Burgess v Malley and Co - [2014] NZHC 746

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV2013-409-001575 [2014] NZHC 746

BETWEEN
GARY OWEN BURGESS

Applicant

AND

MALLEY AND CO Respondent

CIV 2013-409-001385

BETWEEN GARY OWEN BURGESS Plaintiff

Hearing:
26 March 2014

Additional submissions: 31 March 2014

Appearances:

G O Burgess (In Person)
M R Cowan and J Eckford for Respondent and Third Defendant

Judgment:

14 April 2014

JUDGMENT OF WHATA J

[1] Mr Burgess has a longstanding dispute with Malley and Co. He says that they mishandled his legal affairs. Two complaints (subject to these proceedings) were made to the Law Society in January 2010 and January 2012. The Standards Committee did not uphold the complaints. Mr Burgess’ reviews to the Legal Complaints Review Office (LCRO) also failed. While this complaint process unfolded, Malley and Co commenced summary judgment proceedings in the District Court claiming outstanding fees. Mr Burgess counterclaimed and sought default judgment when (he says) a defence was not filed to his counterclaim. The initial summary judgment proceedings lapsed and the Court also refused to enter judgment
on the counterclaim in 2011. A second application was made. Ultimately, the re-filed

BURGESS v MALLEY AND CO [2014] NZHC 746 [14 April 2014]

application for summary judgment and the existing application for default judgment were declined by the District Court in 2013.

[2] Mr Burgess now comes to this Court, first seeking to review two decisions of the Legal Complaints Review Office and various steps taken by the District Court, and second, appealing the decision of the District Court not to enter judgment on his counterclaim. Malley and Co have also cross appealed on the refusal to grant summary judgment.

[3] At a judicial telephone conference last year, it was resolved that the proceedings could be consolidated and that:

Security of $1,990 shall be paid by Mr Burgess by 31 January.

[4] Subsequent to this, Mr Burgess sought a recall of the order as to security for costs and then an extension of time to lodge the security. Malley and Co now seeks security for costs in relation to the judicial review proceedings in the sum of $65,000 or such sum as I think appropriate.

[5] I propose to deal with each application in turn.

Recall/Extension of time to pay security

[6] Mr Burgess proffered the sum payable on my previous order for security at the hearing of these applications. Subject to costs on the application for extension of time to pay the security, Malley and Co did not seek to contest the grant of an extension. I will resolve the costs on the application below.

[7] For completeness I note that Mr Burgess initially sought to resist the order for security on the basis that Malley and Co were cross appellants. But it cannot be seriously suggested that there is any risk to Mr Burgess that he will not recover costs in the event he is successful and awarded costs. There is then no proper basis to require security from Malley and Co.

The claim by…

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.

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Details

Case: [2014] NZHC 746
Decision Date: 14 April 2014

CaseChat Overview and Summary

Gary Owen Burgess, a litigant, brought an application before the High Court of New Zealand, Christchurch Registry, seeking to review two decisions of the Legal Complaints Review Office (LCRO) and various steps taken by the District Court. Burgess also sought to appeal the decision of the District Court not to enter judgment on his counterclaim. Malley and Co cross-appealed on the refusal to grant summary judgment. The central issues for determination were the appropriateness of requiring security for costs in light of Burgess's impecuniosity and the strength of his cases on appeal and review.

The Court noted that Burgess's impecuniosity was largely due to his inability to pay mortgage payments, which he attributed to Malley and Co's actions in failing to obtain the vesting of his relationship property. However, the Court found that the extent of Malley and Co's responsibility for Burgess's financial circumstances was unclear and not capable of resolution at this stage. The Court also found that the judicial review proceedings were strong, with the central issue being whether Mr Tait was required to give legal advice about the impugned transaction and failed to do so. This issue was considered a legitimate matter to be examined on judicial review.

The Court concluded that an additional award of security for costs was warranted. While the sum proposed by Malley and Co ($65,000) was considered excessive, the Court decided to impose an additional order for security but finalise the issue of quantum pending the outcome of the issues conference for this matter. The Court awarded costs to the respondents on the application for extension and the application for further security on a 2B basis, discounted by 20%. The costs order would lie in Court pending the resolution of the proceedings in this Court.

Orders