IN THE COURT OF APPEAL OF NEW ZEALAND
CA480/07
[2007] NZCA 415BETWEENROBERT 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…
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- Erwood v Harley [2007] NZCA 415
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- [2007] NZCA 415
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