Burmester v Burmester - [2018] NZHC 822

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-000485 [2018] NZHC 822

UNDER the Property (Relationships) Act 1976

BETWEEN

PETER BURMESTER

Appellant

AND

BEVERLEY JOY BURMESTER

First Respondent

ANNELIESE BURMESTER SARAH BURMESTER

Second Respondents

Hearing: On the papers

Counsel:

Appellant in person

D Chambers QC for first respondent

Judgment:

27 April 2018

JUDGMENT OF KATZ J

[Application for leave to appeal]

This judgment was delivered by me on 27 April 2018 at 3:00pm pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Dyer Whitechurch, Auckland
Counsel: D Chambers QC, Bankside Chambers, Auckland Copy to: P Burmester (Appellant)

BURMESTER v BURMESTER [2018] NZHC 822 [27 April 2018]

Introduction

[1] On 2 February 2018, I delivered a judgment (“Judgment”)1 in which I dismissed Mr Burmester’s appeal from a decision of Judge Burns in the Family Court relating to relationship property issues.2 Mr Burmester now seeks leave to appeal to the Court of Appeal. Under s 60 of the Senior Courts Act 2016, leave to appeal must be obtained for a second appeal from the Family Court.3 An application for leave to appeal must be made to the High Court in the first instance. If the High Court refuses leave, an application may be made to the Court of Appeal.4

[2] Mrs Burmester opposes leave being granted to Mr Burmester. Ms Chambers QC submitted, on Mrs Burmester’s behalf, that the appeal does not raise a question of law or fact capable of bona fide and serious argument; it does not involve an interest, public or private, of sufficient importance that it outweighs the cost and delay of the further appeal; and that if the appeal were allowed it would waste the resources and time of the Court of Appeal and the parties would incur additional expenses without realistic hope of benefit.

What is the legal test for granting leave for a second appeal?

[3] Section 60 of the Senior Courts Act substantively re-enacts s 67 of the Judicature Act 1908. The authorities under that section are therefore still relevant.5

[4] There is no general right of second appeal from Family Court decisions. The purpose of a second appeal is more limited than a first appeal. It is to clarify the law and determine whether it has been properly construed and applied by the Court below.6 The test for whether leave to appeal should be granted is that the appeal must raise a question of law or fact capable of bona fide and serious argument in a case involving

1      Burmester v Burmester [2018] NZHC 47.
2      Burmester v Burmester [2017] NZFC 1817.
3      Senior Courts Act 2016, s 60(1).
4      Senior Courts Act 2016, s 60(2).
5      Crichton v Green [2018] NZHC 184 at [11].
6      Waller v Hider [1998] 1 NZLR 412 (CA) at 413. See also Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd [2007] NZCA 355, [2008] 2 NZLR 591 at [31]–[33].

some interest, public or…

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 822
Case: [2018] NZHC 822
Decision Date: 27 April 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Peter Burmester, the appellant, sought leave to appeal a decision from the Family Court in a relationship property dispute against Beverley Joy Burmester, Anneliese Burmester, and Sarah Burmester, the respondents. The appeal pertained to the division of relationship property and spousal maintenance between the parties following their separation. The Family Court had ruled in favor of the respondents, and the High Court subsequently dismissed Mr Burmester’s appeal. Mr Burmester now sought leave to appeal to the Court of Appeal. The respondents opposed the application, arguing that the proposed grounds of appeal did not satisfy the criteria for leave to appeal.

The legal issues before the court were whether the proposed grounds of appeal met the criteria for leave to appeal under the Senior Courts Act 2016. The criteria include whether the appeal raises a question of law or fact capable of bona fide and serious argument, and whether the appeal involves an interest, public or private, of sufficient importance that it outweighs the cost and delay of the further appeal. The court also considered whether the appeal would waste the resources and time of the Court of Appeal and incur additional expenses without realistic hope of benefit.

The court found that none of the proposed grounds of appeal satisfied the criteria for leave to appeal. The adjournment issue was not foreshadowed in the notice of appeal and did not meet the criteria for a second appeal. The application of German law was not properly proven and was ultimately not relevant to the determination of the issues. The remaining grounds of appeal were largely factual or related to discretionary decisions and did not involve any question of law or fact capable of serious argument or any interest of sufficient importance to warrant a second appeal. The court concluded that allowing the appeal would waste the resources and time of the Court of Appeal and incur additional expenses without realistic hope of benefit.

The court dismissed the application for leave to appeal.

Orders