Burmester v Burmester
[2019] NZHC 2766
•30 October 2019
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
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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 explain his role in the Family Court – initially to obtain valuations of particular items of property, and subsequently to supervise equal division of chattels between Mrs Burmester and Mr Burmester – but otherwise sought leave to withdraw, which I granted, with appreciation for his attendance.
3 Burmester v Burmester [2017] NZFC 1817.
4 Burmester v Burmester [2018] NZHC 47, [2018] NZFLR 206.
5 Burmester v Burmester [2018] NZHC 822.
6 Burmester v Burmester [2018] NZCA 608, [2018] NZFLR 970.
all of which I had read, together with the 2017 judgment and 2019 decision. Mr Burmester was content to rely on his written submissions, as I note has been his preference in other hearings in this Court.
Approach on appeal
[6] As previously explained on appeal between the parties,7 appeals to this Court from the Family Court are general appeals conducted by way of rehearing,8 in which Mr Burmester bears the onus of satisfying me I should differ from the Family Court’s decision. I only am justified in interfering with that decision if I consider the decision is wrong – in other words, the Judge erred.9 To the extent the decision involved exercise of the Judge’s discretion, I only may interfere with it if Mr Burmester establishes the Judge acted on wrong principle, did not address relevant matters or took into account irrelevant matters, or was “plainly wrong”.10
Discussion
[7] It is clear the March 2017 judgment was not a final decision. Notwithstanding determination of the issues before him, the Judge expressly noted “final adjustment” remained necessary, and reserved his approval of final distribution.11 Moreover, he directed division of the family chattels “on a pick by pick basis supervised by Mr Foote”.12 He had yet finally to divide the relationship property between the parties.13
[8] For the division of family chattels – given issues arising in its process by reason of contentions made by the parties as to the scope of chattels subject to, and the methodology of the process for, division – Mr Foote sought further directions from the Judge. By memorandum dated 19 July 2018, on notice to the parties, Mr Foote explained what was sought and why, and the positions taken by the parties in relation
7 Burmester v Burmester, above n 4, at [10].
8 Property (Relationships) Act 1976, s 39(3); see also District Court Act 2016, s 127.
9 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13].
10 May v May (1982) 1 NZFLR 165 (CA); and Blackstone v Blackstone [2008] NZCA 312, (2008) 19 PRNZ 40.
11 Burmester v Burmester, above n 3, at [44].
12 At [56].
13 Property (Relationships) Act 1976, s 25(1).
to those issues, attaching his correspondence with Mr Burmester. The correspondence included Mr Burmester’s 20 November 2017 acknowledgement the Judge’s decision is “not yet final”.
[9] Mr Burmester responded by memorandum dated 14 August 2018, alleging Mr Foote’s “incompetence” and “fraud” and (if not accepted by the Judge) expecting “notification enabling [him to] respond in a more detailed way”. Such response was made notwithstanding repeated judicial findings of his “overall intransigence in these proceedings as a whole”.14
[10]The Judge gave the further directions sought, saying:15
I have considered whether it is appropriate to issue this supplementary judgment without a hearing. I consider that the orders and directions sought are ancillary only and that the judgment is not to be revisited. I consider that Mr Foote has fairly set out the argument for and against for both parties. I consider there [is] no requirement pursuant to principles of natural justice to reconvene the hearing because I was not going to allow further evidence to be called and the doctrine of res judicata applies. It is important that the issues for the parties be finalised with as little cost and expense as possible as I have endeavoured to do that.
[11] As also previously explained on appeal between the parties,16 s 33(1) of the Property (Relationships) Act 1976 (the “Act”) relevantly provides:
33 Ancillary powers of court
(1) The court may make all such other orders and give such directions as may be necessary or expedient to give effect, or better effect, to any order made under any of the provisions of sections 25 to 32.
