Burgess v Beaven

[2020] NZHC 497

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-549

[2020] NZHC 497

UNDER THE

Senior Courts Act 2016

IN THE MATTER OF

a proceeding for damages, fraud and

malicious or reckless use of proceedings

BETWEEN

GARY OWEN BURGESS

First Plaintiff

AND

GARY OWEN BURGESS

Second Plaintiff

AND

SUSAN NATALIE BEAVEN

First Defendant

AND

ANGELA MARY CORY

Second Defendant

AND

HOWARD JOHN DAWSON

Third Defendant

AND

DAWSON INNES

Fourth Defendant

Hearing:	19 February 2020
Appearances:	G O Burgess (self-represented First and Second Plaintiff) M J Wallace as Contradictor
Judgment:	12 March 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 12 March 2020 at 4.30pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 12 March 2020

BURGESS v BEAVEN [2020] NZHC 497 [12 March 2020]

[1]        Mr  Burgess   was   bankrupted  by  this   Court  on  24  October  2017.1    On 6 August 2018, Mr Burgess filed in this Court a statement of claim seeking orders against his ex-wife, Ms Beaven, and her solicitor and counsel who acted for her in relationship property proceedings that ran between 2005 and 2012.

[2]        Associate Judge Osborne, as he then was, struck out that claim, in part because it had been issued without reference to the Official Assignee when any litigation right that might be represented by the proceeding had  vested in the Official Assignee by  s 101(1) of the Insolvency Act 2006 (“the Act”).2

[3]        On 7 October 2018, the Official Assignee disclaimed any interest in the alleged litigation rights. Mr Burgess appealed that decision, but that appeal was dismissed because he lacked standing.3

[4]        Mr Burgess then brought this application to have the disclaimed litigation rights vested in him pursuant to s 119 of the Act with s 119(2) providing that the bankrupt is entitled to apply to the Court for an order.

[5]        To explain the nature of the claimed litigation rights, it is necessary to set out a brief and general timeline of events. What follows is not intended to be comprehensive. Omitted are some applications for recall and/or leave to appeal made by Mr Burgess, separate proceedings involving Mr Burgess and his bank, and another set of proceedings between Mr Burgess and solicitors who acted for him for part of the relationship property proceedings;

8 May 2002:	Mr Burgess and Ms Beaven marry.
23 August 2002:	Mr Burgess and Ms Beaven purchase Medbury Rd, Hawarden (“Medbury”).
20 May 2003:	Mr Burgess and Ms Beaven separate.
2005:	Mr Burgess commences relationship property proceedings in the Family Court with legal

1      Malley & Co v Burgess [2017] NZHC 2581.

2      Burgess v The Official Assignee [2019] NZHC 1324.

3      Burgess v Beaven [2018] NZHC 2793.

assistance,     claiming     an     unequal     share     in

relationship property.

2006:

Mr Burgess begins acting for himself and amends the proceedings to see equal sharing.

16 May 2007:

First District Court judgment of Judge Strettell following a three-day hearing – unequal sharing…