Tonise v Woodroffe Law Partnership

[2020] NZHC 1926

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-582

[2020] NZHC 1926

IN THE MATTER OF

section 124 of the District Court Act 2016

BETWEEN

IORITANA TONISE

Appellant

AND

WOODROFFE LAW PARTNERSHIP

Respondent

Hearing:	21 July 2020
Counsel:	J C Gwilliam and H Joubert for the appellant O Woodroffe for the respondent
Judgment:	3 August 2020

JUDGMENT OF CULL J

[1]    Mr Tonise, the appellant, applied for summary judgment in the District Court against the respondent, Woodroffe Law Partnership (Woodroffe’s) on the basis that Woodroffe’s claims against him for legal fees could not succeed because there was never any contractual relationship between himself and Woodroffe’s; the claim is statute-barred; and the claim is an abuse of process. The District Court declined his application and Mr Tonise appeals.1

[2]    This appeal concerns one ground only: whether the claim is statute-barred under the Limitation Act 1950.2 Mr Tonise seeks an order for summary judgment against Woodroffe’s on that basis.

1      Woodroffe Law Partnership v Fagalilio and Tonise [2019] NZDC 17162.

2      The Limitation Act 1950 applies by virtue of the Limitation Act 2010, s 59.

TONISE v WOODROFFE LAW PARTNERSHIP [2020] NZHC 1926 [3 August 2020]

Background

[3]    The legal fees which are the subject of Woodroffe’s claim against Mr Tonise were incurred in respect of a proceeding which commenced in the High Court in 2008 against Mr Luaiva Fagalilo, the pastor of the Green Valley Samoan Assembly of God Church, an unincorporated society.3 Woodroffe’s acted for Pastor Fagalilo in defending the proceeding, which involved a disagreement between two factions of the Green Valley Church about the appointment of a new trustee of the Green Valley Church’s Trust Board. Pastor Fagalilo was largely unsuccessful in the litigation, and costs were awarded against him.4

[4] Woodroffe’s issued summary judgment proceedings against Pastor Fagalilo on 16 March 2012 for payment of fees of $91,540.94. Mr Tonise, a member of the Green Valley Church, swore an affidavit in support of Pastor Fagalilo’s opposition. On 30 April 2012, the same day Mr Tonise swore his affidavit, he made a formal complaint on behalf of the Green Valley Church to the Lawyers Complaints Service about Mrs Woodroffe’s incompetence, unprofessionalism and that her fees were overcharged. This complaint triggered the operation of s 161(1) of the Lawyers and Conveyancers Act 2006 which stayed the summary judgment proceeding until the complaint was finally disposed of.

[5] In June 2013, the New Zealand Law Society Standards Committee essentially upheld the complaint. Woodroffe’s applied for a review of that decision to the Legal Complaints Review Officer who, in March 2015, overturned the Committee’s decision and sent the matter back to the Committee for further consideration. On 7 July 2016, the Standards Committee delivered its second decision and upheld the complaint in part. Woodroffe’s fees were reduced by $9,000 and they were fined $500 plus costs. A finding was made of unsatisfactory conduct, and a certificate of final determination of the matter was issued under s 161(2) of the Lawyers and Conveyancers Act. Woodroffe’s filed a review of this second decision which was upheld on 17 May 2017. Pastor Fagalilo passed away during this process in May 2015.

3      Time v Fagalilo HC Wellington CIV-2008-485-540, 9 March 2010.

4      Time v Fagalilo HC Wellington CIV-2008-485-540, 30 June 2010; and Time v Fagalilo [2011] NZCA 605.

[6]    On 1 May 2018, a payment of $13,100 from the National Body of the Samoan Assemblies of God was made towards Woodroffe’s fees. On 7 August 2018, a further payment of $2,500 was made. It is not clear why the National Body made these payments. Mr Tonise says he is unaware of them and Woodroffe’s say they did not ask for payment from the National Body.

