GILLIBRAND & ANOR AS TRUSTEES OF THE CHRIS AND MARY GILLIBRAND FAMILY TRUST v SWANEPOEL & ANOR [2018] NZCA 467

GILLIBRAND & ANOR AS TRUSTEES OF THE CHRIS AND MARY GILLIBRAND FAMILY TRUST vSWANEPOEL & ANOR [2018] NZCA 467 [29 October 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA356/2017[2018] NZCA 467BETWEEN CHRISTIAN JOHN GILLIBRAND ANDMARY CAECILIA GILLIBRAND ASTRUSTEES OF THE CHRIS AND MARYGILLIBRAND FAMILY TRUSTAppellantsAND GEORGE PETER SWANEPOELFirst RespondentANDREW PETER HOLGATESecond RespondentHearing: 8 May 2018Court: Miller, Cooper and Winkelmann JJCounsel: C T Patterson for AppellantsH M Twomey and S M Pasley for First RespondentNo appearance for Second RespondentJudgment: 29 October 2018 at 3.00 pmJUDGMENT OF THE COURTA The application to amend the notice of appeal is granted.B The appeal is dismissed.C The appellants are jointly and severally liable to pay the respondent costs fora standard appeal on a band B basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] Chris and Mary Gillibrand sued their solicitor, George Swanepoel, and theirbarrister, Andrew Holgate, for negligently conducting proceedings brought againstthem. Woodhouse J found the barrister liable and the solicitor not. He awarded specialdamages ($63,950) and general damages ($5,000 for each of the Gillibrands) againstMr Holgate.1[2] The Gillibrands appeal the judgment so far as it concerns Mr Swanepoel.They say that he too was negligent. They seek judgment for the same amount ofspecial damages and $20,000 apiece by way of general damages.[3] Mr Holgate has taken no part in this appeal. His negligence is not in dispute.Nor is the quantum of special damages. The question is whether liability can besheeted home to Mr Swanepoel.Background[4] In 2003 Chris' father, Gordon Gillibrand, suffered a stroke, and needed24-hour care. He went into a rest home run by Bupa Care Services Ltd in May 2003,and there he remained until his death in 2011. Chris made decisions on his behalfunder a power of attorney granted some years previously.[5] In December 2003 Gordon sold his farm to Chris and Mary as trustees ofthe Chris and Mary Gillibrand Family Trust (the Trust). The Trust was set upspecifically to purchase the farm, Chris explaining that Gordon had wanted the farmto go to his grandsons (Chris and Mary's children). Gordon advanced the entire saleprice of $505,000 to the Trust as a loan.[6] Initially Gordon paid the rest home fees, but by November 2004 he had run outof money. The Trust then paid the fees, but it appears that Chris and Mary had run1 Gillibrand v Swanepoel [2017] NZHC 1209 [HC substantive judgment].into some financial difficulty, compounded in 2012 when Mary suffered seriousinjuries in a car crash. Payments fell into arrears in 2009.[7] As at 31 March 2010 the Trust's financial statements disclosed a liability toGordon in the form of a balance of $355,000, derived by deducting from the originalloan the sum of $150,000 that the Trust had paid for rest home fees. That balanceformed the only asset in Gordon's estate.[8] Mr Swanepoel is a general and sole practitioner in Whangarei. He was notthe Gillibrands' traditional family solicitor. They consulted him about the rest homefees in December 2009. Bupa was pressing them for payment and Gordon was saidto be at risk of being evicted from the rest home. They wanted to know if a rest homesubsidy might be available.[9] There followed communications between Mr Swanepoel and Chris Gillibrand,on the one side, and a lawyer whom Bupa had instructed to act for Gordon,Stuart Spicer. (After a medical assessment of his mental competence, Bupa hadsupported Gordon to revoke the power of attorney.) During those discussionsMr Spicer was provided with a copy of the Trust's 2010 financial statements.[10] Discussions culminated in an offer which Mr Swanepoel sent to Bupa on8 April 2011 with the Gillibrands' authority. It stated:I refer to your letter dated 28 March 2011, which my clients have handed tome What my clients propose is the following:1. They accept that there is debt owing back to Mr Gillibrand senior bythe Chris and Mary Gillibrand Family Trust of $355,000.00, as a resultof the purchase of the family farm from him some time ago.2. To assist with the obtaining of assistance from WINZ my clients, onbehalf of the Trust are now in a position to transfer to Gordon aproperty situated at Waihue Road, Waihue which currently has acapital value of $365,000.00 3. It is then envisaged that a charge can be obtained over that property infavour of WINZ from Gordon which will then secure the payments toyou of the outstanding amounts.[11] This proposal had not been accepted when Gordon died on 15 April 2011.At that time his estate was indebted to Bupa in the sum of $44,981.68, which includedinterest, and to Mr Spicer for $8,174.50 for his services.[12] Chris was executor of Gordon's will and he instructed Mr Swanepoel to act forhim in that capacity. Probate was granted in July 2011.The Bupa proceedings[13] We describe the proceedings and their outcome briefly before turning to theinvolvement of Messrs Holgate and Swanepoel.[14] In August 2012, more than a year after probate was granted, Bupa moved tohave Chris removed as executor of the estate. The application was met with theopposition that the estate had no funds and Chris, as executor, had an absolutediscretion to postpone the sale and conversion of any assets of the estate.Chris maintained that his father had said the debt would never be called up.