Erwood v Maxted

IN THE COURT OF APPEAL OF NEW ZEALAND
CA126/06
[2007] NZCA 236
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:J J McGuire for Appellant

G M Downing for Respondents

Judgment:12 June 2007 at 1.00pm

JUDGMENT OF THE COURT

The application for stay is dismissed.
REASONS OF THE COURT
(Given by O’Regan J)
[1]       Mr Erwood applies for a stay of the judgment of this Court which was delivered on 30 April 2007. We also have before us a number of documents filed by Mr Erwood seeking the recall of this Court’s judgment, and a notice of opposition to the application for recall from the respondents. In this judgment we deal with the application for stay: we will deal with the application for recall in a later judgment. We do not intend to convene a hearing in relation to either application.
[2]       The effect of this Court’s judgment was that Mr Erwood’s application for an extension of time for applying for the allocation of a hearing date and filing of the case on appeal was dismissed, and his appeal to this Court was therefore deemed to be abandoned.
[3] Mr Erwood sought leave to appeal to the Supreme Court against this Court’s judgment. He was granted a stay by a Judge of that Court pending the outcome of his application for leave to appeal. On 31 May 2007, the Supreme Court dismissed Mr Erwood’s application for leave to appeal, and the stay was revoked: [2007] NZSC 38.
[4]       The application for recall raises issues which were never argued in the course of the original hearing in this Court, in which Mr Erwood was represented by counsel. In those circumstances, we have to be mindful of the rights of the respondents who succeeded in this Court, as they had in the High Court. In the normal course, they ought to be entitled to the fruits of the judgment they obtained.
[5]       Applying the conventional factors for determining stay of applications, as summarised in Dymocks Franchise (NSW) Pty Limited v Bilgola Enterprises Limited (1999) 13 PRNZ 48 at 50, we conclude that the balance clearly favours the interest of the respondents in the present situation, and that a stay should not be granted. In that regard, we take into account the disentitling behaviour which we highlighted in our original judgment when declining an extension of time for the prosecution of the appeal. In our view the public interest in the finality of litigation and the rights of the respondents outweighs the appellant’s interest in preserving his attempt to reopen the case after his appeal to this Court has been deemed to be abandoned and his subsequent attempt to appeal to the Supreme Court has failed.
[6]       We therefore decline to grant a stay.
Solicitors:
Jeremy McGuire, Wellington for Appellant
McFadden McMeeken Phillips, Nelson for Respondents

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal from Robert Erwood, who sought to overturn a decision that had dismissed his appeal. Janet Maxted and Janet Maxted and Alexander James Jeremy Glasgow as trustees of the estate of Edward Erwood were the respondents in this case. The main issue before the Court was whether Mr Erwood's application for a stay of the Court's earlier judgment, which had dismissed his appeal, should be granted. Additionally, the Court had to consider Mr Erwood's application for the recall of the Court's judgment and a notice of opposition to this application from the respondents.

The Court examined the legal issues, focusing on whether Mr Erwood's application for a stay should be granted. They considered the effect of the earlier judgment, which had dismissed Mr Erwood's appeal and deemed it abandoned. They also looked at the disentitling behaviour that had been highlighted in the earlier judgment when declining an extension of time for the prosecution of the appeal. The Court applied the conventional factors for determining stay of applications, as summarised in Dymocks Franchise (NSW) Pty Limited v Bilgola Enterprises Limited. Ultimately, the Court concluded that the balance clearly favoured the respondents in the present situation, and that a stay should not be granted. The public interest in the finality of litigation and the rights of the respondents outweighed the appellant's interest in preserving his attempt to reopen the case.

In its judgment, the Court declined to grant a stay of the earlier judgment. The Court also noted that it would deal with the application for recall in a later judgment. The Court emphasised the importance of the rights of the respondents who had succeeded in the Court and the High Court, and that in the normal course, they ought to be entitled to the fruits of the judgment they obtained. The Court also took into account the disentitling behaviour which had been highlighted in the earlier judgment when declining an extension of time for the prosecution of the appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established