Legal Research
Cases
Burmester v Burmester

Burmester v Burmester

Case [2019] NZHC 32 29 January 2019

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-000485

[2019] NZHC 32

BETWEEN
PETER BURMESTER

Appellant

AND

BEVERLEY JOY BURMESTER

First Respondent

ANNELIESE BURMESTER and SARAH BURMESTER

Second Respondents

Hearing: On the papers

Counsel:

D A T Chambers QC for the first respondent Anneliese Burmester in person

Judgment:

29 January 2019

JUDGMENT OF KATZ J

[Costs of contempt application]

This judgment was delivered by me on 29 January 2019 at 2.15 pm pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Dyer Whitechurch, Auckland
Counsel: D A T Chambers QC, Bankside Chambers, Auckland Copies to: Anneliese Burmester
P E Dacre QC, Auckland
N S Leader, Barrister, Whangarei

BURMESTER v BURMESTER [2019] NZHC 32 [29 January 2019]

Introduction

[1] Anneliese Burmester was found to be in contempt of court (on the application of her mother, Mrs Beverley Burmester) for failing to comply with a court order made in these proceedings. Anneliese was committed to prison for a period of seven days. Mrs Burmester now seeks indemnity costs against Anneliese in respect of the contempt application.

Background

[2] In the course of relationship property proceedings between Mrs Burmester and her former husband Peter Burmester, orders were made by the Family Court regarding the operation of a partnership. The partners were Mrs Burmester, and the couple’s two adult daughters, Sarah and Anneliese. (Anneliese and Sarah were both parties to the Family Court proceedings).

[3] The Family Court decision regarding relationship property issues was appealed to this Court. In my appeal decision of 2 February 2018, I varied the Family Court orders regarding the operation of the partnership, to better facilitate enforcement of the Family Court’s orders. The order made on appeal (“Partnership Order”) stated that:1
I order that Anneliese Burmester and Sarah Burmester do all things necessary within 14 days of this judgment to appoint Mrs Burmester as the sole agent for the partnership, both in regard to the operation of the ABS Partnership bank account and in regard to dealing with all authorities in Germany.

[4] I declined, however, to make a pre-emptive order (as sought by Ms Chambers QC) that Anneliese would be in contempt of court if she failed to comply with the Partnership Order. I noted, however, that “any failure by Anneliese to comply with the [Partnership Order and the Family Court’s orders] will likely constitute contempt of court and could ultimately result in penalties (including fines or imprisonment) being imposed”.2

1 Burmester v Burmester [2018] NZHC 47, [2018] NZFLR 206 at [143(b)].
2 At [129].

[5] Sarah Burmester complied with the Partnership Order. Anneliese Burmester, who has aligned herself with her father in the bitter and protracted proceedings between her parents, refused to do so. As a result, on 15 March 2018, Mrs Burmester applied for orders that Anneliese be held in contempt of court, that an arrest order be issued, and that Anneliese be committed to prison. Having reviewed the application, I issued a Minute…

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 32
Case: [2019] NZHC 32
Decision Date: 29 January 2019

CaseChat Overview and Summary

The case of Burmester v Burmester involved a dispute between Beverley Burmester and her daughter, Anneliese Burmester, in relation to the enforcement of a Family Court order. Anneliese was found to be in contempt of court for failing to comply with a court order regarding the operation of a partnership, which was being contested in relationship property proceedings. Beverley sought indemnity costs from Anneliese in respect of the contempt application.

The key legal issues were whether indemnity costs should be awarded, and if so, whether the quantum of costs claimed was reasonable. The Court found that indemnity costs were appropriate due to Anneliese's deliberate disobedience of a court order. However, the Court considered that the sum claimed was unreasonable, given the straightforward nature of the contempt issues. The Court ordered that Anneliese should pay indemnity costs to Beverley in the sum of $24,500, together with disbursements of $1,264.75, totalling $25,764.75.

The Court also considered whether Beverley should be entitled to deduct the costs from Anneliese's share of the partnership funds or whether Anneliese should be required to meet the costs of counsel to assist. The Court declined to make such orders, due to concerns about conflating issues of liability and enforcement and the inappropriateness of obliging Anneliese to pay for services she did not want or use.

Orders