[15] Judicial conferences before Heath J resulted in the Public Trust beingappointed on 4 December 2012 as an additional and independent trustee to advise onthe estate's financial position. It duly reported that the Trust debt was payable to theestate and the Trust was able to pay it.[16] The Gillibrands did not agree. They resisted Chris' removal as trustee onthe grounds that the debt had been forgiven and Bupa had mistreated Gordon by failingto care for him. These allegations were advanced in successive notices of oppositionfiled on 23 May and 10 June 2013, supported by in the latter case by affidavits swornby Chris Gillibrand.[17] On 27 June 2013 Bupa sued Chris in debt, in his capacity as executor.A defence was filed by Mr Holgate on 24 July 2013. It repeated the mistreatmentallegations.[18] On 14 August 2013 Heath J delivered a decision removing Chris as executor.An independent executor was appointed.2[19] On 20 November 2013 the Judge ordered that Chris pay indemnity costs toBupa for all steps in the proceeding dating from the second opposition filed on23 May.3 Costs prior to that were on a standard 2B basis. In his reasons Heath Jexplained that until May sensible steps had been taken to resist removal on orthodoxgrounds.4 Indemnity costs were payable thereafter because the claim that Bupa hadill-treated Gordon so as to create a counterclaim was "hopeless" in the sense used inBradbury v Westpac Banking Corporation.5[20] Following the costs award, the executor demanded the round sum of $200,000from the Trust to pay the Bupa debt, the costs awarded and his own costs.Mr Swanepoel acted for the Gillibrands, negotiating a settlement with Bupa for$150,000. The Trust subsequently paid the executor's costs also.The allegations of negligence against Messrs Holgate and Swanepoel[21] The special damages awarded against Mr Holgate comprised that portion ofthe settlement of $150,000 that the judge found attributable to the award of indemnitycosts.6 The general damages were awarded as some compensation for stress andanxiety.7 Woodhouse J awarded costs against the Gillibrands in favour ofMr Swanepoel, but there is a separate appeal pending in this Court against thatjudgment and we say no more about it.8[22] The Gillibrands' losses were said to have resulted from the negligence ofsolicitor and counsel in two respects: the claim that the estate could not pay, and theattempt to defend Bupa's claim by alleging mistreatment of Gordon. The following2 Bupa Care Services NZ Ltd v Gillibrand [2013] NZHC 2086, [2013] 3 NZLR 701 [Heath Jremoval judgment].3 Bupa Care Services NZ Ltd v Gillibrand [2013] NZHC 3067.4 At [26]–[27].5 At [30], citing Bradbury v Westpac Banking Corporation [2009] NZCA 234, [2009] 3 NZLR400.6 HC substantive judgment, above n 1, at [240]–[244].7 At [258].8 Gillibrand v Swanepoel [2018] NZHC 1376. The appeal against the costs decision was filedafter the appeal in this case had been heard.account focuses on those allegations and what Messrs Holgate and Swanepoel did, orallegedly failed to do, about them. We record that the appeal focuses on themistreatment allegation, since that led to costs being awarded on an indemnity basisand hence to the damages now claimed.[23] Mr Swanepoel briefed Mr Holgate in October–November 2012, to act for aperiod of two weeks while Mr Swanepoel was on leave. Mr Holgate andthe Gillibrands developed a strong rapport and they were enthusiastic about hisapproach. On Mr Swanepoel's return, Chris instructed him to engage Mr Holgate ascounsel. Mr Swanepoel did so in November. He remained solicitor on the record.[24] We have referred to Mr Swanepoel's letter of 8 April 2011. It is not suggestedthat his advice was wrong at that time. The allegations against him began with a letterthat he wrote on 21 December 2011 asserting that the Trust could not pay and, forlimitation reasons, need not pay: I have Spoken to Chris and looked at the letter attached which was aproposal put forward by clients to try and assist with obtaining a loan orsubsidy to pay Gordon's accounts. The offer in the letter was neveracknowledged or accepted by Bupa. Nor was it approved by all the trusteesof the family trust as it was purely a proposal. Obviously once Gordon passedaway it no longer applied and it was for Chris as executor to make a decisionon. In my discussion with Chris he is still very upset about the way Darryl[Bupa's manager at Gordon Gillibrand's resthome] went about terminating hispower of attorney and the stress he put Gordon under as a result for whichChris has had no acceptance of any wrong doing or apology.He has approached the other trustees of the trust but they are correctlypleading the statute of limitations apply and they have an obligation to thebeneficiaries of the trust to protect the trust assets The bank accounts [of the estate] have rendered no funds and we hold nothingin trust so the Estate is bankrupt. It is my recommendation that Chrisadministers the estate pursuant to part 17 of the Administration Act 1969.