Burmester v Burmester
[2018] NZHC 822
•27 April 2018
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 private, of sufficient importance that it outweighs the cost and delay of the further appeal.7
[5] The Court of Appeal’s function on a second appeal is not general correction of error.8 Not every error of law is of such importance, either generally or to the parties, that it will justify a second appeal when it has already been judicially considered twice before.9 The limited time and resources of the Court of Appeal is not to be wasted, nor additional expense incurred, for appeals “without realistic hope of benefit”.10
[6] As for what constitutes an error of law, Edwards J in Banora v Auckland Council summarised the approach as follows, with reference to the Supreme Court decision in Bryson v Three Foot Six Ltd:11
In Bryson v Three Foot Six Ltd, the Supreme Court discussed what amounted to a question of law for appeal purposes. The Supreme Court confirmed that the application of the law to the facts of an individual case by the fact-finding Court does not give rise to a question of law. It is for the fact-finding Court to weigh the relevant facts in light of the applicable law. If the fact-finding Court has not overlooked any relevant matter or taken into account some matter which is irrelevant to the proper application of the law, the conclusion will be left for the fact-finding Court unless it is clearly insupportable. The Supreme Court said that it will be a rare case where the appeal court considers, as a question of law, whether the conclusion of a fact-finding body is based on an insupportable factual finding.
[7] In relatively rare cases, a factual issue might justify a second appeal. However, given an issue of fact will seldom be of public importance, it will usually be significantly harder to obtain leave when no question of law is involved.12
Should leave for a second appeal be granted in this case?
[8] Mr Burmester is self-represented. He does, however, have a legal background, having practised as a lawyer in Germany for a number of years. Unfortunately, however, Mr Burmester’s application for leave to appeal does not articulate the
7 Snee v Snee (1999) 13 PRNZ 609 (CA) at [15] citing Waller v Hider, above n 6, at 413.
8 Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd, above n 6, at [33(b)].
9 Waller v Hider, above n 6, at 413.
10 Snee v Snee, above n 7, at [15] citing Waller v Hider, above n 6, at 413.
11 Banora v Auckland Council [2017] NZHC 3276 at [22] (footnotes omitted), citing Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721.
12 Waller v Hider, above n 6, at 413.
specific questions of law (or fact) that he wishes to submit to the Court of Appeal. I will therefore attempt to distil the key arguments raised by Mr Burmester’s application for leave, and address them in turn.
The adjournment issue
[9] The Judgment addressed each of twelve issues that were raised in Mr Burmester’s notice of appeal. I declined, however, to give Mr Burmester leave to raise a thirteenth issue, not foreshadowed in his notice of appeal. That issue was whether Judge Burns had erred in declining a further adjournment application by Mr Burmester at the outset of the substantive hearing in the Family Court. I did note, however, that if I had been required to formally determine the matter I would have dismissed this proposed ground of appeal on its merits, for reasons that I set out at [12] to [16] of the Judgment.
[10] Mr Burmester’s application for leave essentially repeats the arguments he advanced at the appeal hearing. I do not consider that there is anything in this proposed ground of appeal that satisfies the test for a grant of leave for a second appeal, as set out at [4] above.
The application of German law
[11] In both his affidavit evidence and submissions, Mr Burmester opined that a number of matters were governed by German law, and that German law favoured his position. In the Judgement, after outlining the relevant legal principles regarding proof of foreign law, I concluded as follows:13
[23] Mr Burmester asks the Court to simply accept that German law is whatever he says it is. There is simply no basis for adopting such an approach. Many of the legal propositions advanced by Mr Burmester are contentious. His submissions as to German law are also often confusing and difficult to follow. He has not provided appropriate supporting statutory material, case law or commentary. Further, Mr Burmester lacks independence and has not practiced law in Germany for over 20 years. Taking these various matters into account, expert evidence as to German law was required if Mr Burmester wished to rely on such law in these proceedings. Mr Burmester has accordingly failed to prove German law to the satisfaction of the Court. The
13 Burmester v Burmester, above n 1 (footnotes omitted).
issues on appeal must therefore be determined in accordance with New Zealand law rather than German law.
