Jones v Stace Hammond Lawyers
[2022] NZHC 47
•27 January 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2021-404-001313
CIV 2021-404-001621
[2022] NZHC 47
UNDER Section 124 of the Districts Courts Act 2016 BETWEEN
GREGORY JOHN JONES
Appellant
AND
STACE HAMOND LAWYERS
Respondent
Hearing: 28 October 2021 (via VMR) Appearances:
Appellant in person
O J Ward & P J Morris for the Respondent
Judgment:
27 January 2022
JUDGMENT OF VAN BOHEMEN J
This judgment was delivered by me on 27 January 2022 at 2.00pm Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
Greg Jones, Barrister, Auckland Stace Hamond Lawyers, Auckland
JONES v STACE HAMOND LAWYERS [2022] NZHC 47 [27 January 2022]
Introduction
[1] Gregory Jones appeals the decision of Judge Nicola Mathers in the District Court at Auckland entering summary judgment against Mr Jones in the sum of
$14,900.00 plus interest and costs for fees owing to Stace Hammond Lawyers, a firm of solicitors, who acted for Mr Jones in a civil proceeding.1 Mr Jones also appeals Judge Mathers’ costs award in which she granted costs in favour of Stace Hammond on a 2B basis but with an uplift of 50 per cent.2
[2]Mr Jones, who represents himself, also seeks leave to:
(a)file his appeal out of time because he was a day late in filing his notice of appeal;
(b)file an affidavit sworn on 26 October 2021, two days before the hearing of his appeals in this proceeding, and
(c)file an affidavit prepared by Mr Jones but which had not been sworn, because of the COVID-19 lockdown in Auckland from August to December 2021.
[3] Stace Hammond opposes Mr Jones’s applications for leave for an extension of time and for leave to file further evidence.
Relevant background
[4] Mr Jones is a barrister. He has also been involved in the bloodstock industry. In recent years, Mr Jones has been in a number of disputes concerning his bloodstock interests.
[5] In December 2018, Mr Jones instructed Stace Hammond to act for him and a partnership involving himself and Mr Andrew Green (the partnership) in defending a claim by the Llanhennock Trust Partnership, trading as Wentworth Grange,
1 Stace Hammond Lawyers v Jones [2021] 10376.
2 Stace Hammond Lawyers v Jones DC Auckland CIV-2019-004-001690, 3 August 2021.
(Wentworth Grange), a thoroughbred stud farm near Cambridge. The claim is for unpaid agistment fees for the care of thoroughbreds owed by Mr Jones and the partnership.
[6] In early December 2018, at a meeting involving Mr Jones and Mr Green, and two Stace Hammond partners, Mr Cochrane and Mr Connolly, the issue of Stace Hammond having previously acted for Te Akau Stud, another thoroughbred stud farm, was raised.
[7] Following that meeting, Mr Jones sent emails to Mr Connolly and Mr Cochrane asking if Stace Hammond’s relationship with Te Akau placed them in a difficult position. Mr Jones noted that he understood the situation around conflicts. Mr Connolly and Mr Cochrane replied saying that they did not see any obvious conflict in Stace Hammond acting for Mr Jones. Mr Cochrane also raised the potential for any conflict between the interests of Mr Jones and Mr Green that would preclude Stace Hammond from acting for the partnership as well as Mr Jones personally. Mr Cochrane recommended that Mr Green seek independent legal advice.
[8] Following those exchanges, Mr Jones provided Mr Cochrane with a copy of the statement of claim by Wentworth Grange with Mr Jones’s handwritten comments. Mr Jones also advised Mr Cochrane that Stace Hammond were instructed by both Mr Jones and Mr Green.
[9] On 19 December 2018, Stace Hammond sent Mr Jones their letter of engagement in relation to their acting personally for Mr Jones. Stace Hammond also sent Mr Jones and Mr Green their letter of engagement in relation to their acting for the partnership.
[10] Mr Green signed the acknowledgement at the end of the letter of engagement confirming his acceptance of the terms of engagement. Mr Jones did not sign the acknowledgement at the end of either of the letters of engagement sent to him.
