Burgess v Malley & Co
[2015] NZHC 2281
•21 September 2015
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 RespondentJudgment:
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 appeal advanced by Mr Burgess was essentially that this Court should set aside part of Judge Neave’s decision whereby he extended time for the respondent to serve a defence to Mr Burgess’ counter claim against the firm alleging negligence and breach of fiduciary duty in their representation on his relationship property proceedings. This counter claim, as I understand it, seeks damages of somewhere between $700,000 and $1,000,000.
[9] At para [19] of his 26 September 2013 decision Judge Neave stated:
[19] To the extent that it is necessary to extend time to allow the counter claim to proceed and, in particular, for the plaintiff to answer it, time is extended where necessary. That having been done, it is clearly appropriate that all matters involving the parties need to be resolved in the context of one hearing. The issues overlap to a significant degree and it would be absurd to confine them to separate proceedings. The issues in the counter claim are essentially the grounds for defence to the plaintiff’s claim as well as raising wider issues of liability between the plaintiff and the defendant. The counter claim in the 2010 proceedings is thus consolidated with the claim for fees in the 2013 proceeding…
[10] As to that aspect, Mr Burgess filed his counter claim in the District Court on
17 December 2010. On 18 February 2011 it appears that the respondent served an Information Capsule with regard to these District Court proceedings that the respondent maintains essentially and clearly set out its defence to Mr Burgess’ counter claim. It was not until sometime later that the respondent filed a formal defence to the counter claim, this occurring on 17 August 2011. Strictly speaking, this was out of time.
[11] The respondent contends here that the order made by Judge Neave “to the extent that it is necessary I extend time to allow the counter claim to proceed” was therefore a practical step taken to try and consolidate the rather confused position of the proceedings. In particular, the respondent draws attention to the comment at para [11] of Judge Neave’s decision where he states:
[11] If substantial justice requires the determination of the issue, it is quite plain that the procedural obstacle should not be allowed to hinder that. This is entirely consistent with the objects of the District Court Rules.
[12] It is true that no specific application was made by the respondent to extend the time for service of its formal defence to the counter claim but it maintains that this was on the basis that the substantive defence had in fact been fully advised to Mr Burgess and served in time in the Information Capsule provided on 18 February
2011.
[13] On all of this, Mr Burgess contends that in granting the leave he did, Judge Neave failed to have regard to s 27 of the New Zealand Bill of Rights Act
1990 and the principles of natural justice in that he says he did not hear from Mr Burgess or allow him any opportunity to make any submissions with respect to that matter. On this, Mr Burgess refers specifically to a number of decisions of this and other Courts relating to natural justice and the fundamental principle that parties to civil litigation must be given adequate notice and an opportunity to be heard.
These included the decision of Asher J in Ayers v Thompson.1
[14] Mr Burgess complains that Judge Neave failed to give notice that he was going to deal with the extension of time issue or to provide Mr Burgess with the opportunity to make submissions, in particular relating to prejudice which might occur in this matter.
[15] As a result, Mr Burgess contends that a miscarriage of justice has occurred here.
[16] With respect, however, I disagree. The decision of Judge Neave dated
26 September 2013 was a reserved one following a hearing on 14 August 2013 at
1 Ayers v Thompson [2012] NZHC 2807.
which the judgment records Mr Nash appeared for the respondent and Mr Burgess appeared in person. Prior to that 14 August 2013 hearing, as I understand it, there had been a number of calls relating to this proceeding between the parties, and these must have included reference to and discussion about the counter claim by Mr Burgess. Indeed it does seem that as early as 18 February 2011 the respondent had set out and advised to Mr Burgess its defence to the counter claim when it served the District Court Information Capsule. For Mr Burgess to now suggest that Judge Neave was in error in extending time, even assuming such extension was necessary to allow the counter claim to proceed, is an argument, as I see it, which entirely lacks merit. It seems clear that Mr Burgess was well aware from at least
18 February 2011 that his counter claim was opposed with the detailed basis for this opposition clearly set out. There can be no suggestion therefore that he was in any way prejudiced by any failure of the respondent to formally serve a statement of defence to the counter claim.
[17] Further, r 1.10 of the District Court Rules clearly allows for situations where there is non-compliance with the rules. Rule 1.10.11 states that the fact the District Court Rules have not been fully complied with at any stage of a proceeding does not of itself invalidate the proceedings or any step in the proceedings. In the case of non-compliance, r 1.10.2(b) of the District Court Rules also allows the Court to relevantly make any other order that it thinks fit in the interests of justice.
[18] I find therefore that Judge Neave here did not err at para [19] of his decision in extending time for the respondent to “answer the counter claim”. I reach this view in the sense that under all the circumstances in this case it was hardly necessary for Judge Neave to extend time in any event, given especially the information and details of its defence contained in the Information Capsule served by the respondent earlier. There can be no suggestion that Mr Burgess has been in any way prejudiced by that aspect of Judge Neave’s decision.
[19] For all these reasons that appeal by Mr Burgess is dismissed.
Cross-appeal by the respondents
[20] In Judge Neave’s 26 September 2013 judgment, the substantive issue he dealt with was the respondent’s summary judgment application for its legal fees claim against Mr Burgess. In this, Judge Neave declined to grant summary judgment, ruling at para [18] of his decision:
[18] There being valid arguments in favour of Mr Burgess which need to be considered, I do not consider this is an appropriate case for the grant of summary judgment. That application must be refused.
[21] Although in his written submissions advanced to me, Mr Parker for the respondent contended that this conclusion by Judge Neave was incorrect, before me on 16 September 2015 at the hearing of this cross-appeal, Mr Parker indicated that he was content for matters to be left to the trial to commence on 7 December 2015. He stated that this cross-appeal had been brought simply in the light of Mr Burgess’ appeal which the respondent was required to answer.
[22] That said, Mr Parker then simply confirmed that he would leave his written submissions before me as is and he chose to say nothing further.
[23] In my view, therefore, and in light of this approach, the cross-appeal is quickly disposed of.
[24] Mr Parker’s written submissions it seems centre around one central point. This is that the respondent’s principal complaint is that summary judgment for the legal fees in question should have been granted because, in satellite litigation, orders were made by the Standards Committee of the New Zealand Law Society for the fees amount sought. Then, the LCRO had issued a certificate on 4 April 2012 pursuant to s 161(2) of the Lawyers and Conveyancers Act 2006, certifying for the amount of fees claimed as due to the respondent totalling $59,492.10.
[25] On these aspects, at para [15] of his decision, Judge Neave stated, and I agree, that it is no answer for the respondent to say that the certificate issued by the LCRO is a complete answer here. The counter claim advanced by Mr Burgess needs to be considered before a final position on the fees claim is determined. This is what
will occur at the 7 December 2015 trial and, like Judge Neave, I am satisfied that matters should clearly be left for consideration then.
[26] The onus in any summary judgment application rests on the plaintiff/claimant to satisfy the Court that the defendant has no defence to the claim – Pemberton v Chappell.2 In my view Judge Neave did not err in reaching the conclusion he did. The respondent has not shown here that Mr Burgess has no defence to their fees claim in relation to issues he has raised concerning liability.
[27] For these reasons the respondent’s cross-appeal is also dismissed.
Costs
[28] As to costs with respect to this matter, each party has had a measure of success and in my view costs should simply lie where they fall. There is to be no order made as to costs with respect to the appeal and cross-appeal.
...................................................
Gendall J
Solicitors:
Parker Cowan, Queenstown
Copy to Mr Burgess
2 Pemberton v Chappell [1987] 1 NZLR 1.
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