Burgess - [2021] NZCA 300

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA195/2020
[2021] NZCA 300

IN THE MATTER OF

AN APPEAL AGAINST A DECISION OF THE HIGH COURT, ON THE APPLICATION OF GARY OWEN BURGESS, PURSUANT TO S 119 OF THE INSOLVENCY ACT 2006, DECLINING TO VEST CERTAIN DISCLAIMED PROPERTY IN MR BURGESS

Hearing:	24 June 2021
Court:	French, Thomas and Muir JJ
Counsel:	Appellant in person M J Wallace as Contradictor
Judgment:	6 July 2021 at 9 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Mr Burgess was bankrupted in October 2017.[1] On 6 August 2018, without reference to the Official Assignee, he filed civil proceedings seeking compensation and other remedies against his ex-wife and her legal representatives. The claim was struck out. [2] The Official Assignee disclaimed any interest in the alleged litigation rights. Following an unsuccessful challenge to the Official Assignee’s decision,[3] Mr Burgess then filed an application in the High Court under s 119(2) of the Insolvency Act 2006 for an order vesting the disclaimed litigation rights in him. The application was dismissed by Associate Judge Lester.[4] Mr Burgess then filed the present appeal.
[1]Malley & Co v Burgess [2017] NZHC 2581.
[2]Burgess v Beaven [2018] NZHC 2793.
[3]Burgess v Official Assignee [2019] NZHC 1324.
[4]Burgess v Beaven [2020] NZHC 497 [Decision under appeal].
The statement of claim that was filed by Mr Burgess relates to protracted relationship property litigation between himself and his ex-wife. The litigation has been the subject of decisions in the Family Court,[5] the High Court,[6] this Court[7] and the Supreme Court.[8] It has also been the genesis of an unsuccessful damages claim brought by Mr Burgess against his own lawyers who bankrupted him for non-payment of their legal fees.[9]
[5]Burgess v Beaven FC Christchurch FAM-2005-009-3126, 16 May 2007; and Burgess v Beaven FC Christchurch FAM-2005-009-3126, 30 June 2008
[6]Burgess v Beaven HC Christchurch CIV-2007-409-1361, 27 November 2007; and Burgess v Beaven HC Christchurch CIV-2007-409-1361, 15 December 2008.
[7]Burgess v Beaven [2010] NZCA 625, [2011] NZFLR 609; and Burgess v Beaven [2009] NZCA 229.
[8]Burgess v Beaven [2012] NZSC 71, [2013] 1 NZLR 129, [2012] NZFLR 671.
[9]Malley & Co v Burgess [2016] NZHC 907; Burgess v Malley & Co [2017] NZCA 401; and Burgess v Malley & Co [2017] NZSC 177.
Mr Burgess’ take on the history of the litigation is that although his ex-wife and her legal representatives knew full well the arguments they were raising were meritless, they persisted. As a result, although ultimately successful in the Supreme Court, he has been left with nothing having endured years of needless stress and costs. He wants compensation for what he sees as gross injustice.
The statement of claim pleads nine causes of action:
(a)Tort of fraud — against his ex-wife and her lawyers.
(b)Breach of fiduciary duties —…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burgess

Details

AGLC: Burgess [2021] NZCA 300
Case: [2021] NZCA 300
Decision Date: 6 July 2021 at 9 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal brought by Gary Owen Burgess against a decision of the High Court declining to vest certain disclaimed property in him. The appeal was heard by French, Thomas and Muir JJ on 24 June 2021, and judgment was given on 6 July 2021. Mr Burgess was in person, and M J Wallace appeared as contradictor.

The appeal concerned litigation rights that the Official Assignee had disclaimed in relation to protracted relationship property litigation between Mr Burgess and his ex-wife. The litigation had been the subject of numerous decisions in various courts, and Mr Burgess had been left with nothing after years of stress and costs. He filed an application in the High Court under s 119(2) of the Insolvency Act 2006 for an order vesting the disclaimed litigation rights in him, but the application was dismissed. The appeal was brought pursuant to s 119 of the Insolvency Act.

The court considered whether it was fair to vest the disclaimed litigation rights in Mr Burgess. The court held that the proposed claim was wholly untenable and had no prospect of success. The court was entitled to take into account the merits of the proposed claim, the effect of the delay, and the interests of the proposed defendants. The court concluded that it would be quite unfair for Mr Burgess’ application to be granted. The appeal was dismissed.

Orders