BRADBURY AND ANOR V WESTPAC BANKING CORPORATION AND ANOR HC AK CIV 2006-404-1328

BRADBURY AND ANOR V WESTPAC BANKING CORPORATION AND ANOR HC AK CIV 2006-404- 1328 13 February 2008IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2006-404-1328BETWEEN CLIVE RICHARD BRADBURY First Plaintiff AND BRADBURY & MUIR Second Plaintiff AND WESTPAC BANKING CORPORATION First Defendant AND RICHARD WILLCOCK Second Defendant Hearing: 4-5, 7-8 and 11-13 February 2008 Appearances: Michael Reed QC and Richard Wallis for Plaintiffs Stephen Kos QC, Bruce Scott and Melanie McRandle for Defendants Judgment: 13 February 2008JUDGMENT OF HARRISON J_________________________________________________________________________________ SOLICITORS Wynyard Wood (Auckland) for Plaintiffs Chapman Tripp (Wellington) for Defendants COUNSEL Michael Reed QC; Richard Wallis; Stephen Kos[1] Messrs Clive Bradbury and Gary Muir, the former partners of the law firm of Bradbury & Muir, have sued Westpac and Mr Richard Willcock, its Group Secretary and General Counsel, for damages. Originally the claim was for $13.9m for special damages plus general, aggravated and punitive losses; the first head was reduced to $5.6m before trial but the other items remained unchanged. [2] The case is based upon allegations of breach of contract, estoppel, intentional interference with contractual relations and defamation. All arise from Westpac's decision in early 2005 to terminate its professional relationship with the firm. Additional allegations of conspiracy against a range of senior employees within the bank were abandoned before trial. [3] Trial commenced before me on 4 February 2008. Mr Bradbury and other witnesses gave evidence for the plaintiffs. Westpac and Mr Willcock called a number of witnesses in their defence including two board members, Messrs Peter Wilson and Harry Price, and its former New Zealand Chief Executive, Ms Ann Sherry. All witnesses were subjected to cross-examination. [4] At the conclusion of evidence yesterday afternoon I arranged for counsel to deliver closing submissions at 10 am today. In the course of argument this morning I outlined to Mr Richard Wallis, who was responsible for addressing closing submissions for Bradbury & Muir, my concerns about the tenability of all causes of action. Mr Wallis answered my inquiries with skill, force and courtesy. But shortly before the luncheon adjournment Mr Wallis advised that on instructions from Mr Bradbury the plaintiffs abandoned all causes of action. [5] Mr Stephen Kos QC for the defendants immediately applied for judgment. I grant his application and enter judgment in favour of the bank and Mr Willcock on all four existing causes of action. [6] Mr Kos advises that Westpac and Mr Willcock seek costs. He has conveyed that it will seek an award either for indemnity or increased costs on the ground that the proceeding was without merit. Mr Wallis advises that Bradbury & Muir will oppose, although he appreciates the principle that costs normally follow the eventand the only issue for determination will likely be the basis upon which costs are to be fixed. [7] Accordingly, I grant Westpac leave to file a memorandum in support of its application for costs, but limited in length to a maximum of 10 pages, by 27 February 2008. In the event that the parties do not settle, Bradbury & Muir are to file a memorandum in answer, on the same conditions as to length, by 12 March 2008. If required, I will convene a short hearing at 9 am one day in March suitable to counsel to hear oral argument. [8] In entering judgment for Westpac, and in an attempt to assist counsel to resolve the question of costs, I record that Bradbury & Muir's claim raised a number of serious allegations against Westpac. Some involved imputations of misconduct by its senior management. Having heard and considered the evidence from the relevant witnesses, I am satisfied that all allegations were without any arguable legal or factual basis. [9] I appreciate that this litigation has taken a serious toll on the individuals principally involved. For the benefit of those interested in the result, I record my satisfaction that throughout Mr Willcock, together with Messrs Simon Jensen and Justin Moses of Westpac's Legal Services division, and latterly Ms Sherry, acted properly, fairly and lawfully and that the bank through its board and senior management has discharged any obligations it may have owed to Bradbury & Muir with probity and integrity. [10] I will if necessary determine the question of costs in March, but I trust that the parties will be able to settle that question between themselves without requiring further Court time. ______________________________________ Rhys Harrison J