STEPHENS LAWYERS LTD v CRIFFEL DEER LIMITED [2023] NZHC 2240

STEPHENS LAWYERS LTD v CRIFFEL DEER LIMITED [2023] NZHC 2240 [18 August 2023]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2023-485-189[2023] NZHC 2240BETWEEN STEPHENS LAWYERS LTDPlaintiffAND CRIFFEL DEER LIMITEDFirst DefendantAND PRIME COMMERCIAL LIMITEDSecond DefendantAND MICHAEL ROBERT GARNHAMThird DefendantHearing: 9 August 2023Appearances: M F McClelland KC for PlaintiffA D Goble for defendants (in relation to adjournment applicationonly)Judgment: 18 August 2023JUDGMENT OF ASSOCIATE JUDGE PAULSENThis judgment was delivered by me on 18 August 2023 at 2.30 pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Introduction[1] The plaintiff carries on business as barristers and solicitors. Its sole directorand shareholder is Michael Stephens, a lawyer at Wellington. The third defendant,Michael Garnham, is also a practising lawyer, and the first and second defendants arecompanies of which he is a director and shareholder.[2] The defendants brought proceedings against ANZ Bank New Zealand Ltd inthe High Court at Wellington.1 Initially Mr Garnham was the solicitor on the record(as well as being a party) and instructed counsel to conduct the litigation, but from 29April 2022 Mr Stephens was retained as the solicitor on the record and the instructingsolicitor to counsel.[3] The plaintiff is seeking summary judgment as to liability only for counsel'sfees incurred in the proceedings. The defendants have opposed the plaintiff'sapplication for summary judgment, although the grounds advanced include some thatgo only to the issue of quantum.2[4] The defendants have also (albeit very belatedly and after the issue of thisproceeding) complained to the Law Society to have counsel's fees subject to costsrevision. The defendants' position is that under s 161(1) of the Lawyers andConveyancers Act 2006 (the Act) the plaintiff is unable to proceed with its applicationfor summary judgment until the complaint has been finally disposed of.[5] Further, in a memorandum filed by Mr Garnham (representing all defendants),dated 28 June 2023, it is asserted Mr Stephens accepted appointment as the solicitoron the record in the ANZ Bank proceeding on the basis he had no responsibility orindemnity obligation in relation to the instruction of counsel, and that obligation wouldcontinue in relation to Mr Garnham but not to the first and second defendants.[6] The issue that arises is whether the defendants have an arguable defence to theplaintiff's claim for summary judgment as to liability because:1 Criffel Deer Ltd v ANZ Bank New Zealand Ltd HC Wellington CIV-2021-485-384.2 The defendants have also filed a counterclaim but have not raised that as a ground for opposingsummary judgment in their notice of opposition or in Mr Garnham's affidavit.(a) s 161(1) of the Act is a bar to the plaintiff obtaining summary judgmentas to liability whilst the defendants' complaint to the Law Society isunresolved; and(b) the plaintiff has no responsibility or indemnity obligation in respect tocounsel's fees.A preliminary issue[7] Mr Garnham has been representing himself and the other defendants. On8 August 2023, Mr Garnham emailed the court seeking an adjournment of the hearing.I issued a minute that I would deal with any such application at the hearing, but thatMr Garnham should be prepared to proceed in the event the application was refused.[8] Mr Garnham did not appear at the hearing. Mr Goble appeared onMr Garnham's instructions and advised me he had been instructed very shortly beforethe hearing. Mr Goble applied for an adjournment on the grounds that Mr Garnham'swife had suffered a medical emergency, and because Mr Garnham had only theprevious day been able to access the plaintiff's reply evidence and submissions.I refused the adjournment application, indicated briefly my main reasons for doing soand said I would give further reasons in this judgment.[9] Under r 7.42 High Court Rules 2016, the hearing of an application may, fromtime to time, be adjourned on any terms the Judge thinks just. The Court has a widediscretion in determining whether to grant an adjournment. It must balance the parties'competing interests, and have regard also to the interests of other parties in caseswaiting in the queue for a hearing and the public interest in achieving the most efficientuse of the Court's resources.[10] It is, of course, regrettable Mr Garnham's wife is ill, but this is not a recentdevelopment. From correspondence on the file it appears she has been ill for sometime. While Mr Goble was instructed there was a medical emergency, there is noevidence before me of that and Mr Goble had no details of it.