Erwood v Maxted - [2007] NZCA 245

IN THE COURT OF APPEAL OF NEW ZEALAND
CA126/06
[2007] NZCA 245
BETWEENROBERT ERWOOD

Appellant

ANDJANET MAXTED

First Respondent
ANDJANET MAXTED AND ALEXANDER JAMES JEREMY GLASGOW AS TRUSTEES OF THE ESTATE OF EDWARD ERWOOD
Second Respondents

Hearing:16 April 2007

Court:O'Regan, Robertson and Wilson JJ
Counsel:Appellant in person

G M Downing for Respondents

Judgment:15 June 2007 at 4 pm

JUDGMENT OF THE COURT

The application for recall is dismissed.
REASONS OF THE COURT
(Given by O’Regan J)
Introduction
[1] This is an application by Mr Erwood to recall this Court’s judgment of 30 April 2007, [2007] NZCA 161. In that judgment, this Court declined Mr Erwood’s application under r 43(2) of the Court of Appeal (Civil) Rules 2005 (the Rules) for an extension of time to file the case on appeal and apply for a fixture. The consequence of this Court dismissing Mr Erwood’s application was that his appeal was deemed to be abandoned under r 43(1) of the Rules. The abandoned appeal was an appeal against a judgment of Wild J in which he dismissed Mr Erwood’s claim that his brother’s estate, which is administered by the second respondents, held a house subject to a trust in Mr Erwood’s favour. Ronald Young J had granted a stay of the judgment of Wild J to provide an opportunity for Mr Erwood to apply for legal aid to facilitate the appeal.
Background to the judgment for which recall is sought
[2] At the hearing of Mr Erwood’s application under r 43(2), the lawyer appearing for Mr Erwood in this Court, Mr McGuire, argued that Mr Erwood’s failure to file the case on appeal and seek a fixture within the required time limit was a “collateral effect” of the delays in exhausting all possible means of obtaining legal aid. Mr Erwood was seeking leave to appeal to the High Court against the decision of the Legal Aid Review Panel upholding the refusal of legal aid. In addition, it was argued that the deteriorating mental health of Mr Erwood, and the death of Mr Erwood’s sister, of which he had not been immediately informed, as well as the vandalising of Mr Erwood’s property, were further reasons for delay.
[3] The respondents opposed the granting of an extension. They argued that Mr Erwood’s ongoing efforts to obtain legal aid, and his failure to pursue the appeal in this Court until all his legal aid appeals had been exhausted, amounted to an abuse of process. They argued that, in the High Court, Mr Erwood had sought adjournments at every step, which meant this Court could have little confidence that his appeal to the High Court against the decision upholding the refusal of legal aid would be pursued timeously. They pointed to the evidence that the appellant had substantial savings and thus did not require and was not entitled to legal aid, and highlighted the significant ongoing prejudice to the respondents from the prolongation of the litigation which would prevent the respondents from finalising the estate…

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 245
Case: [2007] NZCA 245
Decision Date: 15 June 2007

CaseChat Overview and Summary

In the matter of Erwood v Maxted, the Court of Appeal of New Zealand heard an application from the appellant, Robert Erwood, to recall its judgment of 30 April 2007, [2007] NZCA 161. The judgment had dismissed Erwood's application for an extension of time to file the case on appeal and seek a fixture. Consequently, his appeal against Wild J's judgment, which dismissed his claim that his brother's estate held a house subject to a trust in his favour, was deemed abandoned. The legal issues before the Court were whether the application for recall met the criteria for recall, and if not, whether the Court should proceed with sealing the judgment. The Court was required to decide if the application for recall was valid under r 51(6) of the Court of Appeal (Civil) Rules 2005, and whether there were any "very special reasons" for recalling the judgment.

The Court found that the only possible applicable ground for recalling the judgment was the existence of a "very special reason," which was not present in this case. The Court noted that Erwood's pursuit of a recall on a previously unheralded ground was indicative of the disentitling behaviour mentioned in the original judgment. Thus, the Court dismissed the application for recall, and requested the Registrar to arrange for the sealing of the judgment of 30 April 2007. The Court also mentioned that Erwood had not arranged for the judgment to be sealed, and the respondents had attempted to seal the judgment, but it had not yet been sealed. The Court of Appeal emphasised the importance of adhering to the established principles of law and procedure and discouraged the pursuit of recall applications on previously unheralded grounds.

Orders