TQ v RI
| Jurisdiction | New Zealand |
| Judgment Date | 08 August 2022 |
| Neutral Citation | [2022] NZLCRO 90 |
| Docket Number | Ref: LCRO 140/2021 |
| Court | Legal Complaints Review Officer |
CONCERNING an application for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006
AND
CONCERNING a determination of [AREA] Standards Committee
[2022] NZLCRO 90
Ref: LCRO 140/2021
LEGAL COMPLAINTS REVIEW OFFICER
ĀPIHA AROTAKE AMUAMU Ā-TURE
Law Practitioners — application for review of a determination of an Area Standards Committee to take no further action — allegation of competence and negligence when conducting litigation — reasonable costs factors — allegations of negligence in the context of the complaints and disciplinary process — Lawyers and Conveyancers Act 2006 — Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 — Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008
In accordance with s 213 of the Lawyers and Conveyancers Act 2006 copies of this decision are to be provided to:
Mr TQ as the Applicant
Mr RI as the Respondent
Mr UV as a related person
[AREA] Standards Committee
New Zealand Law Society
Mr TQ has applied for a review of the determination of his complaints about Mr RI.
Mr RI commenced acting for Mr TQ in 2010 and appeared for him in the District Court in August 2014. 1
The facts giving rise to the proceedings are described by Mr RI in his response to Mr TQ's complaints. 2
2. I (and [Law Firm A]) acted for Mr TQ in proceedings concerning a dispute over what has been described as a “rare and collectable” 19XX [Car A]. The
judgment of His Honour Judge KB of 4 September 2014 (following a hearing on XX and XX MONTH 20XX) is annexed marked as 1. Mr TQ was the defendant, and judgment was entered against him in favour of the third plaintiff for the sum of $67,000 plus interest and costs.…
5. The background to the dispute regarding this motor vehicle is set out in the judgment. But in summary, Mr TQ purchased the [Car A] motor vehicle sight unseen, from a licenced motor vehicle dealer (a JX of [Company A Ltd]) in December 2006. The purchase price was $84,000, and he paid a deposit of $17,000.
6. The vehicle was imported into [Country A], and Mr TQ took delivery of it in March 2007, and paid by cheque the balance of the purchase price of $67,000. Following taking the vehicle home, Mr TQ viewed that there were several deficiencies with the vehicle in the nature of misrepresentations made by the motor vehicle dealer. He stopped the cheque for the balance of the purchase price, and wished for a refund of his deposit paid. He engaged a lawyer at that time (not myself or [Law Firm A]), and there were a number of pieces of correspondence between lawyers for Mr TQ and the motor vehicle dealer at that time, with the lawyers for the motor vehicle dealer demanding the balance of the purchase price. Through his lawyer, Mr TQ rejected the motor vehicle for breaches of the guarantees under the Consumer Guarantees Act 1993. The motor vehicle dealer also cancelled the motor vehicle agreement due to (what was said) was Mr TQ's breach of it by cancelling the cheque. At all times, Mr TQ retained possession of the vehicle.
7. [Company A Ltd] went into receivership, and its receivers approached Mr TQ regarding the motor vehicle in 2010. At that time, Mr TQ approached me for some advice, and I sent some correspondence on his behalf to the receivers of [Company A Ltd]. Nothing was able to be resolved at that time.
8. Proceedings were brought by [Company A Ltd] and Mr JX against Mr TQ in March 2013, just inside the 6 years from the time of stopping of the cheque for the balance of the purchase price on the motor vehicle. Mr TQ contacted me once more at that time and I proceeded to act for him in the proceedings brought against him in the District Court.
…
During the time that Mr RI acted from Mr TQ, he rendered seven bills of costs, the last one of which was issued on 26 August 2014. Of the total amount invoiced, the sum of $18,643.66 remained unpaid by Mr TQ.
In February 2020, the firm 3 applied for summary judgment against Mr TQ for the amount outstanding, together with interest and costs.
Mr TQ opposed the application.
The Court declined summary judgment and the proceedings have continued on the ‘ordinary track’.
Mr TQ lodged his complaint with the Lawyers Complaints Service on 9 July 2020 and the proceedings remain stayed as required by s 161 of the Lawyers and Conveyancers Act 2006.
Mr TQ challenged the advice he received from Mr RI in the conduct of the litigation and asserts that Mr RI was negligent and incompetent. In his complaint, Mr TQ identifies a number of instances where he believes the advice provided by Mr RI was negligent and/or that Mr RI was incompetent.
