Malley & Co v Burgess - [2017] NZHC 2581

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2016-409-000439 [2017] NZHC 2581

IN THE MATTER of the Insolvency Act 2006

AND

IN THE MATTER

of the bankruptcy of Gary Owen Burgess

BETWEEN

MALLEY & CO Judgment Creditor

AND

GARY OWEN BURGESS Judgment Debtor

Hearing: 18 October 2017

Appearances:

A J Gaborieau for Judgment Creditor
G O Burgess (Judgment Debtor) in person

Judgment:

24 October 2017

JUDGMENT OF ASSOCIATE JUDGE OSBORNE [on adjudication application]

The question

[1] Malley & Co applies for the adjudication of Gary Owen Burgess in bankruptcy. There is no issue as to the fact that Mr Burgess is insolvent.

[2] The question in this case is whether the Court should, by again halting the adjudication application, give Mr Burgess a third opportunity to pursue a

MALLEY & CO v BURGESS [2017] NZHC 2581 [24 October 2017]

counterclaim which he asserts to be greater than the judgment debt ($43,844.29 plus interest).1

[3] The answer is – No. Mr Burgess has had two opportunities – through pursuing his counterclaim unsuccessfully in this Court,2 and then in pursuing an unsuccessful appeal to the Court of Appeal.3 The creditor’s rights in relation to an insolvent debtor and the balancing of interests are overwhelmingly in favour of the Court, rather than ordering a halt, dealing now with the adjudication application.

Background

[4] The full background to dealings between Mr Burgess and Malley & Co is lengthy. It is detailed in the 13 September 2017 judgment of the Court of Appeal in Burgess v Malley & Co.4 I now summarise it.

[5] In February 2008, Mr Burgess instructed Malley & Co to act for him in relationship property proceedings. Mr Burgess became entitled to take a property at Medbury. The Medbury property was later lost to Mr Burgess through a mortgagee sale.

[6] Malley & Co claimed fees for their work for Mr Burgess and ultimately obtained judgment for those fees. A judicial review was pursued by Mr Burgess in relation to a Standards Committee decision concerning those fees. Malley & Co became a judgment creditor by reason of the costs award in that proceeding. It is that costs award which was the subject-matter of the bankruptcy notice in this proceeding.

[7] Mr Burgess considers Malley & Co responsible for the loss of the Medbury property and associated costs as well as general and exemplary damages. When Malley & Co issued their proceeding to recover their outstanding fees, Mr Burgess
counterclaimed. On 5 May 2016, Gendall J gave judgment in favour of Malley &

1      Being costs and disbursements awarded in Malley & Co v Burgess [2014] NZHC 2981.
2      Malley & Co v Burgess [2016] NZHC 907.
3      Burgess v Malley & Co [2017] NZCA 401.
4      Burgess v Malley & Co, above n 3, at [4]–[29].

Co for costs and disbursements of $54,594.81 plus interest and the costs of the

hearing. Mr Burgess’s counterclaim was dismissed.

[8] Malley…

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 Malley & Co v Burgess

Details

AGLC: Malley & Co v Burgess [2017] NZHC 2581
Case: [2017] NZHC 2581
Decision Date: 24 October 2017

CaseChat Overview and Summary

Malley & Co has applied for the adjudication of Gary Owen Burgess in bankruptcy. Burgess has opposed the application, arguing that the adjudication should be halted until his appeal to the Supreme Court is determined. The Court of Appeal previously dismissed Burgess's appeal, which was based on the trial judge's findings that Burgess's counterclaims were without merit. The Court of Appeal's judgment rejected Burgess's contentions that the trial judge had erred in his evaluation of expert evidence and in his failure to define the tort of malicious or reckless use of civil proceedings. The Court held that Burgess had been given multiple opportunities to establish his counterclaims, which have all been unsuccessful. The Court dismissed Burgess's application to halt the adjudication, holding that Burgess has had sufficient opportunity to pursue his counterclaims. The Court ordered that Burgess be adjudicated bankrupt and that Burgess pay the creditor's costs.

Orders