[11] Through the rest of December 2018 and up to the end of March 2019, Mr Jones engaged with Mr Cochrane, and also with Mr Michael Ring QC of counsel, on how to
defend the Wentworth Grange claim. There is no evidence of any further discussion through this period about a possible conflict of interest in relation to the Te Akau Stud.
[12] On 1 February 2019, 28 February 2019, and 26 March 2019, Stace Hammond sent invoices to Mr Jones individually and to Mr Jones and Mr Green as partners for attendances on the proceeding. None of the invoices was paid despite follow-up reminders, the sending of accounts rendered statements and requests to discuss payment.
[13] In early April, Mr Ring sent Mr Jones two emails commenting on draft statements of defence to the Wentworth Grange claim that Mr Jones had prepared. Mr Ring noted that the draft statements of defence included allegations of dishonesty, fraud and an intention to cause harm. Mr Ring informed Mr Jones that, because of their obligations under the Conduct and Client Care Rules,3 neither he nor Stace Hammond could act as counsel or solicitors on the record unless they had taken steps to ensure that reasonable grounds existed for making such allegations.
[14] On 8 April 2019, Mr Cochrane sent an email to Mr Jones and Mr Green setting out his concerns about an apparent conflict between what Mr Jones and Mr Green were each seeking to achieve in defending the Wentworth Grange claim. Mr Cochrane set out the basis on which Stace Hammond would continue to act for the partnership and the matters that needed to be addressed before Stace Hammond could continue to act. These included Stace Hammond’s unwillingness to put its name to the statement of defence prepared by Mr Jones because of its obligations under the Conduct and Client Care Rules and because Mr Jones had not provided clear instructions on the breaches alleged against Wentworth Grange.
[15] On 9 April 2019, Mr Cochrane sent a lengthy email to Mr Jones, Mr Green and Mr Jones summarising his understanding of the position after the exchange of many emails over the preceding days. Mr Cochrane’s summary included that:
3 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008.
(a)Mr Jones would represent himself in the claim against him individually and was going to prepare a draft statement of defence on behalf of himself;
(b)Mr Jones wanted Stace Hammond to continue to be solicitors on the record for the partnership;
(c)Mr Ring had given reasons why he could not continue to act for the partnership given the nature of the allegations involved and the lack of documents;
(d)Mr Cochrane shared the same concerns and was not prepared to put his name to the allegations in an amended statement of defence for the partnership that had been drafted by Mr Jones without supporting evidence;
(e)Mr Cochrane considered that he had good cause to terminate the retainer because of instructions that would require him to breach his professional obligations, a failure to pay fees and a failure to provide instructions in a sufficiently timely manner.
[16] Later that day, Mr Jones advised Mr Cochrane that he would file the defences and would advise the solicitors for Wentworth Grange what was happening. Mr Jones said he did not expect Stace Hammond to do anything more from that point.
[17] On 10 June 2019, Mr Cochrane sent emails to Mr Jones individually and to the partnership asking when Stace Hammond could expect payment of the amounts owed. The emails indicated that debt recovery action was likely if a resolution could not be achieved and that interest would accrue in respect of the amounts outstanding.
[18] Subsequently, Mr Green arranged to pay the amount owed by the partnership. Mr Jones took no action.
[19] On 28 August 2019, Stace Hammond sent Mr Jones a letter of demand for payment of the amount owed by Mr Jones personally and Mr Jones’s share of the sum owed by the partnership.
[20]Later that day, Mr Jones sent emails to Mr Cochrane in which Mr Jones:
(a)apologised for the inconvenience of the latest correspondence;
(b)said he was happy to talk to Mr Cochrane but did not think then was the right time so Mr Cochrane would have to do what he must do;
(c)said it was never his intention to use Stace Hammond’s resources in a way that led to this outcome but that he was not in a position to resolve the account at the moment; and
(d)said he would be ready to talk to Mr Cochrane in about two months but could not guarantee a satisfactory outcome even at that stage.
