Burgess v Malley & Co - [2016] NZCA 484

IN THE COURT OF APPEAL OF NEW ZEALAND

CA251/2016
[2016] NZCA 484

BETWEEN	GARY OWEN BURGESS Appellant
AND	MALLEY & CO Respondent

Counsel:	Appellant in person M E Parker for Respondent
Judgment:	6 October 2016 at 3.00 pm

JUDGMENT OF MILLER J
(Review of Registrar’s Decision)

AThe application to review the Deputy-Registrar’s decision declining to dispense with security for costs is declined.
BThe application to review the Deputy-Registrar’s decision increasing security for costs is granted.
CThe appellant is to pay the sum of $6,600 by way of security for costs by 31 October 2016.

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REASONS

On 5 September 2016 Mr Burgess sought review of a decision by Deputy-Registrar McGrath under r 7(2) of the Court of Appeal (Civil) Rules 2005 (the Rules). The decision of the Deputy-Registrar, dated 22 August, declined Mr Burgess’ application to dispense with security for costs in his appeal and granted Malley & Co’s (Malley) application to have it increased. It directed that security be increased to $10,000 and was to be paid by 19 September.
Mr Burgess’ substantive appeal is against a decision of Gendall J in the High Court in which he gave judgment in favour of Malley in respect of its fees claim against Mr Burgess and dismissed Mr Burgess’ counterclaim for damages resulting from breaches of duty, negligence and fraud.[1] Gendall J ordered Mr Burgess to pay Malley outstanding costs and disbursements of $54,594.81, including interest at 11 per cent.[2] Costs followed the event.
[1]Malley & Co v Burgess [2016] NZHC 907.
[2]At [100].
On 5 September the appeal to this Court was abandoned pursuant to r 43 of the Rules. Mr Burgess has since filed an application for an extension of time under r 43 of the Rules, which the respondent has opposed. In a minute dated 28 September, French J directed that the application for an extension of time not be set down for hearing until after my decision on this application for review had been issued.

The decision not to waive security

Security for costs will not be dispensed with except where it is right to require the respondent to respond to an appeal brought by an impecunious appellant without the usual protection for their costs provided by security.[3] Where the appeal is one that would not be pursued by a sensible, solvent litigant, there will be no basis for dispensing with security for costs.[4]

Impecuniosity and public interest

[3]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [21] and [31].

[4]At [35].

I agree that the information provided by Mr Burgess indicates he is likely to be impecunious and unable to afford security.
I also agree with the conclusion that the proposed appeal raises no issues of public interest. The proceedings between Mr Burgess and Malley are fact‑specific and unique to the relationship between the parties.

Potential costs and benefits

I agree with Deputy-Registrar McGrath’s assessment of the likely costs award against Mr Burgess if the appeal was to be dismissed.…

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 484
Case: [2016] NZCA 484
Decision Date: 6 October 2016 at 3.00 pm

CaseChat Overview and Summary

Gary Owen Burgess has appealed against a decision of the High Court of New Zealand, where Gendall J awarded Malley & Co costs and dismissed Mr Burgess’ counterclaim. Mr Burgess sought to appeal without security for costs and to set aside an order that security be increased to $10,000. The Court of Appeal considered these applications. The substantive appeal was abandoned, and the Court of Appeal was to consider only the applications relating to security for costs. The Court of Appeal found that the appeal did not raise issues of public interest and was not frivolous. However, the Court of Appeal considered that Mr Burgess’ conduct during the proceedings had been vexatious and numerous, but not amounting to procedural misconduct sufficient to justify increasing security for costs. The Court of Appeal remitted the matter to the Registrar of the Court of Appeal to set security at a lower amount.

Orders