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Cousins v Heslop

Cousins v Heslop

Case [2007] NZCA 377 30 August 2007

Civil Litigation & Procedure

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA337/07
[2007] NZCA 377
BETWEENCLIVE JOHN COUSINS

Applicant

ANDJOSEPH ROGER HESLOP AND JENNIFER ROBERTA HESLOP

First Respondents
ANDJENNIFER ROBERTA HESLOP AND LINDSAY DONALD SMITH AS TRUSTEES OF THE ROGER HESLOP FAMILY TRUST

Second Respondents

Hearing:20 August 2007

Court:Hammond, Robertson and Ellen France JJ
Counsel:C R Johnstone for Applicant

D J S Parker and M H Cooke for Respondents

Judgment:30 August 2007 at 10 am

JUDGMENT OF THE COURT

A        The application is dismissed.
B        The respondents will have costs of $1,500 and usual disbursements.
REASONS OF THE COURT
(Given by Hammond J)
Introduction
[1]       The respondents (“the Heslop interests”) succeeded in the High Court at Christchurch before Chisholm J in an action against the applicant, a solicitor, that resulted in an award of $1,515,491 plus costs against Mr Cousins (CIV 2005-409-2833 15 June 2007).
[2]       Chisholm J stayed the execution of most of that award, pending an appeal to this Court in relation to the substantive judgment. However, a sum of $572,618.13, representing legal costs, was ordered by the Judge to be paid immediately to the Heslop interests.
[3]       Mr Cousins has not appealed against that decision as such; instead he now seeks a “variation” of that order by requiring that the total award be stayed pending the disposition of the appeal.
[4]       The jurisdiction for this Court to make such a variance arises by virtue of r 12(6) of the Court of Appeal (Civil) Rules 2005.
Background
[5]       It is necessary to add a little more detail as to how this application has come about.
[6]       The Heslop interests’ proceedings against Mr Cousins arose out of deficiencies in the performance of his duties as their solicitor. The proceedings were for breach of contract of retainer; negligence; breach of fiduciary duties; and breach of trust.
[7]       In an extensive judgment, Chisholm J found that there were multiple failures on Mr Cousins’ part, which we need not detail here. The Heslop interests recovered monies for wasted legal expenses, general damages, and the substantial part of the judgment was made up of damages for the loss of an option to purchase an orchard block.
[8]       Mr Cousins appealed timeously against Chisholm J’s judgment, on 12 July 2007. The following day he sought a stay of execution under r 12(3) of the Court of Appeal (Civil) Rules 2005. Chisholm J delivered a reasoned judgment on that application on 20 July 2007. The parties had consented to the amount of the judgment plus agreed interests being placed with a nominated law firm as stakeholder. The Heslop interests, however, said that a sum of $573,618.13 should be released from the stakeholder fund for outstanding legal and other fees and expenses which had to be paid by them. A high rate of interest is running on that sum. The Judge declined to release an additional $150,000, given an assurance that the solicitors would continue to represent the Heslop interests whatever the outcome of the stay application.
Mr Cousins’…

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 Cousins v Heslop

Details

AGLC: Cousins v Heslop [2007] NZCA 377
Case: [2007] NZCA 377
Decision Date: 30 August 2007

CaseChat Overview and Summary

The case of Cousins v Heslop involves an application by Clive John Cousins, a solicitor, seeking a variation of an order made by Chisholm J in the High Court at Christchurch. The order required Mr Cousins to pay $572,618.13 to the Heslop interests, representing legal costs. The Heslop interests, who had succeeded in a lawsuit against Mr Cousins for breach of contract, negligence, breach of fiduciary duties, and breach of trust, had obtained a substantial judgment against him, which was stayed pending an appeal. However, a portion of the judgment, specifically the legal costs, was ordered to be paid immediately. Mr Cousins sought a variation of that order, requiring the entire award to be stayed pending the appeal. The Court of Appeal heard the application and ultimately dismissed it.

The primary legal issue in the case was whether the Court of Appeal had the jurisdiction to vary the stay order made by Chisholm J, and if so, on what basis such jurisdiction should be exercised. The Court of Appeal had to determine whether the principles governing stays pending appeal applied, and if a material change in circumstances was necessary for a variation order, or whether the justice of the case should be the guiding factor.

The Court of Appeal, in its judgment, found that while the principles relating to a stay pending an appeal were well settled, Rule 12(6) of the Court of Appeal (Civil) Rules 2005 provided a standalone jurisdiction for the Court to vary or rescind a stay order made by the Court appealed from. The Court held that whether there had been a material change of circumstances was not a pre-condition for relief under the rule. Instead, the rule turned on what the justice of the case required and whether it could be shown that the judge appealed from was wrong in the view he or she took in the particular case. The Court concluded that Chisholm J had exercised his discretion properly and that there had been no material change in circumstances since the original order was made. As such, the application for variation was dismissed.

In conclusion, the Court of Appeal dismissed Mr Cousins' application for a variation of the stay order. The Court held that Chisholm J had correctly exercised his discretion in ordering the immediate payment of the legal costs and that there was no material change in circumstances warranting a variation. The Heslop interests were awarded costs of $1,500 and usual disbursements.

Orders