Schmidt v Legal Services Commissioner - [2022] NZHC 200

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-000398

[2022] NZHC 200

BETWEEN
TAYLOR JADE SCHMIDT

Appellant

AND

THE LEGAL SERVICES COMMISSIONER

Respondent

Hearing: 2 December 2021

Appearances:

N Levy QC, A Jeremich and A Woodhouse (VMR) for the Appellant

L Hansen for the Respondent

Judgment:

17 February 2022

JUDGMENT OF GRICE J

(Appeal)

SCHMIDT v THE LEGAL SERVICES COMMISSIONER [2022] NZHC 200 [17 February 2022]

Contents

Background to civil claim [4]
Procedural history [6]

Appeal on question of law [13]

Appeals from the Legal Aid Tribunal [13]

The requirements of decision making by the Commissioner under the Act [17] The approach to review by the Tribunal [25]

Grounds of appeal  [28]
High Court decision  [33]
The Legal Aid Tribunal decision  [84]

The Tribunal’s assessment [86]

Analysis [93]

Issue 1: The tainting of the Commissioner’s decision by the finding that the deed of trust had been fabricated [94]
Issue 2: Failure to engage in the detail of the appellant’s submission to the
Commissioner and the Tribunal [122]

Overall analysis [144]

Costs [148]

[1] This is an appeal from a decision of the Legal Aid Tribunal, dated 29 June 2021 (the Tribunal decision).1 The decision was a review by the Tribunal in which it upheld the refusal by the Commissioner to grant legal aid to the appellant to fund an appeal to the Court of Appeal against a decision of the High Court (the High Court decision).2

[2] The High Court had dismissed the claims of the appellant and Mr Schmidt (the Schmidts) that the defendants held various property for their interests on trust or subject to obligations formulated on a number of alternative bases.

[3] The civil proceedings had been issued by Ms Schmidt and her former partner (Mr Schmidt) against a Mr Garrity and his company, Ebada Property Investments Ltd (Ebada).

Background to civil claim

[4] Mr Schmidt and Mr Garrity were good friends. During difficult financial times between 2005 and 2006, trusts associated with the Schmidts transferred two properties (one on Kaiaua Road and one on Bell Road) to Ebada. Ultimately, Ebada sold Bell Road, and a mortgagee sold Kaiaua Road to third parties.

[5] The Schmidts said the properties were held on trust for their benefit by Mr Garrity’s company, Ebada, and Mr Garrity and Ebada dealt with them in breach of trust or other obligations. Mr Garrity and Ebada deny there was any trust or such obligations.

Procedural history

[6] An application for legal aid was first made in 2012. In 2017, legal aid was granted for the appellant to be represented at a seven-day hearing in the High Court, before Venning J.

[7]The Schmidts brought five claims:

(a)intentional breach of express trust;

(b)breach of institutional constructive trust;

(c)knowing assistance/knowing receipt of intentional breach of trust;

(d)breach of fiduciary duty; and

(e)undue influence.

[8] The Schmidts produced a deed of trust to support the first cause of action based on an express trust. The Judge found…

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: [2022] NZHC 200
Decision Date: 17 February 2022

CaseChat Overview and Summary

In Schmidt v Legal Services Commissioner, the Court was required to determine whether the High Court had erred in dismissing the appellant's appeal against the refusal of legal aid by the Commissioner to fund an appeal to the Court of Appeal. The High Court had dismissed the appellant's claims that the defendants held various properties for their interests on trust or subject to obligations formulated on a number of alternative bases. The appellant argued that the Commissioner and the Tribunal had erred in their assessment of the prospects of success of the appeal. The Court found that the Tribunal did not err in its assessment of the prospects of success of the appeal. The Court held that the findings of the trial Judge were largely based on credibility supported by an evaluation and analysis of the documentary evidence. The appellate Court in this case will have a disadvantage in not seeing and hearing the evidence, and this is not a case where the determinations can be based on an analysis of the documents alone. The Court found that the Tribunal did engage with the appellant's alternative view, although not in the detail that the appellant considered was appropriate. The Tribunal gave succinct but sufficient reasons for its determination on review. Nothing more was required. The Court dismissed all grounds of appeal.

Orders