An appeal against a decision of the High Court, on the application of Gary Owen Burgess [2021] NZCA 300 [6 July 2021]

An appeal against a decision of the High Court, on the application of Gary Owen Burgess [2021] NZCA 300[6 July 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA195/2020[2021] NZCA 300IN THE MATTER OF AN APPEAL AGAINST A DECISION OFTHE HIGH COURT, ON THEAPPLICATION OF GARY OWENBURGESS, PURSUANT TO S 119 OF THEINSOLVENCY ACT 2006, DECLININGTO VEST CERTAIN DISCLAIMEDPROPERTY IN MR BURGESS[ ][ ][ ]Hearing: 24 June 2021Court: French, Thomas and Muir JJCounsel: Appellant in personM J Wallace as ContradictorJudgment: 6 July 2021 at 9 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by French J)[1] Mr Burgess was bankrupted in October 2017.1 On 6 August 2018, withoutreference to the Official Assignee, he filed civil proceedings seeking compensation1 Malley & Co v Burgess [2017] NZHC 2581.and other remedies against his ex-wife and her legal representatives. The claim wasstruck out. 2 The Official Assignee disclaimed any interest in the alleged litigationrights. Following an unsuccessful challenge to the Official Assignee's decision,3Mr Burgess then filed an application in the High Court under s 119(2) of theInsolvency Act 2006 for an order vesting the disclaimed litigation rights in him.The application was dismissed by Associate Judge Lester.4 Mr Burgess then filed thepresent appeal.[2] The statement of claim that was filed by Mr Burgess relates to protractedrelationship property litigation between himself and his ex-wife. The litigation hasbeen the subject of decisions in the Family Court,5 the High Court,6 this Court7 andthe Supreme Court.8 It has also been the genesis of an unsuccessful damages claimbrought by Mr Burgess against his own lawyers who bankrupted him for non-paymentof their legal fees.9[3] Mr Burgess' take on the history of the litigation is that although his ex-wifeand her legal representatives knew full well the arguments they were raising weremeritless, they persisted. As a result, although ultimately successful in theSupreme Court, he has been left with nothing having endured years of needless stressand costs. He wants compensation for what he sees as gross injustice.[4] The statement of claim pleads nine causes of action:(a) Tort of fraud — against his ex-wife and her lawyers.(b) Breach of fiduciary duties — against his ex-wife.2 Burgess v Beaven [2018] NZHC 2793.3 Burgess v Official Assignee [2019] NZHC 1324.4 Burgess v Beaven [2020] NZHC 497 [Decision under appeal].5 Burgess v Beaven FC Christchurch FAM-2005-009-3126, 16 May 2007; and Burgess v BeavenFC Christchurch FAM-2005-009-3126, 30 June 20086 Burgess v Beaven HC Christchurch CIV-2007-409-1361, 27 November 2007; and Burgess vBeaven HC Christchurch CIV-2007-409-1361, 15 December 2008.7 Burgess v Beaven [2010] NZCA 625, [2011] NZFLR 609; and Burgess v Beaven [2009] NZCA229.8 Burgess v Beaven [2012] NZSC 71, [2013] 1 NZLR 129, [2012] NZFLR 671.9 Malley & Co v Burgess [2016] NZHC 907; Burgess v Malley & Co [2017] NZCA 401; and Burgessv Malley & Co [2017] NZSC 177.(c) Dishonest receipt or unjust enrichment — against his ex-wife and herlawyers.(d) Abuse of process and/or procuring judgment by fraud — against hisex-wife and her lawyers.(e) Unlawful interference in business — against one of his ex-wife'slawyers.(f) Malicious or reckless use of civil proceedings — against his ex-wifeand her lawyers.(g) Obligation as a co-owner or obligor on mortgage — against his ex-wife.[5] In our view, notwithstanding Mr Burgess' subjective perceptions, thedocumented history of the litigation shows that each of these causes of action is whollyuntenable and has no prospect of success whatsoever. Several matters establish thatbeyond any doubt. The first is that the ex-wife obtained judgments in her favour inthe Family Court and the High Court. Although aspects of those judgments were laterfound to be wrong by this Court and the Supreme Court, the fact that several judgesaccepted the arguments as meritorious precludes any finding that they were so devoidof merit they must have been advanced by the ex-wife and her lawyers maliciously orfraudulently or negligently.[6] The second matter is the Supreme Court judgment itself. Even althoughMr Burgess succeeded, the Supreme Court declined to overturn several of the costsawards that had been made in favour of the ex-wife, costs awards which Mr Burgessnow seeks to overturn in the proposed claim. The Supreme Court also expresslyrejected his contention that he had a claim against his ex-wife for the consequences ofher conduct of the litigation. The Supreme Court said:10Despite his success in the Court of Appeal – and his greater success in thisCourt notwithstanding – he has been over-litigious and not always focused onwhat is truly relevant and he has undoubtedly contributed to the imbroglio.In any event, his contention that Ms Beaven acted unreasonably is not entirely10 Burgess v Beaven, above n 8, at [50].convincing. She was, after all, merely insisting on enforcement of thejudgments in her favour which were then in place. she was entitled to doso. Or, to put it another way, her insistence on enforcing the judgments in herfavour does not give rise to a claim against her for the consequences.[7] Thirdly, other issues pleaded in the statement of claim relating to theregistration of a property relationship notice and a settlement have already beenexpressly addressed by this Court and found devoid of merit.11 These and allegationsof fraud are without any evidential foundation and contrary to the record.[8] An order can only be made under s 119 of the Insolvency Act if the Court issatisfied it is fair that the disclaimed litigation rights should be vested in Mr Burgess.We agree with the Associate Judge that in deciding what is fair, the Court is entitled totake into account the merits of the proposed claim, the effect of the delay and theinterests of the proposed defendants.12 And when those considerations as well as theintegrity of the Court process is taken into account, it is evident that it would be quiteunfair for Mr Burgess' application to be granted.[9] Mr Burgess makes the point that were he not bankrupt, he could have broughtthese proceedings as of right. That is correct. But in a situation where Mr Burgesswas not bankrupted until five years after the Supreme Court decision and where suchproceedings would inevitably be struck out, that is a factor which must, in our view,carry little weight.[10] We therefore conclude that the Associate Judge was right to decline theapplication.[11] Finally, for completeness, we record that both Mr Burgess and the Courtappointed contradictor Mr Wallace addressed us on the development of the tort ofmalicious civil prosecution. The existence of such a tort and its exact scope is thesubject of some controversy.13 However, it is unnecessary for us to examine therelevant caselaw and express any view. That is because even under the most liberalformulation of the tort, Mr Burgess' claim would fail.11 Burgess v Beaven [2011] NZCA 422, at [11].12 Decision under appeal, above n 4, at [18].13 See Stephen Todd Todd on Torts (8thth ed, Thomson Reuters, Wellington, 2019) at [18.3].Outcome[12] The appeal is dismissed.