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 must pay that security by noon on 7 March.  They must also pay by the same time the costs of $1,500 ordered by this court on 7 December.  There will be interest payable on that sum.  In addition, this court ordered the Burkes to pay “usual disbursements” to Advanced Securities.  We are not sure whether those disbursements have yet been calculated.  The Burkes must in due course pay any interest owing and the disbursements; but all we are insisting upon by 7 March is payment of the base figure, namely $1,500. 

Order D

[9]       We wish to make clear to the Burkes that, if the security is not paid or if the costs are not paid, then the appeal will be automatically struck out.  Time is of the essence: the cut-off is noon on 7 March.  Both payments must be made – and on time.  No further indulgences will be considered.  If the appeal is automatically struck out, no appearances will be required on 12 March.  The automatic striking out of the appeal will not preclude an application for costs with respect to the appeal on Advanced Securities’ part.

Order E

[10]     In principle, Advanced Securities’ counsel should not be required to prepare submissions until Advanced Securities knows security for costs has been paid.  We have thought it fair in all the circumstances to give the Burkes one last chance to pay security, and realistically they may need the best part of a week to arrange that.  So if the appeal date is to be maintained, which is in everyone’s interest, Advanced Securities’ counsel must be getting on with preparing their submissions now.

Order F

[11]     The Burkes can in due course expect to pay costs with respect to their failure to comply with the conditions on which leave was granted.  They have been given indulgences.  Advanced Securities should be able to recover a reasonable contribution towards its costs in respect of these failures and indulgences.  This will, of course, in no way affect the parties’ rights with respect to costs on the substantive appeal.  The panel hearing that appeal will no doubt assess costs on it in light of the outcome of the appeal. 

Solicitors:
Harkness Henry & Co, Hamilton, for Respondent