Taylor v Wynn Williams - [2017] NZHC 2598

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2016-409-000853 [2017] NZHC 2598

BETWEEN
DAVID JOHN TAYLOR

Plaintiff/Applicant

DAVID JOHN TAYLOR and ALISON TAYLOR as trustees of the DJ Taylor Family Trust

Second Applicant

AND

WYNN WILLIAMS Respondent

Hearing: 18 October 2017

Counsel:

D Fraundorfer and M Beech for Applicants
F B Barton and R M Barton for Respondent

Judgment:

25 October 2017

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1] Mr and Mrs Taylor, and the trustees of the DJ Taylor Family Trust (the Taylors), were represented by Wynn Williams, solicitors, in proceedings they brought against the Bank of New Zealand (BNZ) and the receivers of a family company owned by the Taylors, Cabellos Holdings Limited (Cabellos). The claim failed, with judgment being entered for both the bank and the receivers.

[2] In the present proceedings the Taylors allege Wynn Williams owed them a duty of care to advise and represent them with reasonable skill and care, and that Wynn Williams breached this duty. As particulars of breach of duty, in the single cause of action, the Taylors say first that expert evidence should have been called from an expert forensic accountant or business analyst, an expert valuer, and an expert receiver, but the Taylors were not advised to do so, and Wynn Williams decided in the course of the proceeding not to do so. Secondly, the Taylors say that
the proceeding should have also been brought against a Mr Paul Hibbs who was the

TAYLOR v WYNN WILLIAMS [2017] NZHC 2598 [25 October 2017]

controlling shareholder of a company called Cameron Gladstone Commercial Limited which owned shares in Cabellos and which in due course became the buyer of Cabellos from the receivers.

[3] Thirdly the Taylors say that Wynn Williams advised them not to appeal the judgment of this Court, and failed to do so within the time prescribed for an appeal to be lodged.

[4] The respondent, Wynn Williams, applies for an order that the plaintiffs give security for costs.

Principles to be applied on an application for security for costs

[5] The application is brought under r 5.45 High Court Rules, which provides, to the extent relevant:

5.45 Order for security of costs

(1) Subclause (2) applies if a Judge is satisfied, on the application of a defendant, -

(a) …

(b) that there is reason to believe that a plaintiff will be unable to pay the costs of the defendant if the plaintiff is unsuccessful in the plaintiff’s proceeding.

(2) A Judge may, if the Judge thinks it is just in all the circumstances, order the giving of security for costs.

(3) An order under subclause (2) –

(a) requires the plaintiff or plaintiffs against whom the order is made to give security for costs as directed for a sum that the Judge considers sufficient –

(i) by paying that sum into court; or

(ii) by giving, to the satisfaction of the Judge or the Registrar, security for that sum; and

(b) may stay the proceeding until…

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 Wynn Williams

Details

AGLC: Taylor v Wynn Williams [2017] NZHC 2598
Case: [2017] NZHC 2598
Decision Date: 25 October 2017

CaseChat Overview and Summary

In Taylor v Wynn Williams, the plaintiffs, David and Alison Taylor, along with the trustees of the DJ Taylor Family Trust, initiated proceedings against Wynn Williams, their former solicitors, alleging professional negligence in their representation during a previous litigation against the Bank of New Zealand and the receivers of Cabellos Holdings Limited. The plaintiffs argue that Wynn Williams failed to call expert evidence, did not bring a claim against a relevant third party, and did not advise the plaintiffs to appeal the earlier judgment, resulting in financial loss to the plaintiffs. Wynn Williams applied for an order that the plaintiffs provide security for costs, claiming that the plaintiffs are unlikely to pay costs if unsuccessful.

The court considered the principles for granting security for costs, focusing on whether there is a reason to believe that the plaintiffs will be unable to pay the defendants' costs if unsuccessful, and if it is just to order security for costs. The court found that the plaintiffs acknowledged they would be unable to pay costs if unsuccessful, thus satisfying the threshold test. The court examined the strength of the plaintiffs' claim, noting that while the case faced difficulties, it could not be described as unmeritorious. The court also considered the plaintiffs' financial position, acknowledging their limited means and the potential impact on their access to justice. The court did not find it probable that the plaintiffs' impecuniosity was caused by Wynn Williams.

Ultimately, the court decided to order a modest sum of $15,000 as security for costs, to be paid in instalments over a year, with the first payment being an amount owed by Wynn Williams to the plaintiffs from a previous application. The court reserved the right for Wynn Williams to seek a review of the security amount closer to the trial date and adjourned the application for further consideration. The court directed that costs should lie where they fell.

Orders