Tulloch v Deputy Legal Complaints Review Officer
[2024] NZHC 3528
•25 November 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-479
[2024] NZHC 3528
BETWEEN JAMES SHALLCROSS TULLOCH
Applicant
AND
DEPUTY LEGAL COMPLAINTS REVIEW OFFICER & ANOR
First Respondent
IRENE NANCY TULLOCH
Second Respondent
Hearing: 19 November 2024 Appearances:
Applicant in person
Appearance excused for First Respondent Appearance excused for Second Respondent B McKenna as Counsel Assisting Court
Judgment:
25 November 2024
JUDGMENT OF CHURCHMAN J
[1] By statement of claim dated 21 February 2024 and accepted for filing on 6 March 2024 the applicant (James) sought judicial review of a decision of the Legal Complaints Review Officer (LCRO) dated 16 August 2023.
[2] James is self-represented and would seem to have had no legal assistance in the drafting of the statement of claim or the preparation of his submissions.
[3] As the first and second respondents both abide the decision of the Court with the result that there would be no contradictor, by minute of 12 April 2024 the Court requested the Solicitor General to appoint counsel to assist the Court pursuant r 10.22 of the High Court Rules 2016. Bronagh McKenna was appointed to assist. She filed
TULLOCH v DEPUTY LEGAL COMPLAINTS REVIEW OFFICER & ANOR [2024] NZHC 3528 [25
November 2024]
comprehensive written submissions and spoke to them at the hearing. The Court is grateful for her assistance.
Background facts
[4] The facts about which James is concerned date back as far as 2007. James is one of four children of the late Nancy Tulloch (Nancy). James’ siblings are Irene, Steven and Lynda. Irene is the second respondent in these proceedings.
[5] In 2007 Nancy was aged 82 and was living in a retirement village. On 7 March that year Irene and her daughter, Emily, purchased a property in Te Atatu South (the Property) for $252,000. Nancy and her four children engaged in an estate planning exercise with the objective of ensuring that, should Nancy in the future need rest home care, her eligibility for the Residential Care subsidy would not be adversely affected by her asset position.
[6] The plan involved Irene and Emily entering into an agreement to transfer the Property to Nancy who then nominated her four children as purchasers of a 4/5 interest in the Property. The purchase price on the transfer was to be $310,000. The 4/5 interest amounted to $248,000 and Nancy gifted the four siblings this sum.
[7] Nancy received independent legal advice on this transaction (from Ms McGeachie who was then a solicitor at Kiwilegal). The four siblings had their own lawyer (Patricia Smith).
[8] There is an important difference of opinion between Irene and James as to a significant aspect of the transaction. This was what was to happen to the additional 1/5 share in the ownership of the Property that was not transferred by Nancy to the four siblings equally.
[9] Irene’s account of the arrangement was that it was always intended by Nancy that Irene would acquire that share and that it was it was to be in compensation for Irene having the ongoing obligation to pay the rates and insurance on the Property and to maintain the Property and meet the related Property costs. James’ evidence is that he thought the 1/5 share was to be retained by Nancy.
[10] The documentary record discloses that, on 13 February 2008 Nancy’s lawyer, Ms McGeachie, wrote to James in a letter which enclosed:
(a)a Deed of Nomination,
(b)a Deed of Acknowledgement of Debt, and
(c)the related client authority and instruction forms.
[11] The letter requested James to review and execute the documents. The letter also specified that Nancy wished to nominate James and his siblings jointly as the purchasers of a 4/5 interest in the Property and that Nancy would advance the funds to do this. The letter did not refer at all to the ownership of the remaining 1/5 interest.
[12]A relevant passage in the letter which James placed some emphasis on said:
‘Your mother will have occupation rights and it is proposed by Irene that Irene will pay the rates. These matters will be finalised and recorded in the Deed of Family Arrangement to be circulated in due course.’
