AN & ANOR v SOLICITOR T [2017] NZHC 370

AN & ANOR v SOLICITOR T [2017] NZHC 370

The mandatory injunction was refused because the orders sought were not enforceable against the respondent solicitor, constituted a collateral attack on existing Family Court orders which the applicant had abandoned on appeal and therefore had no real prospect of success under the American Cyanamid test, and the...

Source-derived case information.

Citation
[2017] NZHC 370
Parties
First Applicant: AN; Second Applicant: DN; Respondent: Solicitor T
Court
High Court
Jurisdiction
New Zealand
Judgment Date
8 March 2017
Procedural Posture
Civil Interlocutory Application / Interlocutory Hearing (application for Mandatory Injunction)
Outcome
Application for interim relief refused; defendant entitled to costs; defendant to file memorandum on costs within 15 working days and applicant to file any response within five working days; substantive claim may proceed subject to defendant's interlocutory applications.
Legal Topics
Interim Injunction, Collateral Attack, Capacity, Enduring Power of Attorney, Appointment of Lawyer, Abuse of Process, Costs
Mental Health Law Family Law Civil Procedure Professional Negligence Administrative Law Interim Injunction Collateral Attack Capacity +4 more

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Summary, issues, holding and outcome

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Parties

AN

First Applicant

DN

Second Applicant

Solicitor T

Respondent

Procedural Posture

Civil Interlocutory Application / Interlocutory Hearing (application for Mandatory Injunction)

Legal Issues

  1. 1 Whether a mandatory injunction should be granted to release AN and restore enduring powers of attorney
  2. 2 Whether the orders sought are enforceable against the respondent solicitor
  3. 3 Whether the plaintiff's claim amounts to a collateral attack on Family Court orders

Ratio Decidendi

The mandatory injunction was refused because the orders sought were not enforceable against the respondent solicitor, constituted a collateral attack on existing Family Court orders which the applicant had abandoned on appeal and therefore had no real prospect of success under the American Cyanamid test, and the balance of convenience favoured maintaining the status quo.

Court Disposition

Application for interim relief refused; defendant entitled to costs; defendant to file memorandum on costs within 15 working days and applicant to file any response within five working days; substantive claim may proceed subject to defendant's interlocutory applications.

Orders

  • Application for interim relief refused.
  • Defendant entitled to costs; defendant to file memorandum within 15 working days and applicant to file any submissions in response within five working days.