Erwood v Holmes

[2020] NZHC 53

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2004-404-7211

[2020] NZHC 53

BETWEEN

ROBERT ERWOOD

Plaintiff

AND

JOHN ROBIN HOLMES

Defendant

ANTHONY DAVID BANBROOK
Second Defendant

GRAEME EDWARD MINCHIN

Third Defendant

Hearing:

On the papers

Appearances:

The plaintiff in person

No appearance for the second defendant

Judgment:

3 February 2020

JUDGMENT NO 2 OF PALMER J

The judgment was delivered by me on Monday 3 February 2020 at 3.00pm.

Pursuant to Rule 11.5 of the High Court Rules

……………………………… Registrar/Deputy Registrar

Parties/Solicitors:

Plaintiff in person

ERWOOD v HOLMES (NO 2) [2020] NZHC 53 [3 February 2020]

[1]    On 14 November 2019, I issued a judgment in the proceeding between the plaintiff, Mr Robert Erwood, and the second defendant, Mr Anthony Banbrook.1 In summary, I held:

[1]        Mr Robert Erwood sues Mr Anthony Banbrook who represented him in a suit against other former lawyers of Mr Erwood in 2003. He alleges Mr Banbrook breached duties of care in tort, fiduciary duties and contract. He alleges Mr Banbrook did not act on instructions to apply to have a litigation guardian for Mr Erwood removed before the litigation guardian agreed to settlement on Mr Erwood’s behalf. On the basis of a hearing by way of formal proof, I consider Mr Banbrook breached duties of care and fiduciary duties to Mr Erwood. But I do not consider Mr Erwood has established that caused him loss or caused Mr Banbrook to gain a profit. Neither do I consider Mr Erwood’s cause of action regarding fees has been established. I dismiss the application for judgment by default by way of formal proof.

[2]       Mr Erwood applies for me to recall the judgment. Generally, a judgment stands for better or worse, subject to appeal. But a judgment may be recalled, under r 11.9 of the High Court Rules 2016, if:2

(a)there has, since the hearing, been amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority issued;

(b)the Court’s attention has not been directed to a legislative provision or authoritative decision of plain relevance; or

(c)justice requires the judgment to be recalled for some other very special reason.

[3]       Mr Erwood recasts and re-emphasises the arguments he already made, on which I have ruled. None of his arguments relate to the first two grounds of recall above and none rise to the level of justifying the third. In particular:

(a)The judgment did not overlook evidence Mr Banbrook acted without authority on 16 February 2004 when he appeared in order to argue an application to discharge the litigation guardian, among other things.

1      Erwood v Holmes [2019] NZHC 2963.

2      Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC).

Mr Erwood relies now on unspecified evidence before Downs J in the trial concerning Mr Holmes and Mr Minchin. That does not satisfy the evidential requirements of r 15.9(4) of the High Court Rules 2016.

(b)The judgment did not overlook the defendants insisting there was no basis to Mr Minchin acting as litigation guardian.3

(c)The judgment did not overlook other evidence regarding a finding by Ronald Young J, the defendants’ demand for the guardian to be removed or Dr Wettasinghe’s opinion.4

(d)The judgment did consider the loss of opportunity aspect of his claim.5

[4]       To the extent Mr Erwood submits the judgment erred in law, in relation to the evidence relied upon, that is a matter for appeal not recall. To the extent Mr Erwood challenges findings of fact in the judgment, in relation to what a fee was for or whether there was a fee arrangement, that is a matter for appeal not recall.

[5]Accordingly, I dismiss the application for recall.

Palmer J

3      Erwood v Holmes, above n 1, at [8].

4 At [7], [8], and [11].

5      At [35], [37].