White v Lynch - [2014] NZHC 2819

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2014-404-2485 [2014] NZHC 2819

BETWEEN
AMANDA ADELE WHITE

First Plaintiff

ANNE LEOLINE EMILY FREEMAN Second Plaintiff

AND

CHRISTOPHER MAURICE LYNCH First Defendant

STUART GORDON SPENCE Second Defendant

CIV 2014-404-2282

BETWEEN CHRISTOPHER MAURICE LYNCH Judgment Creditor

ANDAMANDA ADELE WHITE Judgment Debtor

CIV 2014-404-2284

BETWEEN CHRISTOPHER MAURICE LYNCH Judgment Creditor

ANDANNE LEOLINE EMILY FREEMAN Judgment Debtor

Hearing: 11 November 2014

Counsel:

Ms A A White and Ms A L E Freeman, in person, Plaintiffs
J Cooper for Messrs Lynch and Spence

Judgment:

13 November 2014

JUDGMENT OF HEATH J

This judgment is delivered by me on 13 November 2014 at 3pm pursuant to r 11.5 of the High Court Rules.

Registrar / Deputy Registrar

WHITE v LYNCH [2014] NZHC 2819 [13 November 2014]

The applications

[1] Mr Lynch is a solicitor who was appointed as a co-trustee of the DCT Trust (the Trust). The Trust was established after Ms White and Mr Spence began to live together in a de facto relationship. Its purpose was to provide a vehicle through which Ms White could carry on her business activities. Ms White’s mother, Ms Freeman, was the third trustee.

[2] After Ms White and Mr Spence separated, a dispute arose about payments that had been “advanced” by Mr Spence to the Trust. Proceedings were issued in this Court (the original proceeding) in relation to those issues. On 19 June 2013, Priestley J entered judgment against Ms White and Ms Freeman in the sum of
$130,158.1

[3] Ms White and Ms Freeman now believe that judgment was obtained by dishonest (or improper) means. They have issued another set of proceedings in an endeavour to set aside the judgment (the new proceedings). They have also applied to this Court to set aside bankruptcy notices issued against each of them.

[4] Mr Lynch and Mr Spence have applied to strike out the new proceeding. That application, together with the two applications to set aside the bankruptcy notices, have been set down for hearing on 24 November 2014.

[5] On 11 November 2014, I heard argument on another two applications, both of which require determination before the 24 November 2014 hearing. Ms White and Ms Freeman apply:

(a) to join Mr Peter Wright as a defendant to the new proceeding. Mr Wright is a barrister who was instructed to act as counsel for Mr Lynch and Mr Spence in the original proceeding; and

(b)to debar Mr Wright from acting for Mr Lynch and Mr Spence on any applications and substantive hearings arising out of the original
proceeding.

1 Spence v Lynch [2013] NZHC 1478.

Background

[6] Ms White and Mr Spence lived together in a de facto relationship for about six years and five months. Previously, each had been in a relationship that had failed. They were alert to protecting their own financial positions. On 14 August
2002, about one month after they began to live together, they entered into an agreement, under s 21 of…

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 White v Lynch

Details

AGLC: White v Lynch [2014] NZHC 2819
Case: [2014] NZHC 2819
Decision Date: 13 November 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Amanda Adele White and Anne Leoline Emily Freeman brought proceedings against Christopher Maurice Lynch and Stuart Gordon Spence, seeking to set aside a judgment obtained against them by dishonest or improper means and to set aside bankruptcy notices. Lynch and Spence applied to strike out the new proceedings. White and Freeman applied to join Peter Wright, a barrister who acted for Lynch and Spence in the original proceeding, as a defendant and to disqualify him from acting for Lynch and Spence in any proceedings arising from the original judgment. The court considered the applications on 11 November 2014. The court held that the application to join Wright as a defendant was weak and dismissed it. It found that Wright owed no duty of care to White and Freeman, much less that he breached such a duty. The court also held that there was no basis on which Wright could be disqualified from acting for Lynch and Spence in any proceedings arising out of the original judgment. The court reserved costs to be determined by the judge who hears the applications on 24 November 2014. The applications to join Wright to the new proceeding and to restrain him from acting for Lynch and Spence were dismissed. Costs were reserved.

Orders