[12]Mr Burmester raises the following ground of appeal in respect of this issue:
Another sad performance of Justice Katz can be found in [17-23] of her verdict. In a scornful way Her Honour rules that German law cannot be applied because I have made mistakes regarding evidence. The latter maybe correct. However, a legal system which deserved to be called “Justice Department” would have given me directions how to give evidence regarding the application of German law. Every German Judge would have given hints to avoid a surprise decision. Thus, this system here does not care that justice governs but in fact injustice governs.
If this matter is referred back to the Family Court injustice could be corrected.
[13] The particular question of law for submission to the Court of Appeal is unclear. There appears to be nothing in the argument, however, on its merits. Mr Burmester was encouraged by Judges of the Family Court to retain counsel. He elected not to do so, despite having sufficient funds for the purpose. (I note that Mr Burmester received an interim distribution of relationship property of approximately $2 million). It was not the role of Judge Burns (or any other Family Court Judge) to provide legal advice to Mr Burmester as to how to prove German law, if he wished to rely on such law at the substantive hearing. Rather, it was for Mr Burmester to seek legal advice on such issues, as he thought fit. He elected not to do so, and must bear the consequences of that decision. By the time the matter reached the High Court on appeal, the evidence had long since closed. It was then too late for Mr Burmester to seek to “back fill” any evidential gaps on the issue of German law.
[14] I do not consider that this proposed ground of appeal satisfies the test for a grant of leave for a second appeal, as set out at [4] above.
[15] I now turn to consider each of the remaining grounds of appeal, adopting the same headings as are used in the Judgment.
Issue one — Did the Judge err in classifying the JFC Account as relationship property?
[16] Judge Burns held that funds held in a joint bank account with the ANZ were relationship property, rejecting Mr Burmester’s claim that Mrs Burmester’s interest in
that account was held on trust for him, pursuant to an express oral trust. I upheld the Judge’s finding on appeal, albeit for different reasons.
[17] Mr Burmester submits that both the Family Court and High Court erred on this issue and wrongly preferred Mrs Burmester’s evidence to his. He further submits that the trust issue arising in this case has never been decided by a New Zealand court, justifying a final decision by the Court of Appeal.
[18] In the Judgment, I disagreed with Judge Burns’ conclusion that the claimed trust failed for lack of certainty, as a matter of law. I therefore found in Mr Burmester’s favour on the legal issue. Having analysed the evidence, however, I concluded that Mr Burmester’s claimed trust failed on the facts. Ultimately, I preferred Mrs Burmester’s evidence to that of Mr Burmester, for reasons set out in the Judgment. However, I did not solely rely on Mrs Burmester’s evidence. Much of the reasoning set out in the Judgment is based on an analysis of the deficiencies in Mr Burmester’s evidence.
[19] Mr Burmester has not identified a legal issue relating to the claimed trust that justifies a further appeal. Nor is there anything arising out of the factual findings in the Judgment that involves any interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal.
Issue two — Did the Judge err by ordering that spousal maintenance continue up until the date of distribution?
[20] Mr Burmester unsuccessfully argued on appeal in the High Court that Judge Burns was wrong to require him to continue to pay spousal maintenance up until the date of distribution. I rejected that submission for the reasons set out at [59] to
[60] of the Judgment. Mr Burmester essentially wishes to relitigate that issue before the Court of Appeal, advancing the same arguments as he advanced in the High Court and, presumably, the Family Court. Those arguments do not, however, raise a question of law or fact that is some interest, public or private, of sufficient importance that it outweighs the cost and delay of the further appeal. The issue is entirely factual, and of interest to the parties only.
Issue three — Did the Judge err by ordering that the costs of counsel to assist be reimbursed from Mr Burmester’s half-share of the ANZ account?
[21] On 11 October 2013, Mr Foote was appointed as counsel to assist with the implementation of Family Court orders, due to obstructive behaviour on the part of Mr Burmester. Mr Foote assisted in arranging the valuation of household artworks, as well as valuations of a yacht and the family home. Mr Burmester refused to authorise payment of Mr Foote’s costs from the ANZ Account, as directed by the Court. Ultimately Mr Burmester was found in contempt of court for his failure to comply with the Court’s directions. That finding was upheld by Moore J on appeal.14 Mr Burmester also objected to Mr Foote’s fees and sought to have him dismissed.