The present proceeding
[21] On 4 September 2019, Stace Hammond filed its statement of claim seeking judgment in the sum of $25,012.37, being the amount then owing for unpaid invoices issued to Mr Jones and to the partnership.
[22] On 29 October 2019, Mr Jones filed his statement of defence in which he admitted that Stace Hammond had demanded payment of $25,012.37 but denied that the amount was due and owing. Mr Jones also alleged, as a further and alternative defence, that it was an implied term of Stace Hammond’s conditions of engagement that Stace Hammond would act in good faith towards Mr Jones. He also said that Stace Hammond were aware of Mr Jones’s extensive bloodstock interests and existing and potential litigation concerning that bloodstock, including disputes that may occur between Te Akau Stud and Mr Jones.
[23] On 6 December 2019, Stace Hammond applied for summary judgment against Mr Jones for the sum of $16,012.37, being the amount then owing as a result of payments made by Mr Green.
[24] On 10 September 2020, Mr Jones filed a notice of opposition to Stace Hammond’s application for summary judgment. In an affidavit of the same date, Mr Jones said, among other things, that the particulars of his dispute with Te Akau were, in his opinion, irrelevant to the proceedings between himself and Stace Hammond. However, Mr Jones also said that Stace Hammond’s involvement in the Wentworth Grange proceeding was fraught from the outset because of their relationship with Te Akau Stud. In addition, Mr Jones expressed his unhappiness that, according to Mr Jones, Mr Cochrane had been looking at Mr Ring with a smile on his face during a meeting at which Mr Jones had described a number of confidential and private issues that had affected him and his family.
[25] On 3 November 2020, Judge A-M Bouchier dismissed Mr Jones’s application to cross-examine Mr Cochrane and Mr Connolly.4
[26] On 19 April 2021, Mr Jones filed an amended statement of defence and counterclaim. In his counterclaim, Mr Jones alleged, among other things, that:
13.… parties including Te Akau Stud and its principal … and Cambridge Vet Services Limited acted in a manner that was intended to cause harm and financial loss to [Mr Jones] and constituted a breach of the Harassment Act 1997.
14.[Stace Hammond] and its partners were aware of the actions taken by parties including those referred to above and that [Mr Jones] had for some time been subjected to a conspiracy of the type referred to and breaches of privacy and harassment.
[27] Mr Jones also alleged that, in the circumstances, the acceptance of instructions from Stace Hammond was unethical, in breach of its obligations of good faith and that Stace Hammond had become co-conspirators with a number of other parties, including Te Akau Stud and its principal, Mr Ellis.
4 Stace Hammond Lawyers v Jones [2020] NZDC 22797.
[28] Mr Jones sought an account of profits earned by Stace Hammond since his instruction, equitable damages disgorging those profits and punitive damages.
[29] On 16 June 2021, Judge Mathers gave summary judgment for Stace Hammond in the sum of $14,900.00 plus interest and costs. Judge Mathers later ordered Mr Jones to pay costs on a 2B basis with an uplift of 50 per cent, resulting in costs of $25,928.25 plus disbursements of $540.00.
The District Court judgment
[30] The District Court Judge recorded some of the history of the proceeding as submitted by Stace Hammond and Mr Jones. The Judge said:5
[3] This straightforward claim has taken on a life of its own more befitting substantial High Court proceedings. The plaintiff withdrew its services. The defendant failed to pay the fee note rendered by the plaintiff. Despite polite and reasonable requests from the plaintiff, and somewhat less moderate replies from the defendant, the summary judgment proceedings were filed. Mr Jones disputes the reason for the plaintiff’s withdrawal and has raised a number of defences, plus he has filed a counter-claim.
[31] The Judge noted that Stace Hammond said it had been exhausted and frustrated by the defences raised by Mr Jones and had offered to withdraw its claim if Mr Jones withdrew his counterclaim, but this offer had been rejected.
