Kaye v McKinnon

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)

This judgment addresses an application for recall of a judgment.[1]
[1]Kaye v McKinnon [2016] NZCA 32.
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.
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.
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.
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.
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.
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

CaseChat Overview and Summary

The applicants, Anthony Pratt Kaye and Morva Kaye, sought recall of a judgment handed down in their case against Norris Ward McKinnon. The original judgment was issued in 2016 by the Court of Appeal of New Zealand. The applicants argued that the trial lawyer had a conflict of interest, which they now sought to revisit by invoking the New Zealand Law Society's client care rules. This application for recall was brought long after the original judgment was sealed and after the Supreme Court had refused leave to appeal. The primary legal issue the court had to decide was whether the application for recall was justified given the exceptional nature of such applications and the need for finality in litigation. The court also had to consider whether the applicants could introduce new arguments that they failed to present at the original trial.

The court held that the application for recall was not justified. The applicants had already had an opportunity to present all reasonable arguments in support of their case at the trial. The applicants' failure to lead evidence regarding the alleged conflict of interest, despite warnings from the trial judge, meant that they could not now advance this argument. The court emphasised that recall was an exceptional step and that it required the applicants to identify and advance all reasonable arguments in support of their case at the trial. The court found that even if the new argument about the conflict of interest was well founded, it could not justify recall. The applicants' attempt to relitigate the matter was contrary to the need for finality in litigation. The court found that the trial judge and the Court of Appeal had already given final answers to both questions about the conflict of interest and the lawyer's obligations. The application for recall was dismissed, and the applicants were ordered to pay the respondent's costs.

The court's decision underscores the importance of presenting all reasonable arguments in support of a case at the trial and the exceptional nature of applications for recall. The court found that the applicants had ample opportunity to present their arguments at the trial and that their failure to do so meant that they could not now introduce new arguments. The court held that the interests of justice required finality in litigation and that the applicants' attempt to relitigate the matter was contrary to that principle. The court dismissed the application for recall and ordered the applicants to pay the respondent's costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established