Malley & Co v Burgess - [2016] NZHC 907

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2010-009-002712 [2016] NZHC 907

BETWEEN
MALLEY & CO

Plaintiff

AND

GARY OWEN BURGESS Defendant

Hearing:
7-10 December 2015

Written Submissions:
12 February 2016 - Plaintiff
7 March 2016 - Defendant
18 March 2016 - Plaintiff

Appearances:

M E Parker for Plaintiff
Defendant Appears In Person

Judgment:

5 May 2016

JUDGMENT OF GENDALL J

MALLEY & CO v BURGESS [2016] NZHC 907 [5 May 2016]

Table of Contents

Para No

Introduction [1]

Background [5]

Preliminary Matter [12]

I. Malley & Co’s claim for outstanding fees [16]

II. Counterclaim by Mr Burgess [29]

(a) First cause of action – Negligence – Advice upon division of property [31]

(b) First cause of action – Negligence – the Relationship Property

Agreement and Memorandum
[47]

(i)        Memorandum not sealed [50]

(ii)       Payment without authority [53]

(c) First cause of action – Negligence – General complaints [57]

(d) Second cause of action – Breach of retainer contract [64]

(e) Third cause of action – Breach of fiduciary duty [69]

(f) Fourth cause of action – Breach of fiduciary duty in operation of the

trust account
[72]

(g) Fifth    cause    of    action    –     Claims    against    Parker    Cowan

partners/employees
[73]

(h) Sixth cause of action – Lodging Notice of Claim [76]

(i) Sixth cause of action – Lodging caveat [77]

(j) Seventh cause of action – Fraud [79]

Causation – Counterclaim [81]

Quantum – Counterclaim [88]

Conclusion – On the counterclaim [94]

III. Result [98]

IV. Orders and costs [100]

Introduction

[1] This judgment relates to longstanding ongoing litigation between the defendant, Gary Owen Burgess (Mr Burgess), and his former lawyers, the plaintiff Malley & Co. The matter has a long history and it occupied the allocated four days of hearing time in this Court from 7 December 2015 to 10 December 2015, without finishing.

[2] At the conclusion of this four day in-person hearing, there had been time only for the plaintiff and the defendant to call their evidence and each requested some time to provide final written submissions to be considered by me. Rather than simply adjourning this matter at the time part-heard I agreed, and in a 10 December
2015 minute I issued, I made directions for the filing of submissions from the parties through January and February 2016, culminating in reply submissions from the plaintiff to be provided by 11 March 2016.

[3] On 28 January 2016 however, at the request of the parties, amended timetable directions were made. These required that the plaintiff’s submissions were to be provided by 12 February 2016, the defendant’s submissions in reply by 7 March
2016 and the plaintiff’s final reply submissions by 18 March 2016. Closing submissions were provided in accordance with these amended timetable dates.

[4] I have now had an opportunity to consider those submissions and all the material provided at the in-person hearing of this matter, and give my decision. This decision relates to the two issues which were addressed at this hearing being, first,…

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 Malley & Co v Burgess

Details

AGLC: Malley & Co v Burgess [2016] NZHC 907
Case: [2016] NZHC 907
Decision Date: 5 May 2016

CaseChat Overview and Summary

The case of Malley & Co v Burgess, [2016] NZHC 907, concerns a longstanding dispute between the defendant, Gary Owen Burgess, and his former law firm, Malley & Co. The primary issues before the court were Malley & Co's claim for outstanding legal fees and Mr Burgess' counterclaim, alleging negligence and breach of duty by Malley & Co. The court considered the merits of both the claim and the counterclaim, evaluating the evidence and submissions from both parties.

Malley & Co's claim for outstanding fees was upheld, as the court found that the firm had properly discharged its burden of proof, demonstrating that the fees claimed were for work competently carried out and beneficial to Mr Burgess. The court dismissed Mr Burgess' counterclaim, finding it wholly unfounded. The counterclaim included various allegations of negligence and breach of duty, none of which the court found to be supported by the evidence. The court concluded that any losses Mr Burgess suffered were due to his own actions and not the result of any failures by Malley & Co.

The court ordered Mr Burgess to pay Malley & Co the outstanding fees of $54,594.81 plus interest, as well as costs to follow the event. The decision underscores the importance of the terms of engagement agreed upon by the parties and the court's role in ensuring that legal fees are fairly and properly claimed.

Orders