[22] Mr Burmester submits that because Judge Burns ultimately accepted his argument that his yacht “Star Appeal” was his separate property, and because the distribution of chattels would occur on a “pick by pick” basis, that Mr Foote’s assistance was not needed and therefore he should not be required to meet Mr Foote’s costs.
[23] Given Mr Burmester’s conduct, it is clear that Mr Foote’s assistance was required and that the order that Mr Burmester be required to meet Mr Foote’s costs was appropriate.
[24] As to the valuation of the yacht, it appears to have been in dispute as to whether or not it formed part of the relationship property. The valuation of it occurred prior to Judge Burns’ decision where he found that it was not. The fact remains, however, that Mr Foote’s assistance would not have been required at all if Mr Burmester had been co-operative. It was therefore reasonable that he be required to meet Mr Foote’s costs in all respects.
[25] No question of law or fact that is capable of bona fide and serious argument is raised in respect of this issue — Mr Burmester is simply seeking to relitigate an issue that has no merit.
14 PB v BJB [2014] NZHC 3165.
Issue four — did the Judge err by ordering that all adjustments arising from the judgment be made from the ANZ account?
[26] Judge Burns ordered that all adjustments, for issues such as spousal maintenance, be made from the parties’ joint ANZ Account. This appears to reflect the challenges that Mrs Burmester faced in securing payment of any money at all (such as for costs awards) from Mr Burmester.
[27] Mr Burmester wishes to argue before the Court of Appeal that the parties have lost a lot of money as a result of exchanging CHF into NZ$. He submits that these losses would have been avoided if he had paid maintenance from his interim distribution of around NZD $2 million.
[28] Although Mr Burmester’s notice of appeal in the High Court alleged that Judge Burns erred by ordering that all adjustments arising from the Family Court judgment be made from the ANZ account, he did not develop the matter further in oral submissions. In the Judgment, I concluded as follows:15
I cannot see any proper basis for challenging the Judge’s decision on this issue. Section 33(1) of the Act provides the Family Court with a wide discretion to make such orders as may be necessary or expedient to give effect, or better effect, to any order made under ss 25 to 32, under which relationship property may be divided.
[29] Judge Burns’ order was made in the exercise of his discretion. He had a clear basis for the exercise of that discretion, arising out of Mr Burmester’s conduct of the litigation (including his refusal to meet any costs awards). Nothing that Mr Burmester now seeks to argue in relation to this issue meets the test for a grant of leave for a second appeal, as set out at [4] above.
Issue five — Did the Judge err by ordering the remaining proceeds from the sale of the family home to be Mrs Burmester’s sole property?
[30] On 23 May 2014, Judge Southwick ordered that the family home be immediately sold.16 Mr Burmester received his share. Mr Foote initially held the remaining proceeds. Judge Burns then vested the remaining proceeds in
15 Burmester v Burmester, above n 1, at [66].
16 [BJB] v [PB] [2014] NZFC 3293.
Mrs Burmester, noting that the sale of the family home had been ordered (and was agreed) to be relationship property.
[31] On appeal before me, Mr Burmester argued that the distribution to Mrs Burmester from the sale of the family home should be stayed until any German lawsuits (which have apparently not yet been filed) are finally decided. I rejected that submission and it would appear that he now wishes to advance it before the Court of Appeal.
[32] As I understand it, the remaining proceeds of the sale of the family home have already been paid out to Mrs Burmester, so the issue is moot. Even if that were not the case, however, Mr Burmester’s proposed appeal on this issue is not capable of serious or bona fide argument, for the reasons set out at [67] to [70] of the Judgment.
Issue six — Did the Judge err by accepting the value at which the German motor vehicles were sold?
[33] Mr and Mrs Burmester owned two cars in Germany, which were sold by Mrs Burmester in a time of financial need. Judge Burns accepted (and Mrs Burmester did not dispute) that the proceeds of the sale of the cars were relationship property and determined that half of the proceeds were to be paid to Mr Burmester.
[34] On appeal in the High Court, Mr Burmester argued that the evidence of the sale price provided by Mrs Burmester was insufficient and (if the vehicles were sold at that price) they were sold at an undervalue. I rejected those arguments for the reasons set out at [74] to [75] of the Judgment. Mr Burmester now wishes to relitigate those issues before the Court of Appeal.
