Gillibrand v Swanepoel - [2018] NZCA 467

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA356/2017
[2018] NZCA 467

BETWEEN	CHRISTIAN JOHN GILLIBRAND AND MARY CAECILIA GILLIBRAND AS TRUSTEES OF THE CHRIS AND MARY GILLIBRAND FAMILY TRUST Appellants
AND	GEORGE PETER SWANEPOEL First Respondent ANDREW PETER HOLGATE Second Respondent

Hearing:	8 May 2018
Court:	Miller, Cooper and Winkelmann JJ
Counsel:	C T Patterson for Appellants H M Twomey and S M Pasley for First Respondent No appearance for Second Respondent
Judgment:	29 October 2018 at 3.00 pm

JUDGMENT OF THE COURT

AThe application to amend the notice of appeal is granted.
BThe appeal is dismissed.
CThe appellants are jointly and severally liable to pay the respondent costs for a standard appeal on a band B basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

Chris and Mary Gillibrand sued their solicitor, George Swanepoel, and their barrister, Andrew Holgate, for negligently conducting proceedings brought against them. Woodhouse J found the barrister liable and the solicitor not. He awarded special damages ($63,950) and general damages ($5,000 for each of the Gillibrands) against Mr Holgate.[1]
[1]Gillibrand v Swanepoel [2017] NZHC 1209 [HC substantive judgment].
The Gillibrands appeal the judgment so far as it concerns Mr Swanepoel. They say that he too was negligent. They seek judgment for the same amount of special damages and $20,000 apiece by way of general damages.
Mr Holgate has taken no part in this appeal. His negligence is not in dispute. Nor is the quantum of special damages. The question is whether liability can be sheeted home to Mr Swanepoel.

Background

In 2003 Chris’ father, Gordon Gillibrand, suffered a stroke, and needed 24‑hour care. He went into a rest home run by Bupa Care Services Ltd in May 2003, and there he remained until his death in 2011. Chris made decisions on his behalf under a power of attorney granted some years previously.
In December 2003 Gordon sold his farm to Chris and Mary as trustees of the Chris and Mary Gillibrand Family Trust (the Trust). The Trust was set up specifically to purchase the farm, Chris explaining that Gordon had wanted the farm to go to his grandsons (Chris and Mary’s children). Gordon advanced the entire sale price of $505,000 to the Trust as a loan.
Initially Gordon paid the rest home fees, but by November 2004 he had run out of money. The Trust then paid the fees, but it appears that Chris and Mary had run into some financial difficulty, compounded in 2012 when Mary suffered serious injuries in a car crash. Payments fell into arrears in 2009.
As at 31 March 2010 the Trust’s financial statements disclosed a liability to Gordon in the form of a balance of $355,000, derived by deducting from the original loan the sum of $150,000 that the Trust had paid for rest home fees. That balance formed the only asset in Gordon’s estate.
Mr Swanepoel is a general and sole practitioner in Whangarei. He was…

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.

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Details

Case: [2018] NZCA 467
Decision Date: 29 October 2018 at 3.00 pm

CaseChat Overview and Summary

The appeal concerns the liability of the first respondent, Mr George Swanepoel, for professional negligence in his representation of the appellants, the Chris and Mary Gillibrand Family Trust. The appeal is dismissed and the Gillibrands ordered to pay the costs of the appeal. The Gillibrands sued their solicitor, Mr Swanepoel, and their barrister, Mr Holgate, for negligently conducting proceedings brought against them. The trial judge found Mr Holgate liable and awarded special damages and general damages against him. The Gillibrands appeal the judgment so far as it concerns Mr Swanepoel. They say that he too was negligent. They seek judgment for the same amount of special damages and $20,000 apiece by way of general damages. Mr Holgate has taken no part in this appeal. His negligence is not in dispute. Nor is the quantum of special damages. The question is whether liability can be sheeted home to Mr Swanepoel. The appeal was dismissed because the Court found that Mr Swanepoel exercised the amount of supervision appropriate for his role as solicitor, did not rely blindly on Mr Holgate’s advice and sought instructions from Chris directly. The Court found that Mr Swanepoel could have achieved nothing had he sought at an earlier stage to withdraw Mr Holgate’s instructions, for the Gillibrands would not have permitted it. The Court found that Mr Swanepoel had acted as a reasonably competent instructing solicitor would.

Orders