[32] The Judge recorded that she approached her decision upon the well-known principles regarding summary judgment applications as stated by the Court of Appeal in Krukziener v Hanover Finance Ltd,6 applying Pemberton v Chappell.7 The Judge said she had come to the clear view that Mr Jones’s consideration of the facts was coloured by historical issues he had with Te Akau Stud or in combination with a desire to run the plaintiff ragged. The Judge also considered that unrelated issues as to historical matters caused Mr Jones upset, leading to his desire to allege fraud and conspiracy.8
5 Stace Hammond Lawyers v Jones, above n 1.
6 Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307.
7 Pemberton v Chappell [1987] 1 NZLR 1 (CA).
8 Stace Hammond Lawyers v Jones, above n 1, at [8].
[33] The Judge found that the problems between Stace Hammond and Mr Jones arose when Mr Jones wished to allege fraud and it was this that had led to Stace Hammond discontinuing to act for Mr Jones. The Judge said the mention by Mr Jones of a conflict did not arise for some time, related to matters going back 20 years and was exaggerated and irrelevant to the defence of the summary judgment application. The Judge considered that Mr Jones’s allegations as to a conflict of interest or breach of bad faith lacked credibility and were improbable.9
[34] The Judge considered that Mr Jones’s other complaints such as Mr Cochrane smiling at Mr Ring, Mr Jones upset at the time of that meeting and Mr Jones’s allegations of conspiracy carried no weight and were inherently improbable in the context of a claim of bad faith.10 By contrast, the Judge found the affidavits filed by Stace Hammond as to the background and timing of events to be inherently credible and there was no credible evidence of bad faith against Stace Hammond. The Judge said she had few particulars or evidence about Mr Jones’s past difficulties with Te Akau Stud but that the Stud had nothing to do with the Wentworth Grange claim.11
[35] Applying the robust and realistic approach directed in Krukziener, the Judge was clearly of the view that Stace Hammond’s claim for summary judgment should succeed.12
[36] With regard to Mr Jones’s counterclaim, the Judge found that, as discussed in Grant v NZMC Ltd,13 there was no sufficient link between the application for summary judgment and the counterclaim such that it would be unjust to allow Stace Hammond to have judgment without bringing the counterclaim to account.14
Submissions by Mr Jones
[37] Mr Jones submits that the issue in the case is not his desire not to pay Stace Hammond but the propriety of the actions of Mr Jones and Stace Hammond and other
9 At [12].
10 At [13].
11 At [14].
12 At [15].
13 Grant v NZMC Ltd [1989] 1 NZLR 8.
14 Stace Hammond Lawyers v Jones, above n 1, at [18] – [22].
parties involved in a dispute with Mr Jones, part of which concerns the Wentworth Grange proceeding. The basis of Mr Jones’s defence is that Stace Hammond did not offer their services in good faith. Partners in the firm were aware of actions taken to cause Mr Jones financial harm and that one such party was the Te Akau Stud (in particular, its principle, Mr Ellis), for whom Stace Hammond had acted and had continued to act.
[38] Mr Jones disputes the District Court Judge’s acceptance that Mr Ring and Stace Hammond were right and Mr Jones wrong in relation to the availability of his defence to the Wentworth Grange claim. Mr Jones sets out the nature and bases of the defence he had intended to make to the claim. These were, in essence, that actions had been taken by Wentworth Grange to compromise the profitability of Mr Jones’s horses and that his horses had been intentionally harmed.
[39] Mr Jones goes into some detail on these matters and, in support of his allegation of conspiracy in the bloodstock industry to cause him harm, seeks leave to adduce the sworn affidavit, which exhibits material Mr Jones prepared for use in another proceeding, and the unsworn affidavit, which exhibits material concerning treatment of a horse in Australia owned by Mr Jones.
[40] Mr Jones says it was an implied term of the contract of retainer between himself and Stace Hammond that Stace Hammond should not have accepted instructions where it was likely that Stace Hammond would need to terminate its services because of its relationship with another client, namely Te Akau Stud and Mr Ellis. He also says it was an implied term that Stace Hammond could charge him only for services that were reasonable having regard to the need for the retainer to be terminated. Mr Jones also says Stace Hammond was in breach of its fiduciary obligations to him and cannot properly charge him for services provided in the face of so serious a breach. For these reasons, Stace Hammond’s services were of no value to Mr Jones.
