BURMESTER v BURMESTER [2018] NZCA 608

BURMESTER v BURMESTER [2018] NZCA 608 [19 December 2018]NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11BTO 11D OF THE FAMILY COURT ACT 1980. FOR FURTHERINFORMATION, PLEASE SEEHTTPS://WWW.JUSTICE.GOVT.NZ/ABOUT/NEWS-AND-MEDIA/MEDIA-CENTRE/MEDIA-INFORMATION/MEDIA-GUIDE/COURTS-WITH-SPECIAL-MEDIA-PROVISIONS/FAMILY-COURT/.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA272/2018[2018] NZCA 608BETWEEN PETER BURMESTERApplicantAND BEVERLEY JOY BURMESTERFirst RespondentAND ANNELIESE BURMESTER AND SARAHBURMESTERSecond RespondentsCourt: Kós P and Williams JCounsel: Applicant in personD A T Chambers QC for First RespondentNo appearance for Second RespondentsJudgment:(On the papers)19 December 2018 at 4.00 pmJUDGMENT OF THE COURTA The application for an extension of time to apply for leave to appeal isgranted.B The application for leave to appeal is declined.C The applicant must pay the first respondent costs for a standardapplication on a band A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Kós P)[1] Mr Burmester seeks leave to appeal a decision of Katz J dismissing his appealfrom the Family Court on various relationship property issues.1 Katz J declined leaveto appeal to this Court.2 Mr Burmester now seeks special leave from this Court.He also applies for an extension of time. Though he filed the application in this Courtwithin time, it was served on Mrs Burmester, the first respondent, and the secondnamed second respondent, approximately one month late. The first respondent wasmarried to Mr Burmester; the second respondents, are their children.Background[2] The proceedings concern a dispute over relationship property.Mr and Mrs Burmester separated in June 2011 after a marriage of almost 21 years.Mrs Burmester first sought relationship property orders in August 2011.Resolution has been protracted by a number of appeals, and then applications foradjournment due to Mr Burmester's health.[3] The substantive decision of the Family Court was given by Judge Burns on15 March 2017.3 He determined that a number of bank accounts, the proceeds fromsale of the family home, family chattels, various vehicles, debt owed, monies paid toa Court in Germany and a partnership income, were relationship property.That judgment was upheld by Katz J.4[4] Mr Burmester's applications fall within the scope of s 49(2) ofthe Senior Courts Act 2016. They are to be determined on the papers by a Court oftwo Judges.1 Burmester v Burmester [2017] NZFC 1817 [Family Court decision]; and Burmester v Burmester[2018] NZHC 47 [High Court decision].2 Burmester v Burmester [2018] NZHC 822.3 Family Court decision, above n 1.4 High Court decision, above n 1.Application for extension of time[5] The application for an extension of time is granted. Although opposed by oneof the respondents (the second named second respondent) the application for leaveitself was filed within time, the delay in service was modest and there is no basis toinfer prejudice arising from the delay.Application for leave to appeal[6] Mr Burmester's rights have been adjudicated, and his sole right of appeal hasbeen exercised, albeit without success. That, then, represents the final determinationof the parties' rights. They should be at liberty to move on with their lives on thatbasis. Any second appeal, disturbing that final determination, is exceptional anddependent on leave being granted. That will occur only if the proposed appeal raises:(1) some particular question of law or fact; (2) that is capable of bona fide and seriousargument; and (3) involves an interest, public or private, of sufficient importance tooutweigh the cost and delay of the further appeal.5[7] We consider the questions raised by Mr Burmester fail to meet that highthreshold, and the application for leave must be declined. Katz J dealt withMr Burmester's belated ground of appeal concerning refusal of adjournment correctly,observing that it was clear the Judge carefully considered the interests of justice asbetween the parties.6 Similarly no realistically arguable question arises in relation tothe potential application of German law. Judge Burns found there to be insufficientevidence of a trust, but that even if it did exist, Mr Burmester's beneficial interestwould be relationship property.7 Katz J disagreed with the former, but agreed withthe latter, conclusion,8 and the point appears beyond cogent argument to us. All otherissues raised by Mr Burmester are either entirely factual, without the necessary widerpublic or specific private importance to warrant granting leave, or seek to relitigateissues that do not raise questions of sufficient general importance to outweigh the costand delay of the further appeal.5 Waller v Hider [1998] 1 NZLR 412 (CA) at 413.6 High Court decision, above n 1, at [16].7 Family Court decision, above n 1, at [26]–[42].8 High Court decision, above n 1, at [53].[8] In short, the parties' right to finality is not outweighed by any of the groundsraised by Mr Burmester, none of which engage such wider public or specific privateimportance to warrant the cost and delay of a further appeal.Result[9] The application for an extension of time to apply for leave to appeal is granted.[10] The application for leave to appeal is declined.[11] The applicant must pay the first respondent costs for a standard application on aband A basis and usual disbursements.Solicitors:Dyer Whitechurch, Auckland for First Respondent