Wallbank v Travaglia

[2025] NZHC 2639

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2025-412-60 [2025] NZHC 2639

BETWEEN  BRADLEY SIMON WALLBANK

Applicant

AND  NELL JOSEPHINE TRAVAGLIA

Respondent

Hearing:                   (On the papers)

Counsel:P Depledge for Applicant K F Shaw for Respondent

P Depledge in-person in relation to costs claim against counsel

Judgment:                10 September 2025

JUDGMENT OF ASSOCIATE JUDGE LESTER

WALLBANK v TRAVAGLIA [2025] NZHC 2639 [10 September 2025]

[1]    In this proceeding, Mr Wallbank sought an order sustaining a notice of claim under the Property (Relationships)  Act  1976  (the  Act)  he  had  lodged  against  the property of Ms Travaglia. That proceeding was discontinued on 18 July 2025. The notice of discontinuance incorrectly recorded there were no issues as to costs.

[2]    The notice of claim in issue was lodged on 14 May 2025 by a solicitor in Auckland, not instructed as counsel in these proceedings. Mr Wallbank in this proceeding,  was  represented  by  Mr Depledge,  a  barrister  based  in  Hamilton. Mr Wallbank was legally aided and accordingly, Mr Depledge could accept instructions directly from Mr Wallbank.

[3]    Prior to the notice of claim being lodged,  Mr Depledge sent  an  email  to  Ms Travaglia setting out the basis of Mr Wallbank’s claim. The letter asserted that Mr Wallbank had an equitable interest in Ms Travaglia’s property on the basis that he had contributed to the purchase price and there was a common intention/reasonable expectation that he would benefit from the net sale proceeds.

[4]    I accept the submission made by Ms Shaw, counsel  for Ms Travaglia, that  Mr Depledge’s email outlined a claim of constructive or resulting trust, not a claim under the Act.

[5]    As mentioned, on 14 May 2025, a notice of claim under s 42 of the Act was lodged.

[6]    Mr Depledge essentially acknowledges that Mr Wallbank did not have an entitlement to lodge a notice of claim under the Act. This is because, in his submissions in opposition to an application that he, as counsel pay costs, he says the notice of claim was lodged by an Auckland solicitor in error. Mr Depledge says that his instructions to the Auckland solicitor had been to lodge a caveat.

[7]    Ms Shaw, in her written submissions seeks that costs be paid by Mr Depledge, or in the alternative, that there be an order against Mr Wallbank under s 45(2) of the Legal Services Act 2011. She submits that the notice of claim should never have been lodged. Again, so much seems to be accepted. Ms Shaw further relies on the fact that

on 16 June 2025, her firm wrote to Mr Depledge setting out why there was no basis for a notice of claim under the Act. However, rather than recognising the error that Mr Depledge now says was made by the Auckland solicitor who registered the notice of claim on 17 June 2025, he advised Ms Shaw’s firm that if Mr Wallbank’s offer was not accepted his client would maintain the notice of claim or register a caveat. The following day on 18 June 2025, Harkness Henry applied to lapse the notice of claim.

[8]    Despite Mr Depledge knowing that the notice of claim was lodged in error, he prepared, filed and served a notice of application dated 3 July 2025 to sustain the notice of claim.

[9]    The originating application to sustain the notice of claim, in many respects was an attempt to “have a bob each way”. The application sought to sustain the notice of claim or in the alternative, sought an order that Mr Wallbank be permitted to register a caveat,  and in  a  further alternative, that there  be an interim injunction against  Ms Travaglia from dealing with the property, or an order that Ms Travaglia provide an undertaking not to deal with the property.

[10]   While Ms Travaglia had in fact not filed her notice of opposition by the time the proceeding was discontinued, she seeks  an  award of her legal  costs against    Mr Depledge.

[11]   The application for costs against Mr Depledge relied on the Court’s inherent jurisdiction to award costs against counsel but, in my view, there is a clearer path to addressing costs. Mr Depledge acknowledges at paragraph 3(a) of his submissions in opposition to costs, that it was his instructions to lodge a caveat.

Section 42(3) of the Act

[12]   Notices of claim are treated as caveats for the purposes of  the  Land  Transfer Act 2017.1 The provisions  of that Act  apply  to  notice of claims,  save for s 141.

1      Every notice of claim lodged under s 42 of the Act has the same effect as if it were lodged pursuant to s 138 of the Land Transfer Act 2017.

[13]Section 148 of the Land Transfer Act 2017 provides:

148     Compensation for lodging of improper caveat against dealings

(1)A person, including the agent of a person, who lodges a caveat against dealings without reasonable cause is liable to pay compensation to   a person who suffers loss or damage as a result.