[7]    On 4 September 2018, Woodroffe’s applied to join Mr Tonise as a second defendant  in  its  proceedings  against  Pastor Fagalilo.  Joinder  was  granted  on   12 October 2018 and backdated to the date of the application on 4 September.5

[8]    On 25 February 2019, Woodroffe’s filed an amended statement of claim particularising its claim against Mr Tonise and claiming outstanding fees of

$65,590.94. The claim is made on the basis of both “services supplied” and “quantum meruit”. As to the services supplied, it alleges that Pastor Fagalilo instructed Woodroffe’s to supply legal services in respect of the Green Valley Church “on behalf of himself and members of the congregation”, an unincorporated body comprising of individual people; that Woodroffe’s supplied legal services to Pastor Fagalilo and the congregation; that Mr Tonise  was  a  member  of  the  congregation;  and  that  Pastor Fagalilo engaged Woodroffe’s both in his own right as pastor, as a member of the congregation and as an agent for other members of the congregation. Woodroffe’s also plead that Mr Tonise held himself and the congregation out as liable for the fees in the complaint to the Legal Complaints Service. As to the quantum meruit claim, it is pleaded Mr Tonise accepted the benefit of the legal fees and is liable to pay a reasonable fee as compensation in the sum claimed.

[9]    On 12 March 2019, Mr Tonise applied for summary judgment against Woodroffe’s. On 25 March, Woodroffe’s dispensed with the services of counsel and is now self-represented.

Decision under appeal

[10]   Mr Tonise sought judgment on the basis that Woodroffe’s claims against him cannot succeed because there has never been any contractual relationship between

5      Woodroffe Law Partnership v Fagalilo [2018] NZHC 2727.

himself and Woodroffe’s; the claim is statute-barred; and the claim is an abuse of process.6

[11]   There was no dispute that Pastor Fagalilo entered the contact with Woodroffe’s for the provision of legal services. The issue before the District Court was whether Pastor Fagalilo did so on behalf of himself personally or on behalf of other members of his congregation, including Mr Tonise.

[12]   Judge Tuohy was not satisfied that Woodroffe’s claim that Pastor Fagalilo entered into the contract on behalf of himself and other members of his congregation could not succeed. He found it was plain from the earlier litigation in respect of which Woodroffe’s fees were incurred that the true protagonists were the opposing factions represented in the litigation by their respective leaders, one of whom was Pastor Fagalilo. The Judge considered the circumstances were such that it is “highly unlikely” that either of those leaders would have embarked upon that litigation without the express or implied authority of the members of the original congregation, who supported their respective stances.7 The Judge also relied on the two documents mentioned in [4] above, both signed by Mr Tonise on 30 April 2012. The first was the letter of complaint to the Lawyers Complaints Service, in which Mr Tonise wrote:

I write on behalf of my church group once known as the Green Valley Samoan Assembly of God. We instructed Olinda Woodroffe in 2008 to assist us in a dispute with other members of our church…

[13]   The second was Mr Tonise’s affidavit, in which he describes himself as “a duly appointed officer [of] the Mount Zion Samoan Assemblies of God whom [Pastor Fagalilo] represents and has been an agent for through the matters pertaining to these proceedings”. Mount Zion Samoan Assemblies of God is the new name for the Green Valley Church. The Judge concluded that the existence of a relationship of agency between Mr Fagalilo and Mr Tonise and other members of the congregation is a factual dispute requiring a determination. He concluded that Mr Tonise’s position is “by no means unarguably established on the evidence, as it must be if summary judgment is to be granted. Indeed, it is barely arguable.”8

6      Woodroffe Law Partnership v Fagalilio and Tonise, above n 1.

7 At [31].

8 At [38].

[14]   On the Limitation Act claim, the Judge recognised that a claim for the amount of these invoices is an action founded on simple contract which cannot be brought after six years from when the cause of action accrued.9 In an action for breach of contract, the cause of action is the breach, in this case the failure to make payments for the services when they were due. For the last of the invoices, payment fell due on 20 January 2011, clearly more than six years before Mr Tonise was joined as a defendant on 4 September 2018.

[15] However, s 161(1) of the Lawyers and Conveyancers Act was brought into operation in 2012 when Mr Tonise made the complaint. Woodroffe’s submitted therefore that the operation of s 161(1) made any debt to Woodroffe’s uncertain until final disposal of the complaint and thus suspended the operation of the Limitation Act until 7 July 2016, when the Standards Committee issued its last decision under s 161(2). The Judge found that it was at least arguable that where s 161 has become operative, the cause of action accrues on the issue of the determination and certificate of the Standards Committee under s 161(2). The application for summary judgment therefore could not succeed.10

[16]   Finally, the Judge did not uphold Mr Tonise’s claim on abuse of process, finding that abuse usually involves some deliberate misuse of the proceeding for an ulterior motive, which was not apparent here.11

[17]The application was dismissed, and Mr Tonise appeals.

