GILLIBRAND AND GILLIBRAND AS TRUSTEES OF THE CHRIS AND MARY GILLIBRAND FAMILY TRUST v SWANEPOEL & ANOR [2017] NZHC 1209

GILLIBRAND AND GILLIBRAND AS TRUSTEES OF THE CHRIS AND MARY GILLIBRAND FAMILY TRUST v SWANEPOEL & ANOR [2017] NZHC 1209

The court held that counsel (Holgate) breached his duty by advancing and maintaining serious mistreatment allegations in opposition to the removal application without a reasonable evidential foundation and without adequate advice on the high risk (including indemnity costs), causing the trustees to incur indemnity costs of $63,950 and modest general damages; the solicitor (Swanepoel) did not breach his duty given instructions received and reliance on counsel and client choices.

Citation
[2017] NZHC 1209
Parties
First Plaintiffs (trustees): Christian John Gillibrand and Mary Caecilia Gillibrand as Trustees of the Chris and Mary Gillibrand Family Trust; Second Plaintiff (personal Capacity): Christian John Gillibrand; First Defendant (solicitor): George Peter Swanepoel; Second Defendant (barrister): Andrew Peter Holgate; Third Parties: Christian John Gillibrand and Mary Caecilia Gillibrand
Court
High Court
Jurisdiction
New Zealand
Judgment Date
6 June 2017
Procedural Posture
Professional Negligence (solicitor and Barrister) / High Court Judgment (trial)
Legal Topics
Executor Removal, Resthome Fees Dispute, Conflict of Interest, Costs (indemnity), Evidential Basis for Allegations, Causation and Quantification of Loss
Professional Negligence Trusts and Estates Civil Procedure Health Care Law Executor Removal Resthome Fees Dispute Conflict of Interest Costs (indemnity) +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 4 Party arguments 2
Sign in to unlock

Parties

Christian John Gillibrand and Mary Caecilia Gillibrand as Trustees of the Chris and Mary Gillibrand Family Trust

First Plaintiffs (trustees)

Christian John Gillibrand

Second Plaintiff (personal Capacity)

George Peter Swanepoel

First Defendant (solicitor)

Andrew Peter Holgate

Second Defendant (barrister)

Christian John Gillibrand and Mary Caecilia Gillibrand

Third Parties

Procedural Posture

Professional Negligence (solicitor and Barrister) / High Court Judgment (trial)

Legal Issues

  1. 1 Whether solicitors/barristers owed duties of care to trustees and beneficiary/executor
  2. 2 Whether defendants breached duties in advising about the trust debt (forgiveness)
  3. 3 Whether defendants breached duties by advancing and maintaining mistreatment allegations without evidential foundation

Ratio Decidendi

The court held that counsel (Holgate) breached his duty by advancing and maintaining serious mistreatment allegations in opposition to the removal application without a reasonable evidential foundation and without adequate advice on the high risk (including indemnity costs), causing the trustees to incur indemnity costs of $63,950 and modest general damages; the solicitor (Swanepoel) did not breach his duty given instructions received and reliance on counsel and client choices.