Burgess v Malley & Co
[2018] NZCA 269
•24 July 2018
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA660/2017 [2018] NZCA 269 |
| BETWEEN | GARY OWEN BURGESS |
| AND | MALLEY & CO |
| CA43/2018 | ||
| BETWEEN | GARY OWEN BURGESS | |
| AND | MALLEY & CO | |
| Hearing: | 11 June 2018 |
Court: | French, Cooper and Brown JJ |
Counsel: | Appellant in person |
Judgment: | 24 July 2018 at 2 pm |
JUDGMENT OF THE COURT
AThe respondent’s application to strike out the notice of appeal filed on 28 January 2018 and given the file number CA43/2018 is granted.
BThe appellant’s application for an extension of time under r 43 of the Court of Appeal (Civil) Rules 2005 in relation to CA660/2017 is declined.
CThe appellant must pay the respondent Malley & Co one set of costs for a standard application and usual disbursements.
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REASONS OF THE COURT
(Given by French J)
Introduction
Mr Burgess filed an appeal in this Court against a decision of Associate Judge Osborne adjudicating him bankrupt on the application of the respondent and ordering him to pay indemnity costs.[1] Associate Judge Osborne delivered his decision on 24 October 2017. Mr Burgess filed his notice of appeal on 20 November 2017. The appeal was allocated the file number CA660/2017.
[1]Malley & Co v Burgess [2017] NZHC 2581.
After Mr Burgess had filed his appeal, the Associate Judge recalled his decision in order to amend the costs order. The Associate Judge amended the costs order by awarding scale costs instead of indemnity costs. This was done at the respondent’s request because it considered the preparation of a schedule detailing indemnity costs was too onerous and time consuming. Although the amendment was to Mr Burgess’s benefit, Mr Burgess opposed the recall.
The recall and reissuing of the decision was done by way of a minute dated 8 December 2017. The Associate Judge did not direct a new date for the reissued judgment and accordingly because of the limited nature of the amendment the judgment date remained 24 October 2017.
Mr Burgess however did not appreciate this. He wrongly assumed the recall of the judgment meant it no longer existed for the purposes of an appeal and that accordingly he needed to file a new appeal against the reissued judgment. He therefore filed a new notice of appeal on 26 January 2018 and took no further steps in relation to his earlier appeal. In particular, he did not pay security for costs. Nor did he file a case on appeal or seek a hearing date.[2]
[2]Court of Appeal (Civil) Rules 2005, r 43(1).
The second notice of appeal contained an additional ground of appeal to those contained in the notice filed in October 2017. The additional ground related to the decision to recall the judgment.
The second notice of appeal was accepted for filing and allocated a new file number CA43/2018. Mr Burgess was directed to pay security for costs but on 26 February 2018 he applied for payment to be dispensed with. To add to the confusion, the application for dispensation was referred to us because of a mistaken belief on the part of the registry that it was out of time.[3]
[3]The Registrar has no discretion to extend time for seeking dispensation of security for costs under r 35, but the Court does under r 5(2): White v Lynch [2015] NZCA 376 at [16] and [20].
On 13 March 2018 the respondent applied for both CA660/2017 and CA43/2018 to be struck out. Mr Burgess opposed those applications and made his own application for any extensions of time that might be required.
Analysis
In our view, correctly analysed the legal status of the two appeals is as follows. The second notice of appeal (CA43/2018) was filed out of time. Further, and more fundamentally, at the time it was filed there was already an extant appeal relating to the same decision. The second appeal should not have been accepted for filing and it is accordingly struck out.
As for the first appeal (CA660/2017), that is deemed to have been abandoned under r 43 of the Court of Appeal (Civil) Rules 2005 because of Mr Burgess’ failure to take the steps identified at [4] above, rendering it necessary for Mr Burgess to obtain an extension of time under r 43(2). We therefore proceed on that basis.
It is now some considerable period of time since the appeal was first filed and no steps have been taken to prosecute it to the prejudice of the respondent. However, that was because Mr Burgess made an understandable mistake.
Accordingly, if delay were the only relevant factor, we would in the circumstances have granted the necessary extension of time. However, in considering applications for an extension of time, the Court may in limited circumstances also have regard to the merits of the appeal.[4]
[4]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [39]; and Rabson v Attorney-General [2017] NZCA 350 at [9], n 5.
The Notice of Appeal can fairly be described as perfunctory. It states the grounds of appeal are as follows:
1. That his Honour erred in adjudicating the appellant bankrupt.
2.That his honour erred in assessing the merits of my Supreme Court application for leave to appeal.
3.That his honour erred in not setting aside or staying the bankruptcy until the leave to appeal application was determined.
4.That the judge failed to consider the underlying justice of the situation leading to the adjudication.
To these can be added a fifth ground from the 2018 Notice of Appeal, namely that Associate Judge Osborne “erred in granting recall [and] acted contrary to principle”.
