Erwood v Holmes - [2019] NZHC 2792

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2004-404-007211

[2019] NZHC 2792

BETWEEN
ROBERT ERWOOD

Plaintiff

AND

JOHN ROBIN HOLMES

First Defendant

ANTHONY DAVID BANBROOK
Second Defendant

GRAEME EDWARD MINCHIN

Third Defendant

Hearing: On the papers

Judgment:

31 October 2019

JUDGMENT OF DOWNS J

(Costs)

This judgment was delivered by me on Thursday, 31 October 2019 at 11 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Kennedys Law, Auckland.
GE Minchin, Auckland.

Copy to: Plaintiff

ERWOOD v HOLMES [2019] NZHC 2792 [31 October 2019]

Increased costs?

[1] Mr Robert Erwood sued Mr John Holmes and Mr Graeme Minchin. He lost. Mr Minchin does not seek costs. Mr Holmes does—including increased costs. Mr Erwood opposes costs. Knowledge of my judgment dismissing Mr Erwood’s claim is assumed, albeit some recapitulation may be helpful.1

[2] Mr Erwood lost money when Renshaw Edwards collapsed in 1992 (Mr Erwood was then known as Mr McDonald). Mr Erwood sued the New Zealand Law Society and an insurer. Failure against the latter outweighed success against the former. Mr Erwood then sued the lawyers who had acted for him, Mrs Raylee Harley and her firm, Glasgow Harley. Mr Erwood alleged negligence. Among other things, Mr Erwood argued Mrs Harley should have sought appointment of a litigation guardian for him. I call this the Glasgow Harley claim.

[3] In 2003, the Glasgow Harley claim settled with help from a litigation guardian, Mr Minchin. Mr Holmes was Mr Erwood’s solicitor for the Glasgow Harley claim. That said, Mr Holmes’ role was minor because he was reverse-briefed by a barrister and relied heavily on that barrister.

[4] Mr Erwood then sued Mr Holmes and Mr Minchin—the case I tried. Mr Erwood alleged Mr Holmes and Mr Minchin settled the Glasgow Harley claim without his authority. Mr Erwood said he did not actually need a litigation guardian and both men knew this. Mr Erwood relied on a 2003 letter written by a psychiatrist he had known for a long time. Mr Erwood also alleged Mr Holmes wrongly deducted his (modest) fee from the settlement proceeds, and the barrister’s (much larger) fee.

[5] I found Mr Holmes did not know about the psychiatrist’s letter until well after settlement, and Mr Holmes was entitled to deduct the fees. I also found Mr Minchin did not breach his obligations as a litigation guardian, and Mr Erwood was actively trying to circumvent Mr Minchin in that role.

1 Erwood v Holmes [2019] NZHC 2049.

Mr Holmes’ case for increased costs

[6] Mr Holmes says he should have increased costs because of unnecessary delay, Mr Erwood’s conduct, and the latter’s unreasonable rejection of a settlement offer:

(a)Mr Erwood filed the claim December 2004. In 2007, Mr Erwood was made bankrupt. This stayed the claim until May 2011. In 2017, 2018 and 2019, Mr Erwood repeatedly applied for the appointment of amicus curiae. In effect, Mr Erwood wanted a free lawyer. When…

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 2792
Case: [2019] NZHC 2792
Decision Date: 31 October 2019

CaseChat Overview and Summary

The case of Erwood v Holmes was heard in the High Court of New Zealand, Auckland Registry. The plaintiff, Mr. Robert Erwood, sued the first defendant, Mr. John Holmes, and the third defendant, Mr. Graeme Minchin, over a settlement of a previous claim. The primary legal issues the court had to decide were whether Mr. Holmes was entitled to increased costs due to unnecessary delays, Mr. Erwood's conduct, and his unreasonable rejection of a settlement offer. Additionally, the court needed to determine whether Mr. Erwood's application to recall the judgment could be granted.

The court found that increased costs were justified as Mr. Erwood's suit lacked merit and he unreasonably failed to settle. The court also ruled that the claim should not have been brought as it was without merit and mischievous. The court awarded Mr. Holmes increased costs of $57,947.50, which included a 25 percent uplift from when the stay was lifted and a 50 percent uplift from the rejection of the settlement offer. The court dismissed Mr. Erwood's application to recall the judgment, stating it was not sufficiently fundamental to warrant recall.

In conclusion, the court awarded Mr. Holmes increased costs of $57,947.50, and dismissed Mr. Erwood's application to recall the judgment.

Orders