BURGESS V BEAVEN COA CA389/2011

BURGESS V BEAVEN COA CA389/2011 29 August 2011NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS)ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITHSS 11B TO 11D OF THE FAMILY COURTS ACT 1980.IN THE COURT OF APPEAL OF NEW ZEALANDCA389/2011[2011] NZCA 422BETWEEN GARY OWEN BURGESSApplicantAND SUSAN NATALIE BEAVENRespondentHearing: 23 August 2011Court: Ellen France, Randerson and Harrison JJCounsel: Applicant in personA M Corry and C J Tenent for RespondentJudgment: 29 August 2011 at 3:45 PMJUDGMENT OF THE COURTA The application for leave to appeal is dismissed.B Mr Burgess is ordered to pay Ms Beaven costs as for a standard application for leave to appeal on a band A basis together with usual disbursements.REASONS OF THE COURT(Given by Harrison J)[1] Gary Burgess applies to this Court for leave to appeal against a decision of the High Court at Christchurch.1 In that decision French J dismissed Mr Burgess'appeal against a decision delivered by Judge C P Somerville in the Family Court. In turn, Judge Somerville had dismissed2 Mr Burgess' application for an order removing a notice of claim of interest lodged by the respondent, Susan Beaven, against the title to a property registered in Mr Burgess' name.3[2] This litigation, over a matrimonial asset of relatively small value acquiredduring a marriage of one year's duration, has a lengthy history. This is the thirdoccasion on which it has been to this Court. It has also been the subject of three defended hearings in the Family Court and three appeals to the High Court. The fullhistory is traversed in this Court's decision in Burgess v Beaven.4[3] In summary, the background to Mr Burgess' current application for leave is as follows. Following their marriage in May 2002, Mr Burgess and Ms Beaven each sold properties which they separately owned. They pooled their financial resources in August 2002 to purchase a small rural property in Medbury, North Canterbury (Medbury), for $144,000. The SBS Bank provided funding for the purchase of $75,000, secured by a mortgage registered against the title. It is common ground that Medbury was relationship property.[4] After the parties separated, Mr Burgess successfully obtained a loan offerfrom TSB Bank to refinance the existing SBS mortgage. However, TSB's offer wasconditional upon Mr Burgess taking sole title to Medbury. Ms Beaven agreed to transfer her joint interest to Mr Burgess in order to enable him to complete his refinancing arrangements with TSB. But he was to hold her interest on trust pending finalisation of financial adjustments between them, which was in part conditional on decisions in existing litigation. In particular, the parties agreed that Ms Beaven was entitled to file a notice of claim or caveat against the Medbury title subject to prior registration of the TSB mortgage, to protect her right to payment by Mr Burgess of agreed sums of $36,250 for her relationship property interests and $9,000 for costs.1 Burgess v Beaven HC Christchurch CIV-2010-409-876, 4 October 2010.2 GOB v SNB FC Christchurch FAM-2005-009-3126, 23 April 2010.3 Property (Relationships) Act 1976, s 42(3).4 Burgess v Beaven [2010] NZCA 625, [2011] NZFLR 609.[5] In September 2008 the parties transferred title to Medbury into Mr Burgess'sole name. He was then able to complete his refinancing arrangements with TSB. Ms Beaven registered her notice of claim as agreed. In March 2009 Mr Burgess paid her the sum of $36,250. But he failed to pay the separate sum of $9,000.[6] In August 2009 Mr Burgess applied to the Family Court for an order that:The notice of claim of interest 7935613/2 lodged by [Ms Beaven] against certificate of title CV26B/1266 be removed.[7] In April 2010 Judge Somerville delivered the reserved decision (referred to above at [1]) dismissing Mr Burgess' application. He upheld Ms Beaven'sopposition on the ground that she was entitled to maintain registration of the notice until Mr Burgess paid the agreed balance of $9,000.[8] Mr Burgess filed a notice of appeal in the High Court. But by then he had defaulted on his obligations to TSB. In July 2010, before his appeal was heard, TSBexercised its mortgagee's power of sale of Medbury. That event resulted in thedischarge of Ms Beaven's notice of claim registered against the Medbury title. So,by this indirect route, Mr Burgess secured his originating objective of discharging Ms Beaven's notice.[9] Nevertheless, French J heard and determined Mr Burgess' appeal on theground that:5The mortgagee sale also resulted in Ms Beaven's notice of claim being discharged. Notwithstanding this, Mr Burgess still wished to pursue thisappeal against Judge Somerville's decision. He considers that the "appealmust still be heard to determine whether the distribution of relationship property is governed by the determination of Judge Strettell [an earlierjudgment in the litigation which is referred to in this Court's decision inBurgess v Beaven (see at [2] above)] or the contract upheld by JudgeSomerville". Mr Burgess also told me a favourable decision could provide a platform from which to launch new proceedings possibly against Ms Beaven as well as against her former lawyer.[10] This course was, we must respectfully observe, unusual given that by then there no longer remained a live issue for determination on appeal. In any event,5 At [37].French J delivered a reasoned judgment and dismissed the appeal (as referred to above at [1]). In a judgment delivered in May 2011, she dismissed Mr Burgess'application for leave to appeal to this Court.6 Mr Beaven's proposed appeal was based on the ground that in the course of her judgment French J had held that a consent memorandum signed by the party constituted an enforceable contract.7 The Judge recited Mr Burgess' acceptance that no question of public or generalimportance arose on his application for leave.[11] Mr Burgess' concession before French J was appropriate. His application for leave to appeal does not raise a question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal.8 The discharge of Ms Beaven's notice of claim by virtue of TSB's sale of Medbury in July 2010brought to an end the dispute arising from Mr Burgess' application to the Family Court.[12] There was never a live issue requiring determination either in the High Court or in this Court on appeal. The interests of justice do not justify granting leave to argue a point which is now moot and which was never of any special importance. While Mr Burgess takes issue with some of French J's reasoning on other potentialrelationship property issues, he cannot challenge the result of dismissal of his appeal.[13] Mr Burgess' application for leave to appeal is dismissed. He is ordered to pay Ms Beaven costs as for a standard application for leave to appeal on a band A basis basis together with usual disbursements.Solicitors:Dawson Innes, Christchurch for Respondent6 Burgess v Beaven HC Christchurch CIV-2010-409-876, 24 May 2011.7 At [48] and [49].8 Waller v Hider [1998] 1 NZLR 412 (CA); Property (Relationships) Act, s 39B; Judicature Act1908, s 67.