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 DefendantGRAEME 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,…
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- Case
- [2019] NZHC 2049
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CaseChat Overview and Summary
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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