[13] Nancy signed a Deed of Acknowledgment of Debt on 4 March 2008 acknowledging her advancement of the $248,000 to the four siblings.
[14] On 5 March 2008 the Deed of Nomination was signed by all parties whereby Nancy nominated her four children to be the purchasers of a 4/5 share of the Property. The Deed of Nomination was silent as to the fifth share.
[15] The sale transaction settled on 7 March 2008 for the nominated consideration of $310,000 with a 4/5 share of the Property being transferred to the siblings jointly, and the remaining 1/5 share transferred to Irene. The transaction was signed off both by Nancy’s lawyer Ms McGeachie and by Patricia Smith for the purchasers.
[16] Although the letter from Ms McGeachie to James on 13 February 2008 had referred to a Deed of Family Arrangement which was to be ‘circulated in due course’, that did not happen. This is also something that James places some emphasis on.
[17] Nancy lived in the Property for some 14 years until 10 March 2022 when, as a result of dementia, she moved into residential care. She passed away on 23 May 2022.
[18] For the 14 years Nancy resided at the Property, Irene paid the rates and insurance on the Property and, together with another sibling, Steven, attended to the necessary upkeep.
[19] Shortly before Nancy went into residential care in 2022, Irene applied to become Nancy’s property manager and (jointly with Lynda) welfare guardian. Susan Martell was appointed counsel for the Subject Person. Ms Martell filed a report to the Family Court dated 2 May 2022. Counsel’s report noted that James opposed the application for Irene to be appointed Nancy’s property manager, but the other siblings strongly supported it.
[20]The report notes James concerns being that Irene had ‘made a profit of
$58,000’ when she and Emily sold the Property to Nancy and that a 1/5 share in the title to the property should have been transferred to Nancy. It also records him making the claim that the conveyancing in respect of the transfer was handled for all parties by one solicitor.
[21] At the time of the Property transaction in 2008 Irene was employed as a legal executive. By 2022 Irene had qualified as a lawyer and was employed as an in house lawyer.
The complaint
[22] On 28 March 2022 James filed a complaint with the Central Standards Committee of the New Zealand Law Society.
[23]James’ complaint contained a number of components. These were:
(a)that there was ‘an irregularity’ in relation to the Certificate of Title for the Property;
(b)that although the Property was sold to Nancy, Nancy’s name was not recorded on the title;
(c)the fifth share should have been allocated to Nancy rather than Irene;
(d)that Irene had acted fraudulently and that the fifth share registered in her name was ‘illegitimate and without entitlement’;
(e)that a solicitor was not involved in the conveyancing (with an implication that Irene had herself undertaken the conveyancing in respect of the sale of the Property);
(f)that there was ‘intentional deception and dishonesty’ by Irene and that she had ‘manipulated the situation to her benefit’;
(g)there is reference to the application by Irene to be Nancy’s welfare guardian and property manager but it is difficult to discern exactly what the particular complaint about this was; and
(h)a claim that Irene had taken advantage of Nancy and that her actions were ‘not acceptable, ethical or legal’.
The Standards Committee decision
[24] On 30 May 2022 the Standards Committee issued a decision determining to take no further action on James’ complaint holding there was no evidence regarding any breach by Irene of her professional obligations.
[25] The decision records that solicitors were involved at the time of the 2008 transactions and they had been satisfied that the documentation provided supported the ownership as registered.
[26] The decision also recorded that the Committee had no jurisdiction in relation to the appointment of welfare guardians or property managers.
[27] James was unhappy with the decision and on 1 July 2022 he applied to the LCRO to review it. The grounds for review advanced by him were similar to the matters raised before the Standards Committee:
(a)he complained that there was no record of Nancy having purchased the Property in September 2007;
(b)he challenged Irene’s claim that the arrangement included Irene acquiring a 1/5 share asserting that he and Nancy understood that she had the 1/5 share;
(c)claimed that the intention of the Deed of Acknowledgment of Debt was to create a family trust;
(d)alleged that Nancy had been coerced into entering into the arrangement; and
(e)made other allegations of fact, including as to whether the Property was a suitable one for Nancy to live in, what was said to be a failure to provide him with documentation, a query about the costs of rates on the property, and an assertion that maintenance had been done on the Property by Steven and comments about the improvements that had been undertaken on the Property by Irene and Emily between their purchase of it and its subsequent transfer.