[35] This issue is entirely factual and raises nothing of wider importance. It is of interest to the parties only. This proposed ground of appeal accordingly does not satisfy the test for a grant of leave for a second appeal, as set out at [4] above.
Issue seven — did the Judge err by finding that the loan to Mr Jacobs was relationship property?
[36] During the marriage, a loan was made to a friend of Mr Burmester’s, Werner Jacobs. Mr Jacobs lives in Europe (possibly Germany). Mr Burmester’s evidence was that the debt is secured by a registered mortgage over land owned by Mr Jacobs.
[37] Judge Burns held that the loan is relationship property. Given, however, that the balance outstanding is more likely to be able to be recovered by Mr Burmester than by Mrs Burmester, he directed that the sum be vested in Mr Burmester, with an adjustment for one half of the balance to be made in favour of Mrs Burmester, from out of the ANZ bank account. I found no error in that approach, on appeal.
[38] Mr Burmester submits that it was an abuse of discretion to vest the Jacobs claim in him, because in his view there is a high risk that he will never be able to recover the money, and yet Mrs Burmester will receive her share of that sum from the ANZ bank account. (It is not clear why there is a high risk of non-recovery, given that the loan is apparently secured over real property).
[39] Again, this issue is largely factual, relates to a discretionary decision, and is not of any general or wider interest beyond the immediate parties. This proposed ground of appeal does not satisfy the test for a grant of leave for a second appeal, as set out at [4] above.
Issue eight — Did the Judge err by exercising jurisdiction over the partnership and declaring that Mrs Burmester’s interest in it is relationship property?
[40] This issue relates to a partnership in which Mrs Burmester and the parties’ two daughters each have a one-third interest. The partnership owns real property in Germany. The daughters were joined to both the Family Court proceedings and the High Court appeal, but elected not to participate.
[41] Mrs Burmester’s evidence in the Family Court proceedings was that the couple’s daughter Anneliese, who had aligned herself with Mr Burmester, had obstructed the operation of the partnership to the extent that one of the partnership properties was almost compulsorily auctioned. Mrs Burmester believed that this was
at the instigation of her father. As a result, Mrs Burmester sought to dissolve the partnership.
[42] The Judge declined that request. It appears that, in his view, that issue was more appropriately dealt with by the German courts. The Judge did find, however, that Mrs Burmester’s interest in the partnership was relationship property. The Judge also, in effect, made interim orders aimed at preserving the value of the assets of the partnership until any issues relating to the underlying assets, or the partnership as a whole, can be resolved in Germany. I observed in the Judgment that:17
… This was presumably to address what appears to be a common theme in these proceedings, namely Mr Burmester’s willingness to “cut off his nose to spite his face” in his dealings with Mrs Burmester. In particular, although Mrs Burmester’s interest in the partnership is relationship property, Mr Burmester appears willing to undermine the effective operation of the partnership (including through Anneliese) rather than see Mrs Burmester secure any benefit from it.
[43] In his application for leave to appeal, Mr Burmester largely repeats submissions he made on appeal in this Court. In particular, he argues that Judge Burns erred in exercising any jurisdiction at all over the partnership, and that Mrs Burmester’s interest in the partnership is not relationship property. Although it is not clear, he presumably wishes to argue on appeal that her interest in the partnership is held on trust for him and is therefore his separate property. This is not apparent, however, from his submissions on the topic, which simply that “every law trainee will recognise that ABS GbR has never been relationship property”.
[44] While it may well be possible to formulate a specific question of law relating to the partnership issues (despite Mr Burmester failing to do so), I am not satisfied that it would be a question of law that raises some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal.
17 Burmester v Burmester, above n 1, at [93].
Issue nine (the order that proceeds of German litigation are relationship property and vesting them in Mr Burmester), issue ten (the Judge erred by dismissing Mr Burmester’s s 13 argument) and issue eleven (calculation of maintenance and ordering that it be deducted from Mr Burmester’s half-share of the ANZ account)
[45] Mr Burmester refers to his submissions in the High Court regarding these issues. He has not identified any question of law or fact arising from the Judgment that is capable of bona fide and serious argument, let alone one that involves some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal.
Result
[46]The application for leave to appeal is dismissed.
Katz J
2
5
1