(2)A claim for compensation must be heard and determined by the court.

(3)A caveat against dealings lodged in contravention of section 146 is lodged without reasonable cause.

[14]As the Court of Appeal in Gordon v Treadwell Stacey Smith stated:2

The liability of each person who participates in the lodgment of a caveat as an agent (solicitor, solicitor’s clerk or registration agent) is to be examined separately and it will depend upon what they knew or ought to have known of the facts and whether from their viewpoint the lodgment was done honestly and with reasonable cause”.

[15]   Mr Depledge gave instructions for a caveat to be lodged. He became aware early on that those instructions had not been followed. Accordingly, he knew that the notice of claim was without merit. It was not the document he had instructed to be lodged.

[16]   Mr Depledge does not allege that there was an arguable basis to lodge a notice of claim.  Indeed, such would be contrary to his own position that he instructed that  a caveat be lodged.

[17]   Mr Depledge seeks to defend his actions by saying that there were negotiations between him and Harkness Henry  and  the  solicitors  who  previously  acted  for  Ms Travaglia. Mr Depledge suggests that when Harkness Henry took over, they adopted an aggressive stance. That submission does not assist Mr Depledge. Assuming  that  it  is  correct  (Harkness  Henry  denies  being  aggressive),  once  Mr Depledge knew Ms Travaglia’s patience had come to an end, he needed to remove the notice of claim that he acknowledges was lodged in error.

2      Gordon v Treadwell Stacy Smith [1996] 3 NZLR 281 (CA) at [288].

[18]   Rather than doing that, Mr Depledge says he attempted to resolve matters through  correspondence.    That  submission  cannot   withstand  scrutiny  when  on 3 July 2025 he made an application to sustain the notice of claim he knew should not have been on the title.

[19]   I find unhelpful the fact that there was in the background, discussions about the possibility of settlement of Mr Wallbank’s claim. It appears Mr Depledge may have been seeking to leverage the notice of claim as part of those negotiations on behalf of Mr Wallbank.

[20]   As to Mr Wallbank’s position, he is not protected from paying compensation under s 148 of the Land Transfer Act by the fact that he is legally aided. Compensation can be calculated by reference to costs incurred by a party affected by an improper notice of claim.

[21]   Mr Wallbank is responsible for the actions of his agents, that is, his counsel, Mr Depledge, and his sub-agent, the solicitor, who lodged the notice of claim. The solicitor, on Mr Depledge’s statements to the Court, did not have a reasonable basis to lodge the notice of claim on behalf of Mr Wallbank, again, this was done as a result of the solicitor’s error. Mr Wallbank is not protected from liability because the error was that of his sub-agent, any more than if the legal advice received by Mr Wallbank that he could register a caveat or notice of claim, was wrong.3 Mr Wallbank has remedies that he can pursue independently against his counsel or the solicitor who it is said lodged the notice of claim in error. However, I find Mr Wallbank as the party who lodged the notice of claim against Ms Travaglia’s interest, did so without reasonable cause and must pay compensation to her in the sum of $5,667.00, being the costs she incurred as a result of the error by Mr Wallbank’s solicitor.

[22]   Mr Depledge must have been taking instructions in respect of the history of events that I have set out. Again, if Mr Wallbank has a complaint about the advice he got from Mr Depledge, that is a matter for another day.

3      Gordon v Treadwell Stacey Smith, above n 2, at 288.

[23]   The policy consideration is clear. Ms Travaglia is the innocent party, as regard the lodging of the notice of claim in error, and she should not be out of pocket as     a result of that error.

[24]   Accordingly, I decline to make an order under the Legal Services Act 2011 against Mr Wallbank. However, I make an order under s 148(1) of the Land  Transfer Act 2017 that Mr Wallbank is liable to pay Ms Travaglia the sum of

$5,667.00, including costs.

[25]   At this stage, I do not make a costs award against Mr Depledge, but reserve leave for that application to be pursued in the event recovery against Mr Wallbank (or the solicitor concerned), is not possible. However, from the material I have seen, it appears that there may be a sum of money to be paid by Ms Travaglia to Mr Wallbank, perhaps as a loan (although the circumstances are not clear). Ms Travaglia can set-off against any amount she is to pay Mr Wallbank the amount of the costs award.

Associate Judge Lester

Solicitors:
Harkness Henry, Hamilton (for Respondent)

Copy to counsel:

P Depledge, Barrister, Hamilton (for Applicant)