[12] The “wide terms” of ss 25 and 33 provide jurisdiction for interim orders.17 The exercise of s 33 powers is the exercise of a discretion.18 The Judge exercised his discretion by reference to information from independent counsel, known by the parties to have been put before the Judge for decision, with long experience of the issues between the parties since Mrs Burmester commenced the proceeding in 2011, and in
14 Burmester v Burmester [2016] NZHC 2710 at [8].
15 Burmester v Burmester, above n 1, at [21].
16 Burmester v Burmester, above n 4, at [66].
17 Harrison v Harrison [2009] NZCA 68, [2009] NZFLR 687 at [28].
18 Scott v Williams [2017] NZSC 185, [2018] 1 NZLR 507 at [393].
a context requiring resolution of relationship property questions “as inexpensively, simply, and speedily as is consistent with justice”.19
[13] Critically, in terms of natural justice, Mr Burmester had notice of what was to be decided, on what foundation and why, and opportunity fairly to present his own case.20 The history of the litigation suggests nothing more constructive would result from further hearing, as illustrated in Mr Burmester’s correspondence with Mr Foote
– in which he alleged Mrs Burmester is a liar, thief and cheat, and Mr Foote is biased and fraudulent – which Mr Foote also made available to the Judge.
[14] In those circumstances, the Judge had both jurisdiction and every justification to make the directions without hearing further from the parties.
[15] The Judge correctly held, for purposes of the ‘pick’ process, Mr Burmester was estopped from denying the scope of relationship property as held in the 2017 judgment.21 Mr Burmester’s proposal to ‘pick’ two particular items was consented to by Mrs Burmester, and accepted by the Judge.22 The Judge directed the picking process may continue to be conducted over supplementary sessions,23 which is the very essence of ancillary orders.24 He appropriately rejected, as lacking necessary interdependence,25 Mr Burmester’s proposal to set off his liability in the proceeding against prospective resolution of German proceedings between the parties.26 And the Judge confirmed the meaning of the judgment’s time limit for concluded exercise of an option,27 the necessary requisite certainty being well-understood legal principle.28
19 Property (Relationships) Act 1976, s 1N(d).
20 Xiao v Department of Internal Affairs [2019] NZCA 326 at [34], citing Ali v Deportation Review Authority [1997] NZAR 208 (HC) at 220. See also Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 at [118]–[120].
21 Burmester v Burmester, above n 1, at [5], [7], and [10]. See Houghton v Saunders [2019] NZCA 506 at [41]; Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2010] NZCA 400 at [4], affirmed in Chesterfields Preschools Ltd (in liq) v Commissioner of Inland Revenue [2017] NZSC 168 at [10].
22 Burmester v Burmester, above n 1, at [12].
23 At [14].
24 At [11] above.25 Grant v NZMC Ltd [1989] 1 NZLR 8 (CA) at 13.
26 Burmester v Burmester, above n 1, at [19].
27 At [20].28 Southbourne Investments Ltd v Greenmount Manufacturing Ltd [2007] NZSC 62, [2008] 1 NZLR 30 at [13], citing “the line of cases concerning exercise of options which begins with Reporoa Stores Ltd v Treloar” [1958] NZLR 177 (CA).
[16] As an exercise in discretion, I can find nothing in the Judge’s decision indicating any wrong principle, disregard for relevant considerations, irrelevant consideration, or that was ‘plainly wrong’.
Result
[17]Mr Burmester’s appeal is dismissed.
Costs
[18] In my preliminary view, as the successful party, Mrs Burmester is entitled to 2B costs and disbursements.29 That is because, from what I presently know of it, nothing in the steps taken by her in this averagely complex proceeding required other than a normal amount of time.30 If that is not accepted by the parties, and they cannot otherwise agree, costs are reserved for determination on short memoranda of no more than five pages – annexing a single-page table setting out any contended allowable steps, time allocation, and daily recovery rate – 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.
—Jagose J
29 High Court Rules 2016, rr 14.2(1)(a), (c) and (g).
30 Rules 14.3(1) and 14.5(2).
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