For the purposes of this decision, there is no need to record Mr TQ's complaints in any detail but I include here a portion of Mr TQ's statement of defence to the summary judgment proceedings 4 which provides the essence of Mr TQ's allegations: 5
RI, [Law Firm A] has not included all the previous invoices relating to this matter. The previous work, which was carried out, and the other invoices which have been charged and paid for, were due to the negligence and incompetence of RI, [Law Firm A]. I had made it quite clear to RI, [Law Firm A] from the initial outset, that the first and second plaintiffs should not have the right to sue me, as the first and second plaintiff was incorrect. RI, [Law Firm A] refused to accept that the plaintiffs were incorrect, and told me that there was absolutely nothing I could do about the false court proceedings made against me, and that my only 4option was to go to court and fight this false claim made against me. I questioned as to whether or not I could somehow oppose this false court proceeding, due to the fact that the plaintiffs were incorrect, but RI, [Law Firm A] was adamant that I was unable to do anything to oppose these court proceedings, - which is in fact untrue, as subsequently RI, [Law Firm A], has now admitted in his affidavit, that the plaintiffs were incorrect (see Exhibit B). Also, as I was preparing these court documents for today, I found the following information regarding this matter which states about an “interlocutory application” (see Exhibit J) - where a defendant may oppose an incorrect claim made against them. RI of [Law Firm A] never advised me about this “interlocutory” option which proves again about his negligence and incompetence.
Please see following the list of invoices I have been charged.
Invoice 78043
12 April 2013
$ 5,286.20
PAID
(Exhibit C)
Invoice 78130
24 May 2013
$ 2,915.00
PAID
(Exhibit D)
Invoice 78458
28 Nov 2013
$ 8,189.23
PAID
(Exhibit E)
Invoice 78695
9 April 2014
$13,475.44
PAID
(Exhibit F)
Invoice 78838
18 June 2014
$24,876.48
Paid $24,076.48 to date
(Exhibit G)
Invoice 78969
26 Aug 2014
$17,843.66
(Exhibit H)
Total
$72,586.01
Total paid to date $53,942.35
With all the costs, this then blew out from the estimated costs of $18,975.00 to $72,586.01 which is more than 382% increase to their estimated costs.
Mr TQ also asserts that Mr RI had estimated his fees would be $16,500 plus GST, whereas the total amount charged to Mr TQ amounted to $72,586.01.
The outcome sought by Mr TQ from his complaints is to have the unpaid balance of the fees cancelled and compensation for Mr RI's alleged ‘negligence and incompetence’. 6
I will not record here the detail of Mr RI's rejection of Mr TQ's allegations of negligence and incompetence. Suffice to say, at this point, the outcome of this review is to confirm the determination of the Committee to take no further action on Mr TQ's complaints for the reasons which follow.
The Committee discussed various issues arising in the course of the litigation in some detail. It concluded: 7
Overall, the conduct of the litigation generally appears to the Committee to have been careful, well considered and handled in a competent manner with all appropriate defences being pled and argued in submissions that were based on detailed legal research. As such, the Committee does not find that Mr RI was negligent in the conduct of the litigation.
The Committee first observed that all of the invoices were rendered more than two years prior to Mr TQ's complaint. It then concluded that there were no special circumstances 8 which would enable the Committee to address the fee complaint.
The Committee also considered there was an adequate remedy for Mr TQ to pursue, given that matters remain before the court.
Members of the Committee include lawyers versed in litigation and they formed the view that the fees charged by Mr RI were fair and reasonable. The Committee also noted that Mr RI had advised Mr TQ that costs were going to be in excess of the estimates provided by him.
Having made these observations, the Committee then concluded that the fees were fair and reasonable.
Having considered Mr TQ's complaints, Mr RI's response, and all of the material provided by them, the Committee determined to take no further action on Mr TQ's complaints.
Mr TQ believes that the Committee had made ‘some prejudgements on [his] ability to understand’ advice provided to him, 9 but he says that Mr RI had not given him any advice on which he could make an informed decision as to whether or not to oppose the joinder application in the earlier litigation.
He refers to the Committee's comment that Mr RI was ‘ill prepared’ to deal with the issue that arose at the summary judgment hearing as evidence that Mr RI was ‘negligent’ in the advice...
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