an order in terms of
the draft handed up by the applicant's counsel , which I have
amended, signed, dated and marked “X” .