Summary judgment principles

[18]   Rule 12.2(2) of the District Court Rules 2014 provides that the Court may give judgment against a plaintiff if the defendant satisfies the Court that none of the causes of action in the plaintiff’s statement of claim can succeed.12 The onus is on Mr Tonise, as the applicant, to prove on the balance of probabilities that Woodroffe’s claim cannot succeed. The types of applications likely to succeed are those which offer a complete

9      Limitation Act 1950, s 4.

10 At [45].

11 At [49].

12     See also High Court Rules 2014, r 12.2.

defence to the plaintiff’s claim.13 All parties accept that summary judgment is not appropriate where it is possible for the plaintiff to amend its claim so as to remedy the defects relied upon by the defendant or where there are disputed issues of material fact.14 The jurisdiction is reserved for clear cut cases, not those to be determined on a fine balance.15

Approach on appeal

[19]   General appeals from the District Court are by way of rehearing.16 On appeal, the High Court may “make any decision it thinks should have been made”.17 It can also direct the District Court to rehear the proceedings, to consider or determine any matter that the High Court directs or to enter judgment  for  any  party  that  the  High Court directs.18 As it is a general appeal, this Court may reach its own conclusion on the merits of the case, and may, if appropriate, substitute its own decision for that of the District Court. However, the lower court may have a particular advantage in assessing, for example, the credibility of witnesses. The High Court may hesitate to conclude that such findings are wrong.19

Discussion

[20]   The single issue on this appeal is whether Woodroffe’s claim against Mr Tonise is statute-barred by the Limitation Act.20

[21]   Section 4 of the Limitation Act prevents an action founded on simple contract from being brought six years after the cause of action accrued. A cause of action accrues when there is a person who can sue and another who can be sued, all the material facts to be proved for the plaintiff to succeed are present, and, in cases of breach of contract, there has been a breach.21

13     Westpac Banking Corporation v MN Kembla NZ Ltd [2001] 2 NZLR 298 (CA) at [61].

14     Kembla, above n 13, at [62]; and Jones v Attorney-General [2003] UKPC 48, [2004] 1 NZLR 433.

15     Water Care Services Ltd v AFFCO New Zealand Ltd HC Auckland CIV-2003-404-4207, 8 April 2004.

16     District Court Act 2016, ss 124 and 127.

17     Section 128(1)(a).

18     Sections 128(1)(b) and (c).

19     See Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5].

20     Section 4 of the 1950 Act applies by virtue of Limitation Act 2010, s 59.

21     Trustees Executors Ltd v Murray [2007] NZSC 27, [2007] 3 NZLR 721.

[22]   In this case, Mr Tonise submits the breach arose on 20 January 2011, when the last invoice to be paid to Woodroffe’s was payable. Therefore, the cause of action accrued on 20 January 2011. As Mr Tonise was not joined as a defendant to these proceedings until 4 September 2018, this being well outside the six-year period from when the cause of action arose on 20 January 2011, Mr Tonise submits the claim against him is statute-barred.

[23]   Conversely, Woodroffe’s submit the cause of action accrued on 7 July 2016, when the Standards Committee made its second decision on the quantum of Woodroffe’s legal fees and certified the amount that is found to be due.22 It is said only at this stage were all the material facts available and so the cause of action accrued.  On that basis, Woodroffe’s  submits the limitation period began to run on   7 July 2016 and its claim is not statute-barred.

[24] The parties’ different interpretations of when the cause of action accrued in this instance is based on their interpretations of the effect of s 161 of the Lawyers and Conveyancers Act, which provides:

161 Stay of proceedings for recovery of costs

(1)    If, under section 141, a Standards Committee gives notice to a practitioner or former practitioner or an incorporated firm or former incorporated firm that it has received a complaint under section 132(2) about the amount of a bill of costs rendered by that practitioner or former practitioner or incorporated firm or former incorporated firm, no proceedings for the recovery of the amount of the bill may be commenced or proceeded with until after the complaint has been finally disposed of.

(2)    Where a Standards Committee makes a final determination on a complaint made under section 132(2), it must certify the amount that is found by it to be due to or from the practitioner or former practitioner or incorporated firm or former incorporated firm in respect of the bill and under the determination.

(3)    The certificate of the Standards Committee or, as the case may be, the decision of the Legal Complaints Review Officer on a review of the determination is final and conclusive as to the amount due.

