Burgess v Malley & Co - [2016] NZCA 585

IN THE COURT OF APPEAL OF NEW ZEALAND

CA251/2016
[2016] NZCA 585

BETWEEN	GARY OWEN BURGESS Appellant
AND	MALLEY & CO Respondent

Hearing:	28 November 2016
Court:	Harrison, French and Cooper JJ
Counsel:	Appellant in person M E Parker for Respondent
Judgment:	6 December 2016 at 4.00 pm

JUDGMENT OF THE COURT

AThe application for an extension of time under r 43(2) of the Court of Appeal (Civil) Rules 2005 is granted. The appellant must file the case on appeal and apply for a hearing date on or before Wednesday 15 March 2017.
BThe application for an extension of time to pay security for costs is granted. In the event the Supreme Court declines to grant the appellant leave to appeal then he must pay security for costs within five working days of the Supreme Court issuing its leave decision. No further extension will be given. In the event the Supreme Court grants leave to appeal then the time for payment of security for costs (if any) is extended until final disposition by the Supreme Court.
CThe application to remove Parker Cowan Lawyers from continuing to represent the respondent is declined.
DThere will be no orders as to costs.

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REASONS OF THE COURT

(Given by French J)

Introduction

On 2 June 2016 Mr Burgess filed an appeal against a decision of Gendall J in the High Court at Christchurch.[1] In the decision Gendall J entered judgment against Mr Burgess for the sum of $54,594.81 together with interest and costs, representing legal fees found to be owing by Mr Burgess to his former lawyers, the respondent Malley & Co.
[1]Malley & Co v Burgess [2016] NZHC 907.
Mr Burgess now makes three applications:
(a)under r 43(2) of the Court of Appeal (Civil) Rules 2005 for an extension of time to file the case on appeal and apply for a hearing date;
(b)under r 5(2) for an extension of time to pay security for costs; and
(c)to remove the respondent’s lawyers, Parker Cowan Lawyers, from acting in this proceeding.

Applications for extension of time

Rule 43 requires an appellant to apply for the allocation of a hearing date and to file the case on appeal within three months after the appeal is brought. Failure to comply with these two requirements results in the appeal being deemed to be abandoned. The three months in this case expired on 5 September 2016 without Mr Burgess having actioned either obligation. In order to keep the appeal alive, it is now necessary for him to seek an extension of time under r 43(2).
The reason given by Mr Burgess for his default is that payment of security for costs has not yet been resolved. On 8 June 2016 the Registrar initially set security for costs at $6,600 and then later on the application of Malley & Co increased it to $10,000. In a review decision, delivered on 6 October 2016, Miller J directed Mr Burgess to pay $6,600 as security…

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 [2016] NZCA 585
Case: [2016] NZCA 585
Decision Date: 6 December 2016 at 4.00 pm

CaseChat Overview and Summary

Gary Owen Burgess, the appellant, has appealed against a decision of the High Court at Christchurch made by Gendall J, who found in favour of Malley & Co, the respondent, in a matter concerning legal fees. Burgess seeks an extension of time to file the case on appeal, an extension of time to pay security for costs, and the removal of the respondent's lawyers, Parker Cowan, from the proceedings. The legal issues for the Court of Appeal to decide are whether the appellant's default in filing the case on appeal and applying for a hearing date can be excused by his pending appeal of the security for costs decision, and whether Parker Cowan should be removed from the proceedings on the basis of alleged breaches of ethical duties and the bona fides of the respondent's claim. The Court of Appeal found that the appellant's default could be excused as his appeal of the security for costs decision was still pending, and that Parker Cowan should not be removed as the appellant's allegations were not properly founded and any evidence they could have provided would likely be covered by solicitor-client privilege. The Court granted the appellant's applications for extensions of time in relation to the filing of a case on appeal and payment of security for costs, and declined the application for the removal of Parker Cowan. No orders were made as to costs in relation to the unsuccessful application to remove Parker Cowan.

Orders