Burke v Advanced Securities Limited - [2008] NZCA 40

IN THE COURT OF APPEAL OF NEW ZEALAND
CA696/07
[2008] NZCA 40

BETWEENJULIAN PAUL BURKE AND GILLIAN ELIZABETH BURKE

Appellants

ANDADVANCED SECURITIES LIMITED

Respondent

Hearing:28 February 2008

Court:William Young P, Chambers and O'Regan JJ
Counsel:Appellants in Person

T M Braun for Respondent

Judgment:28 February 2008 at 3 pm

JUDGMENT OF THE COURT

AJulian Paul Burke is joined as an appellant with his wife, Gillian Elizabeth Burke.
BThe respondent must send forthwith to the Court of Appeal a copy of the case on appeal.
CBy noon on 7 March 2008, the appellants must pay:
(a)to the Court of Appeal, by way of security for costs on the appeal, $4,740; and
(b)to the respondent, $1,500.

D        If Order C is not complied with, the appeal is automatically struck out.
E        The respondent must file and serve its submissions by 4 pm on 7 March 2008.
F        Costs in respect of the appellants’ failure to comply with this court’s judgment of 7 December 2007 and the hearing on 28 February 2008 are reserved.

REASONS OF THE COURT
(Given by Chambers J)
[1]       On 7 December last year, this court granted Julian and Gillian Burke leave to appeal out of time from a decision of Associate Judge Doogue, but on five conditions. The Burkes complied with none of them.
[2]       On 15 February this year, O’Regan J granted further time in which the Burkes were to comply with some of the conditions. The Burkes did not comply with those conditions either.
[3]       Mr Braun, for Advanced Securities Limited, the respondent, raised with the court whether, in these circumstances, the appeal had been properly brought at all. Alternatively, he asked that the appeal should now be struck out for lack of prosecution.
[4]       We heard the parties this morning. Mr Burke provided explanations and excuses for their non-compliance. We find it unnecessary to detail them. Suffice to say, we have decided that the Burkes should be able to continue with their appeal, which is due to be heard on 12 March.
[5]       We have made six orders. We provide the following explanation for those orders.
Order A
[6]       When the notice of appeal was belatedly filed, it was in the name of Gillian Burke alone. Mr Burke was not named as an appellant. Mr Burke has explained that was an oversight. He seeks to be joined as an appellant and we have granted that request.
Order B
[7]       Mr Burke claims he has filed four copies of the case on appeal in this court. If he has, the registry cannot find them. Mr Braun says he has received a copy of the case on appeal prepared by the Burkes. The simplest course, we think, is for Mr Braun to send forthwith to the Court of Appeal a copy of the case he has received. The registry will then arrange for three further copies of the case to be prepared.
Order C
[8]       The Burkes have still not paid security for costs on the appeal. They…

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: [2008] NZCA 40
Decision Date: 28 February 2008

CaseChat Overview and Summary

The case of Burke v Advanced Securities Limited involves a dispute between the Burkes, Julian Paul Burke and Gillian Elizabeth Burke, and Advanced Securities Limited. The Burkes had previously lost an appeal against Advanced Securities Limited, and the Court of Appeal granted them leave to appeal out of time on certain conditions. However, the Burkes did not comply with any of the conditions, leading to the current appeal proceedings. The court was required to determine whether the Burkes' non-compliance with the conditions meant that the appeal should be struck out, or if the appeal should proceed under certain conditions. The Court of Appeal found that the Burkes should be able to continue with their appeal but made several orders to ensure that the appeal proceeded smoothly. The court granted Julian Paul Burke's request to be joined as an appellant, ordered the respondent's counsel to send a copy of the case on appeal to the Court of Appeal, and required the Burkes to pay security for costs on the appeal and the costs ordered by the court on 7 December 2007. The court emphasized that if the Burkes failed to make these payments by noon on 7 March 2008, the appeal would be automatically struck out. The Burkes were also warned that they would be liable for costs with respect to their failure to comply with the conditions on which leave was granted.

The Court of Appeal decided that the Burkes should be allowed to continue with their appeal, despite their non-compliance with the conditions set out in the previous judgment. The court granted several orders to ensure that the appeal proceeded smoothly and on time. These orders included allowing Julian Paul Burke to be joined as an appellant, requiring the respondent's counsel to send a copy of the case on appeal to the Court of Appeal, and mandating that the Burkes pay security for costs on the appeal and the costs ordered by the court on 7 December 2007. The court emphasised that the Burkes must make these payments by noon on 7 March 2008 or the appeal would be automatically struck out. The Burkes were also warned that they would be liable for costs with respect to their failure to comply with the conditions on which leave was granted. The appeal is scheduled to be heard on 12 March 2008.

Orders