[28] There were delays in the processing of James’ application. These appear to have resulted in part from what were described as ‘workload issues’ and in part from the necessity for the LCRO to request production of documents and the uncertainty as to which law firm might have held the documents sought because the firm that had advised Nancy in 2008 no longer existed.
[29] The LCRO formed the view that the matter could be dealt with on the papers and the parties were advised with neither of them objecting to this course.
[30] On 17 July 2023 the LCRO issued his decision.1 It upheld the Standard’s Committee decision to take no further action.
[31]James pointed out that the decision contained three errors of fact which were:
(a)at [10] it was Irene and Emily, not Irene and Nancy who were the registered owners of the Property in September 2007;
(b) at [15], [19], [66], [103](j), [105] and [108] noting that Irene was not appointed temporary property manager as the application was withdrawn; and
(c) [16] Nancy died in May 2022 not May 2023.
[32] The LCRO recalled his decision and issued a corrected copy on 16 August 2023.
[33] The conclusions reached by the LCRO in his decision can be summarised as being:
(a)there was no evidence that any person involved in the Property transactions did anything improper;
(b)there is nothing in any of the documentation or the course of events in 2007 — 2008 that objectively calls in question any conduct on the part of Irene in her professional capacity as a legal executive;
(c)nor is there anything arising from the documentation or the course of events that objectively calls into question any conduct of Irene in her personal capacity;
(d)on the contrary, the arrangements can properly be described as prudent and careful estate planning on Nancy’s part entered into, with
1 Re an application for review [2023] NZLCRO 072.
commendable foresight and the benefit of legal advice independent of Irene, in the interests of both Nancy and the four siblings including James; and
(e)to succeed on his application James needed to have produced cogent and compelling evidence of fraud or other misconduct of similar gravity on Irene’s part. He had not done so.
[34] The decision also records that it was quite possible that James did not, at the time of the transactions, understand the legal process of nomination of the purchaser’s interest under an agreement for sale and purchase of land and that he mistakenly understood that Nancy was to become a registered proprietor as to a 1/5 interest. The decision said that if he had misunderstood these matters, he could not blame Irene for such misunderstanding as James had stated that he had no communications with Irene regarding the Property transactions and that consequently, there was no basis on which James could suggest that Irene misrepresented anything to him.
[35] James was unhappy with this decision and commenced an application for judicial review.
Judicial Review
[36] A judicial review in the High Court is not the same thing as a general appeal. The Lawyers and Conveyancers Act 2006 (LCA) does not provide a right of general appeal against an LCRO decision.
[37] Judicial review proceedings focus on the process by which the decision maker (in this case the LCRO) arrived at its decision. Essentially, in order to succeed, an application for judicial review has to establish that the decision maker made an error of law.
[38] Even if the judge hearing the judicial review application might have come to a different conclusion on the facts to that of the LCRO, that, of its self, does not establish
that an error of law has occurred. Palmer J explained this in the case of Delieu v Connell2 where he said:
‘The legal difficulty here is that I am conducting a judicial review, not the sort of review conducted by the LCRO. The threshold for me to overturn a conclusion of the LCRO on the merits in a judicial review is high. Whether expressed as Wednesbury unreasonableness (‘a conclusion so unreasonable that no reasonable authority could have ever have come to it’) or some other version of the threshold, I do not consider that the LCRO’s conclusion in her review decision was so unreasonable that I should substitute my own judgment for hers. For this reason I decline to uphold Mr Delieu’s challenge on this ground.’
