Erwood v Maxted - [2007] NZCA 572

IN THE COURT OF APPEAL OF NEW ZEALAND
CA631/07
[2007] NZCA 572
BETWEENROBERT ERWOOD

Applicant

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

First Respondents
ANDTHE OFFICIAL ASSIGNEE

Second Respondent

Court:William Young P, Glazebrook and Robertson JJ
Counsel:Applicant in person

G M Downing for First Respondents
R MacDuff for Second Respondent

Judgment:13 December 2007 at 4 pm

JUDGMENT OF THE COURT

AOrder that there be a stay of public advertising or calling of a creditors meeting in respect of the adjudication made on 22 November 2007 of Robert Erwood as a bankrupt pending the hearing of the appeal in this Court, or the abandonment or striking out of the appeal.

B        Leave is reserved for any party to apply for further and other directions.
____________________________________________________________________
REASONS OF THE COURT
(Given by Robertson J)
Introduction
[1]       On 22 November 2007, in the High Court at Nelson, Associate Judge Christiansen made an order for the applicant’s adjudication as a bankrupt.
[2]       Mr Erwood has filed an appeal against that order and now seeks a stay of the order, particularly publication of newspaper advertisements relative to the bankruptcy, pending the hearing of this appeal.
[3]       By Minute of 30 November 2007, the President directed a hearing in this Court on 5 December 2007 and granted a stay confined to advertising until that time.
[4]       By consent, the matter is being dealt with on the papers.
Background
[5]       The act of bankruptcy underlying the adjudication was a bankruptcy notice filed and served in July 2007 relating to costs ordered against Mr Erwood in the High Court, the Court of Appeal and Supreme Court flowing from a lengthy saga of litigation between himself and the first respondents.
[6]       Mr Erwood applied to set aside the bankruptcy notice which was for a total sum of $27,401.97: HC NEL CIV-2007-442-331 28 September 2007. This was refused following a hearing on 27 September 2007 with reasons delivered the following day. Mr Erwood filed an appeal against that judgment (CA567/07) and sought a stay of proceedings pending the hearing of the appeal.
[7]       The stay was considered by the President on 24 October 2007 and in a Minute he said:
Mr Erwood has submitted that if a stay is refused his right of appeal is rendered nugatory. I disagree. If he is adjudicated bankrupt, his challenge to the bankruptcy notice along with any other challenge to the adjudication can be addressed in this Court. On the other hand, if a stay is granted, this will inevitably delay the prosecution of the bankruptcy proceedings. There are, of course, good reasons why bankruptcy proceedings should not be allowed to stand in abeyance.

[8]       There has not been a substantive hearing of this first appeal.
[9]       The creditor’s petition, filed on 2 November 2007, related only to an order for costs in the High Court which, together with interest and consequential fees, was for a total sum of $23,456.09.
[10]     In his…

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 Maxted

Details

AGLC: Erwood v Maxted [2007] NZCA 572
Case: [2007] NZCA 572
Decision Date: 13 December 2007

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Erwood v Maxted was heard. Robert Erwood appealed against his adjudication as a bankrupt by the High Court at Nelson. Erwood sought a stay of public advertising or calling of a creditors meeting in respect of the adjudication pending the hearing of his appeal. The court granted a stay confined to advertising until the appeal hearing. The appeal was heard on the papers by consent.

The court considered two issues, namely the proper venue for the bankruptcy proceedings and the need for a litigation guardian. Regarding the venue, the Associate Judge had decided that the Nelson Court was the most convenient place to deal with the bankruptcy proceedings. However, the Court of Appeal found that the Associate Judge did not sufficiently balance the convenience of the location for the parties. The Court found that the Associate Judge did not consider all relevant matters in refusing to appoint a litigation guardian. The Court noted that Erwood had a history of not complying with court orders and adopting processes aimed at delaying matters.

The Court of Appeal granted a stay limited to public advertising and the calling of a creditors meeting in respect of the adjudication pending the hearing of the appeal and CA567/07 or the abandonment or striking out of the appeal. The hearing was scheduled for 23 April 2008, provided security for costs was paid by 14 December 2007. The court made no order as to costs on this application.

Orders