[25] Woodhouse J accepted Mr Swanepoel's evidence that he was followinginstructions when he wrote the letter.9 He also found that Mr Swanepoelrecommended to the Gillibrands in January 2012 that they should use the opportunity9 HC substantive judgment, above n 1, at [32].presented by a property refinancing to pay Bupa. They refused, and for the first timetold him that the debt had been forgiven.10[26] The mistreatment allegations stemmed from information provided toMr Swanepoel by another client, Mr Nola. Mr Nola had reported seeing Gordonsitting by an open window in some distress. Mr Swanepoel reported this tothe Gillibrands, though the Judge found that Mr Swanepoel saw Mr Nola's evidenceas possible leverage in negotiations rather than evidence of serious misconduct.11[27] Mr Holgate met the Gillibrands on or about 5 November 2012 and advisedthem to accede to the Public Trust being appointed as an additional executor to inquireinto the Trust debt, as noted above. They agreed, and on 15 March 2013 Mr Holgatemade that offer to Gibson Sheat, who acted for Bupa. Gibson Sheat asked who wouldindemnify the Public Trust for its costs. Mr Holgate replied: "that blood-sucking clientof yours let this particular genie out of the bottle, and having done so, will have tofront indemnification, if any is required." This email was sent without reference toMr Swanepoel. When Mr Swanepoel saw it he rang Chris and expressed his concernbut was told that Chris was happy with it.[28] Woodhouse J found that Mr Holgate's "decidedly unprofessional andintemperate" description of Bupa heralded the following important developments:12a) a significant change in the advice Mr Holgate gave to the plaintiffs;b) a new position adopted by the plaintiffs on whether there was a debtowed by the estate to Bupa and on whether Mr Gillibrand should standbecause of a conflict;c) a resistance by Mr Gillibrand to stand down because of a conflict ofinterest; and10 At [34].11 At [52] and [54].12 At [50].d) a general approach by Mr Holgate which lacked reasonable judgmentand objectivity.[29] This stance had first been signalled in a letter Mr Holgate wrote to thePublic Trust in February 2013. Mr Swanepoel had seen a draft of this letter becausehis typist, who also worked for Mr Holgate, had shown it to him. The draft likenedBupa's facility to Auschwitz. Mr Swanepoel remonstrated with Mr Holgate and thatreference, which Mr Holgate put down to humour, was removed. Mr Swanepoel'sevidence was that he thought Mr Holgate attributed it to a momentary lapse ofjudgment and he had "got the message".[30] The mistreatment allegation appeared in detailed form in court papers whenMr Holgate filed the second opposition to Mr Gillibrand's removal as executor.The Judge recorded that:13(a) It was alleged that Gordon Gillibrand died due to Bupa's negligence,with particulars in that regard including the following:• Gordon Gillibrand "had chronic bronchitis or quite possiblycardio-pulmonary obstructive disease".• Gordon Gillibrand was placed at a wide open window when thecold air coming in exacerbated his condition and increased thedistress that he was in and when he could not move himself.• Bupa failed to monitor Gordon Gillibrand and had it done so hisdeath could have been averted.(b) It was alleged, in the alternative, that if Gordon Gillibrand wasterminally ill Bupa's negligence brought his death forward andshortened his life such that there was a "causal link between Bupa'sconduct and the death of" Gordon Gillibrand.(c) There was an alternative defence that Bupa was precluded fromrecovering its fees because it came to Court without clean hands.(d) There was a third alternative contention that Bupa was precluded fromrecovering its fees because its treatment of Gordon Gillibrand "wasinhuman [sic] and degrading treatment and/or punishment".This included a particular that Gordon Gillibrand "was effectively leftto drown on the mucous [sic] in his lungs, alternatively left in greatdistress with callous disregard to the distress that he was in".(e) In respect of the mistreatment allegations, the opposition concluded:13 At [59].In all the circumstances Bupa seeks reward from[Gordon Gillibrand's] estate for killing him. This is both anabsurd claim and a clear instance of trying to take advantageof its own wrong-doing.(f) The second opposition also recorded that there was an issue whetherthe trust debt had been forgiven, with a positive statement that "thereis evidence to show that the debt has been forgiven". It may be notedhere that no evidence was ever produced that the debt had beenforgiven other than the generalised contentions of Mr andMrs Gillibrand to that effect.The Judge found that the second opposition was prepared and filed without referenceto Mr Swanepoel.14[31] By letter of 30 May Gibson Sheat protested, writing to Mr Holgate to say,among other things, that the allegations against Bupa were of a criminal nature, couldnot be more serious, and were advanced without proper grounds. The letter wasevidently copied to Mr Swanepoel, who said he did not recall seeing it at the time.Neither man replied to Gibson Sheat.[32] Mr Holgate then filed the third opposition on 10 June, again without referenceto Mr Swanepoel. He also filed an affidavit from Chris Gillibrand in support ofan application for discovery of Gordon's medical records and in opposition toremoval. The mistreatment allegation was maintained in these papers, the Judgesummarising it as follows:15• Bupa was culpable for causing Gordon's death.• Bupa failed to monitor Gordon when he was in significant distress,and had it done, the death could have been averted.