Kaye v McKinnon

IN THE SUPREME COURT OF NEW ZEALAND

SC 29/2016
[2016] NZSC 66

BETWEEN	ANTHONY PRATT KAYE AND MORVA KAYE Applicants
AND	NORRIS WARD MCKINNON Respondent

Court:	William Young, Glazebrook and OʼRegan JJ
Counsel:	Applicants in person M J Dennett and C A Robertson for Respondent
Judgment:	15 June 2016

JUDGMENT OF THE COURT

AThe application for leave to appeal is dismissed.
BThe applicants are to pay the respondent costs of $2,500.

____________________________________________________________________

REASONS

The proposed appeal arises out of the purchase of a garden centre business and associated land by the applicants and a company they controlled. For ease of discussion we will conflate the company with the applicants. Due in part to the negligence of their original solicitors, the applicants came to be involved in a dispute with the vendor and under pressure from their financier. They instructed the respondent law firm to act for them, as to the finalisation of the purchase and to sue the original solicitors. In the proceedings now in issue, the applicants alleged negligence on the part of the respondent in both respects.
In the High Court Peters J rejected the claims.[1]
[1]Norris Ward McKinnon v Kaye [2015] NZHC 1025.
The claim in relation to the finalisation of the purchase failed because (a) any negligence on the part of the respondent was not obvious and (b) the applicants’ contention that the respondent was negligent was not supported by expert evidence.[2] She also noted that there was a factual dispute as to the scope of the retainer. In respect of this dispute she accepted the evidence offered on behalf of the respondent.[3]
[2]At [30]–[38].
[3]At [34].
Peters J accepted that the respondent had been negligent in their advice as to, and handling of, the claim against the original solicitors.[4] The particular failings were in respect of some delay in issuing proceedings and, more significantly, in over‑estimating the damages which would be likely to be recovered.[5] She was, however, of the view that no loss had been sustained by the applicants.[6]
[4]At [44]–[46].
[5]At [43].
[6]At [64].
Her judgment was upheld by the Court of Appeal.[7] The Court held that the applicants’ contentions were unsound as to the scope of the retainer to finalise the purchase, with the result that the deficiencies they attributed to the respondent were in relation to services of a kind which the respondent had not agreed to provide.[8] The Court also observed that the solicitor concerned with this aspect of the case had “discharged his professional obligations with commendable skill and care in very difficult circumstances.”[9] In relation to the handling of the claim against the former solicitors, the Court upheld the result and reasons of Peters J.[10]
[7]Kaye v Norris Ward McKinnon [2016] NZCA 32 (Harrison, Fogarty and Toogood JJ).
[8]At [25]–[33].
[9]At [42].
[10]At [38]–[40].
The basis of the proposed appeal is extremely factual and we do not discern a question of public or general importance.
The applicants wish to put in issue the Court of Appeal’s conclusions as to the scope of the retainer (with the applicants placing substantial reliance on some general statements in the respondent’s client registration form) but the more significant aspect of the case, from their point of view, relates to the negligence of the respondent in relation to pursuit of the claim against the former solicitors. If leave were granted, the primary issue on appeal would be whether the advice given by the respondent as to quantum was material to commercial decisions which the applicants took which were to their later disadvantage. This would turn on whether the applicants had established that, absent the negligence of the respondent, they would have acted differently and would therefore have been better off.
Both Peters J and the Court of Appeal held that the respondent’s negligence was not causative of the loss claimed. There are thus concurrent findings of fact. As well, there is no appearance of error in the analyses which appear in the High Court and Court of Appeal judgments. The miscarriage of justice ground is therefore not engaged. [11]
[11]See Junior Farms Ltd v Hampton Securities Ltd (in liq) [2006] NZSC 60, [2006] 3 NZLR 522.
The applicants have complained about aspects of the hearing in the Court of Appeal and the later judgment, particularly as to the length of the hearing (which was shorter than they had anticipated), comments at it about them being accompanied by a McKenzie friend (who was allowed to remain despite no application having been made for a McKenzie friend), the late provision by the respondent of a list of issues and the judgment being “biased towards the legal profession”. We do not see these complaints as justifying leave to appeal.
Accordingly, the application for leave to appeal is dismissed.

Solicitors:
Kennedys, Auckland for Respondent.

CaseChat Overview and Summary

Kaye v McKinnon was an appeal against the decision of the Court of Appeal, which had upheld the decision of the High Court. The applicants, Anthony Pratt Kaye and Morva Kaye, sought to appeal against the Court of Appeal’s decision, which had dismissed their claims of negligence against the respondent, Norris Ward McKinnon. The applicants alleged that the respondent had been negligent in the finalisation of their purchase of a garden centre business and associated land, as well as in their advice and handling of a claim against their original solicitors.

The Supreme Court of New Zealand was required to determine whether the applicants had established a miscarriage of justice or other grounds for leave to appeal. The Court needed to assess whether the applicants had demonstrated that there was an error of law or fact that had resulted in a miscarriage of justice, or whether there were other compelling reasons to grant leave to appeal. This included examining whether the Court of Appeal had erred in its interpretation of the scope of the respondent’s retainer and whether the respondent’s negligence in the handling of the claim against the original solicitors had caused the applicants’ loss.

The Supreme Court dismissed the application for leave to appeal. The Court found that there was no miscarriage of justice in the Court of Appeal’s decision, as there were concurrent findings of fact and no apparent error in the analysis of the lower courts. The Court also noted that the applicants had not demonstrated any significant procedural unfairness during the Court of Appeal hearing that would justify an appeal. The Court held that the applicants had not established a question of public or general importance or any other compelling reason to grant leave to appeal.

The Supreme Court ordered that the applicants were to pay the respondent’s costs of $2,500. This reflected the Court’s view that the appeal was without merit and that the applicants had not demonstrated any grounds for leave to appeal that would warrant a different outcome.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established