BURGESS v MALLEY & CO [2016] NZCA 585

BURGESS v MALLEY & CO [2016] NZCA 585 [6 December 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA251/2016[2016] NZCA 585BETWEEN GARY OWEN BURGESSAppellantAND MALLEY & CORespondentHearing: 28 November 2016Court: Harrison, French and Cooper JJCounsel: Appellant in personM E Parker for RespondentJudgment: 6 December 2016 at 4.00 pmJUDGMENT OF THE COURTA The application for an extension of time under r 43(2) of the Court of Appeal (Civil) Rules 2005 is granted. The appellant must file the case on appeal and apply for a hearing date on or before Wednesday 15 March 2017.B The application for an extension of time to pay security for costs is granted. In the event the Supreme Court declines to grant the appellant leave to appeal then he must pay security for costs within five working days of the Supreme Court issuing its leave decision. No further extension will be given. In the event the Supreme Court grants leave to appeal then the time for payment of security for costs (if any) is extended until final disposition by the Supreme Court.C The application to remove Parker Cowan Lawyers from continuing to represent the respondent is declined.D There will be no orders as to costs.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] On 2 June 2016 Mr Burgess filed an appeal against a decision of Gendall J in the High Court at Christchurch.1 In the decision Gendall J entered judgment against Mr Burgess for the sum of $54,594.81 together with interest and costs, representing legal fees found to be owing by Mr Burgess to his former lawyers, the respondent Malley & Co.[2] Mr Burgess now makes three applications:(a) under r 43(2) of the Court of Appeal (Civil) Rules 2005 for an extension of time to file the case on appeal and apply for a hearing date;(b) under r 5(2) for an extension of time to pay security for costs; and(c) to remove the respondent's lawyers, Parker Cowan Lawyers, fromacting in this proceeding.Applications for extension of time[3] Rule 43 requires an appellant to apply for the allocation of a hearing date and to file the case on appeal within three months after the appeal is brought. Failure to comply with these two requirements results in the appeal being deemed to be abandoned. The three months in this case expired on 5 September 2016 without Mr Burgess having actioned either obligation. In order to keep the appeal alive, it is now necessary for him to seek an extension of time under r 43(2).1 Malley & Co v Burgess [2016] NZHC 907.[4] The reason given by Mr Burgess for his default is that payment of security for costs has not yet been resolved. On 8 June 2016 the Registrar initially set security for costs at $6,600 and then later on the application of Malley & Co increased it to $10,000. In a review decision, delivered on 6 October 2016, Miller J directed Mr Burgess to pay $6,600 as security by 31 October 2016.2 Mr Burgess has not paidthe security and has applied for leave to appeal Miller J's decision to the SupremeCourt.[5] Malley & Co contend that the fact security for costs remains unresolved does not excuse the default under r 43. They submit the obligations to apply for a hearing date and prepare and file the case on appeal operate separately and independently from the obligation to give security for costs.[6] However, under r 37(2) an appellant may not apply for the allocation of a hearing date if the appellant is in default of any obligation to pay security for costs. To that extent the issues are therefore interrelated. Mr Burgess is entitled to exhaust rights of appeal in relation to security of costs but his failure to pay them meantime means he cannot apply for a hearing date.[7] In the circumstances, we consider the just outcome is to grant Mr Burgess an extension of time until Wednesday 15 March 2017 for filing the case on appeal and applying for a hearing date. He is also granted an extension of time to pay security for costs, the time frames to be determined by the outcome of his application to theSupreme Court for leave to appeal Miller J's decision. In the event the SupremeCourt declines to grant Mr Burgess leave then he must pay security for costs within five working days of the Supreme Court issuing its leave decision. No further extension will be given. In the event the Supreme Court grants leave to appeal then the time for payment of security for costs (if any) is extended until final disposition by the Supreme Court.2 Burgess v Malley & Co [2016] NZCA 484.Application for order removing Parker Cowan[8] Parker Cowan issued the proceedings for recovery of the legal fees on behalf of Malley & Co and has been representing the firm ever since. Mr Burgess contends Parker Cowan should be disqualified from continuing to act because in a counter-claim he has put in issue the bona fides of Malley & Co's claim. Mr Burgessalso contends that a member of Parker Cowan has breached their ethical duties by evading his attempts to serve them with a witness summons.[9] The threshold for removal of a party's chosen representative is a high one andthis Court will not countenance such applications being used for tactical or delaying reasons.3 The mere fact Mr Burgess chooses to make an allegation without proper evidential foundation is obviously not of itself enough. As regards the witness summons, we note that in any event any evidence a member of Parker Cowan could have given that was not already part of the record might well be covered by solicitor- client privilege.Outcome[10] The applications for extensions of time in relation to the filing of a case on appeal and payment of security for costs are granted. The application for the removal of Parker Cowan is declined.[11] In light of the fact Mr Burgess has succeeded in respect of the extension of time applications that were opposed, we do not make an award of costs against him in relation to the unsuccessful application to remove Parker Cowan.Solicitors:Parker Cowan Lawyers, Queenstown for Respondent3 Accent Management Ltd v Commissioner of Inland Revenue [2013] NZCA 155, [2013] 3 NZLR 374 at [32].