Kaye v McKinnon

[2020] NZCA 333

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA333/2015
 [2020] NZCA 333

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

Court:	Miller and Collins JJ
Counsel:	Applicants in person M J Dennett for Respondent
Judgment: (On the papers)	6 August 2020 at 11.00 am

JUDGMENT OF THE COURT

AThe application for recall is dismissed.

BThe applicant must pay the respondent costs for a standard application on a band A basis with usual disbursements.

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REASONS OF THE COURT

(Given by Miller J)

1. This judgment addresses an application for recall of a judgment.[1]

   [1]Kaye v McKinnon [2016] NZCA 32.

2. The application is brought long after the judgment was given (in 2016) and sealed, and in circumstances where the Supreme Court refused leave to appeal.[2]

   [2]Kaye v McKinnon [2016] NZSC 66.

3. At trial the applicants argued that the applicants’ lawyer, Mr Barris, had a conflict of interest vis-à-vis a financier.  That allegation was rejected by Peters J.[3] The claim with respect to Mr Barris failed, the trial court reasoning that he recognised and discharged his professional obligations to them.  The applicants led no expert evidence to the contrary, despite warnings from the trial judge that their case must fail unless they could point to some error in what Mr Barris had done.  This Court unambiguously agreed with the trial Judge’s conclusions.  It appears the argument that Mr Barris had a conflict of interest was not pursued on appeal.

   [3]McKinnon v Kaye [2015] NZHC 1025.

4. The application seeks to revisit the claim that Mr Barris had a conflict of interest.  The applicants invoke the client care rules of the New Zealand Law Society, which are said to confirm their claim. 

5. Even if it were well founded, this argument could not justify recall, which is an exceptional step.  The interests of justice require that there be finality in litigation, meaning that the applicants must identify and advance all reasonable arguments in support of their case at the trial.  The new argument could have been run there, with the necessary evidence being called.  Processes that the Law Society may or may not have undertaken since are not evidence, and they do not excuse the applicants’ failure to lead evidence on Mr Barris’s obligations at trial.

6. Nor is there any reason to suppose the new argument could make any difference, if only because the trial Judge, and this Court, found that Mr Barris recognised and discharged his professional obligations to the applicants.  Put another way, there is no basis on the trial record for arguing that he yielded to any conflict of interest that he might have had.  To allow the applicants to advance their new argument would be to relitigate not only whether he had a conflict but also what a lawyer for the applicants was obliged to advise and do in the circumstances.  The application makes clear that that is precisely what the applicants want to do.  Contrary to the applicants’ assertions, the trial Court and this Court have already given final answers to both questions.

7. The application for recall is dismissed.  The applicants must pay the respondent costs for a standard application on a band A basis with usual disbursements.

Solicitors:
Kennedys, Auckland for Respondent