BURGESS v MALLEY & CO [2018] NZCA 269

BURGESS v MALLEY & CO [2018] NZCA 269IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA660/2017[2018] NZCA 269BETWEEN GARY OWEN BURGESSAppellantAND MALLEY & CORespondentCA43/2018BETWEEN GARY OWEN BURGESSApplicantAND MALLEY & COFirst RespondentOFFICIAL ASSIGNEESecond RespondentHearing: 11 June 2018Court: French, Cooper and Brown JJCounsel: Appellant in personM E Parker and A J Gaborieau for Respondent in CA660/2017and First Respondent in CA43/2018No appearance for Second Respondent in CA43/2018Judgment: 24 July 2018 at 2 pmJUDGMENT OF THE COURTA The respondent's application to strike out the notice of appeal filed on28 January 2018 and given the file number CA43/2018 is granted.B The appellant's application for an extension of time under r 43 of theCourt of Appeal (Civil) Rules 2005 in relation to CA660/2017 is declined.C The appellant must pay the respondent Malley & Co one set of costs for astandard application and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] Mr Burgess filed an appeal in this Court against a decision of Associate JudgeOsborne adjudicating him bankrupt on the application of the respondent and orderinghim to pay indemnity costs.1 Associate Judge Osborne delivered his decision on24 October 2017. Mr Burgess filed his notice of appeal on 20 November 2017.The appeal was allocated the file number CA660/2017.[2] After Mr Burgess had filed his appeal, the Associate Judge recalled his decisionin order to amend the costs order. The Associate Judge amended the costs order byawarding scale costs instead of indemnity costs. This was done at the respondent'srequest because it considered the preparation of a schedule detailing indemnity costswas too onerous and time consuming. Although the amendment was to Mr Burgess'sbenefit, Mr Burgess opposed the recall.[3] The recall and reissuing of the decision was done by way of a minute dated8 December 2017. The Associate Judge did not direct a new date for the reissuedjudgment and accordingly because of the limited nature of the amendment thejudgment date remained 24 October 2017.[4] Mr Burgess however did not appreciate this. He wrongly assumed the recallof the judgment meant it no longer existed for the purposes of an appeal and thataccordingly he needed to file a new appeal against the reissued judgment. He thereforefiled a new notice of appeal on 26 January 2018 and took no further steps in relation1 Malley & Co v Burgess [2017] NZHC 2581.to his earlier appeal. In particular, he did not pay security for costs. Nor did he file acase on appeal or seek a hearing date.2[5] The second notice of appeal contained an additional ground of appeal to thosecontained in the notice filed in October 2017. The additional ground related to thedecision to recall the judgment.[6] The second notice of appeal was accepted for filing and allocated a new filenumber CA43/2018. Mr Burgess was directed to pay security for costs but on26 February 2018 he applied for payment to be dispensed with. To add to theconfusion, the application for dispensation was referred to us because of a mistakenbelief on the part of the registry that it was out of time.3[7] On 13 March 2018 the respondent applied for both CA660/2017 andCA43/2018 to be struck out. Mr Burgess opposed those applications and made hisown application for any extensions of time that might be required.Analysis[8] In our view, correctly analysed the legal status of the two appeals is as follows.The second notice of appeal (CA43/2018) was filed out of time. Further, and morefundamentally, at the time it was filed there was already an extant appeal relating tothe same decision. The second appeal should not have been accepted for filing and itis accordingly struck out.[9] As for the first appeal (CA660/2017), that is deemed to have been abandonedunder r 43 of the Court of Appeal (Civil) Rules 2005 because of Mr Burgess' failureto take the steps identified at [4] above, rendering it necessary for Mr Burgess to obtainan extension of time under r 43(2). We therefore proceed on that basis.2 Court of Appeal (Civil) Rules 2005, r 43(1).3 The Registrar has no discretion to extend time for seeking dispensation of security for costs underr 35, but the Court does under r 5(2): White v Lynch [2015] NZCA 376 at [16] and [20].[10] It is now some considerable period of time since the appeal was first filed andno steps have been taken to prosecute it to the prejudice of the respondent.However, that was because Mr Burgess made an understandable mistake.[11] Accordingly, if delay were the only relevant factor, we would in thecircumstances have granted the necessary extension of time. However, in consideringapplications for an extension of time, the Court may in limited circumstances also haveregard to the merits of the appeal.4[12] The Notice of Appeal can fairly be described as perfunctory. It states thegrounds of appeal are as follows:1. That his Honour erred in adjudicating the appellant bankrupt.2. That his honour erred in assessing the merits of my Supreme Courtapplication for leave to appeal.3. That his honour erred in not setting aside or staying the bankruptcyuntil the leave to appeal application was determined.4. That the judge failed to consider the underlying justice of the situationleading to the adjudication.[13] To these can be added a fifth ground from the 2018 Notice of Appeal, namelythat Associate Judge Osborne "erred in granting recall [and] acted contrary toprinciple".