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Coombe v Jenkison

Coombe v Jenkison

Case [2020] NZHC 3178 3 December 2020

Limitation Periods

Breach of Contract

Unconscionable Conduct

Estoppel

Civil Litigation & Procedure

Contract Law

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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2019-419-73

[2020] NZHC 3178

BETWEEN
ANTHONY BRIAN COOMBE and

MURRAY KAID MCLEAN as trustees and executors of the Estate of the late Ian Alexander McClean

Plaintiffs

AND

JOHN ELLIOT SOPER JENKISON, PETER WARD THOMAS BAKER,

BRENDA J FLAY and HAYLEY M GREEN

Defendants

Hearing:
1 September 2020 with additional submissions on 4 and

7 September 2020

Appearances:

N R Williams and S B C O’Connor for the plaintiffs P M Fee and V S Wethey for the defendants

Judgment:

3 December 2020

JUDGMENT OF PALMER J

This judgment was delivered by me on Thursday 3 December 2020 at 11.00am.
Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:
G N E Bradford, Barrister, Auckland Fee Langstone, Auckland
Meredith Connell, Auckland

COOMBE v JENKISON [2020] NZHC 3178 [3 December 2020]

Summary

[1] Purnell Jenkison Oliver (PJO) is a law firm in Thames, Coromandel. A member of the firm drafted a will for Mr Ian McClean which contained a significant error. Three of his surviving family members obtained $1 million (collectively) from the estate because of that. Mr Anthony Coombe and Mr Murray McLean, the executors of Mr McClean’s estate, now sue PJO for negligence. PJO applies to strike out the suit, or for summary judgment, on the basis the suit is out of time under the Limitation Act 2010 (the Act). At this stage of the proceedings, I do not consider the late knowledge date under s 14 means the suit is out of time. Neither can I rule out the possibility a limitation defence might be estopped, depending on facts proven at trial. I dismiss the application.

What happened?

The relevant facts

[2] The late Mr Bruce Oliver of PJO drafted a will for Mr McClean, a farmer, which was executed on 28 February 2013. Mr McClean died on 4 April 2013. His estate was worth over $6.5 million. Probate was granted, and the executors appointed, on 3 May 2013. Clause 9 of the will purported to leave the residue of the estate in the Ian McClean Trust “for the benefit of the local and wider community and needy persons (including my nieces and nephews) in the Hauraki Plains/Hauraki/ Coromandel area” and noted it “may pay my sister’s [Muriel Turner’s] care and hospital bills”. The trustees were instructed to “invest my estate’s capital wisely and distribute each year’s income to suitable successful applicants”.

[3] On 2 May 2014, the solicitors for Ms Muriel Turner at Patterson Hopkins sent the trustees a letter suggesting cl 9 was “almost completely devoid of meaning” and suggesting it might be ineffective. The trustees sought advice from PJO.1 On 8 May 2014 PJO advised that Ms Turner may well pursue claims even if advised her position had little merit.2

1 Affidavit of Anthony Coombe, 30 June 2020 (Coombe), at [28].
2 Coombe at Exhibit ABC-1.

[4] On 30 May 2014, PJO instructed Greg Kelly…

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 Coombe v Jenkison

Details

AGLC: Coombe v Jenkison [2020] NZHC 3178
Case: [2020] NZHC 3178
Decision Date: 3 December 2020

CaseChat Overview and Summary

The plaintiffs, executors of the estate of Ian McClean, brought a claim against Purnell Jenkison Oliver (PJO), a law firm, for negligence in drafting Mr McClean's will, which led to a $1 million payout to Muriel Turner and her children. PJO applied to strike out the suit or for summary judgment on the grounds that the claim was barred by limitation under the Limitation Act 2010 and the Fair Trading Act 1986. The plaintiffs opposed the application and raised the possibility of estoppel as a defence to limitation. The court had to decide whether the claim was time-barred and whether estoppel could be raised as a defence. The court held that, based on the current state of the pleadings and evidence, the claim was not time-barred as the plaintiffs did not have constructive knowledge of the requisite facts in section 14(1)(a) to (e) of the Limitation Act 2010. The court also noted that the possibility of estoppel, if proven at trial, could prevent the limitation defence from being successful. The court dismissed the application for strike out or summary judgment and awarded costs on a 2B basis to the plaintiffs.

The court found that the plaintiffs did not have constructive knowledge of the requisite facts under section 14(1)(a) to (e) of the Limitation Act 2010. The court held that the plaintiffs did not know, or ought reasonably to have known, that PJO had been negligent in drafting the will when they received a letter from Patterson Hopkins on 2 May 2014, nor when they received the Kelly Law opinion on 18 August 2014. The court considered that the plaintiffs only knew that PJO had been negligent and that they had suffered loss as a result of the negligence when Whata J issued judgment on 15 March 2018. Therefore, the court held that the claim was not time-barred based on the current state of the pleadings and evidence. The court also noted that the possibility of estoppel, if proven at trial, could prevent the limitation defence from being successful. The court held that the defendants had a duty under rule 5.11 of the Lawyers: Conduct and Client Care Rules 2008 to advise the plaintiffs to take independent legal advice on whether they had a claim against the defendants for drafting the will. The court held that if the defendants breached that duty, it could be unconscionable for them to rely on the limitation defence. The court held that the application for strike out or summary judgment was dismissed and costs were awarded to the plaintiffs on a 2B basis.

Orders