Morris v Morris - [2015] NZHC 2315

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-001365 [2015] NZHC 2315

UNDER the Partnership Act 1908

IN THE MATTER OF

an application for dissolution of partnership

BETWEEN

VERNON PETER MORRIS Plaintiff

AND

MARGARET CLARE MORRIS First Defendant

NEVILLE SHAW Second Defendant

Hearing: 21 September 2015

Counsel:

P F Chambers for the Plaintiff
S C Dench for the Defendants

Judgment:

23 September 2015

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 23 September 2015 at 4.30 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel: P F Chambers, Auckland
S C Dench, Auckland

Solicitors: Henley-Smith Law, Auckland
R S Walker, Auckland

MORRIS v MORRIS [2015] NZHC 2315 [23 September 2015]

Introduction

[1] Mr Morris seeks to restrain Mr Walker and his firm from acting for the defendants at a forthcoming judicial settlement conference and in the substantive proceeding.

[2] Mr Morris claims that Mr Walker has confidential and privileged information relating to Mr Morris which he has obtained in the course of his 45 year relationship acting for both Mr Morris and the first defendant (Mrs Morris), and in the course of acting for a partnership between Mr and Mrs Morris (Partnership). Mr Morris says that Mr Walker either is conflicted, or there is an appearance of a conflict of interest, so that disqualification is justified in the circumstances.

[3] Mr Walker does not dispute a long relationship with the parties, but deposes to very limited contact with Mr Morris and the Partnership over the course of the last twelve years. He denies having any confidential or privileged information of the sort relevant to the substantive proceeding. He also denies having a conflict of interest or giving the appearance of a conflict by continuing to be Mrs Morris’ solicitor on the record in this dispute.

Background

[4] Mr Morris has commenced proceedings against Mrs Morris and her partner, Mr Shaw in relation to alleged unauthorised drawings from the Partnership. The Partnership was set up between Mr and Mrs Morris following their separation in
1987. The Partnership held undivided relationship property including numerous properties, bank accounts, and for a period of time, a trucking business. The Partnership currently holds three properties which the parties have agreed should now be sold.

[5] Mr Morris first became concerned about alleged discrepancies in the Partnership accounts in December 2013. Mrs Morris engaged Mr Walker to act on her behalf in respect of these allegations in April 2014. The evidence suggests that Mr Morris engaged another solicitor, Mrs Rhonda Evans, to act on his behalf in

relation to the dispute. There was agreement between the parties that Bowden Williams, chartered accountants, would be instructed to undertake an independent review of the Partnership accounts going back to 2002. Mr Walker and Ms Evans exchanged correspondence regarding Bowden Williams’ appointment and the scope of the engagement.

[6] Bowden Williams reported back in August 2014. The report only analysed the financial records as far back as…

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 Morris v Morris

Details

AGLC: Morris v Morris [2015] NZHC 2315
Case: [2015] NZHC 2315
Decision Date: 23 September 2015

CaseChat Overview and Summary

The plaintiff, Vernon Peter Morris, sought to disqualify Neville Shaw, the defendant's solicitor, from acting for the defendants in proceedings relating to alleged unauthorised drawings from a partnership. The defendants, Margaret Clare Morris and Neville Shaw, had engaged Mr Shaw's firm to act for them. Mr Morris claimed that Mr Shaw had confidential and privileged information relating to him, which he had obtained in the course of his long-standing relationship with both parties. Mr Morris argued that Mr Shaw either was conflicted or there was an appearance of a conflict of interest, so that disqualification was justified in the circumstances.

The court had to decide whether Mr Shaw had confidential or privileged information that would be relevant to the substantive proceeding and if there was an actual or apparent conflict of interest that would warrant his disqualification. The court also had to balance the principle that a litigant should not be deprived of their choice of counsel without good cause against the principle of protecting confidential and privileged information.

The court found that Mr Shaw's long-standing relationship with both parties did not necessarily mean that he had confidential or privileged information that would be relevant to the substantive proceeding. The court noted that Mr Shaw had not acted for Mr Morris or the partnership in any substantive sense for some time, and there was no evidence that he retained specific confidential or privileged information relevant to the dispute. The court also found that there was no actual conflict of interest, and the recent formation of a trust company in which both defendants and Mr Shaw were directors and shareholders did not create a conflict of interest warranting disqualification.

The court concluded that this was not a case that warranted restraining Mr Shaw from acting as solicitor on the record for the defendants. The application was dismissed. If costs could not be agreed, then any application for costs should be filed within 10 working days of receipt of this judgment, with any memorandum in response filed five working days thereafter.

Orders