Liu v Cutting - [2018] NZHC 33

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-001858

[2018] NZHC 33

BETWEEN
YICHUAN (JESSE) LIU, KIN (STEVEN) LAU AND DINAH QIU

Appellants

AND

DEREK EDWIN CUTTING

Respondent

Hearing: 7 December 2017

Appearances:

Y Liu and K Lau in Person

G Collecutt for the Respondent

Judgment:

31 January 2018

JUDGMENT OF HINTON J

This judgment was delivered by me
on 31 January 2018 at 4.45 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Counsel:
Grant Collecutt, Barrister, Auckland

Parties:
Y Liu, K Lau, D Qiu

LIU & ORS v CUTTING [2018] NZHC 33 [31 January 2018]

[1]This is an appeal of a District Court decision relating to legal fees.

[2] In 2005, while a student at Auckland Grammar School (AGS), Mr Liu was the subject of two vicious assaults by a fellow student. The second assault resulted in Mr Liu’s jaw being broken. The AGS Board suspended the fellow student for a period of approximately six weeks.

[3] Mr Liu and his parents (who together are the appellants) believed that if the teacher who reprimanded the student after the first assault had taken more appropriate action, the second assault may not have occurred. They are very aggrieved at the way AGS handled the incident.

[4] The appellants engaged Derek Cutting, solicitor, to consider possible legal action.

[5] In about March 2007, Mr Cutting instructed Gregory Keene as counsel. There is an undated letter from Mr Cutting to Mr Keene recording the instruction. It was not sent to the appellants. No letter of engagement was provided to the appellants. Rules
3.4 and 3.5 of the Lawyers and Conveyancers Act 2006 which required such a letter, did not come into force until 1 August 2008.

[6] Mr Keene prepared an opinion, engaged in subsequent correspondence and discussions with an attempt to settle, and then filed proceedings in the District Court.

[7] AGS made a settlement proposal involving a payment of $10,000, and then increased that to $20,000. Messrs Cutting and Keene tried to persuade the appellants to accept the $20,000 offer on the basis they considered any better financial outcome for the appellants was unlikely.

[8] The appellants became unhappy with the service being provided to them and terminated Mr Keene’s services in December 2008.

[9] Up to that point, they had already paid fees totalling about $20,000 and there were further fees owing to Mr Cutting for Mr Keene’s services in the sum of
$15,125.82.

[10] In early 2009, Mr Cutting issued this proceeding to recover Mr Keene’s fees. The appellants lodged a complaint with the New Zealand Law Society (NZLS) about a number of aspects of Mr Keene’s services (primarily at that stage the reasonableness of Mr Keene’s fees).

[11] The NZLS held that Mr Keene’s fees were reasonable. The appellants applied for a review to the Legal Complaints Review Officer (LCRO), who upheld the NZLS decision.

[12] Mr Cutting then obtained judgment by default…

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 [2018] NZHC 33
Case: [2018] NZHC 33
Decision Date: 31 January 2018

CaseChat Overview and Summary

This case involved an appeal by the appellants against a decision of the District Court that upheld a claim by the respondent, Derek Cutting, for unpaid legal fees. The appellants, Yichuan (Jesse) Liu, Kin (Steven) Lau, and Dinah Qiu, were students at Auckland Grammar School (AGS) when Jesse Liu was assaulted by a fellow student. They believed that the school's handling of the incident was inadequate and engaged Mr Cutting, a solicitor, to consider possible legal action. Mr Cutting instructed Gregory Keene, a barrister, but no written letter of engagement was provided to the appellants. The appellants terminated Mr Keene’s services in December 2008, and Mr Cutting issued a proceeding to recover the unpaid fees. The District Court upheld the claim for unpaid fees but reduced the amount from $15,125.82 to $10,500. The appellants’ counter-claim was dismissed, and they appealed to the High Court.

The legal issues the court had to decide included whether there was consent to brief Mr Keene on the date he was briefed, whether the appellants were liable for Mr Keene's fees, and whether there was a wrongful refusal to re-open cross-examination of Mr Keene. The court found that while there was no written consent or letter of engagement, the appellants had authorised Mr Cutting to brief Mr Keene, and they were ultimately liable for Mr Keene’s reasonable fees. The court also found that the appellants' claims regarding the refusal to re-open cross-examination of Mr Keene and other issues were without merit.

The court dismissed the appeal and found against the appellants on each of the points of appeal. The respondent was entitled to costs, which should be filed and resolved between the parties. The court acknowledged the appellants' grievances and the importance of the case but emphasized the need to move on from the litigation.

Orders