McGuire v Central Standards Committee 3

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 61/2024
[2024] NZSC 104

BETWEEN	JEREMY JAMES MCGUIRE Applicant
AND	CENTRAL STANDARDS COMMITTEE 3 First Respondent
AND	GENERAL STANDARDS COMMITTEE 1 Second Respondent
AND	GENERAL STANDARDS COMMITTEE 3 Third Respondent
AND	LEGAL COMPLAINTS REVIEW OFFICER Fourth Respondent
AND	WELLINGTON STANDARDS COMMITTEE 1 Fifth Respondent
AND	LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL Sixth Respondent

Court:	Glazebrook, Ellen France and Kós JJ
Counsel:	R J Latton for Applicant P N Collins for First, Second and Third Respondents
Judgment:	27 August 2024

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.

BThe applicant must pay one set of costs of $2,500 to the first, second, third and fifth respondents.

____________________________________________________________________

REASONS

Introduction

Mr McGuire seeks leave to appeal against a decision of the Court of Appeal.[1] That Court had dismissed his appeal from a decision of the High Court, which had dismissed Mr McGuire’s application for judicial review of actions by the respondent Standards Committees, and on review by the fourth respondent, the Legal Complaints Review Officer (LCRO).[2]

Background

[1]McGuire v Central Standards Committee 3 [2024] NZCA 165 (Wylie, Mander and Jagose JJ) [CA judgment].

[2]McGuire v Central Standards Committee [2023] NZHC 242, [2023] NZAR 134 (Palmer J).

The application for leave to appeal seeks to challenge the findings of the Court of Appeal relating to the lodging of a caveat and the applicant’s liability to refund part of fees paid to him. The full background is set out in the Court of Appeal judgment.[3]
[3]CA judgment, above n 1, at [4]–[23]. The procedural history and a summary of the High Court judgment are set out at [24]–[29].
It suffices for the purposes of this application to note that the caveat in question was one lodged on behalf of a son aggrieved by his father’s will (the complainant). Mr McGuire had successfully registered the caveat on the basis that the complainant had an equitable interest in a property under a constructive trust. Mr McGuire had the complainant sign an indemnity which recorded that he had been instructed to register a caveat and that the client indemnified Mr McGuire for any costs or damages.[4] The complainant later brought a claim under the Family Protection Act 1955, through other solicitors. The caveat was ultimately withdrawn and the Family Protection Act proceedings were settled on the basis that the costs incurred by the counterparties related to the lodgement of the caveat would be paid by the complainant.
[4]At [4]–[6].
The refund issue arose because a fee charged by Mr McGuire for a conveyancing transaction exceeded the advertised fee on his website. After being contacted by the client, he had agreed to refund the difference but had failed to do so.[5]

Court of Appeal decision

[5]At [16]–[19].

With regard to the caveat, the Court of Appeal noted that the relevant Standards Committee and the LCRO had relied on Gordon v Treadwell Stacey Smith,[6] as to the appropriate steps a solicitor should take where they have doubts about whether there is a proper basis to lodge a caveat. Mr McGuire clearly had such doubts: he should have prepared the documentation for the complainant to lodge himself, whether or not he had an indemnity.[7] There was no error in the High Court’s decision declining to grant judicial review on this point.[8]
[6]Gordon v Treadwell Stacey Smith [1996] 3 NZLR 281 (CA).
[7]CA judgment, above n 1, at [62].
[8]At [63].
With regard to the refund, Mr McGuire’s argument before the Court of Appeal was that this should not have been dealt with by the relevant Standards Committee as it related to a relatively minor bill of costs: (Mr McGuire referred to Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008, reg 29). The Court of Appeal rejected that argument, holding that the complaint was not about overcharging, but about the refusal to provide the promised refund. This meant that reg 29 did not apply.[9]

Our assessment

[9]At [66]–[68].

This application relates to the particular circumstances of Mr McGuire’s case. It therefore raises no point of general or public importance, or general commercial significance.[10] Nor is there any risk of a miscarriage of justice.[11] Nothing raised by Mr McGuire suggests that the decision of the Court of Appeal may have been in error.

Result

[10]Senior Courts Act 2016, s 74(2)(a) and (c).

[11]Section 74(2)(b). See Junior Farms Ltd v Hampton Securities Ltd (in liq) [2006] NZSC 60, (2006) 18 PRNZ 369 at [5] for what is required for there to be a miscarriage of justice in civil cases.

The application for leave to appeal is dismissed.
The applicant must pay one set of costs of $2,500 to the first, second, third and fifth respondents.

Solicitors:
J J McGuire, Palmerston North for Applicant
K A Pludthura, New Zealand Law Society, Auckland for First, Second, Third and Fifth Respondents

Jeremy James McGuire, the applicant, sought leave to appeal a decision of the Court of Appeal, which had dismissed his appeal from a decision of the High Court. The High Court had dismissed Mr McGuire’s application for judicial review of actions by the respondents, the Standards Committees, and the Legal Complaints Review Officer. The application for leave to appeal primarily sought to challenge the findings of the Court of Appeal regarding the lodging of a caveat and Mr McGuire’s liability to refund part of the fees he had charged. The caveat in question was lodged on behalf of a son aggrieved by his father’s will. Mr McGuire successfully registered the caveat based on an equitable interest in a property under a constructive trust, with the complainant signing an indemnity. However, the complainant later brought a claim under the Family Protection Act 1955, resulting in the caveat being withdrawn. The Court of Appeal held that Mr McGuire should have prepared the documentation for the complainant to lodge himself, regardless of the indemnity, and that there was no error in the High Court’s decision declining to grant judicial review on this point.

The legal issues before the Court were whether the Court of Appeal erred in its findings about the appropriate steps a solicitor should take when lodging a caveat and whether the complaint about the failure to refund should have been dealt with by the relevant Standards Committee. The Court of Appeal had referred to Gordon v Treadwell Stacey Smith to determine that Mr McGuire should have prepared the documentation for the complainant to lodge himself. With regard to the refund, the Court of Appeal rejected Mr McGuire’s argument that the complaint should not have been dealt with by the relevant Standards Committee, holding that the complaint was about the refusal to provide the promised refund, not overcharging. The Court of Appeal found that Mr McGuire’s argument was without merit.

The Court assessed that this application did not raise any point of general or public importance, nor was there any risk of a miscarriage of justice. The Court concluded that nothing raised by Mr McGuire suggested that the decision of the Court of Appeal may have been in error. Therefore, the application for leave to appeal was dismissed. Additionally, the applicant was ordered to pay one set of costs of $2,500 to the first, second, third, and fifth respondents.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established