(4)    For the purposes of this section, a complaint is finally disposed of—

a.   if—

i.   the Standards Committee has made a final determination

22     This decision was then upheld on 17 May 2017 by the Review Committee.

on the complaint or has, under section 138, decided to take no action, or, as the case may require, no further action on the complaint; and

ii.   the complainant has not, within the time allowed, applied to the Legal Complaints Review Officer for a review of the determination or decision; or

b.   if the Legal Complaints Review Officer has conducted a review of the determination or decision made by the Standards Committee on the complaint and has reported the outcome of the review to—

i.   the complainant; and

ii.   the practitioner or former practitioner or incorporated firm or former incorporated firm; and

iii.   the Standards Committee.

[Emphasis added]

[25]   By joint memorandum dated 12 July 2012, the solicitors for each of Woodroffe’s and Pastor Fagalilo reached an agreement on both liability and the stay of the summary judgment proceedings, as follows:

(2)The defendant concedes liability. The only issue is quantum.

(3)As set out in the affidavit in opposition, the defendant and his congregation have complained about the plaintiff’s  fees  to  the  New Zealand Law Society.

…

(5) Upon receipt by the plaintiff of notice from the Law Society, all elements of s 161(1) of the Lawyers and Conveyancers Act 2006 (“LCA”) are now satisfied.

…

(7)Accordingly the proceeding must be stayed until the complaint has   been finally disposed of.

[26]   The parties sought orders by consent to that effect. Leave was reserved for the plaintiff to seek a new hearing date for its summary judgment application after the fees complaint was determined.

[27]   Mr Tonise submits that s 161 does not prevent a plaintiff from proceeding with a claim for liability in respect of outstanding invoices. Relying on Simpson Grierson

v Gilmour,23 Mr Tonise submits s 161 only prevents a determination of the quantum of liability, not liability itself. In that case, the scope and purpose of s 161 was considered by Stevens J as an aid to its interpretation. He said:

[66] The purpose of the s 161(1) also provides assistance in  its interpretation. Its purpose is to prevent a party such as a practitioner taking any steps in relation to the recovery of the amount of a bill that might prejudice any of the issues that will be determined by a Standards Committee in the context of a complaint about the amount of bill costs. This is not an inflexible rule; much may depend upon the circumstances of the particular case. There may be situations where some steps can be taken preliminary to the recovery of the amount of the bill that will not in any way prejudice the issues to be determined by a Standards Committee.

[28]   The High Court determined the effect of s 161 was not to stay the entire proceeding, that is both liability and quantum, but found that s 161 does not preclude the Court from determining liability. Summary judgment in that case was granted in respect of liability for the invoices, leaving the issue of quantum to be determined by the Standards Committee of the Law Society. This approach has subsequently been followed in Pratley v Courteney.24

[29]   Mr Tonise says Woodroffe’s could have (and should have) continued proceedings against Pastor Fagalilo to determine liability, not quantum, and joined Mr Tonise back in 2012. In that way, he submits, the limitation period did not cease to run while the Law Society determined the complaint against Woodroffe’s up until 2016 because Woodroffe’s could have continued the proceedings. Instead, the limitation period continued to run and by the time Mr Tonise was joined as a defendant to the proceedings in 2018, the six-year period had expired.

[30]   The difficulty with this submission is that in 2012, when s 161 became operative because of the lodging of the complaint to the Law Society, there was no question as to liability. As the joint memorandum provided, Pastor Fagalilo conceded liability and agreed that the proceeding must be stayed until the complaint was finally determined.

23     Simpson Grierson v Gilmour [2009] 19 PRNZ 865 (HC).

24     Pratley v Courteney [2020] NZHC 1636.

[31]   I therefore do not uphold Mr Tonise’s submission that Woodroffe’s should have continued proceedings against Pastor Fagalilo to determine liability and/or joined Mr Tonise. Liability had been conceded and both agreed to stay the proceedings until the outcome of the complaint.

[32]   Mr Tonise further submits that his liability had not been conceded, just that of Pastor Fagalilo’s. This accords with his principal submission in the District Court that the contractual relationship was between Woodroffe’s and Pastor Fagalilo, not Mr Tonise. It is clear that the basis upon which Pastor Fagalilo gave instructions to Woodroffe’s  is   at  the  heart  of  the   substantive  dispute  between  the  parties.   Mr Gwilliam for Mr Tonise accepts that this is a relevant issue in the substantive proceeding but says it does not affect the Limitation Act issue on this appeal.

