Burgess v Malley & Co - [2017] NZCA 401

IN THE COURT OF APPEAL OF NEW ZEALAND

CA251/2016
[2017] NZCA 401

BETWEEN	GARY OWEN BURGESS Appellant
AND	MALLEY & CO Respondent

Hearing:	25 July 2017 (further submissions received 10 August 2017)
Court:	French, Simon France and Toogood JJ
Counsel:	Appellant in person M E Parker for Respondent
Judgment:	13 September 2017 at 3.00 pm

JUDGMENT OF THE COURT

AThe application for leave to adduce further evidence is declined.
BThe appeal is dismissed.
CThe appellant must pay the respondent costs for a standard appeal on a band A basis with a 25 per cent uplift and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Table of Contents

Introduction  [1]
Background  [4]
The defence and counterclaim  [30]
The High Court decision  [35]
Grounds of appeal  [36]
           Failure to give reasons  [36]
           Predetermination  [40]
           Failing to disqualify counsel  [44]
           Errors regarding the amount of unpaid fees  [47]
           Reliance on expert witness  [57]
           The memorandum  [61]
  Mr Burgess’ understanding of the memorandum              [62]
  Failure to advise on or implement alternatives                  [70]
  (a) Application for a vesting order  [70]
  (b) Making a payment to Ms Beaven  [71]
  (c) Selling the property  [73]
  Failing to advise the fixed mortgage was on demand        [84]
  Payment of the $9,000 costs  [85]
  Acting upon non-existent court orders  [89]
  Execution of the notice of claim  [96]
  Conclusion on memorandum  [99]
           Other matters on which advice was not given  [100]
           Failure to address the fifth cause of action  [105]
           Rejection of seventh cause of action  [119]
           Unauthorised deduction of legal fees  [124]
           Failure to file application for leave to appeal  [129]
           Faulty reasoning on causation  [136]
Result  [140]

Introduction

Malley & Co is a law firm. It issued proceedings against its former client Mr Burgess for recovery of legal fees. He denied liability and counterclaimed alleging seven causes of action including negligence and breach of fiduciary duty.
The proceeding was heard by Gendall J in the High Court. The Judge held the fees were owing and dismissed the counterclaim.[1] He entered judgment for Malley & Co in the sum of $54,594.81 together with interest at the rate of 11 per cent per annum, being the contracted rate of interest payable on unpaid fees under the written retainer between the firm and Mr Burgess.
[1]Malley & Co v Burgess [2016] NZHC 907 [HC judgment].
Mr Burgess now appeals the decision. He contends the Judge failed to evaluate the evidence properly and misdirected himself in law.

Background

In February 2008 Mr Burgess instructed Mr Tait of Malley & Co to act for him in relationship property proceedings between him and his estranged wife, Ms Beaven. Up until that point, Mr Burgess had largely been representing himself. There had been a Family Court decision issued by Judge Strettell[2] which Mr Burgess had appealed to the High Court. The appeal was unsuccessful apart from two issues which in late 2007 the High Court Judge (John Hansen J) referred back to Judge Strettell for reconsideration.[3]
[2]Burgess v Beaven FC Christchurch…

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.

Continue reading Burgess v Malley & Co

Details

AGLC: Burgess v Malley & Co [2017] NZCA 401
Case: [2017] NZCA 401
Decision Date: 13 September 2017 at 3.00 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand dismissed an appeal by Mr Gary Burgess against a decision of the High Court that he owed Malley & Co legal fees. Mr Burgess had retained Malley & Co to represent him in family law proceedings. He denied liability for the fees and counterclaimed alleging negligence and breach of fiduciary duty amongst other things. The High Court dismissed the counterclaim and entered judgment for Malley & Co for the amount of the fees plus interest. Mr Burgess appealed to the Court of Appeal. He contended the Judge failed to evaluate the evidence properly and misdirected himself in law. The Court of Appeal dismissed the appeal and ordered Mr Burgess to pay increased costs. The Court found that Malley & Co had acted competently and professionally and Mr Burgess had received considerable benefit from that work. The Judge’s key findings were all supported with reasons and it was not incumbent on a judge to summarise all the evidence he or she had heard. The Judge’s finding that the fees were reasonable was supported by the evidence. The Court found the memorandum was very much in Mr Burgess’ interest and he had authorised his lawyer to sign it. The lawyer had acted properly in negotiating a viable way to protect the relationship property at issue. Mr Burgess had made a fully informed decision to retain the property in preference to selling it. There was no credible evidence that Mr Burgess ever instructed Malley & Co to pay his former wife the sum ordered by the Family Court. The Court rejected the claim that the lawyer had acted negligently in registering the caveat because there was no conflict of interest or prejudice to Mr Burgess. The lawyer had acted lawfully in holding the money for Ms Beaven in the trust account and then disbursing it once the appeal was determined. The payments were required to be made by the terms of the memorandum which Mr Burgess had authorised and which were binding on both him and Malley & Co.

Orders