Gary Owen Burgess v Malley & Co

[2017] NZSC 9

IN THE SUPREME COURT OF NEW ZEALAND

SC 130/2016
[2017] NZSC 9

BETWEEN	GARY OWEN BURGESS Applicant
AND	MALLEY & CO Respondents

Court:	William Young, Glazebrook and Arnold JJ
Counsel:	Applicant in person A J Gaborieau for Respondents
Judgment:	16 February 2017

JUDGMENT OF THE COURT

AThe application for leave to appeal is dismissed.

BThe applicant must pay costs of $2,500 to the respondents.

____________________________________________________________________

REASONS

1. The applicant, Mr Burgess, has appealed to the Court of Appeal against a decision of Gendall J in the High Court, in which he ordered Mr Burgess to pay the respondents, Malley & Co, outstanding fees and disbursements for legal services, together with interest.[1]  In the same judgment, Gendall J dismissed a number of claims brought by Mr Burgess against Malley & Co alleging negligence and other failings by the firm. 

   [1]Malley & Co v Burgess [2016] NZHC 907.

2. In conjunction with filing the appeal in the Court of Appeal, Mr Burgess applied for a dispensation from the requirement to pay security for costs; for their part, Malley & Co applied for an increased amount by way of security.  The Deputy‑Registrar declined to waive security and increased the amount payable from the usual $6,600 to $10,000.

3. Mr Burgess then applied to have these decisions reviewed by a Judge.  Miller J upheld the Deputy-Registrar’s decision not to waive security but granted the application to review the increased amount, reducing it to $6,600.[2]  Mr Burgess now seeks leave to appeal to this Court against Miller J’s decision to uphold the Deputy‑Registrar’s decision to refuse to waive security.

   [2]Burgess v Malley & Co [2016] NZCA 484.

4. These proceedings arise from a long-running relationship property dispute between Mr Burgess and his former partner.  Malley & Co represented Mr Burgess in the relationship property proceedings. 

5. It is not suggested that the proposed appeal raises any issue of general or public importance.  Rather, Mr Burgess argues that Miller J erred by misapplying the principles articulated by this Court in Reekie v Attorney-General[3] and by incorrectly assessing the merits of his appeal against Gendall J’s decision. 

   [3]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.

6. As to the first point, Miller J’s decision was an orthodox application of the principles set out in Reekie.  We are not persuaded that the principles have, or may have been, misapplied.

7. As to the second point, Miller J concluded that the appeal was, in some respects, hopeless and in others “not strong”.  Again, nothing has been raised to cast doubt on this preliminary evaluation.

8. In these circumstances, we dismiss the application for leave to appeal.  The applicant must pay costs of $2,500 to the respondents.[4]

   [4]Since these reasons were prepared, Mr Burgess has filed a memorandum saying that he is now in a position to pay most of the amount that he is required to pay by way of security for costs.  That is an issue for the Court of Appeal.

Solicitors:
Parker Cowan, Queenstown for Respondents