Erwood v Holmes - [2019] NZHC 2049

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2004-404-007211

[2019] NZHC 2049

BETWEEN
ROBERT ERWOOD

Plaintiff

AND

JOHN ROBIN HOLMES

First Defendant

ANTHONY DAVID BANBROOK
Second Defendant

GRAEME EDWARD MINCHIN

Third Defendant

Hearing: 5, 6 and 8 August 2019

Appearances:

Plaintiff in person

JM Keating and RJ Bingham for First Defendant Third Defendant in person

Judgment:

20 August 2019

JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 20 August 2019 at 4 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

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

Copy to: Plaintiff

ERWOOD v HOLMES [2019] NZHC 2049 [20 August 2019]

Table of Contents

An unsatisfactory case [1]

Important events [7]
The judgment of Ronald Young J [29]

The claim against Mr Minchin [38]

Duties of litigation guardians  [40]
Did Mr Minchin breach his duties?  [57]
The claim against Mr Holmes  [77]

Did Mr Holmes fail to protect Mr Erwood’s interests in relation to

Dr Wettasinghe’s letter? [82]
Did Mr Holmes wrongly deduct fees? [91]

Trial [105]

Orders [115]

Costs [116]

Postscript [117]

An unsatisfactory case

[1] Mr Robert Erwood lost a lot of money when Renshaw Edwards, a law firm, collapsed in 1992. Mr Erwood has sued repeatedly since then to recover his losses. He sued the New Zealand Law Society1 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. Put broadly, a litigation guardian represents a party in litigation when that party does not have capacity to make decisions. The litigation guardian makes those decisions for the party, and in doing so, binds them. In a sense, the litigation guardian becomes the party. Mr Erwood suffers, or at least suffered, a mental illness.

[2] In 2003, Mr Erwood’s suit against Mrs Harley and Glasgow Harley settled with the help of a litigation guardian. Mr Erwood now sues that litigation guardian and the lawyers who had been acting for him. Mr Erwood alleges they settled without his authority. Mr Erwood contends he did not actually need a litigation guardian and his advisors knew this. Mr Erwood relies on a short letter from a psychiatrist written

1 NZLS.

seven weeks before settlement, and a judgment of Ronald Young J in a related case in which the Judge did not appoint a litigation guardian.2 Mr Erwood wanted a litigation guardian in that case and argued the absence of one vitiated orders against him.

[3] As may be gleaned from this introduction, little about this case is satisfactory. Mr Erwood filed this claim 22 December 2004.3 Few contemporaneous documents survive, apart from court records. Memory of events is faint. Or spent. A host of judgments encircles relevant events. For example, in 2006,…

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 2049
Case: [2019] NZHC 2049
Decision Date: 20 August 2019

CaseChat Overview and Summary

In this case, the plaintiff, Robert Erwood, is suing the defendants, John Robin Holmes, Anthony David Banbrook, and Graeme Edward Minchin, for various claims including negligence, breach of contract, breach of fiduciary duty, and wrongful deduction of fees. The case revolves around the settlement of a previous lawsuit between Erwood and Glasgow Harley, where Minchin was appointed as Erwood's litigation guardian due to his mental health issues. Erwood is alleging that the defendants failed to protect his interests during the settlement process. The court found that Minchin did not breach his duties as a litigation guardian, and that Holmes did not fail to protect Erwood's interests or wrongly deduct fees. All of Erwood's claims against the defendants were dismissed. The court also noted the conduct of Erwood during the trial, including repeated adjournment requests and repetitive cross-examination.

Orders