Burgess v Malley & Co

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.