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Wiliams v Hacking

Wiliams v Hacking

Case [2017] NZHC 799 27 April 2017

Professional Liability

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-2919 [2017] NZHC 799

BETWEEN
GRAEME DENYS WILLIAMS

Plaintiff

AND

ROBERT ATHERTON HACKING First Defendant

RISHWORTH WALL & MATHIESON Second Defendant

SIMON ROBERT JEFFERSON Third Defendant

Hearing: 21 March 2017

Appearances:

R C Laurenson for Plaintff
P R Rzepecky and Sarah Ulmer for Third Defendant
No appearances for First and Second Defendants

Judgment:

27 April 2017

JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 27 April 2017 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

………………………………………………….
Registrar/Deputy Registrar

Solicitors:
Nolans (Neil Mackie), Gisborne, for Plaintiff
Wynn Williams (Richard Hern), Auckland, for Third Defendant

Counsel:
Richard Laurenson, Wellington, for Plaintiff
Philip Rzepecky, Auckland, for Third Defendant

WILLIAMS v HACKING [2017] NZHC 799 [27 April 2017]

TABLE OF CONTENTS

Introduction [1] Agreements under s 21A of the Property (Relationships) Act 1976 [5] Facts [10] The causes of action against Mr Jefferson [34] Not Mr Williams’s lawyer [38]

Mr Jefferson not liable because Mr Williams received advice
from certifying lawyers [47]

A causation argument relating to the agreement of 28 February 2011 [65] Cross notices [66]
Outcome [68]

Introduction

[1] In February 2011 Mr Williams, the plaintiff, entered into two agreements under s 21A of the Property (Relationships) Act 1976 with his former wife. These are the second and third agreements. In August 2006 they had made an earlier agreement under s 21A. When he made the second and third agreements (which were in identical terms), he says that he acted on the advice of the defendants, all lawyers. Mr Williams was unhappy with the second and third agreements. He later successfully applied to the Family Court to have them set aside. Even though the agreements were set aside, Mr Williams says that he has suffered monetary losses of
$556,000. He sues the lawyers to recover those losses, plus general damages for stress and anxiety, saying that they gave him bad advice. He sues Mr Jefferson QC, the third defendant, for negligent misstatement in giving advice for the second agreement and for negligent misstatement, negligence and breach of contract for advice on the third agreement.

[2] Mr Jefferson applies to strike out. His case is that he was retained to represent the trustees of the Graeme Williams Family Trust, not Mr Williams

personally. The other defendants gave Mr Williams independent legal advice and certificates under s 21F of the Property (Relationships) Act: Mr Hacking, the first defendant, advised Mr Williams on the second agreement and Mr Rishworth, one of the second defendants, advised him on the third agreement. While he may have advised Mr Williams, Mr Jefferson did not give independent legal advice under s 21F and certify.

[3] Mr Jefferson applies under r 15.1(1)(a) of the High Court Rules on the ground that the statement of claim does not disclose any reasonably arguable cause of action against him. On such applications, it is standard to cite the principles in McGechan on Procedure

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 Wiliams v Hacking

Details

AGLC: Wiliams v Hacking [2017] NZHC 799
Case: [2017] NZHC 799
Decision Date: 27 April 2017

CaseChat Overview and Summary

Graeme Williams sued three lawyers who had given him advice about two agreements for the division of property between him and his former wife. He claims that the advice was negligent, negligent misstatement and in breach of contract. Robert Atherton Hacking gave advice about the first agreement and certified the second agreement. The second defendant gave advice about the third agreement and certified it. Simon Jefferson, the third defendant, gave advice at a mediation and about the third agreement, but did not certify either agreement. Mr Jefferson applied to strike out the claims against him. Mr Jefferson’s case was that the claims against him were untenable because he had not given advice to Mr Williams personally, he did not owe a duty of care to him and he could not have caused Mr Williams any loss because Mr Williams had received advice from lawyers who certified under s 21F of the Property (Relationships) Act 1976. The court held that Mr Jefferson was not necessarily Mr Williams’s lawyer but there was an arguable case that Mr Jefferson had assumed a duty of care to advise Mr Williams correctly. The court also held that even if Mr Jefferson was liable, the statutory requirement that the agreement be certified by a lawyer did not relieve him from liability. The court dismissed Mr Jefferson’s application to strike out the claims against him.

Orders