[11] Despite his wife's health issues, Mr Garnham has chosen to represent himselfand the other defendants rather than instructing counsel. It is not reasonable to expectthe Court or the plaintiff to be inconvenienced by failure to comply with timetabledirections or last-minute requests for adjournments when he could have made otherarrangements.[12] Next, the plaintiff sent its reply evidence and submissions to Mr Garnham viaa Dropbox link on 26 July 2023. I understand the parties have previously exchangeddocuments electronically. It was only six days later, on 1 August 2023, thatMr Garnham complained to the plaintiff the documents would overwhelm his homeprinter. He did not then claim he could not access the documents, as he now does.[13] While I take Mr Garnham's assertion that the number of documents wouldoverwhelm his home printer at face value, he is an experienced lawyer who runs a lawoffice and has staff. He must have facilities to print documents himself or havesomeone else do that for him. There was simply no excuse for him to do nothing aboutprinting out the documents and wait until hardcopies were delivered to him on7 August 2023. This is particularly the case since the Court had timetabled the filingof the defendants' submissions by 2 August 2023, which never occurred.[14] It was submitted that Mr Garnham was requesting only a short adjournment.That presupposes that the Court can easily provide a further hearing in the very nearfuture and overlooks that judicial resources are precious and would be wasted if thehearing did not proceed.[15] Finally, the fees in issue have been outstanding for a very long time.Mr Garnham did not raise any concerns as to the reasonableness of them promptly,nor has he been cooperative in resolving any genuine concerns he may have aboutthem. He did not raise any dispute with counsel about their fees until after the claimagainst ANZ Bank had been struck out. Despite then saying he would pay what heconsidered reasonable, he did not do so. He then delayed, until after the issue of thisproceeding, referring the matter to the Law Society despite requests he do so monthsearlier. It is no coincidence, in my view, that the complaint was only made on the dayof the first case management conference. By that date some of the fees had beenoutstanding for almost 15 months.[16] Weighing up all these matters, the interests of justice did not favour grantingan adjournment of the hearing and it was refused.The facts[17] In about May 2021, Mr Garnham sought advice from Richard Fowler KC inrelation to the bringing of proceedings on behalf of himself and the other defendantsagainst ANZ Bank, claiming $34,566,575.[18] Shortly thereafter the defendants, through Mr Garnham, engaged MarkRobertson, a barrister, to provide legal services and information technology support inrelation to the anticipated proceedings.[19] A statement of claim commencing the proceeding was filed in the High Courtat Wellington on 3 August 2021.[20] Between May and December 2021 Mr Fowler and Mr Robertson providedlegal services to the defendants as instructed by Mr Garnham, and both Mr Fowler andMr Robertson rendered invoices for services provided which were paid.[21] On 15 December 2021, ANZ Bank filed its defence to the claim, as well asinterlocutory applications to strike out the proceeding and for summary judgment.[22] In around February 2022, Mr Fowler ceased to act for the defendants. Thedefendants, through Mr Garnham as the then instructing solicitor, engaged furtherbarristers, Craig Stevens and Tiho Mijatov, to act for the defendants along withMr Robertson (counsel).[23] Between February and May 2022 counsel were engaged in preparing theopposition to ANZ Bank's interlocutory applications and for the hearing.[24] On 28 April 2022, Mr Stevens suggested Mr Garnham should not remain asthe solicitor on the record. Mr Garnham accepted that, and Mr Stephens agreed toreplace him.[25] On 29 April 2022, a notice of change of representation and address for servicewas filed and Mr Stephens became the solicitor on the record for the defendants.[26] The application by ANZ Bank for strike out and summary judgment was heardbefore Churchman J on 3 and 4 May 2022. Significant costs were incurred in the lead-up to, and in respect of, the hearing in which all three counsel were involved for thedefendants.