Birnie v Outward Limited - [2024] NZHC 1197

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-759

[2024] NZHC 1197

BETWEEN
WILLIAM GEORGE PORTER BIRNIE

First Plaintiff

CHARLES GILBERT PEARCE
Second Plaintiff

AND

OUTWARD LIMITED

First Defendant

PRICEMAKER LIMITED
Second Defendant

ROB DACRE ROGERS

Third Defendant

PLAYMAKER LABS LIMITED

Fourth Defendant

Hearing: 13 May 2024 (Judge’s Chambers List)

Counsel:

R J Latton for Plaintiffs

T G H Smith for the First, Second and Fourth Defendants No appearance for Third Defendant

Judgment:

14 May 2024

JUDGMENT OF RADICH J

[1] The solicitor on the record for the first, second and fourth defendants, Mr Gascoigne of Mallett Partners, has applied for an order under r 5.41 of the High Court Rules 2016 declaring that he has ceased to be the solicitor on the record for those parties. Leave is sought, also, for Mr Smith, as counsel for the first, second and fourth defendants, to withdraw.

BIRNIE v OUTWARD LTD [2024] NZHC 1197 [14 May 2024]

[2] The orders are sought on the grounds that Mr Gascoigne’s firm, Mallett Partners, and Mr Smith have terminated their respective retainers with the first, second and fourth defendants under r 4.2.1(b) of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Conduct and Client Care Rules) due to the non-payment of fees dating back over nine months.

[3] The application is not opposed by the plaintiffs. The third defendant is not represented but Mr Smith spoke with him before the hearing yesterday morning and he does not oppose the application. Nevertheless, a lawyer, whether a barrister and solicitor or a barrister sole, does not have an absolute, independent right to withdraw once they have committed to a retainer and the Court does need to have regard to issues relating to the administration of justice.

Background

[4] Mr Smith was engaged by the first and second defendants as counsel in February 2021. Bell Gully were his instructing solicitors. In October 2023, Bell Gully withdrew from the proceedings as a result of non-payment of their fees and at that point Mallett Partners were engaged by the first, second and fourth defendants to act on the basis that Mr Smith would continue to be instructed. It is understood that Bell Gully’s fees remain unpaid.

[5] In breach of the terms of engagement of both Mallett Partners and of Mr Smith, Mr Smith’s invoices dating back to August 2023 have not been paid and Mallett Partners’ invoices dating back to November 2023 have not been paid.

[6] The ongoing unpaid invoices have been the subject of concern and repeated unsuccessful attempts on the part of Mallett Partners and Mr Smith to have the invoices, and future cost arrangements, addressed. Despite the invoices being outstanding, Mr Smith and Mallett Partners continued to represent the first, second and fourth defendants, including in opposing, successfully, an application for summary judgment against them by the plaintiffs.1 However, in April this year, they had reached a point at which…

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: [2024] NZHC 1197
Decision Date: 14 May 2024

CaseChat Overview and Summary

In Birnie v Outward Limited, the plaintiffs sought orders for the solicitors and counsel representing the defendants to withdraw from the case due to non-payment of fees. The defendants, Outward Limited, Pricemaker Limited, and Playmaker Labs Limited, were unable to pay the outstanding fees, which had accumulated over several months. The defendant Rob Dacre Rogers was not represented and did not oppose the application. The court had to decide whether the solicitors and counsel could withdraw from the case due to non-payment of fees and the impact of such withdrawal on the administration of justice.

The court considered the fundamental obligations of lawyers under the Lawyers and Conveyancers Act 2006, which include protecting the interests of their clients while fulfilling their duties as officers of the High Court. The court also reviewed the relevant provisions under the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, which permit solicitors to withdraw under specific conditions, and the inherent jurisdiction of the court to allow counsel to withdraw. The court needed to assess whether there was good cause for the withdrawal and the extent of any potential prejudice to the parties involved. The court found that the retainers were terminated for good cause and after reasonable notice was given. It also concluded that the defendants had procedural options available to them, such as arranging alternative representation or proceeding without counsel, and that it would not be appropriate to require the solicitors and counsel to continue on an unfunded basis.

The court granted the application, declaring that Oliver Colin Gascoigne had ceased to be the solicitor on the record for the first, second, and fourth defendants and allowing Timothy Guy Hanmer Smith to withdraw as counsel for those defendants. The court also provided alternative addresses for service and scheduled a directions hearing for 10 June 2024. The decision highlights the importance of timely payment of legal fees and the court's role in balancing the interests of justice with the professional obligations of legal practitioners.

Orders