[14] The first ground is simply a bare assertion and does not take matters anyfurther. Grounds two and three relate to Mr Burgess' attempt to appeal a previousdecision of this Court which confirmed his liability to pay the judgment debt.5 Thosegrounds have been overtaken by events and cannot succeed. The Supreme Court hassince declined his application for leave to appeal.64 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [39]; and Rabson v Attorney-General[2017] NZCA 350 at [9], n 5.5 Burgess v Malley & Co [2017] NZCA 401 [CA decision]; upholding Malley & Co v Burgess[2016] NZHC 907 [decision of Gendall J].6 Burgess v Malley & Co [2017] NZSC 177 [SC decision].[15] Mr Burgess assured us he accepts he cannot now re-litigate the judgment debtand that his liability to the respondent does not form any part of his appeal.7 He toldus that he is basing his appeal on the futility of making him bankrupt and the reasonswhy he became bankrupt. He argues that Associate Judge Osborne misdirectedhimself as to whether there was any benefit to making him bankrupt and failed toconsider the circumstances leading to the adjudication. In support of that submission,Mr Burgess relied on the decision of Brambles New Zealand Ltd v Braid in which adifferent Associate Judge declined to adjudicate a judgment debtor bankrupt.8Mr Burgess submitted that the case was indistinguishable from his own.[16] By "the circumstances leading to his adjudication", Mr Burgess acknowledgedhe meant what he perceives to be the unjust history of the relationship propertylitigation between him and his former wife. Mr Burgess has attempted on severalprevious occasions to blame his ex-wife as well as the respondent for his financiallosses. He plainly intends to re-run those arguments. Those claims have howeverbeen rejected by several court decisions and findings have been made that Mr Burgesswas essentially the author of his own misfortune.9 At the hearing before us,Mr Burgess suggested that the Courts were somehow also to blame because of delaysin his securing his correct entitlement to relationship property. But that is notsustainable having regard to the documented history of the litigation,10 and thefindings made in the High Court and upheld in this Court as well as findings inthe Supreme Court.11[17] It follows that this ground of appeal also cannot possibly succeed. Further weare satisfied it would be an abuse of process for Mr Burgess to attempt to run thesearguments yet again. It is a radically different situation to the facts in Brambles, wherethe indebtedness was a direct result of the Christchurch earthquakes and where one ofthe debtors — a woman in her late sixties — had a life threatening illness.7 His written submissions suggest otherwise.8 Brambles New Zealand Ltd v Braid [2018] NZHC 1187.9 See decision of Gendall J, above n 5, at [43]; and CA decision, above n 5, at [139].10 CA decision, above n 5, at [4]–[29].11 See SC decision, above n 6, at [3]–[4].[18] As regards the alleged failure to consider the benefit of making him bankrupt,the Associate Judge stated in his decision:12[34] At the hearing before me, Mr Burgess emphasised, as he hadpreviously, what he submitted would be the pointlessness of adjudication.He noted that the position adopted by Malley & Co on security for costscontained an assumption as to a lack of assets. In fact, the interlocutory natureof an application for security for costs does not involve a definitive conclusionas to the party's financial position. The jurisdiction arises whenever there isreason to believe that a party will be unable to pay costs.[35] In the adjudication context, an argument that adjudication would bepointless needs to be clearly established on the facts if it is to carry any weight.The evidence now before the court is no clearer than that when I previouslyconsidered Mr Burgess's "pointlessness" argument. As then, I am not satisfiedthat Mr Burgess has established both that he is impecunious and that theAssignee would not under the Insolvency Act 2006 recover assets of somevalue or contributions by Mr Burgess to his estate.[19] Mr Burgess did not identify any evidence which was overlooked bythe Associate Judge. In any event, it is well established that the likelihood there willbe few assets if any available for distribution to unsecured creditors is not in itself areason for declining to adjudicate a debtor bankrupt.13[20] Finally, turning to the fifth ground of appeal, we consider that in circumstanceswhere the recall was to Mr Burgess' advantage, and no error of principle wasidentified, this too must fail.[21] We conclude that the appeal being in the clearly hopeless category, it wouldnot be in the interests of justice to grant the application for an extension of time. It istherefore declined. The appeal being abandoned by operation of the Rules, it isaccordingly not necessary to deal with the respondent's strike out application.Outcome[22] The respondent's application to strike out the notice of appeal filed on28 January 2018 and given the file number CA43/2018 is granted.12 HC decision, above n 1, (footnote omitted).13 Baker v Westpac Banking Corp CA212/92, 13 July 1993 at 4.[23] The appellant's application for an extension of time under r 43 of theCourt of Appeal (Civil) Rules 2005 in relation to CA660/2017 is declined.[24] As regards costs, there is no reason why these should not follow the event.The appellant must pay the respondent Malley & Co one set of costs for a standardapplication and usual disbursements.Solicitors:Parker Cowan, Queenstown for Respondent in CA660/2017 and First Respondent in CA43/2018