Burgess v Malley & Co - [2015] NZHC 2281

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2013-409-001575 [2015] NZHC 2281

BETWEEN
GARY OWEN BURGESS

Appellant

AND

MALLEY & CO Respondent/Cross Appellant

Hearing: 16 September 2015

Appearances:

Appellant Appears in Person
M E Parker for Respondent

Judgment:

21 September 2015

JUDGMENT OF GENDALL J

BURGESS v MALLEY & CO [2015] NZHC 2281 [21 September 2015]

Introduction

[1] Before the Court are two appeals. The first is an appeal by the appellant (Mr Burgess) of an interlocutory decision given by Judge Neave in the District Court on 26 September 2013 which he says extends time for the respondent to file and serve a defence to the appellant’s counter claim. In the second appeal, related to this matter, the respondent cross appeals by way of a notice dated 14 November 2013 with respect to a further decision by Judge Neave, this one declining the respondent’s application for summary judgment on proceedings it issued against Mr Burgess claiming outstanding legal fees.

[2] Both the appeal and cross-appeal are opposed.

[3] By way of background there is longstanding and significant litigation which has been on foot between these parties for some time. It concerns an original claim by the respondent for legal fees incurred by Mr Burgess when they acted on his behalf in relationship property proceedings, and a counter claim by Mr Burgess alleging negligence by the respondent in carrying out that representation. The proceedings initiated in the District Court, including the counter claim, have been transferred by agreement between the parties to the High Court and listed for substantive trial commencing shortly on 7 December 2015 with four days allocated.

[4] This matter was the subject of a judicial review application brought by Mr Burgess which was heard in this Court and dismissed by Dunningham J in a decision dated 2 October 2014. Mr Burgess then appealed that decision to the Court of Appeal but the appeal was deemed abandoned by order dated 2 July 2015.

[5] The present appeal, it seems, was in abeyance until May 2015. Then, in a decision of Dunningham J dated 8 June 2015, a direction was made that the present appeal should first be determined before the substantive hearing approaching on
7 December 2015.

[6] At this point it is useful to repeat an observation made by Judge Neave in his

26 September 2013 judgment in the District Court relating to the series of proceedings between these parties:

[22] I observe that this is a classic case of parties allowing themselves to get bogged down in a procedural quagmire rather than focusing on what the real issues are in the case and what is the best way to resolve them.

[7] I endorse these remarks and at the outset I comment that, given the

7 December 2015 trial date set to deal with all the substantive issues between these parties, I intend now to deal with the issues which are before me quickly and on a truncated basis.

Appeal by Mr Burgess

[8] The…

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: [2015] NZHC 2281
Decision Date: 21 September 2015

CaseChat Overview and Summary

In the High Court of New Zealand, Christchurch Registry, the case of Burgess v Malley & Co was heard, involving Gary Owen Burgess and Malley & Co. The primary dispute centred around two appeals; the first was an appeal by Burgess against an interlocutory decision that extended time for the respondent to file a defence to Burgess' counterclaim, and the second was a cross-appeal by Malley & Co regarding a decision declining their application for summary judgment on proceedings they issued against Burgess, claiming outstanding legal fees. Both appeals were opposed. The substantive issues between the parties related to a claim for legal fees incurred by Malley & Co for services rendered to Burgess, and a counterclaim by Burgess alleging negligence by Malley & Co in their representation.

The legal issues before the court included whether the District Court judge correctly extended time for Malley & Co to file a defence to Burgess' counterclaim, and whether the judge erred in declining Malley & Co's application for summary judgment on their claim for legal fees. Burgess argued that the District Court judge failed to consider the principles of natural justice and the New Zealand Bill of Rights Act 1990 when extending time for Malley & Co to file a defence. Malley & Co argued that the extension was necessary to consolidate the proceedings and that Burgess was not prejudiced by the delay. The court found that the District Court judge did not err in extending time for Malley & Co to file a defence, as Burgess was aware of the opposition to his counterclaim and was not prejudiced by the delay. Furthermore, the court held that the District Court judge did not err in declining Malley & Co's application for summary judgment, as there were valid arguments in favour of Burgess which needed to be considered at trial.

The appeals by both parties were dismissed, and costs were to lie where they fell. The substantive trial between the parties was scheduled to commence on 7 December 2015, with four days allocated.

Orders