Malley & Co v Burgess

Case [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,…

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

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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