[41] Mr Jones says the Court is entitled to assume that the conspiracy he has alleged may exist and that there is a link between that conspiracy and Stace Hammond’s client,
Te Akau Stud and Mr Ellis, based on Mr Jones’s allegations and in the absence of evidence to the contrary.
[42] Mr Jones also says that Mr Cochrane and Mr Connolly were aware of the attitude of various parties towards him. He refers to the fact that Mr Connolly had been the one to raise the possibility of a conflict with Te Akau Stud. Mr Jones also points to a discrepancy between what Stace Hammond had said in a letter to him – namely that Mr Connolly had never had any connection with Te Akau Stud – and Mr Connolly’s advice to him that he had once attended a function at Te Akau Stud. Mr Jones also says the smile Mr Cochrane made to Mr Ring at what had been a difficult meeting for Mr Jones supports his case that Mr Cochrane and Mr Ring knew “what was going on.”
Analysis
[43]There are three questions before the Court on this appeal:
(a)Should Mr Jones be granted leave to file his appeal out of time?
(b)Should Mr Jones be granted leave to adduce additional evidence to support his allegations of a conspiracy?
(c)Should the Court uphold Mr Jones’s appeal against the District Court’s decision to grant summary judgment against him in the sum of
$14,900.00 plus interest and costs?
Application for leave to appeal out of time
[44] As Mr Morris, counsel for Stace Hammond, acknowledged, there is no prejudice to Stace Hammond in granting Mr Jones leave to file his appeal one day late.
[45]For this reason, I grant Mr Jones leave to file his appeal out of time.
Application for leave to adduce additional evidence
[46] In the affidavit sworn on 26 October 2021, Mr Jones says he wishes to adduce further evidence both as to the existence of a general conspiracy and one in which Mr Ellis is involved. Exhibited to the affidavit is an extract from an affidavit Mr Jones prepared for use in a separate proceeding which he has subsequently commenced. Mr Jones also wishes to file an unsworn affidavit which exhibits pleadings and affidavits in a proceeding brought against Mr Jones in New South Wales for non- payment of fees.
[47] The material exhibited to Mr Jones’s affidavit of 26 October 2021 is bizarre. The first extract seeks to draw links between Mr Jones’s medical condition, a car licence plate, the lack of racing success of a horse stabled at the Te Akau Stud and a phone call from a medical specialist, for the purpose of showing that Mr Jones had been subject to coordinated pressure. The second extract seeks to draw links between the success of horses stabled at the Te Akau Stud; Mr Ellis’s good faith in relation to the assessment and training of such horses; the positioning of pens by Mr Jones’s staff as indicative of warnings to Mr Jones; Mr Jones encountering Mr Ellis when driving from Auckland and Hamilton; the fact Mr Ellis called Mr Jones when Mr Jones was in a meeting with Mr Connolly; and the fact Mr Connolly said in evidence in this proceeding that he had no connection with or interest in the Te Akau Stud after previously telling Mr Jones he had once been to a social function at the Stud.
[48] As Venning J said with respect to similar allegations in affidavits sworn by Mr Jones in a separate proceeding brought by Mr Jones, this material raises issues as to Mr Jones’s competence and current state of mind.15 More specifically, the material provides no credible support to the existence of the alleged conspiracy and nothing of any probative value to link the alleged conspiracy to Stace Hammond’s ability to act for Mr Jones in defending the Wentworth Grange claim.
