Erwood v Maxted

IN THE COURT OF APPEAL OF NEW ZEALAND

CA126/06 [2007] NZCA 266

BETWEEN ROBERT ERWOOD Appellant

AND JANET MAXTED First Respondent

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

Counsel: Appellant in person
G M Downing for Respondents

Judgment: 29 June 2007 at 11 am

JUDGMENT OF O’REGAN J

The application to review the Registrar’s decision to seal the Court’s judgment

of 30 April 2007 is dismissed.

REASONS

[1] On 15 June 2007, this Court issued its judgment ([2007] NZCA 245) declining to recall its judgment of 30 April 2007 ([2007] NZCA 161). In para [17] of the judgment of 15 June 2007, the Court requested that the Registrar arrange for the judgment of 30 April 2007 to be sealed. The respondents had sought to have the judgment sealed earlier, but before that occurred Mr Erwood’s application to recall
the judgment had been made, and the Registrar did not seal the judgment because

ROBERT ERWOOD V JANET MAXTED AND ANOR CA CA126/06 29 June 2007

r 51(4) of the Court of Appeal (Civil) Rules 2005 (the Rules) applied. In compliance with the Court’s request, the Registrar sealed the judgment of 30 April 2007 on Monday 18 June 2007. The form of the judgment for sealing had been submitted by counsel for the respondents.

[2] Mr Erwood has now requested a review of the Registrar’s decision to seal the judgment under r 7(2) of the Rules and s 61A(3) of the Judicature Act 1908. I have personally considered the application to review the Registrar’s decision, and the submissions made in support of it by Mr Erwood.

[3] Mr Erwood says that he instructed the Registry that he was to seal the judgment, and that he considered he had an obligation to do this because he had appealed to the Supreme Court. He said he had arranged to come in on Monday
18 June to seal the judgment and discovered that the judgment had already been sealed. He said this was an error on the part of the Registrar.

[4] The judgment ought to have been sealed prior to Mr Erwood’s application for leave to appeal to the Supreme Court was filed or, if not, promptly after the application was filed: r 52(3) of the Rules. Mr Erwood was the party who should have done this, but he did not do so. There is no reason why the respondents should not have initiated the sealing of the judgment. Ultimately, the Registrar is entitled to seal a judgment, regardless of which party initiated the sealing. In this case, the Registrar was right to seal the judgment in response to the explicit request to that effect in the Court’s judgment of 15 June 2007. I am satisfied that no error has been made by the Registrar and I therefore dismiss the application to review the Registrar’s decision.

Solicitors:
McFadden McMeeken Phillips, Nelson for Respondents

CaseChat Overview and Summary

The case of Erwood v Maxted involved an appeal by Robert Erwood against the decision of the Court of Appeal of New Zealand. The dispute centered around the sealing of the Court’s judgment dated 30 April 2007. Janet Maxted and Alexander James Jeremy Glasgow, as trustees of the estate of Edward Erwood, were the first and second respondents, respectively. The case was argued before Justice O’Regan, with the appellant appearing in person and G M Downing representing the respondents.

The legal issue before the court was whether the Registrar’s decision to seal the Court’s judgment, despite an application by the appellant to recall the judgment, was correct. The appellant contended that he had instructed the Registry to seal the judgment and believed he had an obligation to do so as he had appealed to the Supreme Court. He further argued that the sealing should have occurred before or promptly after his application for leave to appeal was filed, as per rule 52(3) of the Court of Appeal (Civil) Rules 2005. However, the respondents argued that the Registrar was entitled to seal the judgment in response to the court's explicit request.

The Court found that the Registrar was justified in sealing the judgment as per the court's request in its judgment of 15 June 2007. It was noted that the appellant did not take the necessary steps to seal the judgment himself, and there was no obligation on the respondents to initiate the sealing process. The Court held that the Registrar had the authority to seal the judgment regardless of which party initiated the sealing. Consequently, the Court dismissed the application to review the Registrar’s decision, finding no error had been made.

The final orders of the Court dismissed the application to review the Registrar’s decision to seal the judgment. The judgment of the Court of Appeal of 30 April 2007 remained sealed as per the Registrar’s action on 18 June 2007.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established