[27] Between February and June 2022, counsel rendered invoices for theirrespective legal services as follows:TableInvoice Date Robertson(incl GST)Stevens(incl GST)T Mijatov(incl GST)25 Feb 2022 $10,005.00(paid)30 March 2022 $45,540.00(part paid)31 March 2022 $11,730.00(paid)01 April 2022 $88,450.00(unpaid)30 April $25,530.00(unpaid)01 May 2022 $25,156.27(unpaid)02 May 2022 $28,980.00(unpaid)30 May 2022 $13,483.76(unpaid)$15,525.00(unpaid)07 June 2022 $27,255.00(unpaid)Totals (inclGST)$127,090.00 $74,520.00 $90,045.00Amounts paidby thedefendants$0.00 $21,735.00 $20,000.00The amountsdue andoutstanding$127,090.00 $52,785.00 $70,045.00[28] Between May and July 2022, counsel made numerous demands onMr Garnham for payment, but no payments were made. Mr Garnham did, however,send an email to the three counsel, on 3 June 2022, referring to cashflow issues butpromising to make payments from 20 June 2022.[29] On 29 July 2022, Churchman J delivered judgment striking out all of thedefendants' causes of action against ANZ Bank on the ground they were time-barred.3[30] On 8 August 2022, Mr Garnham met with counsel and, for the first time,expressed concern about counsel's fees which he said were too high. At that stage hedid not take issue with any aspect of the work that had been undertaken.[31] On 23 August 2022, counsel each terminated their retainers and, on 30 August2022, Churchman J granted them leave to withdraw due to the defendants' failure topay the outstanding fees.4[32] On 27 September 2022, counsel requested that the plaintiff make demand onthe defendants for their unpaid fees and take any necessary enforcement action inrespect of them. This did not happen immediately while the plaintiff took advice onits obligations from a barrister, Christopher Griggs.[33] On 13 December 2022, counsel sought a ruling from the New Zealand LawSociety as to the reasonableness of their fees but, on 19 December 2022, the Law3 Criffel Deer Ltd v ANZ Bank New Zealand Ltd [2022] NZHC 1851, [2022] NZCCLR 8 at [65].4 Criffel Deer Ltd v ANZ Bank New Zealand Ltd [2022] NZHC 2175.Society declined jurisdiction because it had not received any complaint aboutcounsel's fees from any of the defendants.[34] It was suggested that Mr Garnham should make his own complaint to the LawSociety but, on 16 January 2023, Mr Garnham wrote to Mr Stephens indicating thathe understood "an aggrieved client" had two years from invoicing to bring acomplaint, and neither he nor the other defendants would be "bullied" into makingtheir own complaint to Law Society at that time.[35] On 27 January 2023, the plaintiff issued a demand upon the first defendant (butemailed also to Mr Garnham) for payment of counsel's fees totalling $249,920 andattaching a tax invoice in respect of those fees. The defendants made no payment inresponse to that demand.[36] On 18 April 2023, the plaintiff commenced this proceeding. It was set downfor first call on 27 June 2023. There was no appearance on behalf of the defendants.Mr Garnham, acting for all defendants, filed a memorandum on 28 June 2023 statingthe defendants had now submitted a complaint and request for cost revision to the NewZealand Law Society as follows:In view of the complaint and reference for costs revision having been madeby the Defendants to the Professional Standards Officer of the New ZealandLaw Society, it would seem trite to suggest that any further timetabling inrelation to this application is both unnecessary and undesirable until thecomplaint and costs reference to the Society have been finally determined, atwhich point if needed, the Society's determination could be put before theCourt.[37] In the same memorandum, Mr Garnham also advised:Mr Stephens then accepted appointment as Solicitor of Record, that on thebasis that he would not have any responsibility or indemnity obligations inrelation to instruction of Counsel. That obligation would continue in relationto the Third Defendant, but not the First and Second Defendants.[38] On 11 July 2023, the Law Society gave notice of the complaint under s 141 ofthe Act.Summary judgment principles[39] The plaintiff's application for summary judgment is made under r 12.2(1) ofthe High Court Rules, which reads as follows:12.2 Judgment when there is no defence or when no cause of action cansucceed(1) The court may give judgment against a defendant if the plaintiffsatisfies the court that the defendant has no defence to a cause of actionin the statement of claim or to a particular part of any such cause ofaction.[40] Also relevant is r 12.3, which provides the Court may give judgment on theissue of liability and direct trial on the issue of amount. It reads as follows:12.3 Summary judgment on liabilityThe court may give judgment on the issue of liability, and direct a trial of theissue of amount (at the time and place it thinks just), if the party applying forsummary judgment satisfies the court that the only issue to be tried is oneabout the amount claimed.