Hart's lawyer accused of abusing process

WILLIAM MACE
Last updated 12:25 31/08/2012
Barry Hart
LAWRENCE SMITH/Fairfax NZ
FALL FROM GRACE: Auckland lawyer Barry Hart.

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A High Court judge is considering whether disgraced Auckland lawyer Barry Hart and his solicitor have abused the court's process.

Hart has been engaged in a battle over ANZ National bank's attempts to claw back a $30 million loan secured by mortgages across the lawyer's Auckland properties.

However Hart and his solicitor Nigel Cooke have been accused of abusing the court's process by filing successive caveats and seeking multiple injunctions against the sales.

Last month Hart gave High Court Justice Geoffrey Venning an undertaking not to frustrate the mortgagee sale process any further.

However ANZ National is now seeking a finding that Hart and Cooke did abuse the process so as to set a standard for such tactics in other cases.

The bank is also seeking costs from the pair relating to the legal work that was done responding to their challenges.

Cooke has today formally withdrawn as the "solicitor of record" for Hart's case and his own lawyer Bruce Murray said Cooke was not aware of the actions of his client in filing a second lot of caveats against the sale.

The papers were prepared without his knowledge even though his name was attached to the documents as solicitor of record.

"The fact that someone else put his name on the cover sheet does not amount to a serious dereliction of duty.

"He was already involved in other matters and didn't get to read those papers until it was too late.

His "failures" were not a serious dereliction and they did not cause any of the bank's costs, said Murray.

Hart began the hearing by recognising his obligation to pay indemnity costs to the bank.

He later said that he had taken advice from another lawyer, John Katz QC, and believed he was able to file the second lot of caveats.

The judge has reserved his decision on whether the process has been abused and if so how much Hart and Cooke will be required to pay the bank in costs.

Hart was found guilty of professional misconduct earlier this month on charges including overcharging a client and is currently awaiting his penalty.

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- BusinessDay.co.nz

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