IN THE COURT OF APPEAL OF NEW ZEALAND
CA52/06
[2007] NZCA 88BETWEENROBERT ERWOOD
Applicant
ANDGLASGOW HARLEY
First RespondentANDRAYLEE PATRICIA HARLEY
Second Respondent
Hearing:4 December 2006
Court:O'Regan, Robertson and Gendall JJ
Counsel:A C Beck for Applicant
N A Till for First Respondent
J A Farmer QC for Second Respondent
Judgment:21 March 2007 at 12 noon
JUDGMENT OF THE COURT TO RECALL JUDGMENT OF
11 DECEMBER 2006AThe application dated 8 January 2007 for recall of the judgment of this Court of 11 December 2006 is granted. We recall the judgment and reissue it with amendments to paragraph B of the judgment and paragraph [34] of the reasons.
BThe application dated 15 January 2007 and the undated application received by the Court on 6 March 2007 seeking the recall of the same judgment are dismissed.
C We make no award of costs.
REASONS OF THE COURT
(Given by O’Regan J)
[1] On 11 December 2006, we issued our judgment declining the applicant’s application for leave to appeal and awarding costs of $750 against the applicant. We now have before us an application to recall that judgment. The application was filed by counsel for the applicant, Mr Beck, on 8 January 2007. He pointed out that the applicant was in receipt of a grant of legal aid in respect of the application for leave to appeal, and that the award of costs against the applicant should not therefore have been made. He asked us to recall the judgment and reissue it with the costs award deleted.
[2] The first respondent opposed the recall. It argued through counsel that costs could be awarded in exceptional circumstances against a legally aided litigant: s 40(2) of the Legal Services Act 2000. It also argued that there was now evidence indicating that the applicant had substantial assets which would call into question his entitlement to legal aid.
[3] Neither of the points raised by the first respondent was before the Court at the time of the hearing of the application for leave to appeal. In our view it is inappropriate to now deal with them in the context of an application for recall of the judgment.
[4] The Court registry staff have issued under seal a notice of the outcome of the judgment under r 50 of the Court of Appeal (Civil) Rules 2005, but the judgment has not been sealed as contemplated by r 51 of those rules. We propose to consider the application for recall on the basis that the judgment of 11 December 2006 has not been perfected. The principles governing recall in of an unperfected judgment are set out in Horowhenua County v Nash (No 2) [1968] NZLR 632 at 633 (HC).
[5] The award of costs against the applicant was made on the mistaken assumption that he was not legally aided. We accept that the applicant was, in fact legally aided. In those circumstances we are satisfied that there is a “very special reason” requiring that the judgment be recalled:
Keep reading for free
Create a free CaseChat account to read Erwood v Glasgow Harley and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2007] NZCA 88
- Decision Date
CaseChat Overview and Summary
The court noted that the original judgment had not been perfected as it had not been sealed as required by the rules. The court held that the award of costs against the applicant was made under a mistaken assumption that he was not legally aided, which constituted a "very special reason" for recalling the judgment. The court was not persuaded to consider the first respondent's arguments regarding the applicant's assets and entitlement to legal aid, as these issues were not before the court at the time of the original hearing. The court found that the additional applications for recall did not provide any further basis for recalling the original judgment.
The Court of Appeal recalled the original judgment and reissued it without the award of costs. The court dismissed the additional applications for recall, finding that they did not disclose any additional basis for recalling the judgment. No costs were awarded in relation to the applications for recall.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.