Burgess v Malley & Co - [2018] NZCA 269

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA660/2017
[2018] NZCA 269

BETWEEN	GARY OWEN BURGESS Appellant
AND	MALLEY & CO Respondent

CA43/2018
BETWEEN	GARY OWEN BURGESS Applicant
AND	MALLEY & CO First Respondent OFFICIAL ASSIGNEE Second Respondent

Hearing:	11 June 2018
Court:	French, Cooper and Brown JJ
Counsel:	Appellant in person M E Parker and A J Gaborieau for Respondent in CA660/2017 and First Respondent in CA43/2018 No appearance for Second Respondent in CA43/2018
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.

____________________________________________________________________

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…

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 v Malley & Co

Details

AGLC: Burgess v Malley & Co [2018] NZCA 269
Case: [2018] NZCA 269
Decision Date: 24 July 2018

CaseChat Overview and Summary

In Burgess v Malley & Co, the Court of Appeal of New Zealand considered two appeals filed by Mr Gary Burgess against Malley & Co. The first appeal, filed on 20 November 2017, pertained to an Associate Judge's decision to adjudicate Mr Burgess bankrupt. The second appeal, filed on 28 January 2018, related to the Associate Judge's decision to recall and amend his decision regarding the costs order. The respondent, Malley & Co, applied to have the second appeal struck out, and the appellant sought an extension of time to prosecute the first appeal. The Court of Appeal granted the application to strike out the second appeal, finding it was filed out of time and there was already an extant appeal relating to the same decision. The Court declined the application for an extension of time for the first appeal, finding it to be hopeless and an abuse of process for the appellant to re-litigate certain arguments. The Court ordered the appellant to pay the respondent one set of costs for a standard application and usual disbursements.

The Court of Appeal addressed several legal issues in Burgess v Malley & Co. The first issue was whether the second appeal should be struck out due to it being filed out of time and there already being an extant appeal relating to the same decision. The Court found that the second appeal should be struck out. The second issue was whether the appellant should be granted an extension of time to prosecute the first appeal. The Court declined the application for an extension of time, finding that the appeal was hopeless and an abuse of process for the appellant to re-litigate certain arguments. The third issue was whether the Court should grant the respondent costs. The Court ordered the appellant to pay the respondent one set of costs for a standard application and usual disbursements.

The Court of Appeal found that the second appeal was filed out of time and there was already an extant appeal relating to the same decision. Therefore, the second appeal should not have been accepted for filing and it was struck out. Regarding the first appeal, the Court found it was deemed to have been abandoned due to the appellant's failure to take certain steps. The Court also found that the merits of the appeal were hopeless, and it would not be in the interests of justice to grant the application for an extension of time. Consequently, the appeal was declined. As for costs, the Court found that the appellant must pay the respondent one set of costs for a standard application and usual disbursements.

Orders