Cutting v Liu - [2014] NZHC 1063

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-004979 [2014] NZHC 1063

BETWEEN
DEREK EDWIN CUTTING

Appellant

AND

YIUCHUAN (JESSE) LIU KIN TO (STEVEN) LAU DINAH QIU

Respondents

Hearing: 8 April 2014

Appearances:

Simon Jefferson QC for the Appellant
Respondents in Person
Stephen Mills QC as Amicus Curiae

Judgment:

20 May 2014

RESERVED JUDGMENT OF MOORE J

This judgment was delivered by on 20 May 2014 at 4:00pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

CUTTING v LIU & ORS [2014] NZHC 1063 [20 May 2014]

Introduction

[1] This is an appeal against the decision of Judge P A Cunningham delivered on

1 November 2013. Her Honour refused the plaintiff’s application for leave to allow Mr Keene, an Auckland barrister, to appear as both counsel for the plaintiff and as a witness in a claim to recover his fees.

Factual background

[2] The appellant, Mr Cutting, is an Auckland solicitor who, in 2008, briefed Mr Keene to act as counsel for the respondents in relation to a dispute they had with an Auckland secondary school.

[3] Mr Keene filed the proceedings in the Auckland District Court. However, by December 2008 the relationship between Mr Keene and the respondents soured. They expressed dissatisfaction in Mr Keene’s performance and terminated his engagement.

[4] Although substantial fees had been billed for and paid, approximately

$15,000 remained owed by the respondents for Mr Keene’s services.

[5] The respondents refused to pay the amount outstanding although they did meet all of Mr Cutting’s fees.

[6] The respondents complained to the New Zealand Law Society about the quantum of the fee as well as aspects of Mr Keene’s performance. The filing of the complaint had the effect, through the operation of s 161 of the Lawyers and Conveyancers Act 2006, of effecting a temporary stay of the District Court proceedings until final disposition of the complaint.

[7] The costs assessor upheld Mr Keene’s fee. The Standards Committee resolved to take no further action, a decision which was later confirmed by the Legal Complaints Review Officer on 5 October 2010.

[8] Mr Cutting’s action for the recovery of Mr Keene’s fees was reactivated on

14 October 2010 when the plaintiff successfully applied for judgment by default. Judgment was entered on 18 October 2010.

[9] On 15 November 2010, the respondents applied to set aside the judgment. Their application was dismissed in the District Court on 20 January 2011. They appealed to this Court. Of the grounds on appeal, two have some relevance to the present appeal, namely:

(a) Mr Keene could not appear as counsel because he had made an affidavit containing controversial material; he was in any event conflicted; and his appearance at Court was in breach of the intervention rule;

(b) Mr Keene did not competently carry out his task as counsel.

[10] Williams J allowed the appeal, setting aside the judgment on the basis that the

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 Cutting v Liu

Details

AGLC: Cutting v Liu [2014] NZHC 1063
Case: [2014] NZHC 1063
Decision Date: 20 May 2014

CaseChat Overview and Summary

This is an appeal against the decision of Judge P A Cunningham delivered on 1 November 2013. Her Honour refused the plaintiff's application for leave to allow Mr Keene, an Auckland barrister, to appear as both counsel for the plaintiff and as a witness in a claim to recover his fees. The plaintiff, Mr Cutting, an Auckland solicitor, appealed this decision. The central issue was whether the intervention rule and other rules of professional conduct could be circumvented by permitting Mr Keene to act as counsel and a witness in the same cause. The court considered the jurisdiction to regulate counsel's right to appear, the intervention rule and rule 14.4, rule 13.5.1, and section 57 of the District Courts Act 1947. The court concluded that the District Court decision was correct and dismissed the appeal. It found that the intervention rule and other rules of professional conduct applied, and that there were no special circumstances to permit Mr Keene to appear as counsel and a witness. The appeal is dismissed. Given that the respondents are self-represented, no order as to costs is made.

Orders