Ross v McKay - [2014] NZHC 2694

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-1690 [2014] NZHC 2694

BETWEEN
JOHN PATRICK ROSS

Plaintiff

AND

COLIN CHARLES McKAY, ROGER DAVID McCANN, DAVID JOHN CLARK of WILSON McKAY, sued as a firm Defendants

Hearing: 22 October 2014

Appearances:

J B Samuel for the Plaintiff
R Scott for the Defendants
E Sweet for Mrs Josephine Mary Gates, interested party

Judgment:

22 October 2014

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors:
Jennifer G Connell & Associates (J B Samuel), Auckland, for Plaintiff
McElroys (Rebecca Scott), Auckland, for Defendants
Kirkland Morrison O’Callahan (Emma Sweet) Auckland, for interested party

ROSS v WILSON McKAY, sued as a firm [2014] NZHC 2694 [22 October 2014]

[1] In December 2001 Mr Ross entered into a contracting-out agreement under Part 6 of the Property (Relationships) Act 1976 with Mrs Gates. They were in a relationship. I use that term neutrally. There are issues as to whether their relationship was a de facto relationship within s 2D of the Property (Relationships) Act when it began and the quality of that relationship in December 2001. Under their agreement Mr Ross and Mrs Gates agreed to keep their respective property separate. Their relationship came to an end in July 2011.

[2] Mr Ross now regrets entering into that agreement. He has applied in the Family Court to have the agreement declared void under s 21F of the Property (Relationships) Act, and to have it set aside on account of serious injustice under s
21J. He alleges that he did not receive adequate independent advice from Wilson McKay when he entered into the agreement. In this proceeding he sues Wilson McKay for negligence in the advice they gave him. His claim is for breach of contract and in tort.

[3] There are three main matters in this hearing:

(a) Mr Ross has applied for summary judgment as to liability;

(b) Wilson McKay has applied to strike out for abuse of process because

Mr Ross’ claim is statute-barred; and

(c) Mrs Gates has applied to take part in the proceeding as an intervener.

Background

[4] The relationship between Mr Ross and Mrs Gates began in 1996. On

1 August 2001, the Property (Relationships) Amendment Act 2001 came into force. That amendment to what was then called the Matrimonial Property Act 1976 extended the community property régime to de facto relationships. The rules for division of relationship property owned by de facto partners under the amendment Act correspond broadly to the rules for division of property owned by married couples. While the amendment Act came into force on 1 August 2001, the division

rules only came into effect on 1 February 2002. Part 6 of the principal Act, which deals with contracting-out agreements, was amended with effect from 1 August
2001. Part 6 is relevant because it applies to the agreement between Mr Ross and

Mrs Gates. I will describe the agreement of December 2001 later.

[5] At the same time as Mrs Gates and Mr Ross entered…

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: [2014] NZHC 2694
Decision Date: 22 October 2014

CaseChat Overview and Summary

The case of Ross v McKay was heard in the High Court of New Zealand. The plaintiff, John Patrick Ross, alleged that the defendants, Colin Charles McKay, Roger David McCann, and David John Clark, of the law firm Wilson McKay, were negligent in the advice they provided him regarding a contracting-out agreement he entered into with Josephine Mary Gates. Ross claimed that the advice was inadequate and that he was not properly warned of the implications of the agreement. He sought damages for breach of contract and in tort. The court had to decide whether Ross's claims were statute-barred, whether Wilson McKay's application to strike out the claim should be granted, and whether Josephine Mary Gates could participate in the proceedings as an intervener.

The court found that Ross's claims were indeed statute-barred. The court considered the limitation period under the Limitation Act 1950, and concluded that Ross's claims for both breach of contract and negligence were time-barred as they were brought after the expiration of the limitation period. The court further found that the introduction of the Limitation Act 2010 did not revive Ross's expired claims.

Regarding the summary judgment application, the court declined to grant it, citing the difficulties in making findings of liability in professional negligence cases, especially when there were contested facts between the parties. The court also noted that there was a pending proceeding in the Family Court, which made it prudent to await its determination before making any findings in the High Court.

Lastly, the court allowed Josephine Mary Gates to participate in the proceedings as an intervener. The court found that there were overlapping issues in both proceedings, and allowing Gates to inspect the court file in the High Court proceeding would promote a consistent approach and avoid any inconsistency of decision between the two courts.

In conclusion, the court struck out Ross's claim against Wilson McKay as being statute-barred, denied the summary judgment application, and allowed Josephine Mary Gates to participate in the proceedings as an intervener.

Orders