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Burmester v Burmester

Burmester v Burmester

Case [2019] NZHC 2766 30 October 2019

Jurisdiction

Natural Justice & Procedural Fairness

Res Judicata

Specific Performance

Family Law

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NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,

11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2019-404-0542

[2019] NZHC 2766

UNDER the Property (Relationships) Act 1976

BETWEEN

PETER BURMESTER

Appellant

AND

BEVERLEY JOY BURMESTER

First respondent

ANNELIESE BURMESTER and SARAH BURMESTER

Second respondents

Date of hearing: 23 October 2019

Appearances:

Mr Burmester in person

DAT Chambers QC for the first respondent No appearance for the second respondents

C F Foote lawyer appointed to assist the Family Court

Date of judgment:

30 October 2019

JUDGMENT OF JAGOSE J

The judgment was delivered by me on 30 October 2019 at 3.00pm.
Pursuant to Rule 11.5 of the High Court Rules

Solicitors/Counsel:
Lady Chambers QC, Auckland Kendall Sturm & Foote, Auckland And to:
The appellant

……………………………… Registrar/Deputy Registrar

BURMESTER v BURMESTER [2019] NZHC 2766 [30 October 2019]

[1] Mr Burmester appeals against the decision of Judge D A Burns in the Family Court at Auckland on 28 February 2019.1

[2] In response to a memorandum filed by counsel assisting the Court, Christopher Foote,2 the Judge gave directions further to his judgment dated 15 March 2017.3 The judgment decided relationship property issues between Mr Burmester and Mrs Burmester. Mr Burmester’s appeal against the judgment was dismissed,4 and leave to appeal was refused by both this Court,5 and the Court of Appeal.6

[3] Mr Burmester’s notice of appeal says the February 2019 decision is “wrong” in respect of specific items addressed by the minute, and seeks it be set aside and alternative orders be made. In amended points on appeal, he disputes the Judge had jurisdiction to give the directions or, if he did, says the Judge erred in making the orders on the papers in chambers, and adds without further explanation a series of contended substantive errors in the Judge’s decision. In his written submissions, Mr Burmester says “the Judge fabricated a surprise decision on the papers … without giving an opportunity to the parties to be heard and respond”, and explains what substantive result he would prefer.

[4] The essence of Mr Burmester’s former argument is the Judge finally determined the issues by his 2017 judgment, and therefore impermissibly re-entered it by his decision now under appeal. His latter arguments are to pray in aid his right to observance of the principles of natural justice.

[5] I invited Mr Burmester at the hearing of his appeal to add to or emphasise anything in his written submissions (including in reply to Mrs Burmester’s submissions, which reply her counsel, Deborah Chambers QC, had not earlier seen),

1 Burmester v Burmester FAM 2011-004-002022, FAM 2011-004-002024, in chambers minute dated 28 February 2019.
2 Mr Foote appeared at the hearing of the appeal before me, to explain he had filed a memorandum to…

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.

Continue reading Burmester v Burmester

Details

AGLC: Burmester v Burmester [2019] NZHC 2766
Case: [2019] NZHC 2766
Decision Date: 30 October 2019

CaseChat Overview and Summary

The appeal in Burmester v Burmester was brought by Peter Burmester against the decision of Judge D A Burns in the Family Court at Auckland, which had given directions further to his 2017 judgment on relationship property issues between Mr Burmester and his ex-wife, Beverley Joy Burmester. The appeal was dismissed by the High Court of New Zealand, Auckland Registry. Mr Burmester sought to set aside the February 2019 decision and argued the Judge erred in making the orders on the papers in chambers and without giving an opportunity to the parties to be heard and respond.

The court addressed the jurisdictional argument and found the Judge had both jurisdiction and justification to make the directions without hearing further from the parties. The court also found the Judge correctly held Mr Burmester was estopped from denying the scope of relationship property as held in the 2017 judgment. The Judge's decision was an appropriate exercise in discretion, and the court could find nothing in the Judge’s decision indicating any wrong principle, disregard for relevant considerations, irrelevant consideration, or that was 'plainly wrong'.

The appeal was dismissed, and the costs were reserved for determination on short memoranda of no more than five pages to be filed and served by Mrs Burmester within ten working days of the date of this judgment, with any response and reply to be filed within five working day intervals after service.

Orders