[33]   I agree that the contractual relationship is not relevant to the limitation question on this appeal but equally, the issue of Mr Tonise’s liability is not relevant to determining the limitation issue. Pastor Fagalilo’s concessions meant that no further steps needed to be taken by Woodroffe’s until the complaint was resolved.

The computation of time

[34]   Turning then to the Limitation Act six year time period, if one takes the date of 20 January 2011 as the date when the cause of action arose, six years under s 4(1)(a) had lapsed before Mr Tonise was joined as a party to the litigation in 2018. The six year period however, included the stay period of four years.

[35]The sequence of events are as follows:

20.01.2011                Last date for payment of Woodroffe’s last invoice of

20.12.2010.

14.03.2012                Woodroffe’s issue summary judgment proceedings

against Pastor Fagalilo for payment of their fees in the sum of $91,540.94.

12.07.2012                Joint memorandum of Counsel consenting to stay  of

proceedings until Law Society complaint determined.

07.07.2016                Standard    Committee’s    second    determination of

Woodroffe’s   account.      Certification   of   final determination is issued under s 161(2)

04.09.2018                Woodroffe’s   apply   to  join Mr Tonise.    Associate

Judge Johnston fixes 04/09/2018 as the date for joinder.

[36]   If one deducts the four year stay period, on my calculations, Mr Tonise was joined three years, eight months after the cause of action arose on 20 January 2011.

[37]   I consider it is at least arguable that the stay of Woodroffe’s recovery proceedings for four years is relevant to the assessment of time in respect of the Limitation Act. The language of s 161(1) of the Act prohibits the continuance of a proceeding for the recovery of the bill until disposition of the complaint:

…no proceedings for the recovery of the amount of the bill may be… proceeded with until after the complaint has been finally disposed of.

[Emphasis added]

[38]   While s 161 contains prohibitive language preventing parties either commencing or continuing with a proceeding, it is silent as to the effect of a stay of deferral or the proceeding on the limitation period under the Limitation Act.

[39]   This problem confronted Judge Tuohy both in this case and in Barbara Bucket & Associates (Buckettlaw) v Amberlight, to which he made reference in the decision presently under appeal.25 In the Buckettlaw case, no proceedings had been commenced and the Judge was attracted to the argument for Buckettlaw that, where a complaint has been made, a fresh cause of action accrues when the complaint has been finally disposed of under s 161(2).26 The Judge also considered that it was arguable that s 161 prevails over s 4(1) of the Limitation Act to impose a suspension of the limitation period for the period for the making of a complaint to its final disposal.

[40]   Woodroffe’s relies on the former argument. It submits that the debt by the Green Valley Church was rendered uncertain and  was  stayed  under  s 161  when Mr Tonise complained to the Law Society. It was only when the certificate was issued by the Law Society under s 161(2) on 7 July 2016, that the amount of the debt, being

25     Barbara Bucket & Associates v Amberlight [2016] NZDC 2633.

26     At [18]-[19].

the only matter to be determined, became certain. It says the cause of action therefore arose on 7 July 2016.

[41]   In the course of argument in the Buckettlaw decision, Buckettlaw argued that the general saving provision contained in s 33(1) of the Limitation Act was applicable. That provides:

This Act shall not apply to any action or arbitration for which a period of limitation is prescribed by any other enactment …

[42]   Judge Tuohy rejected the submission that s 161 of the Limitation Act prescribed a period of limitation for actions to which it applies.  He considered that   s 161 prescribes a period of time within which actions for the recovery of fees may not be commenced, from the time when a complaint is made until it is finally determined.

[43]   In this case, the proceedings had already commenced. I consider the wording of s 161, together with the consent of both parties to stay the substantive action, could amount to a deemed deferral of the computation of time under the Limitation Act. I accept that there is no prescription of a period of limitation but the parties are prevented from taking any further steps until resolution of the complaint. There is clearly a lacuna in the legislation, in the absence of any provision prescribing the effect of stay or deferral of proceedings on the Limitation Act time periods. I consider the wording of the section can arguably amount to deferral for the period of stay because to do otherwise detracts from the meaning of the words in s 161(1). It is also plainly unfair on the party seeking to recover costs when the party is subject to a Law Society complaint and the application of s 161.27

[44]   On this basis alone, the present appeal cannot succeed. I am clearly not satisfied Woodroffe’s claim cannot succeed. Whether the limitation period commenced on 7 July 2016 when the Standards Committee made the final determination under s 161(2), or whether the cause of action arose on 20 January 2011, with the stay period of four years deducted from the limitation period, are matters to

27 I put to one side Mr Gwilliam’s submissions that Woodroffe’s extended the time unreasonably by pursing two reviews of the Standards Committee’s decision because a complaint is not finally disposed of until a review of the decision, if sought, is completed.

be heard substantively. I also record that with the death of Pastor Fagalilo occurring at the time the complaint was still under consideration by the Law Society, the issue of liability has resurfaced in respect of Mr Tonise’s position.