[41] The principles that apply to summary judgment applications are well-knownand are summarised by Associate Judge Osborne in Mount Grey Downs Ltd v PinotProperties Ltd as follows:5(a) Commonsense, flexibility and a sense of justice are required.(b) The onus is on the plaintiff seeking summary judgment to show thatthere is no arguable defence. The Court must be left without any realdoubt or uncertainty on the matter.(c) The Court will not hesitate to decide questions of law whereappropriate.(d) The Court will not attempt to resolve genuine conflicts of evidence orto assess the credibility of statements in affidavits.(e) In determining whether there is a genuine and relevant conflict offacts, the Court is entitled to examine and reject spurious defences orplainly contrived factual conflicts. It is not required to acceptuncritically every statement put before it, however equivocal,imprecise, inconsistent with undisputed contemporary documents orother statements, or inherently improbable.5 Mount Grey Downs Ltd v Pinot Properties Ltd [2018] NZHC 3094 at [12].(f) In assessing a defence the Court will look for appropriate particularsand a reasonable level of detailed substantiation – the defendant isunder an obligation to lay a proper foundation for the defence in theaffidavits filed in support of the Notice of Opposition.(g) In weighing these matters, the Court will take a robust approach andenter judgment even where there may be differences on certain factualmatters if the lack of a tenable defence is plain on the material beforethe Court.(h) The need for judicial caution in summary judgment applications hasto be balanced with the appropriateness of a robust and realisticjudicial attitude when that is called for by the particular facts of thecase. Where a last-minute, unsubstantiated defence is raised and anadjournment would be required, a robust approach may be requiredfor the protection of the integrity of the summary judgment process.(i) Once the Court is satisfied that there is no defence, the Court retainsa discretion to refuse summary judgment but does so in the context ofthe general purpose of the High Court Rules which provide for thejust, speedy and inexpensive determination of proceedings.(footnotes omitted)Issue 1 – s 161(1) of the Lawyers and Conveyancers Act[42] The issue is whether the defendants' complaint and request for cost revision inrespect to counsel's fees operates as a stay of this proceeding until the complaint hasbeen finally disposed of.[43] Sections 132(2), 141, and 161(1) of the Act are relevant to this issue, and I setthem out below.[44] Section 132 provides:132 Complaints about practitioners, incorporated firms, and theiremployees(2) Any person who is chargeable with a bill of costs, whether it has beenpaid or not, may complain to the appropriate complaints service aboutthe amount of any bill of costs rendered by a practitioner or formerpractitioner or an incorporated firm or former incorporated firm (beinga bill of costs that meets the criteria specified in the rules governing theoperation of the Standards Committee that has the function of dealingwith the complaint).[45] Section 141 provides:141 Notice to person to whom complaint or inquiry relatesThe Standards Committee—(a) must send particulars of the complaint or matter to the person to whomthe complaint or inquiry relates, and invite that person to make a writtenexplanation in relation to the complaint or matter:(b) may require the person complained against to appear before it to makean explanation in relation to the complaint or matter:(c) may, by written notice served on the person complained against, requestthat specified information be supplied to the Standards Committee inwriting.[46] Section 161(1) provides:161 Stay of proceedings for recovery of costs(1) If, under section 141, a Standards Committee gives notice to apractitioner or former practitioner or an incorporated firm or formerincorporated firm that it has received a complaint under section 132(2)about the amount of a bill of costs rendered by that practitioner orformer practitioner or incorporated firm or former incorporated firm, noproceedings for the recovery of the amount of the bill may becommenced or proceeded with until after the complaint has been finallydisposed of.