[39] A statement of claim seeking a judicial review must also set out the sort of relief that the plaintiff seeks. Here the only relief sought in the statement of claim is that the second respondent be made to relinquish her additional share in the Property. That is not a remedy that is available in judicial review proceedings. On a judicial review, a court is able to quash a decision and order that the decision maker reconsider it. I will therefore proceed on the basis that James is seeking an order quashing the LCRO decision and directing that the LCRO reconsider the matter.
[40] It is not clear to me that James fully appreciates the distinction between factual findings and errors of law, as in both the written material he filed with the Court and his oral submissions at the hearing, he effectively invited me to take a different view of the facts to that taken by the LCRO.
[41] There are only very limited circumstances where, in judicial review proceedings, the Court can substitute its own view of the facts for that of the decision maker. This was made clear by Kos J in Woods v Legal Complaints Review Officer3 where he said that the Courts take a circumspect view of factual error and will only intervene:
‘…where the factual inquiry was clearly inadequate or otherwise the product of an unfair process or where a finding of fact is utterly unsupportable on the evidence.’
2 Delieu v Connell [2016] NZHC 361 at [45].
3 Woods v Legal Complaints Review Officer [2013] NZHC 674 at [39].
[42] Kos J at [40] also referred to the decision of Woolford J in Zhao v Legal Complaints Review Officer4 where Woolford J had referred to the English Court of Appeal decision in E v Secretary of State for Home Department.5 That decision had held that a mistake of fact that gives rise to unfairness must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter, and the fact or evidence must have been ‘established’ in the sense that it was uncontentious and objectively verifiable.
[43] The English Court of Appeal had also suggested that the appellant (or his advisors) must not have been responsible for the mistake, however New Zealand cases have doubted that this is relevant to New Zealand law.6
[44] The final requirement from E v Secretary of State for Home Department is that any mistake must have played a material (although not necessarily decisive) part in the reasoning of the body whose decision is being judicially reviewed.
Jurisdiction
[45] A preliminary consideration needs to be given to the question of jurisdiction. The LCA provides a framework in relation to complaints about lawyers, employees of lawyers and former employees of lawyers where such complaints can be processed and resolved expeditiously.
[46] The LCA was effective as of 1 August 2008. This is after the period between September 2007 and March 2008 when the various transactions relating to the Property occurred.
[47] It is relevant that, at the time of these transactions occurred, Irene was not a lawyer but a legal executive.
[48] The disciplinary provisions relating to legal executives were different prior to 1 August 2008 to what they are currently. Section 114(1) of the Law Practitioners Act
4 Zhao v Legal Complaints Review Officer [2012] NZHC 3247.
5 E v Secretary of State for Home Department [2004] 1QB1044.
6 See Whata J in Queenstown Lakes District Licencing Agency Inspector v Turnbull Group Limited
[2011] NZAR 554.
1982 gave the New Zealand Disciplinary Tribunal the power to inquire into a charge against an employed legal executive if the employee had ‘been guilty of conduct that would be in the case of a practitioner render him liable to have his name stuck off the roll.
[49] The New Zealand Disciplinary Tribunal had the power to strike a practitioner off the roll in a variety of circumstances including where the practitioner had been guilty of:
(a)misconduct in his professional capacity; or
(b)conduct unbecoming of a barrister or a solicitor.
[50] The concept of misconduct was defined under the 1982 Act as meaning conduct that would reasonable be regarded by lawyers of good standing as disgraceful or dishonourable.7
[51] Conduct unbecoming meant conduct which departed from acceptable professional standards to such a degree as to attract a sanction for the purpose of protecting the public.8 A substantiated allegation of fraud would meet either of these threshold requirements.
