Erwood v Holmes - [2019] NZHC 2963

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2004-404-7211

[2019] NZHC 2963

BETWEEN
ROBERT ERWOOD

Plaintiff

AND

JOHN ROBIN HOLMES

First Defendant

ANTHONY DAVID BANBROOK
Second Defendant

GRAEME EDWARD MINCHIN

Third Defendant

Hearing: 19 June 2019

Appearances:

The plaintiff in person

No appearance by the second defendant

Judgment:

14 November 2019

JUDGMENT OF PALMER J

The judgment was delivered by me on 14 November 2019 at 11.00am.
Pursuant to Rule 11.5 of the High Court Rule.

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

Parties/Solicitors:
Plaintiff in person
Kennedys Law, Auckland
Second and third defendants in person

ERWOOD v HOLMES [2019] NZHC 2963 [14 November 2019]

Summary

[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.

What happened?

Renshaw Edwards and Harley proceedings

[2] Mr Erwood sued the New Zealand Law Society and the professional indemnifiers of Renshaw Edwards, a law firm, when it collapsed and he lost money in 1992 (the Renshaw Edwards proceeding). His success against the Law Society was more than offset in financial terms by his loss against the indemnifier and legal costs.1

[3] Mr Erwood then sued the lawyers who acted for him: Mrs Raylee Harley, and her instructing solicitors, the firm Glasgow Harley (the Harley proceeding). Mr Erwood alleged, among other things, they had breached their duties by: failing to have him psychiatrically assessed when it was apparent that was required; failing to apply for a litigation guardian; and failing to communicate to him settlement offers from the Law Society.2

Mr Erwood’s lawyers and litigation guardian in the Harley proceeding

[4] In this proceeding, Mr Erwood sues his lawyers in the Harley proceeding who sued his lawyers in the Renshaw Edwards proceeding. Perhaps unsurprisingly, Mr Erwood now represents himself.

1 Harley v McDonald [2002] 1 NZLR 1 (PC).
2 Statement of claim, 20 Mary 2002, Exhibit “I” to affidavit of Robert Erwood, 21 March 2019.

[5] Mr Erwood’s evidence is that in late 2001 he consulted a barrister, Mr Banbrook “concerning certain civil proceedings”.3 Mr Erwood engaged Mr Banbrook for the Renshaw Edwards proceeding and then again for the Harley proceeding.4 Mr Erwood alleges Mr Banbrook refused to act for him, at least in the Harley proceeding,…

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 Erwood v Holmes

Details

AGLC: Erwood v Holmes [2019] NZHC 2963
Case: [2019] NZHC 2963
Decision Date: 14 November 2019

CaseChat Overview and Summary

Mr Robert Erwood sues Mr Anthony Banbrook, who represented him in a suit against other former lawyers of Mr Erwood in 2003. Mr Erwood 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. The court considered Mr Banbrook breached duties of care and fiduciary duties to Mr Erwood, but Mr Erwood had not established that such breaches caused him any loss or caused Mr Banbrook to gain profit. Nor had Mr Erwood established his cause of action regarding fees. The court dismissed the application for judgment by default by way of formal proof.

Orders