Mailley v Shaw

[2021] NZHC 2359

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…