Burgess v TSB Bank Limited

[2014] NZCA 586

IN THE COURT OF APPEAL OF NEW ZEALAND

CA126/2014
[2014] NZCA 586

BETWEEN	GARY OWEN BURGESS Appellant
AND	TSB BANK LIMITED Respondent

Hearing:	24 November 2014
Court:	French, Miller and Cooper JJ
Counsel:	Appellant in person N Davidson QC and G Burgess for Respondent
Judgment:	2 December 2014 at 12.45 pm

JUDGMENT OF THE COURT

AThe appeal in CA126/2014 is struck out.

BNo order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

1. On 10 December 2013 Gendall J delivered judgment (the first judgment) for TSB Bank against Mr Burgess for a sum of money representing the deficit, or balance still owing, following a mortgagee’s sale of his home.[1]  The Judge also awarded interest and indemnity costs, which were payable pursuant to the relevant loan agreement.  It is apparent from the judgment that liability for costs was argued.

   [1]TSB Bank Ltd v Burgess [2013] NZHC 3291.

2. Mr Burgess has appealed that judgment.  That appeal, CA47/2014, remains on foot.  Security of $10,000 has been paid.

3. On 11 December 2013 Mr Burgess applied for a recall of Gendall J’s judgment, complaining among other things that the Judge had not heard submissions on costs.  Gendall J declined that application on the papers (the second judgment), reasoning both that the application was without merit and that recall was inappropriate, since Mr Burgess had appealed.[2]  He did not call for submissions on the recall application, having regard to the very restrictive circumstances in which recall will be entertained.

   [2]TSB Bank Ltd v Burgess [2014] NZHC 204.

4. Mr Burgess then appealed the second judgment, on 14 March 2014.[3]  That appeal, CA126/2014, was consolidated with the first appeal, but without affecting Mr Burgess’s liability to pay security. 

   [3]Burgess v TSB Bank Ltd [2014] NZCA 334.

5. Security for costs in the second appeal was fixed at $5,880.  Mr Burgess was told of this on 21 March 2014.  A late application for waiver was dismissed by the Registrar, whose decision was confirmed by White J on 17 July 2014.  The Supreme Court refused leave to appeal, noting among other things that all of the issues raised by the appeal can be addressed in the appeal against the first judgment.[4]

   [4]Burgess v TSB Bank Ltd [2014] NZSC 141.

6. White J extended the time for payment of security in the second appeal to 31 July 2014.  Security has not been paid.  For that reason the consolidated appeal has not been given a hearing date.

7. TSB moves to strike out the second appeal.  Mr Burgess opposes, claiming that he was denied natural justice in the High Court and asserting that the Judge was wrong to consider that a recall application should not be considered when an appeal against the first judgment had been filed.  He also says that if the issues in the second appeal are subsumed in the first it is irrational to require security.

8. These grounds of opposition are misconceived.  It remains the case that Mr Burgess’s complaints in the second appeal can all be addressed in the first.  His principal complaint in the second appeal is that he was denied a hearing on one of the issues dealt with in the first judgment.  That complaint, to the extent it has any substance, will be remedied by the hearing of the first appeal in this Court, which will decide his liability for costs.  Having brought the second appeal, he is in no position to complain about having to pay additional security on the ground that the issues are the same;  the remedy for that is to strike out the second appeal and focus on the first.  Many of the other issues addressed in his submissions have nothing to do with the recall application; they concern his grievances about the first judgment.  An example is his complaint that the Judge was wrong to characterise some of his many allegations as improper.

9. It also became apparent during argument that Mr Burgess would like to keep the second appeal on foot so that he may pursue it after the first one is disposed of.  That is entirely inappropriate.  All issues can be dealt with at the hearing of the first appeal, which should now be given a hearing date.

10. We record that Mr Burgess inquired whether French J ought to recuse herself, on the ground that she had a prior involvement as a High Court judge with some of his other related proceedings.  However, he did not seek recusal, and we are satisfied in accordance with well-established authority that there are no grounds for it.[5] 

    [5]Jessop v R [2007] NZSC 96.

11. The application to strike out CA126/2014 is granted.  Mr Davidson QC did not seek costs;  accordingly, none are ordered.

Solicitors:
Clendons, Auckland for Respondent