Gillibrand v Swanepoel - [2017] NZHC 1209

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2014-488-129 [2017] NZHC 1209

BETWEEN
CHRISTIAN JOHN GILLIBRAND AND

MARY CAECILIA GILLIBRAND AS TRUSTEES OF THE CHRIS AND MARY GILLIBRAND FAMILY TRUST First Plaintiffs

CHRISTIAN JOHN GILLIBRAND Second Plaintiff

AND

GEORGE PETER SWANEPOEL First Defendant

ANDREW PETER HOLGATE Second Defendant

CHRISITAN JOHN GILLIBRAND AND MARY CAECILIA GILLIBRAND

Third Parties

Hearing:
29 February, 1, 2, 3, 4, 7 and 8 March 2016 and written

submissions 13 and 17 March 2016

Appearances:

C T Patterson and H P Holland for the First and Second
Plaintiffs and Third Parties
H M Twomey and S M Watson for the First Defendant
Second Defendant in person

Judgment:

6 June 2017

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 6 June 2017 at 4:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar
……………………………………

Solicitors / Counsel:
Mr C T Patterson, Barrister, Auckland
Ms H Twomey, Robertsons, Solicitors, Auckland
Mr A Holgate, Barrister, Whangarei

GILLIBRAND AND GILLIBRAND AS TRUSTEES OF THE CHRIS AND MARY GILLIBRAND FAMILY TRUST v SWANEPOEL & ANOR [2017] NZHC 1209 [6 June 2017]

CONTENTS

Para No.

Introduction [1]

The factual background  [9]
2003 to Gordon Gillibrand’s death in April 2011  [12]
Gordon Gillibrand’s death to the removal application:
April 2011 to August 2012  [25]
The first opposition and first affidavit  [39] Mr Holgate instructed as counsel: November 2012  [45] Change of position: the mistreatment allegations  [50] The second opposition: May 2013  [57] Bupa objections  [60] The third opposition and Mr Gillibrand’s second affidavit  [62] The third affidavit  [65] The Bupa debt proceeding  [68] Mr Holgate’s disclosure to media  [69] Bupa’s further objection and evidence in reply  [73] The Gillibrands’ statement to Campbell Live  [78] The removal decision  [80] The costs decision: November 2013  [83] Following the costs decision  [86]

Summary of claims: duty and breach [90]

Summary of claims: losses
Special damages for increased payments to Bupa and legal fees:
the overpayment claim [104]
Other claims [106]

Decision on Mr Gillibrand’s claim [107]

Mr Swanepoel’s defence to the trustees’ claims [113] Duty [114] Breach [115] Causation and loss: the overpayment claim [117] Defence to other claims [119]

Mr Holgate’s defence to the trustees’ claim and his cross-claims [120]

Evaluation: (1) were duties of care owed by the defendants to the trustees?
Mr Swanepoel [125]
Mr Holgate [136]

Evaluation: (2) was there breach of duty?  [138] Credibility  [140] Breach of duty: relevant legal principles
(1) The standard of care  [153]
(2) Acting on client’s instructions  [156] (3) Standard of care for advice on risk  [159] (4) Acting on counsel’s advice  [161]

The trust debt issue: was there breach by Mr Swanepoel?  [168] The trust debt issue: was there breach by Mr Holgate?  [180] The mistreatment allegations: was there breach by Mr Holgate?
(1) Introduction  [182]
(2) Mistreatment allegations not grounds to oppose removal                 [184] (3) Absence of evidence to support mistreatment allegations                 [190] (4) Mr Holgate’s lack of reasonable judgment and objectivity               [197] (5) Mr Holgate’s affirmative…

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: [2017] NZHC 1209
Decision Date: 6 June 2017

CaseChat Overview and Summary

The plaintiffs, Christian and Mary Gillibrand as trustees of the Chris and Mary Gillibrand Family Trust, and Christian Gillibrand in his personal capacity, sued George Swanepoel and Andrew Holgate for alleged negligence in the administration of the estate of Gordon Gillibrand, the plaintiffs' father. The defendants denied liability and counterclaimed. The plaintiffs claimed that the defendants were liable for losses incurred due to alleged breaches of duties of care owed to them. The defendants denied liability and counterclaimed. The High Court held that Mr Holgate was liable to the plaintiffs for negligence in the advice he gave in respect of the mistreatment allegations and for the indemnity costs awarded to Bupa. The counterclaim and third party claim were dismissed. Judgment was entered for the plaintiffs against Mr Holgate for $63,950 in special damages and $5,000 in general damages each. All other claims were dismissed. Costs were reserved pending further submissions.

Orders