Corbett v Voulk - [2015] NZHC 2379

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-1676 [2015] NZHC 2379

BETWEEN
JOHN HILLARY CORBETT

Plaintiff

AND

ROBERT JAMES VOULK & IAIN MICHAEL HUTCHESON Defendants

Hearing: 28 September 2015

Appearances:

No appearance for plaintiff
Ms Divich and Ms Waldron for first defendant
Mr Napier for the Second defendant

Judgment:

30 September 2015

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on
30.09.15 at 4 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

CORBETT v VOULK & ANOR [2015] NZHC 2379 [30 September 2015]

[1] This matter was listed for a defended hearing before me on 28 September

2015. Both of the defendants had filed applications to strike out the plaintiff’s

statement of claim and to dismiss the proceeding.

[2] The litigation is brought against the solicitor and barrister respectively who provided legal advice and services to him in regard to proceedings he brought concerning the JM and JS Corbett Family Trust which was established by Mr Corbett’s late parents in July 1998.

[3] The applications were brought on two broad grounds. The first was that the statement of claim was defective. It was excessively lengthy; it was not accurate, clear and intelligible and did not provide sufficient particulars to enable the defendants to be fairly informed of the case to be met. As well it contained extensive pleading of evidence including documents such as emails and there was no separate identification of which part of the case applied to each defendant. It was impossible to discern what the elements of the cause/s of action were which the plaintiff intended to bring. As a result the Court was invited under r 15.1 to strike out on the proceeding on the grounds set out therein which are as follows:

[jpd pick up from napier]

[4] Mr Corbett did not appear. He had provided at least one memorandum for the Court to consider. The reasons he gave for not attending had been foreshadowed in an application for adjournment which he made last week on the grounds that he was too unwell to appear. Venning J directed that the matter was to proceed notwithstanding the application for adjournment. Amongst other things the Judge noted that there was no independent verification of Mr Corbett’s health position.

[5] Prior to the hearing after having read the statement of claim I formed a view that Mr Corbett may well be a party who came within the provisions of r 4.30 of the rules which deals with an incapacitated person and the necessity for such persons to be represented by a litigation guardian.

[6] At the commencement of the hearing I invited Ms Divich and Mr Napier to address me concerning that matter which they did. Ms Divich told me that she was aware that in other proceedings which Mr Corbett had brought a finding had been made that Mr Corbett was an incapacitated person within the meaning of r 4.29
HCR.

[7] The decision…

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 Corbett v Voulk

Details

AGLC: Corbett v Voulk [2015] NZHC 2379
Case: [2015] NZHC 2379
Decision Date: 30 September 2015

CaseChat Overview and Summary

The case of Corbett v Voulk and Another involved a dispute between John Hillary Corbett, the plaintiff, and Robert James Voulk and Iain Michael Hutcheson, the defendants. The litigation concerned legal advice and services provided by the defendants in relation to proceedings involving the JM and JS Corbett Family Trust, established by Mr Corbett's late parents in July 1998. Both defendants had filed applications to strike out the plaintiff's statement of claim and to dismiss the proceeding, on the grounds that the statement of claim was defective, excessively lengthy, unclear, and contained extensive pleading of evidence. Additionally, the defendants argued that the plaintiff's health issues and apparent incapacity meant that he was not in a position to adequately advance his own cause.

The court was required to decide whether the plaintiff's statement of claim was defective and warranted a strike out, and if the appointment of a litigation guardian was necessary due to the plaintiff's apparent incapacity. The court considered the possibility of appointing a litigation guardian for the plaintiff, especially in light of a previous decision in Corbett v Western, where the plaintiff was deemed an incapacitated person, and a litigation guardian was appointed to represent him in litigation involving the JM and JS Corbett Family Trust.

The court decided that the appointment of a litigation guardian must be considered, as it was a necessary antecedent step before making substantive orders to ensure a fair process. The court directed that Mr Corbett should be given the opportunity to comment on the proposal of an appointment under r 4.30, and that he should make any comments in written form in a memorandum not exceeding 12 pages within ten working days of the date of the judgment. The court also noted that the costs of the applications brought by the applicants were reserved.

In conclusion, the court found that the plaintiff's apparent incapacity warranted consideration of appointing a litigation guardian, and that the plaintiff should be given an opportunity to comment on the proposal. The court also noted that the costs of the applications were reserved, and that the matter would be further considered at a later date.

Orders