The first ground is simply a bare assertion and does not take matters any further. Grounds two and three relate to Mr Burgess’ attempt to appeal a previous decision of this Court which confirmed his liability to pay the judgment debt.[5] Those grounds have been overtaken by events and cannot succeed. The Supreme Court has since declined his application for leave to appeal.[6]
[5]Burgess v Malley & Co [2017] NZCA 401 [CA decision]; upholding Malley & Co v Burgess [2016] NZHC 907 [decision of Gendall J].
[6]Burgess v Malley & Co [2017] NZSC 177 [SC decision].
Mr Burgess assured us he accepts he cannot now re-litigate the judgment debt and that his liability to the respondent does not form any part of his appeal.[7] He told us that he is basing his appeal on the futility of making him bankrupt and the reasons why he became bankrupt. He argues that Associate Judge Osborne misdirected himself as to whether there was any benefit to making him bankrupt and failed to consider the circumstances leading to the adjudication. In support of that submission, Mr Burgess relied on the decision of Brambles New Zealand Ltd v Braid in which a different Associate Judge declined to adjudicate a judgment debtor bankrupt.[8] Mr Burgess submitted that the case was indistinguishable from his own.
[7]His written submissions suggest otherwise.
[8]Brambles New Zealand Ltd v Braid [2018] NZHC 1187.
By “the circumstances leading to his adjudication”, Mr Burgess acknowledged he meant what he perceives to be the unjust history of the relationship property litigation between him and his former wife. Mr Burgess has attempted on several previous occasions to blame his ex-wife as well as the respondent for his financial losses. He plainly intends to re-run those arguments. Those claims have however been rejected by several court decisions and findings have been made that Mr Burgess was essentially the author of his own misfortune.[9] At the hearing before us, Mr Burgess suggested that the Courts were somehow also to blame because of delays in his securing his correct entitlement to relationship property. But that is not sustainable having regard to the documented history of the litigation,[10] and the findings made in the High Court and upheld in this Court as well as findings in the Supreme Court.[11]
[9]See decision of Gendall J, above n 5, at [43]; and CA decision, above n 5, at [139].
[10]CA decision, above n 5, at [4]–[29].
[11]See SC decision, above n 6, at [3]–[4].
It follows that this ground of appeal also cannot possibly succeed. Further we are satisfied it would be an abuse of process for Mr Burgess to attempt to run these arguments yet again. It is a radically different situation to the facts in Brambles, where the indebtedness was a direct result of the Christchurch earthquakes and where one of the debtors — a woman in her late sixties — had a life threatening illness.
As regards the alleged failure to consider the benefit of making him bankrupt, the Associate Judge stated in his decision:[12]
[34] At the hearing before me, Mr Burgess emphasised, as he had previously, what he submitted would be the pointlessness of adjudication. He noted that the position adopted by Malley & Co on security for costs contained an assumption as to a lack of assets. In fact, the interlocutory nature of an application for security for costs does not involve a definitive conclusion as to the party’s financial position. The jurisdiction arises whenever there is reason to believe that a party will be unable to pay costs.
[35] In the adjudication context, an argument that adjudication would be pointless needs to be clearly established on the facts if it is to carry any weight. The evidence now before the court is no clearer than that when I previously considered Mr Burgess’s “pointlessness” argument. As then, I am not satisfied that Mr Burgess has established both that he is impecunious and that the Assignee would not under the Insolvency Act 2006 recover assets of some value or contributions by Mr Burgess to his estate.
[12]HC decision, above n 1, (footnote omitted).
Mr Burgess did not identify any evidence which was overlooked by the Associate Judge. In any event, it is well established that the likelihood there will be few assets if any available for distribution to unsecured creditors is not in itself a reason for declining to adjudicate a debtor bankrupt.[13]
[13]Baker v Westpac Banking Corp CA212/92, 13 July 1993 at 4.
Finally, turning to the fifth ground of appeal, we consider that in circumstances where the recall was to Mr Burgess’ advantage, and no error of principle was identified, this too must fail.
We conclude that the appeal being in the clearly hopeless category, it would not be in the interests of justice to grant the application for an extension of time. It is therefore declined. The appeal being abandoned by operation of the Rules, it is accordingly not necessary to deal with the respondent’s strike out application.
Outcome
The respondent’s application to strike out the notice of appeal filed on 28 January 2018 and given the file number CA43/2018 is granted.
The appellant’s application for an extension of time under r 43 of the Court of Appeal (Civil) Rules 2005 in relation to CA660/2017 is declined.
As regards costs, there is no reason why these should not follow the event. The appellant must pay the respondent Malley & Co one set of costs for a standard application and usual disbursements.
Solicitors:
Parker Cowan, Queenstown for Respondent in CA660/2017 and First Respondent in CA43/2018
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