• On being warned of Gordon's plight Bupa and its staff showedcontumelious disregard for Gordon's rights and circumstances byrefusing point blank to take any steps at all.• The Deceased was effectively left to drown on the fluid in his lungs,alternatively left in great distress with callous disregard to his plight.• In all the circumstances Bupa seeks reward from the Deceased's estatefor killing him.14 At [58].15 At [62].[33] Mr Gillibrand's affidavit annexed a statement from Mr Nola that Mr Holgatehad prepared in the form of an affidavit. The statement did not support the seriousmistreatment allegations, and it was unsworn.[34] Bupa served its debt claim on Mr Gillibrand on 28 June. That eveningMr Holgate emailed a journalist at the Northern Advocate Newspaper, attachingcopies of the debt claim, the third opposition and the affidavits from the Gillibrands.He included a link to news reports of Bupa's alleged negligence in theUnited Kingdom and said:Chris and the estate have refuted [Bupa's claim for fees] saying thatBupa caused Gordon to die in absolutely inhumane and distressingcircumstances and they forfeited the right to payment of anythingbecause of their wrong-doing — the evidence is very bluntly stated inaffidavits — Mr Nola's [affidavit] shows that there were evenreprisals by Bupa against him because he came forward to giveevidence about the case. We exhibit a letter where Bupa's solicitor says that we are makinga serious allegation of wrongdoing — as you can see from theevidence we have filed, we are pulling no punches about the fact thatwe can produce evidence on oath to back it up.Mr Holgate did not discuss with Mr Swanepoel his decision to go to the media. He diddiscuss it with the Gillilbrands, who accepted his advice to pursue the attack.The Judge found that they could not be criticised for accepting counsel's advice onthis point.16[35] On 5 July the Northern Advocate published an article quoting the claim thatBupa sought to profit from killing Gordon.[36] Gibson Sheat emailed Messrs Holgate and Swanepoel on 8 July aboutthe article, inquiring whether they knew beforehand that Chris intended to go tothe media. Mr Holgate claimed, misleadingly, that he was "told about this article bya client."[37] Gibson Sheat then wrote to Mr Holgate and Mr Swanepoel on 11 July repeatingthat the allegations should not have been made and pointing out that they had had no16 At [72].reply to their letter of 30 May. The Judge found that not until about 11 July didMr Swanepoel see the second or third oppositions to removal.17[38] Messrs Swanepoel and Holgate responded separately to Gibson Sheat,contending that the allegations were properly before the Court. Mr Swanepoel saidthat "Mr Nola's evidence is properly before the Court and records what he saw", andnoted that "We have a duty to our client to put forward his case as you have a duty todo the same for your client." Mr Holgate's response was aggressive, and he threatenedto seek indemnity costs.[39] On 24 July, a statement of defence was filed in response to the debt claim, asnoted. It appears, based on an email from Mr Holgate to the Gillibrands the previousday, that Mr Holgate prepared and filed the statement of defence. The statement ofdefence contained the same mistreatment allegations that had been advanced in theremoval proceedings, and argued they were a complete defence to the debt owing.[40] On 29 July Mary repeated the allegations to the television current affairsprogramme Campbell Live. She did not consult Mr Holgate before doing so but shecopied him afterward. She also copied Mr Swanepoel, saying she thought she would"send this to you to read as well!"[41] There followed Heath J's decision on the removal application, in whichthe Judge made it plain that far from justifying Mr Gillibrand's resistance to removal,the pursuit of an apparently unfounded claim of mistreatment made the outcomeinevitable:18Mr Gillibrand's ability to bring an independent mind to the questionwhether the debt is valid is questionable, to say the least. He hasstrongly held views (not presently substantiated in any meaningfulway) about the impact of Bupa's care on his father, believing it wascausative of death. He also has financial interests to protect; both assole beneficiary of the estate and the trustee (and beneficiary) ofa Trust, a debt from which is the only source from which money couldbe recovered to pay Bupa.17 At [58].18 Heath J removal judgment, above n 2, at [21(c)].Woodhouse J's reasons for judgment[42] We have summarised Woodhouse J's narrative findings above, and we neednot go into all of his reasons for finding Mr Holgate liable and rejecting Mr Holgate'scross-claims against the Gillibrands. We focus on his conclusions relating toMr Swanepoel.