IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2015-404-1185
[2021] NZHC 2359
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:
29 April 2021; further submissions 6 May 2021 and 21 July 2021
Appearances:
First and second plaintiffs in person J E G San Diego for first defendant
T P Mullins and D A C Bullock for third defendant
Judgment:
9 September 2021
Reissued:
28 October 2021
JUDGMENT OF TOOGOOD J
This reissued judgment was delivered by me on 28 October 2021 at 10am, pursuant to r 11.5 of the High Court Rules
Solicitors:
Registrar/Deputy Registrar Date:
Doug Cowan, Auckland for first defendant
Lee Salmon Long, Auckland for third defendant
Copy to:
The plaintiffs
MAILLEY v SHAW [2021] NZHC 2359 [9 September 2021]
Introduction [1]
The result [10]
Background facts [11]
The pleaded claims [53]
Applicable legal principles [54]
The strike-out decision [58]
No error in the account of the facts, the pleadings and the strike-out principles [58]
The discussion of the issues [59] The defects in Mr Mailley’s pleadings [61]
The plaintiffs’ submissions [63]
Wrong application of legal principles [64] Allegation that defendants responsible for delay [67]
Error in holding plaintiffs’ claims not established [68]
Error in application of Limitation Act 1950 [80]
The conclusions on Mr Shaw’s application to strike out Mr Mailley’s claims [87] The conclusions on Mr Shaw’s application to strike out Ms Nutarelli’s claims [90] Allegation of misunderstanding of formulation of damages [91]
Allegation of misunderstanding of fee capping agreement [93]
The plaintiffs’ claims against the NZLS [110]
The plaintiffs’ pleading of bad faith [117]
Alleged error in interpretation of misfeasance in public office [121]
Argument that NZLS had no standing to make submissions [126] Request for further opportunity to replead [127]
Allegation of perceived bias [128]
The decisions on the review application [130]
Interim suppression of costs judgment of 21 April 2021 from publication [131] Miscellaneous interlocutory applications [134]
Costs [135]
Introduction
[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…
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.
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AGLC
Mailley v Shaw [2021] NZHC 2359
Case
[2021] NZHC 2359
Decision Date
CaseChat Overview and Summary
Martin Mailley and Sabrina Nutarelli (the plaintiffs) were convicted in Queensland for fraud in 2003. Mr Mailley absconded in 2005, and a warrant for his arrest was issued in March 2005. Mr Mailley was arrested in New Zealand in 2008 and remanded in custody. He was extradited to Queensland in 2016 and subsequently pleaded guilty to the charges. Mr Shaw, a barrister, had represented Mr Mailley in connection with the extradition proceedings. The plaintiffs commenced proceedings against Mr Shaw and the New Zealand Law Society (NZLS) in June 2015. The defendants applied to strike out the proceedings on the grounds that the pleadings disclosed no reasonably arguable cause of action, were frivolous or vexatious, and an abuse of the process of the Court. The Associate Judge struck out all causes of action by the plaintiffs against the defendants. The plaintiffs now seek a review of the strike-out decision. The review application is dismissed. The Court is satisfied that the strike-out decision is right. The Court confirms the decision with the result that all causes of action by the plaintiffs against both defendants are struck out. Save for the decision on Mr Mailley’s application for a suppression order discussed below and the defendants’ entitlement to costs, the proceeding is ended. The Court is inclined to set aside the order for interim non-publication, but Mr Mailley has a right to be heard on the issue. The plaintiffs shall have until 5pm on 13 September 2021 to file and serve a memorandum providing grounds why the order of 23 April 2021 should not be set aside. The defendants shall have until 5pm on 16 September 2021 to file any memoranda in response, applying the same rule as to length.