[47] The plaintiff argues the defendants' complaint does not prevent it obtainingsummary judgment as to liability, because that does not interfere with the role of theStandards Committee of the Law Society in determining the reasonableness ofcounsel's fees. It referred to several authorities supporting that contention.6[48] In Pratley v Courteney, the plaintiff sought to recover fees and disbursementsincurred in undertaking work when acting as a solicitor in connection with theadministration of an estate. Some of the fees were incurred after he ceased acting asan executor and trustee, but to establish his entitlement to an indemnity for the workundertaken in that capacity.7 Shortly after the plaintiff filed his proceeding, the6 Simpson Grierson v Gilmour (2009) 19 PRNZ 865 (HC), at [64]–[65]; Pratley v Courteney [2020]NZHC 1636 at [10]; and Tonise v Woodroffe Law Partnership [2020] NZHC 1926.7 Pratley v Courteney, above n 6.defendant made a complaint to the Law Society contending the charges were excessiveand work had been carried out in the plaintiff's own interests. The defendant appliedfor a stay of the proceeding relying upon s 161(1) of the Act. His application wasunsuccessful and was dismissed.[49] Dobson J noted that:[10] There is settled authority that s 161 does not preclude pursuit ofproceedings by solicitors seeking to make out a defendant's liabilityfor a bill of costs, but that respect for the Law Society jurisdiction toreview quantum precludes any aspect of such proceeding addressingthe quantum of what may be recoverable.[50] He referred to Simpson Grierson v Gilmour, where Stevens J had set out thelimits on the scope of s 161 as follows:8[65] I accept that any such determination should not trench on thejurisdiction and powers of the Standards Committee. Normally, thefocus of the inquiry into the complaint will be on the reasonablenessor otherwise of a bill of costs. It may be that other issues ariseindirectly, for example, with regard to the scope and terms of acontract of retainer. This possibility was contemplated by the Courtof Appeal in Erwood at [45]. Therefore, where such an issue couldarise, a Court should be careful to ensure that nothing it did in thecourse of a judicial proceeding should cut across the jurisdiction andpowers of the Standards Committee. But the existence or otherwiseof a contract of retainer will usually be an entirely different issue. Iagree with the submissions on behalf of the plaintiff that the issue ofliability is a matter which is appropriate for the courts to decide,particularly where in a given case it can do so without in any wayprejudicing the role of the Standards Committee or causing aninjustice to the defendant. Whether there was a risk of prejudice orinjustice would depend entirely on the facts of a given case. I notethat this was a factor which weighed with the Court of Appeal inErwood: see [48].[66] The purpose of s 161(1) also provides assistance in its interpretation.Its purpose is to prevent a party such as a practitioner taking any stepsin relation to the recovery of the amount of a bill that might prejudiceany of the issues that will be determined by a Standards Committee inthe context of a complaint about the amount of a bill of costs. This isnot an inflexible rule; much may depend upon the circumstances ofthe particular case. There may be situations where some steps can betaken preliminary to the recovery of the amount of the bill that willnot in any way prejudice the issues to be determined by a StandardsCommittee.8 Simpson Grierson v Gilmour, above n 6.[51] Relevantly, counsel for the defendant in Pratley argued that there was nothingfor the Court to determine until the Law Society made a determination on hiscomplaint.9 While the terms of his complaint appeared to extend to both theentitlement of the solicitor to charge for certain categories of work and thereasonableness of the charges for the work, the defendant's position was said to be thatif the Law Society complaints process determined a further fee was payable he wouldpay it.[52] The plaintiff's counsel argued there was an issue as to the extent of indemnitythe plaintiff enjoyed and whether this extended to all costs reasonably incurred inestablishing the scope of the indemnity, including costs incurred after the plaintiffceased to be a trustee and executor of the estate.[53] Dobson J accepted the plaintiff's argument. He found:[16] It follows that in somewhat different circumstances from thoseinvolved in Simpson Grierson, there is an issue of law as to whether the estateis liable for costs of the types sought to be recovered in Mr Pratley's claim.The stay required by s 161 of the Act does not preclude that issue, which goesto liability only, from being advanced. It can, and if necessary should, beargued as an issue of law. The scope of such argument ought to respect theLaw Society's jurisdiction so that, at least until the complaint is determined,all issues going to the reasonableness of the steps taken and the extent ofcharges for them is a matter for the Law Society.