Gillibrand v Swanepoel - [2018] NZHC 2700

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2014-488-129 [2018] NZHC 2700

BETWEEN
CHRISTIAN JOHN GILLIBRAND and

MARY CAECILIA GILLIBRAND First Plaintiffs

CHRISTIAN JOHN GILLIBRAND Second Plaintiff

AND

GEORGE PETER SWANEPOEL First Defendant

ANDREW PETER HOLGATE Second Defendant

On the papers: [ ]

Appearances:

C T Patterson for the Plaintiffs
H M Twomey for the Defendants

Judgment:

24 October 2018

JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 24 October 2018 at 11:00am
pursuant to Rule 11.5 of the High Court Rules.

…………………………………
Deputy Registrar

Solicitors:
KP Legal (Kirstin Poole), Grey Lynn, Auckland for the Plaintiffs Robertsons (H M Twomey/S Watson) Auckland, for the First Defendant Counsel:
Chris Patterson Ltd ( E J Grove), Auckland for the Plaintiffs
Andrew Holgate, Whangarei, Second Defendant

GILLIBRAND v SWANEPOEL [2018] NZHC 2700 [18 October 2018]

[1] The plaintiffs apply for a stay of execution pending appeal. They are judgment debtors of the first defendant for $176,139. They sued the defendants, both lawyers, for professional liability. They succeeded against the second, Mr Holgate, but failed against the first, Mr Swanepoel.1 Their debt is for costs.2 They appealed against the judgment dismissing their claim. The Court of Appeal has heard the appeal but has not given its decision yet. They have also appealed against the costs decision, but that has not been heard.

[2] They filed their application in July 2018. Toogood J gave agreed directions on

25 July for a notice of opposition and for submissions to be filed with a view to the application being decided on the papers. While the parties complied with those directions, the file was not referred to a judge for decision. I did not become aware of the matter until the file was referred to me for another matter, the plaintiffs’ examination of the second defendant.

The substantive proceeding

[3] The Gillibrands sued the defendants in negligence. Woodhouse J heard the case in February and March 2016 and gave his judgment on 6 June 2017.3 Mr and Mrs Gillibrand sued as trustees of the Gillibrand Family Trust. Mr Chris Gillibrand sued as beneficiary of his father’s estate. The father, Gordon, had died in a Bupa rest home in 2011. At his death there were outstanding rest home fees. Mr Gillibrand was the executor of his father’s estate. The main asset of the estate was a debt of $350,000 payable by the trustees of the Gillibrand Family Trust to Gordon. Mr Chris Gillibrand was keen to avoid paying the Bupa account. The Gillibrands engaged Mr Swanepoel to act as their solicitor. Mr Holgate, a barrister, acted in proceedings brought by Bupa to remove Mr Gillibrand as executor. The matter went very badly for the Gillibrands. Mr Gillibrand was removed as executor.4 A Whangarei lawyer was appointed as executor. The debt to Bupa was upheld. The whole exercise ended up costing the Gillibrands much more than if they had paid the rest home…

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] NZHC 2700
Decision Date: 24 October 2018

CaseChat Overview and Summary

The plaintiffs, the Gillibrands, applied for a stay of execution of a costs order pending their appeal against the judgment dismissing their claim for professional negligence against the defendants, lawyers Swanepoel and Holgate. The High Court awarded costs of $176,139 to Swanepoel. The Gillibrands have appealed against the judgment dismissing their claim for professional negligence and against the costs order. The Court of Appeal heard the appeal against the judgment, but has not yet given its decision. The appeal against the costs order was filed late and requires leave to proceed. The court considered the principles governing applications for a stay of execution pending appeal and found that the Gillibrands had arguable appeals. The court considered the merits of granting a stay and found that while Mr Swanepoel was entitled to the fruits of his judgment, a stay was justified to avoid unnecessary hardship to the Gillibrands. The court held that if Mr Swanepoel took enforcement steps while the appeals were pending, he should be allowed to do so, but leave was reserved to stay enforcement if it appeared that any enforcement steps may bite before the result of the costs appeal was known. The application for a stay was adjourned to allow Mr Swanepoel to take enforcement steps, but with leave reserved to bring the application on again if necessary. The court did not order costs on this decision, but gave leave for a party to seek costs on the papers.

Orders