[52] In this case, although Irene was not a lawyer at the relevant times during 2007/2008, the LCRO correctly concluded he had jurisdiction to investigate the matter if there was evidence that Irene had done something so disgraceful, dishonourable, or otherwise unacceptable that she would, if she had been a lawyer at the time, be liable to be struck off the roll.9
[53] Because it was clear that Irene had not acted for either Nancy or James in the transactions regarding the Property, the LCRO concluded correctly that the issue upon
7 See Atkinson v Auckland District Law Society NZLPDT, 15 August 1990, p12.
8 See B v Auckland Standards Committee Number 1 of the New Zealand Law Society HC Auckland CIV-2010-404-8452, 9 September 2011 at [16].
9 Above n at [70].
jurisdiction was founded was whether she had done something in a personal capacity that would constitute misconduct or conduct unbecoming.
Alleged errors of law
[54]In his statement of claim, James listed the following alleged errors of law:
(a)failing to take into account a mandatory relevant consideration;
(b)taking into account an irrelevant consideration;
(c)failure to give reasons or adequate reasons;
(d)apply the incorrect statutory test or otherwise failing to comply with the terms of the applicable legislation;
(e)failing to give the unsuccessful party the opportunity to be heard resulting in a denial of procedural fairness or natural justice;
(f)legal unreasonableness during the process;
(g)lack of evidence to support a finding i.e. no evidential ground; and
(h)bias.
[55] In many instances there is a complete disconnect between the principle of judicial review set out and the material relied on by James in support of each contention. There is also significant repetition and overlap in relation to the various grounds. I will address each ground separately.
Failing to take into account a mandatory relevant consideration
[56] It is not clear exactly what mandatory relevant consideration James is referring to. He seems to submit that a Deed of Family Arrangement was essential to the legality of the 2007 transactions and that because such a document does not exist the transaction was unlawful.
[57] It was Nancy’s solicitor, Ms McGeachie, who sent the letter of 13 February 2008 to James which stated that a Deed of Family Arrangement would be circulated in due course. The fact that it did not happen is not in any way Irene’s fault nor a matter she can bear any responsibility for.
[58] The LCRO correctly acknowledged that transactions involving family members would normally flow from a document such as a Deed of Family Arrangement and he acknowledged that no such document had been completed in this case.
[59] However, the lack of existence of such a document does not render the transaction unlawful. The LCRO did not make any mistake in not finding the transaction unlawful.
[60] The LCRO conducted a detailed review of all the relevant documents.10 He then concluded that, on the basis of the documents that were before him, the explanation given by Irene in her response to the review application, namely that Nancy’s distribution of her assets in advance of her death in a manner that relieved her children (other than Irene) of any financial burden and which enabled her to qualify for Residential Care Subsidy should she need it, was entirely consistent with the existing documentation. That conclusion was available to the LCRO on the evidence.
[61]The LCRO did not fail to take into account a mandatory relevant consideration.
Taking into account an irrelevant consideration
[62] Again, it is not clear exactly what irrelevant consideration James is referring to. He states there was ‘an apparent lack of transparency in the Property transactions’ and refers to the 12 February 2008 letter from Ms McGeachie stating, ‘your mother would have occupation rights and it is proposed by Irene that Irene will pay the rates.’
[63] James asserts: ‘our late mother Nancy, could have paid the rates and insurance by direct debit through her bank, whilst retaining a 1/5 share of the property for
10 At [19].
herself…’. The fact that this theoretically could have happened does not advance James’ case. It clearly did not happen. On the contrary, the fact that Nancy did not pay the rates and insurance for some 14 years after moving into the property would tend to support Irene’s account of the transaction which was this was that it was always intended that Irene, not Nancy would be responsible for payment of these costs.
[64] The fact that the LCRO accepted Irene’s account rather than James’ version (which was that both he and Nancy thought Nancy would be retaining share), was a conclusion that was available to him on the evidence.
[65] Where there is a conflict in evidence, the decision maker has to make a decision as to which version of the evidence to accept or to conclude that neither version should be accepted. The LCRO made a decision to accept Irene’s account. He explained why he accepted it. His decision was neither irrational nor unreasonable.
