Burgess [2021] NZCA 300 (6 July 2021)

Last Updated: 13 July 2021

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

CA195/2020 [2021] NZCA 300

IN THE MATTER OF

AN APPEAL AGAINST A DECISION OF THE HIGH COURT, ON THE APPLICATION OF GARY OWEN BURGESS, PURSUANT TO S 119 OF THE INSOLVENCY ACT 2006, DECLINING TO VEST CERTAIN DISCLAIMED PROPERTY IN MR BURGESS

Hearing:	24 June 2021
Court:	French, Thomas and Muir JJ
Counsel:	Appellant in person M J Wallace as Contradictor
Judgment:	6 July 2021 at 9 am

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

• [1] Mr Burgess was bankrupted in October 2017.^[1] On 6 August 2018, without reference to the Official Assignee, he filed civil proceedings seeking compensation and other remedies against his ex-wife and her legal representatives. The claim was struck out. ^[2] The Official Assignee disclaimed any interest in the alleged litigation rights. Following an unsuccessful challenge to the Official Assignee’s decision,^[3] Mr Burgess then filed an application in the High Court under s 119(2) of the Insolvency 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 the present appeal.
• [2] The statement of claim that was filed by Mr Burgess relates to protracted relationship property litigation between himself and his ex-wife. The litigation has been the subject of decisions in the Family Court,^[5] the High Court,^[6] this Court^[7] and the Supreme Court.^[8] It has also been the genesis of an unsuccessful damages claim brought by Mr Burgess against his own lawyers who bankrupted him for non-payment of their legal fees.^[9]
• [3] Mr Burgess’ take on the history of the litigation is that although his ex-wife and her legal representatives knew full well the arguments they were raising were meritless, they persisted. As a result, although ultimately successful in the Supreme Court, he has been left with nothing having endured years of needless stress and 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.

(c) Dishonest receipt or unjust enrichment — against his ex-wife and her lawyers.

(d) Abuse of process and/or procuring judgment by fraud — against his ex-wife and her lawyers.

(e) Unlawful interference in business — against one of his ex-wife’s lawyers.

(f) Malicious or reckless use of civil proceedings — against his ex-wife and 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, the documented history of the litigation shows that each of these causes of action is wholly untenable and has no prospect of success whatsoever. Several matters establish that beyond any doubt. The first is that the ex-wife obtained judgments in her favour in the Family Court and the High Court. Although aspects of those judgments were later found to be wrong by this Court and the Supreme Court, the fact that several judges accepted the arguments as meritorious precludes any finding that they were so devoid of merit they must have been advanced by the ex-wife and her lawyers maliciously or fraudulently or negligently.
• [6] The second matter is the Supreme Court judgment itself. Even although Mr Burgess succeeded, the Supreme Court declined to overturn several of the costs awards that had been made in favour of the ex-wife, costs awards which Mr Burgess now seeks to overturn in the proposed claim. The Supreme Court also expressly rejected his contention that he had a claim against his ex-wife for the consequences of her conduct of the litigation. The Supreme Court said:^[10]

Despite his success in the Court of Appeal – and his greater success in this Court notwithstanding – he has been over-litigious and not always focused on what is truly relevant and he has undoubtedly contributed to the imbroglio. In any event, his contention that Ms Beaven acted unreasonably is not entirely convincing. She was, after all, merely insisting on enforcement of the judgments in her favour which were then in place. ... she was entitled to do so. Or, to put it another way, her insistence on enforcing the judgments in her favour does not give rise to a claim against her for the consequences.

• [7] Thirdly, other issues pleaded in the statement of claim relating to the registration of a property relationship notice and a settlement have already been expressly addressed by this Court and found devoid of merit.^[11] These and allegations of 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 is satisfied 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 to take into account the merits of the proposed claim, the effect of the delay and the interests of the proposed defendants.^[12] And when those considerations as well as the integrity of the Court process is taken into account, it is evident that it would be quite unfair for Mr Burgess’ application to be granted.
• [9] Mr Burgess makes the point that were he not bankrupt, he could have brought these proceedings as of right. That is correct. But in a situation where Mr Burgess was not bankrupted until five years after the Supreme Court decision and where such proceedings 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 the application.
• [11] Finally, for completeness, we record that both Mr Burgess and the Court appointed contradictor Mr Wallace addressed us on the development of the tort of malicious civil prosecution. The existence of such a tort and its exact scope is the subject of some controversy.^[13] However, it is unnecessary for us to examine the relevant caselaw and express any view. That is because even under the most liberal formulation of the tort, Mr Burgess’ claim would fail.

Outcome

• [12] The appeal is dismissed.

---

^[1] Malley & Co v Burgess [2017] NZHC 2581.

^[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 Beaven FC Christchurch FAM-2005-009-3126, 30 June 2008

^[6] Burgess v Beaven HC Christchurch CIV-2007-409-1361, 27 November 2007; and Burgess v Beaven HC Christchurch CIV-2007-409-1361, 15 December 2008.

^[7] Burgess v Beaven [2010] NZCA 625, [2011] NZFLR 609; and Burgess v Beaven [2009] NZCA 229.

^[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 Burgess v Malley & Co [2017] NZSC 177.

^[10] Burgess v Beaven, above n 8, at [50].

^[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 (8th^th ed, Thomson Reuters, Wellington, 2019) at [18.3].