Erwood v Maxted

[2007] NZCA 266

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