Estate of Lu

[2020] NZHC 2415

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2019-488-111

[2020] NZHC 2415

BETWEEN

PETER BURMESTER

Appellant

AND

NORSAND LIMITED

Respondent

Hearing:

On the papers

Appearances:

Appellant in person

M Ridgley for Respondent

Judgment:

22 September 2020

JUDGMENT OF LANG J

[on application for leave to bring second appeal]

This judgment was delivered by me on 22 September 2020 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Solicitors:

Thomson Wilson, Whangarei

BURMESTER v NORSAND LIMITED [2020] NZHC 2415 [22 September 2020]

[1]        Mr Burmester seeks leave to advance a second appeal to the Court of Appeal against my decision dismissing his appeal against the judgment of Judge G Harrison in the District Court.1

[2]        The jurisdiction to bring a second appeal is contained in s 60 of the Senior Courts Act 2016. The principles to be applied in determining such an application remain, however, those applied in relation to the predecessor to s 60, s 67 of the Judicature Act 1908. In Waller v Hider, the Court of Appeal confirmed that the function of the Court of Appeal on a second appeal is not for general correction of error.2 Rather, it is to clarify the law and determine whether it has been properly interpreted and applied by the courts below.3 In short, the proposed appeal must raise a question of law or fact that it is capable of bona fide and serious argument and involves some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal. This threshold reflects the fact that the time and resources of the Court of Appeal should not be devoted to cases that are not worthy of its attention. In addition, the other party or parties to the proposed appeal should not be put to additional expense without good reason.

[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.

[4]        It also needs to be remembered that the proposed appeal relates to a judgment in the sum of just $10,111.07 together with interest. Although the factual issues he raises are clearly important to Mr Burmester, I do not consider they are of sufficient private importance to justify the inevitable delay and expense inherent in a further

1      Burmester v Norsand Ltd [2020] NZHC 1945.

2      Waller v Hider [1998] 1 NZLR 412 at 413.

3      At 413.

appeal to the Court of Appeal. Furthermore, the scarce resources of the Court of Appeal should not be expended in dealing with an appeal of this nature.

[5]The application for leave to bring a second appeal is dismissed.

[6]        I  extend  the  interim  order  staying  execution  of  the  judgment  against  Mr Burmester’s vessel “Star Appeal” until midnight on 30 September 2020 to give Mr Burmester time within which to pay the debt owing to the respondent.

[7]        If Mr Burmester files an application to the Court of Appeal seeking leave to bring a second appeal the interim order staying execution of the judgment against the vessel will remain in place until the Court of Appeal has determined the application.

Lang J