Burgess v Tait - [2014] NZHC 2408

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2013-409-001385 [2014] NZHC 2408

BETWEEN
GARY OWEN BURGESS

Plaintiff

AND

ERNEST JOHN TAIT First Defendant

AND

MALLEY & CO Second Defendant

AND

DISTRICT COURT, CHRISTCHURCH Third Defendant

AND

LEGAL COMPLAINTS REVIEW OFFICER

Fourth Defendant

AND

NEW ZEALAND LAW SOCIETY Intervenor

Hearing: 1-2 September 2014

Appearances:

G O Burgess (In Person)
M Parker for Respondent, Second and Third Defendants
HDP van Schreven for Intervenor (excused)

Judgment:

2 October 2014

JUDGMENT OF DUNNINGHAM J

BURGESS v TAIT AND ORS [2014] NZHC 2408 [2 October 2014]

Table of Contents

Introduction ..........................................................................................................[1]

What are the issues on judicial review? .............................................................[9] Issues arising out of District Court proceedings [12] Issues arising out of the first LCRO decision [13] Issues arising out of the second LCRO decision [14]

The History of the District Court Proceedings ................................................[15]
The District Court Rules [26]

Issues arising out of the decision to refuse default judgment.........................[34] Was there a decision declining entry of default judgment?  [34] Did the decision to refuse default judgment breach natural justice or otherwise constitute a reviewable error, including because there was a failure to give reasons?  [38] Was the decision not to enter default judgment unlawful under the District
Court Rules 2009?  [41]
Should I grant relief in the exercise of my discretion?  [47]

Issues arising out of the decision(s) to stay the counterclaim.........................[49] Did the District Court’s decision to stay the counterclaim breach natural justice or otherwise constitute a reviewable error including because no hearing was conducted, no reasons were given and it caused unreasonable delay? [49] Was the District Court’s decision to stay the counterclaim unlawful, because Malley & Co had “no live claim before the Court”? [54] Did the District Court act unlawfully in refusing a copy of the record requested pursuant to s 60 of the District Courts Act? [55]

Issues arising out of the first LCRO decision ..................................................[59] Did the LCRO err in law in his understanding of the duty to give advice including, in particular, in relation to a relationship property agreement? [59] Did the LCRO fail to adequately inquire into the extent of the advice given by Malley & Co? [72] Did the LCRO err in law in his understanding of the duties of lawyers when deducting fees from the trust account, and was the finding that no sanction should be imposed for this action unreasonable? [77] Did the LCRO act unlawfully in issuing a section 161 certificate? [86]

Issue arising out of the second LCRO decision ...............................................[98] Did the LCRO err in law when she decided that Mr Burgess’s lawyer was not acting in a conflict of interest when he certified the s 42 notice of claim in the name of Ms Beaven? [98]

Conclusion.........................................................................................................[120]

Introduction

[1] Mr Burgess has been in a long running dispute with his lawyers, Malley & Co, over their advice (or alleged lack of it) during the period they were engaged to act for him in relationship property proceedings.

[2] Malley…

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 Tait

Details

AGLC: Burgess v Tait [2014] NZHC 2408
Case: [2014] NZHC 2408
Decision Date: 2 October 2014

CaseChat Overview and Summary

Gary Owen Burgess brought a judicial review application against Ernest John Tait, Malley & Co, the District Court, Christchurch, the Legal Complaints Review Officer and the New Zealand Law Society. Burgess sought to challenge various decisions in relation to his legal proceedings against Tait and Malley & Co. The court held that Burgess's application for review had been unsuccessful on all grounds. The District Court's decision not to enter judgment on Burgess's counterclaim was permitted, indeed sensible, having regard to the relevant District Court Rules, and was not unlawful nor did otherwise constitute a reviewable error. The District Court's decision to stay Burgess's counterclaim against Tait and Malley & Co did not breach natural justice or constitute a reviewable error. The Legal Complaints Review Officer (LCRO) had proceeded on a correct understanding of the lawyer's duty to advise, and there was no basis for the Court to intervene in his decision on that issue. The LCRO's decision that no sanction should be imposed for Tait's deduction of fees from Burgess's trust account was not unreasonable or irrational. The LCRO did not commit a reviewable error when it issued a s 161 certificate for Tait and Malley & Co's fees. The LCRO's finding that Tait was not acting in a conflict of interest when he certified the s 42 notice of claim in the name of Susan Beaven was not a reviewable error of law. Burgess was directed to file and serve memoranda relating to the substantive claim and counterclaim proceedings by 24 October 2014 advising whether the decision was to be appealed and whether he wished to continue with his appeal of the decision to refuse default judgment. Tait and Malley & Co were directed to file and serve a memorandum by 31 October 2014 responding to the matters covered in Burgess's memorandum and also advising whether their cross-appeal of the decision to decline summary judgment was still being pursued. A telephone conference was to be convened in the first week of November to make appropriate directions in the appeal proceedings. Costs were reserved.

Orders