Malley & Co v Burgess - [2015] NZHC 841

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2010-009-2712 [2015] NZHC 841

BETWEEN
MALLEY & CO

Plaintiff

AND

GARY OWEN BURGESS Defendant

Hearing: 28 April 2015 (On the papers)

Appearances:

M Cowan for Plaintiff
Defendant in person

Judgment:

28 April 2015

JUDGMENT OF DUNNINGHAM J

[1] This decision records the outcome of a further battle in the ongoing litigation between Mr Burgess and his former lawyers, Malley & Co.

[2] Malley & Co have sued Mr Burgess seeking payment of their fees for the work they did for Mr Burgess on his relationship property dispute. Mr Burgess counterclaimed asserting seven causes of action which include that Malley & Co were in breach of various duties owed to him as his legal advisers and have caused him losses, which are not all quantified, but which vastly exceed the firm’s claim for unpaid fees.

[3] Malley & Co’s proceedings were originally brought in the District Court under matter number 2010-009-2712, and then as 2013-009-596. The matter has since by agreement, been transferred to this Court, where it had been hoped to progress Malley & Co’s claim for payment of fees, and Mr Burgess’s counterclaim for damages. However, at the case management conference on 23 February 2015,
the Court received an interlocutory application seeking strike-out of the plaintiff’s

MALLEY & CO v BURGESS [2015] NZHC 841 [28 April 2015]

defence to Mr Burgess’s counterclaim, or in the alternative, an unless order requiring the plaintiff to provide further and better particulars, as sought in a notice requesting the same that had been served on Malley & Co but not complied with (“the application”).

[4] Malley & Co, having received the application prior to the conference, filed a memorandum in advance of the conference responding to the application. I therefore made timetabling directions which included giving Mr Burgess an opportunity to respond to the comprehensive submissions filed by Malley & Co in opposition to his application.

[5] For completeness, I noted that Mr Burgess had not paid fees on the application and it would not be dealt with until that matter had been resolved. I am now advised by Registry staff that it has been.

Mr Burgess’s application for strike-out

[6] Mr Burgess’s application sought to strike-out Malley & Co’s statement of defence to his counterclaim saying it has failed to provide “proper and complete and explicit” particulars. He also claims that Malley & Co should be required to provide “further, better and more explicit particulars” of its claims against him in contract or quantum meruit.

[7] In the alternative, Mr Burgess has sought that Malley & Co be given five working days to provide an amended statement of defence to his counterclaim containing the further particulars he requests.

[8] Mr Burgess relies on r 5.48(2) of the High Court Rules to support his application. This sets out the requirement of a statement of defence:

(2) A denial of an allegation of fact in the statement of claim must not be evasive. Points must…

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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Details

Case: [2015] NZHC 841
Decision Date: 28 April 2015

CaseChat Overview and Summary

In the ongoing litigation between Mr Burgess and his former lawyers, Malley & Co, the matter before the court was whether to strike out Malley & Co’s statement of defence to Mr Burgess’s counterclaim or to require them to provide further and better particulars. The court heard the matter on the papers, with the parties represented by their respective solicitors. The court held that Mr Burgess's application for strike-out or further and better particulars was dismissed. The court considered the objectives of the High Court Rules, which are to secure just, speedy and inexpensive determination of proceedings. The court held that the information Mr Burgess sought from Malley & Co fell into categories that were not required to be particularised, including evidence, matters of law, and information already known to the defendant. The court also found that Mr Burgess’s pleadings were not clear or intelligible and that his counterclaim was prolix. The court held that requiring further and better particulars would not be in the interests of justice and would not be likely to satisfy Mr Burgess’s demands. The court awarded 2B costs to Malley & Co, but warned Mr Burgess that further prolix and unmeritorious interlocutory applications may result in an award of indemnity costs.

Orders