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Chong Nee v Tasker [2012] WSSC 51 (19 September 2012)

SUPREME COURT OF SAMOA

Chong Nee v Tasker [2012] WSSC 51

Case name: Chong Nee v Tasker

Citation: [2012] WSSC 51

Decision date: 19 September 2012

Parties:
KELLY CHONG NEE, (deceased) represented by his eldest child MICHAEL CHONG NEE, JOHN CHONG NEE, DICK CHONG NEE, all of Auckland, New Zealand and PATRICK CHONG NEE and SIA WATTERS both of Levin, New Zealand.
v

MABEL TASKER, of 50A Winchester Street, Levin, New Zealand

Hearing date(s):

File number(s): CP.82/11

Jurisdiction: Civil

Place of delivery: Mulinuu

Judge(s): Nelson J

On appeal from:

Order:

Representation:
Mr T K Enari for plaintiffs
Mr T R S Toailoa for defendant

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:
AQM Ltd v Westfield Holdins Ltd [2006] WSSC 65
Prince Jeffri Bolkiah v KPMG [1998] UKHL 52; [1999] 2 AC 222
Brezeal v Lam [2008] WSSC 31

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

CP.82/11

BETWEEN:

KELLY CHONG NEE, (deceased) represented by his eldest child MICHAEL CHONG NEE, JOHN CHONG NEE, DICK CHONG NEE, all of Auckland, New Zealand and PATRICK CHONG NEE and SIA WATTERS both of Levin, New Zealand.
Plaintiffs

AND:

MABEL TASKER, of 50A Winchester Street, Levin, New Zealand.
Defendant

Counsel: Mr T K Enari for plaintiffs
Mr T R S Toailoa for defendant

Decision: 19 September 2012

DECISION OF NELSON J
(Application to disqualify counsel)

1. The parties are beneficiaries in the estate of their father Victor Chong Nee who died on or about 10 August 1997. He left a will dated 21 April 1988 appointing the defendant and one of his sons Douglas Chong Nee as joint executors of his will. The Supreme Court probated the will and by order dated 12 March 2007 confirmed the appointment of the joint executors.
2. By statement of claim dated 27 May 2011 the plaintiffs seek revocation of the defendants appointment. It alleges she fraudulently transferred certain estate properties to herself in breach of the terms of the will. It seeks orders returning said properties to the estate to be dealt with presumably pursuant to the terms of the will.
3. The defendant disputes the claim and says the properties were purchased from her father during his lifetime. Sale monies were paid to the father and part of the consideration was payment of the fathers Development Bank of Samoa loan. Deeds of Conveyance were duly executed and lodged with the Lands and Survey Department for registration on 19 December 1986 following discharge of the DBS mortgage. The deeds were lost by the Department and have never been recovered. The father subsequently re-mortgaged the defendants land to the Development Bank of Samoa to secure further advances. Which mortgage remained outstanding as at his death. The defendant again paid the DBS loan as the Bank was commencing foreclosure proceedings.
4. The defendant maintains she is the proper legal if not equitable owner of these properties. Alternatively by way of counter claim she argues for reimbursement of all her monies and expenses whereupon the properties can be returned to the estate and redistributed in accordance with the terms of her fathers will. The plaintiffs in response deny she is entitled to reimbursement except for costs legitimately incurred by her as an executor.
5. The matter came before me for hearing but was adjourned on plaintiffs application as they were not ready to proceed. Defence counsel however raised the issue of a conflict of interest in Mr Enari and his law firm continuing to represent the plaintiffs. He submitted that because the law firm acted for the defendant in relation to the alleged purchases it was not appropriate they continue to act as the bona fides of the purchases was now in question and Mr Enari was likely to be called by the defence as a witness. Mr Enari has objected to what amounts to an application to disqualify him and his law firm and has filed written submissions. It is common ground that it was Mr Bob Barlow of the law firm who acted for the parties in respect of the 1986 transaction. Mr Barlow has since passed away.
6. The law in this area has been addressed in several decisions of this court most notably AQM Ltd v Westfield Holdings Ltd [2006] WSSC 65 upheld on appeal 14 September 2007 (unreported) and Brezeal v Lam [2008] WSSC 31. The jurisdiction of the court to disqualify a counsel from acting or continuing to act is not in issue.
7. The authorities show the grounds for disqualification are three fold: conflict of interest, protection of confidential information and misconduct. The first and third ground would appear to have no application to the instant case. The position in relation to the second ground is governed by the observations of the House of Lords in Prince Jeffri Bolkiah v KPMG [1998] UKHL 52; [1999] 2 AC 222 where Lord Millet in delivering their Lordships judgment said at p.334 in a passage relied on by Sapolu, CJ in Brezeal v Lam:

