EA v Rennie Cox Lawyers - [2023] NZHC 3370

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-861

CIV-2023-404-870 [2023] NZHC 3370

BETWEEN
EA

Appellant

AND

RENNIE COX LAWYERS

Respondent

Hearing: 6 September 2023

Appearances:

RJ Hollyman KC for the Appellant (Defendant)

SP Bryers for the Respondent and Cross-Appellant (Plaintiff)

Judgment:

24 November 2023

JUDGMENT OF BECROFT J

(Two civil appeals of interlocutory decisions)

This judgment was delivered by me on 24 November 2023 at 4pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors/Counsel:
Friedlander & Co Ltd, Auckland Rennie Cox Lawyers, Auckland

RJ Hollyman KC, Auckland S Bryers, Auckland

EA v RENNIE COX LAWYERS [2023] NZHC 3370 [24 November 2023]

This case is an exemplar of delay

[1] There is a fictional never-ending probate case in Charles Dickens’ Bleak House, called Jarndyce v Jarndyce. It lives again. This time, in the guise of a still- unresolved claim for unpaid barrister’s fees of $95,738.51, filed promptly in the North Shore District Court on 29 March 2012.

[2] This decision determines two appeals of interlocutory decisions. Both appeals continue the litigation’s trend of delay and obfuscation.

[3] In 2009, Rennie Cox Lawyers (“Rennie Cox”) instructed a barrister to act for Ms EA in unrelated High Court proceedings. Ms EA paid the barrister’s fees as invoiced until June 2011. She disputed the fees thereafter and did not pay them. Rennie Cox subsequently filed a claim on the barrister’s behalf to recover them.

[4] Ms EA has repeatedly attempted to have the proceedings struck out on technical and/or procedural grounds. There have been at least 15 judgments, including one from the Supreme Court, five from the Court of Appeal, eight from the High Court and many District Court decisions. On one occasion her concerns were understandable, as the plaintiff had acted inexcusably in obtaining a default judgement ex parte.1

[5] Despite all her efforts, the claim against her continues. The substantive merits remain far from being addressed.

[6] The third-most recent Court of Appeal decision, in December 2021, noted that the objective of the District Court Rules 2009 was to secure the just, speedy and inexpensive determination of any proceeding.2 The Court observed “that objective has failed spectacularly in this case”,3 and that “the proceeding has progressed nowhere towards being heard on its merits.”4 The Court of Appeal also emphasised, entirely optimistically it turns out, that “the proceeding should be heard and

1 See EA v Rennie Cox Lawyers [2018] NZCA 33, [2018] 3 NZLR 202.
2 Rennie Cox Lawyers v EA [2021] NZCA 648 at [1], citing r 1.3.1 of the District Court Rules 2009. These rules were replaced by the District Court Rules 2014 as from 1 July 2014.
3 At [1].
4 At [2].

determined on its merits in the District Court without further delay.”5 Nearly two years on, the procedural skirmishes still continue.

[7] These two appeals from the District Court raise yet more technical and entirely procedural arguments. They…

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.

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Details

Case: [2023] NZHC 3370
Decision Date: 24 November 2023

CaseChat Overview and Summary

EA appeals two District Court decisions dismissing her applications to strike out a statement of claim filed by Rennie Cox Lawyers and to permanently stay the proceeding. The first appeal is against the District Court’s decision to extend the time for filing the statement of claim and the second is against the District Court’s refusal to strike out the statement of claim and to permanently stay the proceeding. Rennie Cox cross-appeals the first decision. The appeals concern technical and procedural issues only. They have nothing to do with the merits of the claim. The appeals must fail.

The court found that Rennie Cox properly filed the statement of claim using an email address that, although not one of the two published addresses, was nevertheless a genuine North Shore District Court email address. The email was used in all subsequent emails to the parties and the Court, and it was always considered by the Court to be perfectly appropriate. The use of the email did not constitute a fatal defect in the filing of the statement of claim. Even if it did, the irregularity could be cured under r 1.10 of the District Court Rules 2009.

Even if the statement of claim had not been properly filed, the court found it was open to the District Court to extend the time for filing. The Court of Appeal’s reinstatement of the timetabling orders was expressly made “subject to any variation directed by the District Court”. The Court found that the proceedings were not at an end. A breach of the timetabling by the plaintiff, no matter how minor, would not bring the proceedings to an end. The use of r 1.18 of the District Court Rules 2009 was justified. It would be artificial not to apply it in these circumstances, particularly given the long-running nature of the case, the absence of any prejudice to EA and the fact that she has been involved in significant procedural litigation to prevent the claim being heard.

The recall application was misconceived. It was contrary to some of the stated examples in Nottingham v The Real Estate Agents Authority. It was not an appropriate vehicle for Mr Hollyman’s concerns and the ruling as to the extension of time was beyond its scope. The recall application was only necessary to correct Judge Harrison’s incorrect reference to the wrong rule. With great respect, that is where Judge Mathers should have stopped.

The second appeal is against Judge Sinclair’s refusal to strike out the statement of claim and to permanently stay the proceeding. The court found that the application appeared to be a collateral attack on the decisions of both Judge Harrison and Judge Mathers and was a further attempt to re-litigate matters already considered and determined. The court found the filing of the second statement of claim was not defective and it did not introduce a new cause of action.

The first appeal by EA is dismissed. The plaintiff’s cross-appeal against that decision is successful. The second appeal by EA is dismissed. Rennie Cox is plainly entitled to costs. EA comes perilously close to an award of indemnity costs against her.

Orders