Robertson v Mason [2019] NZDC 6528

Published 11 July 2019

Summary Judgment — instructing solicitor — barrister fees — retainer — letter of engagement — PPPR — issue estoppel —Lawyers and Conveyancers Act 2006 s 4 — Lawyers and Conveyancers Act (Lawyers Conduct and Client Care) Rules 2008, rr 1.2, 3.4, 3.5, 10.7.1, 10.7.2, 14.12, 14.13 & 14.15 — LCCCR — Protection of Personal and Property Rights Act 1988 — Arbitration Act 1996, s 11 — Property (Relationships) Act 1976, s 21F — Contract and Commercial Law Act 2017, s 71 — Pemberton v Chappell [1987] 1 NZLR 1 — Hanson v Young [2004] 1 NZLR 37 — CF Equus Corp PTY Ltd v Wilmoth Field Warne (a firm) (NO 3) [2004] VSC 164 — Triezenberg v Mason [2019] NZHC 14 — New Zealand Tamil Society v Kiely Thompson Caisley [2011] NZAR 722 (HC) — McDonald v FAI (NZ) General Insurance Co Limited [1999] 1 NZLR 583. The plaintiff sought summary judgment against the defendant for $48,852, representing the outstanding balance of barrister's fees. The plaintiff had been the barrister's instructing solicitor in proceedings bought by the defendant in the Family Court. The defendant argued that he had an arguable defence to summary judgment, including: there was no retainer between himself and the plaintiff; there was no letter of engagement between the defendant and plaintiff; that the plaintiff cannot claim the barrister's fees as she was not legally obliged to meet the barrister's invoices; the party's relationship was a "sham"; the plaintiff breached her obligations by failing to or giving bad advice on certain matters; the barrister breached his obligation by failing or giving bad advice; and the quantum was too high. The defendant initially asked the barrister to refer him to an instructing solicitor. In the course of their dealings, the defendant signed a retainer that mentioned he would be the plaintiff's client, he used and instructed her via email, and had the plaintiff hold and disburse funds in her trust account. The Judge held that the defendant did not have an arguable defence and granted summary judgment. Specifically, on the matter of the retainer, the Judge found that there was a retainer, given there was an intention to create legal relations, consideration, and on the facts an implied contract between the parties. On the lack of a letter of engagement. Rules 3.4 and 3.5 of the Lawyers and Conveyancers Act (Lawyers Conduct and Client Care) Rules ("LCCCR") provided that the plaintiff was not required to provide anything in writing as she had not undertaken "significant work" and further a professional breach by a lawyer will not affect the existence of legal obligations between parties. Rules 10.7.1 and 10.7.2 LCCCR and authorities under the former Law Practitioner's Act 1982 provided that the plaintiff was entitled to claim the barrister's fees. On the matter of whether the contractual relationship was a sham, the Judge found the relationship was legitimate and in accordance with Rule 14.15 LCCCR. As to whether either the plaintiff or the barrister had given bad legal advice, the Judge found they had both served him appropriately, and that the quantum was in line with the multi-dimensional and intricate legal problem they were addressing. The plaintiff was awarded the sum of $48,852 plus interest at 5 per cent and 2B costs. Finally, the Judge decided the doctrine of Issue Estoppel did not apply in relation to rule breaches by the barrister. Judgment Date: 10 April 2019.