[43] We begin by observing that the Judge's reasons turned on his findings of fact.He concluded that he preferred the evidence of Mr Swanepoel and Mr Holgate to thatof the Gillibrands where there was a conflict. He attributed this conclusion todiscrepancies between the Gillibrands' evidence in chief and their cross-examination,inconsistencies between their evidence and the contemporaneous documents, andsheer implausibility of some of their claims:19[142] A principal reason for my conclusion is that there is a substantialnumber of inconsistencies between material contentions of Mr andMrs Gillibrand in their statement of claim and, more importantly, their briefsof evidence — and especially the brief of evidence of Mr Gillibrand — andwhat each of them said on these matters in cross-examination.These inconsistencies cannot reasonably be attributed to understandabledifficulty in remembering a particular matter, or to the pressure of being in acourtroom under cross-examination, or other matters which may bear on thereliability of the evidence as opposed to the credibility of the witness.In addition, positive assertions of Mr Gillibrand, or Mrs Gillibrand, on centralissues are inconsistent with contemporaneous documents. And some of thosedocuments are ones which one, or both, of the Gillibrands approved in draftor, less often, themselves produced. And there are positive assertions ofMr Gillibrand or Mrs Gillibrand which are simply not plausible.[44] He went on to demonstrate in detail why he had reached these conclusions.Relevantly, the Judge flatly rejected the claim that Mr Swanepoel had wrongly advisedthe Trust had no liability to the estate, for no such advice was given.On Mr Swanepoel's advice the Gillibrands accepted before Gordon died that the Trustdebt remained.20 The Judge found that the Gillibrands did not tell him until aroundFebruary 2012 that the debt had been forgiven. The claim that the debt had beenforgiven was implausible and wrong.21 Mr Swanepoel advanced the Gillibrands'instructions in the first opposition to removal, but he was not negligent in doing so:19 HC substantive judgment, above n 1.20 At [147]–[148].21 At [173]–[174].[175] The steps taken by Mr Swanepoel, after he had been instructed thatthe debt had been forgiven and that the trustees in consequence wished to resistany payment to the estate, and with Mr Gillibrand as executor in turn resistingpayment to Bupa on the grounds of insolvency, were not negligent steps forMr Swanepoel to recommend in light of the instructions he had. And, contraryto an important part of the contentions of the plaintiffs, Mr Swanepoel was nothimself making any positive assertion that the trust debt was not recoverableby the estate. He did draft and file the first opposition to the removalapplication, but the substance of this was an application for directions fromthe Court to deal with the conflict that had arisen for Mr Gillibrand, and theuncertainty only recently raised by the plaintiffs as to whether there was anyliability to the estate. This approach by Mr Swanepoel was clearly reflectedin the proposals that were put to Heath J and which resulted in the orderappointing the Public Trust as an additional and independent trustee ofthe estate for the purpose of investigating whether the trust debt was payableto the estate and, if so, whether the trust had any assets to enable payment tobe made.[45] The Judge added that Mr Swanepoel was seeking to delay or deflect the Bupaclaim because of the Trust's difficult financial position, and he noted Heath J's remarkthat until Mr Holgate wrote to Gibson Sheat on 15 March 2013 sensible steps hadapparently been taken to resolve the litigation. Thereafter the Gillilbrands' actionswere taken on Mr Holgate's advice alone.22[46] Turning to the mistreatment allegations, the Judge noted that the Gillibrandspleaded that Mr Swanepoel:23(a) failed to advise them of Mr Holgate's intention to change strategy byfiling the second and third oppositions; and(b) failed to advise that the mistreatment allegations supplied no groundsfor resisting removal as executor, and so served no useful purpose.[47] With respect to the first claim, the Judge found that Mr Swanepoel did notknow that Mr Holgate intended to file a second opposition and was not consulted aboutthe third.24 With respect to the second claim, the Judge summarised the Gillibrands'evidence:22 At [176]–[178].23 At [101].24 At [210].[213] Mr and Mrs Gillibrand's evidence in support of this claim includedthe following contentions: the mistreatment allegations were initiated byMr Swanepoel following his discussion with Mr Nola; Mr Swanepoel advisedthem that the mistreatment allegations provided grounds to oppose theremoval application; Mr Swanepoel advised them that the mistreatmentallegations had merit; Mr and Mrs Gillibrand were not themselves involved inany significant way in advancing the mistreatment allegations; they wereguided by advice they got from Mr Swanepoel as well as by advice fromMr Holgate; they did not have any direct knowledge of the evidence that mightsupport the mistreatment allegations; and they did not understand theallegations.[48] The Judge rejected these claims. He examined Mr Swanepoel's evidence ofwhat he knew and did, assessing that evidence against the standard of care required ofan instructing solicitor. He concluded that:(a) Mr Swanepoel maintained the level of review required of a solicitorwith a legal practice of the kind he had.25(b) Mr Swanepoel sought advice from Mr Holgate at appropriate times andrelied appropriately on it.26(c) Mr Swanepoel did not rely blindly on Mr Holgate. He soughtinstructions directly from Mr Gillibrand and sought to caution againstthe course of action they had embarked upon. They positivelyinstructed him that they knew they might not succeed but wereconfident and determined to oppose Bupa's claims.27(d) The Gillibrands made it clear that they liked Mr Holgate's approach andwanted Mr Swanepoel to leave matters with them and Mr Holgate.28[49] The Judge accepted that Mr Swanepoel was aware of signs that Mr Holgatelacked objectivity, but he responded appropriately when matters of concern werebrought to his attention. Not until the end, when it was too late, did he noticeindications that Mr Holgate was not coping.2925 At [219].26 At [220].27 At [221].28 At [221].29 At [222]–[223].