Burmester v Norsand Limited - [2021] NZCA 11

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA562/2020
[2021] NZCA 11

BETWEEN	PETER BURMESTER Applicant
AND	NORSAND LIMITED Respondent

Court:	Brown and Goddard JJ
Counsel:	Applicant in person M R Ridgley for Respondent
Judgment: (On the papers)	15 February 2021 at 10.30 am

JUDGMENT OF THE COURT

A The application for leave to bring a second appeal is declined.

BThe applicant must pay the respondent costs on a band A basis for a standard application for leave to appeal with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

This is an application for leave to bring a second appeal in respect of a judgment of the High Court[1] dismissing an appeal from a judgment delivered in the District Court at Whangarei in which judgment was granted against the applicant in favour of the respondent in the sum of $10,111.07.[2]

Background

[1]Burmester v Norsand Ltd [2020] NZHC 1945.

[2]Norsand Ltd v Burmester [2019] NZDC 24286.

Judgment was granted against the applicant in the District Court for the unpaid balance of two invoices rendered by the respondent for work carried out at the applicant’s request to the mast on his yacht. On appeal Lang J agreed that the invoices were sufficient to fully inform the applicant as to the nature and scope of the work that was the basis of the charges. In relation to the applicant’s contention that he had been overcharged, Lang J ruled that the applicant had failed to comply with his obligations under s 92 of the Evidence Act 2006 which had the consequence that the District Court Judge did not have the benefit of any explanations that might have been given in response to the applicant’s contentions.
An application to the High Court for leave to appeal was dismissed by Lang J who stated:[3]
[3] I do not propose to traverse the grounds set out by Mr Burmester in his memorandum filed in support of his application. All of them relate to factual issues he has raised in both the District Court and this Court. They are of no public or general importance and have no significance beyond the parties to the proceeding. In short, Mr Burmester seeks to have the Court of Appeal correct alleged errors of fact on the part of the District Court and this Court. That is not the function of the Court of Appeal on a second appeal.
(Footnotes omitted.)
[3]Burmester v Norsland Ltd [2020] NZHC 2415.
The appellant now seeks the leave of this Court to appeal under s 60(2) of the Senior Courts Act 2016.

Relevant principles

The established principles relating to applications for leave to bring second appeals to this Court stated in Waller v Hider[4] continue to apply in respect of applications under s 60(2). As this Court explained in Butch Pet Foods Ltd v Mac Motors Ltd:[5]
[4] The test for leave to bring a second appeal to this…

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.

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Details

Case: [2021] NZCA 11
Decision Date: 15 February 2021 at 10.30 am

CaseChat Overview and Summary

In the case of Burmester v Norsand Limited, the applicant, Peter Burmester, sought leave to bring a second appeal against a judgment of the High Court, which had dismissed his appeal from a District Court judgment awarding the respondent, Norsand Limited, $10,111.07. The District Court had ruled in favour of Norsand Limited on unpaid invoices for work done on the applicant's yacht. The High Court upheld the District Court's decision, rejecting the applicant's claims that he had been overcharged and that the invoices were not itemised. The applicant now sought leave to appeal to the Court of Appeal.

The central legal issue was whether the applicant had demonstrated that his proposed appeal raised questions of law or fact capable of bona fide and serious argument, in a case involving some interest, public or private, of sufficient importance to justify the cost and delay of a further appeal. The applicant argued that the District Court and High Court had made errors of law and fact, which amounted to arbitrary justice and should not be allowed to stand. The respondent contended that the applicant was merely seeking to reargue the factual issues that had already been decided.

The Court of Appeal found that the applicant had not met the threshold for leave to bring a second appeal. The Court noted that the applicant's criticisms of the judgments were based on factual issues that had already been determined. The Court concluded that the applicant was not seeking to clarify the law or determine whether it had been properly applied, but rather to correct alleged errors of fact. The Court of Appeal held that the applicant had not demonstrated that the case involved an interest of sufficient importance to warrant a second appeal.

The application for leave to bring a second appeal was declined. The applicant was ordered to pay the respondent's costs on a band A basis for a standard application for leave to appeal, with usual disbursements.

Orders