BURGESS v MONK [2017] NZHC 2618

BURGESS v MONK [2017] NZHC 2618

Leave to withdraw was refused. Where a client affirms continued confidence and wishes counsel to continue, and no statutory or rule-based 'good cause' for termination of retainer exists, counsel's overriding obligations to the Court and to facilitate justice require counsel to continue; practical prejudice to other parties and public interest in finality outweigh counsel's subjective concerns about potential claims or complaints, and perceived conflicts can be managed.

Citation
[2017] NZHC 2618
Parties
First Plaintiff: Warwick James Burgess; Second Plaintiff: CTE Burgess Ltd; First Defendant: Phillip Charles Monk; Second Defendant: New Zealand Guardian Trust Company Ltd; Third Defendant: David Trounson; Fourth Defendant: Alisdair Hugh Morrison; Fifth Defendant: Armer Farms (N.I.) Ltd; Sixth Defendant: O'Sullivan Clemens; Seventh Defendant: Graeme William Elvin; Seventh Defendant: Sharlene Darragh; Eighth Defendant: Tihoi Holdings Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
25 October 2017
Procedural Posture
Civil Trust and Equitable Claims; Alleged Knowing Assistance and Breach of Trust; Professional Conduct Issues / High Court Trial in Progress (evidence Ongoing)
Outcome
Application for leave to withdraw by D G Chesterman and E McGill dismissed
Legal Topics
Constructive Trust, Breach of Trust, Knowing Assistance, Leave to Withdraw Counsel, Inherent Jurisdiction Over Advocates, Lawyers Conduct and Client Care Rules
Equity Trusts Civil Procedure Professional Negligence Legal Ethics and Conduct Constructive Trust Breach of Trust Knowing Assistance +3 more

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Parties

Warwick James Burgess

First Plaintiff

CTE Burgess Ltd

Second Plaintiff

Phillip Charles Monk

First Defendant

New Zealand Guardian Trust Company Ltd

Second Defendant

David Trounson

Third Defendant

Alisdair Hugh Morrison

Fourth Defendant

Armer Farms (N.I.) Ltd

Fifth Defendant

O'Sullivan Clemens

Sixth Defendant

Graeme William Elvin

Seventh Defendant

Sharlene Darragh

Seventh Defendant

Tihoi Holdings Limited

Eighth Defendant

Procedural Posture

Civil Trust and Equitable Claims; Alleged Knowing Assistance and Breach of Trust; Professional Conduct Issues / High Court Trial in Progress (evidence Ongoing)

Legal Issues

  1. 1 Whether counsel should be granted leave to withdraw during an ongoing trial
  2. 2 Whether perceived threats of a negligence claim or complaints justify withdrawal
  3. 3 Application of the Lawyers and Conveyancers Act 2006 and Conduct and Client Care Rules to termination of retainer

Ratio Decidendi

Leave to withdraw was refused. Where a client affirms continued confidence and wishes counsel to continue, and no statutory or rule-based 'good cause' for termination of retainer exists, counsel's overriding obligations to the Court and to facilitate justice require counsel to continue; practical prejudice to other parties and public interest in finality outweigh counsel's subjective concerns about potential claims or complaints, and perceived conflicts can be managed.

Court Disposition

Application for leave to withdraw by D G Chesterman and E McGill dismissed

Orders

  • Application for leave to withdraw by D G Chesterman and E McGill dismissed.
  • Trial to continue at 10:00am on 26 October 2017 with next witness to give evidence.