[50] In reaching these conclusions the Judge:(a) Accepted Mr Swanepoel's evidence that after receiving Gibson Sheat'sletter of 11 July Mr Swanepoel intervened, expressing reservationsabout the litigation strategy to Chris Gillibrand and warning thatthe Gillibrands were at risk of having to pay costs.30(b) Accepted Mr Swanepoel's evidence that Mr Swanepoel was concernedabout the litigation strategy pursued by Mr Holgate, and specificallyasked Mr Holgate about whether there was enough evidence to sustainthe mistreatment allegations. Mr Swanepoel deferred to Mr Holgatebecause of his experience as a barrister and in the medico-legal field.31(c) Relied on expert evidence from a very experienced solicitor,Christopher Darlow, to the effect that in the circumstancesMr Swanepoel had acted as a reasonably competent instructing solicitorwould.32(d) Found that Mr Swanepoel could have achieved nothing had he soughtat an earlier stage to withdraw Mr Holgate's instructions, forthe Gillibrands would not have permitted it.33 Mr Swanepoel mighthave withdrawn, but it was "reasonably unlikely" that the Gillibrandswould have been deterred from maintaining the mistreatmentallegations.34[51] Each of these findings is in issue on appeal.The appeal[52] We turn to the grounds of appeal. These Mr Patterson, who appeared forthe Gillibrands, summarised as follows:30 At [215]–[216].31 At [217].32 At [225].33 At [226].34 At [228].(a) Mr Swanepoel breached his duty to inquire into relevant matters, towarn of specific risks and likely consequences, and to ensure that therisks and consequences were understood;(b) Woodhouse J erred in his factual findings to the contrary; and(c) the Judge ought not to have admitted, or given much weight to, theopinion of Mr Darlow much of which was prepared by others orinadmissible argument.The pleadings issue[53] Ms Twomey, who appeared for Mr Swanepoel, submitted that the case was notpleaded as breach of a duty to warn. Rather, the pleading was that Mr Swanepoelnegligently advised that the mistreatment allegation supplied good grounds forresisting removal. Prior to the hearing the Gillibrands attempted to file amendedgrounds of appeal that sought to appeal the Judge's finding that "the Respondent hadno duty to enquire, warn and/or ensure that the Appellants understood the risks arisingfrom" several actions of Mr Holgate. Mr Swanepoel abided a decision as to whetherleave should be granted, but emphasised that the Gillibrands ought not be able toadvance new arguments on appeal or change their position on appeal.[54] This issue appears to have its origins in an attempt by counsel forthe Gillibrands to file a further amended statement of claim at the closing of the trial.Woodhouse J refused leave to do so, reasoning that the amended statement of claimthen before the Court was sufficiently particularised and that the Gillibrands shouldnot have been able to rely on numerous additional allegations of breach that wereunpleaded.35 Some of these are detailed in closing submissions for the Gillibrands,including an allegation that Mr Swanepoel ought to have warned the Gillibrands thattheir case was weak, and ought to have overseen, questioned and intervened ifMr Holgate was not carrying out his brief competently.35 At [90]–[91].[55] We accept that the amended statement of claim before the Court is somewhatopaque as to whether a duty to warn was being pleaded. It refers to a claim thatMr Holgate was acting as Mr Swanepoel's agent, and twice pleads as particulars thatMr Swanepoel "failed to advise the plaintiffs of Mr Holgate's intention to changestrategy" at certain points in the narrative. It does not appear that several of theamended grounds of appeal in this Court were averred to in the pleadings withspecificity; the amended notice of appeal adds multiple particulars of a duty to warn,including with reference to Mr Holgate's letter to the Public Trust (where he initiallycompared the Bupa facility to Auschwitz) and his letter to Gibson Sheat (where hereferred to Bupa as "that blood-sucking client of yours).[56] That said, the Judge dealt with the level of supervision Mr Swanepoel shouldhave had of Mr Holgate. We have set out above his findings on the subject; to repeat,the Judge found that Mr Swanepoel exercised the amount of supervision appropriatefor his role as solicitor, did not rely blindly on Mr Holgate's advice and soughtinstructions from Chris directly. This suggests that, even if the pleadings were opaque,the Judge was concerned to address the argument that Mr Swanepoel had notmonitored Mr Holgate enough or warned the Gillibrands of his conduct.[57] In this Court Mr Patterson claimed that the addition of the duty to warn to thenotice of appeal was done out of an abundance of caution. While that is perhapsstretching matters, we do not consider there is any real prejudice to Mr Swanepoelfrom allowing the argument to be run in this Court. It proceeds on the basis ofevidence that was in issue at trial, and we are not convinced that there is a reasonableprospect that the defence would have been run differently had counsel been clearer asto the arguments at trial.