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Bradbury v Westpac Banking Corp

Bradbury v Westpac Banking Corp

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA324/2008
[2009] NZCA 234
BETWEENCLIVE RICHARD BRADBURY

First Appellant
ANDBRADBURY & MUIR

Second Appellant

ANDWESTPAC BANKING CORPORATION

First Respondent
ANDRICHARD WILLCOCK

Second Respondent

Hearing:24 March 2009

Court:O'Regan, Arnold and Baragwanath JJ
Counsel:N S Gedye for Appellants

J S Kós QC and B A Scott for Respondents

Judgment:8 June 2009 at 3.00 p.m.

JUDGMENT OF THE COURT

A THE APPEAL IS DISMISSED.
BTHE APPELLANTS MUST PAY THE RESPONDENTS COSTS FOR A STANDARD APPEAL ON A BAND A BASIS AND USUAL DISBURSEMENTS.

____________________________________________________________________
JUDGMENT OF THE COURT
(Given by Baragwanath J)
Table of Contents

Para No

CONTEXT  [2]
THE COSTS RULES
           NEW ZEALAND  [5]
DISCUSSION OF THE TEST  [9]
           UNITED STATES  [13]
           ENGLAND  [15]
           AUSTRALIA  [21]
Assessment of test for indemnity costs  [24]
Submissions  [31]
Discussion  [32]
(1) Was the case hopeless from its inception?

(2) SHOULD THE FIRM HAVE KNOWN?  [34]
           UNITED KINGDOM  [37]
Canada  [41]
           United States  [45]
           Conclusion as to the authorities  [49]
The alleged contract  [50]
           Mr Bradbury’s brief  [52]
           Mr Peebles  [58]
           Mr Price’s brief  [65]
           Mr Carter’s brief  [66]
The other causes of action  [74]
(3) Were the appellants guilty of misconduct sufficient to justify
      indemnity costs?  [80]
(5) Should the Judge have assessed indemnity costs on a staged
      basis for different parts of the case?  [86]
(6) Should the Judge have confined the award to increased costs under
      rule 48C(3)? (7) Should he have confined the award to scale costs?      [87]
(8)Were indemnity costs of $996,712.00 reasonable? Was the order

for costs disproportionate or unjust? [88]

The application to admit new evidence  [89]
Result  [93]
Costs on appeal  [94]
[1]       The issue is whether the High Court was right to award indemnity costs to Westpac Banking Corporation (Westpac) on the abandonment by Mr Bradbury and the firm Bradbury & Muir of their claim against it. Because the award is unusually high we have taken time to consider the principles against which it is to be tested. The appellants tendered as new evidence an affidavit by its junior counsel at trial as to comments made by the trial Judge and exchanges between him and counsel. The application was opposed by Westpac which tendered an affidavit in opposition by a solicitor employed by Westpac’s instructing solicitors who had been present throughout the trial. Counsel agreed that we should receive the material de bene esse and determine its admissibility in the judgment.
Context
[2]       The first appellant, Mr Bradbury was a partner in the second appellant, Bradbury & Muir, an Auckland law firm. Mr Bradbury had performed specialist legal services for the respondent Westpac until the bank ended their relationship in 2005. The firm sued the bank and Richard Willcock, its group secretary and legal counsel, for damages, alleging breach of a claimed contractual obligation to retain the firm for so long as it continued to perform to the satisfaction of the bank and to meet certain obligations…

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: [2009] NZCA 234
Decision Date: 8 June 2009

CaseChat Overview and Summary

The appellants, Mr Clive Richard Bradbury and the law firm Bradbury & Muir, appealed against an order of the High Court awarding indemnity costs to the respondent Westpac Banking Corporation. The appeal was dismissed. The court found that the appellants' case was hopeless from the outset due to the fundamental rule that a client may terminate a lawyer's retainer at any time without cause. The appellants were experienced lawyers who should have known that their case was inconsistent with this rule, making the case hopeless. Furthermore, the court found that the appellants pursued the proceedings for an improper motive, abusing the court process to extract a financial windfall from the bank. The award of indemnity costs in the amount of $996,712 was deemed reasonable and justified. The appeal court dismissed the appellants' application to admit new evidence, finding it irrelevant to the outcome of the appeal. The court ordered the appellants to pay the respondent's costs for a standard appeal on a band A basis and usual disbursements.

Orders