A v National Standards Committee - [2020] NZHC 563

ORDER PROHIBITING PUBLICATION OF APPELLANT’S NAME, THE NAMES OF THE COMPANIES INVOLVED IN THE TRANSACTIONS, THE NAMES OF THE TRUSTS INVOLVED IN THE TRANSACTIONS, THE COMPLAINANTS’ NAMES AND ANY OTHER PARTICULARS WHICH MIGHT LEAD TO THE APPELLANT BEING IDENTIFIED

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-001035

[2020] NZHC 563

UNDER The Lawyers and Conveyancers Act 2006

IN THE MATTER OF

Disciplinary proceedings under Part 7 of the Act

BETWEEN

A

Appellant

AND

NATIONAL STANDARDS COMMITTEE

Respondent

Hearing: 12 March 2020

Appearances:

D P H Jones QC and D J G van Hout for Appellant M Hodge and M J Mortimer for Respondent

Judgment:

19 March 2020

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 19 March 2020 at 12.00 midday
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:
Russell Legal/D P H Jones QC, Auckland Meredith Connell, Auckland

A v NATIONAL STANDARDS COMMITTEE [2020] NZHC 563 [19 March 2020]

Introduction

[1] The appellant, Mr A,1 appeals two decisions of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal).

(a)In its first decision,2 the Tribunal found Mr A guilty of two charges of misconduct, one under s 7(1)(a)(i) and the other under s 7(1)(a)(ii) of the Lawyers and Conveyancers Act 2006 (the Act).

(b)In its second decision,3 the Tribunal ordered that Mr A be struck off the role of barristers and solicitors. It declined to make non-publication and privacy orders in his favour and it awarded costs against him.

[2] The respondent, the National Standards Committee (the Committee), laid the charges against Mr A and prosecuted them before the Tribunal. It opposes the appeal.

Background

[3] At all relevant times, Mr A was a barrister and solicitor of the High Court of New Zealand and he held a practising certificate.

[4] Mr and Mrs B immigrated to New Zealand in 2006. They had substantial assets and they needed legal advice. Mr B saw an advertisement for Mr A’s services. He approached Mr A and Mr A started acting as Mr and Mrs B’s solicitor in early 2007. He continued acting as Mr and Mrs B’s solicitor, and as the solicitor for their trusts, until November 2012. Over that period, Mr A carried out a range of legal work for them – including setting up trusts, acting on the purchase of a property, giving tax advice, overseeing a construction contract, drafting wills and drafting documentation for the administration of their trusts. Relevantly, he acted for Mr and Mrs B in setting up their family trust – the B Family Trust – in December 2010. The trustee was a company which Mr A also assisted in establishing; Mr A and Mrs B were its directors and Mrs B was the sole shareholder. Mr A and Mr B also developed a personal as well

1 All relevant names have been anonymised in this judgment.
2 National Standards Committee v A [2019] NZLCBT…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NZHC 563
Decision Date: 19 March 2020

CaseChat Overview and Summary

This case concerns the appeal of Mr A, a lawyer, against two decisions of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (Tribunal). The Tribunal found Mr A guilty of two charges of misconduct under the Lawyers and Conveyancers Act 2006 (Act) and ordered that he be struck off the role of barristers and solicitors. The Tribunal also declined to make non-publication and privacy orders in his favour and awarded costs against him. The primary issues on appeal were whether the Tribunal erred in its findings regarding Mr A's mental health condition, the value of the shareholding in CCL, and the imposition of the penalty. The Court found that the Tribunal did not err in its findings regarding Mr A's mental health condition and the value of the shareholding in CCL. However, the Court found that the Tribunal erred in not granting name suppression for Mr A, as there was sufficient evidence to displace the presumption of open justice. The Court dismissed the appeal in all other respects and ordered that the Committee is entitled to its reasonable costs and disbursements on the appeal.

Orders