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Burmester v Burmester

Burmester v Burmester

Case [2018] NZHC 2352 7 September 2018

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-000485

[2018] NZHC 2352

BETWEEN
PETER BURMESTER

Appellant

AND

BEVERLEY JOY BURMESTER

First Respondent

ANNELIESE BURMESTER and SARAH BURMESTER

Second Respondents

Hearing: 3 August 2018 and 30 August 2018

Appearances:

No appearance by Anneliese Burmester

D A T Chambers QC for the first respondent P E Dacre QC as counsel to assist the Court

Judgment:

7 September 2018

JUDGMENT OF KATZ J

(Contempt of Court Application)

This judgment was delivered by me on 7 September 2018 at 11.00 am 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

BURMESTER v BURMESTER [2018] NZHC 2352 [7 September 2018]

Introduction

[1] Beverley Burmester applies to have her daughter, Anneliese Burmester, held in contempt of court for failing to comply with an order of this Court requiring Anneliese to appoint her mother as sole agent of a partnership known as the ABS Partnership.

[2] Although Anneliese elected not to attend either of the Court hearings held in relation to the contempt application, she did file documents opposing the application in which she set out her arguments as to why the Court should not hold her in contempt of court. Her father, Peter Burmester, has also filed documents in support of Anneliese’s position. In addition, I appointed Paul Dacre QC as counsel to assist the Court, to provide advice and legal assistance to Anneliese, if she wished. Although Anneliese has not (yet) availed herself of that opportunity, Mr Dacre has nevertheless provided helpful assistance to the Court.

Background

[3] Mrs Burmester and her former husband, Peter Burmester, separated on 29 June 2011, following an almost 21-year marriage. Unfortunately, resolution of the parties’ relationship property issues proved to be extremely bitter and protracted, involving multiple (largely unsuccessful) appeals by Mr Burmester to this Court on interlocutory issues, as well as repeated adjournment applications. One of the couple’s two daughters (Sarah) has aligned herself with her mother, while the other daughter (Anneliese) has aligned herself with her father. Both daughters are now young adults.

[4] On 15 March 2017, Judge Burns delivered the Family Court’s substantive judgment in the relationship property proceedings. He decided in Mrs Burmester’s favour on most key issues.1 Mr Burmester appealed that decision to this Court. Mrs Burmester filed a cross-appeal. The cross-appeal sought orders broadly aimed at facilitating enforcement of the Family Court’s substantive orders, including, in particular, orders made in relation to the operation of the ABS partnership.

1 Burmester v Burmester [2017] NZFC 1817.

[5] Anneliese and Sarah were parties to the proceedings in the Family Court, and were also joined as respondents to the appeal. They both elected, however, not to actively participate in the proceedings.

[6] The ABS Partnership is a German partnership established between Mrs Burmester, Sarah and Anneliese, when the family was living in Germany,…

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 [2018] NZHC 2352
Case: [2018] NZHC 2352
Decision Date: 7 September 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Beverley Joy Burmester applied to have her daughter, Anneliese Burmester, held in contempt of court for failing to comply with an order requiring Anneliese to appoint her mother as sole agent of the ABS Partnership. The dispute arose from the contentious resolution of relationship property issues following the separation of Beverley and Peter Burmester. The court had to determine whether Anneliese was in contempt of court for deliberately failing to comply with the order.

The court found that the four elements of contempt were met: the order was clear and unambiguous, Anneliese had knowledge and proper notice of the order, she had acted in breach of that order, and her conduct was deliberate. Anneliese argued that the order was not legally binding, she feared her mother might steal partnership funds, she had offered to administer the partnership jointly with her mother and sister, any prejudice suffered by her mother was minor, and the order was moot as the partnership had been dissolved. The court rejected all these arguments and concluded that Anneliese was in contempt of court. The court held a further hearing to determine the next steps, including the determination of an appropriate penalty. The court directed that a warrant issue for the arrest of Anneliese Burmester, but it was to lie in court until the next hearing date. If Anneliese purged her contempt prior to that time, or attended court voluntarily, the arrest warrant would be cancelled. If neither of those events occurred, the warrant was to be executed. The court also directed that submissions on the issue of costs would be heard at the next hearing.

Orders