[49] The unsworn affidavit and the material regarding the New South Wales proceeding are neither probative of any conspiracy nor otherwise relevant to the current appeals. In his unsworn affidavit, Mr Jones refers to the exhibited report from
15 Jones v New Zealand Bloodstock Finance and Leasing Ltd [2021] NZHC 3220.
a senior lecturer in equine internal medicine which states that a foal’s condition was misdiagnosed, and that the misdiagnosis would impact the value of the foal’s mother. Mr Jones says the report is evidence of intentional mistreatment by the equine hospital that has brought a claim against Mr Jones for unpaid fees and is another attempt by those wishing to inflict loss upon Mr Jones’s thoroughbred business by creating another difficulty.
[50] Despite his involvement in the bloodstock industry, Mr Jones has no specialist expertise in the treatment of horses. Whatever the report stands for, there is nothing in it that would support allegations of deliberate mistreatment, fraud or conspiracy; nor is there anything in that report that bears on Mr Jones’s defences to Stace Hammond’s claim.
[51] For the above reasons, I am satisfied that the evidence for which Mr Jones seeks leave to adduce are neither probative nor relevant. Accordingly, I dismiss Mr Jones’s application to adduce that evidence.
Approach on appeal
[52] Mr Jones’s appeal is a general appeal. Accordingly, the principles set out by the Supreme Court in Austin, Nichols & Co Inc v Sticting Lodestar apply to the extent the District Court judgment involved findings of fact and the evaluation of factual matters.16 This Court is free to reach its own view on such matters, based on the evidence before the District Court. While in overturning a decision this Court must be persuaded that the District Court was wrong, in reaching that view no deference is required particularly where, as here, the District Court made its decision on the basis of affidavit evidence and did not have any advantage in hearing and seeing witnesses and in assessing credibility.
16 Austin, Nichols & Co Inc v Sticting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13].
Principles applicable on summary judgment
[53] Rule 12.2(1) of the High Court Rules 2016 provides that the Court may give summary judgment against a defendant if the plaintiff satisfies the Court the defendant has no defence.
[54] As the District Court Judge said, the principles on summary judgment are summarised in the Court of Appeal’s decision in Krukziener v Hanover Finance Ltd:17
[26] The principles are well settled. The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried: Pemberton v Chappell [1987] 1 NZLR 1 (CA) at 3. The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated: MacLean v Stewart (1997) 11 PRNZ 66 (CA). The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as, for example, where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable: Eng Mee Yong v Letchumanan [1980] AC 331 (PC) at
341. In the end the Court's assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it: Bilbie Dymock Corp Ltd v Patel (1987) 1 PRNZ 84 (CA).
[55] The Court of Appeal observed, in Jowada Holdings Ltd v Cullen Investments Ltd, that once a plaintiff has established a prima facie case, if the defence raises questions of fact on which the Court’s decision may turn, summary judgment will usually be inappropriate.18 On the other hand, where, despite the differences on certain factual matters, the lack of a tenable defence is plain on the material before the Court, summary judgment will in general be entered, even if legal arguments must be ruled on to reach the decision.19
Stace Hammond’s claim
[56] Mr Jones does not dispute that he instructed Stace Hammond to act for him in his dispute with Wentworth Grange or that the fees invoiced to him were incurred in carrying out his instructions. While Mr Jones did not sign the letter of engagement
17 Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307 at [26].
18 Jowada Holdings Ltd v Cullen Investments Ltd CA248/02, 5 June 2003 at [28].
19 At [29].
sent to him in December 2018, he accepts that there was a contract of retainer between himself and Stace Hammond.
[57] Subject to Mr Jones’ defences and counterclaim, therefore, there is no dispute that Stace Hammond’s claim is validly made.
Mr Jones’s defences, claim for set-off and counterclaim
[58] Mr Jones defences, based on alleged breaches of implied terms in the contract of retainer and of fiduciary duty, and his claim for equitable set-off, are principally contingent on Mr Jones establishing that there is a tenable basis to his allegations that there was a conflict of interest in Stace Hammond acting for Mr Jones and there is a general conspiracy in the bloodstock industry to do harm to him and that the conspiracy was relevant to Stace Hammond’s ability to act for Mr Jones.
Is there a tenable case that there is a relevant conflict of interest?