[58] We grant the application to amend the notice of appeal accordingly.Did Mr Swanepoel breach his duty to the Gillibrands?The instructing solicitor's duty[59] Speaking generally, by offering legal services a solicitor represents to a clientthat he or she possesses adequate skill, knowledge and learning for the business to beconducted.36 The standard of care required is that of a qualified, competent andcareful lawyer in the circumstances.37[60] Generally, the solicitor must follow the client's instructions, whether they arewise or not, and this extends to the presentation of the client's case in court.The solicitor must advise on legal weaknesses and the risk of failure. In the ordinaryway, a solicitor may rely on the advice of counsel to discharge their duty, provided theadvice comes in properly reasoned form and the solicitor is satisfied, after appropriateconsideration, that the advice is tenable. Appropriate consideration does not mean thatthe solicitor must replicate the consideration given by counsel or deploy the same skilland experience.38 If the solicitor thinks counsel's advice is "obviously wrong", thesolicitor should reject it, as Kirby J put it in Boland v Yates Property Corp Ltd:39Ordinarily in a divided legal profession it is responsible conduct for a solicitor(particularly if he or she has no disclosed specialist experience in a field oflegal practice) to rely upon a competent barrister's advice. Doing so makesproper use of the specialised bar. However, the solicitor must not acceptthe barrister's advice blindly. He or she retains a legal duty to the client,separate, independent and personal, both by reason of the general law ofnegligence and the contract of retainer. The solicitor must exerciseindependent judgment to the extent that it is reasonable to demand this havingregard to the solicitor's reputed knowledge and experience, the complexity ofthe case and the skill and experience of the barrister who has been retained. Ifthe solicitor reasonably considers that the barrister's advice is obviouslywrong, it is the solicitor's duty to reject that advice and to advise the clientindependently, including as to the wisdom of retaining a fresh barrister.(Footnote omitted.)[61] This is not the case to review these principles. Accordingly, we accept thatMr Swanepoel continued to owe professional duties to the Gillibrands afterMr Holgate was briefed. He was required to consider counsel's advice, when madeaware of it, and if he thought the advice was obviously wrong he ought to have toldthe Gillilbrands that was his opinion.36 Cavell Leitch Pringle & Boyle v Thornton Estates Ltd [2008] NZCA 191, [2008] 3 NZLR 637at [31], citing Bannerman Brydone Folster & Co v Murray [1972] NZLR 411 (CA) at 421.37 G E Dal Pont Lawyers' Professional Responsibility (6th ed, Lawbook Co, Sydney, 2017)at [5.165].38 Harley v McDonald [1999] 3 NZLR 545 (CA) at [85].39 Boland v Yates Property Corp Ltd [1999] HCA 64, (1999) 167 ALR 575 at [142].Did Mr Swanepoel breach a duty to intervene?[62] Mr Patterson argued that on at least four occasions Mr Swanepoel ought tohave known that Mr Holgate's strategy "presented specific risks".(a) In February 2013 he became aware that Mr Holgate had drafted a letterto Gibson Sheat in which he likened the care facility to Auschwitz.Mr Swanepoel intervened and Mr Holgate removed the reference fromwhat became his letter of 8 February 2013.(b) In March to May 2013, when he became aware that the mistreatmentallegations were being advanced.(c) On receipt of the warning letters of 30 May and 11 July 2013 fromGibson Sheat.(d) From August 2013, when Bupa complained to the Law Society andsought costs against counsel personally.[63] The Judge found, as we have noted, that Mr Holgate embarked on his litigationstrategy without telling Mr Swanepoel. We have not been persuaded that his findingsabout that were wrong. It is clear that Mr Holgate took instructions direct fromthe Gillibrands, who preferred it that way, and filed papers under Mr Swanepoel'sname without consulting Mr Swanepoel. It was late in the day — about 11 July —that Mr Swanepoel first learned what exactly had been alleged. And Mr Swanepoelacted reasonably when dealing with the earlier Auschwitz comment, remonstratingwith Mr Holgate, insisting the reference was removed and accepting at that early stagethat it was a momentary lapse in judgment.[64] We also consider that it was not negligent to think, as Mr Swanepoel did whenMr Nola came to him, that Bupa's treatment of Gordon might be useful tothe Gillibrands in negotiations with Bupa. Nor was it unreasonable to rely onthe opinion of counsel, who held himself out as expert in medico-legal matters, to theeffect that mistreatment might assist the Gillibrands on the removal application.Mr Holgate was adamant that there was a sufficient foundation for the allegations.[65] This brings us to what in our view is the dispositive factual contest onthis appeal. It concerns what Mr Swanepoel did when he saw the second and thirdoppositions and confronted Gibson Sheat's vigorous and well-founded condemnationof what had been done.