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Mailley v Shaw

Mailley v Shaw

Case [2021] NZHC 3433 14 December 2021

Admissibility of Evidence

Abuse of Process

Civil Litigation & Procedure

Costs

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2015-404-1185

[2021] NZHC 3433

BETWEEN
MARTIN MAILLEY

First Plaintiff

SABRINA NUTARELLI
Second Plaintiff

AND

ANTONY SHAW

First Defendant

TONY ELLIS (Discontinued) Second Defendant

THE NEW ZEALAND LAW SOCIETY

Third Defendant

Hearing: 10 November 2021

Appearances:

First plaintiff in person

No appearance for second plaintiff J E G San Diego for first defendant

D A C Bullock and S D Wakefield for third defendant

Judgment:

14 December 2021

JUDGMENT OF TOOGOOD J

[Applications for leave to appeal and review of costs judgment]

This judgment was delivered by me on 14 December 2021 at 11am, pursuant to r 11.5 of the High Court Rules

Solicitors:

Registrar/Deputy Registrar Date:

Ord Legal, Wellington for first defendant
Lee Salmon Long, Auckland for third defendant

Copy to:
The plaintiffs

MAILLEY v SHAW [2021] NZHC 3433 [14 December 2021]

Introduction [1]

The application for leave to appeal against the strike-out review judgment [8]

Applicable principles [8]

The plaintiffs’ submissions – refusal to direct provision of transcripts  [10]
The plaintiffs’ submissions – other grounds of appeal  [16]
Discussion  [19]
Conclusion – application for leave to appeal dismissed  [26]

Application for review of the strike-out costs decision [27]
Claim for indemnity or increased costs by Mr Shaw [29]

Claim for indemnity or increased costs by NZLS [31]

Costs award in favour of Mr Shaw [38]
Whether the NZLS should have disclosed its invoices [46]

NZLS claim for costs [49]

Costs [57]

Introduction

[1] On 24 November 2020, Associate Judge Andrew issued a judgment in which the proceeding against the first and third defendants was struck out.1 On 9 September 2021, I issued a judgment confirming that judgment.2

[2] In upholding the strike-out decision, I dealt also with a number of interlocutory applications made by the plaintiffs or by Mr Mailley alone and I made costs directions.

[3] The background to the proceeding and the strike-out review judgment is conveniently set out at [1] to [5] of the strike-out review judgment:3

[1] Martin Mailley and Sabrina Nutarelli were prosecuted in Queensland for fraud in 2003. Ms Nutarelli pleaded guilty to charges arising from her part in the fraudulent activity and was sentenced on conviction to three years’ imprisonment, although the sentence was suspended after she had served six months. Mr Mailley, however, absconded in 2005 and a warrant for his arrest was issued in March 2005.

[2] On 2 July 2008, Mr Mailley was arrested in New Zealand and remanded in custody, an event that began 16 years of proceedings before the New Zealand courts and disciplinary bodies of the New Zealand Law Society (NZLS), the third defendant. The proceedings concerned the extradition of Mr Mailley to Queensland; an application (successful) by him for the issue of a writ of habeas corpus; and four determinations by Standards Committees regarding complaints against legal practitioners (including the first defendant, Mr Antony Shaw) over their conduct in connection with the proceedings. Mr Shaw is a…

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 Mailley v Shaw

Details

AGLC: Mailley v Shaw [2021] NZHC 3433
Case: [2021] NZHC 3433
Decision Date: 14 December 2021

CaseChat Overview and Summary

In the case of Mailley v Shaw, the High Court of New Zealand Auckland Registry dealt with an application for leave to appeal against the strike-out review judgment. Martin Mailley and Sabrina Nutarelli had originally brought proceedings against Antony Shaw, Tony Ellis, and the New Zealand Law Society, alleging overcharging and other misconduct in connection with legal proceedings. The proceeding was struck out by an Associate Judge, and the plaintiffs sought a review of that decision. The court dismissed the application for leave to appeal, finding that the plaintiffs had not identified any important question of law or fact capable of bona fide and serious argument.

The court also addressed an application for review of the strike-out costs decision. Following the strike-out decision, the defendants had applied for an award of indemnity costs or, alternatively, increased costs. The Associate Judge had awarded increased costs to both Mr. Shaw and the New Zealand Law Society. The plaintiffs challenged the costs awards on various grounds, including the lack of invoices to justify the costs claimed by the New Zealand Law Society. The court upheld the costs awards in favor of Mr. Shaw and the New Zealand Law Society, with some modifications.

Ultimately, the defendants were awarded costs on the application for leave to appeal and the application for a review of the strike-out costs decision. The defendants were entitled to costs in accordance with the High Court Rules and the categorization of the proceeding as category 2B for costs purposes.

Orders