Poros v Burney - [2017] NZHC 3254

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-932 [2017] NZHC 3254

BETWEEN
SPYRIDON POROS

Plaintiff

AND

MAURICE BURNEY Defendant

Hearing: 1 December 2017

Appearances:

K Crossland for the Plaintiff
W C Pyke for the Defendant

Judgment:

20 December 2017

JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 20 December 2017 at 11:00am
pursuant to Rule 11.5 of the High Court Rules

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

Solicitors:
Shieff Angland, Auckland, for the Plaintiff
Brookfields (David Neutze), Auckland, for the Defendant

Counsel:
Warren C Pyke, Auckland, for the Defendants

POROS v BURNEY [2017] NZHC 3254 [20 December 2017]

[1] Mr Poros, the plaintiff, challenges the privilege asserted by Mr Burney, the defendant, in communications between himself as solicitor and his client, Ms Kylie Bax, between mid-September 2013 and mid-November 2013. Mr Poros says that he also holds privilege in them. Moreover, in a hearing in a criminal proceeding, a District Court Judge ordered disclosure of these documents under s 67(1) of the Evidence Act 2006 on the ground that they were made to further a dishonest purpose.

[2] The documents in Mr Burney’s affidavit of documents are identified as MJB.01.P001-MJB.01.P054, MJB.02.P001 MJB.02.P023 and MJB.03.P001. In the District Court the Judge identified the documents as 57, 58, 61, 62, 63, 68, 77, 80, 88,
89, 110, 114, 115, 134, 162 178, 245-252 and 325.

[3] Mr Poros is suing Mr Burney for breach of retainer when Mr Poros was deprived of an interest in a property to be bought by Ms Bax and himself. Mr Burney is the Bax family lawyer. He acts for her parents, for Ms Bax and for the trustees of the Gold Eye Trust, a trust associated with Ms Bax. She was married to Mr Poros.

[4] Ms Bax owned a property in New York. According to Mr Poros she told him that it was their property. He says that it was marital property under New York’s matrimonial property statute. Mr Crossland said that evidence as to New York law will show that a spouse takes an immediate interest in marital property, unlike New Zealand law under which a spouse who is not a legal owner of relationship property has no more than a claim, which may result in that person receiving an interest upon division by court order or agreement.1 Ms Bax sold the New York property. They came to New Zealand with their children in 2013. The proceeds of sale were sent to New Zealand.

[5] They made an agreement to buy a property in Cambridge. The copy of the agreement in evidence shows that they are both named as purchasers. A reference to
the Gold Eye Trust was crossed out. Ms Bax instructed Mr Burney to act on the

1 There is a complication that in 2009 Ms Bax settled the property on a revocable trust.

purchase. The agreement shows him as the purchasers’ lawyer. Some of the correspondence…

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 Poros v Burney

Details

AGLC: Poros v Burney [2017] NZHC 3254
Case: [2017] NZHC 3254
Decision Date: 20 December 2017

CaseChat Overview and Summary

Poros v Burney involved a dispute between Spyridon Poros, the plaintiff, and Maurice Burney, the defendant, concerning the privilege asserted by Burney in communications between himself, acting as a solicitor, and his client, Ms Kylie Bax, between mid-September 2013 and mid-November 2013. Poros claimed that he also held privilege in these documents and argued that they should be disclosed under s 67(1) of the Evidence Act 2006, which allows for the disallowance of privilege if it was made for a dishonest purpose. The case originated from a District Court decision that ordered the disclosure of the documents, a ruling Burney sought to challenge.

The legal issues before the court were twofold: first, whether joint interest privilege applied to the documents in question, allowing Poros to assert privilege; and second, whether the District Court's decision to disallow privilege under s 67(1) should be considered issue estoppel in the current proceeding. The court found that a lawyer-client relationship existed between Burney and both Poros and Bax, and as such, joint interest privilege applied. This conclusion was based on the principles of agency and the statutory provisions in the Evidence Act 2006. The court also determined that the District Court's decision, although procedural, could not be relitigated due to the principles of abuse of process and the potential for inconsistent judgments.

The reasoning of the court was that Poros, as a joint interest holder with Bax, had the right to inspect the documents in Burney's possession, especially since they related to the exclusion of Poros from the property purchase. The court held that Burney's continued assertion of privilege, in light of the District Court's ruling, constituted an abuse of process. Consequently, Poros was entitled to use the documents in the current proceeding. The court disallowed Burney's claim to privilege for the documents in question, allowing Poros to use them in this proceeding. Costs were reserved for later determination.

Orders