Swift v Gray - [2022] NZHC 1794

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1704

[2022] NZHC 1794

UNDER
The Trusts Act 2019, section 19,

the Law Reform (Testamentary Promises)
Act 1949, and
the Family Protection Act 1955

BETWEEN

DEBORAH ANN SWIFT

Plaintiff

AND

JOHN ANDREW GRAY

First Defendant

INSIGHT LEGAL LIMITED

Second Defendant

Hearing: 4 July 2022

Appearances:

Gary Judd QC for the Plaintiff

Antony Holmes and Helen Twomey for the Defendants

Judgment:

27 July 2022

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

This judgment was delivered by me on 27 July 2022 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

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

Solicitors:
K J Patterson,Tauranga, for the Plaintiff
Robertsons (Helen Twomey), Auckland, for the Defendants
Counsel:
Gary Judd QC, Auckland, for the Plaintiff
Antony Holmes, Auckland, for the Defendants

SWIFT v GRAY [2022] NZHC 1794 [27 July 2022]

Introduction

[1] Deborah Swift applies for a declaration that Robertsons, the law firm acting in this proceeding for both Dr John Gray and Insight Legal Ltd (together, the respondents), has an unreconcilable conflict of interest. She also applies for an order that Robertsons cease to act for both respondents.

[2] The claim is brought in reliance of r 1.20(2) of the High Court Rules 2016, which states that a lawyer who acts for a party to a proceeding must not, without the Court’s leave, act for any other party to the proceeding who does not have the same interest in the proceeding’s subject matter.

Background

[3] Brian and Sally Swift, respectively Deborah’s father and mother,1 made wills in early 2012 providing that, on the death of the survivor, the whole of the estate less a small legacy would go to Deborah.

[4] Sally died on 15 November 2012. Brian thereafter made a new will dated 17 December 2012, leaving his entire estate to Deborah. He and Deborah also signed a deed of acknowledgement of debt that Insight Legal prepared. The deed expresses a loan of $50,000 from Brian to Deborah, which the latter could access only on Brian’s death. The sum was to be paid into Insight Legal’s trust account and used for the upkeep and outgoings of the family home until the finalisation of Brian’s estate. It was repayable on demand. Deborah says these arrangements were consistent with Brian declaring a trust in her favour in respect of the house and the $50,000.

[5] Deborah says Brian had a major drinking problem and deluded himself that Deborah had stolen Sally’s jewellery after she died. She says the truth is that Sally gave Deborah her jewellery, recording in a note her intentions as to its disposition. In any event, Brian, in 2015, made and executed a new will appointing Dr Gray sole

1 Given the commonality of surnames in this proceeding, and meaning no disrespect, I will refer to the Swifts throughout by their given names.

executor and trustee, and leaving one seventh of the estate to Deborah. Under…

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 Swift v Gray

Details

AGLC: Swift v Gray [2022] NZHC 1794
Case: [2022] NZHC 1794
Decision Date: 27 July 2022

CaseChat Overview and Summary

Deborah Swift seeks a declaration that Robertsons, the law firm representing both Dr John Gray and Insight Legal Ltd, has an unreconcilable conflict of interest and should cease to act for both respondents. The legal issues revolve around whether there is a conflict of interest under r 1.20(2) of the High Court Rules, and whether the respondents have the same interest in the proceedings under the same rule. The court examines the relevant rules and case law, particularly the decision in Landmark Property Holdings Ltd v Shen Empire Ltd, which holds that the test is whether the parties in question have a “community of interest” and it is not sufficient that the parties have no conflict of interest. The court concludes that Dr Gray and Insight Legal have the same interest in the proceedings and that Robertsons can continue to act for both respondents without leave of the court. The application is dismissed and costs are awarded to Dr Gray and Insight Legal on a 2B basis.

Orders