IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2015-404-001185
[2020] NZHC 3102
BETWEEN
MARTIN JAMES MAILLEY
First Plaintiff
SABRINA NUTARELLI Second Plaintiff
AND
ANTONY SHAW
First Defendant
NEW ZEALAND LAW SOCIETY
Third Defendant
Hearing:
21 October 2020
Appearances:
First Plaintiff in Person Second Plaintiff in Person M Lyttleton in attendance
J Long and J E G San-Diego for First Defendant T P Mullins and D A C Bullock for Third Defendant
Judgment:
24 November 2020
JUDGMENT OF ASSOCIATE JUDGE P J ANDREW
This judgment was delivered by Associate Judge P J Andrew on 24 November 2020 at 2.00 pm
pursuant to r 11.5 of the High Court Rules Registrar / Deputy Registrar Date………………………..
MAILLEY & OR v SHAW & OR [2020] NZHC 3102 [24 November 2020]
Table of Contents
Introduction [1]
Factual background [6]
The pleadings [53]
Relevant legal principles [54]
Analysis and decision [59] Application by Mr Shaw to strike out [61] Breach of fiduciary duty [71]
Breach of contract [79]
Dishonesty [85]
Claims in negligence [95]
Limitation issues [99]
Conclusion on Mr Shaw’s application to strike out Mr Mailley’s claims [110]Conclusion on Mr Shaw’s application to strike out Ms Nutarelli’s claims [116]Applications by the NZLS to strike out the claims of both plaintiffs [123]Result [146]
Introduction
[1] After protracted litigation spanning eight years, Martin James Mailley (Mr Mailley), the first plaintiff, was extradited to Queensland in 2016 to face fraud charges.1 For a limited 12-month period in 2008 – 2009, he was legally represented by Antony Shaw (Mr Shaw), barrister, the first defendant. Mr Mailley had previously been represented by Barry Hart (Mr Hart), barrister.
[2] These proceedings were filed in 2015 and the current statement of claim is in effect the sixth version of the plaintiff’s pleadings.2 At issue are the conduct and fees of Mr Shaw, as counsel for Mr Mailley, and the alleged failings of the New Zealand Law Society (NZLS), the third defendant, to investigate and uphold complaints brought by Mr Mailley about the conduct of Mr Shaw and his fees.
[3] Mr Shaw and the NZLS now seek to strike out the proceedings under r 15.1 of the High Court Rules 2016 on the grounds that they are vexatious and an abuse of process, incapable of success and statute barred.
[4] The plaintiffs’ pleadings contain multiple defects. These defects are discussed below. The critical issue to address in relation to Mr Shaw is whether, in assessing the multiple defects in combination and overall, the high threshold for strike out under r 15.1 has been reached.
[5] The critical issue to address in relation to the NZLS is the application of s 272 of the Lawyers and Conveyancers Act 2006 (LCA 2006), namely the express immunity for the NZLS from civil claims.
Factual background
[6] Attached as Schedule 1 is a chronology of the relevant events. A comprehensive understanding of the background and context is critical to determining the strike out…
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 [2020] NZHC 3102
Case
[2020] NZHC 3102
Decision Date
CaseChat Overview and Summary
This case involves the proceedings between Martin James Mailley and Sabrina Nutarelli, the plaintiffs, and Antony Shaw and the New Zealand Law Society, the defendants. The case is a complex litigation spanning over eight years, and the central issue is the conduct and fees of Antony Shaw, a barrister, as counsel for Martin James Mailley, and the alleged failings of the New Zealand Law Society to investigate and uphold complaints brought by Mailley about Shaw's conduct and fees. The defendants seek to strike out the proceedings under r 15.1 of the High Court Rules 2016 on the grounds that they are vexatious and an abuse of process, incapable of success and statute-barred. The court found that the proceedings were incapable of success, and the defects were not capable of being amended to disclose tenable causes of action. The court also found that some critical aspects of the proceedings could be characterised as frivolous or vexatious, and others as an abuse of process. The court concluded that the high threshold for strike out under r 15.1 had been reached. The court granted the applications by the first defendant, Antony Shaw, and by the third defendant, the New Zealand Law Society, to strike out the proceedings. All causes of action were struck out, and the proceedings were at an end.