Burgess v Beaven

[2015] NZHC 2659

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2014-409-000622 [2015] NZHC 2659

BETWEEN

GARY OWEN BURGESS

Applicant

AND

SUSAN NATALIE BEAVEN Respondent

Hearing:	27 October 2015 (via telephone conference)
Appearances:	Applicant in person A M Corry and H Dawson for the Respondent
Judgment:	29 October 2015

JUDGMENT OF NATION J

[1]      On 5 August 2014, Judge Somerville in the Family Court at Christchurch issued a decision striking out an application under the Property (Relationships) Act

1976 which Mr Burgess had filed with the Family Court on 9 September 2011.

[2]      Mr Burgess filed a notice of appeal on 2 September 2014.  In a memorandum for the first case management conference on 22 October 2014, he asked that security for costs be dispensed with.

[3]      The application for waiver of security for costs was eventually heard before me on 11 March 2015.

[4]      In a judgment of 21 April 2015, I declined to waive the requirement for security for  costs,  fixed  the  security  required  at  $1,990  and  fixed  the  time  for

payment of that security as 19 July 2015.

BURGESS v BEAVEN [2015] NZHC 2659 [29 October 2015]

[5]      Mr Burgess did not pay the amount required by the date stipulated.   Mr Burgess filed an appeal with the Court of Appeal against the judgment requiring him to provide security for costs.   The Registrar of the Court of Appeal required Mr Burgess to pay $5,880 as security for that appeal on or before 10 August 2015.  Mr Burgess subsequently applied for dispensation.  The Registrar of the Court of Appeal dismissed Mr Burgess’ application for dispensation.  Mr Burgess applied to the Court of Appeal to review the Registrar’s decision.

[6]      In  a  judgment  of  Harrison  J  of  14  August  2015,  the  Court  of  Appeal dismissed Mr Burgess’ application to review the Registrar’s decision.   The Court ordered that he was to pay security in the sum of $5,880 no later than 24 August

2015.   In the event that he failed to do so, the Registry was to treat the appeal as being dismissed.

[7]      The Registry of this Court has confirmed that the required security has not been paid to the Court of Appeal.

[8]      As matters stand, Mr Burgess has thus not paid to the High Court the security for costs required in respect of his appeal against the decision of Judge Somerville. His appeal against the High Court’s requirement for security for costs is deemed to have been abandoned.

[9]      There was a telephone conference with the parties on 28 September 2015. Dunningham  J’s  minute  records  that  she  was  advised  that  Mr  Burgess  was attempting to appeal the Court of Appeal’s judgment on his application for review to the Supreme Court.  He was also seeking a rehearing of Judge Somerville’s strike out decision in the Family Court.  Against that background, her Honour adjourned the appeal proceedings to another telephone conference on or after 26 October 2015.

[10]     Without making any particular orders, her Honour gave some indication as to how matters might proceed if there was a rehearing in the District Court or if the attempted appeal to the Supreme Court went no further.

[11]     On 27 October 2015, Mr Burgess filed a memorandum essentially advising the Court that the position now with regard to both an appeal and the Family Court rehearing is the same as it was a month ago.  He asked for a further adjournment in relation to the appeal.

[12]     I  have  carefully  considered  the  present  situation.    I  am  mindful  of  the comments made by Harrison J at paras [9]-[10] of his judgment of 14 August 2015:

[9]     …  Mr  Burgess  has  continued  to  pursue  Ms  Beaven  and  others associated with this litigation through a series of proceedings initiated in the Family Court and High Court, and in appeals to this Court. The amount now at  issue  is  relative  small.    I  am  satisfied  that  Mr  Burgess’ conduct  is vexatious and that he is abusing the processes of the Court simply to prolong his  dispute  with Ms  Beaven  for reasons other than those  of  a financial nature.

[10]   Mr Burgess should not be granted any indulgences to pursue this purpose and the Registrar has a proper basis for concluding that it was not right to require Ms Beaven to defend the judgment under challenge without the usual protection as to costs provided by security.

[13]     As Mr Burgess’ appeal was against a decision of Judge Somerville under the Property (Relationships) Act 1976, the High Court Rules and s 74-78 of the District Courts Act 1947 apply, with all necessary modifications, to his appeal as if it were an appeal under s 72 of that Act.1

[14]     Section 74 District Courts Act 1947 states:

74   Security for appeal

(1)     Unless granted legal aid under the Legal Services Act 2000, an appellant under section 72 may be required by the High Court Rules to give the Registrar of the High Court security for costs.

(2)     If any security required is not given within the time required by the High Court Rules, the appellant's appeal must be treated as having been abandoned.

[15]     Rule 20.13(5) High Court Rules states:

20.13   Security for appeal

…

1      Property (Relationships) Act 1976, s 39.

(5)   Except in the case of an appeal under the District Courts Act

1947 (where non-compliance with the security order results in a deemed abandonment of the appeal under section 74), if the

security is not paid within the time specified under subclause

(4),  the  respondent  may  apply  for  an  order  dismissing  the appeal.

[16]     The effect of these provisions is that Mr Burgess’ appeal was deemed to be

abandoned when he failed to pay $1,990 as security for costs by 19 July 2015.

[17]     There is thus no appeal currently before the Court. The appeal proceedings in the High Court are at an end.

[18]     In the telephone conference which took place with Mr Burgess and Ms Corry on 27 October 2015, I advised both parties that I had reached this view with regard to the appeal.   I advised Mr Burgess in general terms of the statutory provisions involved.

[19]     Ms Corry indicated that she will be making an application for costs on behalf of the respondent.  I direct that she is to file her memorandum within 10 workings days, i.e. 12 November 2015.  Mr Burgess is to file any memorandum in response by

27 November 2015.  Each memorandum is to be no longer than three pages.

Solicitors:

Mr Gary Burgess

Dawson Innes, Christchurch.