[66] The LCRO’s conclusions are also strengthened by the fact that James was the only one of the siblings advancing arguments of unauthorised or underhanded conduct on Irene’s part.
[67] There is no evidence that the LCRO took into account an irrelevant consideration.
Failure to give reasons or adequate reasons
[68] James alleges that the LCRO erred in finding at [101] that it was quite possible that James at the time of the transactions mistakenly understood that Nancy was to become a registered proprietor as to a 1/5 interest. James says that he could not have misunderstood the extra share allocation as it was something that he had no knowledge of. However, this misunderstands the LCRO’s conclusion.
[69] At [91] the LCRO concluded that the arrangements entered into in 2007 were entirely consistent with the commercial rationale explained by Irene in her response of 20 July 2022 to the review application. In effect, Nancy was distributing assets that would otherwise have comprised her estate on death well in advance of her passing and in a manner that both relieved her children (other than Irene) of any consequent
financial burden and put her in the best position to preserve the possibility for qualifying for subsidised residential care, should she need it in the future.
[70] The LCRO noted that the 13 February 2008 letter records an intention for Irene to pay the rates although no mention was made of the other ownership related costs and then notes:11
‘The financial prudence of that arrangement is not relevant to this decision. I note, however, that any resulting financial risk was on Irene.’
[71] The LCRO also noted at [93] and [94] that James did not dispute that the signatures on the Deed of Nomination or Deed of Acknowledgement of Debt were authentic and that, if James had any evidence to challenge the authenticity of the execution of the document, it was a matter that should be raised with Ms McGeachie not Irene.
[72] Between [96] and [102] the LCRO gave the reasons why he concluded James’s claims of fraud or other serious misconduct on Irene’s part had not been established. This included James’ claim of misunderstanding. The LCRO correctly said that James could not blame Irene for any misunderstanding because ‘James has stated that he had no communications with Irene regarding the Property transactions. Consequently, there is no basis on which James can suggest that Irene misrepresented anything to him.’
[73]James’ claim that the LCRO failed to give adequate reasons is not made out.
Applying the incorrect statutory test or otherwise failure to comply with the terms of the applicable legalisation
[74] James does not explain what ‘statutory test’ or ‘applicable legalisation’ he was referring to. Instead, he says: ‘the Property transactions were not legal because the share holders were not in full agreement, as I was excluded from the process.’ He also says he was not legally represented due to signing documents remotely. He also repeats his claims about the Deed of Family Arrangement not existing. In the absence
11 At [92].
of James identifying any statutory test or applicable legalisation this ground is not made out.
Failure to give the unsuccessful party the opportunity to be heard resulting in a denial of procedure fairness or natural justice
[75] This allegation is really another version of James’ claim that the LCRO was wrong to accept Irene’s account rather than his. I have already discussed that contention above.
[76] James claims there was ‘an evident pattern of bias in the explanations from (Irene) were taken at face value without any evidence to substantiate them and disregarding actual evidence which disproves those allegations’. It is not clear how this is said to amount to James not being provided with an opportunity to be heard. The LCRO has carefully addressed all of James’ contentions. The fact that he has not accepted them does not mean that James was not given a full opportunity to be heard.
Legal unreasonableness during the process
[77] This ground seems to focus on a comment made by Susan Martell in her report to the Family Court discussed above. In particular the comment at 8(b) in Ms Martell’s report that Nancy ‘…does not own any real property. She lives in a property purchased under a family arrangement in 2008, described as an ‘informal trust.’’ James alleges that this comment was ‘completely dismissed’ by the LCRO. In fact, the LCRO expressly addressed this point at [89] where he held:
‘there is no evidence in the materials of any intention on the part of any person involved, including James, to create a family trust. Nor is there any explanation from James as to why establishing a family trust would have been necessary or appropriate in the circumstances.’
