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Ng v Harkness Law Ltd

Ng v Harkness Law Ltd

Case [2014] NZHC 850 29 April 2014

Misrepresentation

Unconscionable Conduct

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-1389 [2014] NZHC 850

BETWEEN
ADRIAN HWEE KIAT NG

and

ALICIA SOCK HOON GO First Plaintiffs

MATTHEW HSUN YEAN LIM Second Plaintiff

AND

HARKNESS LAW LIMITED First Defendant

JOHN RENWICK HARKNESS Second Defendant

STEPHEN JOHN STEEL Third Defendant

Hearing: 26 November 2013

Appearances:

S Barter and R Phillips for Plaintiffs
S Shortall and P Roy for Defendants

Judgment:

29 April 2014

INTERIM JUDGMENT OF ASSOCIATE JUDGE BELL

This judgment was delivered by me on 29 April 2014 at 2:00pm
pursuant to Rule 11.5 of the High Court Rules.

...................................
Registrar/Deputy Registrar

Solicitors:
Barter & Co (Steve Barter/R Phillips) Albany, for Plaintiffs
Minter Ellison Rudd Watts (Stacey Shortall/Pearl Roy) Wellington, for Defendants

NG and ANOR v HARKNESS LAW LTD [2014] NZHC 850 [29 April 2014]

[1] The plaintiffs have lost money they paid out under agreements to give them interests in residential lots in a proposed development at Gills Road, Albany, Auckland. The first plaintiffs paid $350,969 to Hunter Gills Road Ltd. The second plaintiffs paid $173,694 to Albany Heights Villas Ltd. Both development companies are in insolvent liquidation. Investigations by the liquidators suggest that those behind the companies siphoned off substantial sums paid by purchasers such as the plaintiffs.

[2] As well as claiming in the liquidations, the plaintiffs seek relief from a law practice that acted for the companies. The plaintiffs’ payments went to its trust account. They sue it under the Fair Trading Act 1986. The law practice has applied for summary judgment and strike-out. The question is whether the law practice has shown that the plaintiffs cannot succeed in their claims of accessory liability.

[3] This decision is only on the plaintiffs’ causes of action under the Fair Trading Act. Shortly before the hearing, the plaintiffs filed a new statement of claim adding causes of action of dishonest assistance under the second limb in Barnes v Addy.1
The defendants could not properly address this new cause of action in the short time given. The new cause of action will require a further hearing.

The parties

[4] The first plaintiffs, Adrian Ng and Alicia Go, husband and wife, are

Singaporean nationals and residents. So is the second plaintiff, Matthew Lim.

[5] Harkness Law Ltd is an incorporated law practice in Wellington that specialises in property law. Mr Harkness and Mr Steel are principals in the practice. Mr Harkness acted for the development companies. Mr Steel had peripheral
involvement. The plaintiffs have discontinued their claim against Mr Steel.

1 Barnes v Addy (1873-74) LR 9 Ch App 244.

What the case is about

[6] Promotional material for the proposed development at 125 Gills Road describes “a medium density housing development” and “a 407 multi-staged development set in a carefully planned village setting…” showing terraced and semi- detached townhouses. Hunter Gills Road Ltd was to undertake the development on one lot, Lot 1 DP 418523, with an area of 2.05 hectares; Albany Heights Villas Ltd on an adjoining…

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 Ng v Harkness Law Ltd

Details

AGLC: Ng v Harkness Law Ltd [2014] NZHC 850
Case: [2014] NZHC 850
Decision Date: 29 April 2014

CaseChat Overview and Summary

The plaintiffs, Singaporean nationals, have lost money paid to a law practice under agreements to give them interests in residential lots in a proposed development at Gills Road, Albany, Auckland. The development companies are in insolvent liquidation and investigations suggest that those behind the companies siphoned off substantial sums paid by purchasers such as the plaintiffs. The plaintiffs seek relief from the law practice under the Fair Trading Act 1986. The law practice has applied for summary judgment and strike-out. The question is whether the law practice has shown that the plaintiffs cannot succeed in their claims of accessory liability. This decision is only on the plaintiffs’ causes of action under the Fair Trading Act. The defendants have shown that the Fair Trading Act claims cannot stand. The Fair Trading Act cause of action is struck out. On the summary judgment application I declare that the cause of action under the Fair Trading Act cannot succeed. All claims against Mr Steel, the third defendant, are struck out following the discontinuance. I reserve costs to await the outcome of the application on the knowing assistance cause of action. I direct the Registrar of the Auckland High Court to arrange a telephone case management conference for 15 May 2014 to give directions to complete the hearing of the applications. Mrs Susan Parker will be the contact person. If the parties can agree on directions, a joint memorandum may be filed for my consideration. Otherwise the plaintiffs are to file and serve their memorandum one week before the conference, the defendants two working days before.

Orders