Liu v Cutting - [2021] NZHC 1655

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2020-404-1420

[2021] NZHC 1655

BETWEEN
YICHUAN (JESSE) LIU KIN TO (STEVEN) LAU and DINAH QIU

Applicants

AND

DEREK EDWARD CUTTING

Respondent

Hearing: 24 November 2020 and 16 March 2021

Appearances:

Mr Lau for Applicants (in person) G Keene for Respondent

Judgment:

6 July 2021

JUDGMENT OF DUFFY J

This judgment was delivered by me on 6 July 2021 at 11 am pursuant to
Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors/Counsel:
Skeates Law Ltd, Auckland
Gregory Keene, Barrister, Auckland Simpson Grierson, Auckland

LAU v CUTTING [2021] NZHC 1655 [6 July 2021]

[1] Mr Lau seeks leave to appeal out of time a District Court decision which awarded interest, costs and disbursements to the respondent, Mr Cutting (the costs and interest decision).1 The application is opposed.

Background

[2] This application is the latest step in long running litigation brought by Mr Lau against his former solicitor Mr Cutting. Mr Lau has represented himself throughout the litigation. The two other applicants are his son and his wife. They have not appeared to advance the application. Mr Lau cannot represent them. Accordingly, I am treating him as appearing on his own behalf alone. The findings I make in respect of Mr Lau will by default affect the other two applicants.

[3] Mr Lau’s son (the applicant Yichuan Jesse Liu) allegedly suffered two serious assaults by another pupil at Auckland Grammar School in early 2007. Mr Lau engaged Mr Cutting to provide legal services preparatory to possible legal proceedings against the Auckland Grammar School Board of Trustees and the pupil. The legal services contract was entered into around March 2007. Mr Cutting instructed a barrister, Gregory Keene, to assist in advising the applicants.

[4] The claims against Auckland Grammar School and the pupil failed. Mr Lau and his family were dissatisfied by this outcome. Mr Lau complained to the New Zealand Law Society and refused to pay Mr Keene’s legal fees. The merits of those matters, however, are beyond the reach of this judgment.

[5] Mr Cutting commenced District Court proceedings against Mr Lau and his family for the recovery of unpaid legal fees owed to Mr Keene. Mr Cutting sued on Mr Keene’s behalf2 because a barrister cannot directly sue a lay client.3 The prayer for relief in the statement of claim sought special damages of $15,125.82 (being Mr Keene’s legal attendance costs), with interest on that sum from 1 February 2009 to the date of judgment at the rate of interest prescribed by the Judicature Act 1908,4 and

1      Cutting v Liu [2017] NZDC 29890.
2      Under Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, r 10.7.2.
3      Atkinson v Pengelly [1995] 3 NZLR.
4      Judicature Act 1908, s 87.

costs of, and incidental to, the proceedings. On 7 June 2012, Mr Cutting filed an amended statement of claim. The quantum of damages sought and the claim…

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 Liu v Cutting

Details

AGLC: Liu v Cutting [2021] NZHC 1655
Case: [2021] NZHC 1655
Decision Date: 6 July 2021

CaseChat Overview and Summary

In Liu v Cutting, Mr Lau sought leave to appeal out of time a decision of the District Court awarding interest, costs and disbursements to Mr Cutting. The court was required to determine whether the appeal was out of time, whether the legality of the interest award was open to question, and whether there were any other grounds to grant leave to appeal out of time. The court held that the appeal was out of time, that the legality of the interest award was not open to question, and that there were no other grounds to grant leave to appeal out of time. The court found that the appeal was brought some 16 months after delivery of the decision to be appealed and that Mr Lau had given no satisfactory explanation for the delay. The court also found that the process Judge Hinton followed was lawful and that there was no merit to the proposed appeal. Accordingly, leave to appeal out of time was refused. The parties have leave to file memoranda on costs.

Orders