Horspool v Glaister Ennor - [2016] NZHC 1386

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-741 [2016] NZHC 1386

BETWEEN
KELVIN FREDERICK HORSPOOL

Plaintiff

AND

GLAISTER ENNOR Defendant

Hearing: 30 May 2016

Counsel:

P L Rice for the Applicant
B A Vautier for the Respondent

Judgment:

24 June 2016

JUDGMENT OF DUFFY J

This judgment was delivered by me on 24 June 2016 at 12.00 pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar

Solicitors:
Haigh Lyon, Auckland
Glaister Ennor, Auckland

Counsel:
P L Rice, Barrister, Auckland

HORSPOOL v GLAISTER ENNOR [2016] NZHC 1386 [24 June 2016]

[1] The intending plaintiff, Mr Horspool, seeks an order for pre-commencement discovery under r 8.20 of the High Court Rules. The intended defendants oppose the application.

[2] The intended defendants are a solicitor (Mr Jones) and the firm of solicitors of which he is a partner (Glaister Ennor). They acted for Mr Horspool on the conveyance of a property (Unit 1102) he purchased off the plans in an apartment block known as Scene 3.

[3] Mr Horspool contends that Mr Jones and Glaister Ennor were in a conflict of interest and therefore in breach of the fiduciary obligations which they owed to him as their client. There are two aspects to the alleged conflict of interest.

[4] The first aspect of the intended claim is based upon a belief that Glaister Ennor acted for the majority of purchasers of the apartments at Scene 3 in circumstances where it did so for a set fee of $700. Mr Horspool contends that, had insufficient numbers of persons purchased apartments off the plans, the development would not have proceeded and therefore Glaister Ennor would have stood to lose the fees it anticipated earning. He contends that Glaister Ennor had an interest in seeing the sales proceed that was at odds with his own interest.

[5] The second aspect of the intended claim arises from the fact that in 2006, only a few months after Mr Horspool made final settlement on Unit 1102, a company that was managed by Glaister Ennor purchased the head lease to Scene 3. Mr Horspool contends that Glaister Ennor must have known about the opportunity to purchase the head lease several months in advance and therefore had an interest in ensuring that Mr Horspool, and other purchasers in his position, proceeded through to final settlement. In this regard he argues that there was a conflict between Glaister Ennor’s interests and his own.

Intended claim regarding pre-purchase advice

[6] Sometime in mid-late 2003, Mr Horspool became interested in purchasing an apartment off the plans in Scene 3, a multi-storey apartment building near the waterfront in Auckland. The vendor/developer was Tony Gapes, who was associated

with the Redwood Group; and the marketing agent was Pacific East Coast Real

Estate Pty Ltd.

[7] Mr Horspool says that he had no connection with Glaister Ennor prior to the purchase of the apartment and that he:

… must have agreed to a recommendation from the marketing agent to use Glaister…

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.

Continue reading Horspool v Glaister Ennor

Details

AGLC: Horspool v Glaister Ennor [2016] NZHC 1386
Case: [2016] NZHC 1386
Decision Date: 24 June 2016

CaseChat Overview and Summary

The case of Horspool v Glaister Ennor involved a dispute between a client and his former solicitor. The client, Mr Horspool, alleged that the solicitor, Glaister Ennor, was in a conflict of interest and therefore in breach of the fiduciary obligations they owed to him as their client. The intended claim was based upon two aspects. The first aspect was that Glaister Ennor acted for the majority of purchasers of the apartments at Scene 3 in circumstances where it did so for a set fee of $700. Mr Horspool contends that Glaister Ennor had an interest in seeing the sales proceed that was at odds with his own interest. The second aspect of the intended claim arises from the fact that in 2006, only a few months after Mr Horspool made final settlement on Unit 1102, a company that was managed by Glaister Ennor purchased the head lease to Scene 3. Mr Horspool contends that Glaister Ennor must have known about the opportunity to purchase the head lease several months in advance and therefore had an interest in ensuring that Mr Horspool, and other purchasers in his position, proceeded through to final settlement. The court was required to decide whether the application for pre-commencement discovery under r 8.20 of the High Court Rules was appropriate. The court found that the application for pre-trial discovery should be allowed. The court ordered that the intended defendants file an affidavit stating whether the documents set out in the application were in their control and to make the documents available for inspection to the intending plaintiff.

Orders