[78] There is nothing inconsistent with the observation of Ms Martell referred to and the LCRO’s finding. There was also no evidence before the LCRO as to who described the family arrangement to Ms Martell as an ’informal trust’ or how a reference by her to an informal trust somehow equates to the necessity for a formal trust to have been created. There is no basis to the claim of legal unreasonableness.
Lack of evidence to support a finding
[79] James is not specific as to exactly what finding by the LCRO that there was no evidence to support.
[80] James appears to misstate the account given by Irene. Irene did not say that the 1/5 share was vested in her to avoid Nancy being disqualified to receiving the residential care subsidy. It was the whole transaction that was designed to achieve that result.
[81] James’ reasoning seems to be that because the value of a 1/5 share in the Property even as at 2022 was below the threshold to adversely affect eligibility for the residential care subsidy, that confirms that Irene’s evidence was false. It clearly does not do that.
[82] The LCRO set out in detail his conclusions supporting his preference of Irene’s account instead of James’, he said:
[81] the absence of reference to the Property transaction is consistent with Irene’s explanation of the rational for the arrangement. There is nothing untoward about that.
[82] there is no evidence before me to support James’ contention that Nancy would not have understood the proposal and was somehow coerced to sell the retirement village unit and purchase the home.
[83] the September 2007 agreement for sale and purchase and the Deed of Nomination evidence Nancy’s beneficial ownership between September 2007 and February 2008.
[84] the Deed of nomination is consistent with Nancy not becoming a registered proprietor during that period. If she had become the registered proprietor, an agreement for sale and purchase and/or Authority and Instruction form for a transfer from her would have been necessary. This would have been inconsistent with the objective of keeping the property out of her formal ownership so as to maximise the possibility of qualifying for subsidised residential care in future.
[85] there is no evidence in the materials of any intention on Nancy’s part to acquire or retain a 1/5 ownership interest in the Property. Again, this would have been inconsistent with an intention to maximise the possibility of Nancy qualifying for subsidized residential care.
[86] the debt forgiveness clause is also consistent with Irene’s explanation. At the time gift duty would have been payable on any debt forgiven over $27,000 each year. The clause established a gifting program designed to avoid the
imposition of gift duty. There was nothing unusual about such an arrangement and it was consistent with the residential care subsidy objective.
[87] James is correct to say that there is no evidence of the four siblings paying for the Property. That is because they were not paying for it. Nancy was giving it to them.
[83]All of these conclusions were based on the evidence before the LCRO.
[84] In his submissions, James continued to repeat allegations of fraud on the part of Irene. However, he was unable to point to any evidence that had been before the LCRO that would substantiate a finding of fraud, or which would allow the Court to conclude that the LCRO made any reviewable error of law in reaching his decision.
[85] Fraud allegations are serious. If they are to be substantiated, they need to be supported by clear and cogent evidence. There was no evidence of fraud at all in this case.
Bias
[86]Neither is there any evidence that would support James’ claim of bias.
[87] In Siemer v Legal Complaints Review Officer12 Harvey J discussed what is necessary to make out an allegation of bias. He specifically adopted the observation of Professor Joseph who said:13
‘The factual basis of a bias allegation must be carefully made out. The Courts guard against unmeritorious allegations where complainants ‘throw the ‘bias’ ball in the air’. The inquiry must be ‘rigorous’.
[88] Nothing referred to by James comes remotely close to establishing bias on the part of the LCRO.
12 Siemer v Legal Complaints Review Officer [2022] NZHC 1565 at [52].
13 Philip Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters, 2021 at 1145 citing Muir v Commissioner of Inland Revenue [2007] NZCA 334, [2007] 3 NZLR 495 at [62].
Outcome
[89] As I have concluded no reviewable errors of law exist, the application is dismissed.
[90] Should any question of costs arise the respondents are to file memoranda within 14 days of the date of this judgment with the applicant having 14 days to reply. I will then deal with the matter on the papers.
Churchman J
Solicitors:
Crown Law, Wellington for First Respondent
Smith & Partners, Auckland for Second Respondent
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