Gillibrand v Swanepoel

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 106/2018
[2019] NZSC 9

BETWEEN	CHRISTIAN JOHN GILLIBRAND AND MARY CAECILIA GILLIBRAND (AS TRUSTEES OF THE CHRIS AND MARY GILLIBRAND FAMILY TRUST) Applicants
AND	GEORGE PETER SWANEPOEL Respondent

Court:	William Young, Glazebrook and Ellen France JJ
Counsel:	C T Patterson and E J Grove for Applicants H M Twomey and S V Curlett for Respondent
Judgment:	21 February 2019

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.
B Costs of $2,500 are awarded to the respondent.

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REASONS

Mr and Mrs Gillibrand, as trustees of their family trust, sued their solicitor (Mr Swanepoel) and their barrister (Mr Holgate) for negligently conducting proceedings brought against them. The High Court found the barrister negligent but not the solicitor.[1] The Gillibrand’s appeal to the Court of Appeal against the latter finding was unsuccessful.[2]
[1]Gillibrand v Swanepoel [2017] NZHC 1209 (Woodhouse J).
[2]Gillibrand v Swanepoel [2018] NZCA 467 (Miller, Cooper and Winkelmann JJ).
Mr and Mrs Gillibrand now seek leave to appeal to this Court against the Court of Appeal’s finding that the trial Judge had not erred in admitting the evidence of Mr Darlow as expert evidence.[3] Mr Darlow’s evidence had been to the effect that in general Mr Swanepoel had acted as a reasonably competent solicitor would have acted when briefing a barrister.

Our assessment

[3]At [74]–[77].

The proposed appeal is tied to the facts of this particular case. It therefore does not raise any matters of general, public or commercial importance. Nor does anything raised by the applicants suggest any risk of a miscarriage of justice.[4]

Result

[4]Junior Farms Ltd v Hampton Securities Ltd (in liq) [2006] NZSC 60, [2006] 3 NZLR 522 at [4]–‍[5] deals with the miscarriage of justice ground in civil cases.

The application for leave to appeal is dismissed.
Costs of $2,500 are awarded to the respondent.

Solicitors:
Woodward Chrisp Lawyers, Gisborne for Applicants
Robertsons, Auckland for Respondent

CaseChat Overview and Summary

The case of Gillibrand v Swanepoel involves a legal dispute between Christian John Gillibrand and Mary Caecilia Gillibrand, as trustees of their family trust, and their former solicitor, George Peter Swanepoel. The Gillibrands sought to hold Swanepoel liable for negligently conducting proceedings against them, a claim that was initially assessed in the High Court and subsequently reviewed in the Court of Appeal. The applicants are now seeking leave to appeal to the Supreme Court, focusing specifically on the Court of Appeal’s decision regarding the admissibility of expert evidence from Mr Darlow, which was deemed to support Swanepoel's competence in briefing a barrister.

The primary legal issue before the Supreme Court was whether the applicants' proposed appeal raised any matters of general, public, or commercial importance that warranted further review. The Court also needed to determine if there was a risk of a miscarriage of justice in the lower court’s findings. The applicants argued that the trial judge had erred in admitting Mr Darlow’s expert evidence, which they believed should not have been allowed as it did not meet the necessary standards for such testimony.

The Supreme Court assessed the proposed appeal and concluded that it was not tied to any broader issues of public or commercial significance. The Court found that the evidence in question did not indicate any risk of a miscarriage of justice, as the trial judge’s decision was in line with established legal principles. Therefore, the Court dismissed the application for leave to appeal, reaffirming the findings of the Court of Appeal. As a result, the Court awarded costs of $2,500 to the respondent.

In conclusion, the Supreme Court upheld the lower courts’ decisions, rejecting the appeal and awarding costs to the respondent, thereby bringing the matter to a close.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established