Taylor v Wynn Williams - [2017] NZHC 1558

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2016-409-000853 [2017] NZHC 1558

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: 4 July 2017

Appearances:

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

Judgment:

6 July 2017

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

Introduction

[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 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

TAYLOR v WYNN WILLIAMS [2017] NZHC 1558 [6 July 2017]

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 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] Wynn Williams applies to strike out the proceeding on the basis that it is barred by the provisions of the Limitation Act 1950. This provides that an action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued.

Key dates

[5] The trial of the proceeding concluded on 27 August 2010. Judgment was entered on 14 December 2010. This proceeding was issued on 5 September 2016. Thus a period of six years prior to that date falls between the end of the trial and the date judgment was issued.

[6] Advice in relation to the appeal is said to have been given on 21 January

2011, within six years of the date this proceeding was commenced. Mr Barton says that Wynn Williams accepts that this part of the cause of action is not out of time.

Principles to be applied on an application to strike out

[7] Rule 15.1 of the High Court Rules provides:

Dismissing or staying all or part of proceeding

(1) The court may strike out all or…

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: [2017] NZHC 1558
Decision Date: 6 July 2017

CaseChat Overview and Summary

The plaintiff, David John Taylor, and his wife, Alison Taylor, as trustees of the DJ Taylor Family Trust, commenced proceedings against Wynn Williams, their former solicitors, alleging that Wynn Williams breached their duty of care in representing them in earlier proceedings against the Bank of New Zealand and the receivers of Cabellos Holdings Limited. The defendants, Wynn Williams, sought to have the proceeding struck out on the basis that it was time-barred under the Limitation Act 1950. The key issue was whether the plaintiffs' cause of action accrued when the trial concluded on 27 August 2010 or when judgment was entered on 14 December 2010. The court found that the cause of action accrued when the judgment was issued, and since the proceeding was filed within six years of that date, it was not time-barred. The application to strike out the proceeding was dismissed.

The court assumed the pleaded facts to be true and found that the plaintiffs did not suffer a loss attributable to the alleged negligent actions until the judgment was delivered, which fixed the effect on their asserted rights. The court also held that the plaintiffs could have applied for leave to adduce further evidence under section 98 of the Evidence Act 2006 at any time before judgment was delivered. The court rejected the defendants' argument that the plaintiffs' failure to make such an application was not pleaded as a particular of negligence and could not be added as it would be out of time. The court held that adding a further particular alleging negligence by failing to make an application for leave under section 98 would not constitute a change to the legal basis of the claim made against Wynn Williams.

Orders