[59] On the evidence before the Court, the only established facts relevant to the alleged conflict of interest are that Stace Hammond previously acted for the Te Akau Stud and that Mr Jones has previously been in dispute with the Te Akau Stud and Mr Ellis. There is no evidence as to how those facts are relevant to Stace Hammond’s ability to act for Mr Jones in his defence of the claim by Wentworth Grange.
[60] Because the onus is on Stace Hammond to establish that Mr Jones has no tenable defence, Mr Jones and says, in effect, that, on an application for summary judgment, it is sufficient for him to assert that there is a conflict of interest and a conspiracy as alleged, even if he provides no particulars to support those assertions.
[61]Mr Jones is not correct in that regard.
[62] In Pemberton v Chappell, Somers J said that if a defendant does not particularise its defence so as to show an issue of fact which ought to be tried, a plaintiff’s statement of claim verified or sworn by the plaintiff and the sworn belief that there is no defence will be sufficient to discharge the onus on the plaintiff.20
20 Pemberton v Chappell, above n 7, at 3.
Somers J also said that if a defendant wishes to resist summary judgment, it must file an affidavit raising an issue of fact or law and give reasonable particulars of the matters which the defendant claims ought to be put in issue. In that way, a fair and just balance will be struck between a plaintiff’s right to have its case proceed to judgment without tendentious delay and the defendant’s right to put forward a real defence.21
[63] In the same decision, Casey J placed some emphasis on a defendant providing evidence of independent support for its position when considering whether the defendant has established that it has an arguable case.22
[64] The case advanced by Mr Jones falls within the categories of case described by both Somers and Casey JJ. Mr Jones’s affidavits, pleadings and submissions make general assertions as to the existence of a conflict of interest but provide no particulars of that alleged conflict. Nor has Mr Jones provided any evidence of independent support for his allegations.
[65] The only available evidence is that Stace Hammond acted for the Te Akau Stud on matters that are not alleged to be connected in any material way with Mr Jones’ dispute with the Stud and Mr Ellis. It falls well short of providing any tenable basis for concluding that Stace Hammond had a conflict of interest in acting for Mr Jones in his separate dispute with Wentworth Grange.
[66] In addition, the conduct of Mr Jones himself, as well as the conduct of Stace Hammond, count strongly against the Court accepting that there is any tenable basis to Mr Jones’s allegation of a conflict of interest.
[67] It is common ground that the question of a possible conflict of interest was raised at an early meeting involving Mr Jones, Mr Green, Mr Cochrane and Mr Connolly. Following that meeting, Mr Jones himself asked where matters stood with respect to the possible conflict. Mr Connolly and Mr Cochrane advised Mr Jones that there was no obvious conflict. The following day, Mr Jones gave Mr Cochrane a marked up copy of the Wentworth Grange statement of claim, clearly for the purpose
21 At 3.
22 At 8.
of obtaining Mr Cochrane’s advice. The next day, Mr Jones confirmed to Mr Cochrane that Stace Hammond were instructed by himself and Mr Green.
[68] Clearly, the person with the greatest knowledge of any potential conflict of interest arising from Mr Jones’s dealings with Te Akau Stud and Mr Ellis was Mr Jones himself. Mr Jones is an experienced litigator. He understands the situation concerning conflicts – as he said himself in an email to Mr Cochrane. If there really was a real possibility of a conflict of interest, Mr Jones was well placed to provide evidence of that conflict. He did not do so when advised by Mr Cochrane and Mr Connolly that they perceived no conflict and has not done so in this proceeding.
[69] As the Court of Appeal said in Krukzeiner, the Court need not accept uncritically evidence that is inherently lacking in credibility or is inherently improbable. For the reasons discussed above, I am satisfied that the evidence that Mr Jones has advanced in support of the alleged conflict of interest is inherently lacking in credibility and is inherently improbable. Mr Jones has not satisfied me, therefore, that he has a tenable defence, whether in contract or in alleged breach of fiduciary duty, or a tenable claim for equitable set-off, based on conflict of interest.
