Erwood v Harley - [2007] NZCA 415

IN THE COURT OF APPEAL OF NEW ZEALAND
CA480/07
[2007] NZCA 415
BETWEENROBERT ERWOOD

Applicant

ANDRAYLEE PATRICIA HARLEY

Respondent

Hearing:17 September 2007

Court:Hammond, Robertson and J Hansen JJ
Counsel:Applicant in person

C R Carruthers QC for Respondent

Judgment:21 September 2007 at 3 pm

JUDGMENT OF THE COURT

A The application for a stay of execution pending appeal is dismissed.
BThe respondent will have costs of $1,500 and usual disbursements on this application.

REASONS OF THE COURT
(Given by Hammond J)
Introduction
[1]       This is an application for a stay of execution pending appeal.
[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 be paid by him. That is, it is his contention that he does not now owe Ms Harley any further sums. Secondly, Mr Erwood applied to this Court (CA480/07) to stay the orders of Ronald Young J until his appeal has been dealt with.
[6]       To complete the narrative, we had inquiry made of the Registrar of the High Court at Auckland immediately prior to the hearing before us. We were advised that the funds of $121,890.09 which were in Court were "paid” by cheque on 12 September 2007, as provided for in the High Court judgment, to “Russell McVeagh Trust Account”. But as at the time of this Court’s inquiry (10.03 am, 17 September) the monies were still in the High Court Trust Account and had not been transferred to Russell McVeagh. For completeness, we add that the payment amount on the cheque includes interest of $653.43 (after deduction of tax). Mr Carruthers QC was able to confirm from the Bar that as at the time of the hearing before us the particular cheque had not reached the hands of Russell McVeagh; it appears that it is still in the post.
[7]       On…

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 415
Case: [2007] NZCA 415
Decision Date: 21 September 2007

CaseChat Overview and Summary

Robert Erwood applied to the Court of Appeal for a stay of execution pending appeal, seeking to prevent the payment of $121,236.64 awarded to Raylee Patricia Harley from being distributed. This sum was held by the Registrar of the High Court at Auckland pending the determination of Erwood's application to set aside writs of sale issued by Harley. Ronald Young J dismissed Erwood's application and ordered immediate distribution of the funds, prompting Erwood to file a notice of appeal against Young J's judgment and to apply to the Court of Appeal for a stay of execution. The court considered the balance of convenience, the likelihood of success on appeal, and the impact on Harley. The court found that Erwood's arguments were untenable and that Harley was entitled to the fruits of the judgment on which she stood. The application for a stay of execution was dismissed, and Harley was awarded costs of $1,500 and usual disbursements on the application.

Orders