Haira v Burbery Mortgage Finance & Savings Ltd (In Receivership): Koya v Haira - [1995] 3 NZLR 396

Contract — Rectification — Whether available for misdescription of party in mortgage document — Whether common intention of parties to be bound — Other evidence to be considered.

Contract — Consideration — Mortgages — Whether failure of consideration if mortgagor did not physically receive mortgage moneys — Whether instructions by mortgagor to agent for application of mortgage moneys proper consideration.

Equity — Fiduciary relationship — Whether conflict of interest — Solicitor acting for both parties to a mortgage — Whether duty to advise mortgagor to be independently advised — Whether duty to advise mortgagor concerning wisdom of transaction or terms of contract — Maintenance of undivided loyalty to clients.

Law practitioners — Solicitors — Solicitors acting for both parties in mortgage transaction — Whether one or both parties should be independently advised — Effect of failure to obtain fully-informed consent — Whether duty to advise client concerning wisdom of transaction or on any individual terms of contract when conflict of interest may arise — Whether failure to do so a breach of fiduciary duty.

Legal aid — Civil proceedings — Liability of aided person for costs — Whether inclusive of disbursements and/or witnesses' expenses — Legal Services Act 1991, ss 2, 35, 37, 78 and 86.

Statutes — Interpretation — Legal Services Act 1991 — Definition of costs — Award against aided person — Whether "costs" include disbursements and/or witnesses' expenses — Whether "exceptional circumstances" existed for award of costs — Legal Services Act 1991, ss 2, 35, 37, 78 and 86.

Damages — Assessment — Causation — Effect of breach of fiduciary duty — Whether argument available that client might have proceeded with contract in any event — Effect of failure to obtain fully-informed consent from client.