Taylor v Small - [2020] NZHC 1410

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-864

[2020] NZHC 1410

UNDER The Declaratory Judgments Act 1908

IN THE MATTER

of an application for a Declaratory Judgment

BETWEEN

WILLIAM PETER TAYLOR AND SUSAN MARY TAYLOR

First Plaintiffs

AND

SCOTT KERRY JACKSON AND SARAH ANNE JACKSON

Second Plaintiffs

AND

RICHARD DONALD JOHNSTON AND RACHEL ELIZABETH JOHNSTON

Third Plaintiffs

AND

TREVOR FRANK SAVORY AND SALLIE ANN RENWICK

Fourth Plaintiffs

AND

GEOFFREY CLEMMENT SMALL AND ARIA SMALL

First Defendants

AND

BOMBAY INVESTMENTS LIMITED

Second Defendant

Hearing: 17 June 2020

Appearances:

G Steyn for Second & Fourth Plaintiffs First Defendants in person

Judgment:

22 June 2020

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 22 June 2020 at 3:30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors: Grove Darlow & Partners, Auckland

TAYLOR v JACKSON [2020] NZHC 1410 [22 June 2020]

Introduction

[1] This proceeding is set down for trial over three days, commencing 27 July 2020. By application dated 5 June 2020 the first defendants apply for an order that the Court appoints counsel to assist the Court at trial. The second and fourth plaintiffs oppose the application.

[2] Mr Geoffrey Small and his wife Ms Aria Small (the first defendants), appear in person and are self-represented. Throughout the prior course of this extensive litigation the first defendants were represented by solicitors and counsel, however they have since terminated their engagement.

[3] In September 2019 the first and third plaintiffs discontinued their claims against the first and second defendants,1 leaving the second and fourth plaintiffs to pursue their claims against them.

The application

[4]The first defendants’ application is made on the grounds:

(a)that we are self-represented and don’t understand the procedures and wish to make it easier for the Judge to deal with the proceeding with Counsel assisting.

(b)the costs awarded to us from the High Court of Appeal [sic] have still not been received.

(c)due to Covid-19 [Mr Small’s] work has reduced significantly.

[5] The first defendants have not supported their application with an affidavit, however, in response to questions from the Court they say that although they have significant property assets, they do not have any available liquid funds with which to meet the legal fees required to engage and retain solicitors and counsel to represent them at the hearing scheduled to commence on 27 July 2020. Mr Small explained that he and his wife have already expended a considerable sum on lawyers’ fees and do not wish to continue to do so. They say however, that they have not applied for legal aid

1 Notice of discontinuance, 2 September 2019.

as they anticipate that their application would not succeed because of the value of their real estate assets.

[6] Mr Steyn, for the second and fourth plaintiffs, notes that in September 2019 Lang J directed a trial of the proceeding and scheduled the trial to commence on 4 May 2020.…

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 Taylor v Small

Details

AGLC: Taylor v Small [2020] NZHC 1410
Case: [2020] NZHC 1410
Decision Date: 22 June 2020

CaseChat Overview and Summary

The case of Taylor v Small was brought before the High Court of New Zealand, Auckland Registry, where the plaintiffs, including William Peter Taylor, Susan Mary Taylor, Scott Kerry Jackson, Sarah Anne Jackson, Richard Donald Johnston, Rachel Elizabeth Johnston, Trevor Frank Savory, and Sallie Ann Renwick, sought a declaratory judgment against the first defendants, Geoffrey Clement Small and Aria Small, and the second defendant, Bombay Investments Limited. The dispute centred around whether the Smalls' construction of an equestrian facility on their property contravened a restrictive covenant. The second and fourth plaintiffs opposed the first defendants' application for the appointment of counsel to assist the Court at the trial, scheduled to begin on 27 July 2020.

The court was required to decide whether it was appropriate to appoint counsel to assist the Court under Rule 10.22 of the High Court Rules 2016. This decision hinged on whether the appointment of such counsel would aid the court in understanding complex or difficult issues, present opposing arguments from the perspective of a contradictor, or assist in fully considering contrary arguments and contentions. The court had to consider if the appointment would serve the public interest or merely provide legal aid to a self-represented litigant in a private dispute.

The court's reasoning was based on the understanding that the appointment of counsel to assist is intended to help the court rather than the parties, and it should not be used as a substitute for legal aid or to streamline the case of a self-represented litigant in private litigation. The court noted that the case involved a dispute over a restrictive covenant and did not present any issues of public interest. Furthermore, the first defendants had chosen to be self-represented and had not applied for legal aid. Consequently, the court found that the first defendants had not provided a sufficient basis for the appointment of counsel to assist the Court. The court emphasized that while financial barriers to civil justice were acknowledged, the Court's role was not to replace the legal aid system.

The court declined the application for the appointment of counsel to assist the Court at the hearing on 27 July 2020. Costs on the application were reserved.

Orders