Acknowledgement of claim

[45]   There is one further consideration which is relevant to the limitation issue. Arguably, Mr Tonise has acknowledged the claim. Under s 25(4) of the Limitation Act, where a person liable for any right of action to recover any debt or other liquidated pecuniary claim acknowledges the claim, the right of action shall be deemed to have accrued on, and not before, the date of the acknowledgement. This applies also to any payment that has been made in respect of the debt. I note two payments have been made in respect of the debt but not by Mr Tonise.

[46]   However, Mr Tonise swore an affidavit that he was a “duly appointed officer” of the congregation which Pastor Fagalilo represents. Mr Tonise also wrote to the Lawyers Complaints Service “on behalf of my church group” and stated that “We instructed Olinda Woodroffe in 2008 to assist us in a dispute with other members of our church.” In his letter of complaint dated 30 April 2012, he makes complaints about Mrs Woodroffe’s incompetence, failure to give proper advice, failure to seek instructions and over-charging.

[47] Mr Gwilliam contends that the complaint was made under s 132(1) of the Lawyers and Conveyancers Act, which permits “any person” to complain about the conduct and standards of service provided by a practitioner. However, the complaint also challenged the high amount of bill costs. I am satisfied that the complaint about over-charging arises under s 132(2) of the Lawyers and Conveyancers Act. The relevance of this finding is that under s 132(2), a person who complains about the amount of any bill of costs rendered by a practitioner must be a “person who is chargeable with a bill of costs” (Emphasis added).

[48]   It is arguable, therefore that Mr Tonise acknowledged that he was a person who was chargeable with a bill of costs, as he made the complaint to the Law Society on behalf of his church group and considered that he or they were so charged. On that

basis, I am not satisfied that there would be no defence to any Limitation Act restriction, if there was one.

Conclusion

[49]   For summary judgment to be granted, the Court must be satisfied that the claim cannot succeed. It is not enough that there are shown to be weaknesses in the claim.28 I find that Mr Tonise has failed to show a clear and complete answer to Woodroffe’s claim. I therefore uphold the decision of the District Court and dismiss the appeal.

Other matters

[50]   At the outset of the hearing, Mrs Woodroffe sought leave to adduce an affidavit of Pastor Young, which was initially sworn in July 2012 for the Lawyers Complaints Service hearing. I record that I did not grant leave as the content of the affidavit was irrelevant to this appeal hearing.

[51]   Allegations of perjury have been made in submissions for this hearing. As I advised the parties at hearing, I have put allegations of perjury to one side. These were not relevant to the single issue on appeal and should be resolved at the substantive hearing.

[52]   I also have indicated both in this judgment and to the parties at the hearing that the critical issue is the basis upon which Pastor Fagalilo gave instructions to Woodroffe’s. The District Court Judge invited Woodroffe’s to reflect on the question of whether they should be represented by independent solicitors and counsel in this proceeding. I also suggested to Mrs Woodroffe during the hearing that it wold be both prudent and helpful that Woodroffe’s were represented by independent counsel. There is a lack of evidence on the nature of Pastor Fagalilo’s instructions, which may need to be addressed at the substantive hearing.

Result

[53]The appeal is dismissed.

28     Kembla, above n 13, at [64].

Costs

[54]   Woodroffe’s seeks indemnity costs against the solicitors for Mr Tonise on the basis that as a senior lawyer, Mr Gwilliam failed in his duty to consider the impact of his failure to undertake a more thorough investigation of the law and facts before continuing to pursue a case with no merits. As I indicated to the parties, I do not consider that this is an appropriate case for indemnity costs and nor do I think the allegation against Mr Gwilliam is appropriate or proper.

[55]   I invite Counsel to confer on costs for this appeal. If it assists the parties, in a civil appeal of this nature I consider that 2B costs is appropriate. If Counsel are unable to agree, memoranda no more than five pages are to be filed within 10 working days of this judgment.

Cull J

Solicitors:

Main Street Legal Limited, Upper Hutt for the appellant Woodroffe Lawyers, Auckland for the respondent