Kawasaki v Piechazek - [2024] NZHC 401

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-000308

[2024] NZHC 401

BETWEEN
YOSHIE KAWASAKI and WILSON McKAY TRUSTEE COMPANY (246123)
LIMITED as Trustees of the Y K Family Trust

Plaintiffs

AND

RICHARD PIECHAZEK

First Defendant

RIVERCITY HOLDINGS LIMITED
Second Defendant

TAYLOR’D SOLUTIONS (2007)

LIMITED

Third Defendant

SOLAR CHEM ROOFING LIMITED

Fourth Defendant

Hearing: 2 February 2024

Counsel:

S Wroe for the Plaintiff

S Kilian for the First and Second Defendants

Judgment:

29 February 2024

JUDGMENT OF ASSOCIATE JUDGE BRITTAIN

This judgment was delivered by me on 29 February 2024 at 3.30 pm
Pursuant to r 11.5 of the High Court Rules.

…………………..
Registrar/Deputy Registrar

Solicitors / Counsel:
Kilian & Associates, Auckland S Wroe, Auckland

KAWASAKI v PIECHAZEK [2024] NZHC 401 [29 February 2024]

Introduction

[1] The plaintiffs, Yoshie Kawasaki (Ms Kawasaki) and Wilson McKay Trustee Company Ltd, are the trustees of the YK Family Trust (the Trust). In 2017, the Trust purchased a residential property at 64 Lucerne Road, Remuera, Auckland.

[2] In this proceeding, the Trust alleges that the house on the property was a defective building at the time of purchase. Negligent renovation work completed for the Trust then compounded the problems. The Trust’s causes of action include:

(a)a claim against the first defendant, Richard Piechazek (Mr Piechazek), alleging a negligent pre-purchase inspection of the house; and

(b)a claim against the second defendant, River City Holdings Ltd (River City), alleging negligent management of the renovation work carried out on the house after the Trust’s purchase.

[3] Mr Piechazek is a director of River City. They have engaged Mr Killian of Killian & Associates to represent them in this proceeding. Killian & Associates previously acted for Ms Kawasaki and the Trust from October 2015 to May 2017. The Trust has applied for an order restraining Mr Killian and Killian & Associates from acting for Mr Piechazek and River City in this proceeding.

[4]The Trust advances three grounds in support of its application:

(a)Killian & Associates is in possession of confidential information of Ms Kawasaki and there is a risk that this will be disclosed, likely to affect the Trust’s interests adversely.

(b)Mr Killian’s representation of Mr Piechazek and River City is not in the interests of justice. Mr Killian gained knowledge of Ms Kawasaki’s personality and character from acting for Ms Kawasaki from 2015 to 2017. This will give him an unfair advantage if he is required to examine and cross-examine witnesses at trial, and in conducting any settlement negotiations.

(c)There is a risk that Mr Killian may be called as a witness.

[5] Mr Piechazek and River City oppose the application. On their behalf, Killian & Associates argues that none of the grounds advanced by the Trust, whether considered in isolation or cumulatively, justify the order sought.

Background

[6] Ms Kawasaki engaged Killian & Associates when she and her brother were seeking to obtain residency in New Zealand through the investor category. Killian & Associates was engaged…

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 Kawasaki v Piechazek

Details

AGLC: Kawasaki v Piechazek [2024] NZHC 401
Case: [2024] NZHC 401
Decision Date: 29 February 2024

CaseChat Overview and Summary

The case of Kawasaki v Piechazek involved a dispute regarding the purchase of a residential property by the plaintiffs, Yoshie Kawasaki and Wilson McKay Trustee Company Ltd, the trustees of the YK Family Trust. The Trust alleged that the house was defective at the time of purchase and that subsequent renovation work exacerbated the issues. The plaintiffs brought claims against Richard Piechazek for a negligent pre-purchase inspection and against River City Holdings Ltd for negligent management of the renovation work. The case also involved a motion by the Trust seeking to restrain S Killian and his firm, Killian & Associates, from acting for Mr Piechazek and River City, due to concerns over potential conflicts of interest and confidentiality. The Trust argued that Mr Killian had acted for the Trust and Ms Kawasaki previously and may possess confidential information or have developed an unfair advantage in understanding Ms Kawasaki’s character and decision-making processes.

The court examined the legal principles surrounding a lawyer acting against a former client, focusing on whether there was a reasonable likelihood that the lawyer’s advice or conduct would be an issue in the proceeding, or that the lawyer would be called as a witness. The court also considered whether the lawyer possessed confidential information that, if disclosed, would adversely affect the former client’s interests. The court noted that while there is no blanket prohibition on a lawyer acting against a former client, there is an inherent jurisdiction to restrain counsel from appearing in a proceeding if it may impair the integrity of the judicial process.

After reviewing the evidence and submissions, the court found that there was no evidence that Mr Killian held confidential information that would adversely affect Ms Kawasaki’s and the Trust’s interests in the litigation. The court also found that Mr Killian’s prior knowledge of Ms Kawasaki, while not extensive, did not disqualify him from acting against her in this proceeding. The court concluded that there was no basis to restrain Mr Killian from acting for Mr Piechazek and River City, dismissing the Trust’s application.

In conclusion, the court dismissed the Trust’s application to restrain Mr Killian from acting for Mr Piechazek and River City. The court indicated that the defendants were likely entitled to costs, which would be determined on the papers if the parties could not agree on costs.

Orders