Norris Ward McKinnon v Skelton - [2020] NZHC 1445

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2015-419-000429

[2020] NZHC 1445

BETWEEN
NORRIS WARD McKINNON

Plaintiff

AND

DONALD ALFRED SKELTON

Defendant

Hearing: 10 December 2019

Appearances:

JD Savage for the Plaintiff

VA Whitfield & KJ Pennell for the Defendant

Judgment:

24 June 2020

RESERVED JUDGMENT OF ASSOCIATE JUDGE SMITH

This judgment was delivered by me on 24 June 2020 at 4pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Norris Ward McKinnon, Hamilton V Whitfield, Hamilton

Norris Ward McKinnon v Skelton [2020] NZHC 1445 [24 June 2020]

TABLE OF CONTENTS

Para No.

Introduction – the summary judgment application for recovery of fees [1]

Norris Ward’s Statement of Claim [9]

Mr Skelton’s defence and counterclaim [14]

Norris Ward’s reply and statement of defence to counterclaim [23]

Adjournment of the trial of the New Zealand proceeding – Minute of

Lang J

[27]

Evidence for Norris Ward in support [34]

Evidence for Mr Skelton in opposition [67]

Norris Ward’s evidence in reply [106]

Summary judgment applications – legal principles [143]

The issues to be decided [147]

Issue (1): what is the effect of the decision of the Legal Complaints Review Officer on Mr Skelton’s complaint to the Law Society: does it preclude Mr Skelton from challenging Norris Ward’s fees claim in

this Court?

[152]

Issue (2) and (3): does Mr Skelton have a defence based on advice given by Norris Ward on the claim commenced against Mr Skelton in the

Supreme Court of Queensland?

[161]

Issue (4) and (5): does Mr Skelton have a defence based on alleged deficiencies in the pleadings filed by Norris Ward on his behalf in

the proceeding commenced by Mr Skelton in this Court?

[215]

Issue (6) and (7): was there an agreement under which Norris Ward would

not charge for its services for the period after the trial of the New Zealand proceeding was adjourned on 30 March 2015?

[223]

Issue (8) and (9): did Norris Ward act in breach of a duty to Mr Skelton in

requiring a waiver of claims as a condition of continuing to act in the New Zealand proceeding?

[240]

Norris Ward’s application for summary judgment on Mr Skelton’s

counterclaims
[255]

Result [258]

Introduction

[1] The plaintiff (Norris Ward) is a Hamilton law firm. It issued this proceeding in December 2015 to recover the sum of $297,961.98 said to be owing by the defendant (Mr Skelton) for unpaid fees and disbursements.

[2] Mr Skelton filed a statement of defence on 23 February 2016, but the case did not progress any further at that stage. Mr Skelton had complained to the Law Society about Norris Ward’s performance and fees, and on 29 April 2016 Associate Judge Doogue made an order staying the proceeding until the complaint was determined by the Standards Committee of the Law Society.

[3] The Standards Committee dismissed Mr Skelton’s complaint in late 2018, and that decision was upheld by the Legal Complaints Review Officer (LCRO)…

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: [2020] NZHC 1445
Decision Date: 24 June 2020

CaseChat Overview and Summary

The plaintiff, Norris Ward, a Hamilton law firm, sought to recover unpaid fees and disbursements amounting to $297,961.98 from the defendant, Mr Skelton. Mr Skelton had engaged Norris Ward in relation to a dispute with his licensee, Z487 Limited, and had subsequently raised complaints about Norris Ward's performance and fees with the Law Society. The Law Society's Standards Committee dismissed Mr Skelton's complaint, and that decision was upheld by the Legal Complaints Review Officer (LCRO). Following this, Norris Ward sought summary judgment on its claim, and Mr Skelton filed an amended statement of defence and counterclaim. The issues for the court were whether Mr Skelton had any arguable defence to Norris Ward's claims and counterclaims. The court found that Mr Skelton had no arguable defence to the fees claim and that his counterclaims were not viable. The court ruled in favour of Norris Ward, awarding them $277,900.40, minus certain amounts that could be set off against the claim. The court also ruled in favour of Norris Ward on Mr Skelton's counterclaims and ordered a case management conference to be held after 1 September 2020.

Orders