“Where the Court’s intervention is sought by a former client however, the position is entirely different. The Court’s jurisdiction cannot be based on any conflict of interest, real or perceived, for there is none. The fiduciary relationship which subsists between solicitor and the client comes to an end with the termination of the retainer. Thereafter the solicitor has no obligation to defend and advance the interests of his former client. The only duty to the former client which survives the termination of the client relationship is a continuing duty to preserve the confidentiality of information imparted during its subsistence.

Accordingly, it is incumbent on a plaintiff who seeks to restrain his former solicitor from acting in a matter for another client to establish (i) that the solicitor is in possession of information which is confidential to him and to the disclosure of which he has not consented and (ii) that the information is or may be relevant to the new matter in which the interest of the other client is or may be adverse to his own. Although the burden of proof is on the plaintiff, it is not a heavy one. The former may readily be inferred; the latter will often be obvious.”

8. The questions here are: (i) whether Mr Enari or his law firm are in possession of information confidential to the defendant which the defendant has not agreed to disclose; and (ii) whether the information is or may be relevant to the matter at hand in which the interests of the plaintiffs are or may be adverse to the defendant.
9. The facts prima facie show that in 1986 Mr Barlow was engaged by the defendant to document the sale of part of the estate lands to her. The transaction was never completed. The defendant did not become registered owner of the lands. Inexplicably the defendant did nothing further about the matter for 24 years. Her file and her fathers file were transferred on 24 May 2004 to her present counsel Mr Toailoa. Mr Barlow passed away in 2007 and these proceedings were filed in 2011.
10. The relationship between the defendant and Mr Enaris law firm ended in 2004. She has not sought to join her previous lawyers as a defendant on the basis of negligence or otherwise. There is no evidence before me that either Mr Enari or his law firm are or can reasonably be supposed to be in possession of confidential information in relation to the 1986 transaction. If there were any such information, Mr Barlow took it with him. At the time Mr Enari was not even a member of the law firm which was then known as Kruse Vaai and Bev.
11. Any such confidential information is obviously known to the defendant and the pleadings show she is relying thereon. Even were Mr Barlow still alive he would be only confirmatory of her testimony about the transaction. There is no evidence either Mr Enari or any other member of the law firm has personal knowledge of these matters. If it is a matter of records these are now all in the hands of defence counsel. Any further relevant records should be disclosed by discovery or can be the subject of a specific order from the court.
12. There is no doubting the relevance of such information but it has not been shown that either Mr Enari or the defendants former lawyers are currently in possession of confidential information which could adversely affect her defence and counter claim. As stated by Lord Millet in Prince Jeffri:

“Given the basis on which the jurisdiction is exercised, there is no cause to impute or attribute the knowledge of one partner to his fellow partners. Whether a particular individual is in possession of confidential information is a question of fact which must be proved or inferred from the circumstances of the case.”

13. There would in my view be no justification either for subpoenaing Mr Enari or any of the partners of the defendants previous law firm absent Mr Barlow. Any effort to do that for the purpose of disqualifying Mr Enari or the law firm from acting is a pathway fraught with danger.
14. The application by the defendant to disqualify her former solicitors from acting for the plaintiffs should be refused. Costs reserved as costs in the cause as are the defendants costs on the adjournment. Proceedings returned to court list to set new trial date. For mention 01 October 2012.
    

JUSTICE NELSON