Neubauer v Toner - [2024] NZHC 1870

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2023-470-000118

[2024] NZHC 1870

BETWEEN
DORIS NEUBAUER

TE ATARANGI SAYERS
Applicants

AND

MICHAEL JAMES TONER and EMILY

JANE SARAH TONER trading as TONER LAW
Respondents

JO-ANNE PAMELA AMREIN-PALAIRET JOHN HAMILTON PALAIRET

First Interested Party

ANA LUCIA DIAS-VIEIRA GEORGE HAMILTON GALL

Second Interested Party

Hearing: 28 February 2024

Appearances:

P Napier and P Shanahan-Pinker for the Applicants M Keall for the First Interested Party

Judgment:

9 July 2024

JUDGMENT OF WALKER J

This judgment was delivered by me on 9 July 2024 at 4.30 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:

P Napier, K3 Legal Ltd, Auckland
M Keall, Duncan King Law, Auckland

NEUBAUER & Anor v TONER & Ors [2024] NZHC 1870 [9 July 2024]

[1] This case concerns a co-ownership arrangement between three parties which has soured. The first interested party seeks sale of the property, being a 25-hectare block of land at 187 State Highway 29, Lower Kaimai, Tauranga (the Property). A caveat lodged by the applicants blocks dealings. That substantive issue is for another day.1 In the meantime, the applicants require the respondents (principals of the law firm known as Toner Law) to disclose documents relating to the co-ownership arrangements and the Property. They have filed an originating application on notice for a mandatory interim injunction seeking disclosure.2 This judgment determines that application.

[2] The applicants (the Neubauer/Sayers) are parties to the co-ownership arrangements along with the first interested party (the Palairets) and the second interested party (together the Collective).

[3] The Neubauer/Sayers contend that Toner Law acted for the Collective at all material times. If that proposition is correct, then the members of the Collective are entitled to documents held by Toner Law which are relevant to the matters on which the firm was engaged, unless one of the exceptions under rule 7 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules) applies. The essential question is whether that core proposition is correct and if any limitations or exceptions arise in the circumstances.

[4] Toner Law originally took the position that it only acted for the Palairets, not the Neubauer/Sayers or the Collective itself, and that disclosure would breach the confidence and/or legal professional privilege of those parties. It filed a Notice of Opposition.3 The grounds of opposition (in summary) were at that time:

(a)Toner Law was engaged by the Palairets to act for them on the purchase of the Property on the terms set out in a letter of engagement and was

1 Nothing in this judgment is intended to make factual findings in relation to the substantive dispute.
2 Originating application on notice for mandatory interim injunction seeking disclosure dated 1 September 2023. The application is expressed as an application for mandatory interim injunction although there is nothing “interim” about the order sought. The Court granted leave to bring the proceeding as an originating application to…

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 Neubauer v Toner

Details

AGLC: Neubauer v Toner [2024] NZHC 1870
Case: [2024] NZHC 1870
Decision Date: 9 July 2024

CaseChat Overview and Summary

This case concerns a dispute between co-owners of a 25-hectare block of land at 187 State Highway 29, Lower Kaimai, Tauranga, involving the applicants, Doris Neubauer and Te Atarangi Sayers, the respondents, Michael James Toner and Emily Jane Sarah Toner trading as Toner Law, and the interested parties, Jo-Anne Pamela Amrein-Palairet and John Hamilton Palairet, and Ana Lucia Dias-Vieira and George Hamilton Gall. The applicants seek the disclosure of documents relating to the co-ownership arrangements and the property from the respondents, who acted as legal advisors for the co-owners. The respondents initially opposed the application, arguing that they only acted for one of the co-owners and that further disclosure would breach client privilege. However, they withdrew their opposition before the hearing, leaving the interested parties to contest the application.

The primary legal issues the court had to decide were whether Toner Law acted for the collective group of co-owners and, if so, to what extent they were required to disclose documents under the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. The court also needed to determine whether the applicants were entitled to wider disclosure than what had been provided and if the order sought by the applicants should be granted.

The court found that Toner Law acted for the Palairets initially, then for the collective group in a limited capacity between 8 December 2021 and 13 January 2022, and finally as an independent stakeholder for the collective. The court concluded that the applicants were entitled to disclosure of documents created during the period of the limited joint engagement and records of the trust account as long as funds of the collective members remained. The court declined to grant the orders in the terms sought by the applicants, instead ordering that Toner Law disclose specified documents to the applicants.

In summary, the court determined that Toner Law's engagement with the co-owners was limited in scope and duration, and while the applicants were entitled to certain disclosures, not all the requested documents were subject to disclosure. The court's decision focused on the specific period during which Toner Law acted for the collective and the nature of the documents held by the respondents.

Orders