Erwood v Harley - [2007] NZCA 529

IN THE COURT OF APPEAL OF NEW ZEALAND

CA485/07 [2007] NZCA 529

BETWEEN ROBERT JOHN ERWOOD Applicant

ANDRAYLEE PATRICIA HARLEY Respondent

CA567/07

AND BETWEEN ROBERT JOHN ERWOOD Applicant

ANDJANET MAXTED AND JANET MAXTED AND ALEXANDER JAMES JEREMY GLASGOW AS TRUSTEES OF THE ESTATE OF EDWARD ERWOOD OF NELSON
Respondent

Counsel: Applicant in person
C R Carruthers QC for Respondent in CA485/07
G M Downing for Respondents in CA567/07

Judgment: 22 November 2007 at 10 am

JUDGMENT OF ELLEN FRANCE J

AThe application to review the Registrar’s decisions declining to dispense with security for costs is dismissed.

BPayment of security of $4,740 in relation to CA485/07 must be made on or before 14 December 2007.

ROBERT JOHN ERWOOD V RAYLEE PATRICIA HARLEY CA CA485/07 22 November 2007

CPayment of security of $4,740 in relation to CA567/07 must be made on or before 14 December 2007.

REASONS Introduction

[1] This is an application for review of the Registrar’s decisions on applications to dispense with security for costs in relation to two appeals to this Court by the applicant, Mr Erwood.

[2] The first appeal (CA485/07) is against the judgment of Ronald Young J in

Erwood v Harley HC WN CIV 2000-485-27 12 September 2007.

[3] The second is against the judgment of Associate Judge Christiansen in

Maxted v Erwood HC NEL CIV 2007-442-000331 27 September 2007.

[4] I have considered the application under r 7(2) of the Court of Appeal (Civil) Rules 2005 and s 61A(3) of the Judicature Act 1908.

Background

[5] The background to the appeal in CA485/07 is summarised in this Court’s decision on Mr Erwood’s application for a stay of execution pending that appeal (Erwood v Harley [2007] NZCA 415) as follows:

[2] Mr Erwood and Ms Harley have been involved in protracted litigation. Ultimately Ms Harley was successful in that litigation, and costs totalling $121,236.64 were awarded to her.

[3] Ms Harley attempted to execute on the judgment for that sum, by issuing writs of sale. By agreement a sum of $121,236.64 was then paid to the Registrar of the High Court at Auckland pending the determination of an application by Mr Erwood to set the writs of sale aside in their entirety.

[4] That application was determined by Ronald Young J on
12 September 2007 in CIV 2000-485-27 Wellington Registry. In the result, the Judge held:

(a) The application challenging the writs of sale is refused.

(b) I refuse the application for a stay of payment of the sum held by the Registrar of the High Court at Auckland and order its immediate distribution in terms of the execution process.

[5] Mr Erwood then took two steps. First, he filed a Notice of Appeal (CA485/07) challenging the judgment of Ronald Young J, both on certain process grounds and as a matter of substance. As to the latter, it appears to be his contention that the settlement on which the costs judgments against him rests, was a full and final settlement and leaves nothing to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Erwood v Harley

Details

AGLC: Erwood v Harley [2007] NZCA 529
Case: [2007] NZCA 529
Decision Date: 22 November 2007

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Mr Robert Erwood filed an application for review against the Registrar’s decisions declining to dispense with security for costs in relation to two appeals. The first appeal (CA485/07) was against the judgment of Ronald Young J in Erwood v Harley HC WN CIV 2000-485-27 12 September 2007. The second appeal (CA567/07) was against the judgment of Associate Judge Christiansen in Maxted v Erwood HC NEL CIV 2007-442-000331 27 September 2007. The main legal issue the court was required to decide was whether the application for dispensation in relation to CA485/07 was out of time because the notice of appeal had not been served, and whether the respondent in CA485/07 had been paid her previous costs so security was not necessary.

The court held that the Registrar was right that the time for filing the application for dispensation of security for costs runs from the date the appeal is filed in the court. The court further held that the Registrar had considered the merits of Mr Erwood’s application and there was no basis for the court to interfere with the Registrar’s assessment of the matter. The court also held that the merits of the appeal in CA485/07 did not appear to be strong, and there was no compelling case to dispense with security. Similarly, the court held that the merits of the appeal in CA567/07 did not appear to be strong and there was no compelling case to dispense with security. The application to review the decisions of the Registrar declining to dispense with security for costs was dismissed.

The court ordered that payment of security of $4,740 in relation to CA485/07 must be made on or before 14 December 2007, and payment of security of $4,740 in relation to CA567/07 must be made on or before 14 December 2007.

Orders