[70] For completeness, I record that Mr Jones’s submissions as to whether he had a credible defence to the Wentworth Grange claim are irrelevant to Stace Hammond’s right to recover their fees and to the defences pleaded by Mr Jones.
Is there a tenable case based on the alleged conspiracy?
[71] Mr Jones’s allegations regarding a conspiracy against him in the bloodstock industry do not require close examination. The allegations lack cogency and are inherently incredible.
[72] The general allegations that Mr Jones makes in his affidavit of 18 April 2021 of harassment of Mr Jones and his family and of mistreatment of horses owned by Mr Jones are unsupported by any coherent and relevant particulars. Whatever credence may be given to the video of a horse sent to Australia, which video Mr Jones invited the District Court and the High Court to view, there is nothing in Mr Jones’s
pleadings, affidavits or submissions to explain how that is relevant to Mr Jones’s defence to the Stace Hammond claim for unpaid legal fees.
[73] For the reasons already given, I have dismissed Mr Jones’s application to adduce further evidence in support of his allegations of a conspiracy. As should be apparent from those reasons, even if that evidence had been admitted, it would not have assisted Mr Jones.
[74] For all these reasons, I am satisfied that Mr Jones has fallen well short of establishing a tenable basis for his allegation that there is a conspiracy against him or that, if there is a conspiracy against him, it is relevant to Stace Hammond’s claim.
The counterclaim
[75] Mr Jones’s counterclaim is predicated on there being a conspiracy against him. For the reasons already given, I do not accept that Mr Jones has established a tenable basis for his asserted defence based on the existence of such a conspiracy, even in the context of a summary judgment application.
[76] In making a counterclaim based on conspiracy, Mr Jones, as a barrister, is subject to r 13.8 of the Conduct and Client Care Rules. That rule requires him not to raise allegations of fraud, dishonesty or other reprehensible conduct unless he has taken reasonable steps to ensure that reasonable grounds exist for making the allegations.
[77] Mr Jones’s pleadings that that there was a general conspiracy against him and that Stace Hammond became co-conspirators in that conspiracy lack any particulars of Stace Hammond’s involvement to support those allegations or to link Stace Hammond to those allegations. Mr Jones’s evidence regarding the smile said to have been exchanged between Mr Ring and Mr Cochrane, even if true, carries no probative weight.
[78] For these reasons, I am satisfied that Mr Jones’s counterclaim provides no adequate basis for denying Stace Hammond’s application for summary judgment.
Result on substantive appeal
[79]I am satisfied that:
(a)Mr Jones has failed to pay fees properly invoiced by Stace Hammond for legal services provided to Mr Jones;
(b)Mr Jones does not have a tenable defence to the Stace Hammond claim or a tenable linked counter-claim to that claim;
(c)The District Court Judge made no error in granting summary judgment in favour of Stace Hammond.
[80] For these reasons, I dismiss Mr Jones’s appeal against the District Court Judge’s decision of 16 June 2021.
Costs appeal
[81] Neither Mr Jones nor Mr Morris addressed the Court in detail on the appeal against Judge Mathers’ costs decision.
[82] As is apparent from the above analysis, I am satisfied there is no merit in any of the arguments advanced by Mr Jones. Whether or not Mr Jones is genuine in his belief in the positions he advocated before the District Court and this Court, as an experienced practising barrister, Mr Jones cannot escape responsibility for putting Stace Hammond to unnecessary expense in responding to propositions that had no prospect of success.
[83] For these reasons, I am satisfied that the District Court Judge’s decision to award costs to Stace Hammond on a 2B basis but with a 50 per cent uplift was appropriate. Accordingly, I dismiss Mr Jones’s appeal against the District Court Judge’s costs decision of 3 August 2021.
Costs on this appeal
[84] Stace Hammond are entitled to costs on a 2B basis. If Stace Hammond wish to seek increased costs, they may file a memorandum by 16 February 2022.
[85] Any memorandum by Mr Jones in reply should be filed by 9 March 2022. Neither memorandum should exceed 6 pages.
G J van Bohemen J
5
2
1