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Burgess v Monk

Burgess v Monk

Case [2017] NZHC 2618 25 October 2017

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Res Judicata

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-Ā-KAHU ROHE

CIV 2013-463-187

[2017] NZHC 2618

BETWEEN
WARWICK JAMES BURGESS

First Plaintiff

CTE BURGESS LTD
Second Plaintiff

AND

PHILLIP CHARLES MONK

First Defendant

NEW ZEALAND GUARDIAN TRUST COMPANY LTD
Second Defendant

Other defendants continued overleaf

Hearing:
25, 26, 27, 28, 29 September, 2, 3, 4, 5, 10, 11, 12, 13, 16, 17,

18, 19, 20, 24 October 2017 (at Hamilton)

Counsel:

On application for leave to withdraw:

M A Corlett QC for D G Chesterman and E McGill G Brittain QC for W J Burgess and CTE Burgess Ltd For trial:

D G Chesterman and E McGill for Plaintiffs

R J Latton, H Ford and G Schumacher for First and Second Defendants

No appearance by, or on behalf of Third Defendant

A S Ross QC and G Beresford for Fourth and Sixth Defendants C T Walker QC and A Lenard for Fifth, Seventh and Eighth Defendants

Judgment:

25 October 2017

JUDGMENT (NO. 4) OF HEATH J

This judgment was delivered by me on 25 October 2017 at 5.00pm pursuant to

BURGESS v MONK [2017] NZHC 2618 [25 October 2017]

Rule 11.5 of the High Court Rules Registrar/Deputy Registrar

AND DAVID TROUNSON

Third Defendant

AND ALISDAIR HUGH MORRISON

Fourth Defendant

AND ARMER FARMS (N.I.) LTD

Fifth Defendant

AND OʼSULLIVAN CLEMENS

Sixth Defendant

ANDGRAEME WILLIAM ELVIN AND SHARLENE DARRAGH
Seventh Defendants

AND TIHOI HOLDINGS LIMITED

Eighth Defendant

CONTENTS

The application  [1]
Context  [3]
Framework for analysis  [11]
Analysis
(a)Competing contentions  [29]
(b)Relevant authorities  [39]
(c)Should leave to withdraw be granted?  [44]

Result [63]

The application

[1] Counsel for plaintiffs, in the midst of a trial which has already spanned 19 sitting days, apply for an order granting leave for them to withdraw as counsel. The circumstances in which the application is made are unusual. While counsel contend that the “relationship of trust and confidence between counsel and client has broken down irretrievably”, the clients oppose the application because they say that they retain trust and confidence in counsel, and wish to proceed. In such circumstances, ought the Court to refuse leave to withdraw? The researches of all counsel (including counsel for the defendants who wish to proceed with the trial) have not unearthed any authority directly on point.

[2] While the circumstances in which a solicitor on the record for a party may seek leave to withdraw are enshrined in the High Court Rules,1 there is no legislative instrument that deals squarely with the position of counsel. There seems little doubt that the question is to be determined under the inherent jurisdiction of the High Court. Its jurisdiction over barristers and solicitors, as officers of the High Court, is expressly preserved by ss 268 and 270 of the Lawyers and Conveyancers Act 2006 (the Act).

Context

[3] Mr Warwick Burgess and CTE Burgess Ltd (to whom, unless the context requires otherwise, I shall refer as Mr Burgess) are suing the executors and…

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 Monk

Details

AGLC: Burgess v Monk [2017] NZHC 2618
Case: [2017] NZHC 2618
Decision Date: 25 October 2017

CaseChat Overview and Summary

In Burgess v Monk, Warwick James Burgess and CTE Burgess Ltd sued Phillip Charles Monk and other defendants, including various trustees, solicitors, and entities associated with the purchaser of a farm property at Tihoi. The claim was based on the alleged constructive trusteeship of the farm property and associated assets by the Trustees for Mr Burgess or CTE Burgess Ltd. The Solicitors and the Armer interests were sued for knowingly assisting a breach of trust or receiving property purchased in breach of constructive trusts. Mr Burgess alleged that the Armer interests purchased the farm at an undervalue. The trial began on 25 September 2017, and on 24 October 2017, Mr Chesterman and Ms McGill, the plaintiffs' counsel, applied for leave to withdraw from the case. They cited serious professional conduct issues, a potential conflict between their personal/professional interests and the interests of their clients, and an irretrievable breakdown of the relationship of trust and confidence between counsel and client as grounds for their application. Mr Burgess opposed the application and expressed his trust and confidence in the counsel to continue the trial.

The court analyzed the case based on first principles, considering the uncontroversial aspects of the relationship between counsel and a client, the role and duties of counsel in prosecuting or defending court proceedings on behalf of a client, and the extent to which counsel may be at risk of civil proceedings. The court also examined the relevant authorities, including R v Ulcay, Re White, and Bron v Attorney-General. Ultimately, the court concluded that leave to withdraw should be refused. The court found that it was neither appropriate nor practicable for it to determine what truly happened at the meeting that triggered the application for leave to withdraw. The court proceeded on the assumption that words were said by Mr Burgess that gave rise to a genuine and reasonable belief on the part of Mr Chesterman and Ms McGill that Mr Burgess intended to bring proceedings against them. However, Mr Burgess retracted any such suggestion and assured the court that, at that time, he had no intention to issue proceedings in respect of pre-trial work undertaken by Mr Chesterman and Ms McGill, or any aspect of their conduct of the trial itself to date.

The court held that the statutory obligations cast on all lawyers reflected the approach that they must "soldier" on, regardless of their personal views about the client. The court also emphasized the importance of the interests of other parties and the public interest in the finality of litigation. As a result, the application for leave to withdraw was dismissed, and the trial continued.

Orders