Burmester v Norsand Limited [2021] NZCA 11 (15 February 2021)

Last Updated: 24 February 2021

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA562/2020 [2021] NZCA 11

	BETWEEN	PETER BURMESTER Applicant
	AND	NORSAND LIMITED Respondent

Court:	Brown and Goddard JJ
Counsel:	Applicant in person M R Ridgley for Respondent
Judgment: (On the papers)	15 February 2021 at 10.30 am

JUDGMENT OF THE COURT

A The application for leave to bring a second appeal is declined.

2. The applicant must pay the respondent costs on a band A basis for a standard application for leave to appeal with usual disbursements.

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REASONS OF THE COURT

(Given by Brown J)

Introduction

• [1] This is an application for leave to bring a second appeal in respect of a judgment of the High Court^[1] dismissing an appeal from a judgment delivered in the District Court at Whangarei in which judgment was granted against the applicant in favour of the respondent in the sum of $10,111.07.^[2]

Background

• [2] Judgment was granted against the applicant in the District Court for the unpaid balance of two invoices rendered by the respondent for work carried out at the applicant’s request to the mast on his yacht. On appeal Lang J agreed that the invoices were sufficient to fully inform the applicant as to the nature and scope of the work that was the basis of the charges. In relation to the applicant’s contention that he had been overcharged, Lang J ruled that the applicant had failed to comply with his obligations under s 92 of the Evidence Act 2006 which had the consequence that the District Court Judge did not have the benefit of any explanations that might have been given in response to the applicant’s contentions.
• [3] An application to the High Court for leave to appeal was dismissed by Lang J who stated:^[3]

[3] I do not propose to traverse the grounds set out by Mr Burmester in his memorandum filed in support of his application. All of them relate to factual issues he has raised in both the District Court and this Court. They are of no public or general importance and have no significance beyond the parties to the proceeding. In short, Mr Burmester seeks to have the Court of Appeal correct alleged errors of fact on the part of the District Court and this Court. That is not the function of the Court of Appeal on a second appeal.

(Footnotes omitted.)

• [4] The appellant now seeks the leave of this Court to appeal under s 60(2) of the Senior Courts Act 2016.

Relevant principles

• [5] The established principles relating to applications for leave to bring second appeals to this Court stated in Waller v Hider^[4] continue to apply in respect of applications under s 60(2). As this Court explained in Butch Pet Foods Ltd v Mac Motors Ltd:^[5]

[4] The test for leave to bring a second appeal to this Court is well‑established. The proposed appeal must raise some 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 the further appeal. On a second appeal this Court is not engaged in the general correction of error. Its primary function is to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a court.

Discussion

• [6] The application to this Court for leave to appeal is structured around seven primary propositions:

(a) The respondent endeavoured to obtain payment illegally for an instrument box twice.

(b) The respondent overcharged for the removal of the mast from the applicant’s yacht.

(c) The District Court and High Court Judges failed to correctly apply the rules of evidence.

(d) The High Court Judge unjustifiably refused to admit fresh evidence on appeal.

(e) The respondent failed to render itemised bills which as a consequence are said to have no legal effect.

(f) There is an absence of any basis in law for the respondent’s claim for interest.

(g) The District Court and High Court Judges incorrectly rejected the appellant’s counterclaim.

• [7] Both the application and the subsequent submissions of the appellant (which reiterate the content of the leave application) are highly critical of the Judges below. For example the District Court Judge is asserted to have invented unrealistic facts and based his decision on them thereby performing “unintentionally arbitrary justice”. By contrast the High Court Judge is alleged to have performed “intentionally arbitrary justice”. The following submission is then made:
  33. Both varieties qualify as a question of law and a question of fact, certainly capable of bona fide and serious argument. The nature of arbitrary justice indicates private and public interest of the highest importance — arbitrary justice should in no event reign. Thus, there is no difference between perversion of the course of justice and arbitrary justice regarding the “leave test” and both varieties should pass with ease.
• [8] In response the respondent contends that the issues raised by the applicant are all factual issues the subject of the dispute which has been determined. Mr Ridgley submits that the applicant has fallen well short of the threshold required to bring a second appeal.
• [9] Although the applicant contends that his proposed appeal raises questions of law or fact capable of bona fide and serious argument, we are not satisfied that he has demonstrated that the case involves some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal. We agree with the respondent that, notwithstanding the caustic criticism of the judgments below, the applicant is simply seeking to ventilate again the factual contentions which were ruled upon and rejected in the courts below. We are satisfied that this is not a case which attains the well-established threshold for the grant of leave for a second appeal to this Court.

Result

• [10] The application for leave to bring a second appeal is declined.
• [11] The applicant must pay the respondent costs on a band A basis for a standard application for leave to appeal with usual disbursements.

Solicitors:
Thomson Wilson, Whangarei for Respondent

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^[1] Burmester v Norsand Ltd [2020] NZHC 1945.

^[2] Norsand Ltd v Burmester [2019] NZDC 24286.

^[3] Burmester v Norsland Ltd [2020] NZHC 2415.

^[4] Waller v Hider [1997] NZCA 221; [1998] 1 NZLR 412 (CA) at 413.

^[5] Butch Pet Foods Ltd v Mac Motors Ltd [2018] NZCA 276, (2018) 24 PRNZ 500.