Ponniah v Palmer - [2012] NZHC 1574

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-7662 [2012] NZHC 1574

IN THE MATTER OF A Caveat No. 8876496.2 North Auckland
Land Registry

BETWEEN LAWRENCE PONNIAH AND JOHN PERA KAHUKIWA
Applicants

ANDNORMAN PALMER AND NICOLAS VAN DIJK
Respondents

Hearing: 3 July 2012

Appearances: Mr P Revell for Applicants
Mr E J Werry for Respondents

Judgment: 5 July 2012

JUDGMENT OF ASSOCIATE JUDGE DOOGUE [Caveat not lapse]

This judgment was delivered by me on
05.07.12 at 4 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Counsel:
Corban Revell, P O Box 21-180, Waitakere City – prevell@corbanrevell.co.nz
E J Werry, Barrister, P O Box 105-270, Auckland – ejwerry@gmail.com

PONNIAH AND Anor V PALMER AND Anor HC AK CIV-2011-404-7662 [5 July 2012]

[1] The applicants in this case are partners in a law firm, Corban Revell, which provided legal services to a group of persons in an apartment complex which was subject to weather tightness problems.

[2] Units 5, 7, and 8 in the complex were owned by a trust called the Livi Trust. A Mr Ivil was the settlor of the Livi Trust. The trustees of the trust were Mr Van Dijk and Mr Norman Palmer (“the trustees”).

[3] On 7 May the trustees executed a document entitled “Authority for representation and assessment”. The purpose of that document was to authorise the Weathertight Services assessor under the Weathertight Homes Resolution Services Act 2006 to enter the properties and carry out invasive testing. In the document which they signed, the trustees also nominated Mr B Ivil, as their representative “to bring and resolve a claim for the above complex”. The “above” complex was
15 Clearwater Cove, West Park Marina, Hobsonville.

[4] Proceedings were heard by the Weathertight Homes Tribunal commencing on

28 February 2011. Both of the trustees attended and gave evidence. The solicitors assisted the trustees to prepare their briefs of evidence and provided legal representation at the hearing. As far back as June 2008 the trustees had signed a Weathertight Homes Tribunal document which provided for owners to execute if they wished to appoint an agent, lawyer or representative to conduct the claim on their behalf. It was essentially an authority to act and it nominated, in the case of the trust, Mr Ponniah as the lawyer who would be acting.

[5] In general terms the evidence included statements by the trustees that Mr Ivil was the person who had negotiated terms of agreements with service providers for the remediation of the apartments and he was the person who interacted with the council and other involved parties on behalf of the trust. Mr Van Dijk who was asked about having signed certain documents described himself as being a “figure head” for the “principal Mr Ivil”. Mr Ivil who was the settlor of the trust also gave evidence.

[6] On the eve of the Weathertight Homes Tribunal proceeding, the applicants were concerned about the large amount of unpaid accounts already owing in respect 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 Ponniah v Palmer

Details

AGLC: Ponniah v Palmer [2012] NZHC 1574
Case: [2012] NZHC 1574
Decision Date: 5 July 2012

CaseChat Overview and Summary

In the case of Ponniah v Palmer, the applicants, partners in a law firm, sought to lodge caveats against properties owned by the respondents, who were trustees of a trust. The applicants claimed that the respondents owed them a significant amount for legal services provided in relation to a weather tightness dispute. The respondents opposed the caveats on the basis that the applicants did not have a valid security agreement to support their claim. The central issue in the case was whether the trustees had authorised Mr Ivil, the settlor of the trust, to execute a guarantee and mortgage over the trust properties to secure the applicants' legal fees.

The court examined whether the trustees had expressly or implicitly authorised Mr Ivil to execute the security documents. The applicants argued that the trustees had implicitly authorised Mr Ivil by allowing him to control the litigation process and instruct the law firm. The court rejected this argument, stating that even if Mr Ivil had been implicitly authorised to initiate legal proceedings, this did not extend to authorising him to execute a mortgage over the trust properties. The court also considered whether the trustees could validly delegate their powers to Mr Ivil, but found that there was no evidence of such a delegation, and that the trust deed did not permit the trustees to delegate their decision-making powers to an agent.

The court concluded that the applicants had no entitlement to lodge caveats against the trust properties, and dismissed the application. The parties were directed to confer on the costs and, if unable to agree, to file memorandums not exceeding four pages on each side within three weeks of the date of the judgment.

Orders