Surgeon and son take lawyer to Appeal Court

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A Timaru surgeon and his son are set for Round Two in their legal battle with a Queenstown lawyer. 

Surgeon Zbigniew Poplawski and son Stefan, a Queenstown helicopter pilot, are appealing the High Court decision rejecting their Fair Trading Act claim against local legal beagle Tom Pryde and his firm Cruickshank Pryde. 

The elder Poplawski – or ‘Pop’ as the High Court judge called him – tells Mountain Scene “the appeal is because an email [from Pryde] is misleading and the judge seemed to agree with that in the first part of the judgment”. 

In the High Court, Justice Christian Whata found “the impression left by the email was misleading” but ruled Pryde didn’t break the law. 

The bare bones of the case begin with Brendan Thow of Alpine Helicopters trying to buy assets from rival South West Helicopters – Pop agrees to transfer $350,000 to South West to clinch Thow’s deal. 

Stefan – then Alpine’s chief pilot – would temporarily hold a half-share of Thow’s new company buying the South West assets until Stefan could ultimately take ownership of a helicopter. 

Acting for South West, Pryde sent his contentiously reassuring email to the Poplawskis’ lawyer and Pop’s $350,000 was paid over to South West. 

Everything then turned to custard: Thow defaulted on remaining payments, South West sold its assets to another firm, Stefan’s half-share in Thow’s new company became worthless, Thow went broke – and Pop lost his $350,000. 

Pop, a 74-year-old orthopaedic surgeon still practising part-time, remains adamant: 

“My decision to advance the money was entirely based on the content of [Pryde’s] email [which] seemed to provide all the reassurance and comfort I needed.” 

In the High Court, the Poplawskis’ lawyer alleged they were “lulled by various half-truths in [Pryde’s] email into a false sense of security” over paying the $350,000. 

Pryde didn’t disclose “the very shaky state the [Thow-South West] deal was in” and how Pop’s $350,000 was critical to keeping it alive, it was claimed. 

The judge found: “… while [Pryde’s] email left the erroneous impression, it fell well short of providing a positive assurance that the transaction would settle and the assets transfer to the new company. 

“I also observe for completeness that nothing in the evidence suggests to me that Mr Pryde knowingly sought to mislead the Poplawskis.” 

Yes, Pryde’s email was misleading, Justice Whata found, by unintentionally casting the transaction “in an unreasonably favourable light” when “in truth it was very complicated and fraught with risk to the Poplawskis”. 

Yet the judge also doubted the email had misled them into paying the $350,000. 

Pryde’s email had gone to the Poplawskis’ solicitor, who’d already warned them Thow was “borrowed to the hilt” and that they should obtain better security. 

“[The Poplawskis] should have pursued the transaction with more care,” the judge ruled, noting Stefan conceded he knew they paid the $350,000 “on an essentially unsecured basis”. 

Nevertheless, by portraying himself as South West’s lawyer, the judge found Pryde “lent his imprimatur” to the accuracy of information conveyed about the Thow-South West deal. 

Because he was acting for South West, Pryde “should have refused to make the representations contained in the email on Mr Thow’s behalf”, Justice Whata ruled. 

Pop hopes the appeal will be in a few months. Pryde didn’t return Mountain Scene’s call.