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Mason v Robertson

Mason v Robertson

Case [2019] NZHC 2989 15 November 2019

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-000897

[2019] NZHC 2989

UNDER Section 124 of the District Courts Act 2016 and r 20.4 of the High Court Rules 2016

BETWEEN

ALEXANDER CHARLES MASON
Appellant

AND

ELIZABETH ANN ROBERTSON

Respondent

Hearing: 14 November 2019

Counsel:

GJ Thwaite and YS Kim for Appellant RS Pidgeon for Respondent

Judgment:

15 November 2019

JUDGMENT OF DOWNS J

This judgment was delivered by me on Friday, 15 November 2019 at 3 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
GJ Thwaite, Auckland. YS Kim, Auckland.
RS Pidgeon, Auckland.

MASON v ROBERTSON [2019] NZHC 2989 [15 November 2019]

The case

[1] Alexander Mason engaged Robert Hacking, a barrister, to represent him in relation to two pressing legal matters. As a barrister, Mr Hacking needed an instructing solicitor to represent Mr Mason. So, with Mr Mason’s agreement, Mr Hacking engaged Elizabeth Robertson as his solicitor. Mr Mason later paid some but not all of Mr Hacking’s fees. $48,852 remains unpaid. Ms Robertson obtained summary judgment against Mr Mason in relation to Mr Hacking’s unpaid fees. Mr Mason appeals. He contends he has arguable defences to the claim for unpaid fees.

[2] Mr Hacking acted for Mr Mason for just over a year: 5 November 2015 until 10 November 2016. Ms Robertson filed the claim for Mr Hacking’s fees on 11 April 2017. Mr Mason then complained to the New Zealand Law Society about Mr Hacking. The Law Society dismissed the complaint on 1 December 2017. It follows the case is already quite old.

[3] Summary judgment is given only when the defendant has no defence to the plaintiff’s claim. If a defence is arguable, the claim should be tried.1 Judge M E Sharp held there was no arguable defence to Ms Robertson’s claim for Mr Hacking’s unpaid fees. Other context is given as the judgment unfolds.

An impermissible approach

[4] The Judge’s decision is comprehensive.2 It addresses all arguments. Mr Mason does not identify any material, reversible error in the decision. Mr Mason’s submissions largely ignore it—as if the decision did not exist. It is not open to an appellant to approach an appeal this way.

[5] As is well known, in Austin, Nichols & Co Inc v Stichting Lodestar, the Supreme Court held in a general appeal, an appellant is entitled to judgment in

1 Krukziener v Hanover Finance Ltd [2008] NZCA 187, (2008) 19 PRNZ 162 at [26].
2 Robertson v Mason [2019] NZDC 6528.

accordance with the independent opinion of the appellate court.3 However, that Court did not hold or imply the first-instance decision is irrelevant.

[6] I am far from the first to make this point. In Green v Green, the Court of Appeal commented on the unfortunate tendency of appellants to approach their task as if the appeal Court “were conducting a retrial in the absence of a primary judgment”.4 For that Court,…

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 Mason v Robertson

Details

AGLC: Mason v Robertson [2019] NZHC 2989
Case: [2019] NZHC 2989
Decision Date: 15 November 2019

CaseChat Overview and Summary

In Mason v Robertson, the appellant, Alexander Mason, sought to appeal a decision of Judge Sharp in the District Court, who granted summary judgment in favour of the respondent, Elizabeth Robertson, for unpaid fees in relation to legal services provided by Mr. Hacking, a barrister, to Mr. Mason. The primary legal issues in the case were whether there existed an arguable defence to Ms. Robertson's claim for unpaid fees, and if so, whether such a defence was valid. The Court of Appeal considered Mr. Mason's arguments concerning the existence of a contract of retainer between the parties, the legality of the contract, and the quantum of the fees charged.

The Court of Appeal held that there was a legitimate contractual relationship between Mr. Hacking and Ms. Robertson, and that Mr. Mason had an implied contract of retainer with Ms. Robertson. The Court found that there was no evidence to suggest that the relationship between Mr. Hacking and Ms. Robertson was a sham or pretence, and that the absence of a client-care letter did not render the contract illegal. The Court further held that Ms. Robertson's liability for Mr. Hacking's fees was not affected by the fact that Mr. Hacking invoiced Mr. Mason directly, or that Mr. Hacking had absolved Ms. Robertson of liability for his fees. Finally, the Court dismissed Mr. Mason's arguments regarding the quantum of fees charged by Mr. Hacking, finding that they were not reasonably arguable.

In conclusion, the Court of Appeal dismissed Mr. Mason's appeal and held that there were no arguable defences to Ms. Robertson's claim for unpaid fees. The final orders of the Court required Mr. Mason to pay Ms. Robertson's costs, which the parties could negotiate between themselves or submit memoranda not exceeding five pages each if they could not agree on the costs.

Orders