Brett Morley

Brett is a Consultant in the Disputes Team at Hesketh Henry.

He began work with Wilson Henry (one of Hesketh Henry’s constituent firms) in 1984 and became a partner in 1989.  He previously worked as a solicitor with Lusk Willis & Co (later Willis Toomey Robinson – Crown Solicitors) in Napier, having begun his legal career with the Justice Department engaged on the Royal Commission of Inquiry into the Conviction of Arthur Allan Thomas.

Since being admitted to the Bar in 1981, Brett has practised exclusively as a litigator, mainly in the area of civil disputes.  However in over 30 years of practise Brett has acted and provided advice in virtually all areas of law where clients require representation in contentious matters.

His experience as lead counsel in complex and often high value litigation in the property, construction, commercial, corporate and transactional sectors complements Brett’s special interest and capabilities in insurance.

Brett’s insurance practice includes cover advice and representation across a range of matters, and particularly professional indemnity claims involving solicitors, accountants, auditors, engineers, quantity surveyors and project managers.  He acts for onshore and offshore insurers, brokers and insured – and uninsured – parties, both as claimants and defendants.

He also has a special interest in trust issues, where he acts as counsel (for settlors, trustees, protectors and beneficiaries) in advisory and contentious matters for high value private and charitable trusts.

Brett is an effective advocate in the Courts at all levels, in mediations, arbitrations, and other forms of dispute resolution.  Brett enjoys being able to apply his skills and legal experience to benefit clients.  His objective is to achieve outcomes that are commercially commensurate with the cost and significance to his clients of the matter in issue.  Brett believes strongly that while good and technically accurate legal advice is important, an effective lawyer must couple that with tactical and strategic insight, an understanding of client concerns and objectives and, above all, sound judgment to deliver results.

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Examples of work completed by Brett include:

Insurance Related Work

  • Advising Lloyd’s syndicates in respect of several claims under mortgage indemnity and impairment policies brought by several New Zealand finance companies or their receivers/liquidators.
  • Numerous cases acting for and against solicitors in relation to all areas of solicitors’ work, including property, commercial and company transactions, litigation advice and conduct, breach of professional, ethical, statutory and other duties and advice and representation in relation to complaints/disciplinary inquiries.
  • Acting for accountants and auditors in relation to negligence claims, including policy cover issues.
  • Successfully defending New Zealand resident director and accountants in claims arising from failure of a Lloyds broking firm (and related action against insurers).
  • Successfully arguing novel joinder of a corporate trustee (appointed under Securities Act) to proceedings arising from post – GFC failure of finance company.
  • Defending an insured in one of New Zealand’s largest leaky building claims (a long running complex multi-party action eventually settled after a three day Judicial Settlement Conference followed by a two day Mediation with no payment/contribution to the settlement by the insured).
  • Advising insured parties in respect of the Royal Commissions of Inquiry into the Canterbury Earthquake and into the Pike River Coalmine explosion.
  • Prosecuting and defending negligence claims (and related policy cover issues) across a range of professional disciplines, including engineers, architects, quantity surveyors and project managers.

Trust Related Work

  • Acting for and advising private and charitable trusts in both contentious and non-contentious matters, including the successful parties in the High Court and leading Court of Appeal judgment on the variation of charitable trusts – McElroy Trust v Objectors.
  • Family trusts settled by high net individual. Brett acted for two trustees (also beneficiaries) with diverging and increasingly competing views, then complicated by the emergence of a previously unknown but self-asserted son of the (deceased) settlor, who claimed to be a beneficiary.  Wide ranging disputes and litigation in two courts.  Eventually resolved via mediation with downstream trust restructuring issues.
  • Two trusts established in New Zealand by offshore settlor. Issues arising as to whether New Zealand based trustee and related offshore trustee agents have properly executed their duties.  Brett acted for settlor and beneficiary to provide expert evidence (in offshore litigation) and (in New Zealand) advising on the issue of proceedings, including to access trustee documents and information.
  • Trust established in New Zealand with beneficiaries in offshore jurisdiction and assets primarily in Europe. Dispute between protector (for whom Brett acted) and New Zealand based trustee, and the beneficiaries.
  • Long standing and high profile charitable trust facing operational challenges resulting in application to the High Court for directions as to trust objects and powers, including disposition of certain real property.
  • Two trusts, one holding property assets and the other holding significant business assets. Husband and wife settlors, beneficiaries and trustees fell into dispute.  Brett acted for independent trustee on unwinding these structures in the context of complex trading and debt arrangements, and eventual restructuring of control and ownership.  Litigation issued but ultimately resolved by negotiation.
  • Significant religious charitable trust, established by private Act of Parliament. Tensions between the Trust Board and certain stakeholders.  Ongoing advisory work for Board and (most recently) representing individual Board members in relation to allegations of breach of duties, and for the Board before a Commission of Inquiry appointed to investigate, report on and make recommendations on governance disputes.
  • Trusts established by high profile public figure with significant business interests, including in entities established by the settlor that become part of one of New Zealand’s largest public listed companies. Acting for trustees to provide advice on various issues, and conducting negotiations and settlement with previously unknown claimant beneficiary.
  • Acting for trustees of charitable trust in visual arts sector. Advising on and issuing proceedings to apply its capital assets contrary to the terms of the trust deed, and to enable it to be wound up, and obtaining orders to give effect to that.
  • Acting for trustees of employee benefit scheme of one of New Zealand’s oldest public listed companies to restructure scheme terms by application to the High Court.

Other Significant Work

  • Acting in relation to Commerce Commission investigations and prosecutions, including for NZX listed company into foreign exchange fees on credit cards, and an international carrier in relation to air cargo cartel investigations.
  • Successfully resisting novel claims for Copyright Act infringements in relation to the commercial use of artistic works in a public place and moral rights claims, including the only New Zealand High Court judgment in this area – Radford v Hallenstein Bros Ltd.
  • Acting for one of New Zealand’s largest construction companies prosecuting and defending several multi-million dollar claims involving complex design, engineering and construction issues (including co-ordinating and directing the multi-discipline and cross-border teams of advisors and experts).
  • Acting in various private arbitrations, including two related High Court judgments successfully arguing scope of Arbitrators’ powers.
  • Acting in High Court and Court of Appeal proceedings seeking relief under the Unit Titles Act arising from extensive water-related damage to multi-building, multi-story complex in Auckland CBD with mixed commercial, retail and residential use.
  • Acting in misrepresentation and Fair Trading Act claims where liability was established but successfully defending the claims at trial on measure of loss arguments.
  • Successfully defending insured contractors in a multi-million dollar stock damage claim arising from failure of a cool store plant.

Insights & Opinion / Brett Morley

Crystal Imports Ltd v Certain Underwriters at Lloyds of London [2013] NZHC 3513
Like Ridgecrest, Marriott and Wild South,[1] this claim concerns damage sustained by an insured property in successive earthquake events.  The question arising in all of these claims is whether the i...
28.04.2014 Posted in Insurance
Marriott v Vero Insurance New Zealand Ltd [2013] NZHC 3120
This claim, Wild South and Crystal Imports[1] all involve the application of an automatic reinstatement clause in a policy, in circumstances where the insured property sustains damage in successive ea...
28.04.2014 Posted in Insurance
Insurance Case Law Update April 2014
Download full article In this update, we summarise insurance decisions issued at the close of 2013 and in first quarter of 2014.  Litigation arising from the Canterbury earthquakes continues to domin...
28.04.2014 Posted in Insurance