[54] Applied to this case, the plaintiff argues that an issue has been raised as towhether all defendants, or just Mr Garnham, are liable for counsel's fees. Quitereasonably, given the history of this matter and the lengthy delays that have readyoccurred, the plaintiff wants that issue to be determined now so it is not a further matterto be resolved once the Law Society has issued its determination. The plaintiffcontends, and I accept, that it is a matter which goes to the defendants' liability onlyand can be decided without impinging on the role of the Law Society as to thereasonableness of counsel's charges.9 Pratley v Courteney, above n 6.[55] It follows that I find the defendants cannot resist summary judgment as toliability on the basis that s 161(1) operates as a stay of the proceeding until thedefendants' complaint is finally resolved.Issue 2 – Must counsel look to Mr Garnham for payment of their fees?[56] As I understand it, Mr Garnham contends that, as Mr Stephens was to have nopersonal responsibility for counsel's fees, the plaintiff has no right to sue for recoveryof the fees and must look solely to him (but not the other defendants) for payment.This is not raised in the notice of opposition as a defence to the summary judgmentapplication. To the limited extent Mr Garnham raises the issue in his affidavit, he sayswithout further elaboration:Mr Stephens had only agreed to accept appointment on the basis that he hadno responsibility for Counsel's fees, as identified in the email from Mr Stevensconfirming his appointment.[57] The argument appears to be solely based on an email dated 28 April 2022 fromMr Stevens, who had suggested Mr Garnham should be replaced as solicitor on therecord, to Mr Stephens, who was to replace him. The email concerned theappointment of Mr Stephens as instructing solicitor and stated:Mike (copied in) has instructed me that you are happy to be the solicitor onthe record for his litigation against the ANZ. I am counsel. Mike is a party soit isn't a good look that his firm also remains the solicitor on the record. I donot look to your firm for payment of our fees but instead to Mike or his trust.[58] It is surprising to me that Mr Garnham would advance a defence on this basis,which raises issues about the observance of his professional and ethical obligations.He is a senior lawyer and an officer of the Court. He can be taken to know that if inhis professional capacity he instructs counsel, he has an obligation to pay counsel'sfees in full unless the fees are promptly disputed through proper professionalchannels.10 He has accepted on several occasions that counsel are entitled to paymentof at least some part of such fees as are outstanding, yet has paid nothing towardsthem. He should have promptly referred any dispute as to what, if anything further,was owing to the Law Society but did not do so. Mr Garnham's ethical obligations10 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, r 10.12.aside, I do not accept the matter he raises provides him with an arguable defence tothe summary judgment application.[59] The facts of this case are similar to those in Mason v Robertson, which was anappeal from the entry of summary judgment in a claim by an instructing solicitor inrespect of counsel's fees.11 Several arguments were advanced, including that counselhad absolved the instructing solicitor from liability in respect of counsel's fees andthat counsel's invoices had been sent direct to the client. In those circumstances it wassuggested it was reasonably arguable that the instructing solicitor could not sue theclient in respect of counsel's fees. Downs J rejected that argument.[60] First, he found that it would be odd if the client had a defence to a claim forrecovery of counsel's fees simply because they had been invoiced directly, when therewould be no defence if the client had been invoiced indirectly. To uphold such adistinction would "triumph form over substance".12[61] More directly relevant to this case, Downs J also rejected the argument that aninstructing solicitor's express absolution from responsibility for payment of counsel'sfees affected "the client's obligation to pay them, or the solicitor's ability to seek theirpayment".13 He said:[33] The [Lawyers and Conveyancers Act (Lawyers: Conduct andClient Care) Rules 2008] impose an ethical obligation on aninstructing solicitor to pay the barrister's fees. The rules also providethe barrister and the solicitor may agree to the contrary. If they do,the solicitor is released from her or his ethical obligation to pay thebarrister's fees. However, such a release does not preclude thesolicitor from seeking payment from the client; nor afford the client adefence to payment should the solicitor elect to do so.