Burnside v Burnside - [2024] NZHC 1735

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2023-470-002

[2024] NZHC 1735

BETWEEN
ROBERT MICHAEL BURNSIDE VERA IRENE BURNSIDE

Plaintiffs

AND

STEPHEN JOHN BURNSIDE

First Defendant

AND

WAI-RONGOA AROHANUI LIMITED

Second Defendant

Hearing: 25 June 2024

Counsel:

D M Fraundorfer for the Plaintiffs No appearance for the Defendants

Judgment:

27 June 2024

JUDGMENT OF ASSOCIATE JUDGE BRITTAIN

This judgment was delivered by me on 27 June 2024 at 12 Midday.
Pursuant to Rule 11.5 of the High Court Rules.

…………………..
Registrar/Deputy Registrar

Counsel:
Holland Beckett, Tauranga

BURNSIDE v BURNSIDE [2024] NZHC 1735 [27 June 2024]

Introduction

[1] The first named plaintiff, Robert Burnside (Robert) and the first defendant, Stephen Burnside (Stephen) are brothers. Stephen is the sole shareholder and director of the second defendant, Wai-Rongoa Arohanui Ltd (Wai-Rongoa). He is now self-represented.

[2] Following a subdivision of land in 2004, Robert owned the property at 233 Landlyst Road, Waihi, comprising Lots 2 and 3 on Deposited Plan (DP) 90136. Stephen, or his interests, owned the property at 245 Landlyst Road, comprising Lot 4 on DP 90136. At some point, Lot 4 was transferred by Stephen to Wai-Rongoa, the current owner.

[3] In 2021, Robert subdivided Lot 3 into two lots, and sold those lots to unrelated parties. Those parties are not involved in this litigation. Robert continues to own Lot
2. He lives there with his wife, Vera Burnside (Vera), the second named plaintiff. Stephen lives on Lot 4.

[4] Between 2013 and 2020, various issues arose between Robert and Stephen from their relationship as neighbours, related to easements created on the subdivision in 2004 and a common boundary fence. Those historic disputes are now the subject of claims and counterclaims in these proceedings.

[5] These proceedings began life in the District Court. On 29 November 2022, Judge Ingram transferred the proceedings to the High Court, because it appeared that Wai-Rongoa was in substance challenging the validity of the subdivision in 2004, including the registration of the easements on the titles to Lots 2, 3 and 4 created by the subdivision. Judge Ingram considered that those matters were beyond the jurisdiction of the District Court.1

[6]This judgment determines four interlocutory applications:

1 Burnside v Wai-Rongoa [2022] NZDC 22975.

(a)by Stephen and Wai-Rongoa for an order restraining Mr Fraundorfer, counsel for Robert and Vera, from continuing to act for them;

(b)by Stephen and Wai-Rongoa for an order that I recuse myself;

(c)by Robert and Vera for an order striking out part of Stephen and Wai-Rongoa’s counterclaim; and

(d)by Stephen for leave to continue to represent Wai-Rongoa in these proceedings.

The application to restrain counsel from acting

[7] This Court has inherent jurisdiction to restrain counsel from appearing before the Court in a proceeding, where to allow them to do so may impair the integrity of the judicial process.2

[8] The application is dated 30 April 2024. The only coherent ground advanced in support of the application is that Mr Fraundorfer is…

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: [2024] NZHC 1735
Decision Date: 27 June 2024

CaseChat Overview and Summary

The case of Burnside v Burnside, heard in the High Court of New Zealand, involved disputes between Robert Burnside and Stephen Burnside, who are brothers, and their respective companies. The litigation stemmed from issues arising between the brothers as neighbours, primarily concerning easements created on a subdivision of land in 2004 and a common boundary fence. The proceedings began in the District Court and were subsequently transferred to the High Court due to the complexity of the issues, particularly regarding the validity of the subdivision and the registration of easements. This judgment dealt with four interlocutory applications, including an attempt to restrain Robert and Vera's counsel, a request for the judge's recusal, a motion to strike out parts of the counterclaim, and Stephen's application for leave to continue representing Wai-Rongoa.

The court dismissed Stephen's application to restrain Robert and Vera's counsel, Mr Fraundorfer, finding no conflict of interest or other basis for the application. The application for the judge's recusal was also dismissed, as there was no reasonable apprehension of bias, and Stephen's dissatisfaction with procedural directions did not warrant recusal. The court granted Robert and Vera's application to strike out parts of Stephen and Wai-Rongoa's counterclaim, finding that certain paragraphs were frivolous or vexatious, lacking any sensible meaning. However, the tort cause of action for battery remained open for Stephen to pursue. Finally, the court denied Stephen leave to continue representing Wai-Rongoa in the High Court, citing Stephen's lack of objectivity and propensity to file incoherent and scandalous allegations.

The court concluded that the proceedings were most appropriately dealt with in the District Court due to the relatively low value of the claims and the lack of any viable challenge to the 2004 subdivision. An order was made to transfer the proceedings to the District Court, with directions that the Registry should not accept any amended pleadings from the defendants without leave of a Judge. Costs were to be determined on the papers after submissions from both parties.

Orders