Kirk v Vallant Hooker & Partners - [2000] NZCA 351

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 169/00

BETWEEN	KEITH DAVID KIRK
Appellant

AND	VALLANT HOOKER & PARTNERS
Respondent

Hearing:	22 November 2000
Coram:	McGrath J Doogue J Young J
Appearances:	B Rooney for appellant P J Bartlett for respondent
Judgment:	27 November 2000

JUDGMENT OF THE COURT DELIVERED BY DOOGUE J

This appeal relates to the period for which interest should be awarded and the appropriate rate.
The respondent was the firm of solicitors for the appellant, who was the plaintiff in High Court proceedings settled in November 1993. The settlement payment was delivered to the respondent on 19 November 1993 and paid into its trust account for the credit of the appellant. The respondent deducted its fees from the appellant’s money without his agreement. He disputed the fees. The dispute ultimately found its way to this Court: CA 18/99, 29 February 2000. This Court restored a decision of the Registrar of the High Court, which had held that the appellant had been overcharged by $24,086: HC 148/97, 31 July 1999.
The appellant had in 1995 sought summary judgment against the respondent for its breach of trust in respect of the deduction of the fees. The application was amended in April 2000 to limit the claim to the overcharge of $24,086. That sum was paid shortly before the hearing of the application but the respondent did not pay any interest or costs. The hearing proceeded in respect of those matters only. The interest claim was pursued and dealt with in reliance on s87 Judicature Act 1908 (“the Act”). The Master awarded interest at 7.5% per annum from 31 July 1998, the date of the Registrar’s decision in respect of the respondent’s fees.
The appellant says that he was properly entitled to interest for the full period during which he has been out of his money, that is from the date it was deducted from his money on 19 November 1993. In addition, the appellant says that the Master erred in fixing the rate at which interest is to be awarded. The respondent’s case is that the Master’s decision was correct.
We record: There has been no reliance by the appellant on the rules relating to the award of interest for breach of trust and we have not addressed them: see, for example, Underhill and Hayton: Law of Trusts and Trustees (15^th edn) 839. The case has been treated throughout as a claim under s87 of the Act. The respondent has not cross-appealed to challenge the jurisdiction to award interest under s 87 of the Act where moneys owing have been paid prior to judgment, notwithstanding that was a live issue in the High Court. This judgment should not be treated as authority for the proposition that there is such a jurisdiction. There is no dispute that in accord with Day v Mead [1987] 2 NZLR 443, followed in Wilson & Horton Ltd v Attorney-General [1997] 2 NZLR 513, 530, the discretion under s 87…

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 Kirk v Vallant Hooker & Partners

Details

AGLC: Kirk v Vallant Hooker & Partners [2000] NZCA 351
Case: [2000] NZCA 351
Decision Date: 27 November 2000

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Keith David Kirk against Vallant Hooker & Partners regarding the period for which interest should be awarded and the appropriate rate. The appellant, Kirk, had been overcharged by the respondent, the firm of solicitors, in the amount of $24,086. The settlement payment was delivered to the respondent on 19 November 1993, and Kirk disputed the fees deducted from his settlement money. The dispute was settled by this Court in February 2000, which restored a decision of the Registrar of the High Court. The appellant had sought summary judgment against the respondent for breach of trust in respect of the deduction of the fees. The appellant's claim was amended to limit the claim to the overcharge of $24,086, which was paid shortly before the hearing of the application. The interest claim was pursued and dealt with in reliance on s87 of the Judicature Act 1908.

The legal issues in the case were the period for which interest should be awarded and the appropriate rate. The appellant argued that he was properly entitled to interest for the full period during which he had been out of his money, that is from the date it was deducted from his money on 19 November 1993. In addition, the appellant argued that the Master erred in fixing the rate at which interest is to be awarded. The respondent argued that the Master's decision was correct. The Court found that the Master erred in principle and took into account an irrelevant consideration. The Court held that the cause of action arose on 19 November 1993, and the interest should have run from that date unless there was some other justifiable ground for a different approach. The Court found that the respondent was unable to articulate a basis for a different approach. On the issue of the appropriate rate of interest, the Court found that the prescribed rate under s87 of the Act is a maximum rate and that there is no evidence as to what benefit the respondent received from the appellant’s money. The Court held that the Master was not plainly wrong in taking a figure approximating bank deposit rates.

The Court found that the appeal succeeded to the extent that the appellant is entitled to interest upon the sum of $24,086 from 19 November 1993 to the date of judgment at the rate fixed by the Master of 7.5% per annum. The Court awarded costs in the sum of $3,000 to the appellant together with his reasonable disbursements including counsel’s reasonable travel and accommodation costs.

Orders