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Perrott-Hunt v Johnston

Perrott-Hunt v Johnston

Case [2018] NZHC 2568 24 September 2018

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2015-404-2506

[2018] NZHC 2568

BETWEEN
MATTHEW NEIL PERROTT-HUNT

as Administrator of the Estate of VAO HUNT also known as FA’ATU HUNT also known as MARGARET HUNT

First Plaintiff

HUNT FAMILY TRUST LIMITED and

DEBRA CECILIA HOLTOM as Trustees of the HUNT FAMILY TRUST

Second Plaintiffs

AND

EDWARD ERROL JOHNSTON

First Defendant

EDWARD JOHNSTON & CO TRUSTEES LIMITED
Second Defendant

RONALD BRUCE JOHNSON

JOHN KAHUKIWA and LAWRENCE

PONNIAH (sued as a firm of solicitors practising as CORBAN REVELL in Henderson)

Third Defendants

RONALD BRUCE JOHNSON (principal of CENTRAL PARK LEGAL LIMITED)

Fourth Defendant

ROSS JAMES FARRON and JAMES ROBERT ARTHUR NASH
Fifth Defendants

ROSS JAMES FARRON

Sixth Defendant

Hearing: 24 September 2018 at 9:00am

Appearances:

Grant S C K Sidnam for the Plaintiffs

M J Francis and Ms I R Shennan for the Fourth Defendant

PERROTT-HUNT v JOHNSTON [2018] NZHC 2568 [24 September 2018]

Judgment: 24 September 2018

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

[1] The plaintiffs apply under r 4.56 of the High Court Rules for Ronald Bruce Johnson to be re-joined as fourth defendant in the proceeding. They also apply under s 45 of the Limitation Act 2010 for an extension of the limitation period on account of incapacity of the late Mrs Vao Hunt. At the start of the hearing, the plaintiffs signalled another issue on extension of time. They had said that they would rely on an extension of the limitation period under s 48 of the Limitation Act 2010 but Mr Sidnam indicated that that ground was abandoned and in its place, very late, he substituted an argument for late knowledge under s 11(2) and (3) of the Limitation Act.

[2] I removed Mr Johnson as fourth defendant in my decision in April 2017 because I considered that the pleadings did not show a cause of action against him. The plaintiffs now say that they have a basis for suing Mr Johnson. For that, they rely on events in October 2011. That was the discharge of the second mortgage registered against the title to the property in Edwin Freeman Place, Ranui, West Auckland.

[3]As background, I set out parts of my decision of 11 April last year:1

[2] Mr Johnson is a lawyer practising in West Auckland. He was for a period a salaried partner in the firm Corban Revell, the third defendants. In 2011 he left that firm and established his own practice, Central Park Legal Limited, an incorporated law firm. As fourth defendant he is sued as principal of Central Park Legal Limited. Corban Revell, as third defendants, have separate representation. The claims against him are for breaches of professional duty. The basis for his applications is that any alleged wrongdoing by him occurred only why he was a partner of Corban Revell, but not after he left that firm and established his own practice.

Parties

[3] The first plaintiff is the administrator of…

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 Perrott-Hunt v Johnston

Details

AGLC: Perrott-Hunt v Johnston [2018] NZHC 2568
Case: [2018] NZHC 2568
Decision Date: 24 September 2018

CaseChat Overview and Summary

The plaintiffs in Perrott-Hunt v Johnston sought to bring a claim against Bruce Johnson, a lawyer, as principal of Central Park Legal Limited. The plaintiffs sought to bring the claim under r 4.56 of the High Court Rules. The Court held that the plaintiffs were not adding Mr Johnson as a party to the proceeding. They were adding a further cause of action against him. The difference is that it is a cause of action for which he may be solely liable rather than shared liability with others. Accordingly, the Court was not going to consider the matter under r 4.56. Instead, the question really arose under r 7.77 of the High Court Rules. That allows a party to add further causes of action so long as they are not statute-barred. The Court held that the allegations against Mr Johnson in the tenth cause of action were clearly fresh and distinct from the causes of action in the earlier pleadings. Mr Johnson was sued as a principal of Central Park Legal Ltd, whereas earlier pleadings alleged liability for his conduct before he left Corban Revell. The earlier pleadings said nothing about the discharge of the second mortgage over the Edwin Freeman Place property or the events of October 2011. In short then, the new cause of action was essentially different from the earlier pleadings and was a fresh cause of action unrelated to the earlier claims against Mr Johnson. The Court held that the new cause of action was statute-barred. The time under s 11(1) of the Limitation Act for bringing a claim based on the discharge of the second mortgage ran for six years from 25 October 2011 to 24 October 2017. As six years had expired before the cause of action was pleaded on 12 June 2018, the claim was out of time under the primary period. The Court held that the suggestion that late knowledge did not become available until later did not have the required "air of reality" required under the test of Tipping J in Murray v Morell & Co Ltd. The Court held that the suggestion that the claim could be extended because of incapacity also did not have the required "air of reality". The Court held that no basis had been shown for an extension of time beyond the primary period under s 11(1) of the Limitation Act. Any suggestions of late knowledge and incapacity did not have the required air of reality to warrant extensions of time. The Court struck out the tenth cause of action in the third amended statement of claim and dismissed the application under s 45 of the Limitation Act 2010.

Orders