[34] In short, X's release from an ethical obligation to Y in relation to Z isnot a legal impediment to X pursuing Z on Y's behalf. Any otherconclusion would mean a barrister could not obtain relief in thesecircumstances, even though they had diligently done everything askedof them by the client, for the client's advantage. That would be unjust.11 Mason v Robertson [2019] NZHC 2989.12 At [30]–[31], citing New Zealand Tamil Society Inc v Kiely Thompson Caisley [2011] NZAR 722(HC), at [12].13 At [33], citing Findlay v Webb Morice & Partners High Court Auckland AP82-SW99,6 September 1999.[62] I agree with Downs J's assessment of the law, and there is nothing inMr Stevens' email of 28 April 2022 to suggest that counsel were not only absolvingMr Stephens from personal liability for their fees but also from an instructingsolicitor's obligation to use reasonable endeavours to ensure the fees were paid.14 Thatwould have been quite an extraordinary thing to do in circumstances where it is alongstanding rule that a barrister may not sue his or her client for recovery of fees.[63] Further, to the extent that Mr Stevens says in his email that he would be lookingto Mr Garnham and his trusts for payment, that is inconsistent with an assertion thatMr Garnham alone was responsible for payment of counsel's fees. Counselunderstood that Mr Garnham was a director and shareholder of the defendantcompanies and that some of the shares were held in his family trusts. They also knewthat Criffel held substantial assets.[64] Not only that, Mr Garnham never suggested prior to 28 June 2023, when hefiled his memorandum in this proceeding, that only he would be liable for counsel'sfees, and in fact all counsel had been paid something towards their fees by thedefendants. Counsel's fees that were actually paid in the ANZ Bank proceeding werepaid by Criffel or one of Mr Garnham's family trusts or related companies.[65] Also, on 3 June 2022, Mr Garnham informed counsel that Criffel's cashflowhad been affected due to delays in deer kills. He said that a significant sum thecompany would ordinarily receive had not been, and that had "flowed through notsurprisingly to our/Criffel cashflows – and your accounts". He promised to "flow"funds to each counsel at least once, if not twice, from about 20 June 2022. That didnot happen, but the fact that Mr Garnham was anticipating payment to be made byCriffel is inconsistent with his position it was not responsible for counsel's fees.[66] I therefore reject the argument that the three counsel must look to Mr Garnham(and only him) for payment of their fees. However, there is one qualification I maketo that. The plaintiff was retained in respect of the ANZ Bank litigation on 28 April2022, and Mr Stephens personally accepted appointment as the solicitor on the recordfrom 29 April 2022. Up until that date, Mr Garnham was their instructing solicitor14 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, r 10.12.2.and was responsible for payment of counsel's fees. I do not see how it can be that theplaintiff can also now sue to recover fees rendered before it was retained. As far asMr Garnham has failed to pay such fees, his obligation to do so is a matter that can beenforced through disciplinary proceedings. Despite what Mr McClelland said aboutthe matter, I am unable to find that the defendants do not have an arguable defence inrespect to fees rendered prior to 28 April 2022.Result[67] The plaintiff has satisfied me it is entitled to summary judgment as to theliability of each of the defendants for payment of counsel's fees the subject of thisclaim and rendered after 28 April 2022. For the avoidance of doubt, nothing in thisjudgment is concerned with the quantum of such fees payable by the defendants, whichis a matter to be determined by the Law Society.[68] I direct that the case be adjourned to a telephone conference with an AssociateJudge in three months to review progress of the defendants' complaint. However, ifthe parties are agreed, the proceeding could be stayed pending the Law Society'sdecision and I invite them to request that by memorandum.[69] In relation to costs, if the plaintiff seeks costs at this stage it should file amemorandum within 14 days. The defendants shall have 14 days to reply. Memorandashall be no longer than five pages. I will determine costs on the papers._______________________O G PaulsenAssociate JudgeSolicitors and Counsel:Solicitor acting – Michael Stephens (Counsel: M McClelland KC), WellingtonMike Garnham Barristers & Solicitors, Wellington