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Sutcliffe v Tarr

Sutcliffe v Tarr

Case [2018] NZCA 135 3 May 2018

Abuse of Process

Issue Estoppel

Standing

Civil Litigation & Procedure

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA208/2017
[2018] NZCA 135

BETWEEN	DOUGLAS JOHN SUTCLIFFE First Appellant TERENCE SUTCLIFFE AND BRADEN MATSON AS PARTNERS OF FROST & SUTCLIFFE LAWYERS Second Appellants
AND	PHILIP CLAUDE TARR Respondent

Hearing:	7 March 2018
Court:	Asher, Brewer and Collins JJ
Counsel:	P J L Hunt and J Heard for First and Second Appellants R D Butler and L V F Ingram for Respondent
Judgment:	3 May 2018 at 10.30 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe respondent’s proceeding against the first appellant is an abuse of the process of the Court. It is struck out.
CThe respondent must pay the appellants one set of costs for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brewer J)

Introduction

Mr Tarr is suing Mr Sutcliffe.[1] His action relates to a property purchase which took place in 1996. Mrs Tarr, at that time Mr Tarr’s estranged wife, was also involved. Mr Sutcliffe, a solicitor, acted on the purchase of the property, which was bought in the name of a company incorporated for the purpose, Great Empire Ltd (GEL). Mr and Mrs Tarr were the shareholders.
[1]His claims against the second appellants were discontinued shortly before the hearing before us.
Mr Tarr claims:
(a)Mr Sutcliffe exerted undue influence on Mr Tarr in breach of a solicitor/client relationship to persuade Mr Tarr to sign a blank share transfer by use of which Mrs Tarr later deprived Mr Tarr of the benefit of his shareholding in GEL.
(b)Mr Sutcliffe breached fiduciary duties owed to Mr Tarr as his solicitor by failing (in paraphrase) to act in Mr Tarr’s best interests, the result of which was Mr Tarr’s loss of the benefit of his shareholding in GEL.
Mr Sutcliffe applied to the High Court for summary judgment against Mr Tarr, or for strike-out of the causes of action against him. His application was heard by Associate Judge Christiansen on 20 March 2017. Mr Sutcliffe argued:
(a)the defence of laches applies as the alleged acts/omissions took place 20 years prior to the bringing of proceedings and Mr Sutcliffe cannot recall the events and has no records relating to them; and
(b)the claim is an abuse of process, or is barred by issue estoppel, because the Family Court and the High Court have already determined that Mr Tarr held the shares on trust for Mrs Tarr, and rejected the factual assertions Mr Tarr relies on for this new action.
Associate Judge Christiansen dismissed Mr Sutcliffe’s application.[2] He now appeals the dismissal.

Background

[2]Tarr v Sutcliffe [2017] NZHC 547.

Mr Tarr first brought the issue of ownership of the shares to the courts when he filed relationship property proceedings against Mrs Tarr in the Family Court in April 2007, some 14 years after he and Mrs Tarr separated. Judge de Jong held:[3]
[3]Tarr v Tarr [2013] NZFC 8921 [Judge de…

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 Sutcliffe v Tarr

Details

AGLC: Sutcliffe v Tarr [2018] NZCA 135
Case: [2018] NZCA 135
Decision Date: 3 May 2018 at 10.30 am

CaseChat Overview and Summary

The case of Sutcliffe v Tarr involved a legal dispute between Philip Tarr and Douglas Sutcliffe, a solicitor. Tarr brought an action against Sutcliffe, claiming that Sutcliffe had exerted undue influence on him and breached fiduciary duties in relation to a property purchase in 1996. The claims against the second appellants were discontinued. The appeal to the Court of Appeal of New Zealand concerned the dismissal of Sutcliffe's application for summary judgment or strike-out of Tarr's causes of action against him.

The legal issues before the Court of Appeal were whether the proceeding against Sutcliffe was an abuse of process, whether the defence of laches applied, and whether issue estoppel barred Tarr's claims. The Court of Appeal found that the proceeding against Sutcliffe was indeed an abuse of process, as it required Tarr to challenge specific findings from previous proceedings, which had already determined that Tarr had no beneficial interest in the shares in question. The Court also found that there was no error in the lower court's decisions on the defence of laches and issue estoppel.

The Court of Appeal allowed the appeal, striking out Tarr's proceeding against Sutcliffe as an abuse of process. The Court ordered that the respondent must pay the appellants one set of costs for a standard appeal on a band A basis and usual disbursements. The decision reinforces the principle that a party should not be allowed to relitigate a claim previously determined by the court.

Orders