[66] Mr Swanepoel's evidence in chief was that before replying on 12 July toGibson Sheat's letter of 11 July he called Mr Gillibrand and went throughGibson Sheat's letter with him. He warned Mr Gillibrand that the removal applicationwas likely to succeed and the estate "could be required to pay costs." Chris confirmedthat he was happy with what Mr Holgate was doing.[67] In cross-examination Mr Swanepoel confirmed the discussion withMr Gillibrand and explained that he had warned that they might have to pay apercentage of Bupa's costs. He did not warn about the risk that they might have topay indemnity costs:Q. So it's your evidence, would it be your evidence that you advisedChris and Mary Gillibrand that there was a risk that they could haveto pay some costs?A. My advice to Chris and Mary was yes, if they lost then there's alwaysthe risk that they would have to pay not only the debt but also the costsof the other side. At that time what I envisaged that they'd actuallyhave to pay the scale costs as amended by the Court whichnormally is not the full amount of the costs. I had never anticipatedand never advised them that they could actually face indemnity costs,no.Q. But you never told them what scale costs were, did you?A. As far as I can recall I think we actually talked about percentages.Q. Percentages of what?A. Of what the other sides costs were.Q. Percentages.A. Yes. They could be liable for up to 60% of the other sides costs.[68] Mr Gillibrand denied having any such discussion with Mr Swanepoel, butthe Judge accepted Mr Swanepoel's evidence.40 Mr Patterson challenged the Judge'sfindings that the Gillibrands directed Mr Swanepoel to leave matters with them andMr Holgate (and that they were effectively directly instructing Mr Holgate), but thosefindings were based on credibility findings relating to the Gillibrands and were plainlyopen to the Judge on the evidence.[69] The appeal then reduces to the question whether Mr Swanepoel breached hisduty by failing to warn that costs might be awarded on an indemnity basis.Mr Patterson emphasised that Mr Swanepoel did not detail this risk to the Gillibrands,nor did he recommend an adjournment or suggest the Gillibrands seek independentadvice. If he had the Gillibrands might have withdrawn the mistreatment allegations.Ms Twomey rejoined that this was one of the particulars of breach advanced in closingsubmissions that the Judge did not make a finding on. It was advanced at too late astage.[70] We do not accept that Mr Swanepoel was required to do more than he did inthe circumstances. He warned the Gillibrands he disagreed with Mr Holgate'sstrategy and they demurred.[71] It follows that Mr Swanepoel discharged any duty to warn of error in counsel'sadvice and the risk that the defence would not only fail but also sound in costs.[72] We also accept Ms Twomey's submission that it would have made nodifference had Mr Swanepoel intervened more forcefully, or even withdrawn.The Gillibrands were committed to following Mr Holgate's advice.[73] We record finally that Mr Patterson also contended that Mr Swanepoel was atfault for recommending Mr Holgate in the first place. There is nothing in this point.He had no reason to doubt Mr Holgate's competence or judgment when he first briefedhim, and this was not a difficult matter.40 HC substantive judgment, above n 1, at [215]–[216].Was the Judge wrong to admit the evidence of Mr Darlow?[74] As noted above at [50(c)], the Judge relied on the evidence of Mr Darlow that,speaking generally, Mr Swanepoel acted as a reasonably competent solicitor wouldhave acted. Mr Patterson contended that Mr Darlow's evidence amounted toimpermissible advocacy, commented on legal matters that were properly for the Judgeand was not prepared by him or based on specific information set out in his brief.He also contended that Mr Darlow had insufficient knowledge of the issuessurrounding solicitors briefing barristers and that in any event the evidence was notsubstantially helpful because the trial Judge was well placed to rule on the practice ofsolicitors briefing barristers.[75] Ms Twomey submitted in response that Mr Darlow freely admitted that hisevidence was based on the assumption that Mr Swanepoel was correct in his evidence,and in that sense it was not an exercise in advocacy. He was a well-qualified expert,and it was entirely appropriate for him to refer to case law in formulating his views onthe appropriate conduct for a solicitor in the circumstances.[76] Section 25 of the Evidence Act 2006 sets the test for the admissibility ofexpert evidence. The evidence must be of substantial helpfulness to the Judge beforeit is admissible;41 substantial helpfulness is an amalgam of relevance, reliability andprobative value.42[77] The Judge did not refer to the evidence in detail, but he referred to it assupporting the conclusions he had reached.43 He evidently found it substantiallyhelpful. We are not prepared to interfere with his assessment.Result[78] The application to amend the notice of appeal is granted.[79] The appeal is dismissed.41 Evidence Act 2006, s 25(1).42 Prattley Enterprises Ltd v Vero Insurance New Zealand Ltd [2016] NZCA 67, [2016] 2 NZLR750 at [94].43 HC substantive judgment, above n 1, at [225].[80] The appellants are jointly and severally liable to pay the respondent costs for astandard appeal on a band B basis and usual disbursements.Solicitors:Woodward Chrisp Lawyers, Gisborne for AppellantsRobertsons Barristers & Solicitors, Auckland for First Respondent